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The Daily Digest – 3/8/11

The eggshell plaintiff law is a fascinating rule in tort law that says that a defendant must take his victim as he finds him. The case today presents an interesting intersection of the eggshell plaintiff not as a thin skulled plaintiff, but a thin-skinned plaintiff. When the plaintiff, who suffered a brain injury, suffered the “indignities” of overzealous debt collection practices, he was able to show how his unique susceptibilities made the debt-collection tactics more damaging.

This introduces a new area of cognitive-impairment-based cases. Think of bullying cases — would a thin-skinned plaintiff stand to recover substantially more from mental anguish from bullying than their thick-skinner counterpart?

The Eggshell Plaintiff, Unfair Debt Collection
McCollough v. Johnson, Rodenburg & Lauinger, LLC, 2011 WL 746892 (9th Cir. 2011)
A debt collection law firm appeals from the entry of summary judgment against it under the federal Fair Debt Collection Practices Act (“FDCPA”), and from a subsequent jury verdict awarding damages under the FDCPA, the Montana Unfair Trade Practices and Consumer Protection Act (“MCPA”), and state torts of malicious prosecution and abuse of process. Appellee, a former school custodian, opened a credit card account around 1990. He and his wife fell behind on their credit card bills after he allegedly suffered a brain injury at work and she underwent surgery. Appellee made his last payment in 1999 and an unpaid balance of approximately $3,000 was charged off in 2000. In 2005 a debt collection law firm, who had purchased the debt, sued Appellee in state court for the debt; Appelle appeared pro se and prevailed on his claim that the statute of limitations had run on the debt. Appellant continued to pursue the debt through multiple channels despite clear evidence that they were aware that the statute of limitations had run. Appellee sued Appellant under the FDCPA and related statutes, and was awarded $250,000 in damages. On appeal, Appellant law firm argues that the $250,000 award was “clearly not supported by the evidence” and “based on speculation and guesswork.” In support, Appellant contends that the evidence “boils down to [Appellee’s] testimony that he was mad … and had to lie down”; his testimony concerning pre-existing symptoms, and expert testimony about the effects of stress on someone with Appellee’s recovering brain injury condition. The court held that ample evidence exists in the record to support the jury’s award. The expert described Appellee’s condition after he suffered a head injury in 1990 and explained that he suffered from mixed personality disorder and multiple other afflictions, including post-traumatic stress disorder. The expert further testified that the lawsuit was a significant stress factor in Appellee’s life, and noted that Appellee is “somebody who is a more vulnerable individual in negotiating the world,” and thus “more vulnerable to any types of problems.” This testimony and Appellee’s own testimony were sufficient for the court to conclude that the jury award was not based on speculation and guesswork, but rather on the jury’s valuation of Appellee’s emotional distress. Judgment affirmed.

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