‘Eggshell skull’ rule applies to drug addiction

A Superior Court judge has ruled that defendants allegedly responsible for a car accident could be liable for the fatal drug overdose of a passenger who, prior to surgery for injuries he suffered in the crash, had to stop taking medication that controlled his narcotics addiction.

Decedent Mathew Cardoso, a 34-year-old passenger in a vehicle driven by defendant Freeman Perry, broke his nose when Perry’s vehicle collided with a vehicle operated by defendant Zachary M. Martin and owned by defendant Michael Jacques.

At the time of the crash, Cardoso was successfully controlling his narcotics addiction through Vivitrol injections. But six months later, he needed surgery for his injuries and had to discontinue the medication.

Cardoso ultimately suffered a relapse and fatally overdosed on oxycodone and fentanyl four days after his surgery.

When his mother, plaintiff Lina Cardoso, brought a wrongful death suit against the defendants, the defendants argued in a motion for summary judgment that they could not be held responsible because the accident did not cause his death.

But Judge Thomas F. McGuire Jr. denied the motion, finding that the “eggshell skull” doctrine applied to substance abuse disorder. Under the doctrine, a defendant who injures a plaintiff with a preexisting condition is liable for the full extent of the harm, even if it is more severe than expected under the circumstances.

“Drug addiction should be governed by the same rule that applies to all other preexisting conditions,” McGuire wrote. “Since there is evidence that Cardoso’s death was caused by a combination of his preexisting drug addiction and the injury received in the motor vehicle collision, the plaintiff is not required to prove Cardoso’s death was reasonably foreseeable to prove causation.”

The 12-page decision is Cardoso v. Martin, et al., Lawyers Weekly No. 12-035-24.

‘Present-day realities’

Plaintiff’s counsel Jeffrey N. Catalano of Milton called the ruling “a win” not only for his client, but for everyone who suffers the stigma of substance use disorder and then relapses after a traumatic accident.

“Consistent with the Supreme Judicial Court’s standards on substance use disorders and mental health conditions, the judge appreciated that drug addiction is the same as other preexisting conditions for purposes of foreseeability,” he added.

Consistent with the Supreme Judicial Court’s standards on substance use disorders and mental health conditions, the judge appreciated that drug addiction is the same as other preexisting conditions for purposes of foreseeability.

Catalano’s co-counsel, Lisa M. Conserve, said a person’s past addiction does not define who that person is today and should not define how that person is treated by the courts.

“How they respond to those struggles is what matters most, and adapting the law to present-day realities is crucial to ensuring a fair and just legal system,” Conserve said.

Janet M. Smith of Marlborough defended Perry, Daniel E. Peacock of South Easton represented Jacques, and John J. Sullivan III of Raynham was counsel for Martin. None of the lawyers responded to requests for comment.

However, Bridget A. Lopez, a Boston attorney who defends motor vehicle tort cases, said the ruling was not surprising, given that the SJC has treated diseases and disorders such as alcoholism and mental illness similarly.

At the same time, Lopez said the case serves as a reminder to practitioners that preexisting conditions are not always physical in nature.

“It is further a reminder that even if the ultimate harm to a plaintiff, in this case post-surgical drug overdose leading to death, seems significantly disproportionate to the alleged negligent act, a defendant can still be held liable given the plaintiff’s predisposition,” she said.

Lopez added that defending a case with an “eggshell plaintiff” can be problematic when the foreseeability prong of causation is taken out of the equation, as occurred here.

“Death following a broken nose in a car accident on its face seems unforeseeable, even unlikely,” Lopez said. “But coupled with a recovering addict susceptible to a drug relapse, it now does not seem farfetched. So much so that the court found that the causal link between the accident and the plaintiff’s death was sufficiently established to preclude a question on injury causation from going to a jury should this case proceed to trial.”

Wayne H. Peereboom, a Westfield attorney who represents injury victims, said that if he had been evaluating the case as plaintiff’s counsel, he might have been initially concerned about whether Cardoso’s ingestion of drugs might be deemed unforeseeable and thus an intervening or superseding cause of his death.

However, Peereboom said, the judge acknowledged the rapidly developing recognition, reflected in the Restatement (Third) of Torts, that drug addiction is, in fact, a preexisting condition as a disease that is compulsive and very difficult to control, as opposed to the plaintiff making a “decision” to ingest dangerous drugs.

“The judge took the time to go beyond the simple recitation of the longstanding law regarding the aggravation of preexisting conditions, exploring the underlying rationale,” Peereboom said.  “Accordingly, the decision contains some language that should be persuasive in explaining the doctrine to an otherwise skeptical audience, be it a judge, jury or insurance adjuster.”

Tragic relapse

Cardoso became addicted to oxycodone at age 18 when a doctor prescribed it for a work-related injury.

His addiction led to the use of other drugs such as heroin and fentanyl.

Cardoso, who initially used methadone and suboxone to control his addiction, overdosed twice and went through detoxification programs five times, the last one beginning in December 2017.

In January 2018, Cardoso began taking monthly Vivitrol injections, which were apparently successful in controlling his addiction and allowing him to lead a productive life.

On Aug. 6, 2019, Cardoso was riding in a vehicle operated by Perry when another vehicle, operated by Martin and owned by Jacques, attempted to pass Perry’s vehicle on the right.

The vehicles collided as Perry turned right, though it is disputed whether Perry was signaling a left or right turn at the time.

The impact of the collision caused Cardoso’s face to hit the dashboard, fracturing his nose. At the hospital, he refused pain medication because of his prior addiction.

Cardoso’s treating physician recommended surgery, but Cardoso delayed it because the last time he had surgery he suffered a drug relapse.

Due to ongoing pain and difficulty breathing, however, he scheduled surgery for Feb. 24, 2020.

Following his doctor’s advice, Cardoso discontinued the Vivitrol injections several weeks before his surgery, taking daily oral medication instead, which he discontinued five days before the operation.

Cardoso underwent surgery as scheduled and was prescribed 20 oxycodone pills and instructed to take one to two tablets every four hours as needed for pain.

On Feb. 28, 2020, Cardoso died of acute fentanyl and oxycodone intoxication. When his sister found him, she also found an empty oxycodone bottle, a napkin with blood on it, a cigarette package with a tied-off bag containing an unidentified substance, a spoon and a syringe.

Cardoso’s mother ultimately brought a wrongful death action against the defendants in Superior Court. The defendants moved for summary judgment, arguing lack of causation.

Eggshell skull

Addressing the defendants’ motion, McGuire said the evidence was clearly sufficient for a jury to find factual causation, as the accident caused Cardoso’s injury, necessitating surgery, which caused him to stop taking Vivitrol.

“The change in drugs triggered his relapse, which caused his death,” McGuire said. “The car accident was a necessary cause of his death; but for the car accident, Cardoso would not have relapsed and died.”

As for whether the accident was also the legal cause, McGuire noted that the eggshell skull rule was a well-established exception to the foreseeability requirement.

In this context, the judge rejected the defendants’ suggestion that drug addiction could be distinguished from other preexisting conditions in that Cardoso’s ingestion of drugs was a voluntary “decision.”

“Cardoso did not decide to engage in dangerous behavior that caused his addiction,” McGuire said, emphasizing that Cardoso became addicted when he followed his doctor’s advice to take oxycodone following his workplace injury. “Moreover, a drug addict’s ‘decision’ to ingest drugs is not significantly different from an alcoholic’s ‘decision’ to drink alcohol, yet the preexisting condition rule applies to alcoholism.”

The judge further found that Cardoso’s decision to consume drugs could not be considered an independent and superseding cause because it was not “independent” of the defendants’ negligence.

“Cardoso’s relapse was caused by his drug addiction and his need to stop taking Vivitrol and to ingest narcotics to treat the injury received in the accident,” McGuire concluded.