Robbins: The egg shell victim |

Robbins: The egg shell victim

Humpty Dumpty sat on a wall

Humpty Dumpty had a great fall

All the king’s horses and all the king’s men

Couldn’t put Humpty Dumpty together again.

— Mother Goose

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The medical examiner in the Derek Chauvin trial who had conducted George Floyd’s autopsy was being cross examined by defense counsel. Before counsel had his turn to cross the witness, the prosecution had elicited from him his opinion that George Floyd’s death was caused by Chauvin and the other officers. The cause of death, he said, was oxygen deprivation. The instrument of Floyd’s oxygen deprivation was the conduct of the officers.

The defense attorney who has struggled mightily to make a silk purse out of a sow’s ear offered that wasn’t it true that Floyd had heart disease and known drug addiction? Could they be, he questioned, the cause of George Floyd’s death?

The doctor’s May, 2020 autopsy report had stated that Floyd died of “cardiopulmonary arrest complicating law enforcement subdual, restraint and neck compression.” The report went on to list “other significant conditions” including “arteriosclerotic and hypertensive heart disease; fentanyl intoxication; [and] recent methamphetamine use.”

When asked what he believed caused Floyd’s death, he pointed to what he called “severe underlying heart disease” and, owing to the underlying state, said Floyd’s heart would have required more oxygen than normal. In the context of an altercation or restraint, adrenaline would have asked the heart to beat faster and the heart would require more oxygen. The law enforcement subdual, restraint, and neck compression, he said, “was just more than Mr. Floyd could take by virtue of those heart conditions.”

The defense attorney who is doing his level best with what is, to say the least, a challenging defense, subtly lit up. Encouraged, he pressed on. Couldn’t George Floyd, counsel suggested, have died not from the actions of the officers but have succumbed, instead, from the combination of his own ill health and drugs?

The doctor calmly agreed that both Floyd’s heart disease and the drugs in his system “played some role” in his death. That’s why, the doctor said, he listed “other significant conditions” as “arteriosclerotic and hypertensive heart disease; fentanyl intoxication; [and] recent methamphetamine use” on Floyd’s death certificate. “You put things on there you believe are relevant; you don’t put trivial things on there that didn’t play a role.”

When prosecution counsel redirected, he asked a simple question: Was George Floyd’s death, in the doctor’s opinion, a homicide? In reply, the doctor stated levelly that said he had, and still would, classify the death as a homicide.

Which brings me in a roundabout and I hope not disrespectful way to Humpty Dumpty. Before I go on, let me state that I in no way wish to undermine the tragedy of George Floyd’s death or minimize that justice — as determined by the jury — must be done.

What Humpty Dumpty has to do with all of this is, as follows.

Say Humpty, if I may call him that, had been an ostrich egg rather than what appears to be accepted as a chicken’s. His shell, if you have ever tried to crack an ostrich egg, would have been sturdier. Say he had been pushed from the wall instead of having innocently fallen. Had he been the product of an ostrich rather than a chicken, the strong likelihood is that he would have picked himself up, dusted off his shell, and gone about his merry way. Rather than the “pusher” being charged with the crime of “eggicide,” most likely all he would have faced is to answer to a charge of simple assault.

The lesson here is in the title of this column.

All silliness aside, there is a rule in law known as the “eggshell skull rule.” What the rule provides is that you take your victim as you find him. Employed most commonly in personal injury claims, the rule holds that the frailty, weakness, sensitivity, or feebleness of a victim cannot be used as a defense.

An example here might help.

Say you’re in a bar and things get lively. Seemingly out of nowhere, a roundhouse clocks you in the temple. The blow, delivered by some thoroughly besotted bloke, would be glancing to most folks. But you are not most people. Instead, you are the not-so-proud owner of brittle bone disease. Instead of just a story to tell, the smack to your cranium causes broken bones, excruciating pain, a trail of medical procedures, lost wages, and endless bag of woes.

When the guy who smacked you is brought to task, can he claim in his defense that he should be held to less account because you were more susceptible to injury than most and how was he to know?! How can he, he may protest, be held responsible for what, under the vast majority of outcomes, would have been a nothingburger?

The short answer is “no.” He took his victim as he found him. That you have a chicken’s egg skull rather than a ostrich’s is simply his bad luck. That you were more susceptible to injury than the “normal person,” owing to the eggshell skull rule simply doesn’t count. The piper will be paid.

The parallel to the George Floyd case is not exact. The rule is most times hedged in in civil matters and pertains to injuries rather than to crimes. And yet, because it deals with both causation and liability, it is food for thought.

Scrambled eggs, perhaps.

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