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There are probably numerous examples, but this is the one I am most familiar with.

You are pursuing a lawsuit in which the defendant is 300 pounds, and shows other signs of being prone to a heart attack. Moreover, the subject matter is one that is particularly inflammatory to this particular defendant.*

You want to pursue a line of cross examination that would not "faze" the proverbial "reasonable person." But given the defendant's physical condition and emotional sensitivities, you fear that this line of questioning might cause a heart attack. You pursue this line of questioning and it does cause a heart attack. Does the defendant have a cause of action against you for "eggshell skull" issues? Or do "reasonable man" and "no wrongful action" considerations protect you against such counteraction for a rigorous cross examination?

*This was an employment civil rights case. Before the case was settled, I was planning to show the defendant a picture of a minority person driving past his home on "Main Street" (a well-travelled road in an exclusive suburb), and ask him how he felt about that. Then, how he would feel if a minority dated his daughter."

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A case for negligence or some other tort would likely never reach the stage where we could answer this question, as lawyers are generally immune from suit for their litigation conduct.

I don't know of any case with facts likey you've described, but my understanding is that the litigation privilege precludes virtually any tort action based on a lawyer's statements in the course of the proceedings. Florida's Fifth District Court of Appeal, for instance, has specifically acknowledged that claims for defamation, extortion, fraud, perjury, forgery, slander of title, injurious falsehood are unavailable:

The policy reasons for the privilege have often been repeated: In fulfilling their obligations to their client[s] and to the court, it is essential that lawyers, subject only to control by the trial court and the bar, should be free to act on their own best judgment in prosecuting or defending a lawsuit without fear of later having to defend a civil action for defamation for something said or written during the litigation.

Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So. 2d 309 (Fla. 3d DCA 1989).

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  • FWIW, counsel is often able to secure procedures that protect an eggshell witness to some extent from the judge upon request during the trial. For example, in extreme cases, sometimes the judge poses questions rather than counsel, in a manner designed to be non-aggravating. There might also be objections based upon relevance that would have a decent chance of prevailing since the probative value of the question might be outweighed by its prejudicial effect. – ohwilleke Nov 17 '20 at 1:38
  • One could an argument be made that it's the original tortfeasor was liable for the heart attack, as the defendant wouldn't be in court and thus driven to a heart attack if not for the original offense. And of course if a lawyer did something that upped a minor wrongful termination lawsuit into wrongful death their client may have some...disagreement with the lawyers actions. Though I feel it's a stretch, surely at some point during the numerous steps that lead up to litigation an intervening cause can be cited to ruin the chain of causation? – dsollen Nov 17 '20 at 22:53
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While I would say that I would find issue with the line of questioning about the man's feelings on interratial romance, this line of questioning would be objectional not illegal or negligent. There is nothing criminal or wrong in asking them in cross-examination that would rise to having the Eggshell Skull rule come into play. As stated, the question might be objectionable (If I were the defense attorney I would object and if I were a Judge I would need to hear some greater detail from you as to why you feel this is not objectionable.).

Best I could see is that if the heart attack occured during your line of questioning, it would likely be grounds for a mistrial so that the jury would not be unfairly prejuidiced by the heart attack that occured while asking these questions (What if he was going to be a-okay with both situations and the heart attack occured for reasons unrelated to your question? Same jury would still think it's in response to it, which is not fair to the defendant. OR worse, it occured because the insuntion that he is a racist when he is in fact not causes the heart attack). A new trial at a later date when the defendant is healthy again is the best bet for this outcome.

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  • The plaintiff (an Asian American) had been fired by the defendant because "he didn't look like one of us." and similar comments. A human rights commission determined that the firing was racially motivated. On one occasion, the defendant withdrew his hand when the plaintiff tried to shake it. We wanted to test the defendant for other "visceral" reactions at trial. But the matter was settled out of court. – Libra Nov 18 '20 at 15:15
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“Eggshell skull” comes into play if you do something that is illegal, but the effect is much worse than you would expect due to the nature of the victim. For example, you punch someone not very hard, but they die because some illness caused them to have a very thin skull, where most people would have just walked away. It’s murder, even when punching someone else exactly as hard would have just been assault.

In your case, someone would have to prove first that what you did was illegal.

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