All in the Details: Using Inconsistencies to Win at Summary Judgment

SFE Attorney: Gordon Klug

Claims Alleged: Workplace & Premises Liability – Failure to Provide Safe Working Environment; Personal Injury – Broken Arm, Pain and Suffering

Amount Claimed: $2,500,000 plus several million more in pain and suffering

Brief Overview

Veteran Smith Freed Eberhard attorney Gordon Klug achieved an exceptional victory when he successfully argued for his client’s dismissal at summary judgement in a case that carried the potential to bankrupt his client.

The Background

The plaintiff, after having already received workers’ compensation in the form of treatment and an award for permanent partial disability, filed suit alleging that his employer failed to provide a safe working environment. Over the course of the proceedings, plaintiff managed to increase their damages prayer from $53,000 to $2,500,000, with several million more in pain and suffering. By the time Gordon argued for his client’s dismissal, he was facing 14 newly-disclosed expert reports and a compressed trial schedule.

Their Strategy

In general, plaintiffs face an uphill battle when it comes to proving they are not responsible for their own injuries in premises liability cases. Seasoned counsel, in an attempt to increase the risks of litigation for the insurance carrier, will often employ the tactic of disclosing, at the very last minute, a number of expert reports which outline a significant amount of damages the plaintiff sustained “as a proximate result” of their workplace or premises accident.  Even with a strong liability argument in defense, if the jury were persuaded that the defendant is even the smallest amount liable for an accident, it still could translate into a substantial jury verdict or settlement.

In this case, plaintiff counsel initially argued that his client was working as an “independent contractor” as opposed to an employee of Gordon’s client. With summary judgement in mind, Gordon presented to the Court the plaintiff’s complaint, his answers to interrogatories, application for workers’ compensation benefits, and dozens of medical chart notes where the plaintiff repeatedly said he was working as an employee of Gordon’s client. Later in the case, plaintiff counsel changed tactics, and instead argued that his client was an employee of one of the eleven other defendants the Court dismissed at the first round of summary judgment hearings. This proved unsuccessful.

Our Strategy

Gordon skillfully deployed his tried-and-true strategy of detail-oriented analysis to identify any and all inconsistencies in the plaintiff’s case. Gordon successfully magnified those inconsistencies for the Court and jury to see. Plaintiff counsel’s sudden shift in strategy was hypocritical, and Gordon ensured that the Court knew so. Gordon successfully argued that the plaintiff cannot claim to a State agency that he was an “employee” of Gordon’s client in order to secure workers’ compensation benefits and then, several months later, argue to the Court that he was not an employee of that same company in order to prosecute a lawsuit against them. Eventually, the Court was persuaded that the plaintiff was not being honest and concluded that Gordon’s client was immune from suit pursuant to the Industrial Insurance Act.

The Outcome

Due to court delays caused by case backlogs, Gordon was not able to advocate for his client’s dismissal at summary judgement until just 60 days before trial. Ultimately, Gordon won his client’s dismissal. A ruling against his client would have resulted in massive legal fees and a potential $2.5 million verdict at trial. Because his client’s policy limit was only $1,000,000, Gordon’s skilled navigation saved not only $75,000 in legal costs associated with defending plaintiff’s last minute claims, but also foreclosed on the possibility of his client’s bankruptcy.