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May 31, 2020

Defending a Band-Aid Site Accident Before It Morphs into a Million Dollar Lawsuit by Rosemary Nunn and Lisa Hsiao

Often, what initially appears to be a minor scrape at a construction site later blows up into a million dollar lawsuit. Your company is blindsided by service of a lawsuit, at a loss because no one appears to remember anything about the allegations. When you finally track down a field guy who vaguely recalls that day, you get an astonished, “Why would we fill out an incident report – that guy walked off the site and drove himself home!” or “She refused medical attention and seemed perfectly fine!” or “He came back the next day and started working!” These facts could be accurate, but they won’t prevent an expensive lawsuit. So, how can you mitigate unexpected collateral damage from a band-aid accident?

Whether a catastrophic injury or just a minor scrape, the devil is in the details. You must preserve evidence to prevent field rumors from taking root, leading to false memories that witnesses later swear are the truth. Swift action mitigates damage to your reputation and EMR, and provides an advantage in diffusing frivolous lawsuits brought by enterprising, plaintiff-side lawyers.

While insurance may cover the bills for your legal defense, wouldn’t you rather enter the litigation buttressed with evidence to lessen liability, if not completely exculpate your company? Moreover, liability can arise from unexpected sources that may not trigger insurance: a signalman could sue over your employee's negligence in dumping cement; a bystander could trip and fall walking over a debris pile; a motorcyclist driving in the street could hit a large berm in the road left by your traveling dump truck, the employee of one trade, hurt by the employee of another trade, could sue claiming you controlled safety or their means and methods of work; the injured person could name you as a defendant, if they believed you personally caused or contributed to the incident.

In California, an injured person can file a lawsuit up to two years post-accident. By that point in time, witnesses may have transferred jobs, quit, been terminated, moved out of the country, or retired. Statements and cooperation may no longer be available to you. These people could be critical witnesses who could "make your case," but they can't be found. A minor accident suddenly becomes a major headache, draining employee time and resources responding to countless rounds of discovery, or siting for depositions, to assist the legal defense team.

To mitigate this fallout, secure witness statements within 48 hours of the accident. Memories fade quickly and key details will be forgotten, or worse, will change as the "urban legend" surrounding the accident is fabricated by gossip. Ask legal counsel to recommend interview questions for both the injured party and witnesses, so you gather information you will actually care about, come trial.

Likely, that one or two page "Incident Report" some risk manager gave you is utterly deficient to track the key evidence you will wish you had if a lawsuit is filed. Ask legal counsel to help you create a better form. For example, do you always record whether the "injured" person followed protocol that day, was wearing all appropriate PPE and was in a project location (building, floor, wing, etc.) he/she was authorized to be, at the time of the incident? Who controlled safety for that worker that day, and what steps had your company taken either to make the area safe, or delegate that responsibility to the appropriate trade?

Even for "minor" accidents, photograph the scene, any equipment and the injured worker. The smallest detail can make a large difference at trial. For example, a photograph showing a skill saw was being used to cut concrete, instead of a jackhammer, can mollify claims the injured person could not hear warnings or other sounds; a photograph of the impacted body part right after the accident could mitigate claims regarding the force or impact angle; photographs documenting dimensions of a hole in the ground could prove invaluable for the defense, especially if witnesses later cannot agree what stage the hole was at on the day of the incident.

Document the condition of the evidence. For example, if someone claims a roll of roofing paper fell from two stories above, you’ll wish you photographed and saved that exact roll to show that it was almost bare and weighed far less than the brand-new roll plaintiff claims hit her.

Explore legal options for drug and alcohol testing. Results can be used to help booster credibility and accountability for your company.

Have legal counsel hire an expert to inspect the accident scene. If they are hired by your lawyer, their work is protected under the attorney work-product privilege. Moreover, experts will gather evidence you wouldn’t know to gather. For example, if a vehicle is involved (an onsite accident, trucking materials, an employee driving to or from work, etc.), an expert can download critical electronic data to aid in reconstructing the accident. The vehicle’s electronic data will typically record five seconds before and after a major event, revealing the speed the vehicle was traveling, if brakes were activated, any hard steering motions, and even if passengers were wearing seat belts. The electronic data shows the delta v forces involved and assists the biomechanical engineer in evaluating the injury and the potential force it had on the body.

If the injured person immediately returns to work, document the tasks they are able to perform – lifting, walking, bending, climbing. Track details and progress, weekly if not daily. You’d be amazed how many people return to their exact same job, only to file a claim 23 months later, despite having worked full duty the entire time. Recessions or fears of losing work-shifts are strange motivators. If there is a reduced work restriction, is the person complying? Egos often prevent people from limiting their work, but this can have disastrous consequences. Resuming full-duty work can exacerbate what was originally a small problem, and the person now has a claim they never had on the date of the original incident.

Keep an internal record of investigations by Cal-OSHA or law enforcement personnel. Immediately appeal false information before it becomes historical "fact." Such reports are often cited by plaintiff lawyers as proving negligence, and thus grounds to file a lawsuit.

Conduct social media searches on the claimant. Maybe the claimant posted about a weekend soccer game with friends, helping a buddy move, or the excitement over a new job with a higher paycheck, which evidence might reduce if not deflect claims for loss of income capacity, or extreme pain and suffering. Consider surveillance or sub rosa if you suspect fraud.

Even minor incidents can lead to expensive litigation; how you handle the initial investigation can make all the difference in facilitating a robust defense.