Sean Keenan and Eric Schultz obtained summary judgment in a complex product liability action involving a catastrophic injury (broken neck and multi-level fusion surgery) to a sympathetic plaintiff (a former preacher). To complicate matters, the retailer-defendant recalled the product before the plaintiff’s injury occurred, but inadvertently failed to send him notice of the recall.
The plaintiff’s opening demand was $4,000,000, and the insurer put almost $1,000,000 on the table in an effort to settle and avoid trial, wary of potential punitive exposure in light of the notice failure. The plaintiff itemized over $1,000,000 in damages at mediation, and refused to go below $1,800,000 on his demand until the week of the hearing on defendants’ motion for summary judgment. Sean Keenan and Eric Schultz cultivated a theory that the plaintiff misused the product in direct contradiction to warnings, and obtained testimony from the plaintiff and his expert evidencing that the incident only could have occurred according to the defendants’ theory. Additionally, Keenan and Schultz invoked a complicated preemption defense regarding the recall-related claims. The Court granted summary judgment as to all claims on the eve of jury selection, disposing of a potential multi-million dollar claim before the insurer assumed significant costs associated with a lengthy trial.