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Posted in Law on December 23, 2016   |  by Gary Burger

Investigation and Discovery

This is Gary Burger from Burger Law. One of the things that I do aggressively in cases is I inquire and get discovery about the investigation post-incident. So, whether it’s a company involved in a truck crash that does an investigation, whether it’s a premises or business owner that does investigations to, “Why was there soap on the floor? Why the ice was out on the walkway for premises liability slip-and- fall case? Why the hole was on the ground? Why there was a wire between two trees?” Or, whether it’s a workers compensation injury where the employer goes to investigate the cause and circumstances of the incident, trying to correct the safety problems; whether it’s a bus crash or a variety of circumstances, we like to get into the investigation and many times in employment discrimination cases as well.

So, what we do is we get the results of the investigation. This often involves a discovery battle because the defendant does not want to turn over those documents, but we go to court. We make the defendant do so with an order of the court, ordering them to produce that. We talk to them. I take depositions. I depose the person running the investigation. I depose all the other folks about the results of the investigation and what inquiry was made, “Was there a real assessment to try to get to the bottom of what’s going on to try to correct anything in the future?”

Subsequent remedial measures do not come into evidence at trial, so that means if a company comes in, finds that something was done wrong, corrects the safety rule violation, so it won’t happen again in the future, that doesn’t come into evidence. I’ve had cases where bus drivers are fired, where hospitals put in new procedures, where premises owners correct obvious standards and obvious ways of cleaning up things; I’ve had workers compensation cases where whole new safety programs are initiated; and we’ve also had medical malpractice cases where new safety protocols and infection-treating protocols were put in place. So, sometimes in our cases, we’re able to effect rule changes to improve the safety of others. Sometimes you have employers who stick their head in the sand and won’t do anything about it. Regardless, it’s important to get into the nuts and bolts of what investigation happened.

I was in a deposition just the other day with the top person in a part of the state of Missouri where I asked if they’ve ever had any investigation into the issues that we have this case about, and they said, “No,” and he was kind of disdainful, like, “Why would I do that?” And I said, “Well, if you ever have the federal government come in and say, ‘You have violated the law?’ No. ‘It wasn’t that unusual?’ Yeah. ‘Wouldn’t you investigate it?’ Uhh.” And I have also had many employment discrimination cases where someone was fired because they’re black, old, a woman, and then I go in and say, “Have you ever been accused of that? ‘No.’ Well, you did an investigation of this? ‘Umm, no.’” And it’s really strange that someone tries to run a good business and has never been accused of something for 20 years then something happens like sexual harassment and they stick their head in the sand and don’t do it. I think it informs the jury about whether or not the defendant wants to take real responsibility for their conduct and also informs us as to whether they’re really going to try to improve things in the future because sometimes it’s only the jury that can do that.

So, if you have any questions about investigations in your case or any other case, how to get the discovery from the defendant, I just did a lecture the other day and taught a bunch of lawyers about the ins and outs, the rules in Missouri, Illinois, and federal government about what you’re entitled to get and what you’re not entitled to get in terms of investigation documents and information. If you have any questions about that,, (314) 542- 2222. Thank you.