Burdess et al v. Cottrell, Inc.

Filing 163

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Cottrell's motion for summary judgment on grounds of judicial estoppel is DENIED. (Doc. 135 ). SEE ORDER FOR DETAILS. Signed by District Judge John A. Ross on 5/22/2023. (CLT)

Case: 4:17-cv-01515-JAR Doc. #: 163 Filed: 05/22/23 Page: 1 of 5 PageID #: 26493

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREGORY L. BURDESS and
LISA BURDESS,
Plaintiffs,
v.
COTTRELL, INC.,
Defendant.

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Case No. 4:17-CV-01515-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s motion for summary judgment on grounds
of judicial estoppel. For the reasons discussed below, the motion will be denied.
I.

BACKGROUND
Plaintiff Gregory Burdess worked as a car hauler for 25 years, loading cars on trailers and

transporting them throughout the country. Defendant Cottrell designs and manufactures the trailer
at issue in this case. To secure cars on a trailer, Burdess operated a chain and ratchet system on
the trailer requiring him to reach overhead and pull down a tie bar using significant force. Trailers
carry up to nine vehicles, each having four tie-down points. Burdess performed this forceful
overhead pull-down motion repetitively throughout his employment.
In April 2013, at age 54, while traveling in Illinois on a job, Burdess woke up unable to
move his arms, which had gone completely numb. He sought medical treatment and was
diagnosed with bilateral rotator cuff impingement and bilateral carpal and cubital tunnel syndrome.
Shortly thereafter, he filed a Missouri state workers’ compensation claim describing the
circumstances of his injuries as follows:

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Repetitive trauma to both shoulders and upper extremities resulting from duties as
a car hauler, including but not limited to tightening and loosening chains using a
ratchet bar winch mechanism, compressing the height of vehicles, climbing ladders,
placing ramps, and all the other duties of a car hauler working for this employer.
(Doc. 135-1). After conservative treatment proved ineffectual, Burdess underwent multiple
surgeries to both upper extremities. Burdess’s treating physicians acknowledged some
degenerative changes but opined that his work was the prevailing factor in his injuries, with the
overhead motion particularly affecting his shoulders. The workers’ compensation case was
resolved in June 2017 through a settlement with Burdess’s employer pursuant to which he received
a lump sum of $148,270 for a partial disability of both upper extremities. (Doc. 146-11). As
relevant here, the settlement specifically noted that the parties disputed medical causation.
In May 2017, Burdess and his wife filed the present personal injury lawsuit alleging that
Cottrell’s chain and ratchet system was the cause of his injuries. Plaintiffs assert claims on theories
of strict liability (i.e., defective design) (Count I), negligence (Count II), breach of implied
warranty (Count III), and loss of consortium (Count IV). They also seek punitive damages for
Cottrell’s alleged disregard for safety in pursuit of profits (Count V). In discovery, the parties
revisited the treating doctors’ opinions to refine the issue of whether Burdess’s injuries were
caused by Cottrell’s ratchet system. While the doctors generally agreed that Burdess’s shoulder
injuries could be attributed to his overhead tie-down work, they did not offer opinions regarding
Cottrell’s system specifically.1
Cottrell has filed three motions for summary judgment, including the present motion on
the theory of judicial estoppel. Cottrell asserts that Burdess should be estopped from claiming that

The Court will address Cottrell’s motions regarding Burdess’s experts separately and describes
their testimony here in the broadest terms and only for purposes of the present motion.
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his injury was caused by its ratchet system because he previously claimed in the work comp case
that the injury was caused by multiple job duties.
II.

LEGAL STANDARDS
Summary judgment is proper when “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Material facts are those “that might affect the outcome of the suit under the governing
law,” and a genuine material fact is one such that “a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Courts must
view facts in the light most favorable to the non-moving party and resolve all doubts against the
moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
The “circumstances under which judicial estoppel may appropriately be invoked are
probably not reducible to any general formulation of principle,” but several factors typically
inform the decision. New Hampshire v. Maine, 532 U.S. 742, 750 (2001). First, a party’s later
position must be “clearly inconsistent” with its earlier position. Id. at 750. Second, courts
inquire whether the party has succeeded in persuading a court to accept that party’s earlier
position, such that judicial acceptance of an inconsistent position in a later proceeding would
create the perception that either the first or the second court was misled. Id. Absent success in a
prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court
determinations. Id. at 751. A third consideration is whether the party seeking to assert an
inconsistent position would derive an unfair advantage or impose an unfair detriment on the
opposing party. Id. Additional considerations may be relevant in specific factual contexts. Id.

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III.

DISCUSSION
On the first factor, Cottrell asserts that Burdess’s position in this case is inconsistent with

his position in the work comp case because, here, he alleges that his injuries were caused by
Cottrell’s ratchet and chain system while, in his work comp case, he claimed that his injuries were
caused by all of his duties as a car hauler. The Court is not persuaded that these positions are
clearly inconsistent so as to warrant judicial estoppel. In the work comp case filed in June 2013,
Burdess listed several job duties that together may have contributed to his injuries. Doctors later
cited his overhead work pulling on tie-down bars as the most likely cause of his shoulder
impingements in particular. The ratchet and chain work Plaintiff cites here is merely a narrower
subset of the duties described in the work comp claim. They are not “entirely inconsistent.”
Second, Burdess did not “succeed in persuading” a Missouri administrative law judge to
accept his position such that his subsequent position in this suit results in a perception that he either
misled that tribunal or is attempting to mislead this one. The work comp case was resolved through
a settlement in which the parties’ dispute over causation was specifically noted. The ALJ did not
adjudicate the question of causation at all, let alone in a way that could lead to an inconsistent
determination here.
Third, the Court finds no unfair advantage to Burdess or prejudice to Cottrell by virtue of
Burdess’s position on causation in the two cases. The work comp settlement provided partial relief
from Burdess’s employer for his job-related upper extremity injuries and resulting inability to
work. In that case, the treating physicians generally opined that Burdess’s various conditions were
attributable to the physical demands of his job. If anything, the work comp record complicates the
question of causation to Cottrell’s advantage here.

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Finally, Cottrell asserts that Burdess is “double-dipping” by collecting workers’
compensation and also seeking damages in this case. This argument is unpersuasive. Burdess’s
work comp claim addressed the physical tolls of his labor vis-à-vis his employer, while the present
case involves claims of defective design. Missouri law expressly contemplates these types of
concurrent claims. See Mo. Rev. Stat. § 287.150 (providing for employer subrogation and
apportionment with respect to an employee’s recovery from a third-party tortfeasor); Henderson
v. Black & Decker (U.S.) Inc., 2021 WL 1546139 (E.D. Mo. Apr. 20, 2021) (where the plaintiff
employee received workers’ compensation and also sued the tool manufacturer).
Applying the New Hampshire factors to the present record, the Court finds that judicial
estoppel is not warranted.
Accordingly,
IT IS HEREBY ORDERED that Defendant Cottrell’s motion for summary judgment on
grounds of judicial estoppel is DENIED. (Doc. 135).

Dated this 22nd day of May, 2023.

________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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