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Early on in law school we were taught the virtues of alternate pleading. Different theories against the same defendant, or different theories against different defendants, were perfectly acceptable even if inconsistent.

There is something counterintuitive about that. It seems to lift the veil in front of the law, revealing it to be an opportunistic enterprise more wedded to winning than reality. And then there’s that old story told by renowned Texas trial lawyer Race Horse Haynes about defending against a dog bite case with alternate theories: your injury isn’t so bad, you provoked the dog, it was another dog, and, oh by the way, my client doesn’t even own a dog. That sort of nimbleness can come at the expense of credibility.

Today we have a case where alternate pleading actually undermined the legal viability of the plaintiff’s claim. The case is Cook v. Hawkins, 2019 WL 2442263 (Ariz. Ct. App, June 11, 2019). The plaintiff sued over personal injuries arising from a failed knee replacement. He sued the implanting doctor for medical malpractice and the manufacturer for product liability and res ipsa loquitur.

We learned about res ipsa loquitur in law school some time after we learned about alternate pleading. It has been a while. Maybe it has for you, too. So here’s a quick reminder: res ipsa loquitur means “the thing speaks for itself”. It means it is so obvious the accident was caused by negligence that the plaintiff does not need direct proof of negligence. Think of the surgical sponge left in the patient. Or the mouse in the soda bottle.

To invoke res ipsa, the plaintiff must show (1) the injury is of a kind that ordinarily does not occur in the absence of negligence, (2) the injury is caused by an agency or instrumentality in the control of the defendant, and (3) the plaintiff is not in a position to show the particular circumstances that caused the injury. The fact that an injury is unusual would not, by itself, be enough to justify application of res ipsa.

In Cook, the plaintiff relied upon an affidavit by the doctor who treated his injuries (not the implanting doctor). There was an issue about whether that affidavit should have been struck because it contradicted deposition testimony, but that turns out not to matter. The problem is that the treating doctor’s affidavit announced alternate, independent theories as to why the knee implant failed. According to the affidavit, the implanting doctor failed to size or lock the tibial insert OR there was a defect in the locking mechanism of the knee replacement device.

The defendants suggested other possibilities for cause of the injury, such as a slip down some stairs or a pre-existing condition. But the court held that the plaintiff’s alternate theories actually canceled each other out. The plaintiff’s “offer of two independently sufficient potential causes for the implant’s failure (based on different negligence at different times by different parties) means that [plaintiff] failed to present evidence sufficient to support an inference that either individual defendant’s negligence was probably responsible for [plaintiff’s] injuries”. The court granted summary judgment to the defendants and dismissed the case. The appellate court affirmed the dismissal.

What’s that old saying about something being “too clever by half”? In Cook, the plaintiff managed to plead himself right out of court. It reminds us of the time Justice Thurgood Marshall presided over a moot court competition at Harvard Law School. Marshall was, of course, a giant in American legal history. He also could be charmingly cranky. During the moot court, one of the contestants glibly offered alternative theories to support an argument. Marshall locked eyes with the advocate and growled, “Choose one!”

Good advice.

Happy holidays. We hope you make the right choices during this festive season, and we are grateful that you have chosen to read our occasional meanderings throughout the year.