2020 Advocate of the Year: David J. Pliner

WDC Journal Edition: Summer 2020

Congratulations to David J. Pliner for being selected by the WDC Board of Directors as the 2019 Advocate of the Year! The Advocate of the Year Award recognizes the member with the most defense work success of the prior calendar year. In 2019, Dave had an exceptional year. Some of his noteworthy accomplishments are summarized below.

Dave is one of the founding partners at Corneille Law Group, LLC. He received his J.D. from the University of Wisconsin law School in 1989. He is licensed to practice in all state and federal courts in Wisconsin, in the Seventh Circuit Court of Appeals and in the United States Supreme Court. David focuses his practice on motion and appellate work. Since he began practicing law in 1989, Dave has been recognized by his peers as well as Judges around the State as an eloquent legal writer, who has an uncanny ability to make articulate, thoughtful, and novel legal arguments from the most complex sets of facts. He has filed briefs in dozens of appeals, resulting in over thirty-five published and unpublished decisions at both the state and federal levels. He has presented oral arguments before the Wisconsin Court of Appeals, the Wisconsin Supreme Court, and the United States Court of Appeals for the Seventh Circuit.

Dave handles briefing and motion practice for every attorney at his firm as needed. Accordingly, the legal issues andtopics on which Dave writes are unbelievably broad in scope. The volume of his briefing is astounding and no doubt exceeds most, if not all, of his peers. Dave routinely produces briefs and/or motions in multiple cases in a given week.

Though Dave can complete complex briefs in an incredibly timely and efficient manner, the quality of his work product is consistently excellent. By way of example, Dave was recently asked to assist with a summary judgment motion in a negligence case on a Wednesday. There had been 18 depositions and no less than seven experts involved. The summary judgment deadline was Friday. Despite knowing little-to-nothing about the case, Dave was able to produce an absolutely stellar summary judgment brief by the deadline.

In addition to the above, Dave achieved excellent results in the following cases in 2019:

Sauk County Case No. 17-CV-156

This medical negligence case involved allegations that a locum tenens physician assistant negligently splinted a tibial fracture on a two-year-old, which caused compartment syndrome. Dave achieved two noteworthy victories in this case.

First, plaintiff counsel in this case was Nicholas Rowley, a highly decorated attorney who practices in Iowa and California. He has recovered over $1 billion in more than a dozen states and was the California trial lawyer of the year in 2018. Attorney Rowley sought pro hac vice admission months before trial – a request that is rarely opposed and seemingly almost always granted. Dave filed a comprehensive motion opposing Rowley’s pro hac vice admission, which was granted by the trial judge. This somewhat unprecedented ruling not only knocked out one of the best personal injury attorneys in the country, but gave defense lawyers across the nation a roadmap for opposing Attorney Rowley’s admission to any state court. Notably, in his brief, Dave cited some unique extraneous sources to definitively refute representations that Rowley had made to the Court in his filings, including but not limited to, excerpts from a book written by Rowley and excerpts from newspaper articles where Rowley had been quoted in the past.

Second, several weeks after knocking out Attorney Rowley from the case, the trial court granted Dave’s motion for summary judgment dismissing all claims against the physician assistant. The motion dealt with a unique loophole in the law with respect to the employment of a professional who does not meet the definition of a “heath care provider” under Ch. 655. Though the physician assistant was an independent contractor, Dave posited that, legally, he must be considered either an employee of the hospital at which he was working (a non-party to the action) under “apparent agency” or a “borrowed employee” theory for purposes of a medical negligence claim. The court ruled that the physician assistant was a “borrowed employee” of a health care provider. Since the physician assistant could only be liable in his capacity as a borrowed employee of a non-party health care provider, the court dismissed the entire case, leaving the plaintiffsastonished. The matter is currently on appeal.

Kenosha County Case No. 18-CV-926

In this medical negligence case, Dave represented a hospital who was sued for negligent policies and an alleged fraudulent cover-up of an alleged wrong-site surgery claim along with a claim for punitive damages. Dave successfully argued for dismissal of the punitive damages claim and fraud claim for inapplicability in medical negligence cases and the plaintiff’s failure to plead with the requisite particularity, respectively, on a Motion to Dismiss. As the case progressed, the Plaintiff attempted to re-plead the fraud claim, eventually filing a Motion for Leave to File a Second Amended Complaint which included an allegedly-more-particularly-pled fraud claim. Dave successfully argued for denial of the motion on the following grounds: (1) the amendment would prejudice the defendants due to the impending trial date, (2) the facts available to the plaintiff at the time of the plaintiff's initial fraud claim pleading remained unchanged, (3) the fraud claim was still not pled with the required particularity, and (4) informing a patient of wrong-site surgery was not a recognized duty for a negligence cause of action. The ruling was an absolutely crushing blow to plaintiffs’ case as a whole. By dismissing the fraud and punitive damages claim, the plaintiffs were left solely with a claim for negligent policies – a development that reduced the value and exposure of the claim exponentially.

What is perhaps more noteworthy about Dave’s accomplishments in these cases is the fact that the issues were being briefed simultaneously and both rulings came down in the same week. Thus, Dave had what can only be described as a “once in a career” type week in December 2019, wherein he effectively defeated two separate medical negligence cases – both of which involved considerable exposure and incredibly complex issues. Dave’s success in 2019 did not end there.

Waukesha County Case No. 18-CV-692

This medical negligence case involved alleged negligence arising out of a laser skin treatment at a spa. Dave filed a motion for summary judgment claiming that the plaintiff had insufficient support from a qualified expert along with an argument that the doctrine of res ipsa loquitor did not apply. The Court granted the motion and dismissed the case. No appeal followed.

Milwaukee County Case No. 17-CV-2791

This medical negligence case was brought by a patient against two of his former treating optometrists alleging a delayed diagnosis of advanced glaucoma. After a considerable amount of briefing, Dave won a summary judgment motion on all claims against one of the two defendants based on the statute of repose. Subsequently, Dave won a motion for sanctions against the plaintiff, including an award of almost $7,500 in attorney fees. The Court indicated that if the plaintiff did not pay the fees by a certain date, it would dismiss the case with prejudice. The matter is currently on appeal.

Waukesha County Case No. 19-CV-78

This case involved a physical altercation between two men at a fitness center. Dave filed a summary judgment brief arguing that there was no duty owed by the fitness center to protect a frequenter from the negligent acts of a third party, which is an area of law that is significantly underdeveloped. The Court agreed with Dave’s premise that our client did not violate any duty to protect the plaintiff from the negligent or intentional acts of a third party without the requisite level of notice. This led to a dispositive dismissal of the plaintiff’s case. The matter is currently on appeal.

Despite all of his accomplishments, Dave is extremely humble. When he achieves favorable results, he credits others in the firm and never takes the credit himself (though it is no doubt warranted). He is an excellent mentor to young lawyers and makes his peers much better lawyers with his unique ability to break down and analyze complex legal issues that many overlook.

Nominated By: John H. Healy, Adam M. Fitzpatrick, & Brian C. Bultman, Corneille Law Group, LLC