The 5th U.S. Circuit Court of Appeals has affirmed a district court’s entry of a take-nothing judgment after a jury ruled for a helmet manufacturer in a products liability case.
Plaintiff Jeremy Green was a student and football player at Levelland High School. During a scrimmage with an opposing team, Green tackled a player and suffered a severe burst-fracture of one of his neck vertebra that tragically resulted in quadriplegia.
Green sued Schutt Sports Manufacturing Co., the manufacturer of the helmet he was wearing at the time of his injury, asserting various theories of liability. The district court granted summary judgment in favor of Schutt on Green’s claims of manufacturing defects, marketing defects, and breach of warranty. Green abandoned his negligence claim in the joint pre-trial order, and the court subsequently dismissed Green’s claim for punitive damages based on gross negligence. The only liability theory submitted to the jury was whether the helmet was defectively designed.
After an eight-day trial, the jury failed to find a design defect. The district court entered judgment for Schutt and denied Green’s motion for a new trial. Green appealed, arguing that the district court erred in (1) foreclosing his pursuit of a claim for gross negligence, (2) excluding testimony of a witness offered as an expert, (3) excluding certain other proffered evidence, (4) admitting certain evidence, and (5) instructing the jury.
On the first point, the court noted that “the jury failed to find a design defect. It therefore failed to award any actual damages. Green asserted no other cause of action for which actual damages could be awarded. He did not challenge the district court’s ruling that he abandoned his claim for negligence. Accordingly, any failure to submit whether Schutt was grossly negligent and whether exemplary damages should be awarded was harmless because there is no basis for the predicate award of actual damages.”
Turning to whether the court should have excluded the testimony of Thomas “Hollywood” Henderson, a former National Football League linebacker, the court, at the time, concluded that Henderson was not qualified as an expert to opine on helmet safety and design. The plaintiff’s argument on appeal that Henderson was qualified to testify about “the value of football helmets” was unpersuasive.
Next on appeal was the court’s evidentiary rulings, which were reviewed for abuse of discretion. Among the evidentiary determinations on appeal was Green’s role in the causation of his injury. Did Green tackle improperly by lowering his head and making first contact with his helmet? Could a helmet provide protection to the neck under such circumstances?
“The line between permissible and impermissible evidence is thin, if not blurred, when, in a case such as this, it is permissible to offer evidence pertinent to comparative responsibility, but impermissible to offer evidence that the plaintiff failed to guard against a product’s limitations. … We cannot say that the district court erred in denying Green’s motion in limine pertaining to comparative responsibility.
“The assumption of the risk as a defense to negligence claims under Texas law has been abrogated and replaced by the comparative responsibility regime described above. But as discussed above, the evidence offered at trial that might arguably have suggested that (the plaintiff) assumed the risks inherent in playing football was relevant with regard to the design defect claim and the producing cause of his injury.”
Another one of the appeals of an evidentiary ruling involved the court permitting Schutt to introduce evidence that it had complied with industry standards set by the National Operating Committee on Standards for Athletic Equipment (NOCSAE) and that NOCSAE “is of the view that no football helmet is capable of protecting against neck injuries. This evidence was inadmissible, Green asserts, because compliance with industry custom is not a defense to a products liability design defect claim based on the Texas Supreme Court’s decision in Boatland of Houston, Inc. v. Bailey and this court’s decision in Carter v. Massey-Ferguson, Inc.
“Green’s arguments fail for two reasons. First, Richard Stalnacker, Green’s own expert, relied upon NOCSAE’s testing standards in his expert report and as reference material when he tested helmets to determine if an alternate design was feasible. At trial, Green elicited several statements from Stalnacker about NOCSAE’s history and mission, and about NOCSAE’s testing standards. Green may not complain about Schutt’s citation to NOCSAE standards when Stalnacker also cited and relied upon those standards.
“Second, Boatland of Houston does not categorically preclude evidence of industry standards in product liability cases. Instead, it holds: (a) since a manufacturer’s level of care is irrelevant in a products liability action, evidence that the manufacturer complied with industry standards is also irrelevant if it is introduced for the purpose of showing that the manufacturer took reasonable care in the design of its product; but (b) evidence of industry standards is relevant if offered to rebut the plaintiff’s attempt to prove that a safer design was technologically possible and economically feasible. The record reflects that Schutt’s use of NOCSAE standards falls into the latter category. Schutt relied upon NOCSAE’s standards to rebut Green’s attempt to prove that a safer alternative design was feasible. Evidence that NOCSAE has concluded that no feasible football helmet can protect players’ necks is relevant to the alternative design element of a design defect case,” and thus admissible.
Jeremy Green v. Schutt Sports Manufacturing Co. et al.; No. 07-10208; 5th Cir; 2010 U.S. App. LEXIS 5482; 3/16/10
Attorneys or Record: (for plaintiff) Larry E. Coben, Coben & Associates, Scottsdale, AZ; Tommy J. Turner, Turner & Jordan, Lubbock, TX. (for defendants) Richard Edward Harrison, Harrison & Hull, L.L.P., McKinney, TX; Phillip M. Davis, Davis White & Sullivan LLC, Boston, MA.
