An appeals court in the District of Columbia has affirmed a jury’s decision in a products liability case, which found Wilson Sporting Goods liable for the concussion suffered by a baseball umpire.
In so ruling, the panel of judges disagreed with Wilson’s contention that the plaintiff’s evidence was faulty, the judge should have instructed the jury on the doctrine of assumption of risk, and that there was insufficient evidence supporting verdict.
The origins of the case stemmed from an annual retreat for Major League Baseball umpires held in 2005. During the retreat, a Wilson representative gave umpire Edwin Hickox an umpire’s mask with what the representative claimed was a new, safer design.
Several months later, Hickox wore the mask while working behind home plate as an umpire during a game in Washington, D.C. In the top of the ninth inning, a foul-tipped ball struck the mask. The impact of the ball gave Hickox a concussion and damaged a joint between the bones in Hickox’s inner ear. As a result, Hickox suffered permanent hearing loss of mild to moderate severity.
The mask was a traditional umpire’s mask, but had a newly designed throat guard that angled forward instead of extending straight down.
According to Hickox, the throat guard should have had a center wire and should have extended straight down with no forward angle. Because the mask lacked these features, when the ball hit the throat guard, the mask did not deflect the ball but rather temporarily trapped the ball, concentrating the ball’s energy at the point of impact; As a result, the mask was driven into Hickox’s jaw with great force.
Safer, alternative masks were sold at the time of the incident, the plaintiff alleged. If Hickox had been wearing either a hockey-style mask or a traditional mask with a throat guard that extended straight down, he probably would not have suffered the injury.
Hickox claimed that Wilson tested new products and ensured that they were safe before selling them. But Wilson did not test the type of mask worn by Hickox to determine the forces that would be transferred to the wearer’s head upon impact, according to the plaintiff. Such testing would have shown the mask to be defective, because the mask can trap balls rather than deflect them.
The court wrote that Hickox “anticipated that the mask would disperse the force created when a ball hit the mask. That is what the product-design engineers at Wilson intended the mask to do and what Wilson’s representative told Hickox the mask would do. When Hickox was injured, the mask failed to serve this purpose, because of the mask’s defective design.”
Wilson’s Argument
Wilson countered at trial that “the ball hit the mask above the throat guard, not on it, and so the same injury would have occurred even if the mask had not had a throat guard at all,” wrote the court. “Wilson intended the mask to provide protection by deflecting balls away from the wearer’s head, and the mask accomplished this objective during the incident. At the time of the incident, there was no design or testing standards for wire baseball masks. The mask was designed using feedback from baseball players and umpires, and the forward angle improved the mask’s utility by preventing the throat guard from hitting against the umpire’s chest protector and dislodging or being knocked out of alignment.”
The company also noted that its competitors “sold masks with forward-angled throat guards, and those masks were not associated with injuries like Hickox’s. The mask had been field-tested for over five years, and had been lab-tested before the incident. Before the incident, Hickox had used the mask many times without injury. After the incident, Hickox suffered additional head injuries while umpiring, even though he was then wearing the hockey-style mask that he claimed to be a safer, alternative design.”
Further, alleged Wilson, Hickox “was an experienced umpire who knew that participating in sports creates the risk of injury, that no face mask can guarantee safety, and that injury is more likely without protective equipment.”
At the close of trial, the judge submitted several tort claims to the jury: strict liability for a defective product, design defect, negligent design, design defect due to failure to warn, and breach of implied warranty of fitness for a particular purpose. The jury rendered a verdict for Hickox and his wife on each of their claims, awarding $750,000 to Hickox and $25,000 to his wife.
Wilson appealed, suggesting that the testimony of the Hickox’s expert witness, Dr. Igor Paul, was not based on adequate data and lacked a scientific foundation. More specifically, Wilson objected that Dr. Paul did not make measurements or perform testing on any mask, did not refer to design or testing standards for traditional-style masks, and did not sufficiently explain his analytical methods or how he reached his conclusions. Rejecting similar contentions, the trial court described Dr. Paul’s testimony as “appropriate and well-founded.”
The appeals court seemed to agree.
“At trial, Dr. Paul based his testimony on the following sources of information: freeze-frame and slow-motion analysis of the videotape of the incident; calculation of the energy possessed by a baseball when pitched at various speeds; published results of impact testing conducted on hockey-style helmets by an association that sets standards for sports helmets; and examination of the Wilson mask and other baseball masks,” wrote the panel.
“Wilson faults Dr. Paul for failing to conduct his own tests, but there is no requirement that an expert perform tests, particularly where the expert relies on published data generated by another expert in the pertinent field,” wrote the panel, citing Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 94-95 (2d Cir. 2000) and other case law.
“Wilson relies on several cases in which an appellate court affirmed a trial court’s exclusion of expert testimony in part because the expert had not done testing, but those cases are readily distinguishable. As a threshold matter, there is a critical difference between holding that a trial court did not abuse its discretion by excluding expert testimony, which is what was held in the cases cited by Wilson, and holding that a trial court abused its discretion by admitting expert testimony, which is what Wilson would have this court hold.” Cf. McDaniel v. United States, 343 F.2d 785, 788 (5th Cir. 1965)
One by one the panel sided with the plaintiff on Wilson’s other challenges to the expert testimony, ultimately concluding that the trial court did not abuse its discretion by admitting Dr. Paul’s testimony.
Turning to whether the jury should have been instructed on the assumption of risk doctrine, the court wrote that the instruction “is warranted in a design-defect case if the defendant offers evidence that the plaintiff knew about the specific alleged defect and the associated danger.” See Warner Fruehauf Trailer Co. v. Boston, 654 A.2d 1272, 1275 (D.C. 1995)
“Simply showing that Hickox knew the general risks of baseball umpiring was inadequate. Wilson needed evidence that Hickox knew that the throat guard’s acute, forward angle had a tendency to concentrate energy and increase the risk of injury. Because Wilson failed to present such evidence, the trial court did not err by declining to give an assumption-of-risk instruction.”
Wilson’s last argument, that “there was insufficient evidence to support judgment against it,” similarly failed.
“Viewed in the light most favorable to Hickox, the evidence indicated that the mask at issue was more dangerous than comparable masks sold at the time, such as hockey-style masks, because the mask could concentrate energy at the point of impact, rather than distribute energy evenly throughout the padded area of the mask,” wrote the panel. “Because the energy possessed by a pitched baseball is adequate to cause severe injury, the jury could reasonably have concluded that a mask that concentrated energy would increase the risk of severe injury.”
Wilson Sporting Goods Company v. Edwin W. Hickox and Lisa A. Hickox,; D.C. Ct. App.; No. 11-CV-0445, 2013 D.C. App. LEXIS 25; 1/31/13
