Arizona Appeals Court Affirms Ruling for Baseball Player

Sep 14, 2007

An Arizona appeals court has affirmed a jury’s $7 million verdict to a professional baseball player in a case where the plaintiff sued a physical therapist for an injury he suffered while rehabilitating his elbow.
Critical to the court’s determination was its conclusion that the plaintiff’s expert testimony was sufficient to show that he would have made a Major League Baseball roster and thus was entitled to lost earnings.
Kenneth Felder was a 27-year-old outfielder for the Milwaukee Brewers’ minor league teams, who was undergoing physical rehabilitation at the offices of the defendant, Physiotherapy Associates.
While there, he was encouraged to engage in batting practice in the pitching rehabilitation area, an area that was not designed or maintained for batting practice. Felder fouled a baseball that struck a concrete lip between the batter’s cage and the surrounding flooring. The ball ricocheted backward and struck Felder’s left eye. As a result, he sustained permanent blurred central vision and a blind spot in his peripheral vision. The Brewers subsequently released him from his contract. Felder filed suit against Physiotherapy in August 1998.
At the first trial in 2000, the player’s agent Slade Mead was Felder’s expert witness on the issue of damages. Although he opined that Felder would have made it to the major leagues and as to the potential length of Felder’s major league career, Mead conceded that his opinion was speculative. Nevertheless, the jury found in favor of Felder and determined his damages to be $8 million. The jury concluded that Felder was 25% at fault for the accident, so the award was reduced to $6 million.
On appeal, the appeals court reversed and remanded the case for several reasons; most notably that “the evidence Felder presented in support of his claim for lost earnings from major league baseball was too speculative,” wrote the court. “We required Felder to present stronger evidence on remand.”
The appeals court went on to note that “at the second trial, Al Goldis testified as an expert witness for Felder about whether Felder would have played in the major leagues and the expected length of his career. At the time of trial, Goldis was the special assistant to the general manager of the New York Mets and had previously worked for several major league teams. He had 27 years of experience in drafting, scouting and developing players for major league baseball teams. Goldis stated that he was not paid to testify.
“Goldis reviewed the Brewers’ pre-draft scouting reports and minor league coaching reports about Felder. He noted that the Brewers had promoted Felder all the way up from the rookie league to the AAA level, and that his next step would have been the major leagues. Despite some conflicting reports from the minor league coaches regarding Felder’s ability, Goldis testified to a reasonable degree of certainty that not only would Felder have made it to the major leagues, but that he would have been an impact player.
“Goldis also compared Felder to major league players who hit 15 home runs or more per season from 1981-1990. Goldis opined that Felder had more power than Frank Thomas, a player that Goldis had drafted. Goldis stated that he could make comparisons between Felder and Thomas to a reasonable degree of certainty. Given that Thomas had been playing for approximately seventeen years as of the date of trial, Goldis testified that Felder’s career would have lasted between 12 and 15 years.”
Based on the above testimony and the testimony of other experts on both sides, the court concluded that there was sufficient evidence presented that would allow reasonable jurors to differ about whether Felder would have made it into the major leagues, the length of his major league career and the range of his compensation.
The second jury found $7 million in damages, with Felder 30 percent at fault, resulting in an award of $4.9 million. The defendant appealed, arguing that “Goldis as an expert witness did not make the case stronger.”
In disagreeing, the appeals court wrote that “a jury was entitled to consider the evidence that was reasonably available to evaluate Felder’s prospects, i.e., data about past performance and expert testimony about future prospects. Goldis was able to provide information from the management’s point of view about those future prospects. We find no error in the trial court’s determining that our previous ruling was satisfied.”
Kenneth W. Felder v. Physiotherapy Associates; Ct. App. Ariz., Div. One Dept.; 1 CA-CV 05-0719, 158 P.3d 877; 2007 Ariz. App. LEXIS 84; 505 Ariz. Adv. Rep. 20; 5/22/07
Attorneys of Record: (for plaintiff/appellee) Scott E. Boehm, COPPLE, BOEHM, & MURPHY, P.C., Phoenix; Timothy F. Kelly, Michael P. Massucci, KELLY LAW OFFICES, Crown Point, Indiana. (for defendant/appellant) Timothy J. Thomason, Michael J. Plati, MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A., Phoenix.


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