Basketball Player’s Products Liability Claim Against Nike Falls Short

May 20, 2022

A federal judge from the Eastern District of New York has granted Nike Inc’s motion for summary judgment in a case in which a man playing in a recreational basketball game fell and injured his knee, then sued the sporting goods manufacturer and other defendants for negligence and products liability.

In March 2016, plaintiff David Nachimovsky was a 23-year-old student who described himself as an avid basketball player. On March 7, 2016, he purchased a pair of Prime Hype 2 (Nike) sneakers from Shoe Fitters (a co-defendant) using Between March 8 and March 22, Nachimovsky wore the sneakers on one or two occasions in basketball games without incident. Then, on March 22, 2016, while wearing the sneakers in a basketball game, Nachimovsky sustained an injury to his right knee, described as a tear to his meniscus and hairline fracture in the tibial plateau, which he attributes to the sneakers. The injury occurred during the second game Nachimovsky had played that day. According to his deposition testimony, Nachimovsky says that when he put his foot down on the ground his foot rolled inward, and he heard and felt a pop in his knee. At the time of the injury, the sneakers may have contained Dr. Scholl’s insole inserts for comfort.

Since sustaining his injury, Nachimovsky has undergone physical therapy and been treated by more than one orthopedic surgeon.

He alleged that his injury was caused by the Prime Hype 2’s defective design: that its excessively narrow design along the sneaker’s combined midsole and outsole failed to give proper support to the medial longitudinal arch of his foot, causing it to bend inward while his knee bent outward.

The primary evidence he submitted in support of this argument is two one-page letters from Dr. George Tsoutsouris, a podiatrist, that conclude that the medial longitudinal arch of the sneakers “is excessively narrow” and gave insufficient support to Nachimovsky’s foot, making the sneakers “a major contributing factor.”

Nike moved for summary judgment.

Central to the court’s consideration of that motion was Nike’s parallel bid to exclude evidence from Nachimovsky’s expert witness, Dr. George Tsoutsouris. “With respect to expert evidence, it is the district court’s role to act as gatekeeper and the court has broad discretion as to how to exercise that role,” wrote the court, citing Amorgianos v. Nat’l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002).

“A court should exercise its discretion by looking to the standards of Fed. R. Evid. 401 – determining whether the proffered expert testimony is relevant — and Fed. R. Evid. 702 – determining whether it is reliable. Id. Fed. R. Evid. 702 directs a court to consider, first, the witness’s knowledge, skill, experience, training, or education,” and then, second, whether:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

The Supreme Court has identified additional factors (the Daubert Factors) for evaluating the reliability of expert testimony: (1) whether the theory or technique can (and has been) tested; (2) whether the theory or technique has been subjected to peer review or published; (3) the known or potential error rate, in the case of a scientific technique; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) whether the theory or technique enjoys general acceptance. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

“In short, the district court must ‘make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.'” Amorgianos, 303 F.3d at 265-66 (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999)). Where an expert’s opinion lacks a factual basis or is based on speculation and conjecture, it is “inappropriate material for consideration on a motion for summary judgment.” Buckley v. Deloitte & Touche USA LLP, 541 F. App’x 62, 63 (2d Cir. 2013); see also Cacciola, 127 F. Supp. 2d at 180 (“If a proffer of expert testimony in the form of an expert report is excluded as inadmissible under Rule 702, the summary judgment determination is made on a record that does not include that evidence.”).

Ultimately, “[t]he party proffering the proposed expert evidence bears the burden of establishing its admissibility by a preponderance of the evidence.” Karavitis v. Makita U.S.A., Inc., 722 F. App’x 53, 55 (2d Cir. 2018) (citing United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007)).

Here, Nike (and Shoe Fitters, by incorporation) has moved to exclude the report of Dr. Tsoutsouris, for two reasons: first, that he is unqualified “to offer an expert opinion with respect to the design of the shoes at issue in this litigation”; and second, that the opinions in his report are “grossly unsubstantiated, speculative, and unreliable.” Nike Mem. at 9-10. The court agreed “with both of Nike’s arguments and concludes that evidence from Dr. Tsoutsouris is not admissible.”

First, it concluded that Dr. Tsoutsouris “is not qualified to offer evidence as an expert in this litigation.

“Second, the Court also cannot find that Dr. Tsoutsouris’ report and conclusions are reliable under the Daubert Factors.”

Thus, the court granted those portions of Nike’s and Shoe Fitters’ motions that seek to preclude the introduction and consideration of evidence from Dr. Tsoutsouris.

“Having concluded that Nachimovsky’s purported expert evidence is inadmissible, the court need not spend significant additional time on the Amended Complaint’s substantive claims. The four causes of action asserted — sounding in negligence and products liability — are all animals of the same species. See S.F. v. Archer Daniels Midland Co., 594 F. App’x 11, 12 (2d Cir. 2014)

“In particular, each of the four asserted claims require Nachimovsky to show that Nike’s Prime Hype 2 sneakers were a ‘substantial factor’ in causing his injury. Donovan v. Centerpulse Spine Tech Inc., 416 F. App’x 104, 106 (2d Cir. 2011); Viscusi v. P & G-Clairol, Inc., 346 F. App’x 715, 716 (2d Cir. 2009).”

The court concluded that Nachimovsky “has fallen woefully short of the basket in satisfying his evidentiary burden to show that Nike knew or should have known that a flawed design feature of the Prime Hype 2 could or was likely to cause the type of injury that Nachimovsky sustained, that Nike had a duty to warn him of a non-existent risk, that if there was a flaw that a feasible alternative design was possible or necessary, or that his specific pair of Prime Hype 2 sneakers suffered from a unique manufacturing defect.”

David Nachimovsky v. Nike, Inc.; E.D.N.Y.; 19-CV-2120 (ILG) (RER); 3/29/22

Attorneys of Record: For David Nachimovsky, Plaintiff, Counter Defendant: Yoram Nachimovsky, LEAD ATTORNEY, Yoram Nachimovsky, New York, NY USA; Kenneth Seymour Gelnick, I, Kenneth S. Gelnick, Attorney-at-Law, New York, NY USA.

For Nike, Inc., Defendant, Cross Defendant: Patricia A. O’Connor, LEAD ATTORNEY, Brody, O’Connor & O’Connor, Esq., Northport, NY USA; Max Deitchler, PRO HAC VICE, Kutak Rock LLP, Fayetteville, AR USA.

For Shoe Fitters, Inc., Defendant, Cross Claimant, Counter Claimant: Brian Stephen Liferiedge, Harris, King, Fodera and Corriea, New York, NY USA.

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