College Football Player Loses Again, This Time in Appeals Court

Feb 24, 2006

A college football player, who sued Riddell, Inc. because his shoulder pads, which were allegedly too small and contributed to an injury, has lost an appeal to the 4th U.S. Circuit Court of Appeals.
The panel of judges affirmed that the district court acted appropriately when it excluded the testimony of the player’s primary expert witness and, thus, granted summary judgment to the sporting goods manufacturer. The panel also agreed with the district judge that Riddell’s failure to timely disclose in discovery an enhanced video of the injury was not so egregious that it should overturn its grant of the summary judgment motion.
Troy Testerman, a co-captain of the Averett University football team in Danville, Virginia, injured his shoulder during a scrimmage against another team on August 31, 2002. After catching a pass, Testerman was hit by at least three players. He fell to the ground, landing on his left side. He suffered a severe fracture of his left scapula, or shoulder blade, requiring extensive surgery and physical therapy. The injury permanently limited his ability to move his arm fully and to lift heavy objects.
Player Claimed Riddell Fitted Him With Small Pads
At the time, Testerman was wearing shoulder pads made by Riddell, which had been fitted two weeks earlier by a Riddell employee. Testerman sued Riddell in August 2003 on the theory that under Virginia law the company negligently fit him with pads that were too small to protect him during the game. Specifically, he claimed he was carelessly fitted “with pads that were inadequate, inappropriate, [and] too small.” J.A. 27-28.
Testerman designated Kent Falb, a former head athletic trainer for the Detroit Lions, as his principal expert. Falb relied on deposition transcripts, a videotape of the scrimmage provided by Averett, and his own “knowledge and experience with respect to the fitting and use of football pads and the injuries incurred in the game of football.” J.A. 39. “While Falb’s expert report concluded that a blow from the back caused Testerman’s scapula fracture,” the appeals court noted, “Falb later changed his mind and testified at his deposition that impacts to the front and side of the shoulder caused the injury.”
Riddell designated two experts: P. D. Halstead, director of a sports biomechanics research lab at the University of Tennessee, and Chris Van Ee, who holds a Ph.D. in biomechanical engineering. Riddell enhanced the video image so that its experts had access to a slow motion depiction of the scrimmage, but it did not provide the enhanced images to Testerman’s counsel until the combined hearing on Riddell’s motion in limine and motion for summary judgment.
In granting Riddell’s motion in limine to exclude Falb’s expert testimony under Federal Rule of Evidence 702, the court concluded that the expert’s testimony as to the cause of injury was unreliable and therefore inadmissible. Logically, it then granted Riddell’s motion for summary judgment on the ground that “without the testimony of Falb and [the physician], Plaintiff cannot establish a prima facie case of proximate causation against Riddell.” J.A. 577.
Testerman then moved for alteration or amendment of the judgment, basing its claim on the defendant’s failure to timely disclose the enhanced videotape. After the court denied the motion, the plaintiff appealed.
The appeals court quoted the district court’s identification of “three key questions that Falb was unable to answer definitively: (1) which blow caused Testerman’s injury; (2) whether the area of impact was covered by the shoulder pad; and (3) whether the injury would have occurred, or would have been substantially mitigated, had Testerman been wearing different pads.”
Further, the district court found that there was evidence “that Testerman was injured by a blow to an area that would have been unprotected even by correctly fitted pads. Such a blow could have come from either another player or from hitting the ground. Falb’s methods for forming his opinion did not allow him to rule out this potential alternate cause with any degree of precision.
“It was appropriate for the district court to concentrate on this weakness in Falb’s methods as well as on the other problems it enumerated when it held Falb’s testimony to be inadmissible. Thus, the district court properly emphasized the unreliability of Falb’s methods even though it looked to the conclusions those methods generated as evidence of unreliability.”
The panel quickly dispatched of the plaintiff’s appeal that the district court erred in granting summary judgment to Riddell as well, noting that after the plaintiff’s expert was excluded, the plaintiff lacked the necessary expert to build an affirmative case.
Turning to the final element of the appeal, the panel concurred that the defendant would have “demonstrated greater respect for the discovery process” with a more “detailed description” of the evidence it planed to use. However, “we are unable to conclude that the district court erred in declining to revisit its prior ruling. Rule 59(e) relief is rarely appropriate for a claimant who presents new evidence that, even if presented in the earlier proceeding, had no demonstrated probability of changing the outcome. The affidavit Falb submitted on reviewing the enhanced videotape indicates that even if he had examined the videotape before the hearing, his conclusion about the precise cause of Testerman’s injury would not have been affected.
“Nowhere does Falb declare that review of the videotape in any way affected the outcome of his reasoning.”
Troy Testerman v. Riddell, Inc.; 4th Cir.; No. 05-1505; 1/6/06
Attorneys of Record: (for appellant) Richard Charles Armstrong of Richmond & Fishburne in Charlottesville, Virginia. (for appellee) John Michael Perry, Jr., Edmunds & Williams, P.C., in Lynchburg, Virginia.


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