A federal judge from the Southern District of Indiana delivered a partial victory to Riddell, Inc., which was sued by a group of plaintiffs, who claimed that Riddell’s helmets had a design defect and that the company was negligent because of a failure to warn about the risks of concussion.
Bringing the suit was John DuRocher and Darin Harris. DuRocher was a former quarterback for the Universities of Oregon and Washington, while Harris was a former safety at the University of Washington. The men were represented by the Indianapolis-based law firm Cohen & Malad.
The suit was filed on behalf of all former NCAA football players who suffered concussions leading to long-term serious injury. It claims the players developed chronic headaches, dizziness, dementia, Alzheimer’s disease or other physical and mental problems as a result of the injuries.
The plaintiffs initially included the NCAA in the suit, but that part of the claim was consolidated with the rest of the concussion litigation against the NCAA.
In the complaint against Riddell, the plaintiffs asserted four claims for relief: (1) Medical Monitoring; (2) Negligence; (3) Strict Liability for Design Defect; and (4) Strict Liability for Manufacturing Defect.
Riddell moved to dismiss.
The court began its analysis by providing a history lesson on helmet safety and Riddell’s involvement in those efforts.
Before 2001, Riddell provided warnings on its helmets that read: “Do not use this helmet to butt, ram or spear an opposing player. This is in violation of the football rules and such use can result in severe head or neck injuries, paralysis or death to you and possible injury to your opponent. No helmet can prevent all head or neck injuries a player might receive while playing football.”
The court noted that the plaintiffs describe different efforts at different times by Riddell and others to increase concussion awareness, such as Riddell’s partnering in 2012 with USA Football, which included, for the first time, providing with each helmet “a hangtag offering concussion education that includes information from the Centers for Disease Control and Prevention Heads Up program.”
However, the plaintiffs also alleged that Riddell “failed” to warn them and other players “that their helmets did not protect against the risks of latent long-term brain injury from repeated head impacts. The plaintiffs also alleged that the defendants marketed their products in a way that misled ‘athletes, parents and coaches into a dangerous false sense of protection.’”
Addressing the medical monitoring claim first, the court noted that the plaintiffs failed to counter the defendants’ motion on this point, thus their claims will be dismissed with prejudice.
As for the negligence claim, the court noted that “because the plaintiffs’ negligence claim asserts that the defendants failed to properly design, test, market, manufacture, instruct, and warn of risks related to the helmets at issue, the plaintiffs’ negligence claim falls squarely within the purview of Washington’s Product Liability Act (WPLA).”
The WPLA defines a product liability claim as “any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product.”
The fact that the plaintiff’s negligence claim seeks medical monitoring as a remedy to a negligence claim is contrary to the WPLA, according to the court. The courts dismissed the claim.
Next were the defect claims.
The defendants “interpose four challenges to the plaintiffs’ product liability claims: (1) the plaintiffs have not set forth the requirements for a design defect claim; (2) the plaintiffs have not adequately alleged a claim that Defendants’ warnings were defective; (3) the plaintiffs have not set forth a plausible manufacturing defect claim; and (4) the plaintiffs have not alleged a sufficient showing that the alleged defects proximately caused their injuries. We address each of these arguments in turn below.”
Regarding the design defect, the court found that the plaintiffs “have satisfied the minimal pleading standard to assert a products liability claim for design defect,” noting the detail and “the well-established principles of law that disfavor motions to dismiss.” Thus, it denied the motion to dismiss that claim.
The court was less charitable to the plaintiffs on the manufacturing defect claim.
“The plaintiffs have not alleged that the helmets at issue deviated in some material way from the design specifications or performance standards of the manufacturer, or deviated in some material way from otherwise identical units of the same product line as required by Wash. Rev. Code § 7.72.030(2)(a),” wrote the court. “The consumer expectation standard cannot act as a substitute for the requirement that the plaintiffs allege the manufacturing defect in the helmets at issue, where the injuries alleged are common and not highly unusual. The defendants’ motion to dismiss the plaintiffs’ manufacturing defect claim is therefore granted without prejudice.”
Attorneys of Record: (for plaintiff) Irwin Levin, Richard Shevitz, Scott Gilchrist and Lynn Toops of Cohen & Malad LLP; James R. Dugan II, David Franco, Douglas Plymale and Chad Primeaux of The Dugan Law Firm APLC; Don Barrett of Barrett Law Group PA and Douglas Gill of Douglas H. Gill & Associates. (for defendants) Cary A. Slobin, BOWMAN & BROOKE, LLP, Dallas, TX; Paul Cereghini, BOWMAN & BROKE LLP, Phoenix, AZ; Randall R. Riggs, FROST BROWN TODD LLC, Indianapolis, IN; Robert Latane Wise, BOWMAN AND BROOKE LLP, Richmond, VA.
John Durocher et al. v. Riddell, Inc., et al.; S.D. Ind.; 1:13-cv-01570-SEB-DML, 2015 U.S. Dist. LEXIS 41006; 3/31/15
