By Gary Wolensky and Christopher Hossellman, of Buchalter
A federal jury in the Western District of Wisconsin recently returned a unanimous defense verdict for K2 Sports, LLC after a five day trial before Chief Judge James D. Peterson. The jury heard testimony from defense expert witnesses David Thom, Thomas Gennarelli, and Irving Scher, along with corporate representative Nigel Steere and test engineer Elizabeth McCalley.
Plaintiffs Tracy Rogers and Steven Scott Rogers brought suit against K2 in 2017 after a December 31, 2015 skiing accident at Afton Alps left Mr. Rogers with permanent brain damage. The case involved Mr. Rogers falling while skiing on a bunny hill named Nancy’s Nursery. Mr. Rogers was wearing a K2 Phase Pro helmet at the time, and Plaintiffs alleged that a design defect in the helmet caused his injuries. Their final demand before trial was $12 million.
Only one person witnessed the very end of the fall from more than 200 feet away, and he could not remember any details other than it being relatively unremarkable. In addition to Mr. Rogers’ brain injuries, the accident left him with several broken ribs, a clavicle fracture, and a punctured lung. The bizarre constellation of injuries and seemingly innocuous fall left Buchalter’s litigation team (which included Shareholder Gary Wolensky, Senior Counsel Anne Marie Ellis, and Attorneys Christopher Hossellman, Michael Preciado, and Taylor Brown) with the difficult task of determining what actually happened to Mr. Rogers.
Plaintiffs’ expert Mariusz Ziejewski opined that the Phase Pro helmet suffered from a design defect because it supposedly failed his testing under the industry standard ASTM protocols. However, the team at Southern Impact Research Center (SIRC) found the helmet to be compliant under those same standards. SIRC determined that the different testing outcomes were attributable to Dr. Ziejewski’s failure to properly follow the testing procedures set forth under the ASTM, which lead to false failures and invalid data.
After SIRC confirmed that the subject helmet was not defective, a biomechanical analysis determined that Mr. Rogers’ head was traveling in excess of 19 miles per hour when it struck the hard-packed snow at Afton Alps. The point of impact was behind and slightly below his left ear, well outside the area of protection afforded by recreational ski helmets. These facts, coupled with evidence showing that Mr. Rogers failed to properly secure the helmet to his head, explained why he sustained his injuries while wearing an otherwise safe K2 helmet.
At trial, Mr. Wolensky took Dr. Ziejewski to task for his improper testing, and Mr. Hossellman presented the jury with evidence of extensive prior brain damage that left Mr. Rogers more susceptible to re-injury despite wearing what was an otherwise safe helmet. The jury was also presented with the helmet testing and biomechanical analysis performed by defense experts.
After deliberating for only two hours, the jury returned a unanimous defense verdict for K2 Sports, LLC.
