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From Products Liability Law Daily, July 01, 2014

Jury had no basis for finding baseball bat defective in injured pitcher’s case

By John W. Scanlan, J.D.

The family of a high school baseball pitcher who was injured when he was hit in the face by a line drive could not maintain design defect and failure to warn claims against the manufacturer of the bat because they failed to present objective evidence that the bat was dangerous beyond what was reasonably expected by an ordinary consumer, the U.S. Court of Appeals for the Tenth Circuit held in an unpublished decision affirming the reversal of a jury verdict in favor of the family (Yeaman v. Hillerich & Bradsby Co., June 30, 2014, O’Brien, T.).

Background. In June 2006, Dillon Yeaman, then 15 years old, was pitching in a summer league baseball game when a batter hit a line drive at him that struck him in the face, fracturing his frontal bones, frontal sinuses, nasal bones, and the orbital walls of both eyes. As a result, he lost his sense of smell and his sense of taste was altered. The bat was a Model No. DB71X Louisville Slugger Exogrid bat, made of aluminum and designed for “maximum trampoline effect” or “rebound” that causes a bat to spring back after impact and help propel the ball away. At the time of its manufacture in 2005, the league required all bats to be BESR (ball speed exit ratio) certified to have a maximum exit speed of 97 mph under lab conditions, but the court noted that the evidence conflicted as to whether the bat used in this incident was BESR-certified. However, by the time the trial took place, the NCAA had replaced the BESR standard with the BBCOR (ball-bat coefficient of restitution) standard. BBCOR-certified bats have spacers placed in the barrel to prevent the trampoline effect from occurring.

Dillon and his parents, Michael and Cathy, brought design defect and failure to warn claims against Hillerich & Bradsby Co. d/b/a Louisville Slugger, asserting that the bat was defective because it propelled the ball too fast. They proffered the testimony of kinesiologist Dr. James Kent to offer opinions on the speed of the ball when it hit Dillon, the amount of time he had to react to the ball, the amount of time an ordinary 15-year old pitcher needs to react, and the cause of his injuries. Among other things, Kent testified that the ball hit Dillon at 100 to 105 mph, giving him 336 to 374 milliseconds to react to the ball, whereas scientific literature showed that a typical 15-year old pitcher needed at least 380 to 400 milliseconds. The court granted H&B’s motion to exclude his opinion after he admitted that factors including the speed of the bat and the speed of the ball factored into the ball’s exit speed, but that he did not know either of those figures. However, the court denied H&B’s motion for summary judgment, and the case went to trial.

The jury found in favor of the Yeamans on both claims, awarding $871,000 to Dillon and $80,095.85 to his parents for medical expenses. However, the district court granted H&B’s motion for judgment as a matter of law, finding that the Yeamans needed to show how fast the Exogrid could make a ball travel compared to an “acceptable bat” that would be non-defective in that it would not allow ball exit speeds greater than an ordinary 15-year old could react to, but failed to do so. The Yeamans appealed.

Design defect. The district judge correctly overruled the jury’s verdict in favor of the family on their design defect claim, according to the Tenth Circuit. The family argued that the district judge erroneously required evidence comparing the exit speed of the Exogrid to that of an “acceptable bat” and lab tests measuring the performance of the Exogrid. They asserted that their evidence showed that an ordinary consumer—a 15-year old pitcher, in this case—expects a ball to be hit at a speed that would give him enough time to react to it and that the Exogrid did not satisfy this standard; therefore, the jury reasonably found that the bat was unreasonably dangerous. However, because the family had claimed that the bat was defective because it allowed the batter to hit the ball at a speed that was too fast, they were required by Oklahoma’s consumer expectations test to establish the ball exit speed reasonably expected by the ordinary consumer using an “acceptable bat” and the ball speed of the Exogrid so that the jury could determine if the bat at issue was unreasonably dangerous. While several witnesses testified that aluminum bats, especially BESR-certified bats, hit balls faster or further than wood bats or BBCOR-certified bats, they did not present any objective evidence quantifying the ball exit speeds of these bats. Similarly, the family’s experts did not test the ball exit speed of a wood or BBCOR bat. William Coleman, the family’s metallurgy expert, did not test the Exogrid, and while Kent opined that the ball hit the pitcher at 100 to 105 mph, he did not consider or rule out other causes contributing to its speed. Therefore, there was no basis for a rational jury to find the Exogrid dangerous beyond the expectations of an ordinary consumer.

Failure to warn. For the same reasons that the family failed to show that the Exogrid was unreasonably dangerous, they also failed to show that it had a dangerous characteristic that would trigger a duty to warn, the Tenth Circuit briefly stated.

Defective as a matter of law. The court declined H&B’s request to find, in the alternative, that a baseball bat cannot be found defective as a matter of law for propelling a ball too well because that was its intended purpose. The Tenth Circuit agreed with the district court that this argument was outside the scope of settled law in Oklahoma, and refused to speculate when it could affirm on other grounds.

The case number is 12-6254.

Attorneys: Randall K. Calvert (Calvert Law Firm) for Dillon Andrew Yeaman. Seth A. Day (Hall Estill) and Harvey D. Ellis, Jr. (Crowe & Dunlevy) for Hillerich & Bradsby Co.

Companies: Hillerich & Bradsby Co. d/b/a Louisville Slugger

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