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LAW JOURNAL Product Liability NEWSLETTERS Law & Strategy ® Volume 26, Number 10 • April 2008 Will Metal Bats Make a Hit? Product Liability and the Legislation of Baseball By Alan D. Kaplan and LisaMarie Collins

he crack of a baseball flying off handcrafted. Rules seeking conformity short season). a wood bat — the sweet sound as to the type of bats used date back to However, metal bat opponents are of America’s pastime. Baseball 1859, when it was determined that bats not comforted by its performance T could be no larger than 2.5 inches in enhancing qualities. They are con- has been a part of American culture since the 1800s. The latest generation of diameter. By 1869, a baseball bat could cerned that continuing advances in alu- baseball fans, however, has perhaps be no longer than 42 inches. minum bat technology are changing the become more accustomed to the ping Today, Major League Baseball face of baseball by enhancing safety of a metal bat. Recent attempts to ban (“MLB”) only allows bats made from risks that have always been present in a the use of non-wood bats, based on the solid wood in its games and engages in typical game. perception that they may have changed a complex process before approving THE METAL VS. WOOD BAT DEBATE the game and increased the potential them. MLB bats are scientifically evalu- Despite the popularity of the metal for injury, have gained more steam and ated by the University of Massachusetts bat, its use in amateur baseball has publicity. Proponents of a ban appear Lowell Baseball Research Center. The become particularly controversial in to be more prone to raise the issue in testing protocol includes tests for phys- recent years. Some argue in favor of the legislative forums where strict product ical characteristics such as length, metal bat, claiming its performance- liability standards are not necessarily weight, barrel diameter, center of grav- enhancing qualities encourage controlling. ity, mass moment of inertia (“MOI”), increased participation and make the In the beginning, things were simple. vibration testing, batted-ball perform- game more fun. Others argue that metal Players made their own bats, all from ance testing including a test to deter- bats pose an enhanced risk of danger to wood, experimenting with different mine the “Ball Exit Speed Ratio” (ball players, particularly at the high school shapes and sizes depending on their speed as it relates to reaction time or and college level. personal tastes and preferences. “BESR”), static strength and flexural According to the Consumer Product Bernard Malamud’s mythical character stiffness testing and high-speed durabil- Safety Commission (“CPSC”), between Roy Hobbs in “The Natural” owed his ity. 1991 and 2001, batted balls killed 17 success, in part, to his famed wood bat While the first metal bat was patent- players. Eight deaths involved metal “Wonderboy,” which he personally ed in 1924, wood bats dominated the bats, and two involved wood bats (in sport at all levels until the 1970s. At that seven instances, the type of bat was not time, metal bats began to be used in documented). However, scientific data youth and adult amateur leagues as a establishing that a metal bat is inherent- Alan D. Kaplan is a litigation partner at cost-saving alternative to wood bats ly more dangerous than a wood bat are the New York City office of Herrick, that were prone to break. More recent- less than clear. A 2002 study by the CPSC Feinstein LLP. He has been Chairman ly, the allure of increased “power,” found that, in spite of accident statistics, of the Automotive Product Liability “maximum impact speed,” and an metal bats do not pose any greater threat Committee’s National Institute for the expansion of the “sweet spot” has than wood bats. In 2005, American American Bar Association and is current- caused a steady increase in metal bat Legion Baseball conducted a similar ly a member of the Legal Task Force of usage. Today, metal bats dominate both study. Compiling statistics from numer- the Sporting Goods Manufacturers’ youth and adult amateur baseball and ous studies by the National Collegiate Association, a member of the Defense softball teams, while Major League and Athletic Association (“NCAA”), the CPSC, Research Institute, and a frequent con- Minor League professional baseball and the National Institute for Sports tributor to various product liability publi- continue to use wood bats (although Science and Safety, it found no sub- cations. He can be contacted at aka- MLB allows the use of composite bats stantial scientific proof that wood bats [email protected]. LisaMarie Collins is that it has evaluated and approved as are safer than metal bats. A 2006 study a first-year associate at the firm. She can comparable to “one-piece solid north- by the Illinois High School Association be contacted at [email protected]. ern white ash bats” in the Minor League (“IHSA”) also found that wood bats LJN’s Product Liability Law & Strategy April 2008 were no safer than metal bats. The Ct. App. 2002). It was claimed that the of metal bats in “any competitive base- IHSA study tracked 32 teams in more design and use of the particular bat sig- ball game in which high school-age than 400 games and 9,000 bats. The nificantly increased the inherent risk in children (meaning persons older than study had teams in five Illinois high the sport of baseball that a pitcher 13 years of age, but younger than 18 school leagues use wood bats when could be hit by a line drive. Id. at 706. years of age) are participants and which they played league teams, and metal The manufacturer’s defense focused on involves the participation and/or spon- bats when they played other teams. It primary assumption of the risk and sorship of a high school.” On April 4, found five injuries involving metal bats lack of causation. Id. However, the 2007, Mayor Michael R. Bloomberg and only one injury involving a wood California Court of Appeals held that vetoed the bill, saying he did not know bat, which the study found statistically there was sufficient evidence to estab- if metal bats were more or less danger- insignificant. lish that the unique design properties of ous than wood bats and that the people Proponents of metal bats argue that, the bat were the cause of the incident. who run youth leagues should decide when used in school competition, metal The bat at issue was a “newly what bats to use. On April 23, 2007 bats are regulated to ensure safety. designed hollow aluminum bat with a the City Council overrode Mayor In 1999, the NCAA Baseball Rules pressurized air bladder which, accord- Bloomberg’s veto by a 41-4 vote. The Committee (governing collegiate base- ing to its designer, substantially increas- ordinance took effect on Sept. 1, 2007. ball) adopted new non-wood bat spec- es the speed at which the ball leaves the Citing safety concerns, Oddo said, “We ifications in order to “make metal bats surface of the bat.” Id. While the bat was believe metal bats pose a risk to student perform more like wood bats.” The made in compliance with NCAA stan- athletes above that inherent in the new specifications required metal bats dards, the court took note that the sport. That’s simply unacceptable.” to be heavier in an effort to decrease NCAA notified athletic conferences Significantly, the legislative record swing speed. Additionally, the rule under its umbrella, “of the dangerous before the City Council included sever- eventually specified a maximum allow- nature of the newer metal bats.” Id. al studies and reports which indicated able batted-ball exit velocity of 97 miles Furthermore, the expert testimony of a how non-wood bats meeting the cur- per hour. Critical to its decision regard- kinesiologist was offered to support the rent NCAA and NFHS standards could ing batted-ball exit velocity was the contention that the ball involved in the outperform wood bats, as well as how reaction time a pitcher was determined incident was traveling at a speed of up non-wood bats could be engineered to to need to field a batted ball (0.4 sec- to 107.8 miles per hour, giving the pitch- increase performance, including adjust- onds). Indeed, the BESR test used by er a reaction time of between .32 and ments to the MOI and the “trampoline the NCAA for its specifications is the .37 seconds, below the acceptable min- effect” (flexing of a bat when a ball same test employed by MLB. imum reaction time of 0.4 seconds rec- strikes it, denting inward and creating a Following the steps taken by the ognized by the NCAA. Id. While the “trampoline effect” that bounces the NCAA, in 2001, the National Federation expert did not see the incident, he ball off at a greater velocity). There was of State High School Associations based his opinion regarding the speed concern that metal bats led to an (“NFHS”) adopted the BESR bat per- at which the ball struck the pitcher on increase in the number of hard-hit and formance test. Bats bearing the BESR an “analysis of skull fracture threshold difficult-to-field balls. certification mark indicate that the non- biomechanics in conjunction with A number of coaches, leagues, and wood bat has a maximum exit speed quantitative analysis utilizing basic prin- athletic organizations opposed the bill, of 97 miles per hour (under a set of ciples of dynamics related to the flight in part, due to the costs of replacing laboratory conditions) and has met of a baseball.” Id. at 717. metal bats with wood bats, and the moment-of-inertia requirements, among Since Sanchez, the metal versus wood future cost of replacing wood bats, others. Thus, metal bats bearing the bat debate has continued to heat up. which frequently break. According to BESR certification should provide play- However, the debate seems to be mov- the City Council, it will cost the city’s ers sufficient time to react to a hit ball. ing beyond product liability litigation public high schools $253,500 to replace The NFHS explained that implementing (and its prima facie standards) and into 5,070 metal or metal-composite bats the BESR requirement to bats used in the realm of regulation via legislation. used by 169 baseball teams with wood high school baseball ensured that metal This much is indicated by the New bats, and $67,600 a year thereafter to bat performance would mirror the per- York City Council’s recent “Bat replace broken wood bats. There was formance of wood bats. Ordinance” and subsequent challenges also the suggestion that wood bats in federal court. HOW ARE COURTS posed safety concerns not exhibited by HE EW ORK ITY metal bats, such as flying pieces of TREATING THE ISSUE? T N Y C splintered wood. In 2002, the California Court of COUNCIL ‘BAT ORDINANCE’ Appeals ruled against a metal bat man- On March 14, 2007, the New York CHALLENGE TO THE NEW YORK ufacturer’s motion for summary judg- City Council passed the “Bat CITY ‘BAT ORDINANCE’ ment on a product liability claim Ordinance,” N.Y.C. Administrative Code On May 7, 2007, a coalition of sport- brought by a college pitcher who had §10-165, banning the use of metal bats ing goods companies, USA Baseball, been struck by a line drive hit from an in high school baseball games. The bill, the National High School Baseball aluminum bat. Sanchez v. Hillerich & sponsored by New York City Council Coaches Association, and the parents of Bradsby Co., 104 Cal. App. 4th 703 (Cal. Member James Oddo, prohibits the use several players filed suit against the city LJN’s Product Liability Law & Strategy April 2008 in the U.S. District Court for the THE METAL VS. WOOD BAT erning body for North Dakota high Southern District of New York. United DEBATE: NATIONAL OVERVIEW school athletics, banned the use of States Baseball v. City of New York, 509 Was the direction of the New York metal bats in all North Dakota high F. Supp. 2d 285 (S.D.N.Y. 2007). The City Council Bat Ordinance at odds school baseball games citing safety con- coalition challenged the Bat Ordinance with the rest of the country’s use of cerns. Thus far, North Dakota is the on state and federal constitutional metal bats? Other states, including only state league to move entirely to grounds, focusing on an alleged defi- Illinois, Massachusetts, Montana, wood bats. ciency in the city’s stated justification New Jersey, North Dakota, and In Pennsylvania, House Bill 1482, for the regulation: “to protect high Pennsylvania, whether through state proposed in June 2007 by State school age students from the risk of legislatures or through athletic associa- Representative Mike Carroll (D), pro- injury.” Id. at 292. The coalition also tions, have already taken action. hibits a player under 18 years of age alleged that the ordinance violated Illinois state representative, Robert S. from using a bat not made of wood to equal protection and due process claus- Molaro (D) has proposed a bill making play baseball or softball. However, es under the federal and New York it unlawful for any coach, parent, Governor Ed Rendell rejected the legis- State constitutions and that it exceeded teacher, or other person to knowingly lation. A new report said that Governor the city’s police powers under New allow the use of an aluminum bat dur- Rendell thought equipment decisions York General City Law §20(13). Id. ing a recreational baseball or softball should be left to leagues and officials The Southern District applied a game in which a person under the age and that he would veto the bill if it rational basis review to the coalition’s of 13 is a participant. The legislation is emerged from the Legislature. constitutional challenges. It held that currently pending. CONCLUSION even if the coalition were correct that The Massachusetts Interscholastic While there is no definite trend at exit speeds for non-wood bats are no Athletic Association banned the use of present, it would appear that without greater than for wood bats under the non-wood bats in its post-season tour- any conclusive scientific evidence indi- existing NCAA and NFHS regulations, nament of 2003, but has since allowed cating that non-wood bats manufac- “it would be not only rational but logi- the use of metal bats. tured within the specifications of MLB, cal to conclude that a greater number of Also similar to the New York City the NCAA, and the NFHS are more dan- hard-struck balls flying through the Council legislation, the Montana legisla- gerous than wood bats, proponents of infield, even at the same exit speed, ture has proposed a bill called the the metal bat ban will seek ultimate results in a greater chance that an “Brandon Patch Baseball Player support with local legislative bodies. infielder could be struck and injured.” Protection Act,” prohibiting the use of The ultimate fate of non-wood bats per- Id. at 294. Finding that a conceivable non-wood bats in competitive national haps lies with the direction that “newer” rational relationship exists between the youth baseball league game in which designs will take in terms of perform- Bat Ordinance and the legitimate pur- any player 15 years of age or older is a ance enhancement. While there may be pose of public safety, the court held participant within the boundaries of the inconclusive scientific evidence, the “the judgment that high school baseball state of Montana. anecdotal evidence presented by some players’ safety is more important than coaches, parents, and players, attesting higher batting averages and more On June 26, 2006, New Jersey to the faster exit speed of batted balls, offense is a classic legislative judgment Assemblyman Patrick J. Diegnan Jr. pro- appears to be having a strong influence that the City Council could constitution- posed “Steven’s Law,” a bill prohibiting on the debate. This will be tempered by ally make.” Id. The court also held, the use of non-wood bats in certain manufacturers who continue to make “protecting persons of high school age organized games. The bill came three higher-performing bats that also com- from baseball injuries plainly falls with- weeks after a 12-year-old pitcher from ply with the safety standards set forth in the City’s police power to protect its Wayne, NJ, was injured when he was hit by MLB, the NCAA, and the NFHS. residents’ health and safety.” Id. at 298. in the chest by a ball hit from a metal Does a better performing bat that com- Thus, despite a lack of conclusive sci- bat. “Steven’s Law,” like New York City’s plies with safety standards equate to a entific evidence proving that metal bats, Bat Ordinance, “prohibits the use of non more dangerous bat? It is a fate that has in and of themselves, posed an inherent wood bats in any baseball game in not, as yet, been addressed conclusive- or substantially increased risk of injury which people under the age of eighteen ly by the courts. and, instead, relying on evidence are participants, however, excluding demonstrating that non-wood bats “out- those games where one of the teams performed” wood bats, the court held participating in the game is organized the ban to be constitutional. Clearly, the by or affiliated with a school, nonprofit —❖— ban of non-wood bats was fueled by a youth organization, county or municipal standard that might not have driven the recreation department, or governing Reprinted with permission from the April 2008 edi- claim of a plaintiff in a strict product lia- body of a country or municipality out- tion of the LAW JOURNAL NEWSLETTERS. © 2008 bility lawsuit. side of the State.” ALM Properties, Inc. All rights reserved. Further Beginning in the spring of the 2007 duplication without permission is prohibited. For school year, the North Dakota High information, contact 212.545.6111 or [email protected]. School Activities Association, the gov- #055/081-04-08-0010