Suits Show Products Liability Implications

CHICAGOLAWBULLETIN.COM TUESDAY, MARCH 6, 2012

Volume 158, No. 45 Suits show products liability implications With Super Bowl XLVI now in the the manufacturer’s liability (it was no longer rearview mirror and labor peace obtained for SPORTING JUDGMENT liable once the helmet was refurbished), the the foreseeable future, the NFL’s attention case serves as an indicator that a football this off-season is now being channeled BY TIMOTHY helmet may be deemed unreasonably toward the courtroom and the often L. E PSTEIN dangerous if not properly designed and uncomfortable subject matter of concussions. manufactured. Id. at 581. Riddell may not On Jan. 31, a federal judicial panel approved Timothy L. Epstein is have been obligated to design and consolidation of four lawsuits, filed by about a partner and chair - manufacture the safest helmet possible, but man of the sports law 300 former players, related to the NFL’s practice group at if, as the plaintiffs allege, it knew that the alleged mishandling of head injuries. The SmithAmundsen LLC. product was unsafe or inadequate and other consolidated case will be heard by Judge He also serves as an alternatives existed, it is certainly Anita Brody with the U.S. District Court in adjunct professor at conceivable that it will be held liable. Philadelphia. An additional 19 lawsuits are Loyola University Chicago School of Law, teaching Nonetheless, it is possible that the also pending and could be combined with courses in sports law. His sports law practice is all- plaintiffs’ products liability claims will simply more suits expected to be filed in the encompassing, but focuses on the litigation needs of fall flat. Riddell currently has pending immediate future. While media outlets have players, coaches, teams and schools. He can be motions to dismiss the California claims and devoted considerable coverage to the NFL reached at [email protected]. is seeking to avoid involvement in the and its defenses, significantly less attention consolidated suit, arguing that the allegations has been paid to claims levied against the liability claims because certain risks are so are separate and distinct from those being football helmet manufacturer Riddell Inc. inherent to a given sport that a plaintiff must brought against the league. While the NFL is the more high-profile demonstrate that the risk associated with the Thomas Girardi, an attorney for a group of defendant, the outcome of these claims defective product falls outside the normal player plaintiffs, disagrees. He has stated against Riddell could have a bigger impact. risk associated with participation in that publicly that “(t)hey were hand-in-hand with The plaintiffs have advanced various sport. Generally, athletes assume these the NFL” and believes that the claims should product-liability theories against Riddell, normal, foreseeable risks. Essentially, a be heard simultaneously. including strict liability for design defects, plaintiff must show that the product was It is also conceivable that both parties strict liability for manufacturing defects, unreasonably dangerous and, even then, could be required to mediate or arbitrate all failure to warn and negligence. See courts will conduct a risk-benefit analysis claims. Attorneys for the NFL contend that preconsolidation case, Maxwell v. NFL et. al. when assessing whether the product is truly all player safety disputes are governed by the No. BC465842 (Sup. Ct. L.A. County filed defective. See Fuss-McCullogh v. Nike. 2010 league’s collective bargaining agreement, July 19, 2011). The factual allegations Cal. App. Unpub. LEXIS 4882 (Cal. App. 2d which has required some form of alternative proffered by this particular set of plaintiffs 2010) (risks of a baseball helmet design did dispute resolution since 1968. In addition, if contend that Riddell failed to properly design not outweigh its benefits and the defendant the factual issues against Riddell are and manufacture a helmet with an adequate did not owe a duty to eliminate the inherent substantially intertwined with the claims shock absorption system, that it failed to risk of the sport). against the league, it could also be forced to warn players that its helmets would not Yet, despite this pleading hurdle, and arbitrate. See Wolf v. Rawlings Sporting Goods protect against long-term head injuries despite the fact that the claims against the Co., Inc. 2010 U.S. Dist. LEXIS 116294 (2010) despite the fact that Riddell knew of these league have garnered more media attention, (the plaintiff baseball player was required to risks as early as 1928 and that the defective precedent suggests that the Riddell claims arbitrate a claim against a manufacturer helmet design caused the injuries suffered by may actually provide the plaintiffs with a because issues were substantially intertwined the plaintiffs. favorable chance of recovery. Riddell has with a contractually arbitrable claim). Given the nature of product-liability claims been unsuccessful in defending against The case against the NFL and Riddell is in the sports context, the plaintiffs similar claims in the past. In Rodriguez v. still in its infancy, but it will be interesting to undoubtedly face an arduous task in Riddell Sports, Inc. , the company was sued see if discovery reveals what knowledge the imputing liability to Riddell for their injuries. after a high school football player was left in NFL and Riddell had with regard to the level If the factual allegations hold true, however, a vegetative state from injuries suffered of protection the subject helmets and these claims may prove to be more than just while making a seemingly routine tackle. 242 component parts had against concussions a minor inconvenience for the helmet maker F.3d 567 (5th Cir. 2001). The claim was based and if that knowledge could rise to the level given that Riddell helmets are manufactured upon the defective nature of the foam used in of civil liability despite the inherent risks for all levels of competition from Pop Warner the helmet liner. A jury held the undertaken by professional football players to professional. It is often difficult to prevail manufacturer and helmet refurbisher strictly when they strap on the helmets and take on the merits of sports-related, product- liable and, while the case was remanded as to the field.