Plaintiff's $1.6 Million Product Liability Jury Verdict Tossed Because She Had Wrong Expert at Trial

Case: Delgado v. Markwort Sporting Goods

Court: Appellate Term, Second Department, 2nd, 11th & 13th Judicial Districts

Date: May 22, 2013

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident attorney)

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Facts: This interesting accident case took a long time to get to this appeals court. Basically, plaintiff lost because she had the wrong expert witness at trial.

While playing flag football in 1994 -- a game where the players wear flags on belts that get pulled off the ball carrier, rather than tackling the ball carrier. In this case, the belt was held on by velcro.

During a game, this plaintiff caught her finger in the ring securing her opponent's flag to his belt. When that other player tried to shake her off, her finger stayed caught in the ring and got mangled. She sued the manufacturer and distributer of the belt on a theory of defective product or products liability.

There were other belts available where the entire belt would pull off, avoiding trapping a player's finger. This accident victim's claim was that those other belts were of a safer design.

At jury trial she was awarded $1.6 Million Dollars, based on her theory that the belt ring was improperly designed. The defense asked the judge to set side the jury's verdict, arguing that plaintiff hadn't really shown that there was a design defect in the belt and ring and the judge agreed. Plaintiff brought this appeal.

Held: Accident victim had to prove that the flag that injured her presented a "a substantial likelihood of harm." She loses because she could not prove this. Specifically, her expert witness works in sports at a college. While he testified that the pull-off belts were a safer design, he had never seen anyone's fnger injured before and in most of the flag football gmes he observed the players used the pull-off belt design.

Significantly, plaintiff's expert brought no science to the court. He had no design experience. It also seems that he had no engineering expertise. He was just a guy from some college athletic department. No statistic or scientific study or experimenting was involved.

So while plaintiff's lawyers tried hard in this case -- finding a sports expert to testify at trial -- they just found the wrong expert. And it is possible that there was no "right" expert anywhere but who knows, someone had to design of flag football equipment.

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