The defense bar scored a run—so to speak—in a Tenth Circuit opinion released this Monday that affirmed judgment notwithstanding a jury’s nearly $1 million verdict against the manufacturer of Louisville Slugger baseball bats. The case of Yeaman v. Hillerich & Bradsby Co., No. 12-6254, 2014 U.S. App. LEXIS 12257 (June 30, 2014) arose from serious facial injuries sustained by a high-school pitcher after a batter using a Louisville Slugger “Exogrid” bat—a high-tech aluminum bat designed for “maximum trampoline effect” or “rebound”—hit a line drive straight at the mound at what the plaintiffs’ expert estimated was a blistering 100 to 105 m.p.h. The ball hit plaintiff Dillon Yeaman square in the face, fracturing his frontal bones, frontal sinuses, nasal bones, and the orbital walls of both eyes.
Dillon and his parents brought claims for design defect and failure to warn, essentially arguing that the Exogrid bat was simply too powerful for use by teenagers. The jury agreed and awarded them damages of nearly $1 million. The victory was short-lived, however, as the Western District of Oklahoma swiftly threw out the jury’s verdict by granting the defendant’s motion for judgment as a matter of law, finding that the plaintiffs had failed to present sufficient evidence that the bat was unreasonably dangerous or possessed some dangerous characteristic triggering a duty to warn. The Tenth Circuit affirmed.
The Tenth Circuit first considered a novel theory raised by the defendant that the bat could not be deemed defective for performing its intended function—i.e., propelling a ball. The court seemed to find superficial appeal in the argument and even led off its opinion with the hypothetical: “Should a manufacturer be required to pay damages because a product performs its intended function too well?” The court, however, found a lack of support under Oklahoma law for such a bright-line rule. Although holding out the possibility that such a rule might apply in future cases, the court instead decided that the district court’s judgment could be affirmed under the more malleable “consumer expectations test”—i.e., was the bat dangerous to an extent beyond that which would be contemplated by the ordinary consumer?
In finding the record insufficient to support a finding that the bat was defective under the consumer expectations test, the court pointed to the plaintiffs’ failure to offer any objective evidence quantifying the difference in ball-propulsion speeds between a supposedly acceptable bat and the Exogrid bat. Rather than offer any comparison or laboratory testing on this point, the plaintiffs had offered a number of lay and expert witnesses who testified that a ball could generally be hit further and faster with a bat such as the Exogrid than with a so-called “ordinary” bat—testimony that the court faulted as failing to objectively measure the difference in propulsion speeds. The plaintiffs had also offered the testimony of several eye-witnesses to the accident who testified that they had never seen a ball hit as hard or as fast as the one at issue. But the court disregarded this testimony as well, finding it inconceivable that the average lay person could accurately judge the speed of a baseball traveling less than 60 feet in under one second.
Aside from purely presenting a fascinating fact pattern, the Yeaman case demonstrates the importance of vigorously challenging the failure of a plaintiff to present comparison or laboratory testing when the application of the consumer expectations test hinges on subtle differences in product performance that are not readily observable by the average lay person. The case also leaves unanswered the question of whether and under what circumstances a product may indeed perform too well.