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Jury Verdict Upheld in Product Liability Suit by Major League Baseball Umpire

Wilson Sporting Good Company v. Edwin Hickox, et ux
Case No.: 11-CV-0445 (District of Columbia Court of Appeals, January 31, 2013)

by Eric M. Leppo, Associate
Semmes, Bowen & Semmes (

In this recently issued opinion from the District of Columbia Court of Appeals, the Court affirmed the Superior Court’s ruling that the Plaintiff’s expert’s opinion had adequate foundation and that Defendant was not entitled to an assumption of the risk jury instruction.

The Plaintiff, Edwin Hickox, a Major League Baseball umpire, was injured while working as a home-plate umpire and wearing a mask manufactured by Wilson Sporting Goods Company (“Wilson”). Mr. Hickox wore a Wilson mask while umpiring a game in Washington, D.C. Specifically, he was struck in the mask by a foul-tip. The impact of the ball caused Mr. Hickox a concussion and damage to a joint between bones in his inner ear. The Plaintiff claimed permanent hearing loss of mild to moderate severity. He and his wife filed a products liability claim against Wilson.

The mask was equipped with a newly designed throat guard that angled forward instead of extending straight down. The Plaintiffs alleged that this allowed the ball to be trapped temporarily by the throat guard instead of deflected away, and caused the ball’s energy to be concentrated at Plaintiff’s jaw. The Plaintiff argued that safer alternative masks and throat guards were available, and that Wilson failed to test the mask that it manufactured for this type of impact.

Wilson argued alternatively that it had field tested and lab tested the masks, that Mr. Hickox would have sustained the same injury if wearing another type of mask, and that “Mr. Hickox was an experienced umpire who knew that participating in sports creates the risk of injury, that no face mask can guarantee safety, and that injury is more likely without protective equipment.” Wilson Sporting Goods at *5.

At the close of trial, the jury rendered a verdict for the Hickoxes on claims of defective product, design defect, negligent design, failure to warn, and breach of implied warranty. They awarded $750,000 to Mr. Hickox and $25,000 to his wife. Wilson appealed on the basis that the testimony of Plaintiff’s expert, Dr. Igor Paul, was not supported by adequate data and lacked a scientific foundation. Wilson also argued that it was entitled to have the jury instructed on an assumption of risk defense, and that there was insufficient evidence to support the jury verdict.

The Court of Appeals found no error in the trial court’s decisions and affirmed the jury award. The Court noted that Dr. Paul based his opinions on various information including: freeze-frame and slow-motion analysis of video of the incident, a calculation of a baseball’s energy when pitched at various speeds, published results of impact testing on various helmet styles, and his own examination of the mask at issue as well as other baseball masks. The Court held that Dr. Paul’s failure to conduct his own testing was not fatal as “there is no requirement that an expert perform tests, particularly where the expert relies on published data generated by another expert in the pertinent field.” Wilson Sporting Goods at *8.

Wilson argued further that Dr. Paul did not adequately explain the reasoning behind his opinions at trial. The Court noted, however, that gaps or inconsistencies in an expert’s testimony go to the weight of the expert’s testimony, not its admissibility. As such, the Court found no error in permitting Plaintiff’s expert to testimony at trial.

The Court also determined that there was no error in the trial court’s failure to give an assumption of the risk instruction. The Court stated that an assumption of risk instruction is warranted in a design-defect case when the defendant offers evidence that the plaintiff knew about the specific alleged defect and the associated danger. Therefore, the assumption of the risk did not come from an umpire knowing a ball could strike him in the face, but rather that the mask and throat guard’s design could increase the risk of injury.

Finally, the Court determined that there was sufficient evidence presented in the case to support the jury’s finding of liability on the various product liability claims at issue.