Plaintiff Shoots an Airball Against Nike in Design Defect Case

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In the wake of March Madness, it is only appropriate to call attention to an opinion laced with pithy basketball puns. In Nachimovsky v. Nike, Inc. et al., 2022 WL 943421 (E.D.N.Y. Mar. 29, 2022), Plaintiff injured his knee during a recreational basketball game. Blaming this injury on his new sneakers, he called foul and brought claims for negligence and products liability—specifically design defect—against Nike, which designed and manufactured the sneakers, and Shoe Fitters, which sold the sneakers.

To support his claims, Plaintiff proffered two one-page letters from a podiatrist who concluded that the sneakers were defective and a “major contributing factor” to Plaintiff’s injury. Nike (and Shoe Fitters, by incorporation) responded with a full-court press, seeking to exclude the podiatrist’s opinions under Federal Rule of Evidence 702, arguing that they were not reliable and he was not qualified to offer them.

As to qualifications, Plaintiff responded that the podiatrist was board certified, with 35 years of experience, and had designed high-end men’s dress shoes and “an expensive pair of men’s sneakers.” But the court deemed the expert unqualified, because (1) Plaintiff failed to submit a curriculum vitae or any other documentation substantiating the podiatrist’s claimed qualifications, and (2) the podiatrist’s limited experience designing high-end dress shoes and one expensive pair of sneakers did not qualify him to opine on the design of the basketball sneakers at issue.

The court also determined that the podiatrist’s methodology was not reliable. Plaintiff argued that the “technical method” of testing the look, feel, wear, and twist of Plaintiff’s sneakers allowed the podiatrist to conclude that the sneakers’ “excessively narrow” arch gave insufficient support to Plaintiff’s foot. But Plaintiff provided no documentation to support this “technical method,” nor was the podiatrist able to show that this methodology was generally accepted, subject to peer review, or accurate in determining whether a shoe was defectively designed. The podiatrist “simply present[ed] his conclusions without any supporting factual basis.”

Nike and Shoe Fitters moved for summary judgment on Plaintiff’s claims, all of which required proof of causation. With evidence from his expert podiatrist excluded, Plaintiff pointed to written reports from volunteers who had tested pre-production models of the sneakers at issue. He claimed that this circumstantial evidence was enough to establish causation. The court, however, blew the whistle, reminding Plaintiff that such evidence is only acceptable where a plaintiff cannot identify a specific flaw and is able to exclude all causes for the product’s failure that are not attributable to the defendants. The court held that Plaintiff failed both of these requirements, meaning he had neither expert opinion nor circumstantial evidence to satisfy his burden to show causation. The court, therefore, granted summary judgment.

While it is no surprise that Plaintiff’s shoddy offense couldn’t bring home a win, we would be remiss not to mention the court’s stern reproach of Plaintiff’s podiatrist, whom it characterized as partisan, sacrificing objectivity for the need to win. We leave you with an excerpt the court borrowed from Lord MacMillan, asserting that a scientific expert “ought never to accept a retainer to advocate in evidence a particular view merely because it is the view which is in the interests of the party who has retained him to maintain. To do so is to prostitute science and to practice a fraud on the administration of justice.”

About the Author: Eric M. Friedman

Eric Friedman guides clients through all stages of product liability litigation, particularly working with expert witnesses to present the science behind clients' products. By leaning on his pre-law history as a biochemist, he is able to identify key arguments for and against clients and craft winning strategies for both motion practice and trial.

About the Author: Emily D. Steeb

Emily advises local, national and international product manufacturers on resolving complex disputes in and out of court at the state and federal levels. She focuses her practice on pharmaceuticals and medical devices, and she has represented manufacturers of orthopedic implants, pelvic mesh, laser therapy systems, inferior vena cava filters, and heater-cooler devices. Emily has supported these types of manufacturers in all phases of product liability litigation, from pre-suit negotiations through trial. Her experience includes strategic analysis; drafting written discovery and facilitating document production; expert witness procurement and development; taking and defending depositions of fact, expert and corporate witnesses; briefing dispositive and other pre-trial motions; oral argument; mediation; and settlement negotiations.