Plaintiff Fires Airball Against Nike in Design Fault Case | Faegre Drinker Biddle & Reath LLP


In the wake of March Madness, it’s only fitting to call attention to an op-ed piece laced with pithy basketball puns. In Nachimovsky c. Nike, Inc. et al., 2022 WL 943421 (EDNY Mar 29, 2022), Plaintiff injured his knee during a recreational basketball game. Blaming the injury on his new sneakers, he called fault and sued for negligence and product liability – specifically a design flaw – against Nike, which designed and manufactured the sneakers, and Shoe Fitters, which sold the sneakers.

To support his claims, the plaintiff submitted two one-page letters from a podiatrist who concluded that the athletic shoes were defective and were a “major contributing factor” to the 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 702 evidence, arguing that they were unreliable and that he did not was not qualified to offer them.

As for qualifications, the plaintiff replied 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 trainers.” But the court found the expert unqualified because (1) the plaintiff did not submit a curriculum vitae or other documentation substantiating the podiatrist’s claimed qualifications, and (2) the podiatrist’s limited experience designing high-end dress shoes and an expensive pair of sneakers did not qualify him or her to comment on the design of the basketball sneakers in question.

The court also determined that the podiatrist’s methodology was unreliable. 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 “excessively narrow” arch of the sneakers offered insufficient support to the applicant’s foot. But the claimant provided no documentation to support this “technical method,” nor was the podiatrist able to demonstrate that this methodology was generally accepted, peer-reviewed, or accurate. to determine if a shoe was faulty. The podiatrist “simply presents[ed] its findings without any supporting factual basis.

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

While it’s no surprise that plaintiff’s shoddy offense couldn’t yield a victory, we’d be remiss not to mention the court’s stern rebuke to plaintiff’s podiatrist, whom he called a partisan , sacrificing objectivity for the need to win. We leave you with an excerpt which the court borrowed from Lord MacMillan, stating that a scientific expert “should never accept a warrant to defend in evidence a particular point of view simply because that is the point of view which is in the interest of the party which retained it”. To keep. To do so is to prostitute science and to practice fraud in the administration of justice.

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