Goodbye to metal bats?

by Walter Olson on August 24, 2012

The family of a New Jersey boy severely injured by a line drive has reached a $14.5 million settlement with the maker of the metal baseball bat and other defendants that include Little League and a sporting goods retailer. Plaintiff’s lawyers have argued that metal bats raise the risk of injury on the diamond by imparting too much force to the ball. [New York Post, Point of Law (CPSC failed to find metal bats any riskier than wood), earlier here, etc.]

{ 32 comments }

1 nevins 08.24.12 at 8:07 am

He was struck in the chest and suffered cardiac arrest (comodio cordis) from the thump briefly altering the electrical activity of the heart. This condition is more common in children and adolescents due to the thinner and less muscular chest wall.

If being struck by a ball is an inherent risk of the game, and the pitcher is particularly at risk due to his proximity to the batter, combined with his off balance stance following the throw, then the pitcher needs protective gear.

A thrown ball can do the same. to an unprotected child. So can a ball batted from a wood bat. Blaming aluminum won’t change the risk until the machismo attitude of not needing protective gear is overcome.

2 Jamie R 08.24.12 at 9:00 am

Is there a really a machismo attitude of not needing protective gear in baseball? Everyone has a heavily padded glove and a cup. The catcher is covered head to toe. I think the bigger issue is that the diminished mobility a pitcher would suffer from wearing chest armor probably outweighs the slight risk of getting hit.

3 Frank 08.24.12 at 9:33 am

“diminished mobility a pitcher would suffer from wearing chest armor probably outweighs the slight risk of getting hit.”

I think i5t is the diminished mobility that argues against padding, but I have to disagree that the risk is “slight”.

Any who watch baseball have seen plenty of pitfchers hit by batted balls and and several injured in some way by the same.

Heck, with only a few games as a pitcher in my ‘career’ in sandlot softball, I have been hit and injured (albeit only temporarily) by a batted ball.

4 DEM 08.24.12 at 12:04 pm

And wooden bats often break and splinter on contact with the ball, sending sharp shards of wood through the infield. Only a matter of time before that hits a kid in the eye. Then I suppose the lawsuit will claimthat if only we had used metal bats, this never would have happened.

5 Mark Biggar 08.24.12 at 12:45 pm

If being a pitcher is so dangerous why not go all out and mandate they ALL be replaced by pitching machines? :-)

6 A A Gruntpuddock 08.24.12 at 12:51 pm

According to this website, death is much more likely if the blow happens at a particular point during the electrical activity of the heart, which is probably why it is a relatively rare event.

Apparently the blow is most effective at 40mph, lower and higher speeds being less likely to cause death.

Surely, on that basis, the bat supplier should have been sued on the basis that the ball was too slow!

Seems to me that this was an unfortunate accident (which could have been averted by the use of protective padding) and not connected to the material of the bat.

Perhaps the batter should have been sued for getting the speed of the ball wrong? Makes just as much sense as suing the bat supplier.

http://hogday-afternoon.blogspot.co.uk/2012/08/motorcycle-theft-made-easy.html

7 VMS 08.24.12 at 3:16 pm

From the article: “Little League reached an agreement with the major manufacturers in the early 1990s to limit metal bats’ performance to that of the best wooden bats. Little League said in 2008 that injuries to its pitchers fell from 145 a year before the accord was reached to the current level of about 20 to 30 annually.

The organization’s website lists scores of metal-barreled bat models that remain approved for use in Little League play.”

The pitcher is not a stationary object. The pitcher has a certain reaction time to a batted ball, and if the ball batted right at him leaves the bat at a slower speed, then the pitcher can get the glove positioned to catch or deflect the ball.

Personally, I see the Little League 45 foot pitching distance too close for comfort when we are dealing with milliseconds making the difference between no injury and serious injury or death. I would move the distance out to 60′ even if it results in many more walks and hits.

Finally, I see no merit to the lawsuit. The bat used was one of the “softened” aluminum bats that are approved for Little League play. Playing baseball is not risk free, and it would seem that assumption of risk principles should have goverened this case.

8 D 08.24.12 at 7:34 pm

VMS, I agree in general, and the bottom line is assumption of risk. Now, to critique your recommendation with numbers – the distance from the front of the pitching rubber to the back point of the plate is 44′ (age 9-10), 48′ (11-12, this boy’s age), 54′ (13-14), 60.5′ (high school and above). As a coach, I can testify that half of the 9-10 year olds can’t even reach the plate at 44′. At 11-12, the bottom third of the skill pool drop out. Some pitchers are quite fast, many others are still struggling. Etc as they age.
40 mph = 58.68 fps, so 48′ ~ 0.818 sec. and 60′ ~ 1.022 sec. which is significant.
On the other hand, how many arms will be ruined because the boys are trying to throw farther? We already have issues with that as it is. Every one of my assistant coaches ended their careers because of arm injuries. I submit that moving the mound back would cause more damage than it would prevent (or minimize).
The only truly safe solution is to outlaw sports. And sitting on the couch. And…

9 Bumper 08.24.12 at 8:06 pm

My first experience with an event like this was over 40 years ago when a Little Leaguer took a fly ball in the chest instead of his glove at the outfield fence. Sadly he could not be resuscitated. No metal bats, no short distance to the mound. No excuses. His time was up. Someday we have to learn to accept it.

10 David Smith 08.24.12 at 9:47 pm

If we settle for mere reality, the lawyers will starve.

11 Ron Miller 08.25.12 at 3:48 pm

@Bumper: “No excuses. His time was up.” This is cool. Let’s dismiss all human deaths this way. I bet you would be just as philosophical while dying during an accident.

I’ve said many times I really don’t know enough about the science and the literature to have an opinion. But the notion that wood bats have risk therefore it is silly to replace one for the other is, itself, silly. The question is one of relative risk.

D, I also don’t think there is ever a concern with boys trying to throw harder. Have you ever pitched a baseball? You are trying to throw it is hard as you can, regardless of the distance involved.

12 Bumper 08.25.12 at 10:54 pm

Ron, the only thing certain about life is death. Any body tells you otherwise is probably just someone trying to benefit from this fact. I’ve seen people die who had no discernible reason to do so and others live who by any medical text shouldn’t have. You eventually chalk it to the randomness of nature or the will of God.

As for the case at hand, this was pure and simple an accident. Even the CPSC can’t find fault with the bat. So why is this family entitled to 14 million dollars of others peoples money when by all accounts they did nothing wrong. What if the kids had been playing with wooden bats and the outcome was the same, what would have been the excuse to sue then? I feel sorry for this child and his family, but unless someone has something heretofore unmentioned this event was an accident.

And since you seem so concerned, as for me, years ago when I was in a profession where my presence was not truly appreciated by the other side, I made my peace with God. I’m not looking forward to dying, but I don’t fear it either. Philosophy has nothing to do with death.

13 Ron Miller 08.26.12 at 9:08 am

The only thing certain about life is death? Bumper, give me list of people who publicly or privately have disagreed with this.

No, all death is not random. Take the 9/11 tragedy. Did you say, “Gee, their time was up?”

This case was a settlement. The defendants made a choice. The case settled because the parties believed that American jurors might be take exception to what they did. Random people like me and you can be on the jury.

As for your last paragraph, I applaud anyone who moves closer to God. I say that with all sincerity. As for the rest of it, I really don’t understand what you are trying to say.

14 DEM 08.26.12 at 9:22 am

Ron, your explanation as to why the case settled is certainly one way to look at it. Another is that the defendants decided that months, if not years, of litigation, potentially millions of dollars in defense costs, then the crapshoot of a trial against a highly sympathetic plaintiff was a bad business risk to take. Settlements often have almost nothing to do with the merits and everything to do with eliminating the nuisance of litigation and the dice roll of a jury trial.

I do agree with your earlier post about relative risk, but (a) evidence cited above suggests these metal bats have been engineered to be no more dangerous than wood, (b) baseball is a dangerous game and everyone knows that. It seems to me that this plaintiff accepted the realtive risk involved.

15 Ron Miller 08.26.12 at 8:50 pm

DEM, defense costs are not a big consideration in these things. I see it everyday. Trust me, defense costs just don’t mean a whole lot.

On some level, when you talk about risk and sympathetic plaintiffs, I agree with. But there always seems to be an implied “and that is a bad thing” when I hear that speech. If that is in yours – and, admittedly, I might just be the man with the hammer who sees everything as a nail on this one – what do you really think? The jury system we have had for hundreds of years is not fair? We can’t trust regular Americans to make these call in the jury box? If we don’t trust regular Americans in the jury pool, why on earth should we trust them in the voting booth?

Again, I’m speaking about relative risk generally. I don’t pretend to be an expert on the facts here and have no opinion on the merits of the case.

16 D 08.26.12 at 10:26 pm

Pardon me, Ron, but you are trolling now. You took Bumper’s statement out of context twice.
I am confident that I have a lot more experience with pitching than you do. There are concepts in pitching called accuracy and tactics.
Finally, it appears to me that Walter’s excellent website offers a few examples of the cost of litigation defense being considered heavily. Indeed, we see it every day.

17 Melvin H. 08.27.12 at 1:59 am

Especially as in this case when the plaintiff/victim is a child….”It’s for the children!” overrides almost everything logical or common sense.

18 JohnC 08.27.12 at 8:33 am

“If we don’t trust regular Americans in the jury pool, why on earth should we trust them in the voting booth?”

There’s a difference: jurors decide facts (“X is lying”; “It is probable that ‘Drug Z’ and only ‘Drug Z’ killed the Plaintiff.”), not the law (that’s what voters do). The ability to correctly estimate probabilities or otherwise overcome bias (which jurors may not be able to do in all cases) is necessary to do the former. Voting, however, is inherently a subjective exercise. 

More importantly, with voting, we trust the alternatives to an irrational electorate even less.

19 Ron Miller 08.27.12 at 10:26 am

“There are concepts in pitching called accuracy and tactics.” Of course, a pitcher has never phrased what they are saying this way. But that’s okay, D. So you think pitchers will throw harder if the plate is further away? Seriously? How hard are they throwing now?

Oh, and don’t explain how his statement was taken out of context. Twice. Just throw that out there.

John C., I really don’t think you are drawing meaningful distinctions between the two. The reality is that picking the right candidate to lead your country, state, or town is a lot harder than sitting on a jury. Moreover, jury questions are also subjective: reasonable people can see a case two different ways.

Melvin, I don’t think based on my quick look above that anyone said “It’s for the children.” You might of made that up a little. But, that’s okay, if you want someone to own it, I will. Of course the law provides additional consideration for children as it well should. Does not mean we should override logic or common sense? Of course not.

20 DEM 08.27.12 at 10:52 am

Ron aren’t you a plaintiffs’ lawyer? So how would you know that defense costs don’t mean a whole lot? I am a defense lawyer (though not personal injury) and in my experience defense costs play a huge role in all settlement discussions. They are always part of the financial calculus and settlement is a financial decision.

My point about the jury system is simply that it is very unpredictable, and a defendant who “wins” a jury trial really wins nothing more than the right to go on with his/her life, assuming the verdict is not reversed on appeal. That weighs the cost/benefit calculus heavily in favor of settlement in many cases, making it very difficult to conclude that settlements are reached due to the merits of a plaintiff’s case.

21 Ron Miller 08.27.12 at 12:04 pm

DEM, I defended pharmaceutical companies for years. Humbly, I think I have a pretty good sense of how insurance companies and large companies view defense costs in tort cases. To say they don’t care would be hyperbole but it is not a big consideration. This is particularly true in a case like this where the instant case takes a back seat to the precedent that is being set.

Sure, a jury is hard to predict. But people say it like it is a bad thing. Criminal defendants face the same thing: plead or take the case to verdict. It has been the nature of the beast since long before Paul Revere took that ride.

22 aaaa 08.28.12 at 5:30 am

“Sure, a jury is hard to predict. But people say it like it is a bad thing. ”

It is a bad thing. Good law system allows you to guess in advance whether particular actions is “good” or “bad”. Am I going to pay for it or is it OK?

Is this toy I’m manufacturing safe enough to sell in this country? The manufacturer has no idea and there is no way for him to know.

If I can not use law to guide my decisions, then the law is just arbitrary punishment generator for whoever is unlucky that day.

Even settlement in criminal should have some relation to relative merits of the case. How is it good if innocent people/companies that did nothing wrong settle with argument “can not trust jury to get it right”?

23 Ron Miller 08.28.12 at 9:44 am

Okay, aaaa, the jury system is bad. It is a shame we did not have you around when we threw the 7th Amendment together.

If a settlement has not relationship to the merits of the case, then the parties are idiots. I’m sorry, there is not much I can do about that.

Look, the jury system is not perfect. You can argue that is is awful. But this awful is the best justice system in the history of the world.

So many of you follow the Justice Scalia interpretation of the Constitution as long as they are applied exclusively to the provisions you like.

You say “cannot trust the jury to get it right.” Okay, explain to me why you believe the average American is so stupid that he cannot make decisions as a jury. Why are they so dumb and how did you get so much smarter than the rest of us?

24 Jeff M 08.28.12 at 4:07 pm

Ron, nobody said that members of juries were dumb and they were smarter. What was said was that they cannot be depended upon to come up with the right decision. Those are two different things.

Surely, you are not saying that emotional issues, which in my opinion should not be deciding factors, are not considered by jurors. Certainly, Stella Liebeck’s case was swayed by jurors who thought that McDonald’s defense team was “arrogant” and felt sorry for Ms. Liebeck. John Edwards won numerous cases by closing his arguments on CP cases by pretending to be the injured defendant. He didn’t do this because jurors were to consider just the facts.

25 Ron Miller 08.28.12 at 4:36 pm

All humans consider emotional factors, not just jurors. Humans do it as judges, when the vote, when the hire employees and everything else. If a jury can’t be trusted, who exactly can be trusted? Can you?

Moreover, it is a “they are so dumb” argument. Jurors are so dumb they can’t get past their emotions to make the proper decisions? It is so paternalistic.

If American can’t work in a group and make the correct decisions, bad jury verdicts are the least of our worries.

You are stating as fact that John Edwards won cases based solely on emotion. Set for the facts you rely upon to support this contention. Did you read the transcripts? Did through the medical journals to read the literature? Or are you parroting back what someone else said?

(Also, when did John Edwards pretend to be the injured defendant? I’m not saying it didn’t happen but I’ve never heard of it.)

Jeff, in the bigger picture, I agree that juries do dumb things. Human do so jurors do. Not for nothing, so do judges. So even if you have Stella and John Edwards wrong, there are other cases out there you don’t know about that support your premise. But there has never been a better system in the history of the world to decide criminal guilt or innocence or liability in a civil case.

26 gitarcarver 08.28.12 at 7:44 pm

Ron,

The fact that there is not a better system doesn’t mean the system can’t be improved or doesn’t deserve criticism. The fact that it is the best system doesn’t mean that it isn’t losing its lead over the number 2 system.

That is the failure in your thinking. Of course jurors are people and people have emotions. But cases aren’t supposed to be tried on emotions. They are supposed to be tried on facts.

As an employer, how am I to know what I am accountable for when a jury is swayed by emotion? If I make a product that satisfies every standard (as in this case with the bat) and some one gets hurt, what have I done wrong? How do I know where the legal “bright line” is when people play on the emotions of a jury for a sympathetic plaintiff?

If you read the comments in the article on this case, you can see people’s “thinking.” Constantly you read comments such as “the kid is going to need a lot of medical care so let the company pay for it.” While there are some comments asking “what did the company do wrong?” And “aren’t there things such as accidents anymore?” there are a large number of people simply looking at the pockets of the defendants.

The thinking is only “who has the deep pockets?” and not the law. Does it happen all the time? No. But the difference between you and I (and a lot of other people in this thread) is that you seem happy with the status quo while others want to address the problems in the system.

Oh, and the John Edwards trial?

http://www.nytimes.com/2004/01/31/politics/campaign/31EDWA.html?ei=5007&en=4fb97ac07a96f186&ex=1390885200&partner=USERLAND&pagewanted=print&position=

In 1985, a 31-year-old North Carolina lawyer named John Edwards stood before a jury and channeled the words of an unborn baby girl.

Referring to an hour-by-hour record of a fetal heartbeat monitor, Mr. Edwards told the jury: ”She said at 3, ‘I’m fine.’ She said at 4, ‘I’m having a little trouble, but I’m doing O.K.’ Five, she said, ‘I’m having problems.’ At 5:30, she said, ‘I need out.’ ”

But the obstetrician, he argued in an artful blend of science and passion, failed to heed the call. By waiting 90 more minutes to perform a breech delivery, rather than immediately performing a Caesarean section, Mr. Edwards said, the doctor permanently damaged the girl’s brain.

”She speaks to you through me,” the lawyer went on in his closing argument. ”And I have to tell you right now — I didn’t plan to talk about this — right now I feel her. I feel her presence. She’s inside me, and she’s talking to you.”

This trial was the talk of the nation when Edwards was running for Vice President. How you missed this is beyond me.

27 Melvin H. 08.28.12 at 10:39 pm

Ron, I never said that YOU said “it’s for the children”; my point was that, much like making law, sometimes the jury is far more sympathetic when the plaintiff is an injured child–and it is hard to resist.

28 Max Kennerly 08.28.12 at 11:01 pm

John Edwards “won” numerous CP cases because he developed a strong reputation for trying them and so had great CP cases referred to him. Sometimes in closing arguments he reiterated the fetal distress timeline by way of a first-person description from the standpoint of the baby’s oxygen needs; nobody on the jury actually though that, suddenly, a newborn baby was in the courtroom explaining to them the physiology of acidosis.

I’m surprised by the settlement given some of the details above; it must have been a strong case on liability. Nobody hands over $14.5 million without a fight; cost of trial would have been a tiny fraction of that, and the odds of a jury verdict at or above that — for what was essentially an instantaneous death — are in general awfully low. Deceased teenagers routinely bring in awards of $5 million or below.

Some of the comments here made me LOL: Ron Miller wrote a tome of book about insurance company settlements. He knows a couple things about the process.

29 aaaa 08.30.12 at 2:26 am

@Ron Miller “But this awful is the best justice system in the history of the world. ”

Can you prove that statement? More specifically, why is it better then say French or German systems? If nothing else, they are cheaper and citizens in those countries trusts them.

On related note, why is US system never used as an example of the best system outside of US? Could it be that US system is not the best in the history of word?

On juries: It is not them being stupid. It is them not being able to absorb a lot of new facts and knowledge within short time. It is them not having experience with such decisions. It is them not having to explain their decisions and them not having their decisions reviewed.

Appellate court in other countries can review also evidence and facts. They are able to say “judge got it wrong”. There is very low chance for this to happen with jury.

Judges go through long learning process and they have to understand the law, fact finding and evidence evaluations prior the court. None of it is new for them when the court starts. Plus, selection process removes stupid or overly emotional people from the pool of judges (if done right).

It is more about juries not having supernatural genius learning and understanding abilities.

30 Jeff M 08.30.12 at 2:26 pm

John Edwards may have won a ton of CP cases. But he won them based on the junk science testimony that CP could be caused by a botched deliveries and probably in no small part to his slick-tongued closing statements.

31 Ron Miller 08.30.12 at 2:43 pm

I think that is all nonsense, aaaa. But I’ll play along. We will eliminate juries. (I can’t figure out why we are still letting people vote, then, but let’s just move on.)

What’s the plan?

32 aaaa 08.31.12 at 3:38 am

@Ron Miller Adopt more reliable system?

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