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Court Allows Injured Baseball Player to Use Expert Witness Testimony

Court Allows Injured Baseball Player to Use Expert Witness Testimony About Future Prospects to Prove His Loss of Future Earnings

In a Michigan case, Ken Felder, a baseball player drafted by the Milwaukee Brewers in 1992, suffered an elbow injury that required surgery, forcing him to miss the 1997 season. During his physical rehabilitation with a company called Physiotherapy, Mr. Felder was asked to throw baseballs in a cage, meant to help rehabilitate the arms of pitchers.  While doing this in 1998, a ball Mr. Felder threw in the cage hit a concrete lip, causing the ball to ricochet back and hit him in the left eye. This caused an orbital fracture, retinal damage and a ruptured cornea.

Mr. Felder sued Physiotherapy and the case proceeded to trial. The jury awarded total damages in the amount of $8 million.  The jury also found Mr. Felder to be 25 percent at fault, reducing the verdict by 25 percent. The case was retried, and the second jury assigned him 30 percent fault, resulting in a verdict in the amount of $7 million less his percentage of fault.

The company appealed based on their argument that the trial court had allowed Mr. Felder to call an expert witness to testify about the ball player’s potential future income and contracts. Physiotherapy argued this was not appropriate. The appellate court ruled against Physiotherapy, and in its ruling found that the use of an expert to testify about potential future losses of earnings capacity was not inappropriate and that juries must consider what they feel is reasonable under the individual facts of a particular case.

Expert Witnesses and Loss of Earnings Capacity in Arizona

In Arizona, attorneys may use expert witnesses to testify about the future loss of an injured plaintiff’s earnings capacity caused by their injury. This is separate from lost income that has already been lost. Under Mandelbaum v. Knutson, 462 P.2d 841 (Ariz. 1969), a diminution of capacity may be shown even for people who were not employed at the time of their accidents, if they are able to show a diminished capacity to work was caused by their injuries from a negligent act. A plaintiff’s attorney may thus hire an expert to testify in this regard for their client’s trial.

Comparative Negligence in Arizona

Also important is a consideration of the comparative negligence laws in Arizona, which may be found at A.R.S. § 12-2501 et seq. In Arizona, a defendant will only be responsible for the amount of fault allocated to them. If there is more than one defendant, each holding a degree of fault, then each one will only be responsible for paying the percentage the jury assigns to them individually. If a plaintiff is found to be partially at fault, their award will be reduced by their own fault percentage.

People who are injured in accidents caused by another person’s negligent or wrongful conduct often need the help of a personal injury lawyer. If you have been injured, call Hirsch & Lyon Accident Law at (602) 254-2701 or click on “Schedule a Free Consultation” to schedule your initial, free consultation today.


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