A manufacturer and retailer of athletic cups recently failed in their initial defense against claims that they designed and distributed a defective product, resulting in a serious injury to an athlete that was wearing the product in question.

In a case brought by plaintiff Hunter J. Patenaude (the "Plaintiff"), a South Carolina federal judge allowed all but one of the Plaintiff's claims to move forward in a suit against sporting goods chain Dick's Sporting Goods, Inc. and athletic cup manufacturer Shock Doctor, Inc. (collectively, the "Defendants") in connection with an injury that Plaintiff sustained during a lacrosse game (Patenaude v. Dick's Sporting Goods, Inc., No. 18-3151 (D.S.C. Oct. 18, 2019)).

The facts of the case are not in controversy. Plaintiff wore an athletic cup made by Shock Doctor, Inc. and purchased at Dick's Sporting Goods during a high school lacrosse game. While no athlete ever hopes to test the strength of the protective accessory he or she is wearing, Plaintiff, caught up in the zeal of the game, attempted to block an opponent's shot, but the lacrosse ball rocketed into his groin area and hit his cup dead-on. Following the impact, the Plaintiff visited a doctor, who diagnosed Plaintiff with a fractured left testicle, needing surgical removal.

The Plaintiff, feeling aggrieved, fired a shot back at the Defendants and brought products liability claims for strict liability, negligence and breach of warranty.

The Defendants, hoping to block the Plaintiff's claims with some clever stick work, filed a motion for summary judgment in the hopes that the judge would knock down the allegations.

Failing to see any evidence that the Plaintiff's injury was caused by a manufacturing defect in the athletic cup, the court granted summary judgement for the Defendants on the claim of manufacturing defect. The Defendants, however, were not so lucky on the other claims.

The court found that the next claim for design defect was sufficiently stated to move onto the next phase. According to the court, Plaintiff's claims essentially rested on a design defect, namely that the cup was not designed to withstand a reasonably foreseeable impact during a sporting event. An expert witness for the Plaintiff opined that the particular Shock Doctor athletic cup "exhibit[ed] extreme deformation upon direct impact" from a similarly sized ball travelling at speeds to be expected in a lacrosse game, and also showed that other cups subject to the same testing would have prevented the same injury. Thus, the court noted that Plaintiff's presentation of alternate designs from other manufacturers that might have adequately protected the Plaintiff from the lacrosse shot created a dispute of material fact that the Sport Doctor cup at issue was defective.

Next, the judge permitted the claim of an implied warranty of fitness for a particular purpose to proceed, over objections from the Defendants that the Plaintiff purchased the athletic cup on his own and without assistance of any Dick's Sporting Goods representative. Bumping Defendants out of the crease, the court found that because the purpose of the athletic cup was to provide protection to the genitals and it was foreseeable for it to be used during a sporting event, the "ordinary purpose of the product is also the particular purpose for which it was purchased." Thus, the court held that Plaintiff's implied warranty claims could proceed. Lastly, the judge swatted down the Defendants' claim that the Plaintiff assumed the risk of injury by playing lacrosse. The judge quickly pointed out that "assumption of risk is not an absolute bar to damages where plaintiff's degree of fault is not greater than the negligence of a defendant" and ruled that to the extent the assumption of risk doctrine could reduce damages is an issue for the jury.

Since the Defendants were unable to level the playing field by striking down some of the Plaintiff's claims early in the suit, it appears they would have needed to play catch-up in an attempt to minimize any liability they may have in this products liability suit. Not surprisingly, the parties settled the matter on December 17, 2019.

A ski lift ticket validation manufacturer, Mountain Pass Systems, LLC ("Mountain Pass" or "Plaintiff"), recently had its antitrust lawsuit put on ice by the Second Circuit, which affirmed a ruling by the U.S. District Court for the Eastern District of New York that Mountain Pass failed to successfully state a claim under the Sherman Act (Charych v. Siriusware, Inc., No. 18-3191 (2d Cir. Nov. 4, 2019) (summary order)).

Mountain Pass had alleged that various software and related providers used their market power and acted unlawfully in connection with the distribution and marketing of automated ski resort validation systems. The litigation was akin to a ski cross where a host of skiers start simultaneously from an initial jump and navigate a difficult freestyle course, only instead of skiers, the competitors/defendants were eight ski resort management software and RFID gate scanning providers trying to steer clear of antitrust claims brought by a competing gate scanning company. Despite some nifty aerials in fashioning its claims, the Plaintiff's complaint was quickly dismissed by the appeals court, leaving it at the back of the lift line.

Scanning technology has become increasingly popular at certain larger ski resorts. The scanners use Radio Frequency Identification ("RFID") technology to scan the unique barcode on each lift ticket as the skier or rider passes through a gate at the bottom of the chairlift (essentially, an EZ Pass for skiers), eliminating the need for resort employees to manually check each skier for a valid lift ticket.

The use of such RFID technology requires both management software and a RFID gate scanning product, which the Plaintiff Mountain Pass produces.

The numerous defendants included Siriusware, Inc. ("Siriuisware"), Accesso Technology Group, PLC (Siriusware's parent company) ("Accesso"), Axess North America, LLC ("Axess"), Axess International, AG ("Axess AG"), Active Network, LLC ("Active"), Vista Equity Partners, LLC (Active's parent company) ("Vista"), Skidata Inc. ("Skidata"), and Skidata AG ("Skidata AG") (collectively, the "Defendants"). Siriusware, Accesso, Active and Vista are management software providers, with Siriusware and Active, according to the lower court, representing 80% of the market. Axess and Skidata are RFID gate scanning product providers, like Mountain Pass. Many of the Defendants' products and services are compatible and some of the companies have common ownership –– according to the court, for example, ski resorts that use Skidata's gate products also use Active's management software (the court noted Skidata has an ownership interest in Active) and ski resorts that use Axess's gate products use Siriusware's management software.

Mountain Pass claimed that its gate scanning product, which incorporates ultra-high frequency (UHF) technology, was less expensive and more accurate than that of any of the Defendants' gate scanners. However, Mountain Pass's product was incompatible with Active and Siriusware's software, which represents a large majority of the ticketing management software market. Thus, to integrate Mountain Pass's product, both companies would have had to make their systems compatible with Mountain Pass' gate scanning product or else provide interface information to allow Mountain Pass to do such an integration. The complaint alleges that various resorts declined to carry the Mountain Pass RFID product because its software licensors, including Active and Siriusware, informed the ski resorts that any updates to conform with Mountain Pass' product would be costly. Mountain Pass viewed Siriusware's and Active's alleged failure to create and offer a software interface that would allow Mountain Pass's product to function at resorts running their software as a restraint of trade and an unlawful agreement to monopolize. In 2017, Mountain Pass filed two antitrust claims under the Sherman Act. The Defendants subsequently filed a motion to dismiss.

In July 2018, Mountain Pass' case encountered big moguls when a magistrate issued a Report, recommending that the Plaintiffs' claims be dismissed; the district court adopted the report in September 2018 and dismissed the case, prompting Mountain Pass to appeal. In a non-precedential decision, the Second Circuit upheld the decision. The Second Circuit affirmed the district court's finding that the Defendants' conduct was not anticompetitive behavior just because they refused to pay to integrate their systems with Mountain Pass. Here, as the court noted, the allegations did not give rise to a conclusion that Defendants refused to provide the sought-after interface; rather, the court found that Defendants were simply unwilling to bear the costs of developing an interface without reimbursement. In all, the appeals court held that "Defendants were under no obligation to develop an interface that was compatible with Plaintiffs' product," and that there were no allegations that "Defendants 

voluntarily withheld a service they were already providing, or could easily have provided, absent substantial time and cost." The Second Circuit also noted that the mere fact that an anticompetitive agreement was "implied" in Mountain Pass' complaint did not show any anticompetitive intent or rationale ("[W]hile Active and Siriusware indisputably recommended the products of other defendants to ski resorts, there is no allegation that either company ever refused to sell to a ski resort unless it also purchased the product of another defendant").

Ultimately, both the lower court and appeals court found that the Defendants' agreements with one another represented rational business decisions and not, as Mountain Pass claimed, anticompetitive conduct. As a consequence, it appears that Mountain Pass will need to find another way down the mountain in order to find a way to integrate with compatible software.