Felder v. Physiotherapy Associates

• Decision Date: 22 May 2007
• Docket Number: No. 1 CA-CV 05-0719.,1 CA-CV 05-0719.
• Citation: 158 P.3d 877,215 Ariz. 154
• Parties: Kenneth W. FELDER, Plaintiff/Appellee, v. PHYSIOTHERAPY ASSOCIATES, Defendant/Appellant.
• Court: Arizona Court of Appeals

158 P.3d 877

215 Ariz. 154

Kenneth W. FELDER, Plaintiff/Appellee, v. PHYSIOTHERAPY ASSOCIATES, Defendant/Appellant.

No. 1 CA-CV 05-0719.

Court of Appeals of Arizona, Division 1, Department C.

May 22, 2007.

Copple, Boehm, & Murphy, P.C. By Scott E. Boehm, Phoenix, and Kelly Law Offices, By Timothy F. Kelly, Michael P. Massucci, Crown Point, Indiana, Attorneys for Plaintiff/Appellee.

Mariscal, Weeks, Mcintyre & Friedlander, P.A. By Timothy J. Thomason, Michael J. Plati, Phoenix, Attorneys for Defendant/Appellant.

OPINION

IRVINE, Presiding Judge.

¶ 1 Physiotherapy Associates appeals from the trial court's rulings, judgment, and award of damages to Appellee Kenneth Felder. We find that the trial court properly allowed the jury to determine Felder's lost earning capacity as a professional baseball player. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 In 1992, the Milwaukee Brewers drafted Felder in the first round of the Major League draft. He signed a contract to play in the Brewers' minor league system. From 1992 through 1996, Felder progressed in his career as the Brewers promoted him from the rookie league to the Class A level, AA level, and up to the AAA level.

¶ 3 In 1996, Felder injured his elbow. Although the injury affected his throwing and hitting, he was twice named Player of the Week when he played in the AAA level in New Orleans. He healed during the off-season, but tore an elbow ligament during spring training in 1997.

¶ 4 Felder had surgery to repair the ligament and recuperated for the rest of the 1997 season. The Brewers sent Felder to Physiotherapy for physical rehabilitation and paid his rehabilitation costs. Physiotherapy is a national physical rehabilitation company with a number of major and minor league baseball players among its clientele.

¶ 5 About seven-and-a-half months into his rehabilitation, Felder's elbow was improving. He passed a Brewers' physical administered at Physiotherapy in January 1998. In February 1998, shortly before the accident at issue here, the Brewers signed Felder to a salary addendum contract for the 1998 minor league season.

¶ 6 After conferring with the Brewers and Felder's surgeon, one of Physiotherapy's physical therapists, Keith Kocher, decided that it was time for Felder to begin hitting. Eventually, at Physiotherapy's Tempe location, Felder began hitting balls in the batting cage. Physiotherapy's training records did not indicate that Felder was restricted to practicing either off of tees or a pitching machine. He took batting practice at least three times a week, during each of his therapy sessions. Witnesses testified that the batting cage was not designed or maintained for batting practice. The architect who designed Physiotherapy's facility testified that the batting cage was there to allow rehabilitating pitchers to throw balls; it was not designed, intended, or safe for batting. Former Physiotherapy employee John Fierro testified that Physiotherapy had not established a maintenance schedule for the pitching mound or the batter's box. Moreover, there were no records to show that Physiotherapy had purchased dirt and maintenance supplies for the area.¹

¶ 7 On February 25, 1998 Felder arrived at Physiotherapy for his scheduled rehabilitation. He warmed up, stretched and practiced throwing. Kocher then told Felder to take some batting practice.²

¶ 8 Felder hit a ball that ricocheted off of a concrete lip in the batter's box, bounced back up at him, and struck his left eye. His eye bled. He felt nauseous, dizzy and was in pain. For the next two days, he coughed up blood.

¶ 9 Dr. Alan Gordon, Felder's ophthalmologist and retina specialist, testified that Felder sustained a fracture of the orbital bone below his eye, a rupture of his cornea, subretinal hemorrhaging, and bleeding into his sinus cavity. Irremediable retinal damage left him with a blind spot in the middle of his vision. He also suffers from blurry vision that worsens in bright light, and he has constant headaches.

¶ 10 The injury initially left Felder with 20/400 vision in his left eye, but it eventually improved to 20/40 plus. Felder has less than a 1% risk of completely losing his vision in that eye due to subretinal neovascularization, the growth of new blood vessels that can leak fluid under the retina.

¶ 11 About a week after he injured his eye, Felder reported to the Brewers' spring training camp. He failed his physical because of his eye injury and the team sent him away. He returned to the Brewers' training facility two more times. Each time, they told him to leave. The Brewers subsequently released him from his contract. Felder filed suit against Physiotherapy in August 1998.

¶ 12 At the first trial in 2000, players' agent Slade Mead was Felder's expert witness on the issue of damages. Although he opined that Felder would have made it to the major leagues and as to the potential length of Felder's major league career, Mead conceded that his opinion was speculative. Nevertheless, the jury found in favor of Felder and determined his damages to be $8,000,000. The jury concluded that Felder was 25% at fault for the accident, so the award was reduced to $6,000,000.

¶ 13 On appeal, we reversed and remanded for several reasons. First, the trial court erred by only instructing the jury on general negligence and not on negligence based on traditional premises liability law. Second, the evidence Felder presented in support of his claim for lost earnings from major league baseball was too speculative. We required Felder to present stronger evidence on remand. We stated:

[Felder] may be able to present stronger evidence on remand regarding his chances of playing major league baseball and his projected earnings as a major leaguer. We are not holding that a minor league player can never prove a loss of earning capacity as a probable major league player. But for the guidance of the court on remand, it is our conclusion that the evidence presented by Felder in the first trial was too speculative to support damages for lost earning capacity as a major leaguer.

The Arizona Supreme Court denied Felder's Petition for Review.

¶ 14 During jury selection at the second trial, Physiotherapy struck S.R., a Hispanic woman. Felder challenged that strike as being race based in violation of S.R.'s equal protection rights as articulated in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Physiotherapy contended that it struck S.R. because she testified that she had a friend who suffered a knee injury and could no longer play sports. Physiotherapy felt that this friendship could exert an undue influence over S.R.

¶ 15 In response to a question during voir dire, S.R. said: "I had a friend in junior high [school] that had to have several surgeries done on her knee. She played basketball. She couldn't play after that." S.R. stated that this experience would not cause her to identify with either party in the case.

¶ 16 Finding no race-neutral explanation for the strike, the trial court granted Felder's Batson challenge and reinstated S.R. to the jury.³

¶ 17 At the second trial, Al Goldis testified as an expert witness for Felder about whether Felder would have played in the major leagues and the expected length of his career. At the time of trial, Goldis was the special assistant to the general manager of the New York Mets and had previously worked for several major league teams. He had twenty-seven years of experience in drafting, scouting and developing players for major league baseball teams. Goldis stated that he was not paid to testify.

¶ 18 Goldis reviewed the Brewers' pre-draft scouting reports and minor league coaching reports about Felder. He noted that the Brewers had promoted Felder all the way up from the rookie league to the AAA level, and that his next step would have been the major leagues. Despite some conflicting reports from the minor league coaches regarding Felder's ability, Goldis testified to a reasonable degree of certainty that not only would Felder have made it to the major leagues, but that he would have been an impact player.⁴

¶ 19 Goldis also compared Felder to major league players who hit fifteen home runs or more per season from 1981-1990. Goldis opined that Felder had more power than Frank Thomas, a player that Goldis had drafted. Goldis stated that he could make comparisons between Felder and Thomas to a reasonable degree of certainty. Given that Thomas had been playing for approximately seventeen years as of the date of trial, Goldis testified that Felder's career would have lasted between twelve and fifteen years.

¶ 20 In considering Physiotherapy's motion for partial summary judgment on the lost earnings claim, the court made the following statements.

I don't have any problem with Mr. Goldis coming in as the more proficient expert on baseball talent, less of a speculative witness on the issue of baseball talent.... I think Goldis is a better person to address the issues of concern expressed by the Court of Appeals on the issue of likelihood or unlikelihood of making it into the pros.

¶ 21 The jury heard that Felder received some of the benefits usually afforded to major league players. When Felder injured his elbow in 1997 he was treated by a doctor and trainer who were assigned to work with major league players. The Brewers paid for the surgery on Felder's elbow and for his rehabilitation at Physiotherapy. Although it would have cost the Brewers less to just release Felder than it did to keep him on the AAA team and to pay his sports rehabilitation costs, they did not terminate their relationship with Felder until his eye injury rendered him permanently incapable of playing professional baseball.

¶ 22 Felder also had Mead testify again about economic damages and the range of player salaries. Mead testified that he knew who Felder was even though he was not Felder's agent, because as a first-round draft choice, Felder was a...