More v. Bauer Nike Hockey Inc., 2010 BCSC 1395: Anatomy of a Sports Injury Product Liability Case

1. More v. Bauer Nike Hockey Inc., 2010 BCSC 1395: Anatomy of a Sports Injury Product Liability Case BCRIMA Educational Luncheon – March 16, 2011 © Vincent Orchard, Q.C. Borden Ladner Gervais LLP Phone: (604) 640-4126 Fax: (604) 622-5826 E-mail: vorchard@blg.com

2. What is the More Case About? • Hockey: Canada’s game, fast, exciting, full of risk. • An epidemic of concussions, a dearth of severe brain injuries. • The design, manufacture, regulation and limits of hockey helmets. • The science of brain injury, medicine and biomechanics. • Defences to a product liability case. • The liability of not-for-profit volunteer organizations, the CSA.

3. The Case • The parties at the start of the case. • The parties at the end of the case. • Darren More on 11/11/04 a 17-year old Midget AAA/Jr. B. player. • Midget hockey tournament game in Victoria. • Wearing CSA certified Bauer 5000 EPP “state of the art” hockey helmet suffering severe brain injury, SDH and hypoxic injury. • The manufacturer: Bauer Hockey Corp./Bauer Nike Hockey Inc., a Canadian institution in hockey equipment. • The CSA, the Hazardous Products Act, R.S., 1985, c. H-3, the Standards Council of Canada (“SCC”), the Technical Committee and Subcommittee on Protective Equipment for Ice Hockey Players, the CSA standard for ice hockey helmets, CSA-Z262.1-M90

4. The Player • Darren More

5. The Player • A good skater for his level. • Wore Bauer helmets before and after tragic accident. • As a hockey and lacrosse player Darren More had suffered previous injuries including two prior concussions wearing CSA approved helmets. • He was aware of the risks of playing hockey, including head injuries while wearing a helmet, but chose to play anyway. [Reasons, para. 244]

6. The Game

7. The Game • The incident: a fall into the boards, a common occurrence, nothing unusual. • The disparity and unreliability of eye witness testimony. • Probable reverse engineering by plaintiff’s discredited liability expert: Velocity, little rotation. • What followed the fall into boards was highly unusual. • Concussions common, severe brain injury (e.g. SDH) since advent of certified helmets, extremely rare. • Darren More’s injury may be only reported case of SDH sustained by helmeted player in organized hockey. [para. 36]

8. Hockey Helmet Standards, Testing and Certification • Canada, a leader in the development of safety standards for hockey equipment. • Hockey helmets, a product of social utility/to reduce risk of harm, but a prohibited product under Hazardous Goods Act. • January 1968: Bill Masterton’s death during NHL game. • Preliminary standard developed 1973. • Requirement for certification and testing by CSA 1975. • Changes in 1983 and 1990 to Z262.1-M90 and more changes in 2009. • Unlawful to sell uncertified hockey helmet in Canada.

9. The Drop Test • CSA Peak acceleration to 275g, a unit of gravity used to measure acceleration. • GSI (SI) a formula that includes the duration, or impulse, as well as the peak value of acceleration, not to exceed 1500. • Other certifying bodies: USA: HECC (ASTM), Europe: EC, ISO. • Test measures linear/translational forces, not rotational forces. • Generally accepted that main cause of concussions are rotational forces. • Hockey helmets designed, tested and certified to protect against superficial injuries and injuries from linear forces (e.g. focal injuries, skull fractures/hematomas/contusions).

10. The Risk of Injury: Knowledge of Risk and Warnings about Risk • Despite use of certified hockey helmets, brain injury cannot be eliminated. • CSA Z262.1-M90, s. 1.2: “use of a helmet certified under this standard will not prevent all injuries”. • Warnings to consumer/users of equipment. • The helmet sticker: Ice hockey is a collision sport which is dangerous. This helmet affords no protection from neck or spinal injury. Severe head, brain or spinal injury including paralysis or death may occur despite using this helmet… • Warning in owner’s manual and on helmet box: This helmet affords no protection from neck, spinal or certain types of brain injuries including those that may be caused by rotational forces. Severe head, brain and spinal injuries including paralysis or death may occur despite using this helmet.

11. Duty to Warn • The trial judge found that the warnings were not misleading and there was no negligent misrepresentation: the CSA label informs the user that even if they wore the helmet they may suffer a severe [brain] injury. [paras. 238-239] • Darren More was aware of the risks associated with playing hockey.

12. Mechanism of Injury • There was conflicting evidence regarding the cause of the severe brain injury (Dr. Tator, Dr. Stalnaker versus Dr. Honey, Dr. Woolfenden, Dr. Graeb and the defence biomechanical experts, Dr. Hoshizaki, Dr. Bishop and Dr. Newman). [Reasons 37] • Darren More suffered a SDH when his helmeted head struck the end boards and triggered a chain of events leading to hypoxic/ischemic brain injury. [para. 58] • The SDH resulted from a torn bridging vein caused by forces which were primarily linear but there was also some degree of brain rotation. [para. 190] • Hockey helmets are designed primarily to protect against translational [linear] rather than rotational (angular) application of force. The theory of the plaintiffs was that the helmet was inadequate for its primary purpose. [Reasons 48]

13. Mechanism of Injury • Bauer’s biomechanical expert Dr. Blaine Hoshizaki gave evidence that: Even though all impacts include both linear and angular (rotational) accelerations, the impact resistance tests for certification standards of helmets only measure linear acceleration because, at present, there are not reliable and validated methods for evaluating angular (rotational) acceleration and its effect on the brain. Accordingly, no helmet (for any sport or activity) is designed or tested to provide protection against angular (rotational) acceleration, during impacts to the head.

14. The Product Liability Defences • Injury Not Reasonably Foreseeable • No Breach of Duty: Standard of Care Met • No Proof of Causation

15. The Product Liability Defences 1. A Rare and Unusual Injury, not Reasonably Foreseeable • At the time of trial in Canada alone there were 1.2 million hockey players involved in registered and unregistered hockey. • While concussions are common, subdural hematomas are extremely uncommon. Despite millions of hours of hockey, since the introduction of certified hockey helmets, the injury suffered by Darren More is highly unusual and possibly unprecedented. There was no evidence of a similar occurrence. • One possible explanation for the occurrence of such a rare injury is that the plaintiff was predisposed to a subdural hematoma which was the opinion of Dr. Honey and Dr. Hoshizaki. [para. 192]. Such consideration is also relevant to causation. • The trial judge did not accept that with the practical experience of certified helmets, the defendants ought to have known that players were unreasonably at risk of suffering an SDH while wearing a certified helmet. [para. 228]

16. Duty/Standard of Care • Bauer never contested a duty of care/CSA did. • The manufacturer had a duty to take reasonable steps to ensure its hockey helmets were safe for the intended use. [para. 193] • A manufacturer must design products to minimize the risks that may result from intended use and to minimize the loss that may result from reasonably foreseeable mishaps. [para. 195] • A hockey helmet is not inherently dangerous: it is a safety device and a product of social utility. [para. 196] • A manufacturer does not have to use the safest design available so long as the design was reasonable in the circumstances. [para. 202] • Safety devices are inherently dangerous if they fail to provide reasonable protection when in normal use. [para.198]

17. Duty/Standard of Care 2. Bauer Did Not Breach its Duty of Care to the Plaintiff • Bauer met its standard of care. • The helmet met and exceeded industry and regulatory standards. • The helmet was “state of the art”: the 5000 helmet was innovative in its use of EPP v. VN liners and a “tool less” adjustment mechanism for better fit. • There was no alternative superior design that would have prevented the plaintiff’s injury or materially reduced the risk of harm.

18. Standard of Care Met • CSA Peak g is 275 and peak SI is 1500. • The test lot for the helmet greatly exceeded the CSA peak g standard of 275 and the SI limit of 1500, especially for the rear portion of the helmet: the three test results to the rear of the helmet were less than 100g and the SI less than 400. • Statutory standards are highly relevant when one considers breach of a standard of care. Ryan v. Victoria (City) [1991] 1 S.C.R. 201 at 222 Canadian Pacific Railway v. Jones Estate, [1989] B.C.J. No. 1241 (BCSC) • There is a heavy onus to show that in following standards set by government regulation or an industry standard, the manufacturer was nevertheless negligent. Piche v. Lecours Lumber Co. (1993), 41 A.C.W.S. (3d) 653 (Ont. Ct. (Gen. Div.))

19. Standard of Care: Defective Design: Battle of the Experts • The plaintiff retained an American expert well known in football helmet litigation, but with little or no experience in the design of hockey helmets. • Beware the glib, argumentative expert. • Dr. Stalnaker’s theory was that the CSA Standard was inadequate and the helmet was defectively designed as the likely magnitude of the linear forces imparted to the plaintiff’s helmeted head were not uncommon in hockey. The forces involved which caused the injury were primarily linear and hockey helmets are designed to minimize linear forces. • Dr. Stalnaker was not a credible expert and his theories of superior alternative design were unsupportable. • The judge preferred the defence experts on adequacy of the standard and reasonableness of the design of the helmet. • The trial judge stated: regrettably I have no confidence in Dr. Stalnaker’s opinions and give his evidence very little weight. His written reports are replete with errors and his oral testimony was blustery and dangerously close to being actively misleading. [para. 104] • Although the plaintiff argued the CSA Standard should have been more demanding with a lower peak g limit, the Bauer 5000 would have met any proposed higher standard.

20. Causation 3. There Was No Proof of Causation • The plaintiff failed to put forward evidence that there was a better helmet design available at the time that could have prevented the injuries suffered by the plaintiff. • Even Dr. Stalnaker’s testing from significantly higher heights did not result in a reading of 200g or greater. [para. 222] • Bauer designed and built helmets not just to meet the standard but to greatly exceed it. [para. 223]

21. Causation • The plaintiff failed on causation. • There must be a causal link between an alleged defect and the injury. • There was no evidence that if the helmet was made to a more a stringent standard, e.g. 225g, the injury would have been prevented.

22. The CSA • The Standards Council of Canada (“SCC”) accredits and supervises standards organizations like the CSA. • The CSA facilitates the development of standards and tests products for certification against those standards. • With input from volunteer technical committees of stakeholders the CSA prepared Z262.1-M90 and the SCC approved it. • The CSA enters into product service agreements with manufacturers. • The CSA, unlike Bauer, argued it owed no legal duty to Darren More: it argued it is not responsible for the technical content of a standard and it is largely a volunteer organization performing a public service. • The court found that in a case of physical injury, not only economic loss, a hockey player who must wear a certified helmet is a foreseeable plaintiff if injury results from unreasonably low standards. [paras. 212-213] • There was no proof the standard was unreasonable and the Bauer 5000 would have met a more stringent standard.

23. The Trial Judge’s Conclusion on Negligence • The trial judge’s conclusion: In all circumstances, I am satisfied that the Bauer design of the HH5000L helmet offered a reasonable level of safety for rear impacts having regard to the risk of the wearer sustaining a serious head injury like an SDH while playing hockey. There was no substantial likelihood of the alleged harm associated with its ordinary use. Nor did the evidence demonstrate that it was feasible to design the helmet in a safer manner to protect against such risk. In particular, I reject Dr. Stalnaker’s evidence respecting the feasibility of his modifications to the HH5000L. [para. 229]

24. Thank you