Slick Lawyers and Pseudo-Science Result in Making Everyone Pay

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I was watching “Monday Night Football” when Damar Hamlin collapsed. It was first suspected to be a concussion. When they replayed what happened, it was clear to me it wasn’t a concussion. As NBC News reported, cardiac specialists knew, for certain, what it was.

“I knew exactly what was going on,” said Dr. Nahush Mokadam, the division director of cardiac surgery at Ohio State University Wexner Medical Center. “The way he first stood up and then collapsed … it’s not what a concussion would look like.”

Hamlin’s heart stopped. More specifically, his heart had been stopped by a blow to his chest. Medical staff on the field saved his life (and his brain). Hamlin has been an inspiration for many as he recovers, because he’s also a good man.

What happened? His heart was stopped by a blow that, perfectly timed, will stop any healthy heart. A moment during normal rhythm–just a fifth of a second–when a blow to the chest will interrupt the rhythm; any heart will stop beating. That is the science.

In such cases, “there is nothing wrong with the heart,” said Dr. Hari Tandri, the director of the cardiac arrhythmia program at Vanderbilt University Medical Center in Nashville, Tennessee. A healthy heart, when hit with blunt force at a specific time, Tandri said, can launch into an abnormal and potentially deadly rhythm.

A spokesperson for the American Heart Association, Dr. Comilla Sasson, an emergency medicine physician in Denver, said: “It’s not about how hard of a hit it was. It’s actually about the timing of when the blow happens.”

Rather than a helmet, it is usually a harder object traveling with speed like a puck or a baseball. It’s very rare, but it happens. Hamlin isn’t likely to sue anyone. It was just fate. But others have sued.

When Stephen Domalewski was 12, he was pitching in a “Police” League game. A batted ball hit him in the chest. The baseball hit him in the chest during that fateful one-fifth of a second. Stephen staggered, reached for the ball, and dropped. His heart had stopped. Tragically, no one on or around the field had the training or basic understanding that Stephen needed CPR to keep his heart pumping blood. Fifteen to 20 minutes passed before someone got his heart beating. Deprived of oxygen for several minutes, Stephen’s brain was irreparably damaged.

The bat was aluminum. Youth baseball had been aware that, at first, metal bats gave batted baseballs a little extra kinetic energy. This is kinda “rocket science” but easy to gauge and easy to fix. Bats were originally designed for extra “oomph” but Little League, in an effort to reduce injuries, mandated that aluminum bats generate no more kinetic energy than a wooden bat. All aluminum bat manufacturers agreed and entered into an accord. The before & after statistics seem to show a clear correlation – injuries to pitchers dropped by 80 percent after the accord.

When Stephen was struck in the chest, the accord was already 15 years old. That ball that struck Stephen Domalewski, almost without doubt, hit him with more energy than if it had been hit off an Ashwood bat. In my opinion, it was simply a hard-hit baseball. What caused Domalewski’s heart to stop was his heart being in the wrong place at the wrong time during that fifth of a second. Had Domalewski’s chest not been facing the batter, his chest would not have been struck. Had Domalewski been standing a quarter inch to his left or right, it is almost certain his heart would not have stopped. Had the ball hit him outside of that fifth of a second, he would have gone home with a bruise and a story. But his heart stopped.

Stephen Domalewski and his parents sued the store that sold the bat, Little League Baseball, and the manufacturer. The case settled for 14.5 million dollars. The empirical data was abundantly clear. Aluminum bats used in Little League did not and could not generate any more energy than wooden bats. I found no information that suggested otherwise. Nonetheless, all parties in the chain of commerce were sued.

What did the defendants do wrong? Well, in my opinion, they did nothing wrong. But in America, chance, circumstance, and a “perfect storm” are not just chance or random confluences or fate – it’s someone else’s fault, and someone must pay.

Everyone, including the defendants, felt terribly for Stephen Domalewski. So do I. But “feeling bad” doesn’t create fault. The defendants settled because, notwithstanding all the evidence that it was just “fate,” they feared that a jury would ignore facts and award more.

It happens. Before becoming the poster boy for being a philandering douchebag, John Edwards was the poster boy for made-up science. He made a fortune convincing juries that caesareans could prevent cerebral palsy. It was all made-up pseudo-science. The number of Caesareans performed jumped because obstetricians feared the consequences of being sued and opted to perform a dangerous surgery, rather than deliver a baby naturally. You can thank John Edwards and pseudo-science.

For the Domalewski case, in my opinion, Little League did nothing wrong. The manufacturer did nothing wrong. The store that sold the bat did nothing wrong. But they and their insurers all feared 12 people would see only a brain-damaged teenager and would ignore the science that aluminum bats do not generate any more “oomph” than wooden bats.

Sure, Domalewski’s settlement made for a feel-good story. A brain-damaged boy (now a 29-year-old man) will be taken care of, but the result carries other costs. Insurance costs increase because lawyers will continue to sue even when they know they don’t have facts or science. Why? Because they know insurers will settle. I had my share of arguments with adjusters about why they were settling rather than letting me try a case. It’s an ugly, perverted system. Lawyers with “John Edwards hair” and really white teeth will play off of emotion and avoid facts. If this was a typical contingency case, the attorney for Domalewski got $5,000,000. Nice work, if you have the stomach for it and lack a conscience.

Who pays for these perfect storms and bogus science? We all do.

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