Baseball pitchers in line of fire, jury decides; bat makers liable.

Baseball bat manufacturers have run afoul of the law, a federal jury has decided. An eight-member panel in Oklahoma awarded damages to a high school pitcher who had been seriously injured by a batted ball. His attorneys say the verdict--the first to hold a bat manufacturer liable for such injuries--put the industry on notice that players' safety, not how well the bat works, comes first. (Brett v. Hillerich & Bradsby Co., No. CIV-99-981-C (W.D. Okla. 2002).)

The plaintiff, Jeremy Brett, alleged that a high-performance aluminum bat known as the Air Attack 2--manufactured by Louisville Slugger and used by Little League, high school, and college players throughout the United States--was defective because it made batted balls achieve dangerous speeds. The lawsuit claimed that the bat hits balls so hard and fast that pitchers have no chance to react to protect themselves.

"We contended that the bat was too good," said Joe White Jr. of Oklahoma City, Brett's lead counsel. "It is clear that Louisville Slugger knew or should have known that the bat's propensity to hit balls at such a great speed puts pitchers in danger."

White and his cocounsel used the manufacturer's internal documents to prove this, including one in which the designer of the Air Attack 2 warned the company's president and engineers that the bat could cause serious injuries.

"We don't need to continue this performance increase and danger increase to keep sales going up. It makes no sense, and we're going to get someone hurt," wrote the designer, Jack MacKay, in a memo dated February 4, 1995. In another memo two years later, he wrote, "We need to shut the [bat's] performance down to an acceptable level and be the company that restored the integrity of the game and made it safer."

"Louisville Slugger simply ignored these warnings," said Kelly George, cocounsel for Brett and also an Oklahoma City attorney. "Baseball was designed around the wooden bat: The distances between home plate and the pitcher's mound and between the bases were set according to the performance of wooden bats. Louisville Slugger introduced these `superbats' that are just too good, but the distances on the field remained the same."

High-performance aluminum bats "threw the game out of balance," George continued. "Many times, scores in college games are in the teens: 20-16, 17-12. You look at the scores in Major League games, where only wooden bats are used, and they're 3-2, 4-1. Why is that? It's the aluminum bats. They work too well."

Why are the Air Attack 2 and its competitors so powerful? They are made from a high-tech alloy known as C405, which lets bat manufacturers design thin bat walls that curve inward when a baseball strikes. A pressurized bladder inside the barrel supports the walls and helps them rebound. When the walls spring back out, they propel, or "trampoline," the ball from the bat. Because the bat walls curve inward, the balls do not deform like balls hit with wooden bats; they maintain their aerodynamic shape and travel more quickly.

Plaintiff experts testified in Brett that after a pitcher releases a baseball and completes his follow-through, he is about 52 to 54 feet from the bat-ball collision point. When a batter hits a ball directly back at the pitcher, the pitcher needs a minimum of fourth-tenths of a second to perceive the ball and react by fielding, deflecting, or dodging it.

Testimony focused on tests conducted with the first-generation Air Attack bat, which is less powerful than the Air Attack 2. The results showed that batted balls traveled at speeds up to 118 mph--more than 170 feet per second. A pitcher 54 feet from home plate would have less than a third of a second to perceive the ball and react. That isn't long enough, the experts said.

Bat manufacturers are competing in a "performance race," said George. "These bat manufacturers--primarily Louisville Slugger, Easton, and Worth--are in the business of manufacturing the highest-performing aluminum bat possible, and they will not self-regulate," he said. "The profit margin is so great that their economic interests outrank regulation."

George said amateur baseball "doesn't have to go back to wooden bats. That's not what we're advocating. We're advocating a return to woodlike performance. We want aluminum bats to hit like wooden ones." Bat manufacturers can do this if they want to, he said, "but that doesn't sell bats."

Danger zone

In April 1999, Brett, a junior at Enid High School in Enid, Oklahoma, was pitching a game against a rival school. When he delivered a fastball, the batter fired a line drive right back at him. Enid High's catcher testified at trial that Brett had not completed his follow-through before the ball hit him on the right side of his head and ricocheted to the first-base dugout area. Brett fell to the ground and went into convulsions.

The impact crushed his skull and resulted in a blood clot the size of a lemon. Doctors performed emergency surgery to remove the clot and repair the skull fracture. It required 5 metal plates, 12 screws, and 75 staples. The jury awarded actual damages.

White said he is not aware of any other lawsuits that have successfully lodged claims against the bat industry. In January, a California court dismissed a case filed by Andrew Sanchez, a pitcher for California State University, Northridge, against Louisville Slugger. Sanchez's skull was fractured by a ball hit with an Air Attack 2. (Sanchez v. Hillerich & Bradsby Co., No. BC226656 (Cal., Los Angeles Super. Ct. dismissed Jan. 4, 2002).)

White has heard many anecdotal accounts of baseball players who have been hurt by batted balls. "One parent I recently spoke to told me that six pitchers on one high school team had been struck by balls batted off high-performance bats this season. That's an enormous amount of injuries for just one team," he said. "I've heard of kids who have lost eyes and had their faces crushed, and the story is consistent: The kids do not have a chance to defend themselves against batted balls. That is deeply troubling."

The National Collegiate Athletic Association (NCAA), which adopts and promulgates playing rules for intercollegiate athletics, conceded in a 2000 report that there is "an acceptable level of risk in baseball." But that level, it said, is acceptable for games played with wooden bats; it has not been adjusted to account for some teams' use of powerful aluminum bats.

The National Safe Kids Campaign, a nonprofit group based in Washington, D.C., also recognizes that risk of physical injury is inherent in sports. The group estimates, however, that half of all children's injuries related to sports can be prevented.

According to Safe Kids, four of five parents whose child has suffered a sports injury believe it is part of the game and that there is nothing they could have done to prevent the injury. "The general public does not appreciate the dangers associated with allowing children to pitch to hitters using these bats," George said.

To make baseball safer, he said, teams must agree not to use bats like the Air Attack 2. "But what team is going to agree not to use high-performance bats when they would be agreeing to help the opposing team?" he asked. "This will not happen until the governing bodies--the National Collegiate Athletic Association, the National Federation of State High School Associations--take a firm position requiring that these bats be tuned down."

Currently, no single body is authorized to set bat-performance standards. In August 1998, the NCAA passed rules to make aluminum bats used in college play perform more like wooden ones. One rule specified that the maximum speed allowed for a batted ball is 93 mph.

The association backpedaled after Easton Sports, Inc.--the country's largest manufacturer of aluminum bats--filed a restraint-of-trade suit seeking injunctive relief and $267 million in damages. Easton settled after the NCAA revised its rule to require only that aluminum bats perform at a level no greater than the best-performing Major League wooden bat. (Easton Sports, Inc. v. NCAA, No 98-CV-2351 (D. Kan. settled 1999).)

A month later, a federal court dismissed a case filed by a wooden-bat manufacturer that alleged the NCAA had conspired with aluminum-bat makers to exclude wooden bats from market competition. (In re Baseball Bat Antitrust Litig., 75 F. Supp. 2d 1189 (1999).)

And the high school federation tried to make aluminum bats safer for high school athletes by limiting the length and weight of bats. (Long, lightweight bats increase the power of players' swings and propel balls with great force.)

In 1999 and 2000, for example, the federation's standards allowed high school baseball teams to use bats with a length-to-weight differential of-5. That meant a 33-inch bat had to weigh 28 ounces. The organization scaled back to a -3 differential for 2001 play--that is, a 33-inch-long bat must now weigh 30 ounces.

But bat makers found a loophole: Most of an aluminum bat's weight is in the handle, which makes it easier to swing than a wooden bat, whose weight is in the barrel.

"The manufacturers simply placed the weight at the handle of the aluminum bats, allowing players to swing -3 bats as powerfully as they could swing -5 bats," George said.

Seeking a remedy

Some teams, leagues, and conferences in Massachusetts, New Jersey, New Mexico, New York, Pennsylvania, and other states have banned aluminum bats.

In addition, MacKay, the designer of the Air Attack bat and a former Louisville Slugger employee, filed a petition with the Consumer Product Safety Commission (CPSC) requesting that the agency issue a performance standard for nonwooden bats. The CPSC declined to act because, it said, the data were inconclusive.

"The legal system seems to be the only way to confront the performance of aluminum bats," said White. "Bat manufacturers cannot run the risk of verdicts that find their bats defective."

He expects Louisville Slugger to appeal the Brett verdict. "If the judgment stands on appeal, at a minimum the bat industry is going to have to figure out how to deal with the fact that a jury has found the Air Attack 2 to be defective. Hopefully, it will deal with that by tuning back these bats and how well they propel balls," he said.

"Corporate greed just takes over a lot of times, especially when the company is making millions of dollars on sales. Louisville Slugger made a corporate decision to put the Air Attack 2 in the stream of commerce and to bear the risk."