MEDWAY, MA -- Cybex International Inc. lost a product liability suit today with the jury rendering a $66 million verdict.
The verdict in the case, Barnhard v. Cybex International Inc., was apportioned 75 percent to Cybex, 20 percent to Amherst Orthopedic Physical Therapy PC and 5 percent to the plaintiff. Under New York law, Cybex would be responsible for 95 percent of the verdict but may collect 20 percent of the verdict from Amherst Orthopedic.
Cybex says it will appeal the verdict.
“We think we have a strong basis for appealing,” Art Hicks, Cybex president and COO, says, adding that some critical errors were made. Two of those, in his opinion, were that the judge would not allow the only witness to the incident to testify and that one of the lawyers for the plaintiff had been a lawyer for Cybex in another case.
The plaintiff in the case, Natalie M. Barnhard, was rendered a quadriplegic after a Cybex 4106 ZR Classic leg extension machine at Amherst Orthopedic Physical Therapy, Buffalo, NY, fell on her as she leaned on the machine to stretch her shoulder, according to her lawyers, Kevin English and Michael Law, partners with Phillips Lytle in Buffalo. Barnard, who was a physical therapy assistant, was working with a client on a nearby machine at the time. It took four people to pull the machine off of Barnhard, she recounts on her website.
“I had never been so scared in my whole life because in my mind I knew I had suffered an extremely severe life-changing injury,” she wrote on her site.
The Cybex machine was manufactured in 1983 and meets today’s manufacturing standards, according to Hicks, who also says that he’s confident enough about the equipment’s safety that he would put it in his own home. However, English says the machine was not properly designed because the center of gravity was too far to the weight stack side of the machine.
“We believe there is overwhelming evidence to support that verdict, and we believe it will be sustained,” Law says about Cybex’s planned appeal.
Because Barnhard was an employee of Amherst Orthopedic Physical Therapy, she could not sue her employer. However, Cybex did make a claim against Amherst Orthopedic, claiming that Amherst Orthopedic had not properly anchored the machine.
Robert Baxter, a partner in the firm of Baxter Smith & Shapiro PC, who represented Amherst Orthopedics, said that Cybex never sold the machine with bolts and never gave any warnings that the machine should be bolted down. He also said that Cybex never gave warning that machines similar to this one had tipped before.
“The first notification was when this machine fell on Natalie,” Baxter says.
Cybex Chairman and CEO John Aglialoro said in a statement from the company: “This piece of equipment has been in continuous operation for over 25 years in the same facility as Ms. Barnhard was injured to the current date, with no incidents reported other than this one event. We strongly believe that Cybex was not negligent and is in no way responsible for this tragic accident. We will vigorously pursue all avenues to attain a reversal of this verdict.”
Hicks adds that 500-pound equipment “doesn’t just fall over.”
Amherst Orthopedics is still in business and is still using that same machine—without bolts—although they now have it against a wall, Baxter says. He added that an expert who testified for Cybex said he has the equipment in his facility and doesn’t bolt his down either.
“The standard in the industry is that they are supposed to be manufactured so they don’t need to be bolted down,” Baxter said. “Even their manual had a recommendation to bolt, not a direction to bolt.”
Can Cybex Pay?
The amount awarded to the plaintiff is “very high,” according to Law and English, especially considering it does not include punitive damages. The plaintiff sued for lost past wages, lost future wages, pain and suffering, and medical expenses. In New York, each of these items is awarded separately. The jury found that Barnhard’s future medical expenses will be more than $28 million as she will need assistance 24 hours a day for the rest of her life.
Baxter plans to join Cybex’s appeal, saying the verdict was excessive. He says this is the largest pain and suffering award in New York history. However, he says it’s unlikely that his clients will ever have to pay in the case.
“Cybex would have to pay the full amount and then collect back 20 percent from us, and I don’t know that Cybex can pay that amount,” Baxter says.
Cybex management, in consultation with counsel, is analyzing the impact of the verdict on the company and its financial condition, according to a statement from Cybex. Cybex’s available insurance coverage for this claim is currently less than $4 million. The amount of the required fourth quarter addition to the company’s litigation reserve will be determined as the post-trial motion process proceeds.
“These fairly outrageous verdicts are normally overturned,” Hicks says. “It’s almost dishearteneing when you look at the statistics. Someone from Bloomberg said that jury verdicts during the holidays are normally higher.”
He says that it’s difficult not to sound callous when you have an accident where an individual was involved, but that the plaintiff admitted she used the equipment improperly. Cybex and its employees did nothing wrong, he says.
“We hold our heads up high and say our products are the best in the industry,” Hicks adds.
Cybex stock fell by more than 37 percent at the end of the day, closing at $0.815, down from $1.30 the day before. Its 52-week range was $0.67- $1.80.
Law says that club operators should test their older machines, ensure they are bolted and positioned properly, and follow any instructions that come with the products in their facilities.
“Equipment manufacturers have come a long way since the 1980s in designing these things and taking steps to make them safer,” Law says. However, he says this case should send manufacturers the message that if they have old, defective equipment still in use at fitness facilities, they should recall them or send out a notice or warning.