PHILADELPHIA – A federal judge has sent litigation brought by a Central Pennsylvania couple, surrounding extensive ocular injuries the husband-plaintiff suffered after a baseball allegedly ripped through polyethylene safety netting and struck him in the right eye, to the U.S. District Court for the Middle District of Pennsylvania.
Corey Twigg and Lori Twigg of Montoursville first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 19, 2021 versus Varsity Brands Holding, Company, Inc., BSN Sports, Inc. and Sport Supply Group, Inc. of Farmers Branch, Texas, Spartan Athletic Company of Oaks and Garware Technical Fibres Ltd. (doing business as “Gold Medal Athletic Products”) of Maharashtra, India.
Plaintiff Corey Twigg was hosting indoor batting practice in March 2019 with batting cage and safety equipment manufactured by defendants Varsity Brands Holding Co. Inc., BSN Sports, Inc., Sport Supply Group, Inc., Spartan Athletic Company and Gold Medal Athletic Products.
The suit stated that the batting net and its equipment was marketed and promoted as being safe for use – but despite this, he suffered serious and life-altering injuries as a result of the dangerous and defective condition of the subject product.
“The Polyethylene safety netting and Collegiate L Screen herein failed to reasonably perform as intended. The Polyethylene safety netting degraded and allowed a baseball to rip through the safety netting striking plaintiff Corey Twigg directly in the right eye causing serious and devastating injury which necessitated plaintiff’s eye to be surgically removed via invasive surgery and necessitated additional physical and emotional trauma,” the suit stated.
In answers to the litigation, the defendants uniformly denied the plaintiffs’ allegations.
Varsity Brands Holding, Company, Inc., BSN Sports, LLC and Garware Technical Fibres Ltd. filed a joint motion to transfer the case to the U.S. District Court for the Middle District of Pennsylvania on May 20 – on the grounds that the safety screen at issue was purchased in and delivered in the Middle District, the accident occurred in the Middle District, most witnesses reside or work in the Middle District and because the plaintiffs reside in the Middle District.
“According to his complaint, the Montoursville Area School District employed Mr. Twigg as a sixth-grade teacher and assistant baseball coach for Montoursville High School in 2019. Mr. Twigg alleged that on March 10, 2019, he was throwing baseballs during batting practice inside of a Montoursville High School gym. Mr. Twigg claimed that during this batting practice, he was sitting behind the safety screen when a batter hit a ball that went through the polyethylene net and struck him in the face. Mr. and Mrs. Twigg sued, alleging, that the safety screen and polyethylene net was defective or unsafe in various ways,” the defendants’ joint filing stated, in part.
“This case has virtually no connection to the Eastern District of Pennsylvania. The accident did not occur in the Eastern District. None of the parties – including the plaintiffs – are located in or reside in the Eastern District. Likewise, most of the potential fact and expert witnesses are known or believed to be located outside of the Eastern District. Indeed, most of the potential witnesses are known or believed to be located in the Middle District or in effectively neutral locations such as Arizona, Michigan, and New Jersey. Because there is insufficient connection between this venue and lawsuit, the Middle District of Pennsylvania is the proper venue.”
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Mitchell S. Goldberg concurred with the defense and authorized the case’s transfer to the Middle District of Pennsylvania – since it is where the plaintiffs reside, where the incident occurred and where a majority of the witnesses are located.
Goldberg further analyzed the six Jumara factors to determine that the proper venue for the case was the Middle District.
“This not their home district nor the forum where the incidents giving rise to the lawsuit occurred. Nonetheless, plaintiffs assert that the Eastern District is a convenient forum because a majority of Mr. Twigg’s treating doctors, including the specialist treating surgeon, nurses, and hospital personnel, as well as his medical records, are all located in the Eastern District. I find that this does not constitute a “strong showing of convenience. First, Plaintiffs acknowledge that while Mr. Twigg has undergone some treatment in the Eastern District, he was initially treated and underwent his first eye operation in the Middle District. Moreover, plaintiffs admit elsewhere in their brief that advances in technology minimize the burden of producing discovery between the Eastern District and Middle District; therefore, the location of medical records in either district does not contribute to a showing of convenience in any meaningful way” Goldberg stated.
“To further support the convenience of their chosen forum, plaintiffs assert that the potential burden of producing witnesses in the Eastern District is negligible because all witnesses are located less than an hour away from the Eastern District’s boundary. This is essentially an argument that the Eastern District is not inconvenient; it does not contribute enough force to create a strong showing of convenience in the Eastern District.”
Goldberg added that the second and third factors – the defendant’s forum choice and where the plaintiffs’ claims arose – also weigh in favor of transfer.
“Here, defendants’ forum choice is also the forum where plaintiffs’ claims arose. The forum where a plaintiff’s claims arose is the forum that is ‘the center of gravity of the dispute, its events and transactions.’ The ‘center of gravity’ in this case is the Middle District, as this is where the product’s alleged failure to perform as intended and Mr. Twigg’s resulting injury both occurred. Because the primary events giving rise to this action occurred in Lycoming County, I conclude that the Middle District of Pennsylvania is the center of gravity of this dispute, its events, and transactions. These two factors, thus, weigh in favor of transfer,” Goldberg said.
Goldberg next found that neither party has argued that one venue or another would be more convenient for the parties themselves, and none of the parties reside in their preferred venue, resulting in that factor being neutral – while also finding that the majority of the fact witnesses who witnessed the accident itself and its immediate aftermath reside in the Middle District, thus finding said factor in favor of transfer.
As for the final two factors, books and records and public and interest, Goldberg found that the former had no influence either way, while the latter showed favor to transfer the case.
“With regard to practical considerations, discovery in this case is ongoing and transfer would not create inefficiency. The parties have one month of fact discovery remaining, and have several depositions left to complete. They also have yet to begin expert discovery. In sum, the current state of pre-trial preparation does not weigh against transfer. In addition, as discussed above, most of the potential witnesses are located in the Middle District, and transfer to the Middle District would allow for a more expeditious trial. Another relevant public interest factor is the local interest in deciding controversies at home. In this case, the alleged product failure and resulting injury occurred in the Middle District of Pennsylvania. Additionally, the allegedly defective product was sold to a public school in the Middle District for use by students and school employees, and the plaintiffs are residents of the Middle District,” Goldberg said.
“This case can therefore be fairly characterized as a localized controversy within the Middle District. Accordingly, I conclude that the Middle District of Pennsylvania would likely have an interest in deciding this controversy and this factor weighs in favor of transfer. The other public interest factors have no bearing on my analysis. Neither party disputes that a judgment rendered in either district would be enforceable. Neither party argues that the public policies of either forum affect the suitability of transfer. And although this is a diversity action involving state law, both potential venues are in Pennsylvania and familiarity with Pennsylvania law is not an issue.”
Goldberg then granted the defendants’ motion to transfer this matter to the U.S. District Court for the Middle District of Pennsylvania.
For counts of strict product liability (manufacturing defect, design defect and failure to warn), negligence and loss of consortium, the plaintiffs are seeking damages including loss of wages, loss of earning capacity, mental and physical suffering, medical expenses and injuries and punitive damages.
The plaintiffs are represented by Nicholas W. Mattiacci of N.W. Mattiacci Law, in Jenkintown.
The defendants are represented by Anderson L. Cao and Joel W. Mohrman of Akerman Law in Houston, Texas, plus John Michael Kunsch of Sweeney & Sheehan and John T. Donovan and Mary Susan Toth of Wilson Elser Moskowitz Edelman & Dicker, all in Philadelphia.
U.S. District Court for the Middle District of Pennsylvania case 4:23-cv-00067
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com