Academic journal article Defense Counsel Journal

Current Decisions

Academic journal article Defense Counsel Journal

Current Decisions

Article excerpt


Former Major Leaguers Fail to Reach First Base

Seymour (Cy) Block played in 17 games for the Chicago Cubs from 1942 to 1946, plus one game in the 1945 World Series. For his career, he batted .302 and struck out three times. Make that four, courtesy of the California Court of Appeal, First District.

In Block v. Major League Baseball, 76 Cal. Rptr.2d 567 (1998), Block and four other major league baseball players who played before 1947 filed a class action in a California state court against Major League Baseball and three other licensing and distribution agencies alleging violations of their statutory and common law rights of publicity by using the "names, voices, signatures, photographs and/or likenesses" on products such as "books, films, trading cards, collector merchandise, memorabilia and apparel" without their consent or compensation. In 1947, the standard major league player contract was revised so that representations of players' likenesses belong to the employing baseball clubs for their use.

After discovery, the plaintiffs moved for class certification, proposing a class of about 800, consisting of "all major league baseball players who played major league baseball before 1947, or, if they are now deceased, their heirs or beneficiaries." They also narrowed the case to seek damages only for unauthorized uses in California since 1992. The trial court denied certification, stating that in view of the diverse factual and legal issues, "it appears to the court that if certified as a class action, this action would in fact become one of multiple lawsuits separately tried," which would not be "advantageous to the judicial process and to the litigants themselves."

Reviewing on the abuse of discretion standard, the Court of Appeal agreed that the proposed class did not meet California's community of interest requirement--that is, whether common questions of law or fact predominated. First, there might be the evaluation of thousands of individual claims for usage, a task that would be too daunting. Second, the claims would be complicated by the value of the right of publicity of each class member, values that would have a wide range from stars to player would had only a "cup of coffee" in the major leagues. Third, the statute of limitations periods were complicated because some of the proposed class had remained close to organized baseball, thus raising the possibility of affirmative defenses and the need for individual factual inquiries.


Surprise Video Nixes Plaintiff's Judgment

A repetitive stress injuries plaintiff lost a $293,385 award because her attorney suddenly came up with a last-minute videotape. Rotolo v. Digital Equipment Corp., 150 F.3d 223 (2d Cir. 1998).

The plaintiff, Jeanette Rotolo, used a computer manufactured by Digital in her job at the Long Island Jewish Medical Center in New York. Her suit in federal district court alleged that as a result of the keyboard operation she developed what generally are described as cumulative trauma disorders (CTDs) or repetitive stress injuries (RSIs). Without notice and apparently to show defective design, her attorney succeeded in getting District Judge Jack Weinsetin to admit into evidence a videotape the attorney had obtained in an undisclosed manner. The video appeared to have been created by Apple Computer Corp, a competitor of Digital, and showed three Apple consultants, two physicians and one engineer, discussing the possible causal connection between computer keyboard use and RSI, as well as Apple's contemplated efforts to ameliorate the problem.

Judge Weinstein told the jury that they might consider the tape as evidence of "what might have been made available by these defendants [sic] and what was in the field to show what their of mind was or should have been." (For opinion below, see 980 F.Supp. 640.)

This was too much for the Second Circuit to stomach. …

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