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October 2017

Gordon & Rees Partner Don Derrico Obtains Defense Verdict for New York Health Club Client

Westchester partner Don Derrico recently obtained a defense verdict for a major NY health club. The plaintiff, a professional guitar player alleged that during a complimentary personal training session the personal trainer taught him an advanced plyometric “jump up” exercise onto a flat bench. Several weeks after the complimentary personal training session while performing the exercise on his own the plaintiff lost his balance and fell. The plaintiff asserted that the exercise was an advanced exercise specifically designed for professional athletes and not appropriate for a novice. In addition, the plaintiff asserted that a flat bench was not the proper equipment and the exercise should have been performed on either a step or plyometric box. As a result, the plaintiff sustained a fractured elbow to his dominant arm which required surgical repair.

The plaintiff asserted that the accident and injury caused permanent damage to his elbow which resulted in an inability to play guitar as he did prior to the accident. The plaintiff called an expert in personal training who opined that the exercise was not suitable for a novice gym patron and a flat bench should never been used for this type of advanced exercise.

During cross examination, Derrico was able to establish that the plaintiff had varied the exercise he had been taught and that he used an incline bench not a flat bench. Further, Derrico undermined the plaintiff’s expert by establishing that he never actually discussed the accident with the plaintiff, never visited the gym to inspect the equipment and was unable to positively identify the bench that was utilized. The defense called Dr. Shawn Arent a professor of Exercise Science at Rutgers University who opined that not only was a “step up” a suitable exercise but that a flat bench is commonly used to perform this exercise. In addition, Dr. Arent opined that the plaintiff was performing a “jump up” exercise not a “step up” when he was injured and that a “jump up” was in fact an advance plyometric exercise. Dr. Arent further opined that a “jump up” exercise would never be taught during a complimentary personal training session. The plaintiff demand $1.5 million. The jury deliberated for 20 minutes and returned a unanimous defense verdict.

Donald G. Derrico



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