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Because a personal injury plaintiff signed a joint tortfeasor agreement releasing the manufacturer of an allegedly defective pair of water goggles from liability, the seller of the goggles will not have to pay the plaintiff the $11.8 million verdict he won at trial. Philadelphia Common Pleas Court Judge Carolyn Engel Temin intimated in Feeney v. Authentic Fitness Co. that plaintiff Thomas Feeney sealed his own fate by signing the agreement with Authentic Fitness Co. “Defendant Gold Medal [the seller] was merely a conduit for the transfer of the goggles from defendant Authentic Fitness to the plaintiff and is only secondarily liable, whereas the defendant Authentic Fitness is primarily liable,” Temin said. “The release by plaintiff of defendant Authentic Fitness pursuant to the joint tortfeasor agreement entered into between Authentic and plaintiff Sept. 30, 1997, operates as a release of any liability that defendant Gold Medal may have to plaintiff.” Gold Medal was represented by Joe Pinto and Mike Rausch of White & Williams. Rausch said the decision was pretty “cut and dried.” “Under products liability law, the liability of a seller is derivative based on the manufacturer’s liability,” Rausch said in a phone interview Wednesday. Marvin Factor of Factor & Factor, Feeney’s attorney who negotiated the settlement and release and represented Feeney at trial, could not be reached for comment either Wednesday or Thursday. The $11.8 million verdict was levied in October 1997 against Gold Medal Sporting Goods Stores, which sold Feeney a pair of goggles that were labeled as non-fogging. However, the goggles fogged the first time Feeney used them while water skiing and were a factor in his ramming into a log, according to his lawyer. Authentic Fitness Co., the manufacturer of the Speedo-brand goggles which were shown to be unsuitable for use in water skiing, settled with Feeney about 10 days before trial for $1.5 million. That left Gold Medal, which in the action before Temin sought indemnification for the damage award from the manufacturer. Feenney had entered into a joint tortfeasor release with Authentic Fitness, which ultimately absolved Gold Medal of liability also. GOGGLES PURCHASE In August 1992, Feeney, a boat owner and avid water skier, wanted to purchase a pair of goggles to protect his eyes and contact lenses while skiing. He went to the Gold Medal Sporting Goods store on Frankford Ave. in northeast Philadelphia and asked a sales clerk for a pair of water skiing goggles, Factor said. The clerk, said Factor, pointed to a rack with several pairs of goggles, and Feeney picked the Speedo brand because it was the priciest, and the package advertised the item as “anti-fog.” Feeney read the packaging and asked the sales clerk whether they were good for water skiing on Rancocas Creek and Delaware River, Factor said. The sales clerk allegedly said that he, too, water skied on those waterways, and that the Speedo goggles were appropriate. At trial, Feeney testified to his encounter with the sales clerk, but the clerk’s representations to him were inadmissible hearsay. On his first water skiing venture wearing the goggles, condensation formed on the outside of the goggles and they fogged up, said Factor. Reaching up to take off the goggles, Feeney struck a log. The accident left him paralyzed from the waist down. At trial, Feeney’s companions on the skiing trip confirmed the details of the accident. The goggles were tested and found to have been coated on the inside only, so they were not resistant to fog if used above the water line. The goggles were appropriate for swimming, but not for other uses, he said. Feeney sued Authentic Fitness and the sporting goods chain, complaining that the goggles he purchased were good only for swimming, that the labeling of the product was defective in failing to warn against inappropriate uses such as water skiing, and that the goggles were not really “anti-fog,” as marked. The goggles were preserved by the plaintiff, but an executive for Authentic Fitness had to reconstruct the packaging the goggles would have been sold with, along with the warnings. Authentic Fitness counsel Scaricamazza, along with Kenneth R. Ebner Jr., fashioned the $1.5 million manufacturer’s settlement less than two weeks before trial. Gold Medal’s basic position was that in a strict liability case, it is the manufacturer and not the seller who is the responsible party. On April 13, 2000, Feeney and Gold Medal went to a non-jury trial on the remaining issues, including whether Authentic Fitness was the manufacturer of the goggles, whether Gold Medal was the seller of the goggles, and whether Gold Medal was entitled to indemnity from Authentic Fitness if it was liable for damages. Temin issued her ruling on Feb. 27. Michael A. Riccardi contributed to this report.

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