NHL Player's Wage Loss Claim Not "Too Complex" For a Jury
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Jury was capable of determining an NHL player’s wage loss claim in a personal injury lawsuit.
In today’s case (Franson v. Caldarella) the Plaintiff, Cody Franson, was injured a in 2008 collision. At the time he “was in the second year of a three-year Entry Level two-way contract with the National Hockey League (NHL) and the American Hockey League (AHL), and was in training camp preparing for tryouts for the Nashville Predators.”
The lawsuit claimed that the collision related injuries delayed his entry into the NHL by one year. He claimed damages for loss of opportunity for this year and further alleged that his subsequent NHL contracts would have been more favorable had the delay not occurred. The Plaintiff brought an application to strike the Defendant’s jury notice arguing that the intricacies of NHL contract negotiations are too complex for a jury. Madam Justice Fisher disagreed and dismissed the Plaintiff’s application. In doing so the Court provided the following reasons:
 The essence of the plaintiff’s position is that issues (2) and (3) will require answers to questions which rely on complex technical evidence. The main questions as I understand them are:
(a) What were the chances that the plaintiff would have played any games for Nashville in the 2008-2009 season?
(b) If his chances were good, how many games would he have played?
(c) If he had played a certain number of games in that season, would he have been able to negotiate more favourable terms in his contract in subsequent years as a Restricted Free Agent?..
 The plaintiff submitted that the trier of fact will be required to understand the methodology, assess it, and determine which statistics and methodology is appropriate in order to calculate these damages. I do not disagree that the trier of fact will have to understand the methodology used by Mr. Gurney but I question whether it will be necessary to determine another appropriate methodology and apply that. These kinds of hypothetical damages in circumstances of uncertainty are not normally assessed by way of a mathematical calculation. The expert evidence is presented as a tool to assist the trier of fact in its assessment. In my view, a jury will be capable of understanding Mr. Gurney’s methodology when it is properly explained and it will also be capable of assessing the criticisms of that methodology by Prof. Weiler.
 It is my view that a jury is capable of assessing this kind of evidence and determining the issues arising from it, including the use of hypotheticals and contingencies, with proper direction.
 Moreover, this will not be in inordinately long trial, set for up to 14 days, a time estimate that is reasonable given the number of witnesses and issues to be addressed. In my opinion, a jury will be able to understand the evidence and retain that understanding for the length of the trial.
 For all of these reasons, the plaintiff’s application is dismissed.
bc injury law, Franson v. Caldarella, jury strike applications, Madam Justice Fisher, Rule 12, Rule 12-6, Rule 12-6(5)
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