Texas Verdicts

Plaintiff(s):

Adam Gottlieb (Male, 30 Years)

Plaintiff Attorney(s):

Jeremy M. Masten;
Hawash Meade Gaston Neese & Cicack, LLP;
Houston,
TX,
for
Adam Gottlieb ■ Samuel B. Haren;
Hawash Meade Gaston Neese & Cicack, LLP;
Houston,
TX,
for
Adam Gottlieb

Plaintiff Expert(s):

Clifford Dacso; M.D.; Internal Medicine; Houston,
TX called by:
Jeremy M. Masten, Samuel B. Haren

Defendant(s):

CrossFit Inc., 

McPherson Standard LLC

Defense Attorney(s):

Steven D. Selbe;
Gordon & Rees LLP;
Houston,
TX,
for
CrossFit Inc., McPherson Standard LLC ■ Andrew M. Scott;
Gordon & Rees LLP;
Houston,
TX,
for
CrossFit Inc., McPherson Standard LLC

Defendant Expert(s):

Holden MacRae;
Exercise Physiology;
Malibu,
CA called by:
Steven D. Selbe, Andrew M. Scott ■ Michael Campbell;
Nephrology;
Houston,
TX called by:
Steven D. Selbe, Andrew M. Scott

On Sept. 24, 2012, plaintiff Adam Gottlieb, 30, an engineer, and a friend worked out with a trainer at P3 CrossFit, a gym in Houston that provides workouts and trainers licensed by CrossFit Inc. Such gyms are called CrossFit "affiliates." The trainer had Gottlieb and his friend attempt to complete, as quickly as possible and without resting, 500 meters on the rowing machine, 40 air squats, 30 sit-ups, 20 pushups and 10 pullups. Gottlieb’s friend completed the workout in just less than 10 minutes, but Gottlieb went outside and threw up three-quarters of the way through the workout. He then finished the workout, with a total time of 16 minutes. For the rest of the day he felt sore and sick and he continued to throw up. That night, his wife took him to an urgent care clinic, which sent him to the hospital, where he was admitted and treated for dehydration. Within two days, he had developed rhabdomyolysis, a potentially fatal disease characterized by destruction of muscle tissue. Gottlieb sued CrossFit Inc. for negligence and sued McPherson Standard LLC, operating as P3 CrossFit, for negligence; gross negligence; and violations of the Deceptive Trade Practices Act, including breach of warranty. Gottlieb’s attorneys argued that Gottlieb, as a former athlete in "decent shape," was clearly susceptible to rhabdomyolysis resulting from the workout, and that the defendants failed to warn him adequately or to discuss the condition with him. CrossFit’s literature said that the best way to prevent a workout from causing rhabdomyolysis is to identify susceptible persons and discuss the condition with them, plaintiff’s counsel noted. Gottlieb signed a release, but plaintiff’s counsel noted that its only mention of rhabdomyolysis was in the middle of a single-spaced paragraph in 8-point type. Plaintiff’s counsel argued that there was evidence that the workout in this case was "harder than it looks" that overdoing the rowing portion could put the athlete in a "metabolic hole" from which he could not recover; and that at least five different workouts designed or implemented by CrossFit had resulted in rhabdomyolysis. Plaintiff’s counsel said that the defense exercise physiology expert used the term "metabolic hole," which is what can happen when some athletes, doing the workout for the first time, jump on the row machine and go so hard that they simply cannot finish the workout. Plaintiff’s counsel argued that this is what happened to Gottlieb. He went really hard (for him) on the row machine, and that set him up for difficulty with the rest of the workout. According to plaintiff’s counsel, studies suggest that a former athlete in moderate condition is more likely than either a professional athlete in very good condition or a non-athlete in poor condition to develop rhabdomyolysis from an intense workout. Studies suggest that experienced athletes in top shape are less susceptible to developing rhabdomyolysis. Studies also suggest — and CrossFit’s expert agreed — that non-former athletes who are completely out of shape just don’t have enough muscle mass or internal drive to clog their kidneys with muscle fiber, plaintiff’s counsel noted. The defense argued that the workout was reasonable. It was a complimentary "introductory" workout, defense counsel said, and had been completed 7,000 times nationwide at affiliates nationwide and 2,400 times at P3 alone. One of the defense experts, an exercise physiologist, had completed the workout in 5 minutes, and he was 60 at the time. Defense counsel also noted that, since this incident, P3’s owner had become certified as a "level 4" CrossFit trainer, the highest level available. Relatively few CrossFit trainers are level 4. The defense further argued that the release barred Gottlieb’s negligence claims. The jury was instructed that, "absent fraud, a person is presumed to know the contents of a document that he has signed and has an obligation to protect himself by reading the document before signing it." The defense disputed the studies that plaintiff’s counsel noted.

Gottlieb’s wife took him to an urgent care clinic, which sent him to the hospital, where he was diagnosed with rhabdomyolysis. Gottlieb recovered, and after four days in the hospital, he was released. He followed up with his primary care doctor, who believed that the workout was the cause of Gottlieb’s illness. Rhabdomyolysis coincides with an increase in levels of the enzyme creatine kinase. A level of greater than 1,000 is rhabdomyolysis, and at its peak, Gottlieb’s creatine kinase level was 25,000. Rhabdomyolysis can result in kidney failure and, in rare cases, death. Gottlieb’s treatment included giving him large quantities of fluids. His muscles were sore, and having to get up frequently to urinate aggravated the soreness. When he followed up with his primary care doctor – an internist – a week after being released from the hospital, his creatine kinase level was back to normal. However, he testified that he remained sore and tired for two or three months. Gottlieb’s primary care doctor opined that Gottlieb’s rhabdomyolysis was caused by the extreme intensity of the workout, and that there was no evidence of any other potential cause. He acknowledged that this type of rhabdomyolysis is rare, but he said he saw no evidence that a viral infection contributed to Gottlieb’s condition, as the defense contended. Gottlieb sought about $20,000 for past medical bills and $40,000 for combined past and future physical pain. The defense medical expert, Gottlieb’s consulting nephrologist at the hospital, opined that a viral infection may have contributed to cause Gottlieb’s rhabdomyolysis. Gottlieb had a fever at the hospital, and his treatment included broad-spectrum antibiotics. The exercise physiology expert opined that no reasonable trainer would foresee that this workout alone could cause rhabdomyolysis. Defense counsel also noted that there are at least seven or eight possible causes of rhabdomyolysis. The jury charge included instructions on "new and independent cause" and "unavoidable accident."

The jury found for the defense. Specifically, it found that Gottlieb expressly agreed to assume the risks that caused his injuries, and it did not find that the negligence, if any, of any party proximately caused Gottlieb’s injury; that McPherson did not engage in any false, misleading or deceptive act or practice that Gottlieb relied on to his detriment and was a producing cause of damages; or that McPherson’s breach of warranty, if any, was a producing cause of damages.

Judge:

R. K. Sandill

Trial Length:

4
 days

Trial Deliberations:

2.5
 hours

Jury Vote:

10-2

This report is based on information that was provided by plaintiff’s and defense counsel.