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August 2016

Expert Witness Fitness Injury – Can I file a claim

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Recent surveys of selected health/fitness facilities conducted by a number of industry professionals, (HINT) have demonstrated that many health clubs and fitness facilities and the professionals working within them have not routinely provided pre-activity participant screening.  Clearly the applicable industry standards and guidelines mandate that such screening take place prior to the individualized “prescription” or recommendations for beginning activity to participants, especially if the expected aerobic and/or strength exercises include those of moderate or higher intensity.  While these same recent survey results also indicated that many industry professionals were unaware of at least some of these standards, it is essential to understand that the lack of familiarity with these statements is not a defense for failing to adhere to such standards. In fact, a failure to screen or even perform screening in a manner consistent with these standards which proximately results in client injury may actually increase the likelihood of legal claims and suits based upon negligence.  This unfortunate situation may be even more likely for personal fitness trainers (PFT) who can probably be expected to be held to a higher standard of care than most other fitness professionals. While personal trainers may not yet be classified as health care professionals and therefore subject legally only to negligence actions (not medical malpractice type lawsuits), legal claims and lawsuits against such professionals are likely to require expert opinion testimony to be successfully asserted against them. Opinion testimony is generally provided in litigation by experts within a given field who provide opinions as to negligence, information about industry standards, and whether deviation or adherence to such standards occurred in the delivery of service by the defendant.  Such testimony then is used by fact finders such as juries to determine whether or not the defendant committed negligence through the delivery of substandard care which proximately caused harm to the person who brought the claim and suit – the plaintiff.  The process of providing individualized exercise parameters for a client (mode, intensity, duration, and progression) and the supervision provided by personal fitness trainers have been the subject of at several reported legal cases. Such suits have been filed predicated on claims of “negligent training, monitoring, instruction, supervision and advice,” those related to the alleged development of unsuitable activity for clients and those related to other alleged deficiencies occurring over the course of ongoing personal trainer activity.  Client injuries based upon claims that clients were told to use too much weight, too much resistance or engage in too many exercise repetitions have been put forth with some regularity.  While such claims of negligence result in personal consequences to those directly involved in the litigation, these events collectively often result in industry actions and in some instances legislative proposals for licensure and other forms of proposed public regulation for personal trainers. These are some guidelines that can help the fitness centers, and gyms decrease liability. I provide risk assessment for many fitness centers.

 

Expert Witness Fitness Statement

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Testimony usually consisting of opinion evidence given on a scientific, technical, or professional matter by persons qualified to speak authoritatively because of special training, skill, experience, or familiarity about a subject. After 30-years as president of the longest owned, and operated Personal Training, and fitness center, I am an expert in risk assessment, and gym and fitness center injuries.

I work with attorneys who represent the plaintiff and the defendant. The ratio has been 60 percent Plaintiff / 40 percent Defendant. This statistic has been formulated by the referrals I have received.

  The standards I follow as an Expert Witness in Fitness and gym injuries. 

1)     Adapt to the audience/examiner situation.
 The attorneys know that one size does not fit all and the expert has to be savvy enough to take into consideration the makeup of the jury and the cross-examining attorney.

2)     Answer questions on the stand in a way that fits within the client’s theme of the case.
Experts need to know the theme of the case, and work that into their answers in cross-examination so that retaining counsel can argue this successfully at closing.

3)     Communicate clearly, everything is secondary.
All trial attorneys understand that technical expertise in an expert witness is worthless unless the expert can clearly and effectively communicate what the jury needs to know in a respectful, understandable fashion.

4)     Concede points they should concede.
Expert witnesses dramatically increase their credibility when they simply and directly make appropriate concessions. Their honesty is recognized and appreciated by the jury. Expert witnesses who quibble over every petty point are less valuable to retaining counsel as they are less effective.

5)     Listen carefully to the question and answer it directly.
Active listening is a must for an effective expert witness. The expert needs to hear what is being asked, what is not being asked as well as the subtext of the question and then answer it honestly and directly. Defensiveness or evasiveness in an expert can completely destroy his/her effectiveness.

6)     Take the high road when personally attacked.
The expert who does not take it personally and remains cool, calm, and collected when under attack demonstrates professionalism. The contrast with the attacking attorney is not lost on the jury.

7)     Distill complex concepts/science for the jury.
The expert witness who can turn to the jury, smile, and explain to them in language they can understand, complex issues is a very valuable expert. When the attorney and expert witness see some of the jury members nodding their heads, even if it is almost imperceptibly, they know they expert has successfully met this challenge.

8)     Persuade the jury or judge.
The persuasive expert witness who is able to achieve this without being perceived as an advocate is seen by trial attorneys as very desirable and valuable.

9)     Maintain their honesty.
Experts, who in the midst of a contentious adversarial litigation system can maintain their honesty and appearance of honesty are credible experts sought out by trial attorneys.

10) Ability to be jury friendly
Expert witnesses who are able to relate to and connect with members of a jury are seen by trial attorneys as the “go to” experts in both large and small cases.

Conclusion
Expert witnesses who are looking to be retained by  attorneys should critically evaluate their skills and abilities and work to improve in any areas they are not as strong as they could be.

Dave Parise CPT FPTA

Expert Witness Fitness injuries

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Opening Statement

Who am I:  Expert Witness Fitness is a company that understands a Gym and Fitness center rights. My name is Dave Parise and I have specialized experience that allows me to testify in court to help the judge or jury understand complicated or technical subjects involving fitness center claims. I have seen gyms and fitness centers sued for harassment, cameras, locker theft, dehydration, revoked memberships, a pulled muscle, a reoccurring injury, to name a few. All dismissed for wrong doing, and negligence on part of the member.

What I do: I determine based on a report of findings the facts that lead to an expert witness opinion. As an expert witness with 30 years’ experience in the fitness industry, I am capable of turning the tables on an opposing lawyer by showing expertise, my command of the facts, and my ability to communicate and defend opposing opinions. This defines what an expert witness is, what my duties are, and it helps to be prepared to testify and defend my report and opinion. My experience defines me as a “Liability Protection” provides peace of mind with the insurance company, and your lawyer. I protect your gym and fitness center and private studio from the risks associated with being sued. Side note: I have owned and operated a private studio, and fitness center for 30 years. I also own a school for personal trainers. Fit Pros Academy.

I understand that bad things happen to good people, and the right expert witness provides solutions, and gathers the pertinent facts to help you through it. I will assist and guide along with the attorney through complex legal system, ensuring that your Constitutional Rights are protected every step of the way.

While health clubs, gyms and fitness centers, are a destination for fitness enthusiasts, they are often times blamed, and sued for many misrepresented false claims. There are many nuisance cases, and I can formulate my expert opinion to defend.  In some instances serious injuries are caused by the member.  Some members have been negligent to abide by the rules and regulations mandated by the said fitness center.

HEALTH CLUB SAFETY: WHAT YOU NEED TO KNOW

I help facilities implement the standards that protect them from fault.  I have written emergency policies and procedures for health/fitness facilities. Health/fitness facilities are defined as commercial (for profit), community (not for profit), corporate, and clinical (medical fitness). My consulting recommends standards that contains requirements related to pre-activity screening; orientation, education, and supervision; risk management and emergency policies; professional staff and independent contractors; compliance with federal and local regulations; operating practices; federal regulations and signage for health/fitness user and/or facilities. It is intended to assist in providing a safe environment for those who engage in the activities and programs offered by health/fitness facilities. These standards keep the facility bullet proof. Without these standards, and guidelines a facility can be liable for negligence.

***Health clubs like any other establishment owe their patrons a reasonable duty of care to make sure the property is free from not only defective conditions, but also dangerous conditions on the property. Health club owners are required not only to inspect for such issues but to also warn- inform customers. Some health clubs provide adequate warnings, and inform members.  However liability can be due to members moving equipment, using equipment in non-designated areas, modifying equipment, , which causes liability regards to proper spacing, and goes against manufactures recommendations. Other members have been shown, instructed on proper training techniques, yet continue to train in an unorthodox overzealous way. Literally making up their version of an exercise. This creates a hazard to everyone as well as other members.

Personal statement: Generally, harm is brought under negligence. In order to bring a cause of action under negligence it is required to show that the health club did not follow the health fitness standards and guidelines. Was there a breach of duty? Was there any witness at the time of claim? Was the harm suffered caused by the health club, or the member? Was the member warned in writing in regards to past actions? Did the member have any past, or current musculoskeletal concerns / health concerns?   In order to determine fault, or negligence this must be discovered first. I can assist, help fitness centers, and gyms defend their rights against false claims, and the challenges of lawsuits.

 

Dave Parise Expert Witness

CPT MES FPTA

daveparise@resultsplus.com

203-675-5575