Cybex to appeal ruling that upheld $44 million in damages [The Buffalo News, N.Y.]

Nov. 21--A Massachusetts-based exercise equipment manufacturer said today that it will seek to appeal last week's appellate ruling that upheld more than $44 million in damages and medical expenses for a Cheektowaga woman paralyzed while using an exercise machine.

Cybex International of Medway, Mass., found by an Erie County jury to be 75 percent responsible for her injury, said it is now liable for about $33 million, after insurance, plus interest.

"Cybex strongly believes that it was not at fault in the accident that is the basis of the plaintiff's claims and that this case was wrongly decided as to liability," said Cybex chairman and chief executive officer John Aglialoro.

A state appellate court Friday trimmed nearly $21 million from the personal injury judgment made last December, but upheld the evidentiary and other rulings in the trial. Even with the reduced damages, lawyers in the case say they believe it remains the biggest personal-injury award ever in Western New York.

"While the company appreciates the decision of the court to reduce the judgment, we believe that the amount of damages represented by the reduced judgment continues to be overstated," Aglialoro said in a statement. "Accordingly, we will petition the Court of Appeals of the State of New York to consider our appeal of the judgment."

The company said it expects to hear within 60 days if the Court of Appeals accepts its appeal. If the appeal is accepted, a ruling could come during 2012.

The company, in a statement, said it is also "exploring both ways to protect itself in the event the Court of Appeals does not accept the appeal for consideration and available alternatives to fund an ultimate resolution of the matter."

Natalie M. Barnhard, 31, a former physical therapy assistant, was left a quadriplegic when a weight machine fell on top of her seven years ago.

Barnhard, 5-foot-1 and 110 pounds, was crushed when she did a shoulder stretch using a leg extension machine. She currently lives in the Atlanta area, where she receives physical therapy and treatment.

The five-member appellate panel in Rochester reduced the award of damages for past pain and suffering from $8 million to $3 million, and it reduced the award of damages for future pain and suffering from $25 million to $9 million. The appellate court also set aside the $792,000 in damages for future care of potential children.

The appellate court granted Barnhard a new trial on damages for the past and future suffering, or she has 20 days to accept the reduced amounts set by the appellate court. If she accepts, those are the amounts she'll receive.

Her lawyers said they need to talk to Barnhard about it before deciding how to proceed.

The appellate court left intact the awards of $1.7 million for medical expenses, $28.6 million for future medical expenses, and nearly $2 million in lost earnings.

Barnhard's lawyers -- Kevin J. English and Michael R. Law, both from the Phillips Lytle law firm -- have said the chances are slim that the appellate court's decision would be overturned or damages further reduced by a higher court.

Cybex said it is analyzing how the appellate decision will impact its fourth quarter and full year results.

Last year, an analyst, D.A. Davidson'sReed Anderson, downgraded his rating of Cybex's stock to "underperform" from "neutral" after the jury verdict.

"If the judgment stood, it would likely bankrupt the company, in our view," Anderson wrote at the time.

Cybex has only $4 million of insurance coverage that can be applied toward the verdict, he wrote.

Cybex reported $123 million in sales in 2010, mostly cardiovascular equipment. The company employs 552 people full-time.

The jury found Amherst Orthopedic Physical Therapy, where Barnhard was working when the accident occurred, 20 percent liable and Barnhard 5 percent responsible for the accident.

A 608-pound Cybex leg extension machine tipped over and fell on top of her when she was with her assigned patient at Amherst Orthopedic.

She stood on the weight-stack side of the machine, put her hands on top of the equipment and pulled on it in order to stretch her arms and shoulder. The machine was not secured to the floor.

While Barnhard was not using the machine for its intended purpose, the appellate judges found that the use of exercise machines for stretching is common and foreseeable.

The Appellate Division of State Supreme Court in Rochester said State Supreme Court Justice Diane Y. Devlin properly denied the company's post-verdict motion to set aside the verdict.

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