New York State Court of Claims

New York State Court of Claims
GAMACHE v. THE STATE OF NEW YORK, # 2010-036-700, Claim No. 106968

Synopsis

Case information

UID: 2010-036-700
Claimant(s): JOEY GAMACHE & SISSY GAMACHE
Claimant short name: GAMACHE
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 106968
Motion number(s):
Cross-motion number(s):
Judge: MELVIN L. SCHWEITZER
Claimant's attorney: SULLIVAN & GALLESHAW, LLP
By: Keith Sullivan, Esq.
FASULO, SHALLEY & DIMAGGIO
By: Louis V. Fasulo, Esq.
Defendant's attorney: ANDREW M. CUOMO, ATTORNEY GENERAL
By: Ross N. Herman, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 26, 2010
City: New York
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This is the court's decision on liability after a five-day trial (July 13-17, 2009) which followed the court's earlier summary judgment decision (November 26, 2008) where the court dismissed claimants' fraud and breach of contract claims, but denied defendant's motion for summary judgment with respect to claimants' negligence claim.

The claim arises from the professional boxing match between junior welterweight fighters, Joey Gamache and Arturo Gatti on February 26, 2000 at Madison Square Garden, televised by HBO. The bout was the co-featured prelude that evening to a high-profile welterweight match between Oscar De La Hoya and Derrell Coley. The bout was authorized and fought under the supervision of the New York State Athletic Commission (Athletic Commission or Commission). Mr. Gamache entered the ring with a record of 55 wins (38 by knockout), 3 losses and was ranked as one of the top boxers in the world in several weight divisions. Mr. Gatti, a former junior lightweight world champion had a record of 30 wins (25 by knockout), 4 losses. Mr. Gatti knocked out Mr. Gamache early in the second round and Mr. Gamache sustained head injuries that ended his boxing career.

Mr. Gamache alleges here that the official weigh-in for the bout, conducted by Athletic Commission officials on the day before the fight, was done negligently. The fighters had contracted to weigh no more than 141 pounds. According to Mr. Gamache, Mr. Gatti did not make this contract weight, yet despite objections at the weigh-in from the Gamache camp that he did not, Mr. Gatti was allowed by the Athletic Commission to fight anyway. Mr. Gamache asserts that the result of the Commission's failure to enforce the applicable contract weight at the weigh-in was that Mr. Gatti then was able to rehydrate and further nourish himself in the ensuing 30 hours before the bout, and thus came into the ring weighing approximately 20 pounds over the prescribed weight for the fight, three or four weight classifications above the junior welterweight category they were fighting in. The weight mismatch, according to Mr. Gamache, enabled Mr. Gatti to land punches that were far more powerful, and thus damaging, which resulted in Mr. Gamache being quickly knocked out and seriously injured. According to Mr. Gamache's counsel in his opening statement: "This case is not about a mismatch of skill. It's about a mismatch of the size that came about as a direct result of the State's failure to uphold their rules and regulations."

Defendant counters that the Athletic Commission properly conducted the weigh-in, and that Mr. Gatti did make the 141 pound weight limit prescribed for the fight. Any subsequent weight gain that Mr. Gatti was able to achieve during the customary rehydration and replenishment period after the weigh-in and before the fight was permissible and is the only explanation for why Mr. Gatti may have appeared bigger and heavier than Mr. Gamache on fight night. Defendant also contends that if Mr. Gamache's corner believed the weigh-in was not conducted properly, they did not lodge an effective protest at the time. And, finally, defendant disputes that Mr. Gamache was able to prove the knockout was caused by anything other than Mr. Gatti's boxing and punching prowess.

A summary of the testimony of each witness deemed relevant for purposes of the court's decision is recounted below.(1) The court's findings of fact and conclusions of law then are set forth, followed by a discussion of certain aspects of the evidence that bear on the court's findings.

Trial Testimony

For the Claimants

Joey Gamache

Mr. Gamache was a professional boxer (now retired) who began his amateur career at the age of 11, boxed in the National Junior Olympics, the Golden Gloves, was selected to box on the United States Olympic travel team in 1984 and, at the age of 20, became a professional boxer.

He agreed to box Mr. Gatti in the junior welterweight division, which he believed was limited to boxers weighing no more than 141 pounds. Mr. Gamache initially wanted to fight at a contract weight of 147 pounds, the start of the welterweight category, because he felt both he and Mr. Gatti could "come in, you know, big and where our natural weight is." But Mr. Gatti's promoters, Main Events, refused to agree to the higher weight category. Mr. Gamache said Mr. Gatti had a reputation for gaining a large amount of weight between the official weigh-in and a contest, and he was aware of this at the time he agreed to fight Mr. Gatti. He was paid $75,000 for participation in the contest and Mr. Gatti was paid $300,000.

When Mr. Gamache began training for the bout, he weighed approximately 158 pounds. He engaged in a rigorous training regimen, including sparring with selected boxers, to bring his weight down to 141 pounds. He found the weight loss process arduous, particularly so as he approached 141 pounds. He found losing the last pound or two to be a "killer".

Prior to each licensed contest in New York State, the contestants are weighed by a representative of the Athletic Commission. The weigh-in for the Gatti-Gamache bout occurred on February 25, 2000, one day prior to the contest, at Madison Square Garden.

Approximately one hour before the official weigh-in, Mr. Gamache and his manager, Johnny Bosdal, were at Madison Square Garden where the official scale to be used at the weigh-in was kept. Mr. Gamache weighed himself and registered 137 pounds. Both of them thought the scale was miscalibrated because he had weighed approximately 140 at his pre-fight physical. Mr. Bosdal notified officials of the Athletic Commission, who then sent personnel to recalibrate the scale. Mr. Gamache tested it again, and the scale registered him at approximately 140 pounds. Both Mr. Gamache and Mr. Bosdal then went across the street for an HBO interview before returning for the official weigh-in.

At the official weigh-in, Mr. Gamache watched as Mr. Gatti was weighed first, but he was not in a position to see the scale clearly. Mr. Gatti's weigh-in was quick and surrounded by controversy. Mr. Bosdal, and Mr. Gamache's trainer, Jimmy Glenn, each protested that Mr. Gatti was not "on weight," that is, he weighed more than the 141 pound contractual limit. Immediately after Mr. Gatti was weighed, he got off the scale and began drinking water. Mr. Glenn exclaimed that the scale did not balance and demanded that Mr. Gatti be reweighed. The official conducting the weigh-in, Anthony Russo, Executive Director of the Commission, rebuffed the objection.

Immediately thereafter, the weigh-in of Mr. Gamache proceeded despite the controversy surrounding Mr. Gatti's weigh-in. None of his representatives approached Melville Southard, Chair of the Commission, nor any other commissioner regarding the perceived irregularities of the weigh-in and the fact that Mr. Russo had brushed off their complaints. Nor did they approach Main Events, Mr. Gatti's promoter of the bout, with whom Mr. Gamache had a contract regarding the contest. Mr. Gamache said he went ahead with his weigh-in because he was a fighter and that was his life. Also, he confirmed that neither he nor his representatives protested the holding of the fight itself, despite the fact that the contract he had signed required his opponent to meet the 141 pound weight limit within eight hours of the contest. Mr. Gamache said he believed Mr. Gatti was considerably overweight, but was convinced he still could win the contest.

On February 26, 2000, prior to the fight that night and while he still was in his dressing room, Mr. Gamache was unofficially weighed on a bathroom-type scale by HBO and registered 145 pounds. After the bout, he was told Mr. Gatti also had been weighed by HBO before the contest, and had registered 161 pounds. He was not told about the results of Mr. Gatti's unofficial HBO weigh-in before the fight, although Mr. Bosdal was.

Mr. Gamache recounted that after Mr. Gatti entered the ring and removed his robe, he was startled because Mr. Gatti presented a physique which he characterized as "big". He thought for a moment that his opponent was Joe Gatti, Mr. Gatti's brother, who fought in the 160-168 pound weight class. He testified that he felt compelled to fight nonetheless, because he was a fighter and a warrior and he did not quit fights.

Peter Pharoah

Mr. Pharoah worked for the ten years prior to the Gatti-Gamache weigh-in as a boxing photographer. He had attended in excess of 200 weigh-ins. He was a credentialed media representative at the Gatti-Gamache weigh-in. He had a camera and took pictures of the proceedings. He had an unobstructed view of everything that went on.

Prior to the weigh-in, Mr. Pharoah witnessed the weigh-in for the De La Hoya-Coley fight. He asserted that Oscar De La Hoya weighed more than the limit for his weight class because Mr. Pharoah observed that at the moment the fighter's weight was recorded, the needle of the scale had not balanced in the middle of the triple beam scale. The needle had gone to the top of the triple beam scale, indicating that the fighter was heavier than the maximum allowable weight for the contest. Mr. De La Hoya threw his hands into the air, causing the needle to bounce a bit, but it did not settle in the middle of the scale before his weight was recorded.

According to Mr. Pharoah, pictures he had taken of the Gatti-Gamache weigh-in, which were in evidence at the trial, demonstrated that when Mr. Gatti was weighed he did not make his required weight. He interpreted his pictures as showing that the needle of the triple beam scale did not settle in the middle but was touching the top, even after the weigh-in officials adjusted the scale so as to make the permitted weight higher than it had been originally set. This, he asserted, demonstrated that Mr. Gatti weighed in excess of 141 pounds.

Mr. Pharoah said that during the course of the weigh-in the needle stayed frozen at the top of the scale, even when Mr. Gatti threw his hands in the air immediately prior to getting off the scale. According to him, Mr. Gatti's weight was recorded in less time than was customary in the circumstances, but not until he had raised his hands in the air.

Mr. Pharoah saw Mr. Glenn object to the weigh-in procedure. Mr. Glenn asked the Commission representatives to put Mr. Gatti back on the scale. Mr. Bosdal also appeared to be objecting to the manner in which Mr. Gatti's weigh-in was conducted.

Melville Southard

Mr. Southard is an attorney who, in 1996, was appointed to the Athletic Commission, and in 1998 succeeded former heavyweight boxing champion Floyd Patterson as its Chairman.

Mr. Southard said that at the time of the Gatti-Gamache contest, and until his resignation in 2000, Robert Duffy was the Coordinator of Boxing for the Commission and supervised most weigh-ins at boxing matches throughout the State. On the day of the contest, however, the weigh-in was conducted by Mr. Russo, who Mr. Southard previously had appointed as Executive Director of the Commission's Metropolitan Region. Mr. Southard said that at the time he appointed Mr. Russo, he was unaware Mr. Russo had been convicted of a felony, but that he learned this was the case while he was Chairman of the Commission but after Mr. Russo left its employ. Mr. Russo worked in the Poughkeepsie office of the Athletic Commission until that office was closed in 1999, and thereafter he worked with Mr. Southard in New York City. Mr. Southard said that at the time of the Gatti-Gamache weigh-in, Mr. Russo had very little experience in conducting weigh-ins and, in fact, this was the last weigh-in he conducted. Mr. Southard nevertheless believed Mr. Russo had the ability to conduct a proper weigh-in. Mr. Russo was Mr. Duffy's superior, although Mr. Southard supervised Mr. Duffy on a daily basis.

Mr. Southard explained that New York had 16 weight divisions for professional boxers in order to protect the health and safety of the boxers. Weight divisions prevent matches between opponents not equally matched in size and strength. He acknowledged that punches thrown by heavier boxers have, as a generalization, more power behind them than those of lighter boxers, although this is not universally so. An additional "safety practice in the industry" required boxers weighing in excess of 154 pounds to wear 10 ounce gloves, rather than 8 ounce gloves, because the additional padding is believed to provide additional cushioning of fighters' punches. There was no Athletic Commission rule, however, relating to the size of the gloves.

Weigh-ins usually were conducted by two Commission representatives, he said, the first would read and call out the weight of the boxer on the scale, and the second would record it. Prior to the actual weigh-in, the scale would be set to the contract weight of the fighters, which in the Gatti-Gamache fight was 141 pounds. If the scale had just been used to weigh boxers in a different weight class, it would have to be adjusted or "zeroed out" for the next fight. This, however, did not necessarily mean moving the weights to zero, but rather adjusting the weights with reference to the relevant contract weight.

Mr. Southard adjusted the scale between the time Mr. Gatti was weighed and Mr. Gamache stepped on the scale. This was done, he said, to assure the scale had not moved when Mr. Gatti bounced off the scale. He made the adjustment. This was his usual procedure, he said, a nervous habit.

Mr. Russo conducted the weigh-in but Mr. Southard participated. The DVD of the weigh-in that was viewed in court showed Mr. Russo adjusting the scale after Mr. Gatti stepped on it. Mr. Southard said it was his best recollection that this occurred because before Mr. Gatti got on, someone told Mr. Russo "junior welterweight" and Mr. Russo set the counterweight. But then, according to Mr. Southard, "somebody" saw the scale had been set at 140 pounds. That person yelled out the contract weight of 141 pounds, so Mr. Russo adjusted the scale while Mr. Gatti was on it.

On the day of the Gatti-Gamache match, Mr. Southard and Mr. Duffy arrived at Madison Square Garden at approximately the time of the weigh-in for the De La Hoya contest. The fighters for that bout already were in the vicinity of the scale, as was Mr. Russo, the promoters and the media. The weigh-in had almost begun and Mr. Southard said he instructed Mr. Duffy to take over the proceedings, but Mr. Duffy declined saying it was too late. Mr. Duffy encouraged Mr. Southard to take a place at the scale, and Mr. Southard did so. Mr. Russo conducted the De La Hoya weigh-in. Mr. Southard was told several times that the scale did not balance correctly when Mr. De La Hoya was weighed. A commotion had broken out as Mr. Coley and his team asserted they had been disrespected. Mr. Southard said he offered Mr. Coley the opportunity to have Mr. De La Hoya weighed a second time, but he never told Mr. Russo he had done so. Following the De La Hoya weigh-in, Mr. Southard remained at the scale for the Gatti-Gamache weigh-in to assume the job of confirming the called-out weight.

Mr. Southard explained that with respect to objections or protests made by boxers regarding an opponent's weigh-in, it was the custom of the Athletic Commission to reweigh the boxer. A protest had to clearly include a request for a reweighing, not just some yelling which has been part of the culture. If a boxer who is the second to be weighed for a match is not satisfied with the weigh-in of his opponent who is weighed first, he can protest by not getting on the scale, or refuse to fight. Referring to Mr. De La Hoya's weigh-in, he said there never was a request by Mr. Coley's corner for a reweighing, so he did not consider it to have risen to the level of a protest. He merely had volunteered an opportunity to have Mr. De La Hoya reweighed. When Mr. Gatti was weighed, there was commotion and name calling between Mr. Russo and Mr. Bosdal. Mr. Russo told Mr. Bosdal to stop "stirring up s--t" and Mr. Bosdal then left. Mr. Southard said he did not believe Mr. Bosdal had asked for Mr. Gatti to be reweighed. If Mr. Gamache's team had complained to Mr. Duffy, which they did not, action could have been taken, such as enforcement of the contract to require a weigh-in within 8 hours of the fight. Mr. Southard then told Mr. Russo they should leave the site immediately because of security concerns. Usually, Madison Square Garden provided security at weigh-ins, but not this time. He explained he was told that because earlier in the day the Amadou Diallo jury verdict had been rendered and the "whole place" was on high alert so security personnel had been deployed elsewhere. Mr. Southard wanted to cool down what was going on. He did not want to see the controversy elevating. HBO, too, which was televising the weigh-in also had been rushing things "and wanted to get the hell out of there, too."

According to Mr. Southard, Mr. Gatti's weigh-in was of average duration, and when Mr. Gatti was on the scale, Mr. Russo told the fighter to raise his arms in the air which was to prevent his movement and to prevent him from leaning from side to side. This was a customary procedure. He recalled that when Mr. Gatti first stepped on the scale, the needle hit the top of the beam. When he raised his arms in the air, the needle moved down and Mr. Gatti's weight was called. Mr. Southard then checked the scale to see if the call was accurate. He then heard someone shout out that the scale did not balance, but was not aware who did so. Mr. Russo, first, had moved the weight while Gatti was on the scale to set it at 141 pounds.

As to the fight itself, Mr. Southard said that when he saw Mr. Gatti on fight-night, the only difference he observed was that Mr. Gatti appeared to him to be taller than he had appeared at the weigh-in. Mr. Gatti's knockout punch of Mr. Gamache was a clean shot. The knockout, he said, was not unlike many others occurring in the sport.

Mr. Southard explained that the purpose of the industry's custom and practice of weighing fighters the day before the fight was to let them rehydrate and gain significant weight by the time of the fight. Based on the advice of medical advisory boards that rehydration lessened the chances of a brain injury caused by a blow to the head, this has become the procedure, over some objection.

He said that Mr. Russo initially had not been selected to conduct the weigh-in, but did so only because Mr. Southard and Mr. Duffy had been detained coming to Madison Square Garden.

According to Mr. Southard, under Athletic Commission regulations, boxers in the 140 pound weight category could contract to fight weighing up to 151 pounds. If one boxer comes to the weigh-in two pounds or so overweight, he is given a few hours to "sweat it off" and, if this is not adequate, his opponent can agree to allow him to fight at the higher weight for a monetary concession. In the 140 pound weight class, if the fighter comes to the weigh-in heavier than 151 pounds this procedure cannot be used.

Mr. Southard said Mr. Russo had conducted approximately 20 weigh-ins prior to the Gatti-Gamache contest. No one from Mr. Gamache's camp complained to him about the weigh-in, he said, and Mr. Duffy did not raise an issue about the propriety of the weigh-in. Also, no one in Mr. Gamache's camp raised an issue concerning the use of 8 ounce gloves, rather than those weighing 10 ounces.

Anthony Russo

Mr. Russo passed away some time after his deposition. Selected questions and answers from his deposition testimony were introduced at trial.

He had been appointed the Executive Director of the Commission in 1996, and ran the day-to-day operations of the Commission until he left in September 2000. He conducted "in excess of 30 or 40" weigh-ins while at the Commission.

He characterized what happened at the De La Hoya-Coley weigh-in as a normal amount of controversy. There was a lot of yelling, but no formal protest of Mr. De La Hoya's weigh-in.

According to Mr. Russo, there was no particular procedure for a weigh-in. He could not recall whether he or Mr. Southard actually conducted the Gatti-Gamache weigh-in, he said. The weights on the scale did not have to be adjusted at all during Mr. Gatti's weigh-in, according to his recollection. "I'm sure that they weren't. I'm sure that they weren't," he said. He remembered telling Mr. Gatti to raise his arms to steady the scale, and that the scale balanced after Mr. Gatti did so. Mr. Bosdal yelled at him, perhaps about Mr. Gatti not making the contract weight. There was no formal protest in writing, as required, he said.

Robert J. Duffy

Mr. Duffy now is a boxing promoter, who was appointed to the Athletic Commission as a part-time inspector in 1986. At that time he was working in the New York City Police Department. On his retirement from the Department in 1994, he became a full-time employee of the Athletic Commission. He became experienced at doing weigh-ins, and during his career, he conducted over 3,000 weigh-ins and trained others in conducting them. At trial here, he also testified as an expert in the area of weigh-ins.

The process begins with a particular weight being set by contract, which informs the conduct of the weigh-in. At weigh-ins he conducted, he would set the scale at the contract weight and, if a boxer made that exact weight, he would not touch the scale. If the boxer exceeded the contract weight, the scale would have to be adjusted to record his weight. Scales were calibrated by the Athletic Commission at least once a year to assure they functioned properly. He would move the scale to zero at the beginning of the weigh-in for a bout so that he could be certain the bar leveled out and the scale was functioning properly. If there were multiple contests on a particular date, he would not move the scale to zero between weigh-ins.

Mr. Duffy said Mr. Russo, his superior, had little or no experience at weigh-ins at the time of the Gatti-Gamache contest, but Mr. Russo conducted that weigh-in nonetheless. Mr. Duffy had fully expected to be doing the weigh-ins for the bouts, but he and Mr. Southard arrived late at Madison Square Garden. When he arrived, Mr. Russo told him that he would conduct the weigh-in. Mr. Duffy acceded to his superior, but stayed in the area of the weigh-in, as he felt he still had responsibility for it as a Commission official.

According to Mr. Duffy, during a weigh-in only one person was to touch the scale and call out the weight of the fighter and confirm it with the other camp. Some other member of the Athletic Commission was to record the weight.

Mr. Duffy observed the weigh-in of Mr. Gatti, but his view was obstructed, and he could not see the needle on the scale. He did observe both Mr. Russo and Mr. Southard touching the scale during Mr. Gatti's weigh-in. He had no idea why Mr. Southard touched the scale, as this was not standard procedure. Viewing the incline of the scale as Mr. Gatti was being weighed, he was of the view that Mr. Gatti weighed in excess of 141 pounds as the scale was on an "uplift." Mr. Russo then touched the scale to make it a heavier weight. Mr. Southard also touched the scale, apparently making it heavier. According to Mr. Duffy, Mr. Russo and Mr. Southard only moved the weights on the scale a small amount. In his view, the weigh-in was not conducted in a proper manner. He explained that he did not want to become involved in the weigh-ins because Mr. Russo and Mr. Southard were his superiors. He said he never had a problem at weigh-ins he conducted because it was his practice to have the camps of both fighters agree on the weight shown on the scale.

In his view, Mr. Glenn, Mr. Gamache's trainer, was a perfectly mild mannered man. Yet he became extremely upset and spoke to Mr. Duffy about it fifteen minutes after the weigh-in.

Mr. Bosdal had called him prior to the weigh-in to tell him there had been a problem with the scale.

Mr. Bosdal also had called him days prior to the weigh-in to raise the issue of Mr. Gatti gaining large amounts of weight between the weigh-in and the day of the contest. He told Mr. Bosdal to write a letter regarding this issue and he would give Mr. Gamache's team the opportunity to have the weigh-in scheduled for the morning of the day of the fight. Mr. Bosdal never wrote such a letter.

Johnny Bosdal

Mr. Bosdal was a professional boxing "matchmaker" or manager who represented Mr. Gamache at the time of the Gatti-Gamache contest. His association with Mr. Gamache started in October 1987, at a time when Mr. Gamache already had fought three professional contests. He continued as Mr. Gamache's manager until his fighter retired after the bout with Mr. Gatti. Mr. Bosdal's career in boxing started as a writer for boxing periodicals. He later went on to become an advisor/consultant for a number of professional boxers, including 15-20 world champions.

In Mr. Bosdal's capacity as Mr. Gamache's manager, he worked with Mr. Gamache to pick the opponents he should fight. He said that in choosing an opponent the importance of the weight classification cannot ever be overemphasized, because a mismatched weight classification can lead to serious injury. Once the boxers agree to fight each other, they enter into a contract which specifies the maximum weight the fighters can be at the time of the bout. Then, they work hard to get to the "contracted" weight. He and Mr. Gamache thought Mr. Gatti would be a good opponent, as he believed Mr. Gatti was a good boxer but that Mr. Gamache could defeat him.

The contract negotiations for the fight were conducted by the respective camps of the two fighters, together with the promoter, Main Events. (Main Events had a television contract with HBO). The contract weight for the match was negotiated to be 141 pounds. At the time of the negotiations, Mr. Gamache actually was the bigger fighter and previously had been fighting at a contract weight of 147 pounds. In fact, for the three or four years prior to the fight, Mr. Gamache had not fought at 141. As part of the negotiations, however, the Gamache camp decided to agree to the weight of 141 pounds, even though he had wanted to fight at a 147 pound weight. Mr. Bosdal knew it would be tough for both fighters to get down to 141, but said he believed it would be even harder for Mr. Gatti to do it.

After they signed for the fight and both fighters were well into training, Mr. Bosdal heard Mr. Gatti was having trouble coming down in weight. Mr. Bosdal began speaking to Mr. Duffy about this, and at some point, Mr. Duffy called him about rescheduling the weigh-in for the day of the fight instead of the day before, as had been originally agreed. Mr. Bosdal preferred to keep it for the day before. Mr. Gatti's promoter had requested the weigh-in for the day before so that Mr. Gatti would have sufficient time to rehydrate, and since Mr. Gamache had been fighting as the bigger fighter at that point, Mr. Bosdal wanted Mr. Gamache to have sufficient time to rehydrate, as well. Mr. Gatti had a reputation of putting on significant weight during this period. Mr. Bosdal was aware that this is what happened in Mr. Gatti's last contest when Mr. Gatti was fighting at a contract weight of around 140 pounds.

The weigh-in was held on February 25, 2000, a day prior to the contest. On that day, Mr. Bosdal and Mr. Gamache went for a scheduled physical at 1:00 p.m. At the physical, Mr. Gamache's weight was recorded at 140-1/2 pounds. Thereafter, at around 3:00 p.m., the two men went to the sixth floor at Madison Square Garden before the official weigh-in because they thought a previously scheduled HBO interview with Mr. Gamache was to take place there. It turned out the interview was in a hotel across the street, but Mr. Gamache decided that while he was there he would weigh himself on the official scale. It showed him weighing 137 or 137-1/2 pounds. Mr. Bosdal felt the scale was miscalibrated by three pounds, and called Mr. Duffy to inform him. The scale subsequently was recalibrated correctly by Madison Square Garden personnel and he and Mr. Gamache proceeded to an interview with HBO at the Southgate Hotel.

After the interview, they returned to Madison Square Garden for the official weigh-ins of the next evening's bouts. The first weigh-in to take place was for the De La Hoya main event. Mr. Bosdal observed controversy about Mr. De La Hoya not making his contract weight, and Mr. Bosdal could hear representatives of Mr. De La Hoya's opponent protesting.

The Gatti-Gamache weigh-in then was conducted by Mr. Russo and Mr. Southard, the latter standing next to Mr. Russo. Mr. Bosdal did not consider Mr. Russo an authority/hands on boxing guy. Mr. Bosdal stood within 5 feet of the scale. He observed that the scale was set at 141 pounds. When Mr. Gatti got on the scale, the needle hit the top of the scale. Mr. Russo then asked Mr. Gatti to raise his hands. Due to the momentum caused by this, the springs in the scale made the needle bob. According to Mr. Bosdal, he then saw the needle move up to the top again. Mr. Russo called the weight at 141 pounds while the needle was still in motion and while Mr. Gatti's hands were still moving. Mr. Bosdal protested before Mr. Gatti got off the scale, saying "he didn't make the weight." Mr. Gatti got off the scale, however, even as his hands were still in the air. Mr. Gatti grabbed a drink as soon as he got off.

Upon hearing the protest, Mr. Russo told him to "stop stirring up s-t" and when Mr. Bosdal once again said "He did not make weight," Mr. Russo told him to "shut the f-k up and get the f-k out of here." At this point, he left, and Mr. Glenn, who also was present, continued to protest. According to Mr. Bosdal, before anything else could be done, Mr. Gatti had left the room. Mr. Bosdal acknowledged that no protest was made to Mr. Duffy.

Mr. Bosdal said that if a fighter believed his opponent did not make the contract weight, and the Athletic Commission agreed, the fighter had the option of pulling out of the fight, negotiating a new contract for more money or requiring the opponent to make the weight. If the Athletic Commission did not agree, however, and declared the weight final, there was no recourse left for the objecting fighter. He characterized the Athletic Commission as the "boxing police." He said it was not an option to disobey the Athletic Commission and its rules. He explained he did not see any reason to continue protesting once Athletic Commission representatives had ruled on the weight issue.

On the day of the fight, Mr. Bosdal was with Mr. Gamache before the bout, and at ringside during the contest. After Mr. Gamache and his camp left his dressing room to make his way to the Madison Square Garden ring, as they were walking down the aisle a person associated with HBO came up to Mr. Bosdal and told him Mr. Gatti had weighed 161 pounds at his unofficial HBO weigh-in before the fight. Mr. Bosdal did not tell this to Mr. Gamache, as he wanted to make sure his fighter stayed positive for the contest. When Mr. Gatti took off his robe in the ring, Mr. Gamache asked Mr. Bosdal if it was "Arturo or Joe?" Joe Gatti was Mr. Gatti's brother, a boxer who competed in a heavier weight category.

Both fighters laced up with 8 ounce gloves for this bout. He explained that boxers above the weight of 154 pounds wear 10 ounce gloves, but the weight of the gloves was not an issue here, as no one knew what Mr. Gatti's actual weight was. Earlier, Mr. Gamache's camp had raised an issue regarding the make of the gloves, but their preference had not been accepted by Mr. Gatti's promoter, and the fighters used Reyes gloves.

According to Mr. Bosdal, Mr. Gatti had a one-inch reach advantage and a slight height advantage over Mr. Gamache. Mr. Gamache had a good track record with opponents having a similar advantage, he said.

As far as the possibility that Mr. Gamache could withdraw from the contest was concerned, Mr. Bosdal explained that until the bout was about to begin, the Gamache camp had no information about Mr. Gatti's actual weight. They were positive about winning the contest in any event. Also, he explained, a professional fighter withdrawing from a contest would be looked on as a coward. In the past, fighters have been suspended for not showing up. Once the contest was about to begin, stopping was not an option in his view, as confronting an angry Madison Square Garden crowd could have been even more dangerous for the Gamache camp than entering the ring. Also, Mr. Gamache would not have gotten paid.

Once the contest began, Mr. Gatti landed punches which knocked down Mr. Gamache twice during the first round, and also inflicted a blow to Mr. Gamache after the bell. At that point, Mr. Bosdal hurried to Mr. Russo to protest the late blow and ask for more time before the next round. Mr. Bosdal recounted that Mr. Russo told him he could not get a rest period, as Mr. Gamache had not gone down from the late punch. The attending physician at ringside and the referee who had the authority to stop the contest, did not do so. Apparently, they did not think Mr. Gamache was severely hurt. Mr. Gamache came out for Round 2 and Mr. Gatti delivered a punishing knockout that left Mr. Gamache lying on the canvas. Mr. Bosdal confirmed that as a result of the damage Mr. Gamache absorbed in the contest, his fighter was forced to retire from his boxing career.

Jimmy Glenn

Mr. Glenn was Mr. Gamache's trainer at the time of the Gatti-Gamache bout. He started his career as a fighter when he was 14. When Mr. Glenn was 49 or 50 years old, he decided to become a trainer. A number of boxers trained by him have competed in championship bouts. He also attended a number of weigh-ins during his career. He trained Mr. Gamache for approximately 15 contests before Mr. Gamache retired as a result of his bout with Mr. Gatti. As a trainer, Mr. Glenn's role was to get Mr. Gamache in shape for the fight, and help him with his boxing skills. This included arranging sparring sessions with opponents in the same weight category. When Mr. Gamache started training with Mr. Glenn, he had boxed in the lightweight category, but then progressed to a slightly heavier one (around 147 pounds).

Mr. Glenn said Mr. Gamache had to train and work very hard to stay fit and be at the 141 pound weight contracted for the fight. He was confident Mr. Gamache would put up a good fight if Mr. Gatti also got down to the contracted weight. But Mr. Glenn believed Mr. Gatti would not be able to get to that weight, and if he did, he would have to work very hard to do it and that would be to Mr. Gamache's benefit.

At the weigh-in, Mr. Glenn was standing within two feet of the triple beam scale and leaning into within almost 10 inches of it. When Mr. Gatti got on the scale the needle went to the top. Mr. Russo adjusted the scale and the needle moved slightly. At this point, Mr. Glenn started telling Mr. Russo that the scale did not balance. Before the needle could settle, however, Mr. Russo asked Mr. Gatti to raise his hands. Mr. Russo then called the weight and Mr. Gatti got off. Mr. Glenn kept protesting, even while Mr. Gamache was being weighed. He wanted to know how much Mr. Gatti really weighed, so he asked Mr. Russo to reweigh him. Mr. Gatti had already started drinking fluid, however, and Mr. Russo told Mr. Glenn it would not be possible to put him back on the scale. Mr. Glenn countered that Mr. Russo could allow Mr. Gatti two pounds for his drink, but he should be reweighed. Mr. Russo refused to do anything about it. According to Mr. Glenn, before Mr. Gamache got on the scale, Mr. Southard once again adjusted the weight. Mr. Southard did this, asserted Mr. Glenn, because they had to readjust the weight to 141 as it had been increased when Mr. Gatti was on the scale. Once Mr. Russo called the weight, Mr. Glenn understood it to be a final ruling from which the Gamache camp had no recourse but to accept the decision.

The night of the contest, Mr. Glenn was certain Mr. Gatti weighed more than the contract weight, because he looked much bigger than Mr. Gamache. The Gamache camp still was confident their fighter would be able to win the fight, as he was in good shape. Mr. Glenn recounted that when Mr. Gamache got hit after the bell ending Round One, Mr. Bosdal went over to Mr. Russo to obtain a five minute break between the rounds. Usually, if a boxer gets hit after the bell, it is considered a foul, and can be granted extra time to recover. Mr. Gamache did not get any extra time. Either the referee or the physician also could have stopped the contest at that point, but, apparently, everyone thought Mr. Gamache was not hurt, and was in a position to continue with the fight. Mr. Glenn was happy to see his fighter ready to fight again at the sound of the bell for Round Two.

Mr. Gamache went down in the second round, however. Mr. Glenn's opinion is that the disparity in weight between Mr. Gatti and Mr. Gamache was a significant contributor to Mr. Gamache's defeat and his injuries. Mr. Glenn conceded that Mr. Gamache had not adequately defended against some of the direct punches Mr. Gatti landed during the bout. In response to a question posed by the court, Mr. Glenn was unable to say with certainty how much of the beating Mr. Gamache took in the fight was because of the weight differential between the two fighters, and how much was a result of the blows Mr. Gatti was able to land on target.

Jack Hirsch

Mr. Hirsch is a physical education teacher at a school for special children and a writer for Preakness Boxing News, a weekly boxing publication. He also is President of the Boxing Writers Association of America and Vice President of the American Association of Professional Ringside Physicians. He has written for Preakness Boxing News for the last 20 years. He first met Mr. Gamache and Mr. Bosdal in the late 1990's. Mr. Bosdal was a great 'resource' person for Mr. Hirsch. Mr. Hirsch also was familiar with Mr. Glenn, and frequented Mr. Glenn's sports bar.

He followed Mr. Gamache during his preparation for the contest with Mr. Gatti, as he wanted to do a dressing room story with a well known boxer. He attended Mr. Gamache's training sessions.

Mr. Hirsch was not present at the Gatti-Gamache weigh-in because, in his experience, even though weigh-ins are important, they are routine, simple things, and are conducted in public primarily as media shows. "[I]t's more a publicity thing than anything," he said. He first heard of the controversy surrounding the weigh-in from Mr. Bosdal, when Mr. Bosdal called him and complained about it. Mr. Bosdal and a colleague were "swearing up and down" that the weights were taken the wrong way. Mr. Bosdal was livid and said he was going to protest. In Mr. Hirsch's experience, however, the Commission's rulings were final.

On the day of the contest, as he entered Madison Square Garden, he saw Mr. Russo and Lawrence Mandelker, a lawyer employed by the Athletic Commission. He asked Mr. Russo about the weigh-in, and related what he had heard from Mr. Bosdal. Mr. Russo called Mr. Bosdal a troublemaker looking to pump the fight. He also asked Mr. Mandelker why Mr. Gatti was not reweighed. Mr. Mandelker replied that it was ridiculous to ask for a fighter to be reweighed, and that the Athletic Commission would not consider doing so. Mr. Russo nodded his agreement at that time. Mr. Hirsch subsequently wrote in an article that Mr. Russo seemed surprised at the magnitude of the controversy that the weigh-in had generated.

He watched the contest from the official's room. Mr. Gamache was positive before the contest and confident that he would defeat Mr. Gatti. But when Mr. Hirsch saw Mr. Gatti enter the ring (not having seen him prior to that time), "I couldn't believe the size difference . . . Gatti was so much bigger and powerful that Joey was really up against it, you know, that night." Mr. Hirsch had thought it was going to be a competitive fight that could go either way, but once he saw the size of Mr. Gatti, "I immediately changed my prediction."

He had occasion to meet Mr. Russo a few months after the fight. Mr. Russo admitted to him that it would have been a good idea to reweigh Mr. Gatti the night of the weigh-in. Mr. Russo told him he could not have said this earlier, as Mr. Mandelker was a Commission attorney who was watching his back. Mr. Russo told Mr. Hirsch that what he said to him prior to the contest outside Madison Square Garden was wrong, and the Athletic Commission should have conducted a reweigh-in. According to Mr. Hirsch, Scott Trent, spokesperson for the Commission, at some point after the bout when the controversy escalated as a result of the knockout, also said the Commission would have reweighed Mr. Gatti if it had been asked to do so.

Eric Gelfand

Mr. Gelfand is Senior Vice President, Communications, at SCP Worldwide, a sports entertainment and media company. Prior to joining SCP Worldwide, he was Vice President, Public Relations for Madison Square Garden Networks and Sports. He worked for the Garden for twelve years.

Mr. Gelfand was present at Mr. Gatti's weigh-in and was positioned just a few feet from the scale. He could see the scale clearly. When Mr. Gatti stepped on the scale, the needle jumped up. Mr. Gatti then raised his hands, which made the needle move downward. Describing the movement of the needle, Mr. Gelfand testified that the needle did not balance. The needle did not hover in the middle of the scale. On being shown one of the photographs of the weigh-in, which depicted the needle to be somewhere in the middle of the scale, he said it was difficult to determine the movement of the needle from a still picture, as it only depicts a moment in time. Mr. Gatti could have been moving his arms at that instant. According to Mr. Gelfand, Mr. Gatti got off the scale before it could settle. When a fighter's arms go up, the needle moves down, he said. The fighter should remain in that position long enough for the needle to settle. Mr. Gatti did not. Mr. Gatti did not make the weight, he asserted.

Mr. Gamache's camp protested the weigh-in of Mr. Gatti since the needle did not properly settle in the middle of the scale. The members of the Athletic Commission, in spite of being positioned close to the protesting individuals, did not respond to the protest.

Mr. Duffy told him the weigh-in of Mr. Gatti was an embarrassment, Mr. Gelfand recounted.

Dr. Frank Folk

Dr. Folk is a primary care doctor specializing in trauma and surgery. He was claimants' expert witness. As a medical practitioner, Dr. Folk had a number of hospital affiliations, privileges and academic appointments. He also taught classes in sports and boxing medicine. He is a member of the American College of Surgery and the Founding Member of the American Trauma Society. Dr. Folk started his boxing medical practice in 1974, when he was appointed a ringside physician by the Athletic Commission. Later, he was promoted to Director, the highest ranking position for a medical member of the Commission.

Dr. Folk explained that weight classification in boxing is for the safety of the boxers. Regarding the process and effect of weight loss, when a boxer loses weight, he first loses water, then fat, and finally muscle. Accordingly, when a boxer begins to lose the final few pounds or ounces of weight before a contest, he may lose muscle strength. A boxer who does not have to lose muscle weight is stronger than a boxer who does. He would lose only water weight which can be regained by drinking fluids.

After viewing a video of the Gatti-Gamache contest, Dr. Folk expressed astonishment at the apparent weight differential between the two fighters, both at the weigh-in and the contest. Mr. Gatti looked like a middleweight boxer, while Mr. Gamache looked like a junior welterweight, he said. The weight disparity between them seemed to him to be about 15-20 pounds. He explained that it is very difficult to regain muscle strength, yet Mr. Gatti's muscles at the time of the contest looked well developed.

In Dr. Folk's opinion, Mr. Gatti's weight was a substantial factor in causing Mr. Gamache's knockout. Mr. Gatti was fighting out of his weight class. The significant difference in size between Mr. Gamache and Mr. Gatti, and the resultant force of punches by Mr. Gatti, put Mr. Gamache's safety and health at risk, he opined.

Dr. Folk relied on the HBO weigh-in report to arrive at his estimated weight of each fighter. His opinion regarding the extent of weight one could gain did not take into account the number of hours between the official weigh-in and the actual fight these boxers had, within which to regain their weight. He did not know what Mr. Gatti's food and water intake was during that time. He did not take into account the reach differential between Mr. Gatti and Mr. Gamache (Fight Fax data introduced in evidence showed Mr. Gatti's reach of 70 inches, compared with Mr. Gamache's at 66 inches); nor did he account for Mr. Gatti being six years younger than Mr. Gamache.

In Dr. Folk's opinion, it was not possible for Mr. Gatti to have put on 19 pounds (160-141) within 30 hours. Based on his experience, and based on the visible muscular development of Mr. Gatti seen on the video, he did not think it was possible for Mr. Gatti to have rebuilt his muscles as they appeared within 24-30 hours.

For the Defendant

Dr. Barry Jordan

Dr. Jordan currently is an associate professor of clinical neurology at Weill-Cornell University Medical College. He was defendant's expert witness.

He has been the attending physician at various hospitals, most recently at Burke Rehabilitation Hospital where he runs a brain injury rehabilitation program. It cares for patients who sustain various types of brain injuries. He has written two books on sports neurology, and also a book on the medical aspects of boxing. He served the Athletic Commission as Medical Director from November 1987 until June 1995. He was its Chief Medical Officer from September 2000 until January 2009. Dr. Jordan acted as a neurological consultant at the Gatti-Gamache fight.

He explained that since boxers dehydrate themselves to make weight, it would be unsafe for a boxer to fight without rehydrating. That is why the weigh-in is held the day before the contest. Generally boxers rehydrate by drinking fluids, since their weight loss is partially attributable to the loss of water weight. During a 30 hour period, a boxer can gain up to 20 pounds, he said.

He said it was his view that merely by viewing television, it was not reasonably possible to estimate the weight class of a boxer.

The weight of a boxer is only one of many factors that impact on the effectiveness of his punch. Reach advantage and velocity are two important factors to be considered. For example, a hook, a round-house or an upper cut have more force than a jab.

Mr. Gatti was jabbing more than Mr. Gamache, he observed. Mr. Gatti set up his straight right knockdown punch. Dr. Jordan noted the importance of defense in boxing, and said that whether a boxer gets knocked out largely is dependent upon his ability to mount an appropriate defense. He observed that Mr. Gamache had not blocked Mr. Gatti's punches leading to the first knockdown, and he also did not deflect the last few punches in the second round either.

Any weight differential between Mr. Gamache and Mr. Gatti probably was not a substantial cause of the knockout and the injuries Mr. Gamache sustained, he opined.

Weight plays an important role in the safety of boxers, and hence boxers are not allowed to fight outside their weight classification. There are no rules regarding height differential, and the rule with respect to weight is singular. Boxers enter into a contract for a specific weight, and the Athletic Commission conducts the weigh-in to ensure that the contract weight is met. He agreed that a boxer whose normal weight is considerably heavier than the contract weight, may have to lose some muscle weight, which is more difficult to lose than water weight. It is common knowledge that a boxer would put on weight between the weigh-in and the contest. There are differences in rules regarding weight classes. In the 140 pound class the maximum permissible weight allowance is 11 pounds. In other words, boxers in the 140 pound class cannot contract to fight at a weight in excess of 151 pounds. The determination regarding weight is made only at the official weigh-in, not thereafter.

Michael Skowronski

Mr. Skowronski has been a professional trainer of boxers and mixed martial art contestants since 1990. He also had been an amateur fighter, and met Mr. Gatti for the first time during amateur programs in New Jersey. He worked with Mr. Gatti during his entire career, except for the last two fights of Mr. Gatti's professional career.

He was with Mr. Gatti the day of the official weigh-in, as well as the day of the contest. Mr. Gatti put on weight between the official weigh-in and the contest. Between the weigh-in and the fight, Mr. Gatti had five meals at an Italian restaurant, consuming chicken parmesan and pasta. Mr. Gatti also drank Gatorade, pedialyte and water. As a result, Mr. Gatti gained about 12  to 15 pounds between the weigh-in and the contest, based on the weight shown on a scale at Mr. Gatti's hotel suite. Mr. Gatti had a heavy walk-around weight, that is, his regular weight when not fighting, of around 170 pounds.

Mr. Skowronski was present during the official weigh-in for the bout, but was unable to see the needle of the scale. He recalled nothing unusual during the weigh-in. Mr. Gatti was on the scale, the Commissioner called out his weight and Mr. Gatti got off the scale. Mr. Gatti came to him for recovery drinks and muffins. He recalled Mr. Bosdal talking in an excited voice, and also recalled a conversation between Mr. Bosdal and the Commissioner, which he thought was a customary exchange.

About three hours prior to the official weigh-in, he accompanied Mr. Gatti to the New York Sports Club so that his fighter could lose the last few pounds. In order to lose weight Mr. Gatti exercised on various machines for 20 minutes each, wearing a plastic suit. He also applied a lotion called Abilene to his body. It makes a person sweat a lot more and much faster. Mr. Gatti generally would check his weight on his own digital scale that he carried with him, as well as on the scale in the gym. As Mr. Gatti got closer to reaching the target weight, he would get "sucked up" and "drawn and tired," because losing the last 5 pounds always was tough, he said.

Visual Evidence

The court viewed DVDs of the De La Hoya-Coley and Gatti-Gamache weigh-ins, as well as the Gatti-Gamache fight itself, multiple times.

The court's observations of the weigh-ins are presented in the Discussion, infra.

With regard to the DVD of the fight itself, the court observed the following. In Round One, Mr. Gamache was knocked down twice, first when Mr. Gatti delivered two lefts and a right to the jaw, and then a second time when Mr. Gatti cleanly landed a left hook to the head following a body punch. At the end of the round, after the bell had clearly rung, Mr. Gatti managed to get off a left hook. Mr. Gamache staggered back to the wrong corner. Mr. Gatti was warned by the referee, and a Commission official then questioned Mr. Gamache between the rounds to ascertain whether he was fully aware of where he was before allowing him to answer the bell for the next round. Early in Round Two, Mr. Gatti delivered a three-punch combination to Mr. Gamache's head, right-left-right, and Mr. Gamache quickly went down for the knockout. His eyes were closed before his head hit the canvas. Mr. Gatti was declared the winner. Mr. Gamache lay flat and motionless for some length of time before reviving. Ultimately, he was able to stand up, return to his corner and leave the ring on foot.

Findings

The court's findings of fact and conclusions of law follow.

In this court's decision denying defendant's motion for summary judgment (Gamache v State of New York, NYLJ, Jan. 21, 2009, at 26, col 1) (M-74200), the court concluded that issues of fact existed as to whether the Athletic Commission negligently conducted the ministerial act of weighing Mr. Gatti at the official weigh-in to determine whether he was in compliance with the specified contract weight for the fight; and also that issues of fact existed as to whether the Athletic Commission negligently exercised its discretion by allowing the bout to proceed at all (and letting the fighters use 8 ounce gloves) if there was a weight differential between the two fighters of almost 20 pounds at the time of the fight itself. After this ruling, the New York Court of Appeals decided McLean v City of New York, 12 NY3d 194 (2009), in which it eliminated the possibility that governmental tort liability may be found when official action involves the exercise of discretion by government officials.(2) McLean reaffirmed, however, that the State may be held liable for negligently performing a ministerial act. Negligently performed ministerial acts can subject the State to liability only in the circumstances set forth in McLean, that is, where a special relationship exists. In this court's summary judgment decision, the court already has found such a relationship to exist here by virtue of the Athletic Commission's statutory and regulatory relationship with the fighters under its jurisdiction, and that the right of an aggrieved fighter to sue the State in such circumstances may be fairly implied.(3) The court's findings thus take into account the law as it exists today with regard to discretionary governmental acts, enunciated in McLean.

The court finds that claimants proved by a fair preponderance of the credible evidence that the Athletic Commission, by its officials and employees, violated its duty of care to Mr. Gamache as a licensed boxer under the Commission's jurisdiction and control, in its performance of the ministerial act of conducting the official weigh-in of Arturo Gatti on February 25, 2000. Claimants proved Mr. Gatti was allowed to get off the scale before it reasonably could be determined that he "made weight," and, more likely than not, Mr. Gatti weighed in excess of the 141 pound contract weight at the time of the official weigh-in.

The court further finds, however, that claimants failed to prove by a fair preponderance of the credible evidence that the Athletic Commission's ministerial breach of duty in this regard was the proximate cause of the career-ending defeat and injuries sustained by Mr. Gamache in the fight itself, and thus defendant is not liable to claimants for its negligence.

The court also finds that any other allegedly negligent acts or omissions of the Athletic Commission after the official weigh-in and before the fight were matters entirely within the discretion of Commission officials and employees, and, as a matter of law, cannot be a basis for finding defendant liable here. These are:

(i) Permitting the boxers to enter the ring and fight when it appeared on fight night that Mr. Gatti may have weighed in excess of the 151-pound maximum allowable weight for a junior welterweight boxer. The only weight which counts for purposes of the ministerial decision of determining that boxers have met the contract weight is the weight at the official weigh-in. Thereafter, boxers are permitted to rehydrate, replenish and gain as much weight as they want, subject only to any entirely discretionary decisions the Commission may deem necessary in the interest of the health and safety of the fighters, such as conducting another official weigh-in at fight time. No admissible evidence was introduced as to what Mr. Gatti weighed at the time of the fight itself, and claimant did not prove by a fair preponderance of the credible evidence that Mr. Gatti weighed in excess of 151 pounds at the official weigh-in.

(ii) Allowing the boxers to use 8 ounce gloves, instead of 10 ounce gloves with more padding, when it appeared on fight night that Mr. Gatti may have weighed in excess of 154 pounds. Again, the only weight that counts is the weight at the official weigh-in, and any other gloving decisions that may be predicated on perceived weight increases which occurred after the official weigh-in were matters entirely within the discretion of Commission officials.

Discussion

A discussion of certain aspects of the evidence as they bear on the court's findings follows.

Something very much out of the ordinary appears to have happened at the official weigh-in for the Gatti-Gamache fight. The court's view of the evidence is that, more likely than not, Athletic Commission officials were lax in the performance of their responsibilities to ascertain that Mr. Gatti made the contract weight of 141 pounds for this high-profile, HBO-televised preliminary bout.

The backdrop for the weigh-in is worthy of note. According to Mr. Bosdal, at the time of the contract negotiations for the bout, Mr. Gamache actually was the "bigger" fighter, fighting at a contract weight of 147 pounds. He had not fought at 141 pounds for 3 or 4 years. He wanted to fight at 147 because he wanted both fighters to come in "big," as he said, closer to where their natural weight was, but Mr. Gatti's camp refused. Mr. Gatti had been fighting at a 141 pound contract weight and his promoter insisted on that weight for this bout. Mr. Gatti's walk-around weight was approximately 170 and Mr. Gamache weighed approximately 158 when he started training for this fight. Mr. Glenn believed it would be tough for both fighters to get down to 141, but that it would be harder for Mr. Gatti, given his lifestyle.

There was testimony that in Mr. Gatti's previous bout, he showed the ability to put on considerable weight quickly through rehydration and by eating numerous meals between the weigh-in and the fight itself. During the training period for this bout, Mr. Bosdal heard from sources that Mr. Gatti was indeed having trouble losing weight, and he conveyed his concern to Mr. Duffy. Mr. Duffy even suggested to Mr. Bosdal that the Athletic Commission, on request, might delay the weigh-in until fight day, but Mr. Bosdal declined to pursue this because he wanted his fighter, as well, to have sufficient time to be able to rehydrate and replenish his body. Mr. Skowronski testified that on the afternoon of the weigh-in Mr. Gatti was still in a gym working to sweat off the remaining few pounds in a plastic suit. It is reasonable to infer that Mr. Duffy who already had been put on notice by Mr. Bosdal that Mr. Gatti might have a weight problem, was alert to this possibility.

Adding to the drama of what should have been a routine, pre-fight event staged primarily for the media, was that this weigh-in day coincided with the news that an Albany jury had rendered its verdict in the racially charged Amadou Diallo trial. New York City was tense that day, and the customary Madison Square Garden security assigned to weigh-ins had been deployed elsewhere. Then, the weigh-in for the co-featured De La Hoya-Coley bout engendered its own controversy when Mr. Coley charged that Mr.  De La Hoya had not made the contract weight for their contest and sought out the media to make his case. According to Mr. Southard, because of the rising tensions, HBO, which was televising the weigh-in, was rushing things and "wanted to get the hell out of there, too." The Gatti-Gamache weigh-in followed immediately thereafter.

There is somewhat conflicting testimony on how Mr. Russo, who had relatively little experience conducting weigh-ins, came to be the one who conducted both of the weigh-ins that day. Mr. Southard testified that Mr. Russo had not been selected to do them initially. Messrs. Southard and Duffy were delayed on their way to Madison Square Garden, however, and when they finally arrived the fighters and Mr. Russo, along with the promoters and the media, were already in the vicinity of the scale and the De La Hoya-Coley weigh-in was about to begin. Mr. Duffy was expecting to conduct the weigh-ins as usual, and Mr. Southard testified that he instructed Mr. Duffy to take over. Mr. Duffy, by far, was the most experienced in conducting weigh-ins, having conducted over 3,000. But, according to Mr. Southard, Mr. Duffy declined to step forward because Mr. Russo already was in place at the scale. Mr. Duffy's account, on the other hand, is that when he entered the room, Mr. Russo, his superior as the Commission's Executive Director, actually told him he would do the weigh-ins that day, and Mr. Duffy thus deferred to him. Mr. Russo's deposition testimony on this point is not helpful. He said he could not recall whether it was he or Mr. Southard who actually conducted the Gatti-Gamache weigh-in, demonstrating either a lack of recollection or a lack of candor. Mr. Duffy stayed in the area nonetheless as he felt he had responsibility for the process as a Commission official.

Although it appears there is no official protocol for how to conduct a weigh-in, Mr. Duffy and Mr. Southard concurred on the more appropriate way to do one. Before anyone is weighed, the counterweights on the scale are moved to zero to be sure the bar levels out and the scale is functioning properly. This is called "zeroing out."(4) They differed, however, on whether this is done only once, before any weigh-ins for the day are conducted (Mr. Duffy), or whether this is done after each set of opponents is weighed (Mr. Southard). Both agreed, however, that before the boxers for a particular contest get on the scale, the counterweights are preset to the contract weight for the bout. Both also agreed that one Commission member reads and calls the weight, while another member records it. (Mr. Southard said that at Madison Square Garden events, the Commission had a third person viewing the scale to see that the weight is accurately measured.) Mr. Duffy, whose Commission role over the years included training others at the Commission to do weigh-ins, added that the one who reads and calls the weight is the only one who is supposed to touch the scale. It is clear from the court's observation of the DVD of the weigh-in that this is not what happened here.

The first matter at issue is whether the scale had been correctly preset to the contract weight of 141 pounds. Everyone agrees this is what was supposed to happen. The DVD begins with Mr. Gatti stepping on the scale, so there is no visual record of what happened before that to set the weight. Mr. Southard said that Mr. Russo was told by someone to set the scale for "junior welterweight," but after Mr. Gatti stepped on, "somebody" noticed the weight was incorrectly set at 140 pounds instead of the contract weight of 141, and that person "yelled out 141," after which Mr. Russo adjusted the counterweight accordingly. Mr. Bosdal's testimony disputes this. He says he actually saw that the counterweight had been correctly set at 141 before Mr. Gatti got on. Although it appears that someone from Mr. Gamache's camp is saying something in the background, there is nothing on the DVD from which one can conclude that the attention of either Mr. Russo or Mr. Southard had been alerted to anything - let alone a significant error. Their attention remains fixated on the beam. Neither of them appear to have been startled by a yelled correction, nor does Mr. Russo appear to have been responding to one.

What the DVD shows is that after Mr. Gatti stepped on the scale, the beam appears to have moved upward. Several credible witnesses testified that when Mr. Gatti stepped on, the beam actually moved to the very top of the scale. On the DVD, Mr. Southard's eyes appear at that point to have moved to look at the top of the beam and Mr. Russo's head turned slightly to the top of the beam as well. Then, Mr. Russo is seen adjusting the counterweight, first slightly higher, then a trifle lower, as Mr. Southard looked on. Mr. Duffy said he saw both Mr. Southard and Mr. Russo adjusting the counterweight to make it slightly heavier. Mr. Russo actually testified that he was certain the weights on the scale never were adjusted while Mr. Gatti was on it. "I'm sure that they weren't. I'm sure that they weren't," he repeated. The DVD shows Mr. Russo doing just that. Of course, Mr. Russo also had testified that he did not even remember that it was he who conducted the weigh-in. (The court notes that Mr. Southard testified Mr. Russo had been a convicted felon, although Mr. Southard said he was unaware of this at the time of the weigh-in.) Mr. Russo's altogether defensive posture with regard to his conduct of the weigh-in seems to belie the explanation that Mr. Russo moved the counterweight because someone said it had been incorrectly set at 140. Mr. Bosdal's testimony that the counterweight was correctly set at 141 before the weigh-in began is credited.

The court, in finding claimant has proved it is more likely than not that Mr. Gatti did not make the 141 pound contract weight for the bout, is troubled by the explanation that Mr. Russo initially moved the counterweight after Mr. Gatti got on the scale because "someone" yelled out that the scale had been set incorrectly to 140 pounds. Even if it were to be credited, according to the testimony of both Mr. Duffy and Mr. Southard, presetting the contract weight before a weigh-in begins for a bout is an essential part of the procedure, and it behooved the Commission to get it right so that the propriety of the entire weigh-in was not in question. And Mr. Southard was standing right there for the De La Hoya-Coley weigh-in that preceded the Gatti-Gamache one. The significance, of course, is that if, in fact, the scale was set properly at 141 pounds before Mr. Gatti stepped on it (as it should have been), then the only reason to have moved the counterweight after Mr. Gatti got on was because it was clear he had not made the contract weight. Mr. Glenn testified that Mr. Southard's readjustment after Mr. Gatti got off the scale and before Mr. Gamache got on was that the counterweight had been moved above 141 during the Gatti weigh-in to try for balance.

Regardless of why the counterweight was moved, the DVD next shows that after this was done the beam remained in an upward slant. It was not until Mr. Russo instructed Mr. Gatti to raise his arms in the air that the beam appears to have begun to float downward (also confirmed by witnesses). They testified that when fighters raise their arms on the scale, this is what happens. Mr. Russo, on the other hand, said he told Mr. Gatti to raise his arms in order to "steady the scale," and that it balanced after that. In the court's view, Mr. Russo appears to have called Mr. Gatti's weight at 141 pounds before the needle came to a rest, and his premature call allowed Mr. Gatti to quickly get off the scale. This was akin to a "fast shuffle," and only compounded the misdeeds.

Mr. Bosdal and Mr. Glenn objected that the needle had not settled in the middle of the scale. Mr. Russo brusquely dismissed their objections. Next, Mr. Southard is seen on the DVD adjusting the counterweight on the scale before Mr. Gamache got on, first up and then a trifle down. He testified he was not resetting the contract weight at 141 for Mr. Gamache, but rather confirming that it already was set properly. He said he did this because it was his nervous habit to make sure the contract weight was set correctly. In Mr. Duffy's view, Mr. Southard's touching the scale was clearly inappropriate as he was not the official conducting the weigh-in. He found this to be inexplicable.

Mr. Hirsch testified that even Mr. Russo ultimately admitted to him several months later that it would have been a good idea to reweigh Mr. Gatti. Mr. Southard testified this was the last weigh-in Mr. Russo was allowed to conduct for the Commission. Mr. Duffy said the weigh-in was not conducted in a proper manner and told Mr. Gelfand it was an embarrassment. In the court's view, based on the testimony and its review of the DVD of the weigh-in, what transpired was worse than that.

These serious departures from a standard of reasonable care notwithstanding, it remains black letter law that proof of negligence, by itself, is not enough to establish liability for negligent misconduct; it also must appear that defendant's act or omission was a proximate cause of Mr. Gamache's injury. Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550 (1998).

Although claimants proved it was likely that Mr. Gatti did not make weight at the official weigh-in, they did not prove he weighed substantially in excess of 141 pounds at the official weigh-in - certainly not in excess of 151 pounds which automatically would have disqualified him from fighting as a junior welterweight. The court, having carefully reviewed the DVD of the weigh-in, finds that, at most, Mr. Gatti weighed marginally more than 141 pounds, no more than a few pounds heavier. The DVD shows Mr. Russo adjusting the counterweight only slightly. And when Mr. Gatti was instructed to raise his arms in the air, the beam did begin to float downward from the top of the scale. Absent any proof on the question, common sense permits a reasonable inference that had Mr. Gatti weighed substantially in excess of 141 pounds, the beam would not have floated down at all when he raised his arms, but would have stayed fixed at the top.

Also, the failure of Messrs. Bosdal and Glenn to pursue their objections to the careless manner of the weigh-in permits a reasonable inference that they believed Mr. Gatti's weight to have been only marginally greater than 141 pounds. It is understandable that the Gamache camp, having been pressured by Mr. Gatti and his promoter to agree to a contract weight of 141 pounds (instead of his preferred contract weight of 147 to which he had been accustomed to fighting for the past four years) was incensed at the weigh-in when he had worked so hard to make this new weight, yet Mr. Gatti received what appeared to be a "pass" even though he had missed the 141 mark. Thereafter, having suffered this defeat which ended his career, Mr. Gamache apparently believed he actually had been defrauded by Mr. Gatti and the Commission (the court dismissed his fraud claim for failure to state a cause of action). As it turned out, it very well may be that Mr. Gamache's decision to contract at the 141-pound weight to which he was not accustomed, may have required him to so deplete himself during the weight-loss process that it somehow may have adversely affected his customary ability to effectively defend in the bout. (Mr. Glenn, his trainer, acknowledged that his fighter had not adequately defended some of Mr. Gatti's direct punches.) But it was Mr. Gamache, initially, who wanted this bout and was willing to do this, and notwithstanding the marginal weight disparity at the official weigh-in, his camp still believed he was the better boxer and would win in any event. So while they were upset at the manner in which the weigh-in was conducted and voiced their immediate concerns, asking that Mr. Gatti be reweighed, they did nothing to formally press their objection further, such as having Mr. Gamache refuse to be weighed or to fight, both of which he had a right to do. From their actions, a reasonable inference may be drawn that they did not consider the marginal weight infraction as ultimately posing a threat to Mr. Gamache's health and safety - even as it pertains to the muscle depletion/retention theory claimants pressed at trial (see infra) and even in the face of the Gamache camp's awareness of Mr. Gatti's reputation for being able to regain an enormous amount of weight during the 30-hour rehydration and replenishment process before a fight.

From the court's review of the DVDs of both the weigh-in and the next night's fight, as well as the testimony of other witnesses including Mr. Gamache, Mr. Gatti did appear much larger and muscular than Mr. Gamache at the fight itself than he appeared at the weigh-in. But he also appeared to be the better boxer that night. The force of the punishing blows to the head that Mr. Gamache absorbed on fight night may have been due to a number of factors, such as Mr. Gatti's punch velocity and angle, his apparent 4 inch reach advantage (according to Fight Fax), Mr. Gatti being 6 years younger than Mr. Gamache, and Mr. Gamache's inability to effectively defend that night. It appeared that Mr. Gamache did not block the blows that knocked him out. To be sure, the fact that Mr. Gatti may have been substantially heavier than Mr. Gamache at fight time also may have contributed. But this was a function of the rehydration and replenishment that both fighters were allowed to engage in to lessen their chances of brain injury, not because Mr. Gatti started out marginally heavier at the official weigh-in.

Claimants contend that if Mr. Gatti weighed more than 141 pounds, it follows that he did not have to deplete himself of muscle strength to the same extent as did Mr. Gamache, and that Mr. Gatti thus had a head start on the post-weigh-in rehydration and replenishment process and did not have to rebuild as much muscle as did Mr. Gamache. They point to the testimony of expert witnesses Dr. Folk and Dr. Jordan, both of whom testified that, physiologically, the weight loss process progresses from water first, followed by fat, and finally, muscle weight. The testimony was that it is hard and painful to lose the final pound or ounces of weight. Mr. Bosdal described the process of losing those last few pounds or ounces as "death." Dr. Folk opined that Mr. Gatti could not have rebuilt his muscles in 30 hours. Claimants assert that this is what made the crucial difference in the relative strength of the fighters at fight time. But Dr. Jordan countered that a fighter whose normal weight is considerably heavier than his contract weight actually may lose more muscle weight than a lighter fighter. Mr. Gatti's walk-around weight was considerably heavier than Mr. Gamache's.

Whatever surface appeal claimants' argument may present, the court finds they failed to prove it. The testimony about loss of muscle weight addressed the subject in general terms. No proof was offered concerning the muscle weight of these specific fighters at any point in time. Nor, for that matter, was any proof offered as to when muscle weight loss first begins or accelerates. Based on the record here, there simply is no way for the court to find that the faulty weigh-in was "a substantial contributing factor" in bringing about Mr. Gamache's injury. See Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 (1980).

Claimants also argue that, regardless of the head start Mr. Gatti may have received on the rehydration and replenishment process, it is only because the Commission turned a blind eye to his failure to make the contract weight that Mr. Gatti was able to enter the ring at all. In the court's view, this effort to find a direct nexus between Mr. Gatti's having marginally exceeded the contract weight at the weigh-in and the damage sustained by Mr. Gamache on fight night is far too speculative to satisfy the legal standard for the alleged proximate cause of Mr. Gamache's injuries. Mitchell v Mongoose, Inc., 19 AD3d 380, 381 (2d Dept 2005) ("as proximate cause may be inferred from the facts and circumstances underlying the injury, the evidence must be sufficient to permit a finding based on logical inferences from the record and not upon speculation alone") (citations omitted). Claimants had the burden to show that "other causes [of Mr. Gamache's injuries were] sufficiently 'remote' or 'technical' to enable [the court to reach its decision] not upon speculation, but upon the logical inferences to be drawn from the evidence" (Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743, 744 [1986]). Here, the court cannot do this; it cannot rule out that Mr. Gamache's knockout and injuries resulted from causes inherent in the danger of boxing referenced supra, e.g., the velocity and angle of Mr. Gatti's punches, his reach advantage, Mr. Gatti being considerably younger, and Mr. Gamache's own inability to effectively defend that night. In these circumstances, an inference that Mr. Gamache's injuries were caused by the marginal disparity between the contract weight for the bout and what Mr. Gatti actually weighed at the official weigh-in is simply unwarranted. Although the faulty weigh-in may have furnished the occasion for Mr. Gamache's injuries, that is insufficient to find it proximately caused them. See e.g. Penovich v Schoeck, 252 AD2d 799 (3d Dept 1998) (landlord's failure to remove ice from roof, not proximate cause of plaintiff's injuries when he fell off while climbing down from roof after cleaning off ice); Quiroz v Edelman of N.Y., 224 AD2d 509 (2d Dept 1996) (sale of firearm merely condition for occurrence, not the proximate cause); Benaquista v Municipal Hous. Auth. of City of Schenectady, 212 AD2d 860 (3d Dept 1995) (landlord's failure to repair intercom not the proximate cause of plaintiff's injury when she went downstairs to admit visitor).

What remains to be briefly addressed pertains to the Athletic Commission's decisions after the weigh-in and before the fight itself, that is, its having permitted the fight to proceed when it appeared at fight-time that Mr. Gatti may have weighed substantially more than Mr. Gamache and in excess of the 151 pound maximum allowable weight for a junior welterweight, and its having permitted the fighters to use 8 ounce gloves in this circumstance.

Mr. Gatti was not officially reweighed by the Commission on the day of the fight, so his weight when he stepped into the ring is entirely a matter of speculation. Mr. Gamache testified that when he saw Mr. Gatti in the ring, Mr. Gatti appeared so large that he mistook him for Mr. Gatti's brother, a boxer who fought in a heavier weight class. Other witnesses testified they observed Mr. Gatti either at the contest or on a DVD recording of the contest and concluded that he appeared much larger than Mr. Gamache. Mr. Southard, on the other hand, said he thought Mr. Gatti only appeared taller than at the weigh-in. Mr. Bosdal testified that some unidentified person told him immediately prior to the contest that at an unofficial weigh-in conducted by HBO earlier that day, Mr. Gatti weighed 161 pounds. But this is pure hearsay.

The decision whether to stop a fight from taking place in the interest of the health and safety of the boxers is entirely within the discretion of the Athletic Commission. Here, at the time of the fight, the Commission knew its call of Mr. Gatti's weight at the official weigh-in already had engendered controversy. Although none of the Commission witnesses who testified at trial said they knew of the results of the HBO unofficial weigh-in before the fight, Commission members at ringside saw what everyone else did concerning Mr. Gatti's apparent larger size when Mr. Gatti entered the ring and removed his robe. If any of them felt the bout may have presented a dangerous weight mismatch after the rehydration and replenishment process, the Commission had the authority to order another official weigh-in and to take whatever other action it deemed appropriate, including cancelling the fight, if necessary. See Fitzsimmons v New York State Athletic Commn., 15 Misc 2d 831, 832 (Sup Ct NY Co. 1914) affd 162 AD 904 (1st Dept 1914) (Commission found a boxer incapacitated by age and physical condition from competing in a boxing contest). Indeed, as this court found in its decision denying summary judgment, the Athletic Commission's special relationship to the licensed fighters under its jurisdiction charges the Commission with this responsibility. In the circumstances here, however, this was a judgment call entirely within the discretion of the Commission. And, as such, under the Court of Appeals decision in McLean v City of New York, supra, decided after this court's summary judgment decision finding a special relationship, potential tort liability for an alleged negligent exercise of that discretion, or failure to exercise it, does not exist.

So, too, with regard to selecting the weight of the boxing gloves for the bout. According to Athletic Commission custom and practice, the selection of boxing glove weight is ministerially determined by the weight of the fighters at the official weigh-in. Fighters weighing in excess of 154 pounds must wear 10 ounce gloves with more padding, and those below that weight need not. As the court has found that at the time of the official weigh-in, Mr. Gatti weighed no more than a few pounds in excess of 141, there was no violation of the Commission's custom and practice with regard to the gloves viz. the weight of the fighters at that time. And because Mr. Gatti was not officially reweighed on the day of the fight, his actual weight at fight-time remains purely a matter of conjecture. Although the Commission may order gloves of a different weight at any time before a fight (as when the fighters and their promoters agree at the outset in their contract to use the higher weight or, apparently, if the Commission deems it prudent for some other reason), no one from the Gamache camp raised the matter of glove weight on the day of the fight. In any event, this, again, is entirely within the Commission's discretion and, thus, not actionable under McLean.

Mr. Gamache fought Mr. Gatti on February 26, 2000 and absorbed punishing blows to the head prior to being knocked out early in the second round. This is what caused the damage Mr. Gamache suffered in this contest, not, as claimants allege, that Mr. Gatti weighed a few pounds marginally in excess of 141 at the time of the official weigh-in. Claimants' reliance on a "but for" theory to justify their claim is misplaced under the law of negligence in New York. Accordingly, defendant has no liability to claimants arising out of the Gatti-Gamache contest.

Let judgment enter for the defendant dismissing the claim herein.

March 26, 2010

New York, New York

MELVIN L. SCHWEITZER

Judge of the Court of Claims


1. On July 11, 2009, two days before this trial began, Mr. Gatti, who was listed as a witness by both sides, was found dead at a seaside resort in Brazil. There is no evidence that this tragic event was related to the trial in any way.

2. See, however, concurring opinion of Chief Judge Lippman in a later decision, Dinardo v City of New York, 13 NY3d 872 (2009), criticizing the McLean decision because "the broad immunity recognized for discretionary acts should not extend to situations where a special relationship exists."

3. The court stated:

"In 1920, the so-called Walker Boxing Law was enacted which further strengthened the Athletic Commission's authority to provide for 'rigid supervision . . . of all who participate . . . and of the methods of conducting the matches.' Judge Fuld noted, '[t]he statute itself reflects a high concern for the physical fitness of the fighters scheduled to engage in the matches. Such fitness will, of course, enhance the competitive character of the contest and it may be fairly assumed that the Legislature was at least as concerned with the physical welfare of the contestants themselves.' (citation omitted)

The Athletic Commission, accordingly, has been 'vested with sole discretion, management, control and jurisdiction' of boxing contests and 'over all licenses to any and all persons' who participate in such contests (Title 25 of McKinney's Unconsolidated Laws of NY 8906). In furtherance of this authority, the Commission promulgated rules governing them. (19 NYCRR Ch VII).

* * *

The Walker Boxing Law, as amended through the years, clearly establishes a direct relationship between the Athletic Commission and the boxers it licenses, from the time a match is proposed through the fight and its aftermath. Unlike the lead paint regulations in Palaez v Seide, 2 NY3d 186 (2004), the regulatory regime for boxing is not simply a program 'of oversight in which the role of government is, in the main, administrative and advisory' (Id. at 201), but rather one where the regulatory body is directly responsible for a specific bout between two fighters. . . . Each boxer is required by the regime to have on-going direct contact with the Athletic Commission throughout, from the time each signs the Athletic Commission's required form of contract, to the time each steps on the scale to be weighed by the Athletic Commission's representative, to the time each dons gloves under the direct supervision of that representative in his dressing room, to the time the representative tells each fighter he may leave that room to proceed to the ring for the fight. At any point along the way and until the Athletic Commission- appointed ring officials - independent contractors - assume responsibility for the conduct of the bout itself, the Athletic Commission and its agents are in direct control of everything that happens. The Athletic Commission's representatives are seated at ringside and its inspectors have reserved places in each boxer's corner ( 209.36). If any regulatory regime can be said to be within that narrow class of cases in which a duty runs from a governmental entity directly to a benefitted class, and where the law is best read to assure that government must be made to bear ultimate responsibility for ensuring compliance with the statutory and regulatory mandates (Pelaez v Seide, supra, at 201), this is it."

Gamache v State of New York, supra, at 26, col 1.

4. Claimants contend the State failed in its duty to ensure the proper calibration and approval of the official scale used for the weigh-in. They have the burden to prove the scale was mishandled or miscalibrated, however, and the court finds they have not done so. Mr. Gelfand and Mr. Duffy testified that the Commission's official scale is stored in the custody of Madison Square Garden. Mr. Gelfand explained that whenever there was a scheduled fight, the scale is calibrated by the Garden at the beginning of the week of the fight so that fighters can come to the Garden during the week to check their weight on the official scale whenever they desire. Then, the scale is calibrated by the Garden again just prior to the official weigh-in. Mr. Southard testified that it was the Commission's responsibility to calibrate the scale, and Mr. Duffy said this was done by a Commission representative approximately only once every six months, although he personally saw to it that the scale balanced at zero before every official weigh-in. In the court's view, this general division and delegation of custodial, security and calibration responsibilities by the Commission to Madison Square Garden, a private, interested party, does not present a paradigm of good order, but there are gaps in the proof as they pertain to this specific weigh-in which render untenable a finding of negligence on this basis.

Mr. Gamache and Mr. Bosdal both testified that on the day of this weigh-in, about an hour before it took place, they came to the Garden because they mistakenly thought Mr. Gamache was to be interviewed there by HBO. While there, Mr. Gamache weighed himself on the official scale and was perplexed to see his weight registered at only 137 pounds, clearly indicating the scale was not properly calibrated at that time. Mr. Bosdal notified Mr. Duffy, and someone from the Garden came to recalibrate it. Mr. Gamache then reweighed himself before leaving the premises with Mr. Bosdal and was satisfied that the calibration of the scale had been corrected. There is no further testimony regarding what was done with the scale in the hour between the time the two left the premises and the official weigh-in. Accordingly, it is not known whether the scale was moved after they left or whether the room was properly guarded, or even whether the scale was taken to a different room for the official weigh-in and recalibrated again. Also, Mr. Gamache seemed satisfied with his own weight when officially called at the weigh-in. In the absence of any evidence to prove the mishandling or miscalibration of the scale, the court cannot find defendant negligent for an alleged failure to calibrate the scale properly.