DECKER v. OMC
This could be the most important trial in the history of
litigants seeking to make the marine industry accountable for the death and
grievous injury caused by an unprotected boat propeller.
“A typical three blade propeller
funning at 3,200 rpm can inflict 160 impacts in one second.”
In l999 Audrey Decker
and her husband were out for a brief sunset cruise behind their home while
their dinner was heating on the grill. Audrey was thrown from her seat
overboard and struck by the propeller.
Many details of her medical expenses resulting from the severe
disfigurement and physical suffering are covered in www.naplesnews.com/accounts
in articles by Aisling Swift; in www.bradenton.com,
www.nbc-2.com. Her life has been
changed forever by the horrifying consequences of this accident.
Audrey Decker is suing
for her injuries, pain and suffering, disability, mental anguish, hospital
and doctors’ expenses, medical treatment and nursing care; loss of
earnings and the ability to earn money, permanent loss of mobility and
sight, etc. She is suing OMC
for failing to provide a propeller guard, warning of the dangerous design, and
not providing information on after-market products available to protect
against the propeller in the event of being thrown over-board. This will be
a major test of the right of a propeller strike victim, in the absence of
USCG regulation, to seek redress from the marine industry for creating a
dangerous product.
See Sprietsma v. Mercury
Marine.2002, US Supreme Court 2002 at www.supremecourtus.gov
See
the “crash worthiness doctrine”Florida, 2001, Supreme Court
case of D’Amario v. Ford Motor Company
This statement is not
intended to review all the trial details. Refer to the media coverage, as
previously stated. We wish to
point out several weak or questionable points in the defense’s
position.
1.
Kueny refers
to a 2009 document wherein the US Coast Guard states that guards would
protect against propeller strike accidents. This document is unknown to us
and we would like to see it. He correctly indicates that the USCG supported
guards for non-planing houseboats under NPRM 10163.
This proposed rule was withdrawn
when the USCG failed to completely document the accident record to justify
the cost-benefit analysis. See
www.rbbi.com - “USCG
Withdraws Proposed…” Response from the Propeller Guard
Information Center,” 23 January 2009.
2.
O’Sullivan
impugns the credibility of Benda’s testing
of prop guard by reference to a USCG protocol. He states that his
tests did not follow this protocol. There is no USCG approved and published
test protocol. While there have
been several trials to develop a guard test protocol, nothing has been
published to our knowledge. I would recommend that this be checked with the
Office of Boating Safety at USCG in D.C.
3.
Warnings. This
issue might have been covered in more depth. The principle of design-out
the defect or danger or warn is a basic engineering principle. Fans are covered with grills (a)
house fans (b) refrigerator fan (c) car engine fan. A household blender has
a top. A garbage disposal has a
switch, and warning. Sharp blades of saws, mowers, etc. are shielded. Airports restrict access to
experienced and trained operators.
A thrasher operator is trained. Unlike a razor or a kitchen or
hunting knife where experience is your lesson, the knife-like blades on a propeller
are hidden under water. A
novice or experienced operator thrown over board in harms way of the
propeller, are equally likely to become struck. It is not what you know when you
come within striking zone of a propeller…by then it is too late.
Warnings have been
recommended since the l989 NBSAC subcommittee report. Admiral Nelson’s l990 answer
to those recommendations twice mentioned the development of warnings. Yet
BIRMSI, a committee of the National Marine Manufacturers chose to exclude
it from the CO2 warning and to treat it as a separate warning label. It has
still not been developed. There is no ANSI, ABYC or NMMA approved label.
Dealers have shared a generic label and slap it on boats.
A January 2005 article
written by BoatUS Magazine, a publication to the trade and the recreational
boating community, entitled “Stuck On You – A Wash With Warning
Labels,” stated a number of concerns about placement and language of
the multiplicity of labels.
“Warning labels are now so commonplace….” They cited some 25 warning labels to
affix to boats and 22 to boat accessories. A T-5 standard for labels dates back
to l990. There is no approved label for propeller warnings to date.
The article states that
ABYC guidance requires:
“1.) The hazard
is associated with the use of the equipment
2.) The manufacturer knows of the
hazard
3.) The hazard is not obvious or
readily discoverable by the user and,
4.) The hazard will exist during
normal use or foreseeable misuse.”
The NMMA subcommittee
BIRMSI, charged to develop the propeller warning label, still does not have
a product label.
4.
Wasted
Resources. Robert Taylor of Failure Analysis estimated that his company had
been paid
“$60 million to defend
manufacturers in propeller guard cases.”
That
would be for at least two major companies OMC and Mercury Marine and
perhaps Honda and Volvo.
So many of these cases – estimated to be as many as 500
– have been settled out of court or muzzled and so it is difficult to
calculate the actual costs of the defense. However, you need to add the legal costs
and out of court settlements to this $ 60 million dollars. Additionally, this number does not
take into account the costs of blunt trauma and entrapment studies
conducted at the Univ. of Tennessee and Syracuse University, the costs of various impact studies
by Huelke (l988) and Scott, Labra in l993 and other “experts”.
The cost caused by the unforgiving exclusive warranty. Specifically their work with the
Marine Corp on the Chadwell guard and the threat to void the warranty: (a) as any alteration to the motor
would void the warranty (b) or “the warranty was void by the
installation or use of parts and accessories which are not manufactured or
sold by us.”
This warranty excluded
all aftermarket guards and so the Deckers would not have been free to buy
and install a guard on the open market. The cost of this to the Deckers is
what this trial is all about.
The costs of the industry rebuttals to the work of Hill, Taggert,
Thibault and Reed. Reed’s
work in l987, studying three specific types of propellers reported
favorably. He notes: “The state-of-the-art was such
that in the mid 1950ties it was technologically feasible to design a
propeller guard of the Chadwell type”, superior in powering performance
than the l987 model. “The state of the art was such that by l968, it
was technologically feasible to design a propeller guard of the
Flood-Schultz type” - also superior to the current model in powering
performance
Apparently we were not technological dinosaurs in the
fifties or sixties, but the industry was unwilling. Instead they spent many
millions on fake science, court charges, defensive postures to denigrate
the advocates, figuring it was cheaper than actually correcting the
problem. They stifled incentive and actively discouraged innovation. Did it
not occur to them to offer a national competition with a million dollar
bonus to someone to come up with a solution? Imagine the fertile
engineering climate that might have fostered.
Given all that the industry has spent to wrap them in
deniability, what happens to this $ 60 million dollar figure? Is it tripled? Is this their $180 million dollar
problem?
Most tragically, how do you calculate the life lost or
the life-time destroyed or forever altered? More millions – many more
millions.
TO THE DECKERS:
Our best wishes for a successful outcome – for
you and for all those who will follow.
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