The U.S. 5th Circuit Court of Appeals found for Brochtrup on May 27, 2011 in Brunswick’s appeal of a U.S. District Court, Western District, Austin Division jury finding for Brochtrup resulting from a July 1, 2005 propeller accident. Mercury Marine and Sea Ray are the Brunswick units listed on the case.

On June 10, 2011 Brunswick filed for a rehearing of their appeal before the U.S. 5th Circuit Court of Appeals. Brunswick’s request for a rehearing is based on two points:

1. Brochtrup did not prove the boat was unreasonably designed under the Texas risk-utility test.
2. The original jury was encouraged to believe that Brochtrup did not have to prove the boat design was unreasonably dangerous, they merely pointed to his injuries that were caused by said boat as evidence of its unreasonably dangerous design. Once the design was established as unreasonably dangerous, all Brochtrup had to do was introduce a safer alternative that would have prevented his injury.

According to Brunswick, Texas law requires the plaintiff in product liability cases to prove BOTH:

1. The product, as designed, was unreasonably dangerous using the risk-utility test AND
2. That there was a safer design that would have prevented or significantly reduced the likelihood of the plaintiff’s injury.

Brunswick’s petition for rehearing goes on to state the panel of U.S. 5th Circuit Court of Appeals judges erroneously credited Brochtrup with evidence he did not present. Brunswick claims that presenting a safer alternative design does not mean that the existing design is unreasonably dangerous.

It sounds like they are openly admitting that Guy Taylor’s 3PO Navigator propeller guard is safer than their exposed propeller design, but claiming their exposed propeller is safe enough.

Then Brunswick falls back to claiming that although propeller accidents can cause very severe injuries, they are extremely rare events. They claim Brochtrup presented no evidence on the frequency or likelihood of propeller injuries, no evidence of the total number of propeller injuries, and no evidence of the total number of similarly designed boats against which the number of accidents could be compared.

The boating industry has placed minimal priority on collecting propeller accident data for decades. We proved they misled the U.S. Coast Guard on countless occasions as to the total number of propeller accidents and the cost of propeller safety devices in our 2010 Study of a Proposed Houseboat Propeller Safety Regulation. That proposed regulation was rejected by the U.S. Coast Guard in response to false data supplied by the industry. We challenged the NMMA (pages 83-85) and the U.S. Coast Guard (page 161) to respond to our very specific allegations. Both groups failed to respond.

Brunswick claims in their request for rehearing that the only evidence presented on propeller accident frequency came from Peter Chisholm, Mercury Marine’s Product Safety Manager.

“Chisholm merely agreed that some unspecified number of people are injured by boat propellers each year, but he firmly denied this number was even as large as one hundred.”

They cite Pete Chisholm’s statement as 20 Tr. 94 (lines4-16). Brunswick then claims these numbers (<100) are vastly less than would be required to show a product was dangerous under the Texas risk-utility test.

Our first comment is, Mr. Chisholm might wish to read the recent issues of the U.S. Coast Guard’s Annual Boating Statistics Report. He can call up the 2010 USCG Recreational Boating Statistics report from our recent post covering its release. Just click on the image of its cover and go to pages 35 to 38 and read down the column labeled “Total Times Event Occurred in All Accidents” to the line labeled Person Struck by Propeller and read the number at the intersection for each year.

A quick listing of those propeller accident frequencies is below:

2010 – 179 struck by propeller
2009 – 184 struck by propeller
2008 – 181 struck by motor /propeller
2007 – 176 struck by motor/propeller
2006 – 234 struck by motor/propeller

Are any of those numbers less than 100? Mr. Chisholm is back to an old industry trick of presenting Event 1 data as the total number of propeller accidents. USCG represents a boating accident as a series of events. Event 1 is the first thing that happens. Propeller accidents are often the second or third event because the boat strikes something or the person falls overboard before they are struck by the propeller. We very thoroughly address the Event 1 data issue on our Propeller Accident Statistics page. An Event 1 strike is like the strike portrayed in Don’t Wreck Your Summer, the U.S. Coast Guard Public Service Announcement (PSA) the industry banned because it showed boating in a bad light. A guy is in the water behind the boat, the drive is started in reverse, and he is pulled into the propeller.

The industry often falls back to this technique (listing Event 1 data frequencies to claim lower accident counts). It does not matter what Event you got struck by a propeller in, if you got struck, you struck.

In addition, both sides of the propeller safety issue have vastly different ideas about how many propeller accidents are not recorded in BARD (Recreational Boating Accident Report Database), the U.S. Coast Guard’s boat accident database. Propeller safety activist point to surveys showing thousands of unreported accidents annually, while the boating industry falls back to the Coast Guard’s discussion of accident reporting frequencies in which they claim the more severe an accident is, the more likely it is to be reported. The industry says propeller accidents are severe, so therefore they must all be reported. We have shown the fallacy of that statement countless times, including in our study of the proposed houseboat regulation mentioned earlier. We have also identified several accidents in BARD that were propeller accidents, but are not reported as such. We also point to several studies of under reporting of propeller accident frequencies on our Propeller Accident Statistics page.

Brunswick goes on to note that Phyllis Kopytko, a well know propeller victim and part of SPIN (Stop Propeller Injuries Now), made an offhand remark that there have been “hundreds of thousands” of propeller accidents “all over the country, as well as the world.”. They say her statement is vague and would have done nothing to assist the jury in understanding the frequency or likelihood of injuries from Brunswick’s allegedly-defective design. Brunswick also notes the jury did not hear Kopytko’s remarks. The trial court excluded her remarks as hearsay, because they were not relevant, and because of their prejudicial effect per Brunswick.

It’s interesting they throw out the remarks of a lady who has been working with propeller strike victims around the country for years, plus was struck herself, and lost her husband to a propeller strike “because it was hearsay, because it was not relevant, and because of its prejudicial effect” but let the jury hear Pete Chisholm’s untruths:

“Chisholm merely agreed that some unspecified number of people are injured by boat propellers each year, but he firmly denied this number was even as large as one hundred.”

because he is a boating industry expert.

The boating industry always points to the lack of solid propeller accident data on one hand, but they always refuse to encourage its collection it on the other.

We noticed Soundings Trade Only (STO) covering Brunswick’s request for a rehearing today in an article titled, Brunswick Seeks Rehearing in Propeller Accident Case. While STO often does a nice job covering industry events, readers may be more interested in the comments the article received on the STO site. They are classic industry comments using words such as stupid, stupidity, lawyers, drugs, alcohol, Cessna planes, deep pockets, stupid people should not be allowed to reproduce, and natural selection (sometimes listed as thinning the herd). We don’t see McDonald’s coffee listed yet. It’s usually on the list.

It sounds like Brunswick is ready to try out a new courtroom strategy: Exposed propellers are dangerous, some propeller guards are safer than our exposed propeller design, BUT our units are still safe enough and this is proven by the extreme rarity of propeller accidents. They actually broke out the segment the accidents into little bitty piles back in their public comments on the proposed houseboat regulations discussed earlier. They started dividing houseboat propeller accidents into outboard or stern drive accidents, then they started breaking those piles into rental and non rental houseboats, they implied some of the accidents may have involved planing houseboats, and that some of the victims may have been struck by the gearcase instead of the propeller, plus they grouped them into segments by years. By the time Joe Pomeroy, then General Counsel for Mercury Marine, was done he was discussing very small piles of accidents. We expect to see this practice again.

The STO article also cites Robby Alden, attorney for Brochtrup, as saying U.S. Court of Appeals rehearings are rarely granted, especially in cases of unanimous decisions like this one.

We suspect the real risk-utility analysis going on is Brunswick Corporation realizing that if this ruling stands, they could loose big time in future cases.

Updates

23 August 2011 Soundings Trade Only (STO) announced that last week the U.S. Court of Appeals for the Fifth Circuit rejected Brunswick’s request for a rehearing. In an email to STO, Brunswick spokesperson Dan Kubera said there will be no further appeals in the Brochtrup case. Brunswick and Mercury Marine are disappointed the case will not be reheard, they sympathize with the plaintiff, but “continue to stand behind our products, which are used safely and properly by boaters around the world every day.” Brunswick now plans to pay its portion of the judgement.

On a more interesting note, the plaintiffs have requested the opinion of the U.S. Court of Appeals for the Fifth Circuit in the Brochtrup propeller case be published. At the moment, it is still an unpublished decision, and as such only sets a precedent in limited circumstances (note this is the first plaintiff to win since Sprietsma decision). If the U.S. Court of Appeals for the Fifth Circuit opinion in Case No. 10-50534 Jacob Brochtrup v. Mercury Marine, a Division of Brunswick Corporation and Sea Ray, a Division of Brunswick Corporation to be published it would set a much broader precedent in propeller cases.

Its interesting that Brunswick’s request for a rehearing, and MasterCraft’s request for an appeal (Robert Bell v. MasterCraft Boat Company) were both denied within a few days of each other.