John McGarrigle and Barbara McGarrigle v. Mercury Marine. Civil Action No. 09-4625. United States District Court, D. New Jersey.

The case was settled August 28, 2012.

The Propeller Accident

Saturday, July 21, 2007, 37 year old John McGarrigle, of Pennsylvania, was operating a 12 foot aluminum fishing boat on Delaware Bay near Seabreeze, New Jersey about 5:20pm by himself. The small tiller steered boat, belonging to his father, was powered by a 2001 15 horsepower Mercury Marine outboard motor. The water was choppy, John was not wearing a lanyard kill switch. He was pitched overboard, the boat went into the “Circle of Death”, he tried to grab and re-board the spinning boat, and was struck by the propeller. John received severe injuries to his head and neck. A bystander on shore, swam out 100 to 150 feet and kept him afloat till more help could arrive. The prop strike victim was brought to shore in another boat and life flighted to an area hospital. The Coast Guard was able to stop the still circling boat by using a rope to foul its propeller. (Accident description was assembled from court records and several newspaper accounts.)

A New Jersey Patrol Officer interviewed the victim about a month later. The victim reported he had been going about 15 miles per hour, hit a wave, and was ejected. The same officer had responded to the accident. The patrol officer logged the accident as being caused by “excessive speed”, but testified he had no actual knowledge of the victim’s speed.

When onsite at accident, the patrol officer had noted the water was choppy. The Coast Guard did not issue a small craft advisory for that date.

When John’s father, John W. McGarrigle, purchased the engine in September 2001, it did not come with a lanyard stop switch. However it did come with a manual. Neither the father, nor the son read the operators manual.

Mercury Marine’s expert has admitted that there are people who operate boats without reading the operators manual.

The father, John W. McGarrigle, says if he had read the manual he would have obtained a lanyard. Both sides agree that if John had been wearing a lanyard kill switch, his injuries would have been prevented.

Mercury Marine outboards from 2.5 to 6 horsepower use a type of lanyard that prevents the engine from starting if it is not inserted into the engine. This court calls it “lanyard A”.

Mercury Marine outboards from 8 to 25 horsepower use a type of lanyard that allows the engine to start even if they lanyard is not connected. The court calls it “lanyard B”.

The engine involved in the accident used the type “lanyard B” and thus did not require a lanyard to be connected.

There were no warnings on the engine instructing users to use a lanyard stop switch, or to read the operators manual.

Plaintiffs are bringing a product liability case against Mercury Marine claiming the outboard “was not fit, suitable, and safe for its intended purpose”, that the injury was foreseeable, and Mercury failed to adequately warn users of the danger.

Legal Representatives

John and Barbara McGarrigle are represented by Ron Graziano of Graziano and Flynn, Cherry Hill, New Jersey.

Mercury Marine is represented by Kevin McKeon of Marshall, Dennehey, Warner, Coleman & Goggin, also of Cherry Hill New Jersey.

Preliminary Issues in the Case

Several preliminary issues have been decided in McGarrigle v. Mercury Marine (Brunswick Corporation):

• Jurisdiction – Mercury Marine is a division of Brunswick Corporation. Brunswick has its headquarters in Lake Forest Illinois, and is incorporated in Delaware. The victim is from Pennsylvania, but the accident happened in New Jersey. Mercury Marine removed its objection to the jurisdiction of New Jersey U.S. District Court when that issue was debated in the Superior Court of New Jersey, so that issue is settled.
• Both sides moved for summary judgement on certain issues. Among the disputes, Mercury Marine claims the victim’s expert witness, Dr. Kenneth W. Fisher, is not an expert in these matters and should not be allowed to testify. Plaintiffs want to prevent Mercury Marine from introducing evidence that the victim’s decision to operate the small boat in rough water at higher speeds was why he was ejected, evidence of what the victim did after the accident (tried to re-board), and that neither father nor son read the operators manual. Decisions on those matters were reached by the court on 20 December 2011. We cover these decisions in our post titled, Kenneth W. Fisher Will be Allowed to Testify.

Mercury Marine Claims They Are Not Aware of Any Similar Accidents Involving Their Tiller Outboards

We found that hard to believe and followed up on their claims with some USCG BARD (Boating Accident Report Database) research and two posts.

• Mercury Marine Tells Court the McGarrigil Accident is the First One Involving Mercury Tiller Steered Outboards – we research exactly what they said.
• Propeller Accidents Similar to the McGarrigle Accident: Mercury Said There Were None – Our Findings Indicate Otherwise – we prove their claims to be highly unlikely.

Objections to Other Manuals as Evidence

I early May 2012, Mercury Marine’s legal representatives, Plunkett & Cooney, were objecting to the use of several Plaintiff exhibits based on product manuals from other outboard manufactures (Plaintiff proposed exhibits P60-P67) and to exhibit P70, a printout of an exemplar Evinrude/Johnson restart clip for a lanyard switch. Mercury’s objections claim the materials were not properly disclosed. Mercury says these documents were not:

• Mentioned or disclosed in Plaintiff September 2009 disclosures
• Specifically mentioned or described in Kenneth Fisher’s November 2009 report
• Disclosed at Dr. Fisher’s February 9, 2011 deposition.

Timing of the McGarrigle v. Mercury Marine Trial

The final Pre-Trial Conference was held on March 27, 2012 before Magistrate Judge Joel Schneider. Defendants had objected to the late deposition of two witnesses by Plaintiff. Their objection was overruled, but the Defense was given the opportunity to depose those two witnesses if they wished by April 30, 2012.

As is often the situation in these cases, the Final Pre-Trial Conference had been delayed many times. Among its previously scheduled dates were: 10 May 2011, cancelled on 22 March 2011 and would be rescheduled if necessary, 23 February 2012, 1 March 2012, then 27 March 2012 (on which it was held).

As of April 24, 2012, Jury Trial was set for October 15, 2012 9:30 AM in Camden New Jersey- Courtroom 3A before Judge Noel L. Hillman.

On August 28, 2012 Judge Noel Hillman signed the “Stipulation of Dismissal and Order” in which the parties voluntarily dismissed the case with prejudice against all defendants. The case was settled.