In McGarrigle v. Mercury Marine, a propeller / kill switch case, Mercury Marine claims John McGarrigle is the the first person NOT using a kill switch to be injured by a Mercury Marine tiller steered outboard.

We find that hard to believe, but before we can prove them wrong, we need to determine exactly what Mercury Marine’s legal team said.

On page 8 of the 20 December 2011 Partial Summary Judgement Opinion by the Court, (document 41 in the U.S. District Court New Jersey case docket), the court restates Mercury’s position:

Defendant argues that Dr. Fisher should not be permitted to testify that the design of the outboard engine was and is defective because it does not incorporate a lanyard A type stop switch. Defendant states that between 1986 and July 2007, it sold more than 750,000 8 to 25 horsepower outboard engines that use the lanyard B. It also states that, other than plaintiff’s accident, it is aware of no other accidents of a scenario similar to plaintiff’s, which resulted in propeller strike injuries to an ejected operator of a small hand-tilled outboard engine who did not use the lanyard B.

On page 15 of part two of Mercury Marine’s brief in support of their motion for summary judgement filed 8 March 2011 (document 30-2 in the docket) (bears page number 34 on bottom of the page), Mercury’s legal team claims Dr. Kenneth Fisher’s subjective belief is without legally sufficient factual support because, and lists several bullet points including this one:

He has no data or information to refute Mercury Marine’s documented experience of only one accident scenario like that of Mr. McGarrigle’s from a population of over 750,000 similar engines – Mr. McGarrigle’s; 86

On page 20 of part two of Mercury Marine’s brief in support of their motion for summary judgement filed 8 March 2011 (document 30-2 in the docket) (bears page number 39 on bottom of the page), Mercury’s legal team is completing a list claims on the previous page began with, “Here, the unrebutted pertinent liability data establishes that:” followed by a list of bullet points including the one below:

From a population of more than 750,000 similar Mercury Marine outboard engines in the 8 to 25 horsepower range produced from 1986 to 2007 with the same lanyard start switch, only the McGarrigle’s engine was involved in an accident scenario like that Mr. McGarrigle experienced on July 21, 2007.

On page 4 of Richard Snyder’s affidavit filed 8 March 2011 (has page number 3 at the bottom of the page), Mr. Snyder states in item #8:

In 1986 Mercury Marine began selling hand-tilled outboard engines which utilized lanyard stop switches like the one incorporated into the subject engine. Between 1986 and July 2007, Mercury Marine sold more than 750,000 small hand-tilled outboard engines. Mercury Marine is aware of only one accident during that period of time which resulted in propeller strike injuries to an ejected operator of a small hand-tilled outboard engine who negligently failed to use the available lanyard stop switch. That is John M. McGarrigle’s July 21, 2007 accident.

There is still a little bit of ambiguity. If you combine the four statements as restrictively as possible you can construct, Mercury Marine’s population of over 750,000 eight to twenty-five horsepower outboards built from 1986 to 2007, with the same lanyard start switch (lanyard B) had only one propeller accident exactly like McGarrigle’s in which the operator was not using the kill switch.

If you combine the statements more loosely, you can just use the back end of the first statement, “(Mercury Marine) is aware of no other accidents of a scenario similar to plaintiff’s, which resulted in propeller strike injuries to an ejected operator of a small hand-tilled outboard engine who did not use the lanyard B.”

Why Did Mercury Select Those Specific Limits?

Mercury picked 1986 as a start year because that is about when they started including kill switches on their small outboard. That decision was driven by cases similar to Beatrice Reese v. Mercury Marine. U.S. Court of Appeals. Fifth Circuit. July 11, 1986 in which Mercury was found guilty off not warning of the benefits of a kill-switch, even thought the Mercury tiller outboard did not have one. The case was based on a May 7, 1983 accident involving a 14 foot jon boat powered by a 25 HP Mercury outboard. The motor had been purchased from a Beaumont, Texas dealer in May of 1982.

We eventually figured out they selected July 2007 as the stop date because that was the month of McGarrigle’s accident.

Mercury says “same scenario” as McGarrigle to eliminate the numerous small outboard propeller accidents resulting from the outboard starting in gear, ejecting the operators, circling and then striking them with the propeller.

McGarrigle’s Response

Prior to our findings, McGarrigle’s legal team responded to Mercury’s claim this was the first accident of its kind as part of their response to the summary judgement motions. McGarrigle made these points in their response (docket item number 34-4):

• It’s unclear exactly what Mercury Marine considers a similar accident scenario.
• Mercury provides no evidence to support its claim there were no similar accidents.
• Dick Snyder claims he has investigated about 300 boat accidents of which about 20 percent were propeller accidents, some of which involved propeller strikes to the operator. Mercury Marine defines similar accidents so narrowly these do not qualify.
• Mercury Marine’s expert witness confirms they have no accident reporting system in place.
• Coast Guard statistics are not specific enough to fall within Mercury’s narrow criteria.
• It appears the only basis for stating that there have been no similar accidents is that Mercury Marine has not been notified by any of its dealers or sued by its users.

McGarrigle’s legal team concluded by saying that for the reasons above, Mercury Marine should not be permitted to state McGarrigle’s accident is the first of its kind.

We Suspect Mercury Marine is Misleading the Courts Again

It is hard for us to believe there have not been numerous Mercury Marine tiller outboard accidents relatively similar the McGarrigle accident involving 1986-2007 Mercury outboards. We will see what we can find.

See the results of our hunt at Propeller Accidents Similar to the McGarrigle Accident: Mercury Said There Were None – Our Findings Indicate Otherwise.