Michael Hinton was trying to retrieve his son’s hat which had blown into the water on September 10, 2000. He was on the swim deck, crouched, hanging onto the swim ladder and getting ready to reach for the hat. The swim ladder was anchored to the transom by a nylon strap through a grommet. The grommet broke and Hinton fell in, went under a few seconds, then surfaced several yards away.

The boat operator backed up to retrieve Mr. Hinton, he swam toward the stern, as Mr. Hinton looked up he saw the boat rapidly approaching, hit his chin on the swim platform, one of his legs was pulled into the propeller and severely injured, and later amputated.

Michael Hinton claims the boat had a defective swim ladder.

As noted above, the trial focused on the ladder, but they would not have had a trial if he had not been injured by the propeller.

The Jury decided in favor of OMC on February 2, 2012.

The actual case is:

Michael Hinton v. Outboard Marine Corporation, et al., United States District Court. District of Maine. The trial was held in January – February 2012.

Judge was the Honorable John A. Woodcock, Jr., Chief United States District Judge.

Michael Hinton was represented by Arthur Grief and Julie Farr of Gilbert & Grief, P.A. of Bangor Maine.

OMC was represented by two firms: Harold Friedman and Phillips Bixby of Friedman, Gaythwaite, Wolf & Leavitt of Portland Maine.

Listman Trial - Jay O'Sullivan image courtesy of CVN

As they sometimes do, the industry worked through a local firm, then brought in Jay O’Sullivan as the heavy hitter.

More Details of the Accident

The accident happened offshore in an Atlantic Ocean bay off Waldo County Maine.

The boat was a 1989 Four Winns 225 Sundowner cabin boat powered by an OMC stern drive.

Hinton says his son’s hat blew into the water, Christopher Sprague, the boat operator, turned the boat around to back track looking for the hat, they saw it and came by the hat with the boy reaching for it while his father held onto his pants. The boy missed it in part because the freeboard was so high (long ways down to the water).

Michael Hinton crawled over the transom to the swim platform, crouched with his right hand on the gunwale and left hand on the swim ladder. His right hand slipped from the gunwale, the boat rode over a swell, he lost his balance, the ladder gave way, he fell over the port side.

Robin Sprague, Michael Hinton’s girlfriend at that time was relaying info to the operator. As Michael swam to the boat, the boat continued to back toward him. When he saw how hard it was coming at him, he said, “Whoa!”, put up his hands to keep the swim platform from hitting him, it wrenched his right thumb and pounding him in the chin, then he heard two thumps, felt like his calf had been nicked, was pulled into the boat, and saw his leg.

In 2003, his prosthesis broke and he injured his back. He still suffers phantom pain, faces recurring costs of prosthetics, physical and mental therapy.

The Expert Witnesses

Among experts for the defense were Robert Taylor and Dr. Wendy Sanders of Design Research Engineering (DRE). They noted a similar exemplar boat had a warning decals at the helm (“Make Sure Engine is Off and Propeller is Stopped Before Using Boarding Ladder”) and at the swim ladder (“Make Sure Engine is Stopped Before Using Boarding Ladder”). In their opinion, the operator and Mr. Hinton were at fault.

Robert MacNeill of International Marine Consulting Associates, Inc. (IMCA), and well known author of some 1970’s reports on boat accident reconstruction, was also a defense expert. Mr. MacNeill was an OMC executive in the 1990’s with direct responsibilities at Four Winns for part of his tenure. Robert MacNeill notes the ladder was not intended to be a handhold, says the ladder meets the relevant ABYC standard (ABYC A-180), and notes the propeller warning decal at the helm on the same exemplar boat used by DRE). He did not think the ladder retaining strap was buckled. Mr. MacNeill says the ladder rotated because the securing strap was not attached, the ladder was not defective. Mr. MacNeill also found the boat operator and Mr. Hinton caused the accident.

Robert V. Flynn was the expert witness for the plaintiff. He observed the accident boat on dry land, but did not operate it in the water. Mr. Flynn solely focused on the swim ladder. Mr. Flynn may be a good old boy with a safety background, but his cv and testimony were no where near the quality of that provided by the heavyweights aiding the Defense.

In an odd move, Plaintiff elected not to depose defense experts, but still tried to exclude them from the trial. Defense said the Plaintiff should not try to exclude Defense experts opinions if the Plaintiff did not even depose them (would be a Rule 11 violation per the defense). Plaintiff said portions of the opinions were about warnings which is not part of his case, plus the Defense experts just tell the jury what decision to reach.

Plaintiff also did not depose Dr. Graham or seek a supplemental report from him.

Robert MacNeill suggests the victim was most likely struck soon after he entered the water, while he was still submerged, not later when the boat backed into him.

January 22, 2012 Defense filed document 162-3 pointing out Defense experts had written reports prior to the deposition testimony of fact witnesses and reserved the rights to amend or supplement their opinions. Plaintiff has not deposed the Defense experts, so Plaintiff may be blindsided by some new opinions at the trial. Defense is just filing this document to make sure they legally put Plaintiff on warning so Plaintiff cannot object to any amended or new opinions introduced in court.

Airing Your Dirty Laundry

As we mentioned on our Guide to Taking Legal Action in Propeller Accidents post, the industry will find dirt on you and your family and air it in court. If you have any dirty laundry (things in your past you would like to keep from the public), they will air them or threaten to air them in an attempt to get you to back off, or to influence the jury. That does not make them evil, its just one of the ways they try to protect their investments.

Early on Mr. Hinton revealed a few personal entries that might attract some attention (moved around a lot and had at least one ex-wife).

Then later, OMC tried to reveal several more of the types of issues that sometimes come out (lots of ex-wives, homosexuality, criminal past, sexual diseases, fraud, embezzlement, robbery, polygamy, illegitimate children, unsolved crimes, murders, involvement in other lawsuits, previous medical history, drugs, outstanding loans, mental illness, employment history (reasons for leaving), child molestation, abuse of prescription drugs, alcohol, bankruptcy, sexual harassment, changing your name, living abroad in unseemly circumstances, seedy friends, abandoned spouses or children, child support payments and status, nontraditional religious beliefs, sexual relationships, etc) about an individual or their family. While Michael Hinton and his family did not have all of these, they had a lot more of them than you would want your client to have. However, at the time of the accident he was a pastor (minister) at a United Methodist Church in Little Rock. He since resigned after two years of disability leave and was seeking another clergy position in 2009. At least part of the expenses related to his injuries were paid by the church or its insurance plan.

No BARD Report

When asked if there were any accident reports, the plaintiff said the Waldo County Sheriff’s Department may have produced one at the time of the accident (September 10, 2000). We spent considerable time looking for a report in the U.S. Coast Guard Boating Accident Report Database (BARD) and were unable to find one.

Historically, the industry always claims the more severe an accident is, the more likely it is to be reported, propeller accidents are severe, therefore they are almost all reported. Some representatives, like Mercury Marine’s previous General Counsel, Joe Pomeroy, ran on and on about them all being reported. In a March 11, 2002 public comment letter to USCG, he said:

“As a parenthetical comment, I would like to address the oft-repeated shibboleth that Coast Guard statistics fail to accurately convey the extent of recreational boating injuries. … “I cannot recall a single lawsuit in which a formal boating accident report had not been filed and reported in the U.S. Coast Guard statistical database.”

We continue to find countless unreported propeller accidents, and some involved in lawsuits like this one that are not reported in BARD.

Who is the Defendant? Who Should The Plaintiff Sue?

Early on, Michael Hinton tried to cast a wide net the eventually at least temporarily had the boat operator, the dealership that sold the boat, the boat ladder manufacturer, Four Winns, OMC, and OMC Recreational Boat Group in it.

Four Winns said it did not exist anymore, OMC said they were bankrupt, OMC tried to pin it on Four Winns, and other shuffles, and they tried to determine what party to sue. Eventually OMC’s insurance carrier was found as the party that would come to OMC’s defense, as had been done in other OMC cases. The Judge was sympathetic to the Plaintiff’s plight of trying to sort through all the OMC related entities and post OMC bankruptcy issues.

The Court said that due to the contested records surrounding who is the proper defendant, they could not begin to determine if Four Winns is the proper defendant. The Judge noted there is little agreement on any material facts relating to who should be the Defendant (Four Winns, OMC, etc). He also notes that if the Plaintiff has in fact targeted the wrong defendant, it would be best for both him and the current defendant to know that now before and expensive trial. Judge Woodcock said that if there is a contested set of facts (who is the defendant) the parties could submit them to the court for resolution, but the Court must leave those issues to counsel. At the moment, the judge will leave it to the jury to sort out.

The suit was originally filed in Maine’s State Superior Court in July 2003.

What Laws Are We Suing Under?

Admiralty (Maritime Law) has several nuances from state and federal law. Both parties disagree about which one should apply to this case. Plaintiff wants State Law, Defense wants Admiralty. The Court said they would proceed. If the jury finds any comparative negligence, they will be directed to apply a percentage (determine how negligent Hinton was). If that percentage is over 50 percent, the Court will need to determine if Admiralty or State Laws need to be applied.

The Court made an interesting statement in Docket item 175. The Judge noted that under Maine law, if a plaintiff’s negligence is equal to or greater than that of the Defendant, the claim is bared. While under Admiralty, comparative negligence is just a straight percentage deal. So both sides appear to be arguing for law (State or Admiralty) that would actually benefit the other party. For example, “Mr. Hinton is arguing for rules harsher to the plaintiff and OMC for rules more generous to the plaintiff.

We (PGIC) suspect OMC is arguing for Admiralty in hopes of limiting its maximum responsibility to the value of the vessel and its contents.

Lots of Motions

While propeller cases are typically full of motions from both sides wanting to disqualify the other side’s expert witnesses, trying to bar evidence from the trial that might not look good for their side, and moving for summary judgement, this one may have set the record. Among the countless motions were:

• OMC claimed the statute of limitations had ran out on Hinton’s claims.
• Countless in Limine motions from both sides to ban certain information from the trial.
• April 11, 2011, OMC moved for summary judgement saying the boat was built by Four Winns, Inc., a separate corporation not named as a defendant.
• Plaintiff moved to exclude testimony of Defense expert witnesses (they had three expert witnesses).
• Defendants moved to exclude the Plaintiff’s expert (Flynn).
• Both sides filed replies in support of their own expert witness(es).
• Defense moved for summary judgement, Plaintiff filed in opposition to summary judgement, Defense filed additional information in support of summary judgement, Plaintiff moved to strike Defense statement of additional information, Defense responded to Plaintiff motion to strike, Defense separately moved for summary judgement again claiming boat was a Four Winns and Four Winns is not named as a defendant, Defense filed more info in support of that motion, Plaintiffs responded in opposition to the second move for summary judgement, Plaintiff opposed the Defense’s additional facts in support of the second motion for summary judgement. This sequence is summarized in Docket item 98.
• The court recognized Robert Taylor, Wendy Sanders, and Robert MacNeill for OMC and Robert Flynn for Hinton as experts, but will separately consider the admissibility of Robert Flynn’s testimony based on a Daubert test of his methods and opinions. As we understand it, the transcript of his Daubert hearing will be sealed.
• OMC moved for judicial notice of 31 pieces of evidence (wants them declared as facts). The Court dismissed the motion.
• Plaintiff moved to prevent Defense from calling a Plaintiff attorney (Arthur Grief) to the stand in their efforts to prove OMC was notified after the statute of limitations expired. Defense says OMC is doing this in an attempt to remove him from being attorney for Plaintiff and thus put a hardship on them (lawyers cannot be called to stand in Maine if their testimony is contested). The Court said the trial will proceed as planned. After a verdict is issued, if the Defense wishes to pursue the timing issue with Mr. Grief, they can do so in front of another jury without Mr. Grief as counsel.
• Plaintiff moved to prevent Defense from bringing up a number of personal issues surrounding Mr. Hinton and his family during the trial (of the nature of those we listed earlier under Airing Your Dirty Laundry). The Court eliminated a few of them, but said the ability of the Defense to pursue most of them would be decided based upon Mr. Hinton’s testimony (if he opens up an area, they could go after it), but the Defense would need to sidebar before pursing several of them, even if they were opened by Mr. Hinton.
• Defense (OMC) moved to limit Plaintiff’s claim for medical expenses to those bills he personally paid. Plaintiff’s bills were about $236,695.48 of which he paid $117,246.20, while the State of Texas, State of Maine, and his insurance company paid the rest. The Court said his expenses (total expenses) determined the reasonable value of the service. The fact that someone else paid part of the bill is immaterial.
• Plaintiff claimed Mr. MacNeill’s January documents were late and improper expert witness disclosure, therefore the Defense should pay for him to depose Mr. MacNeill. The Court did not agree.
• Plaintiff moved to prevent Defense from stating Mr. Hinton vaulted over the transom to the swim platform (the Court did not agree). OMC will be allowed to argue Mr. Hinton was otherwise negligent and his negligence was a proximate or intervening cause for his injuries.
• Plaintiff moved to exclude or substantially limit testimony of Robert MacNeill. Court said MacNeill would not be allowed to tell the jury that Christopher Sprague probably had the most accurate recollection of timing of the events surrounding the accident. (Inadmissible, is not his place to tell the jury who to believe.).
• Plaintiff objects to Defense Demonstrative Exhibits. The Defense has several aids to help explain certain events. Plaintiff feels that large labels on certain displays attempt to push the Defense’s opinions, while the display explains the event. The Court agreed. Defense can use them in closing arguments, but not in questioning witnesses. Additionally, Mr. MacNeill has a some displays on propeller fatalities relating their frequency of occurrence to that of other accidents and events (We suspect this is an updated version of Robert Taylor’s Appendix of the 1989 NBSAC report). The Court said the victim did not die from his propeller injuries so those displays are not relevant. Plus Mr. MacNeill plans to present a slide he claims list points on which both sides agree. The Court said he could not present it unless the Plaintiff agrees to the slide.

The Verdict

Question 1 (this turned out to be the only question that mattered) “Was Defendant Outboard Marine’s boat defective and unusually dangerous and did such defect cause injury to Plaintiff Michael Hinton?” No.

Verdict was reached February 2, 2012.

Interestingly, Docket item 184 forbade any post-verdict contact with jurors by lawyers or any of their agents.

Quick Thoughts About the Trial

It looks like the injured party (Michael Hinton), his attorneys, and their expert witnesses were severely outgunned by the well refined defense. The Defense is very professional, has strong credentials, and it takes a top notch presentation and legal team to beat them. That is why our Guide to Taking Legal Action in Boat Propeller Accidents post suggests those considering legal action find an expert legal team with previous experience in propeller injury cases. And before anybody jumps on us for encouraging litigation, we suggest you read that post. It tries to talk most people out of it.

Similarities to Robin Listman v. OMC

We can’t help but see several similarities in these two cases. Robin Listman’s trial focused on her being on the swim platform, reaching for an inflatable toy that belonged to her son, falling in, being struck as the boat was still in reverse at the moment she fell in. Plus OMC was the defendant in both cases, OMC won both cases, both cases were tried within 4 months of each other, and Jay O’Sullivan represented OMC at both of them. OMC has to be feeling good about this string of wins.