This post is part of our coverage of the Listman v. OMC propeller injury trial

Robin Listman vs. Outboard Marine Corporation
Second Judicial District Court of the State of Nevada, County of Washoe

18 November 2011 Session One

Our coverage was obtained via a video feed supplied by Courtroom View Network (CVN). The images are also courtesy of CVN.

This session focused on Defense Closing Arguments (Part 2) and the Plaintiff’s Rebuttal

We heard from two attorneys:

• Jay O’Sullivan with Quintairos, Prieto, Wood & Boyer, P.A.for OMC
• Bill Jeanney with Bradley, Drendel & Jeanney for Listman

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Jay O’Sullivan

This is part two of his closing arguments. We just split them in half.

Vaage said in 50 years nobody in the whole world developed such a device.
Why is that true? If we had the wherewithal to build such a device that actually defied the laws of physics, why wouldn’t we? We would have a competitive advantage.

There have been some companies like in medicine with a competitive advantage and zoomed up.

Lots of Naval Engineers and companies. Do you really think that if such a device really worked and did not make more problems than it solved would not be on every propeller driven boat and the guy that designed it would be the next Donald Trump with hotels and restaurants. From a commercial point it would be a stunning success.

Item 8, nobody puts them on drives or boats. Plaintiff admitted it.

It’s not even commercially feasibly because its hydrodynamically unstable per Dr. Good.

What did OMC do? Gave consumers a choice (prop or jet).

What did these warnings show? Her argument, she got dulled to that warning. I strongly disagree with that.

The nature of who she is caused this accident. She works out all the time and by God she was going to get that toy for her son.

Dr. Elson said, yeah, I learned that she jumped because the kids in the boat said she jumped.

Did she or didn’t she? That is for you to decide. That is almost icing on the cake.

Would you ever be on that swim platform with the engine running and you can see the propeller?

Maintenance, how do you get to a broken propeller with this thing down? Mr. Taylor out on Lake Michigan could drift for days.

O’Sullivan hit the guard sharply with a piece of metal and it rang like a loud tuning fork. It really startled everybody, then he said, You get hit by that guard between 3 and 5 mph on the head, you have a skull fracture.

He retold the red handle inside trunks and kids thought it was hot so they did not pull it story about unintended consequences, then he hit the guard and it rang again and said, Propeller injuries may be bad, but you don’t want to hit one of these things.

Bad propeller injury vs. skull fracture and brain damage. But if you can still think, you can be.

Show the in water video of the guard up and down.
They showed the video of the guard clanking up and down in the AIR.

You’ll have to have a manual override. You have to completely enclose all this upper stuff.

What if I need to get to the lower unit? You gotta be able to get to it. Here you have to take this whole device off just to get to it. How much is the mechanic going to cost you?

You need something to protect your back (referring to how much it weighs). 50 to 60 pounds plus 3,000 psi hoses.

I still think he is way off on his pressures for steering and trim. We will check them later.

We heard them trying to create chaff. Why didn’t you have a StarWars robot behind there that could flair his arms and all kinds of things. We used surrogates.

Dr. Good said Prototype 3 is to have more vanes.
Why didn’t you just do that and see how many more problems it causes.

He (Dr. Good) admitted that after six years and building them for $15,000 each, they still weren’t adequate.

O’Sullivan showed the video of the boat backing up the wrong way and said, It goes exactly opposite of where it should be going.

If we could even solve the laws of physics and somehow make it work it wouldn’t be with that device.

Since I represent OMC, I would be remiss without discussing her damage claims.

Pain and suffering, she said she had not been to a physician in 5 years. Her fiance with her since 2003 said she used street drugs. It’s very hard to believe, but you have to decide.

She picked herself up and said, I’m going to proceed with my life, is fully employed and proceeds with life.

She took up with Star Chennowith that she knew before (before her divorce, hinting the divorce may not have been due to stress from her accident).

Plaintiff claimed an extraordinary amount of money. Look at what has happened to her. Injuries to her upper right leg indicate she jumped in. Did she appreciate the danger of being on the swim platform without a guard on the prop?

OMC has tested and retested multiple devices and even tried to develop its own. OMC actually produced one to protect propellers on low speed boats.

The argument of counsel is not evidence.

Her children go out on her boat today.

It would have been nice if we could have developed one and defied the laws of physics, that would have been quite a coup.

Thank You.

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Plaintiff’s Rebuttal

Bill Jeanney began, The issue of Defense’s use of the word “street drugs” cannot be avoided. It is not in evidence. She used prescription narcotics to treat pain. This is just another example of Defense’s tactics.

In anticipation they would fail to accurately report the Porsow’s testimony, I had it transcribed. She didn’t jump. No witnesses came and said she jumped.

Negligence is not a defense. He displayed a marked up version of one of the many pages of instructions Judge Polaha gave the Jury this morning.

Defense keeps trying to say Robin Listman jumped in AND she knew about the danger of the propeller AND she knew the engine was on AND she knew the boat had been jockeying back and forth earlier, therefore she assumed the risk and its her problem not ours.
Plaintiff contends she fell in, but even if you think she jumped and was negligent for jumping, according to the Judge’s instructions for a strict products liability case negligence is not a defense, and does not reduce the amount of damages, if any, a plaintiff would otherwise receive.
While many may argue with the Judge’s statement, it is the law. There are many sets of laws under which these cases can be tried, plus many of those vary from state to state. The bottom line is whatever set of laws wherever the case is being tried under, there are a few points of the law each side likes, and a few points of the law each side does not like.
In this case, any possible negligence not coming into play absolutely removes from discussion the did she or didn’t she issue. Although the Plaintiffs like it, the same set of laws raise the hurdles for Plaintiffs to cross in other areas of the case.

We can only consider the assumption of the risk. On the swim platform she doesn’t get hurt. The defect is an unguarded prop.

Is their evidence that she voluntarily got in the water? No.

Remember the ladder warning?
Jeanney read the actual words on the warning. It said, “MAKE SURE ENGINE IS OFF AND PROPELLER IS STOPPED BEFORE USING BOARDING LADDER”. Was anybody using the ladder? No.

We have been griping about these worthless decals a long time. They are near worthless because they:

1. Display the words in all caps which purposefully makes them hard to read. It is well known that longer lines all caps are hard to read.
2. Break the word PROPEL-LER in half on this one making it even harder to quickly read and understand.
3. Break the last word off to a line by itself “ladder” making it once again even more worthless.
4. Provide no images to portray the hazard.
5. Provide no reason why you should do what they ask.
6. Do not follow the ANSI standard (ANSI Z535) that has now been out for approaching a couple decades. Most of you are familiar with ANSI Z535 warning labels. They usually have two panels. One panel has a graphic in it showing what can happen to you if you do not follow the warning, like in the examples we posted from by Clarion.

Ladder Propeller Warning Decal

In addition, several boats place similar warning labels in the area of the ladder that do not even have the word propeller on them like this we one shot at the Tulsa Boat Show.

The industry wants to claim they are warning people, but they do not want the warning to be seen or understood because boaters might then think the boat is dangerous.
ANSI Z535 has been around since 1992 and the industry still ignores it in terms of propeller warnings.

Jeanney continues, The $300,000 witness, Mr. Taylor, worked for a company that proved they don’t work (referring to warning labels). He worked form them 30 years (referring to his time working for OMC cases) charging $300,00 (for just this one case). OMC still puts a warning label on there and they know they don’t work.

Bill Jeanny was wound up tight and did a great job of delivering the statement above very forcefully. We especially liked, “The $300,000 witness” it was a bit like the “Six Million Dollar Man”, and a counter to Jay O’Sullivan referring to a plaintiff expert as Plaintiff’s Propeller Guard Expert Theorist.

Jeanney showed a photo of a wall and said, It’s not defense. Its just a wall they continue to put up.

You think the millions of dollars they spent on Mr. Taylor could have been used to build a propeller guard?

Jeanney then began to go through the list of questions Judge Polaha gave the Jury to decide one by one and marking them. (We could see them via an ELMO projector and a digital version as well). He told the Jury that as soon as six of eight of you have reached a verdict, its time to be signed and returned. The decision you make today will break this wall down. Your voice represents the community. That voice can be a whisper or a shout.

Thank You.

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Judge Polaha then gave the case to the Jury, told them they had to be out of the building by 12 o’clock (in just a few minutes) so they are to come back Monday to deliberate. He re-instructed them not to talk to anybody about what they had heard or seen, don’t make Internet searches, avoid the media coverage if any, keep an open mind till you arrive here 8:30 am Monday, select a floor person, and begin to deliberate.

Judge Polaha noted they had three alternate Jurors. Those Jurors will not be coming in to deliberate Monday, but the same restrictions apply to them. They will be contacted if they are needed.

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