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 Part 3 of the Plaintiff’s Closing Argument

We heard from one attorney:

• Bill Jeanney with Bradley, Drendel & Jeanney for Listman

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Plaintiff’s Closing Arguments continued, Part 3 of 3

Bill Jeanney continued with his closing.

CVN Video November 18 Part 2 begins here

Jeanney talked about the assumption of risk. This happened in a matter of seconds. Mss. Listman got on the back of the boat to retrieve the toy and was rocked off. Robin Listman’s right leg was struck by the propeller and he life before that was different.

When the harms and losses people came in to describe her journey as an “unpleasant experience” by the lawyer representing OMC. An unpleasant experience.

Jeannet spoke of Robin Listman’s challenges, pain, physical therapy, prosthetic treatment, trying to keep that residual limb so it will fit the socket, it swells and then comes back down, scars up the side that make the fit extremely difficult, phantom pain, sores, and others.

Her past medical costs are $220,754.36

Riley said she will need new prosthetics every 4 to 5 years. Dr. Coleman, our economic evaluator, said she will need $1,269,199 for prosthetics until age 75.

Jeanney spoke of the impact of the accident on her life.

What are these injuries worth? Pain and suffering, how do you value that? One way to consider it, is how much would you pay to avoid Robin Listman’s life. She suffers constant pain and doesn’t get a vacation from it.

Jeanney showed a table with values per hour of $1.50, $2.50, or $5 with totals of $438K, $867K, and $1.75 million. My recommendations, which you can ignore, are you provide her for the last ten years $500,000, just $1.25 per hour and for the future, $1.5 million for the next 30 years. That is less than $5 per hour to live with this.

He then added up the plaintiff’s suggested total award of

$227,754 past medical expenses
$1,269,199 future prosthetic costs
$500,000 past pain and suffering
$1,500,000 future pain and suffering

for a total of $3,489,953

As jurors, you have the power to tell OMC to make a change. To tell this manufacturer to be safe.

You can come our with a whisper or a shout.

Bring back a voice that tells OMC to change to a safer product.

Plaintiff is Closed

Mr. Jeanney looked and sounded strong in his close. While we agree the industry has resisted change and fought it at every step along the way, that we have put men on the moon, developed the artificial heart, and seen the birth of the Internet in the era OMC still says propeller guards are impossible. All that does little in a court of law. Its useful to sway public opinion and some of the jurors may believe OMC was stonewalling the development of propeller safety devices, but when the jury starts answering the specific questions they were given, the Plaintiff’s team would have been better off with a better exemplar propeller guard.

The order of the questions eventually put forward to the jury began with, did OMC build this boat? and did it have a defect in its design? As we now know, the jury said the product did not have a defect in its design and the Jury did not go forward with the other questions that get into the availability of alternative designs.

However, if the Plaintiffs had a real kick-butt exemplar guard and it performed like Superman in all the tests, the Jury would begin thinking the boat was defective without it, even though they never got to the alternative design questions on the Jury findings slip.

And yes, we know that even a Superman propeller guard is not going to perform well in all the Defense tests because they are going to run out and find Kryptonite and say, look, it’s weak now. But the jury is smart enough to recognize the guard would likely never be placed in the extreme tests the Defense would have to run to cause it any problems when compared to an open propeller, and thus its benefits outweigh its detriments.

We also recognize it is not possible to identify some vast array of kick-butt exemplar propeller guards for this boat after the boating industry has spent the last thirty years trying to suppress propeller guards, especially not a bunch of them available in 1995.

The Plaintiffs did a good job in presenting their case and trying to address the issues the Defense brought up about the exemplar propeller guard, they just needed some more horsepower in the exemplar guard department in our opinion. But the Plaintiffs did do a great job of producing a guard that met the Defendent’s criteria which they previously said could not be done.

You could tell the Defense saw them honing in on the target, so they got Kennett to move it a bit. Now a 3 mph guard strike can crack your skull and kill you or leave you senseless, when the previous target was 10 to 12 mph. Plus they used Robert Taylor’s super GPS / 3 axis, 6 degrees of freedom tracking system that could record every time the boat operator sneezes and rocks the boat to show extremely subtle differences in behavior between guarded and unguarded boats. When you start to get close, the industry moves the target, that’s not a big surprise.

We were also a bit surprised not to see more about Defense testing in an exemplar boat vs. the real accident boat. If the shoe were on the other foot, the Defense would be showing all kinds of test data about how slight differences in boat hulls make slight differences in performance. Its possible the real boat would have performed better with the guard.

Lastly we were surprised not to see Kennett’s crew yelling and he-hawing on the audio of the arm video again during the closing argument illustrating the defense technicians were obviously working for a specific result and were not open and unbiased. That video may have been in there somewhere since there were a couple bad spots on the video, but we did not see it.

We hope to eventually prepare a scorecard of the points made by both sides in this trial, similar to the one we made in the Decker Trial, but it will probably be January before we complete it.

Plus a super thanks to Courtroom Video Network (CVN) for allowing us to blog the trial from their live and delayed video feeds. Their service is wonderful and we highly recommend it to anybody wishing a court side seat at a remote trial. If you are a legal firm pondering either side of a propeller case, you may find our coverage of the Listman trial useful, but the CVN coverage from gavel to gavel is magnitudes better than ours. We will try to write a post about our experiences with CVN’s service in the future. Meanwhile, we will continue to blog the earlier sessions of the trial as time permits.

Right now, if somebody has not yet submitted their Public Comments online in USCG Proposed Rule USCG-2011-0497 Recreational Vessel Propeller Strike and Carbon Monoxide Poisoning Prevention they are due by Friday 25 November. We will be trying to finish ours up as soon as we get this closing posted. Whatever your viewpoint, we encourage your participation in USCG’s call for public comments on the proposed resolution.