Jacob Brochtrup vs. Sea Ray Boats and Mercury Marine (both Brunswick Companies)
A Propeller Injury Case

Quick Summary of facts in the Brochtrup Propeller Case

July 1, 2005, Jacob Brochtrup, then 18, was boating with some friends on Lake Austin (in Texas). He had just returned to the boat from wakeboarding and the tow rope fell in. As he jumped in to retrieve it, the boat operator put the boat in reverse, and the propeller struck his right leg which was later amputated. Alcohol was not a factor in the accident.

The boat was a 2003 17.5 foot Sea Ray 176 with a Mercury 135HP stern drive.

Brochtrup sued Sea Ray Boats and Mercury Marine, both Brunswick companies, claiming they did not provide guards or covers to prevent him from being entangled or struck by the propeller.

The first two times the case was tried, it resulted in hung juries. This time a Federal jury awarded Brochtrup $3.8 million in medical expenses and damages on April 5, 2010. Brunswick was found 66 percent liable and eventually a judgement was issued against them for approximately $2 million. Brunswick took out a bond in approximately that amount while they decide if they want to appeal.

The Brochtrup vs. Mercury Marine, et. al. case was tried in the United States District Court. Western District of Texas Austin Division with the decision rendered 5 April 2010. Case 1:07-cv-00643-SS.


  • Major Players in the Case
  • Brochtrup v. Mercury Marine Trial – Details and Comments
  • A Judgment Will be Issued
  • Judgment Issued
  • Media Coverage of Jacob Brochtrup v. Mercury Marine and Sea Ray Boats Trial

  • Major Players in the Case

    • Jacob Brochtrup – injured party
    • Sea Ray Boats – boat manufacturer
    • Mercury Marine – manufacturer of the outboard on the boat
    • Brunswick – parent company of Mercury Marine and Sea Ray Boats
    • Attorneys
      • Robby Alden – Austin attorney representing Brochtrup
      • Kevin Liles – Austin attorney representing Brochtrup
      • Don Davis – Austin attorney representing Brochtrup
      • Alex Miller – San Antonio attorney representing Brochtrup
      • Woody Norword – New Orleans attorney representing Brunswick
      •  

      • Chris Blackberby – Austin attorney representing Brunswick
      • Mark Verwys – attorney representing Brunswick
      • Sandra Densham – attorney representing Brunswick
      • Thomas Bullion III – attorney representing Brunswick
    • Medical Doctors
      • Dr. John Uecker MD – surgeon that operated on him – for Brochtrup. He testified by videotape.
      • Alex Willingham MD – testified about his life care plan (future costs and struggles) – for Brochtrup
    • Other Brunswick witnesses
      • Pete Chisolm – propeller guard expert witness for Mercury (and a Mercury employee)
      • Robert Taylor – Expert witness for Mercury
      • Dr. William Raymond Perry “Mike” Scott – biomedical propeller guard expert for Brunswick
      • Dick Snyder – long time Mercury propeller guard expert witness. His deposition was read into the record of the trial for Brunswick.
    • Other Brochtrup witnesses
      • Taylor McClendon – accident eyewitness – for Brochtrup
      • Guy Taylor – Expert witness for Brochtrup, inventor of a propeller guard.
      • William Greenlees – Expert witness for Brochtrup (works for Verifact Corp and participated in testing of Guy Taylors Navigator propeller guard and 3PO propeller guard shield.
      • Dr. Brian Benda – Expert witness for Brochtrup (works for ARCCA and tested Guy Taylors Navigator guard)
      • Lee Weber – operator of the Sea Ray boat during some testing.
      • Phylis Kopytko – Widely known propeller strike victim and long time advocate for propeller safety. It looks like the defense was able to successfully object to her testifying.

     

    Brochtrup v. Mercury Marine and Sea Ray Boats Trial – Details and Comments

    The jury trial began on Tuesday March 30, 2010 and recessed about 8:30 am Monday April 5th to begin deliberations which lasted approximately 7 hours. It was basically a four day trial up to releasing the jury early Monday to begin deliberations (courtroom trial days – Tues, Wed, Thurs, Fri).

    Judge was the Honorable Sam Sparks.

    We noticed from a quick look at the PACER (Public Access to Court Electronic Records) documents that it looks like 7 notes were sent from the Jury during their 7 hours of deliberation. The notes and responses are sealed. That seems to indicate the jury was investigating some questions.

    The Greenlees deposition was interesting. He was a previous employee of Glastron boats and owned some himself. The defendants appear to have “Googled” him and done other background research (background check, old college yearbooks, etc). It began to get kind of creepy when they asked him about several items not on his resume, including:

    • His employment with a Archdiocesean Campus Ministry in San Antonio several years ago (he said he was not even Catholic and had not been involved with them).
    • Some phone numbers that may have been his previous phone numbers.
    •  

    • Some of his previous addresses from long ago.
    • One of his son’s children that was put up for adoption.
    • An address that turned out to be his grandmothers address.
    • Pointing out he (or someone with same name) was in the second row of a photo of 1972 University of Texas Engineering Council. He did not recall being part of that organization.

    Those personal questions may have been meant to disorient him or to let him know they knew of possible discretions in his past they could bring up later, to let future witnesses they would be digging up dirt on them, etc. Yes, its just their job, but still its a little creepy.

    Verwys, a Brunswick attorney, presented Greenlees, an expert witness for Brochtrup, with a series of statements and asked him to agree or disagree with them, and to not say why he agreed
    or disagreed. They were presented like a true – false test. Those statements about propeller guards are below.

    • When used for its intended purpose, an open screw propeller functions safely and well.
    • A competent person knows that he or she must stay clear of the turning blades or outboard motor in the same way as a person avoids airplane propellers, chain saw teeth, and lawn mower blades.
    • When a boat powered by an outboard or sterndrive is handled in a common sense manner, the likelihood that bystanders will be injured by the rotating blades of the propeller is not great.
    • Ring guards create handling and steering problems due to their circular shape and add new rudder areas and entirely new planes, thus inducing dangerous handling characteristics.
    • Guards themselves can become a danger as they move through the water.
    • The ring type guard creates severe steering and trim effects which cause serious safety and control problems.
    • In the hands of an inexperienced or a negligent operator, a serious injury could result from operation of a boat with a ring type guard on it.
    • Ring devices increase drag with corresponding loss of speed.
    • Ring type guards are vulnerable to crushing on hitting the bottom with consequent disablement of the engine.
    • The result of an object striking a human body in the water is that the body absorbs most of the energy of the striking object.
    • As the speed of a striking object increases the transferable energy increases by the square of that speed, and the force of the blow thus becomes correspondingly greater.
    • The resistance force on body movement in air at one mile per hour is the same as the force of 29 miles per hour in the air.
    • The resistance force on body movement in water at one mile per hour is the same as the force of 29 miles per hour in the air. PGIC comment – Its nice to see Brunswick did not try the old water is 800 plus times denser that air gig again. At least this time they try to convert it back some due to us only weighing a few pounds when we are floating in the water.
    • It is fundamental that a guard should not create a condition which leads to a new or worse hazard.
    • Propeller guarding at best could have only a negligible impact on improving boating safety.
    • The propeller itself is the sole factor in only a minority of impact injuries.
    • The development and use of devices such as guards can be counterproductive and can create new hazards of equal or greater consequence.
    • The most rational approach to the issue of propeller strikes is to educate boaters, especially operators. They must be made to understand the abilities and limitations of their equipment.

    Lawyers like asking questions like that where not enough information is supplied to render a professional opinion, but they refuse to answer similar questions themselves. Some are similar to the old “Did you stop beating your wife, yes or no” question. Either answer indicates you either have or continue to do so.

    Plaintiffs used Guy Taylor’s Navigator propeller guard with a swing up rear cover (he calls it a 3PO shield) as their example of how the problem could have been solved on this vessel. We placed similar concepts in the public domain back in 2006 with our description of the UPDATELINK Flapper propeller guard.

    In his instructions to the Jury, the judge told them:

    • Not to consider any statements he (the judge) had made as an indication that he had any opinions about the facts in the case.
    • Brochrup must prove every essential element of his claim by a “preponderance of the evidence”.
    • The jury is the sole judge of the “believability” of each witness.
    • The jury is permitted to draw reasonable inferences from the testimony and exhibits as they feel they are justified in the light of common experience.
    • Brochtrup claims the stern drive unit had a defect in it when it left Mercury and that that design defect caused the event and his injuries. He also claims there was a safer design that would have eliminated or significantly reduced his injuries.
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    • Defendants claim the boat and drive were not defective AND there was “not a safer alternative design available that in reasonable probability would have prevented or significantly reduced the risk … without substantially impairing the product’s utility, and that was economically and technologically feasible …”. They also contend the actions of Brochtrup and/or the boat operator were the cause of the accident.

    The Jury Question Form had 4 questions. They are listed in abbreviated form below.

    1. Did you find by a preponderance of evidence there was a design defect in the Sea Ray boat powered by the Mercury Marine sterndrive at the time it left the defendants possession that was a producing cause of the occurrence or injuries to Brochtrup? (Yes or No).
    2. Do you find by a preponderance of the evidence, that the negligence, if any, of Brochtrup or the boat operator proximately caused Brochtrup’s injuries? (Put yes/no by each name).
    3. If you answered yes to Question 1 and to either part of Question 2, For each product or person found by you to have caused the occurrence or injury, what percentage was caused by them? (apportion 100 percent of cause between Brunswick (Sea Ray/Mercury Marine), boat operator, Brochtrup).
    4. What sum of money, if paid now in cash, would compensate Brochtrup for his damages resulting from his injury? (answer in dollars and cents). The Jury was told not to reduce the award because of any negligence of Brochtrup or the boat operator that may have contributed to the accident.

    The 7 person jury (6 men and 1 woman) unanimously found:

    • The boat to have a defect when it left the factory.
    • That defect was a producing cause of the accident.

    The jury found Brochtrup and the boat operator each to be 17 percent liable, and Brunswick to be 66 percent liable for the accident. Brochtrup was awarded $3.8 million from Brunswick, including:

    • $168,680.11 for past medical care expenses
    • $200,000 for past physical pain and mental anguish
    • $100,000 for disfigurement
    • $264,000 for physical impairment
    • $2,927,137.67 for medical care expenses that in reasonable probability will be incurred in the future
    • $200,000 for physical pain and mental anguish that in reasonable probability will be incurred in the future

    The actual award was reported at $3,859,817.78.

    Brunswick has informally since said they will appeal.


    Request for Judgment – net present value of money issue

    Quick Summary –

    During the trial, Brochtrup’s Life Care Plan expert, Dr. Alex Willingham, estimated the future medical costs Brochtrup will face in the remainder of his life as a result of his injuries. He made that estimate using the current prices of equipment and services and did not inflate them in the future due to any possible increases in medical costs. He added up all those costs (spread out over the next 55 years) to arrive at a total of $2,927,137.67.

    When the jury was asked to supply the present value of Brochtrup’s anticipated medical costs, they supplied exactly the same value. Brunswick says that was a mistake because they did not take into effect the time value of money (the jury did not reduce the award to a net present value). Brochtrup’s attorneys said their Life Care Plan expert clearly told the jury he was basing his estimate on the current costs of medical goods and services and just adding them up. Brochtrup’s attorneys also say medical costs may rise faster than current interest rates in the future. Brunswick supplied a financial expert, George William Berry, that converted Dr. Willingham’s Life Care Plan costs to a net present value based on Berry’s estimate of the gap between current interest rates and anticipated increases in medical costs by category.

    Details – Brunswick’s viewpoint on present value issue

    On April 15, 2010, Brunswick urged for “Judgement as a Matter of Law” or a New Trial. They are claiming there was a judgment rendered during the jury trial against them on a given issue when there is no legally sufficient basis for a jury to find for that Brochtrup on that issue (definition applied from Black’s Law Dictionary). They supplied some marked up copies of the Plaintiff’s closing argument and underlined several comments in which Brochtrup’s attorney was defining defects, unreasonably dangerous, design defect, safer design, etc. in layman’s terms.

    Brunswick also supplied several exhibits claiming the future medical costs had not been reduced to present value and thus the award should be reduced. They point to Chris Blackberry (a Brunswick attorney) questioning Dr. Alex Clark Willingham (Brochtrup’s Life Care Plan expert) on the stand and pointing out his costs were not reduced to present value.

    They (BC) also included some pages from the closing remarks of Robbie Alden (Brochtrup attorney). Alden discussed present value and points out they did not reduce their costs to present value. They just left them as current day numbers.

    Brunswick presented a brief from George William Berry, a financial consultant that looked over the Brochtrup present value costs. He used interest rates from various government sources and reduced Brochtrups “unadjusted” (per them) $2,927,138 for future medical expenses to a present value of $1,629,941 a reduction of about $1.3 million).

    Our comments – Mr. Berry has nice looking credentials (lots of schooling ending in a dissertation, member of several financial groups, ex-professor at Texas Tech, honored by establishment of a chair at Texas Tech (often the result of a large donation), He does have a few problems. He tries to come across as an academic, but his academic history is all pre- 1970. We are not sure that him being president of the local Toastmasters in 1967 is very relevant to this case. Nor him serving as a committee member on 6 theses back in the 1960’s.

    He tried to examine the costs by category, look at current inflation rates in that group compared to what he claimed were current interest rates (3.88 percent on ten year treasury bonds, 4.74 percent on 30 year treasury bonds, and 6.86 percent on a 55 year treasury bond by interpolating the prior two values). With just a quick look, I am not sure how he did that interpolation unless he was trying to curve fit a polynomial. Seems like he is trying to curve fit a treasury yield curve but doesn’t let us know how he generated it.

    The bulk of his cuts (adjustments) come from two sections:

    • Equipment and Supplies (he discounts them with a 4 percent interest rate because he says the Consumer Price Index does not show them increasing). He reduced the $1.56 million lifetime cost by Dr. Willingham to $618,754.
    • Home Care and Essential Services (he discounts them by 1 percent event though the CPI said Care for Invalids and Elderly at home increased by 1 percent, the minimum wage is increasing at a higher percentage so he only used the 1 percent discount. He reduced the $750,880 found by Dr. Willingham to $420,087.

    Berry notes no consideration was given to the recent health care bill that claims it will reduce health care costs. If it does, even higher discount values would be justified.

    I dug out my old Engineering Economy book from an Industrial Engineering class I took years ago and checked some of the present value calculations made by George William Berry, Brunswick’s financial expert, by using the Interest Tables in the back of the book, the interest rates supplied by Mr. Berry, and the cost and frequency data supplied by Dr. Willingham,
    Brochtrup’s Life Care Plan expert. I especially focused on the “Home Care and Essential Services” and the “Equipment and Supplies” as that is where the bulk of the reductions were made. My quick calculations showed the items I checked to be reasonably inline with Mr. Berry’s numbers. Anybody can run these calculations pretty easy. The hard part is coming up with
    the gap interest rate (discount rate minus inflation rate of medical costs by category). Mr. Berry just kind of snatches the gap rates by category out of the air without a lot of support information. I will check his present value calculations more thoroughly later using a spreadsheet when I get some time.

    At first glance, I thought the present value he supplied for a couple of the items in the the Home Care and Essential Services category seemed considerably low, but on closer inspection, those two items are not anticipated to kick-in until Brochtrup turns age 60 (he is anticipated to need more care at that time). Bringing those costs from way out there back to the present does result in a considerably lower present value than just adding them up. But on the flip side, those same expenses could be expected to rise at rates equal to or in excess of current interest rates, making them come back at the values it looks like the jury assigned to them.

    Brunswick closes a April 16th filing by saying they want the court to reduce the amount for future medical care expenses by $1,297,197. That would reduce the future medical care costs to $1,629,941. They say if the plaintiff refuses to accept his offer, they want a “new trial as to the future medical expenses portion of the case”.

    Details – Brochtrup’s viewpoint on present value issue

    Brochtrup’s attorneys responded with a page from Kevin Liles (a Brochtrup attorney) questioning Dr. Alex Clark Willingham (Brochtrup’s life care plan expert). Dr. Willingham points out he did not reduce his future costs to present value (reduce them by anticipated future interest rates to bring those future costs back to the present). He also pointed out his future costs assumed that costs do not rise from the present.

    Brochtrup’s attorneys also produced some data on:

    • Annual inflation of medical costs in the South over the last several years
    • Annual interest rates on 6 month Certificates of Deposits over the last many years (since 1964)

    This was done to counter Brunswick complaint about the medical costs not being reduced to present value costs. They were showing Brunswick if they had adjusted those medical costs up in the future to what they might actually cost in future dollars, then brought those future dollars back to a present value, the actual present value may have been even larger that the life plan costs as calculated by Dr. Willingham.

    They (Brochtrup’s attorneys) also provided a similar 2007 Court of Appeals of Texas case (injured part awarded future medical costs that were not converted to present value during the trial and the defendant appealed). In that case, the appeals court found “the trial court could reasonably have determined .. that the present the discount was offset by rising future costs.”

    Brochtrup filed a proposed judgment based on the jury verdict for:

    • $1,903,648.76 in actual damages (verdict reduced by proportion of responsibility and by previous award from the boat operator)
    • Pre-judgement interest of $42,883 calculated through 15 April, 2010.
    • Court costs
    • Post judgment interest of 5 percent simple annual rate on the $1,946,531.76 plus any unpaid portion of the judgment beginning today until paid in full.

    They also supplied a brief explaining their calculations. Brochtrup’s 17 percent of the damages was $656,169.02. The damages judgment was also reduced $1.3 million paid by the boat operator. The other various amounts were reduced by 17 percent where applicable. Interest was assessed beginning 180 days after the suit was filed.

    They included a discussion of future damages. His attorney’s cite a Texas case stating, “In Texas, the award of future medical expenses is not an element of damages that must be supported with precise evidence, since it is a matter upon which the jury may make its award based upon the nature of the injuries, the medical care rendered before the trial, and the condition of the injured party.”

    They say the court instructed the jury to reduce the future medical expenses to present value. Under 5th Circuit and Texas law the court is to presume the jury followed their instructions.

    The jury was qualified to make the calculation based on it common knowledge of interest rates and no evidence of the earning power of money was required to be introduced (they cited this from another case).

    Evidence of the future medical costs were admitted without objection. Medical care costs have historically risen faster than other costs.

    From the jury’s common knowledge they could have concluded the future medical expenses in the life plan would actually cost more than those in Dr. Willingham’s tables and that the present value discount was offset by rising future costs.


    A Judgment Will be Issued

    7 May 2010 Judge Sparks issued an Order (#328) granting the Plaintiff’s Motion for Judgement (#319) and the court will enter a final judgment in this case.

    He rejected Brunwick’s argument claiming the jury failed to reduce future medical costs to their present value on several grounds.

    • The jury was instructed the plaintiff did no have to prove the amount of his losses with mathematical precision, but only to such definiteness and accuracy as the circumstances permit.
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    • The jury was instructed that if they found the plaintiff was entitled to any award for future medical expenses, they should reduce that amount by the interest the plaintiff could earn on the award if he made a relatively risk free investment.
    • The expert witness presenting Brochtrup’s anticipated future medical expenses clearly told the jury he was using current costs and did not reduce the projected costs to present value.
    • The post trial analysis of the award using present value calculations made by a new Brunswick expert (Mr. Berry) was ignored because:
      • The expert (Mr. Berry) did not testify at trial.
      • His testimony was not disclosed to the plaintiff during discovery.
      • His report was not previously revealed.
      • He was never subject to cross examination.
      •  

      • To rely upon his calculations as correct, the Court would have to add new evidence that was not available to the jury or Plaintiff, and to rule this new expert’s calculations were more accurate than those performed by the jury.
    • The jury’s verdict reflects a reasoned approach, assuming rising medical costs and a discount to present value would offset.
    • The Court finds other damages awarded by the jury to be clearly reasonable (so why would this one not also be reasonable).
    • There is no indication the jury was trying to punish the Defendants by ignoring the order to reduce the award of future medical costs to their present value.
    • The jury was qualified to determine present value AND also entitled to consider the rising costs of medical care. Having done both, they concluded they would offset each other and went with Dr. Willingham’s proposed award.

    Brunswick did not fare well in this trial, nor in the opinion of their request to have future medical casts reduced according the calculations made by their post trial economic expert, George William Berry:

    • Mr. Berry’s attempt at testifying via a post trial report was thrown out for an abundance of legal reasons.
    • The Judge slammed them a bit for not presenting their own life-care plan when he said, “The jury, apparently impressed with Dr. Willingham’s life-care plan, or perhaps because it was the only evidence they have, found Plaintiff entitled to …”.
    • The Judge hammered them a bit more for not instructing the jury in how the Defense would like for them to calculate present value when he said, “In fact, Defendants did not attempt to guide the jury in any way regarding the method they should use to discount for present value.”
    • The judge took the opportunity to say he “finds it persuasive that the other damages the jury awarded were clearly reasonable.”
    • The judge pointed out Brunswick’s post trial expert economic witness used an average future medical expense annual increase rate assumption of 1.7% depending on the category of expenses. That amount is below the overall inflation rate despite most information indicating medical costs are rising faster than the inflation rate. Then he said, “Most economists testifying today calculate the future medical expense annual increase rate somewhere between 3% and 5%. Even after listing many legal reasons why the Court would not consider Brunswick’s post trial present value report, the judge basically said that even if they would have, he thought it was based on false assumptions (used the wrong inflation rate for medical costs).

    It seems apparent, Brunswick thought they would get another hung jury or be found not to be at fault. They failed to consider the consequences of not looking a little further ahead. You cant ask for a retrial based on the poor performance of your legal team, especially not when you are already trying the case for the third time.

    This case may prove to be a real landmark, in that if it holds, Brunswick may eventually be forced to move from their crack legal team devoted to escaping liability for propeller injuries to a team with different skills (a nickel and dime team that tries to reduce and minimize the inevitable award at every turn.) Obviously, their current team is very poor at the second task.

    As I understand it, the Court will shortly enter a Judgment against Sea Ray and MerCruiser for some dollar value. We anticipate that amount to be the Jury’s award adjusted by the calculations made by the Plaintiff (reducing it by the contribution of the Plaintiff, and by a previous award against the boat operator, adding interest for funds previously expended, plus interest accrued since the jury award date. That will place the judgment in the range of $2 million before any possible allowance for court costs.

    In real life, it will probably result in an appeal based on whatever reasons Brunswick elects to put forward. Brunswick (read the industry) will appeal in an attempt to stall additional lawsuits from gaining momentum off this one. In effect, it will be their effort to reduce the “present value” of the outcome of this trial by attempting to push any future awards in other cases further into the future (they do not want those cases to be able to point at this one as an example AND they can help prevent that by continuing to litigate this case). By appealing they hope to stall any future awards in pending cases (Listman, Rozon, etc.,) or future cases, plus some cases brewing outside the U.S. to later points in time to reduce their present value.

    If Brunswick (the industry) can stall a clean Federal jury verdict against an exposed propeller for several more years, it could be worth a lot to them. One way to stall this award is to make it bigger. Brunswick could appeal, then tell Brochtrup they would give him $4 million today vs. his uncertain approximate $2 million award long in the future to drop the case and get lost. That would be an enticing option to a young man. Would you rather have a lot of money now when you could still enjoy it, or at best, less than enough money to take care of your future medical expenses (remember he will be sharing a substantial percentage of his $2 million award, if he ever gets it, with his legal team). Case closed!

    Before anybody thinks Brunswick would never do that (payoff a propeller victim in advance to avoid an appeal verdict), you might want to re-read the U.S. Supreme Court case, Lewis v. Brunswick (or actually the non-case since Brunswick paid off at the last minute to protect Federal Preemption a few more years). Plus can anybody remember the last time you heard anything about the progress of the Sprietsma case being retried? Hmmmm.


    Judgment Issued

    On May 7, 2010 Judge Sparks issued a formal judgement against the defense (a document Brochtrup can use to try to get Brunswick to pay him). In that document the judge very briefly recounted the trial, noted the jury’s response to the 4 questions, and issued a judgment against Mercury Marine and Sea Ray for:

    • $1.903,648.76
    • Plus interest of .43 percent per annum until fully paid
    • Plus prejudgment interest of $42,883
    • Plus “all costs of suit for which let execution issue on said judgment”

    I admit, I am unclear exactly what the “all costs of suit” entails, but think it means the costs incurred at the court (filing fees, court costs, etc) and does not include reasonable attorney fees. We will check on that later.

    On 17 May 2010 Brunswick filed with the court an unopposed motion to approve a Supersedeas Bond (a bond purchase by Brunswick to prevent Brochtrup from collecting the award during the pendency of an appeal). Brunswick said they intend to purchase a Supersedeas Bond for $2,070,108.66 which is greater that the actual damages, prejudgement interest, estimated court costs of $40,000, and post judgment interest for one year at 4.3 percent interest.

    We noticed the post trial judgement .43 percent interest rate until fully paid (Brochtrup earlier asked for 5 percent). Then we see Brunswick wanting to purchase a bond including one year of post judgement interest at 4.3 percent per year. Seems like somebody made a decimal error (.43 vs. 4.3) that amounts to a significant sum when multiplied times about 2 million dollars per year.

    We did a quick follow up on the interest rates and found Federal Trial post judgement interest rates are governed by 28 USC 1961 and calculated from the date of entry of the judgement at the weekly average of 1 year constant maturity treasury yield as published by the Federal Reserve Board of Governors for the calendar week preceding the judgement date. We checked the daily rates of the week in front of Friday May 7th and found (Monday April 26 =.47 , Tuesday April 27 =.42, Wednesday April 28 =.43, Thursday April 29 = .42, Friday April 30 =.41) an average of .43 percent. It appears the judge used this method and Brunswick is the one that missed the decimal point. They probably wont really loose the “gap” money (4.3 percent of 2 million dollars) minus (.43 percent of 2 million dollars) = about $75,000.) They will just have it left over to go back to their coffers if they ever have to payoff. We checked Brunswick’s calculations to make sure they did not make the typo (make sure they did not enter 4.3 percent while they actually purchased the bond to cover .43 percent).

    We tried to match Brunswicks calculations to arrive at the $2,070,108.66 and found they must have:

    • Added the $1,903,648,76 award plus the estimated court costs of $40,000 to get $1,943,648.76
    • Calculated 4.3 percent interest of that sum and added it back to the principal by multiplying $1,943,648.76 X 1.043 = $2,027,225.66
    • Then added the prejudgement interest of $42883. $2,027,225,66 + $42883.00 = $2,070,108.66

    Brunswick calculated the bond amount in a manner that did not include paying post judgement interest on the prejudgement interest. At any rate, that is not a lot of money (half a percent of $43,000 for one year is only about $215).

    The more important bottom line is, Brunswick did calculate their bond on 4.3 percent interest while the judge said they only needed .43 percent interest. That error caused them to park about $75,000 they did not have to park.


    Media Coverage of the Recent Jacob Brochtrup v. Mercury Marine and Sea Ray Boats Trial

    • 20 April 2010 Abnormal Use Blog (legal blog by Gallivan, White & Boyd) “Big Verdict in Texas Boat Propeller Strike Case” reports a nice view of the case from a plaintiff legal perspective and includes a link to our coverage.
    • 15 April 2010 Westlake Picayune (just west of Austin TX) “Westbanker Wins $3.8 Million Lawsuit” reports on the results of the trial from Jacob Brochtrup’s former home town. Includes an interview with him and a nice outdoor photo of him with a couple boats in the background.
    • 13 April 2010 Marine Business (Australia) “Are Boat Propellers Future Collectors’ Items” reports on the case and its potential impact on the industry. PGIC Comment – This is the first industry report we have seen on the case that carried anything beyond the local news coverage. Marine Business chose to write the comments as a blog post under the authorship of a fictional “Skipper” to allow them to a little more freedom to comment from the industry viewpoint. While we may not agree with their comments, we do commend them for publishing them. We still await any comments from the U.S. boating industry in their media.
    • 13 April 2010 Batliv (Norway / Norwegian Boating Publication) “22.5 Million After Boating Accident” reports on the trial, provides a large photo of Jacob Brochtrup and link to our coverage of the trial. Note – this article is in Norwegian. You can translate it at translate.google.com
    • 5 April 2010 Austin Statesman. Jurors Find Boat Manufacturer Partially Liable.
    • 6 April 2010 World of Powerboats “Brunswick Partially Responsible for Accident” reports the trial results from an industry perspective and includes the line, “Has Brunswick now got to fit propellor guards on all engines sold to avoid further accidents.”
    • 6 April 2010. MyFox Austin. “$3.8 Mil Awarded in Boating Case” reports Mercury Marine will appeal. PGIC comment – This report provides some nice photos of a swing down guard cover similar to that we described and place in the public domain back in 2006. We called it the UPDATELINK Flapper.
    • 6 April 2010 We Are Austin “Boating Accident Turns Into Lawsuit After Amputation”. The report included a nice video from KEYE TV.
    • 6 April 2010 Soundings Trade Only Brunswick Partially Liable in Prop Accident.
    • 6 April 2010 IBI News Texas Jury Decides Against Brunswick in Personal Injury Case.
    • 6 April 2010 Boating Industry News. Jury Finds Brunswick Partially Responsible in Accident.
    • 5 April 2010 Liles-Harris Press Release “$3,859,817.78 Dollar Verdict in Brunswick Corp. Boat Propeller Strike Case”.
    • Boating Forums
    • Several boating forums are full of messages generally saying it was the drivers fault, Brochtrup’s fault, or just an accident. Many cite the McDonalds hot coffee suit, driving over people in a car, dumb juries, stupid operators, stupid people, alcohol, need to guard airplane propellers and lawn mowers, more safety stickers, etc. I especially like the Chaparral Boat Owners Club calling for “tart” reform. Some examples are below:

    We find it interesting that the major boating news outlets (Boating Industry, IBI, Soundings, and others) are relying on local news coverage in the Austin Statesman as their sole source of information on the trial. This decision could have monumental impact on the industry, but they seem to not be very interested. The results did not even get posted on NMMA’s news page.

    While the Austin Statesman ran a great story on the verdict, we sure missed the presence of a courtroom news blogger providing near live coverage like Aisling Swift did for the Naples Daily News in the Decker case.


    Brochtrup v. Mercury Marine & Sea Ray Was Appealed

    The U.S. Court of Appeals Fifth Circuit found in favor of Brochtrup on 27 May 2011. We covered the appeal on our Brotchrup Wins Mercury Propeller Case Appeal page.

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