Archive for September 2016

Mark Barhanovich

Mark Barhanovich

On September 16, 2012 Mark Barhanovich’s boat struck a dredge pipe off Deer Island, Mississippi, his 225 horsepower Suzuki outboard motor broke off, flipped into the boat, and he was killed by the propeller.

As to what led up to the appeal, see our post titled, Barhanovich case: Suzuki released, Bean appeals

The Expert Reports

A little more information on the expert report in question and its timing is below.

Bean’s expert, Edward Fritsch of ATA Associates, prepared an expert report dated 19 October 2014. At the end of the report, he lists a total of 3 opinions. They were basically, (1) But for failure of the Suzuki outboard swivel bracket, the engine would not have entered the boat and struck Mr. Barhanovich. (2) The extent of fracture of the swivel bracket on the Barhanovich boat is much greater than that of similar brackets failed in the lab and requires evaluation of the properties of the specific bracket on the Barhanovich boat. (3) If Mr. Barhanovich knew a dredge pipe was in the area, he should have been going less than 28 mph.

Suzuki DF225 outboard

Suzuki DF225 outboard

Per Bean, Suzuki did not provide full responses to their discovery til 6 April 2015.

Edward Fritsch, Bean’s expert, filed a supplement (update) to his report on 30 July 2015 said to be based on additional things learned from Suzuki’s disclosure. In this report Mr. Fritsch lists a total of 10 opinions, all of which target Suzuki.

Suzuki basically claimed the first expert report was not relevant because it did not make direct claims against Suzuki.

Suzuki claimed the second report introduced ideas and opinions not in the first report. Per Bean supplemental reports were only to expand on ideas previously discussed, not to introduce new opinions.

Suzuki was thus able to get both reports and Mr. Fritsch’s testimony (deposition) tossed from the case on 16 September 2016, just two weeks before the scheduled trial.

That left Bean holding an empty bag when Suzuki moved for summary judgement.

The judge granted summary judgement to Suzuki and Bean appealed. Read More→

0 Categories : Legal Shorts

Derek Hebert was on a Champion center console boat being operated by Daniel Vamvoras on 7 May 2005. They were between the Calcasieu River and Lake Charles County Club. The steering system failed and the boat began to spin (the Circle of Death). Derek Hebert was ejected, struck 19 times by the propeller, and died from his wounds.

While the boating industry sees this as a steering system failure case, it is obviously a Circle of Death case. The hydraulic steering system had a leak, the steering system failed, the outboard swung to one side, the boat went into a “spin”, Derek Hebert was ejected, and fatally struck by the propeller.

Note – while we call this a Circle of Death accident, we do not know if the operator was ejected, incapacitated, or away from the controls. It really did not matter, because the steering system did not work. The natural tendency of the boat to go into the Circle of Death took over. The operator or someone else on board would have to throttle back or kill the engine, or the boat collide with something to stop its forward progress.

Another boat collided with the Vamvoras boat after Derek Hebert had been ejected.

The U.S. Coast Guard Boating Accident Report Database (BARD) says the vessel Hebert was ejected from was a 1998, 21 foot Champion Bay Champ 21 powered by a 225 horsepower outboard motor with 7 on board.

Champion 21 foot bay boat, 1998

Champion 21 foot bay boat, 1998. This is not the boat in the accident, it is a similar boat once offered for sale by Rabeaux’s Auto Sales

Louisiana Department of Wildlife & Fisheries found the pre-owned boat lost its steering due to a hydraulic leak at a hose/nut or coupling assembly.

It was found the boat’s Teleflex steering system would completely lose steering when only a small amount of hydraulic fluid was lost.

A Wildlife & Fisheries investigator with extensive experience with SeaStar hydraulic power steering systems was surprised to find the loss of 2.7 ounces of hydraulic fluid (about 5 percent of system capacity) could fail the steering system.

The boat owner had tightened a leaky fitting on the steering system and his son (Daniel Vamvoras) had added some fluid. The owner noted the steering system had started making a clicking sound.

Augusto “Kiko” Villalon and Eric Fetchko were hired as experts by Teleflex. They both said the steering system should get “mushy” or “bumpy” before it failed. That would have adequately forewarned the operator of the problem (low hydraulic fluid).

Eric Fetchko did Teleflex no favors when the answered this question:

Eric Fetchko, Teleflex expert witness, being questioned by Plaintiff attorney

Q. And you agree that at some point in the operation of a system that has a steering fluid leak, one more drop and you lose total control?
A. Correct.

Investigators found a hose had been replaced with a non-Teleflex hose, and the leak occurred at a junction of that hose.

Mr. Hebert’s survivors / estate sued Teleflex (now SeaStar Solutions) and others claiming Teleflex failed to warn boat owners and passengers of the risk of losing only a small amount of hydraulic fluid. More precisely, Ron Warren, father of Derek Hebert, representing himself individually and the estate of Derek Hebert, filed the suit.

During the trial, evidence was presented that in 1989 Teleflex was aware the loss of a few teaspoons of hydraulic fluid caused complete failure of the steering system. Teleflex said the system would get “mushy” calling attention to the problem before the steering system totally failed.

The case was tried The jury ruled in favor of Teleflex.

That ruling was overturned because inaccurate information had been provided to the jury. The judge, in response to a question from the jury, mistakenly gave them inaccurate information as to the effective date of an owners manual for the steering system in question.

A second jury ruled in favor of Mr. Hebert’s survivors. They were awarded $125,000 in compensatory damages and $27 million in punitive damages.

The case was appealed to the Louisiana 3rd Circuit Court of Appeals for several issues including the punitive award possibly being excessive and if interest could be applied to the award if awarded by the jury.

On 29 July 2016, Louisiana 3 Circuit Court of Appeals affirmed the lower court (the award stands).

Warren v Shelter Mutual Insurance Company, 15-354, 15-838, & 15-1113 (La. App. 3 Cir. 06/29/16) — So. 3d

Louisiana 3rd Circuit Court of Appeals published their opinion.

Shelter Mutual Insurance (representing Teleflex) filed for a rehearing by the 3rd Circuit Court of Appeals in Louisiana, but was denied on 3 August 2016.

It is anticipated the award will be appealed.

0 Categories : Legal Shorts

Faith Kalei-Imaizumi

Faith Kalei-Imaizumi

Faith Kalei-Imaizumi was participating in the Pailolo Challenge canoe race, a 26 mile race downwind from Maui to Molokai on Saturday 17 September 2016. During the race, escort boats bring out fresh crew members in exchange for tired crew members. Faith was in an escort boat. Her hat fell into the water, she dove in retrieve it. While the accident is being investigated, some think the escort boat reversed to prevent striking another escort boat and she was struck by the propeller. Faith was severely struck in the thighs and groin. She was taken to shore at D.T. Flemming Beach Park in Kapalua where CPR was performed by first responders, life flighted to Maui Memorial Medical Center, then taken to Queens Hospital on Oahu. A GoFundMe page has been established to assist with expenses.

Pailolo Challenge Outrigger Canoe Race

Pailolo Challenge Outrigger Canoe Race

Faith’s accident comes on the heels of the stalling of a proposal to require propeller guards. The proposal was named House Bill 2024.

House Bill 2024 was put forth in the wake of the Sri Shim propeller fatality, in which his stepson, Trey Albrecht, was also injured by the propeller. Read More→

0 Categories : Regulations