Decker OMC Propeller Trial by the Numbers
Audrey Decker vs. OMC –
Quick Summary of the Decker Propeller Case
This Summary was compiled from Naples Daily News Coverage of the Propeller Trial
On May 23, 1999 Audrey Decker was taking a sunset cruise behind her home on Lake Saphire with her husband in a 13 foot 1988 Boston Whaler powered by a 25 horsepower OMC Johnson outboard. The boat hit a wake during a turn, she feel overboard from a swivel seat and was struck by the propeller. She is suing OMC and others for not installing a propeller guard.
OMC manufactured a ring guard, the Gale Guard, to fit this outboard for many years. OMC says the Gale Guard was for protecting the propeller, not for protecting people.
The case was tried on the crashworthiness doctrine. People injured in automobile accidents sometimes sue auto manufacturers claiming their injuries caused by impact with the automobile could have been prevented or mitigated by proper design, and thus the automobile was not crashworthy.
The Audrey Decker vs. OMC propeller case was tried in June 2009 in Collier Circuit Court, Collier County Florida. It is officially listed in the Court Docket as Audrey Decker vs. Boston Whaler.
OMC won the case on 23 June 2009.
- Miscellaneous OMC Decker Trial Materials
- Audrey Decker OMC Propeller Trial by the Numbers Blog Entries our coverage of the trial as it actually occurred
- Decker vs. OMC: A Scorecard of the Trial (Our Synopsis of the Trial and we score both sides on their presentations). This is a separate pdf document.
Miscellaneous OMC Decker Trial Materials
We noticed the old 1989 NBSAC Subcommittee Report on Propeller Guards is online again in regulations.gov. The jury had access to this document which has been argued in many other cases.
With some effort, you can see the case docket for the Audrey Decker case on the Collier Clerks Office web site. Select “Records Seach”, click accept, type Decker in the Name search box, click on search, click on the Audrey Decker Case that says Products Liability way over in the right column, then select the tan tab that says “Dockets”. Use the drop down menu to change the number of entries per page from 20 to 100, and its still 10 pages long.
Our friends at SPIN also have a great article on the Decker OMC Trial.
Coverage of the Actual Audrey Decker vs. OMC (Outboard Marine Corporation) Propeller Injury Trial
Naples Daily News of Naples Florida did a tremendous job of covering the Audrey Decker – OMC propeller trial. We applaud the work of Aisling Swift in covering the trial. She has been writing feature articles plus actually blogging from the courtroom providing the fastest coverage we have ever seen on a propeller case.
Please note all Naples News Coverage linked to below is copyright by them. We used small excerpts on this page to show the context in which the numbers were provided. Our comments are bolded.
Why We Chose to Cover the Numbers Behind the Audrey Decker vs. OMC Propeller Injury Trial
Propeller guard cases revolve around countless numbers (length of the boat, horsepower of the drive, time of day, boat speed, test data, medical costs, lost wages, annual accidents statistics, cost or proposed alternatives, and many more. We elected to elaborate some on the numbers being provided by Naples Daily News in their coverage of the trial.
Our comments below are posted in blog form. The entry times correspond to the times Naples Daily News (NDN) posted that particular story or blog entry. We provide a link to their comments (you may have to scroll down their Court Blog page quite a ways to find some of those entries.) Our own comments are bolded.
Audrey Decker OMC Propeller Trial by the Numbers Blog Entries
We logged the entries below as the trial progressed. Thus if you want to read it in order, you need to read it by section from the bottom up.
- Feature article Monday 15 December 2009 East Naples Woman Injured by Boat Propeller Requests New Trial
- Feature article Tuesday 23 June 2009 East Naples Woman Loses Boat Propeller Lawsuit
- Monday 22 June 2:50 PM Court Deliberations Blog.
- Monday 22 June 2:38 PM Court Deliberations Blog.
- Monday 22 June 2:30 PM Court Deliberations Blog.
- Monday 22 June 1:00 PM Court Deliberations Blog.
- Monday 22 June 11:00 AM Court Deliberations Blog.
- Did OMC place the outboard on the market with a defect that was the legal cause for Audrey Decker’s loss, injury or damage.
- If yes, what was Audrey Decker’s amount of damage for medical expenses, lost earnings, and future costs.
- How many years are those future damages spread over?
- What is the present value of future damages.
- What is the amount of damages for pain and suffering, disability, physical impairment, disfigurement, mental anguish, inconvenience, and loss of capacity for the enjoyment of life?
- Add up the total damages.
- Feature article Monday 22 June Jurors to Continue Deliberations in Boat Accident Trial Tuesday
- Monday 22 June 6:44 PM Court Blog.
- Monday 22 June 4:14 PM Court Blog.
- Monday 22 June 3:40 PM Court Blog.
- Monday 22 June 2:25 PM Court Blog.
- Monday 22 June 2:00 PM Court Blog.
- Monday 22 June 1:15 PM Court Blog.
- Monday 22 June 12:25 PM Court Blog.
- Monday 22 June 11 AM Court Blog.
- Feature article Friday 19 June Boat Accident Trial Goes to Jury Next Week
- Friday 19 June 4:06 PM Court Blog.
- Friday 19 June 3:50 PM Court Blog.
- Friday 19 June 3:09 PM Court Blog.
- Friday 19 June 12:30 PM Court Blog.
- Friday 19 June 11:15 AM Court Blog.
- Friday 19 June 10:52 AM Court Blog.
- Friday 19 June 10:00 AM Court Blog.
- Feature article Thursday 18 June
Boat Accident Trial: Husband Asked Why His Boat Ran Over Wife
Jay O’Sullivan, defense attorney, accused Fred Decker of running over his wife, not trying to stop her bleeding, and not going to the hospital with her.
Another effort to take more stuff off the table. O’Sullivan is trying to prove some of Decker’s enhanced injuries are the result of her husband’s actions, not the result of lack of use of a propeller guard.
- Thursday 18 June 5:30 PM Court Blog.
- Thursday 18 June 3:20 PM Court Blog.
- Thursday 18 June 3:00 PM Court Blog.
- Thursday 18 June 2:30 PM Court Blog.
- Thursday 18 June 12:26 PM Court Blog.
- Thursday 18 June 12:03 PM Court Blog.
- Thursday 18 June 11:52 AM Court Blog.
- Feature Article Wednesday 17 June
Boat Accident Trial: Defense Contend Skeg, Not a Propeller, Injured East Naples Woman.
- Wednesday 17 June 2:45 PM Court Blog.
- Wednesday 17 June 2:30 PM Court Blog.
- Wednesday 17 June 1:20 PM Court Blog.
- Wednesday 17 June 12:02 PM Court Blog.
- Wednesday 17 June 11:47 AM Court Blog.
- Wednesday 17 June 10:55 AM Court Blog.
- Feature Article Tuesday 16 June Boat Accident, Plaintiff Takes Stand, Describes Being Hit by Propeller, Injuries.
- Tuesday 16 June 5:35 PM Court Blog.
- Tuesday 16 June 3:25 PM Court Blog.
- Tuesday 16 June 2:45 PM Court Blog.
- Tuesday 16 June 2:15 PM Court Blog.
- Tuesday 16 June 1:50 PM Court Blog.
- Tuesday 16 June 12:15 PM Court Blog.
- Tuesday 16 June 11:08 AM Court Blog.
- Tuesday 16 June 10:00 AM Court Blog.
- Tuesday 16 June 10:00 AM Court Blog listed as POSTED EARLIER.
- Feature Article Monday 15 June Boat Accident Trial: Engineer Describes How Propeller Gutted Woman.Lawrence Thibault, a biomechanical engineer, said he could not understand the industry’s reluctance to install an inexpensive propeller ring guard.There are a host of reasons why the industry does not put guards on:
- Prior to the Sprietsma decision (Dec. 2002) the industry had an automatic escape from cases by claiming Federal Pre-Emption. They claimed the Coast Guard does not require guards on all boats so a state could not require a guard on a boat because the state would be trying to pre-empt Federal law. Prior to the U.S. Supreme Court decision, if they started widely using guards, they could have lost that defense.
- Now, if they start putting them on new boats, they could be forced to put them on old boats and they do not want to incur the cost of retrofitting existing boats.
- If they started using guards now, those previously injured would say, so was my old boat really dangerous? It must have been since you are now putting on guards. O’Sullivan’s job would get a lot harder. It would be hard to defend an accident on a boat built last year with without a guard, if you started selling the same boat this year with a guard on it. He is already having a enough tough time trying to duck the Gale guard. If if was widely used now, his case would be hurting worse than it already is.
- Some of them have drank so much of the industry Kool Aide they actually begin to believe what they have been saying about guards and other propeller safety measures.
- Monday 15 June 6:11 PM PM Court Blog.
- Monday 15 June 3:28 PM PM Court Blog.
- Monday 15 June 3:02 PM PM Court Blog.
- Monday 15 June 12:45 PM PM Court Blog.
- Monday 15 June 12:06 PM PM Court Blog.
- Monday 15 June 11:40 AM PM Court Blog.
- Monday 15 June 10:52 AM PM Court Blog.
- Monday 15 June 10:00 AM PM Court Blog.
- Feature Article Friday 12 June Boat Accident Trial: Engineer Testifies Guard Would Have Prevented Woman’s Injuries
- Friday 12 June 5:30 PM Court Blog.
- Friday 12 June 4:40 PM Court Blog.Defense attorneys argued they tested the actual boat involved in the case, a 13 foot, 1988 Boston Whaler, while Plaintiff attorneys ran their tests on a 13 foot 4 inch boat. Benda, expert for the plaintiff, said the 13 foot 4 inch boat was an examplar for testing. The Defense doesn’t agree.Defense attorneys claimed Benda’s tests are not repeatable because their test protocol sheet was not filled out.OMC claims if Audrey Decker had worn a life vest that day she would not have hit the propeller.We were startled by that claim. While there is no doubt that wearing life jackets could save hundreds of lives a year, several people have been struck by propellers because they were wearing one. We have seen several instances in which people were ejected from boats which began to circle and ran over them because they were unable to dive below the propeller due to wearing a pfd as well as skiers or others already in the water being unable to dive below an oncoming boat due to wearing a life jacket / PFD (Personal Floatation Device). We have also seen instances of people being ejected and struck right then by the propeller while wearing a life jacket. Others have had their life jacket caught on the propeller
Several of these accidents are covered in media reports posted on our Annual Propeller Accident Blogs, such as the:
- 22 Dec 2005 Times Community.com article
- 16 Oct 2006 Canadian Press article
- 17 July 2007 Daily Record (UK) – lifeboat crewman fell overboard wearing life jacket, helmet, and protective clothing in calm seas during a drill. Despite wearing a helmet, the blade sliced through his skull and into his brain.
- 12 July 2007 News Leader (Missouri) article
- 25 March 2007 KOINg News (Seattle) Coast Guardsman fell from 25 foot twin outboard boat, hit his head on the propeller, and was killed. (Last we heard an investigation was ongoing to determine if he was wearing a life jacket or not)
- 2 July 2008 Guleph Mercury (Ontario Canada) two teenagers fell from a boat pulling some tubers. Both were wearing life jackets and both were struck by the propeller.
- 24 June 2008 MyFox Atlanta article
- “About 90 percent of victims in fatal boating accidents aren’t wearing life preservers, officials say. The 10 percent who die while wearing buoyant vests usually have another injury – they are hit by a propeller, run over by a boat or suffer some other trauma.”
- Friday 12 June 3:18 PM Court Blog.
- Friday 12 June 2:40 PM Court Blog.
- Friday 12 June 2:00 PM Court Blog.
- Friday 12 June 12:30 PM Court Blog.
- Friday 12 June 11:28 AM Court Blog.
- Friday 12 June 10:14 AM Court Blog.
- Friday 12 June 9:45 AM Court Blog.
- Feature Article Thursday 11 June – Boat Accident Trial; Engineer Admits Coast Guard Recommended Prop Guards.
- Thursday 11 June 5:10 PM Court Blog.
- Thursday 11 June 3:20 PM Court Blog.
- Thursday 11 June 2:30 PM Court Blog. Note – this entry actually says 2:30pm Wednesday on it.
- Thursday 11 June 12:30 AM Court Blog.
- Thursday 11 June 11:00 AM Court Blog.
- Thursday 11 June 10:30 AM Court Blog.
- Feature Article Wednesday 10 June – Boat Accident Trial: Plaintiff’s Attorneys Say Company Knew About Propeller Accidents.
- Wednesday 10 June 5:30 PM Court Blog.
- Wednesday 10 June 4 PM Court Blog.
- Wednesday 10 June 12:44 PM Court Blog.
- Wednesday 10 June 12:05 PM Court Blog.
- Wednesday 10 June 11:30 AM Court Blog.
- Wednesday 10 June 11:00 AM Court Blog.
- Wednesday 10 June 10:00 AM Court Blog
- Tuesday 9 June Court Blog
- Monday 8 June 2009 NDN published
Boat Propeller Accident Trial Starts Off With Heated Attorney Arguments.
- Saturday 6 June 2009- NDN began their coverage of the trial with Lost Face: Scarred and Scared, Boating Accident Victim Heads to Naples.
Roy D. Wasson, one of Decker’s attorneys, asked for a new trial today claiming defense attorneys conduct broke the “Crashworthiness Doctrine” (not supposed to talk about stuff prior to her body hitting something). Dinah Stein, defense attorney hired to work the appeal, denied any wrong doing on behalf of previous defense lawyers. Judge Monaco asked both sides to submit short proposed orders. He will sign one of them.
A lone juror deadlocked the jury at 5 to 1 for almost 4.5 hours. Jurors focused on the caution on OMC’s Gale Guard saying it was not for safety, it was to protect the propeller from rocks during shallow water fishing.
We have a copy of some of the packaging with the guard, and the instruction sheet. Scans of portions of them are below. There are many reasons manufacturers might use a not intended for … statement. We may comment on them later.
The jury found OMC did not place the outboard on the market with a defect that was the legal cause to Audrey Decker’s injuries.
Bradley Winston, one of Decker’s attorneys, said one appeal they will pursue is their repeated objections, sustained by the judge, to what they felt were violations of the Monaco’s 2006 ruling by Jay O’Sullian, lead attorney for OMC. OMC tried to focus on events before the accident when this was a crashworthiness doctrine case. What happened before Audrey Decker fell in was not supposed to be an issue.
Attorneys said this lawsuit was the first to head to trial since the December 2002 U.S. Supreme Court ruling on pre-emption.
This is certainly not the first case to be tried. It may be among the older, or among the first to head toward trial, but it is not the first to be tried. For example, Jacob Brochtrup v. Mercury Marine. Western District for Texas (Austin) ended in a hung jury in August 2008.
In 1998 The U.S. Supreme Court heard arguments in the Lewis v. Brunswick case. Brunswick settled before the ruling per RBBI.com a web site tracking propeller strike cases.
Thanks for citing us. Yes, Brunswick settled that case. They were afraid they were going to lose federal pre-emption, which they did lose a few years later in Sprietsma v. Mercury Marine.
That is not us making up this story, it can be confirmed on the U.S. Supreme Court Media OYEZ site. You can even listen to part of the actual arguments there.
The holdout juror said jurors focused on the judges questions. OMC had a patented guard at that time, they voided warranties for anybody who purchased it. It was marketed for shallow water fishing and to loggers.
We commend Aisling Swift for the excellent job of covering the trial, and for following up and getting some comments from a juror.
A NBC2 News report said the holdout juror said the propeller guard offered at the time the boat was sold did not actually guarantee safety. “That’s what it all came down to, is what was available in 1988.”
Mikal Watts, lead attorney for Audrey Decker, is at another trial. One of his associates, Bradley Winston, said they would appeal.
Jay O’Sullivan, lead attorney for OMC’s defense said he thought the verdict was very just and appropriate.
We are more than a bit curious what the jury’s earlier question was and how it was answered.
It will take both sides quite a while to sort through this case before they proceed.
OMC won. Audrey Decker received nothing after 6.5 hours of deliberations.
The bailiff announced the jury had reached a verdict in the Audrey Decker v. OMC case.
The jury has a question. It could mean they are trying to add up damages, or it could mean they are still stuck on Question #1.
The jury questions are:
Aisling Swift, Court Reporter for the Naples News, reports its an uphill battle, for plaintiffs in Collier County. Many injury and malpractice cases are won by the defense. This case is a bit different as it is based on crashworthiness doctrine.
Jay O’Sullivan, lead attorney for OMC, says Audrey Decker fell overboard, Fred Decker turned the boat around, and ran over her when he brought the boat back around to search for her.
O’Sullivan said this several times during the trial, but we did not hear that from any of his expert witnesses. Some of them were talking about which direction the boat would have had to have been turning when Audrey Decker fell out, for her to have fallen over the side she fell over and to have received her injuries then.
The jury began deliberating about 4pm while eating cold pizza. They had earlier agreed to hear closing arguments and the Judge’s charge instead of eating lunch. The jury left about 5pm to sleep on it.
Judge Daniel Monaco instructed the jury, excused the alternates, and the four women / two men jury began deliberating at 4 pm.
Jay O’Sullivan, lead defense attorney for OMC, finished his closing argument. Mikal Watts, Audrey Decker’s lead attorney began to rebut O’Sullivan’s comments.
Watts showed a video of the defense testing. The hand holding the throttle was not doing what they said they were.
He mocked the defense experts, calling one a star gazer.
Watts pointed out Don Kueny, an expert for the defense, said many groups use guards.
There are no known cases or lawsuits involving entrapment in propeller guards.
Watts said the Coast Guard is considering a protocol for guards, publishes literature on the dangers of propellers, and suggests the use of propeller guards.
He showed the jury stats showing 236 prop strikes a year and 47 deaths. They’ve known the hazards, they’ve known the deaths. They’ve known for a generation.
We have gathered up some materials in this area before in preparation for writing an article focusing on the unborn. Many maimed or killed in the early 20th century by recreational boat propellers failed to raise the families they would have in the absence of those accidents. That now turns into several generations. Plus some struck or their unborn descendants could have made major contributions to society. We plan to write an article on this topic in the future.
Watts quoted Abraham Lincoln, “Let us be resolved … that these men shall not have died in vain.”
A common thread in news media coverage of propeller accidents is the family hoping the maiming or death of their loved one somehow keeps other families from having to go through the same situation. Their statements concur with Watts’ statement.
Jay O’Sullivan, OMC’s lead defense attorney, said the bullet, a portion of the engine’s gear case caused Audrey Decker’s injuries.
We are getting dizzy with O’Sullivan alternating between the skeg and bullet causing her facial injuries. Early last week it was the drive. Then it was the skeg, Friday it was the bullet, this morning it was the skeg, now it is the bullet again.
O’Sullivan told jurors that lawsuits against boat manufacturers have been unsuccessful in the past.
Mr. O’Sullivan is failing to mention several propeller lawsuits that were settled to prevent setting a precedent. For example, ask him about the Lewis v. Brunswick case that went to U.S. Supreme Court. Brunswick settled at the last second to avoid loosing Federal Pre-emption back in the late 1990’s.
Jay O’Sullivan, lead defense attorney for OMC, opened by asking the jury if there was a defect in the 28 HP outboard powered boat when Fred Decker and his son purchased it.
He disputed that Audrey Decker would have only suffered a bruise if the outboard was equipped with a propeller guard. O’Sullivan contends guards do more harm than good. He said if they hit one at 20 mph they would be dead. (Naples Daily News inserted a comment noting that counters previous expert testimony saying 20 mph would only create 300 pounds of force and it takes 1,000 pounds of force to crack a skull.)
O’Sullivan says “OMC did not have a duty to do the impossible.”
He says Decker made a conscious decision to ignore the open and obvious danger.
Long ago, the industry defended themselves in many cases claiming propellers were an open and obvious danger.
But they flip-flopped. The Coast Guard considers them a “hidden danger” per their propeller safety brochure. Additionally, the industry is now using propeller safety decals while their voluntary standard group, American Boat and Yacht Council (ABYC) says warnings are NOT necessary unless the hazard is NOT obvious or readily discoverable by the user. Sure sounds like the rest of the industry things the hazard is not obvious.
O’Sullivan and his buddies need to get on the same page. They can’t have it both ways.
O’Sullivan claims the fact that another manufacturer’s propeller was on this boat shows somebody else is making money selling propellers.
Maybe it shows OMC’s aftermarket propeller prices (read profits) were so high some customers were switching to “will fit” alternatives.
Mikal Watts, Audrey Decker’s lead attorney, replayed some medical testimony on a large movie screen re-emphasizing the avulsions and sharp curved cuts Decker suffered on her face indicate she was struck by a propeller.
As Watts highlighted each witnesses’ testimony, he displayed a photo of them on the screen.
Watts noted the skeg strike does not fit articles written by the defense witness, Kelly Kennett. His articles dispute his own testimony.
Watts told the jury it would be up to them to decide how much OMC should pay Audrey Decker. Her damages are astronomical.
Mikal Watts, Audrey Decker’s lead attorney held up a copy of the 3,000 page transcript of this case.
He said, OMC knew of these dangers 35 years before the accident.
We contend they knew of these dangers long before then.
OMC said there were between seven and a 100 injuries per year. That turned out to be low. Watts told the jury that testimony shows there were 239 strikes and 47 deaths in 2002.
OMC made and sold the Gale guard since the 1960’s. It only cost $5 to $10 to make, and was not included in the 1976 or the 1980’s redesign of the outboard.
Watts said there were 15 to 20 years of lives lost. It kills 40 to 50 people a year and mauls hundreds per year.
Kueny, of OMC, earlier testified there were no problems with the Gale guard.
Watts showed test results with a beveled Gale guard showing improved performance. OMC marketed the guard for fishing in stony, shallow waters.
Alex Marcone told OMC engineers to keep quiet about the benefits of prop guards and their testing.
One engineer went ahead and started to run a test to minimize the effects of performance while improving safety. The test was canceled.
OMC patented a propeller shroud to try to keep others from doing it.
Both sides will get two hours each for their closing arguments today.
Defense attorneys will argue a skeg caused her facial injuries. Thye have conceded her arm and breast injuries are from the propeller.
Back on Friday I thought they jumped from the skeg to the bullet. Did they comeback again? Or are they using the same term for both?
Decker’s attorney, Michael Goodpastor, wanted the judge to instruct the jury on the Sprietsma case. The judge said the attorneys could discuss the case with the jury if they wished, but it would not be part of his instructions.
Decker’s team wants Federal Pre-emption explained and that the U.S. Supreme Court said the U.S. Coast Guard did not mandate guards because there was not a single guard (magic bullet) that worked for all boat models.
Jay O’Sullivan, defense attorney for OMC, won the right to argue a “state of the art defense.” O’Sullivan can claim there was no safer design available or that the manufacturer could not have known of the danger it failed to warn against.
OMC knew about propeller injuries since the 1960’s, they made about $40 million selling replacement propellers (much of which could have been at jeopardy if they had been guarded), and paid ONE firm $60 million to fight propeller guard cases.
Those statistics alone are going to be hard for them to overcome in this case
The defense rested after calling 9 witnesses. Audrey Decker’s side called 17. Witnesses included medical engineering, and economic experts.
O’Sullivan, for OMC (the defense), redirected Kelly Kennett, his biomechanical expert.
He showed the jury no information came out in the trial that changed his testimony since his deposition.
O’Sullivan says Audrey Decker was injured after Fred Decker turned the boat around, after she fell in.
O’Sullivan said Kennett’s testimony in the Listman case was in 2005 so his testimony about Decker was different then that it is now.
Does his testimony change every couple years?
O’Sullivan got the jury to touch the guard and skeg to see how sharp they were.
The Defense rested. The judge excused the jury til closing arguments Monday. The judge had intended to do a charge conference now, discussing the law the jury would be instructed on. But the judge asked them if they could meet at 9:15 am Monday instead and the attorneys agreed.
Its settlement time, or the defense takes their chances and appeal if they lose.
Mikal Watts continues to cross examine Kelly Kennett, biomechanical expert for the defense (OMC).
Watts points out there has not been a single entrapment suit. Kennett says their are not many guards in use, then Watts shows lots of applications using guards, including OMC’s Gale guard.
Watts showed the Coast Guard brochure on prop guards.
He is talking about the USCG flyer, “Beware of Boat Propellers … a Hidden Danger”. The Coast Guard refers to it as their “Propeller Danger” brochure.
We reviewed the draft of that brochure at their request and several of our comments were included in the finished brochure.
Watts showed guards do not cause a sucking in.
He is trying to show that guards do not pull people into them.
Jay O’Sullivan continued questioning Kelly Kennett, his biomechanical expert. He asked him about cage guards. Kennett said they provide blunt impacts as opposed to sharp impacts. He said they would tend to create glancing blows instead of frontal blows.
Is Kennett saying they should have sold it with a cage type guard?
Mikal Watts, Decker’s lead attorney objected. He said the trial is about a ring guard. OMC had one available, the Gale Guard, that is similar to the Taylor guard.
Kennett talked about entrapment.
O’Sullivan asked Kennett if a guard would have helped Decker have a better outcome. He said if she came at the guard from the side it may well have helped. If she came from the front she may have lost the arm and her life.
Watts began to cross examine Kennett. Watts showed him a paper he had written in which Kennett had called avulsions, the ripping out of skin, fractures. Watts pointed out that being hit by something blunt did not create avulsions. The he asked Kennett about a book chapter in which Kennett had written, a guard never resulted in avulsion type injuries, the type Decker suffered in her accident.
A propeller can scoup out large amounts of tissue (avulsions) while blunt trauma (like hitting a brick wall at high speed) does not.
Watts is trying to convince the jury Decker’s injuries were caused by the propeller, and thus were enhanced due to OMC not using a guard. He is trying to keep as much value as possible on the table. This is his job.
We found an online resume for Kelly B. Kennett.
We also found the book chapter Watts mentioned, “Skull and Facial Bone Trauma” Chapter 12 in Accidental Injury: Biomechanics and Prevention. 2nd. edition. A.M. Nahum and J.W. Melvin editors. Springer-Verlag. 2001. He co-authored it with D.L. Allsop. The chapter is online in Google Books. It begins on Page 254.
Watts then used Audrey Decker’s medical reports to show she had an avulsion on her left mandible, lower jaw bone. They also showed fractures and fractures of her nose.
Each time Watts questioned him on the words “blunt trauma”, Watts clapped his hands.
Watts showed Decker’s medical records have several mentions of avulsions, flesh missing and bones missing or scooped out.
Watts asked if there were any medical records of comminuted fractures. There were not, but there were many records of avulsions.
Blunt trauma (like hitting a brick wall at speed) tends to produce comminuted fractures (bones busted into little pieces).
Watts is saying that if Audrey Decker hit the drive instead of the propeller, she should have some bones busted into small pieces but she does not. So she must have been hit by the propeller, which does produce avulsions like those in her doctors reports.
Watts tried to show none of Audrey Decker’s injuries were from blunt trauma.
Then Watts showed the jury Kennett had billed OMC $42,000 before he was deposed. Kennett charges $275 an hour and anticipates billing for 8 to 10 hours a day beginning with Wednesday.
Watts pointed out that in the Listman propeller case, Kennett had testified that Decker was struck in the head by a propeller. In Listman, he was asked if Decker was stuck in the head by a propeller and he said, “yes”.
Score some more points for Decker’s team.
Watts also pointed out that even in this case (the Decker case), Kennett had earlier described Decker’s head as rolling after being hit by the propeller.
Kennett thinks Decker was near face up when her injuries occurred and the boat was traveling in the 10’s. He agrees there was no evidence of her forehead hitting the ventilation plate.
When the jury returned the judge told the female juror she had a good question, but they could not answer it. He told her to rely on the evidence and to use her common sense.
That will get the jurors asking themselves all sorts of questions about why the judge or attorneys can’t answer that question.
Kelly Kennett, biomechanics expert for the defense, showed the jury three propeller guards. He talked about entrapment, and increased frontal area of propeller guards.
O’Sullivan (for OMC) asked Kennett if he had investigated if the Guy Taylor could entrap someone. Kennett said it would have increased Decker’s arm injuries.
A display was shown of a dummy with her arm through a guard. Kennett said the guard was sharper than the skeg and gear case. He said the guard is as sharp as the leading edge of the propeller.
Kennett went on to show underwater photos. He showed how an arm became entrapped. When the arm hit the propeller it bounced off causing no injuries. In another run, the arm hit the propeller, it chopped the arm off, cut flesh into pieces. The jury saw a handless arm, and little pieces of hand and fingers.
O’Sullivan got them talking about trying to gather up all the pieces after the test. Then he showed the jury the pieces left over from the test.
The defense is trying to prove they do not sell propeller guards because they cause more injuries.
Kennett did some testing with sheep heads by dropping something on them. Kennett said a guard increased the risk of being hit frontally, and even more on larger engines.
During a break, a female juror sent a note to the judge saying Fred Decker had said other boats were on the lake. She asked if that changed water conditions and the case. The judge asked the attorneys for an answer.
Watts, an attorney for the plaintiff, told the judge not to answer it. He suggested O’Sullivan could bring it out during his direct examination. O’Sullivan said, “The defense is not going to answer that.”
Kelly Kennett, biomechanics expert witness for the defense, testified on Decker’s injuries. He says her face was injured by a combination of blunt and penetrating injuries. He says the bullet part of the gearcase caused her facial injuries, not the skeg. He says her injuries match the shape of her facial injuries.
We altered part of photo shown earlier by Naples Daily News to show the location of the “Bullet”. The industry calls it a bullet due to its cylindrical shape and the nose looks like the nose of a bullet. Faster drives even have a forward pointed cone there they call a nose cone.
Seems like the defense can’t make their mind up what hit her. At first it was the drive, then it was the skeg, now its the bullet. OMC is still trying to say Decker’s facial injuries were unavoidable (they were not enhanced by OMC not protecting her from the propeller).
The facial injuries are a key in this case. The jury is probably seeing them as having more impact on her quality of life than the other injuries. If OMC can take the facial injuries off the table (get the jury to believe they were not caused by the propeller), they could significantly reduce the amount of any possible settlement.
Kennett says acceleration levels were low because she suffers no brain injuries.
We are not certain if he is saying the boat was not accelerating, the boat was going slow, or her head accelerated slowly when it was struck.
Kennett estimates the boat was going about 20 miles per hour, near its top speed. Similar to plaintiff experts, he testified the boat was in a right turn (Decker’s think they were turning left).
He thinks the boat was going pretty fast (fast for this small boat). So he must have meant her head did not rapidly accelerate when it hit the “bullet” per his theory.
Kennett says Guy Taylor’s guard increases the frontal area by 24 percent, increasing opportunities for entrapment. ‘It’s going to turn some near misses into strikes … with the guard.
If Kennett was a football player, would he leave his football helmet at home because it could turn some near misses of his head by the helmets of other players into hits? If he was a policeman preparing for a possible shoot out, would he leave his bullet proof vest at home because it makes his torso larger and could turn some near misses into hits?
James Moon, a defense attorney (for OMC), read the testimony of Richard Williams, an economist for the defense, while James McNally questioned him.
Williams is paid $400 per hour and had been paid $7,400 prior to his deposition.
Williams said Decker would loose $264,829, including Social Security losses, if she retired at age 66. Merle Dimbath, the plaintiff’s expert, earlier testified Decker’s future losses would be $563,219.
The defense continues to try to take every possible dollar off the table (they are not evil, that is their job). It is no surprise they estimate her future losses at less than half what Decker’s side did.
$264,829 / $563,219 = 47 percent
Jay O’Sullivan, lead defense attorney for OMC, called Kelly Kennett, a biomechanical engineer to the stand and began going over his qualifications.
Mikal Watts, lead attorney for the defense (OMC), began cross examining Robert Taylor.
Watts asked him if 1 percent of his cases led him to believe a product was defective.
Taylor typically represents manufacturers and finds no defects in their products.
Watts asked how many times he had testified by 1989. Taylor agreed he may have testified ten times by then.
As of today, he has testified in 65 trials and given 325 depositions.
Watts asked him if he had been paid over a million dollars in Personal Watercraft litigation. Taylor said he was not sure. Watts continued to press and Taylor estimated his firm had been paid $60 million to defend manufacturers in propeller cases.
Watts asked him how many propeller guards that would buy? Taylor said he didn’t know. Watts did the math. At the $5 to $10 estimated cost of manufacture supplied by OMC earlier, those funds could have purchased 6 to 12 million propeller guards.
Audrey Decker’s team scored points again. Taylor’s company has made $60 million dollars defending manufacturers against propeller guards. The jury will consider his testimony pretty biased. Plus manufacturers often say they have no money to develop a solution. If they can give this one firm $60 million, they can sure fund a search for an even better solution than the one they already have.
When I first read $60 million I thought it was a typo or an error in recording Taylor’s statement. But the $60 million is backed up by the calculations Watts made. That statement will be repeated in several other cases now. In the past, many suggested the industry spend the money it spends on defending itself on the problem instead. The cat is out of the bag. They are going to hear that a lot more now.
Plus – are we supposed to believe this is some high tech whiz guy who can do all these engineering calculations, and he can’t divide $5 or $10 into $60 million.
The jury is going to remember this. They will be thinking if they can pay this one guy’s firm $60 million to testify for them, it sure not going to hurt them to compensate this lady.
In the past, we have suggested that if the industry really wanted better solutions to the propeller safety problem they could establish a monetary prize. For example if they had just taken one of the sixty million dollars they paid Robert Taylor’s company, established some criteria and a test, and offered a million dollar prize for the first design to meet the criteria and pass the test, they would have already generated a lot of alternative solutions (and saved many lives). The same thing has been done in many other fields. For example, back in 1927 Lindbergh won the $25,000 Orteig Prize for nonstop transatlantic crossing (the prize did not even require him to fly solo). The Ansari X price of $10 million got Burt Rutan to launch a man into space twice in less than two weeks in the same spaceship back in 2004, proving private industry could build a reusable spaceship capable of launching paying customers into space. There are literally hundreds of similar prizes.
This proven method of developing solutions to technical problems goes back to the early 1700’s when the British government, concerned about shipping losses, began offering prizes for navigational instruments capable of measuring latitude to a certain degree of accuracy. We again suggest, the boating industry use it.
Anybody interested in following up on this approach might find “Technology Prizes for Climate Change Mitigation” interesting. It includes a nice history of the approach and discusses several modern prizes.
Watts asked Taylor about speeds of Decker’s boat. Taylor agreed that it would only run 25 to 30 mph on its best day.
Watts questioned Taylor about the design hierarchy of designing out hazards, and if it can’t be designed out, use warnings.
This is often called the Product Safety Hierarchy and involves several more steps.
Watts asked Taylor if he believed warnings did not work. Taylor said not exactly. Watts pointed out he said that when testifying for OMC in 1987.
Watts showed OMC’s in-house council, Alex Marconi, got Taylor on the NBSAC subcommittee that came up with boating regulations, then hires manufacturers and consultants like Taylor and OMC to do the testing.
Robert Taylor said he worked at the same company as Larry Thibault, an expert for the plaintiff, after Thibault worked there.
Taylor started to mention the 1988 National Boating Safety Council Propeller Guard Subcommittee report, but was stopped by an objection. The Jury can see that document which was already discussed.
Taylor said he thinks guards were not recommended due to entrapment.
Robert Taylor told the jury that guards slowed a boat’s speed by 5 mph at speeds between 21 and 25 mph. He said, onwers wanting the same speeds would have to put on a 48 HP engine to get the same speed the Decker’s 28 HP engine provided.
O’Sullivan says their test data is more accurate than the plaintiff’s.
Robert Taylor said he “couldn’t find a surface plot in the plaintiff testing’s raw data.”
Maybe he is looking for a chart of pitch angle vs. time?
Taylor said you had to be turning hard at high speed to hit somebody falling over the left side.
We strongly disagree with that statement. People fall over the side of boats going straight all the time and still get hit by the propeller. It depends on a host of variables including: their momentum, where they fell over the side, the configuration of how their body enters the water, changes in configuration of their body once in the water, if the boat is accelerating or de-accelerating, boat speed, shape of their body, their clothing (causes drag in the water), and the flow of water around the hull and drive.
Robert Taylor testified about cavitation and ventilation of propellers.
He testified the Coast Guard is in the final stages of developing their test protocol for propeller guards.
Why would the Coast Guard be spending lots of money developing a test protocol for propeller guards if they don’t really work?
Robert Taylor talks about testing a guard on a 60 mph bass boat and the resulting steering torque.
As usual, they jump to extreme conditions. This boat was going 6 or 7 miles per hour. It only has 25 horsepower. How much torque did he measure at these speeds?
O’Sullivan started talking about warnings. He says you do not want to warn for open and obvious hazards because it dilutes the effectiveness of warnings.
Mr. O’Sullivan seems to have forgotten the industry has changed it positions on propeller safety labels. We discuss it in-depth on pages 53 to 55 of the second rough draft of our response to the houseboat propeller safety proposal.
Taylor did some testing with dummies and said you had to be turning RIGHT (not left) at or in excess of 20 mph to be ejected to the left when in a turn. His testimony backs up the plaintiff’s witness, Thigbault, who also said they were turning right.
Taylor fails to take into account the small boat could have hit a wake, which is what Fred Decker said earlier. Hitting a boat wake in a 13 foot boat could launch someone from a pedestal, swivel seat at about any speed.
O’Sullivan, for the defense (OMC), reviewed the qualifications of Robert Kemp Taylor (no relation to Guy Taylor), a naval architect and engineer with Design Research Engineering.
Robert Taylor tells him the Safe Boating Act passed in 1981. It funded the study of safety by the Coast Guard. Robert Taylor told the jury some conclusions of a Coast Guard Report, “A guard was really not going to be feasible because a guard was a misnomer.”
“You’re never going to be able to get one piece of metal to cut though the water … and sense a body.”
If Mr. Taylor was in the water behind a houseboat when the propeller was started in reverse, would he prefer to be sucked into an open propeller or into a misnomer?
We have been promoting detecting people (… sense a body) in the water at risk to the propeller and taking the appropriate actions for approaching twenty years now. That is in part what kill switches, swim ladder interlocks, and man overboard tags do (start a sequence of actions based on the high probability someone is in risk zone). Those actions can range from sounding an alarm to killing the engine.
James McNally, a defense attorney for OMC, questions James Decker, son of Audrey Decker about his mother and how his wife, Michelle, helps her.
James Decker says she was struck by the propeller.
Jay O’Sullivan, a defense attorney for OMC, questions Audrey Decker’s husband, Fred Decker, about the day of the accident. Fred Decker said he made a left turn, she fell in, he turned the boat around, cut the engine, and dove in. The boat was going 6 or 7 miles per hour when she fell in.
Fred Decker asked a boater to call 911 and may have called 911 himself. A deputy arrived in minutes. She was flown by helicopter to Lee Memorial Hospital, about 30 miles or 45 minutes away. O’Sullivan questions why it took up to 1.5 hours to get her there.
O’Sullivan may be trying to take some more enhanced injuries off the table by claiming they resulted for a delay in getting her to the hospital.
When O’Sullivan asked Fred Decker if he ever thought about what happened, Mr. Decker said, “I think about it all the time.”
We addressed this in our response to the houseboat propeller safety proposal. Second hand trauma is often associated with propeller accidents. Spouses, children and other loved ones witness the accident and become traumatized themselves. We discuss it, and its related costs in our third rough draft (not yet published). In automobile accidents, it is called Road Trauma.
The defense presents testimony saying the skeg injured Decker, not the propeller.
They say Audrey Decker’s reconstructive breast surgery is not obvious in a swimsuit.
They continue to try to take costs off the table. They try to minimize her breast damage by saying her reconstructive surgery is not obvious in a swimsuit.
The defense is trying to convince the jury her facial injuries were all skeg related. They say only her breast and arm injuries might have been caused by the propeller. Then they try to convince the jury her breast injury is no big thing because her reconstructive surgery is not obvious in a swimsuit.
We suspect that last part did not play well with the 5 women on the 8 person jury.
Guy Taylor, a self-made millionaire, holds a patent on a ring guard and testified via video depositions.
We are not sure where the self-made millionaire comment came from? It may have been a jab at him by OMC attorneys.
Liles brought out the boat’s performance was not affected by Taylor’s guard and safety was improved.
Taylor said his guard was technologically feasible in 1988 (when the boat and engine were manufactured).
Taylor said there were studies done on it in the 1970’s.
We think he is talking about propeller guards in general, not his guard specifically.
Past testimony has shown manufacturing costs of only $5 or $10 each.
Attorneys argued over Guy Taylor’s deposition. Finally the jury was brought back and O’Sullivan began playing Taylor’s video taped deposition.
Taylor said he had sold 20 to 50 guards, but gave away many more.
Taylor said the guards were furnished to vessel manufacturers and they were offered for resale. Some packaged a guard as part of a boat package.
O’Sullivan asked who did that, Taylor said he would have to research that, and named one inflatable boat company.
O’Sullivan asked if Taylor’s theories were rejected by Yamaha. Taylor said they tried to disprove them.
O’Sullivan asked him why he did not warranty the guard for 5 or 6 years? When he said he warrantied it for 1 year, O’Sullivan said is that because they wear out?
Back in that era (1988 boat), drive warranties were pretty short. We wonder why OMC did not warranty the drive itself for 5 or 6 years? Did they wear out?
Liles begins showing a videotape of their deposition of Taylor.
Kevin Liles, one of Audrey Decker’s attorneys, pointed out Monty Hinkle, Kenneth Avinon, and another officer (Florida Fish and Wildlife Commission officer?) met with defense attorneys Tuesday night to discuss the case.
Liles tries to show jurors the skeg theory is a new defense contention and was never in their reports.
When Liles asked Avinon if he thought a ring guard would be better than no protection at all, Avinon said, “Sure”.
Decker’s team scored some points with that answer.
Liles went on to ask Avinon if he would buy one if it provided an additional level of safety. He said, “There is a lot of ifs in there, If it were 100 percent safe and didn’t affect performance, then I wouldn’t mind owning one.”
Decker’s team scored several points with that answer.
Earlier, Hinkle said ring guards could protect people, Avinon said they would be better than no protection at all, and now Avinon starts talking like he wants to buy one. Not a good day for the defense.
The jury was excused.
The defense intends to call Guy Taylor. He was deposed by Decker’s attorneys, but not put on the stand. Taylor invented one of the ring type guards tested by Decker’s side. O’Sullivan, for the defense, wants to use portions of his deposition. Both sides argue for or against hearing certain points and the judge made the decisions.
Kenneth Avinon, an investigations supervisor with Florida Fish and Wildlife Conservation (FF&WC) is testifying for the defense.
James McNally, attorney for the defense, brought out that Avinon believes the skeg caused the injury. It is not is in FF&WC as the cause of her injuries and was not mentioned by the defense in their opening statements.
Sounds like the defense is sensing its going to pretty hard to prove the Gale guard would not work on this boat (since they were selling it themselves) and would not have mitigated her injuries. So now, all of a sudden they think her injuries were caused by something else.
Especially since one of their own witnesses said he thought guards could protect people this morning.
Monty Hinkle, Florida Fish and Wildlife Conservation Commission, investigated the crash and testified for the defense. He interviewed Frank Decker at the hospital after the accident and saw Audrey Decker there.
Liles objected, but James McNally showed a diagram of Decker’s injuries drawn by Hinkle. They were shown as straight lines.
The defense (OMC) is trying to convince the jury her injuries were mostly caused by the gearcase and skeg, not by the propeller. They are basically saying, propeller guards don’t work, but even if they did, they would not have helped Decker because she was hit by the lower unit, not by the prop (except for maybe her arm).
They are trying to take as many injuries and costs (read money) as possible off the table (lower the stakes as much as possible). The attorneys are just doing their job.
Since the industry tries to blame several of these accidents on drive/lowr unit/skeg strikes, should they not make that part of the drive more crashworthy? Like by using the two Brunswick patents we mentioned earlier (our 6:11 PM Monday 15 June Court Blog comments) that cushion strikes by the lower unit.
Back to OMC trying to pin her injuries on striking the drive or skeg, Mercury does the same thing. Joe Pomeroy, their General Counsel, sent a public comment letter to the U.S. Coast Guard objecting to the proposed houseboat propeller safety regulation in March of 2002. We analyze a portion of that letter on pages 99 to 104 in the Second Rough Draft of our Response to that proposal. Mr. Pomeroy repeatedly uses the gearcase strike argument and other insinuations and we prove him wrong each time.
McNally started to talk about manatees and the judge asked what they had to do with the case. McNally said the injuries are the same. The judge sustained Liles objection.
Manatees, whales and other large marine mammals are a stable canvas for propellers to paint a series of nice even, repeatable cuts in, leaving it obvious what caused their injuries. Some researchers now analyze a series of cuts on manatees and whales to determine the size and and pitch of the propeller that made them.
People are much smaller, lighter, and a less stable canvas. As a result, our injuries are rarely a nice long stretched out perfect sequenced pattern as sometimes seen on large marine mammals.
McNally may have been trying to say Decker’s injuries do not look like the long sequence of cuts often seen on large marine mammals, and thus her injuries must have been caused by striking the drive. He would have left out the part that human injuries often do not.
In his deposition, Hinkle said the injuries were consistent with being struck by a propeller. He believes her lower injuries were caused by the propeller, but her upper injuries were straight.
Again, the defense is trying to tie her facial injuries, to which the jury might assign a considerable value, to hitting the skeg or drive and being unavoidable, per OMC.
Liles, part of Decker’s team, brought out that Hinkle owned a Johnson motor like the Decker’s did. Liles asked him if he thought OMC’s guards could help. Hinkle said, “It could protect manatees, fish, people. It could help.”
Decker’s team scored several points with that statement.
Attorneys argued motions with the judge in a 9:15am meeting.
O’Sullivan called for a directed verdict. He said the case should be dismissed because Decker’s side did not prove her claims.
He also said Decker was judicially estopped from going forward with the suit due to an earlier settlement with Bonita Boat Center (which put OMC’s motor on the boat).
Liles argued OMC knew there were more than 100 propeller strikes yearly, and they knew of strikes resulting from people falling off boats even before 1957.
The U.S. Coast Guard reported annual propeller accidents statistics for 2001 through 2007 ranging from 176 to 266.
On 16 August 1953, Boni Buehler, a a 25 year old stewardess from Hollywood California, was on Lake Arrowhead in a boat owned by Conrad Hilton (of the hotels). She was about to be involved in an accident that involved several well known people including Geary Steffen (ex husband of actress Jane Powell) and Quay Sargeant (owner of a Los Angles music concern). The accident happened just 50 yards from Buster Crabb’s dock (the Olympic swimmer and actor -Tarzan, Flash Gordon, and Buck Rogers).
She fell from the boat and was struck by its propeller. Her left arm was severed at the shoulder. Her left leg was mangled and amputated later that night.
Many other stars and prominent people had ties to this accident. It was very heavily covered in the press. She had aspired to be an actress. Now she filed a lawsuit naming Conrad Hilton and forty others as defendants. She was awarded $265,000 in damages in 1956. She was represented by Mr. Melvin Belli, a very prominent lawyer known as “King of the Torts” who went on to defend Jack Ruby. Mr. Belli later published a book with a photo of Miss Buehler on the cover titled, Ready for the Plaintiff. Another of her lawyers was a Senator.
This accident would have been hard to have avoided seeing in the news. We find it hard to believe no one at OMC noticed it, especially considering the business they were in.
The judge denies O’Sullivan’s motion without prejudice (meaning O’Sullivan could bring it up again. He also asked O’Sullivan for some of the case law he cited.
The jury was brought in.
James McNally, an attorney for the defense (OMC), questioned Sgt. Mark Carroll of the County Sheriff’s office. Carroll said he saw her in the boat with a straight cut on her face.
OMC is trying to prove the cuts came from the skeg.
McNally’s questions show he will probably be trying to say the curved cuts were made by doctors.
When crossed by Liles, Carroll described the cut as more curved.
On re-direct, McNally brought out Carroll could not see everything due to the blood.
On recross Liles said Carroll’s description is based on something he saw more than 10 years ago.
Sounds like the first witness did not go very well for the defense. They were even trying to discredit his testimony at the end.
Audrey Decker described what little she remembers about the accident that happened over a decade ago.
Decker’s attorneys rested their case today after calling 17 witnesses.
The defense will now begin presenting its witnesses.
Bradley Winston, one of Audrey Decker’s attorneys, is questioning, Fred Decker, Audrey’s husband.
Fred says he first realized she had hit the propeller almost at the same time she hit the water.
With the loss of her salary and the additional medical expenses, he sold their home and bought a trailer.
Her daughter-in-law, Michelle Decker, said she went to Lee Memorial Hospital shortly after the accident.
Audrey Decker was later moved to Tampa General Hospital.
O’Sullivan, a defense attorney, calls for a mistrial based on the preview of the case in the Daily News. The judge denies his motion.
The posting is accompanied by a NBC-2 video of Decker testifying.
McNally returns to asking Audrey Decker which direction the boat was turning. She cannot remember if she fell in head first, feet first, or belly flop. She does not remember how she landed.
He asked her if she hit the skeg. She maintains she was hit by the propeller and felt something hitting her face.
When asked if she had spoken out for propeller guards to the mayor, governor, or Congress, she said she doesn’t go out in public.
McNally then shows the jury the preview of her trial in the Daily News and the related photos saying this disputes her comments of trying to avoid the limelight.
Audrey ecker says she fell from the left side of the boat.
The judge again warns them of the D’Amario case (prevents them from focusing on why she fell overboard).
David Hagen questions Audrey Decker. She says she made $96,000 to $110,000 as a live in caretaker for a lady she had worked for seven years.
Decker tells him of the accident and resulting medical issues.
She has had “40-something” surgeries” and faces more. She lost 12 to 15 pounds, but gained 30 due to her decreased activity level.
Her increased body weight as an indirect result of the accident might be an overall health issue?
Hagen asked her to pickup some toothpicks as an example of her limits. She tried several times and was unable to.
She had previously boated in the Boston Whaler three or four times.
McNally asked Krost if there was a job Decker could hold. Her multiple disabilities, chronic pain, and psychological issues affect her ability to work.
Audrey Decker herself entered the courtroom at 1:20pm. She begins to describe her life.
Bradley Winston, one of Decker’s attorney’s, reviews Dr. Stuart Krost’s credentials. Dr. Krost will testify about Decker’s injuries.
Krost says Decker was totally disabled by her propeller injuries, prior to the onset of her rheumatoid arthritis.
The defense might try to prove some percentage of her disabledness is due to ailments not related to her propeller injuries.
Krost says arthritis has aggravated her injuries by 100 percent.
Meaning if the propeller injuries caused her X problems prior to getting arthritis, they now cause her 2X problems. He is saying the burden she carries from the accident has been doubled by this other problem.
Krost tells the jury her total medical bills are $893,000.77 and doctors accepted $345,698.27 as payment, not all of which was insurance.
James McNally begins to cross examine Krost for the defense. When Krost was asked how much he had been paid to testify, he was not sure about the total, but he was being paid $8,000 for today because he had to bump some patients to be in court.
McNally said Decker told him she fell backwards out of the back of the boat and onto the propeller. Thigbault said she fell over the side in a right turn, while the Decker’s say she fell out in left turn. The Defense is preparing the jury for a possible change in her account.
Krost goes through the body and assigns percentages to the permanent damages in each left and right part or joint. He notes portions of the right side of her body now have more problems because they have been over used.
Sullivan, for OMC, asks Thibault about his guard patent.
O’Sullivan tries to talk about the National Boating Safety Council and testimony about propeller guards. Thibault says he does not know that testimony.
He is probably talking about the 1989 NBSAC report.
Thibault says she was only struck in her upper body because she was feet-down in the water.
O’Sullivan, defense attorney for OMC, begins cross examining Thibault, Decker’s expert biomechanical engineer.
O’Sullivan says the Decker’s were the fourth owner of the boat.
Thibault says he has only testified in 4 cases, but has been asked to review 30.
Thibault claims the weight of the 13 foot Boston Whaler was not enough to cause a fracture, because it was not 1,000 pounds.
Earlier Thibault said OMC’s SUNY testing showed skull fractures required 1,000 of more pounds of force.
The ll year old boy who was on site moments after the accident recently came forward, but was not allowed to testify due to being a late witness.
Audrey Decker is expected to testify today.
If the defense can prove the Decker’s were negligent and contributed to enhanced injuries AFTER she fell in, the jury will assess a percentage.
That percentage would be used in calculating an award. For example if the jury found her injuries were enhanced by the un-crashworthiness of the boat, and assigned a monetary award to those enhanced injuries, that award would be reduced by the percentage the Decker’s contributed to her enhanced injuries.
Now with the loss of the pre-emption defense, the industry is still rejecting the use of guards due to the reasons above.
Several electronic propeller safety systems are coming on the scene. They range from wearable “tags” that shut the engine off if you fall in, to swim ladder interlocks that prevent the engine from starting when the swim ladder is down. Industry is rejecting them as well, possibly due to fear they might have to assume retrofit costs, or that by putting them on, they admit there has been a problem all along and become more responsible for past injuries and fatalities.
It is a bit hard to imagine that of the thousands of recreational boat propeller injuries and fatalities over time (tens to hundreds of thousands according to some), the industry has never thought a single one of them was preventable by design improvements, AND if they looked forward in time today, they don’t seem to anticipate any more propeller accidents happening in the future.
Our collection of news coverage of historical recreational boat propeller accidents begins with the twin fatality of two young boys in August 1912. OMC earlier said they first became aware of propeller injuries in 1965. Either way, its been a heck of a long time for them not to respond to the problem.
Thibault uses a sketch of a boat with a body under it to detail how Decker was first hit on the arm, the elsewhere.
Liles then moves to enhanced injuries (those from not having a guard). The boat was going 7 to 11 miles per hour. Thibault says it takes 1,000 pounds to fracture a skull, but even at 15 mph Decker would have only been hit with a maximum of 300 pound force. He says his figures are from OMC’s SUNY testing in the 1990’s.
Jurors were already told the OMC crash dummy had a neck four or five times stiffer than a human’s. (See Don Kueny testimony about page 876 in the Decker transcript)
If OMC wanted to reduce the impact to those struck by the drive or a propeller guard, they should have used Brunswick’s two “trail out” trim cylinder patents for cushioning the impact of drives at slow speeds. Both were filed in the 1970’s. U.S. Patent 3,999,502 and U.S. Patent 4,050,359.
They used an orifice to allow the boat to be cushioned when the drive struck an object at slower speeds. (This is in addition to the relief valve system used to protect the drive from log strikes at higher speeds). These systems could significantly reduce the maximum impact force of a propeller guard OR drive.
Note the OR drive – back to crashworthiness, if the defense claims the injuries were mostly caused by blunt trauma from striking the drive, why didn’t they use these patents to reduce those injuries?
We describe the system further in the second rough draft of our response to the withdrawal of the proposed propeller safety regulations for houseboats. See page 110.
March 2011 Update – since the trial, Teleflex has patented a device with even more promise for reducing blunt trauma from guard strikes that appears to also be a cost reduction.
Thibault said he has never heard of anyone getting stuck between the propeller and a guard. He said it would only take 5 or $10 per boat to add ring guards.
Decker’s attorneys say they want play a taped deposition from a young man on the scene seconds after the accident. His statement was taken this afternoon. The defense objects. They contend he has an advantage in reading the Naples Daily News stories and blogs and could be influenced by them.
The judge warned there will be no more late witnesses.
Thibault continues to detail Audrey Decker’s injuries and concludes she was hit by the propeller and did not suffer blunt injury from the gear case as contended by the defense.
Stephen Laquis, an opthalmologist treating Audrey Decker’s eye injury, talks about issues surrounding her glass eye.
Lawrence “Larry” Thibault, of Biomechanics Inc, once designed a propeller guard himself. He details each strike of the propeller. He thinks she was struck 5 times. The defense says only one of her injuries was caused by the propeller.
The defense previously claimed only her arm injury was caused by the propeller.
McNally says Audrey Decker could not have kept her salary that high. Then the points out Dimbath did not subtract the cost of reumatoid arthritis medicine from his calculations.
He is saying the arthritis medicine is not related to the accident and should not be included in the medical expense calculations.
Merle Dimbath, and economic expert, said Audrey Decker would have earned $110,577 in the year she was injured based on previous wages.
David Hagen, a plaintiff attorney, takes Dimbath through Decker’s taxes, retirement age, life expectancy, and the projected costs of medical care.
Dimbath points out how not being able to work has impacted her future social security payouts. He sums of her losses from loss of earnings, social security income, and medical costs. Dimbath estimates her past loss at $612,938 and future losses at $563,219 for a total of $1,176,157.
O’Sullivan, defense attorney for OMC, claimed the plaintiff test boat was bounding around in the video. McDonough said it was porpoising, they induced it to check the effects of trim.
McDonough thought the boat handled better with the guard than without it. Test data was displayed on a large screen.
O’Sullivan pushed them for the defense asking them where the protocol sheets were for the 132 tests.
Daniel McDonough, an engineer working with Brian Benda at ARCCA Inc. for the plaintiff, said they tested the motor in a similar boat with and without the guard for speed, acceleration, handling and turning. They also performed S curves. ARCCA averaged the data from several tests.
O’Sullivan, for the defense (OMC), challenged Benda’s 132 tests of two propeller guards.
O’Sullivan, for the defense (OMC), asks Benda about Jay Taylor, whose patented guard Benda tested.
I think they are talking about Guy Taylor, not Jay Taylor.
O’Sullivan gets into the details of exactly how the boat was tested, and what was tested. He picks apart differences in boat lengths, not testing roll and yaw and other aspects, including not using a computer program recommended by the Coast Guard.
Even a Dallas Morning News story printed the same day OMC made their claim (June 12), “Texas Officials Urge Safety As Boating-Related Deaths Climb” quoting Texas Parks & Wildlife Department officials states:
O’Sullivan tries to prove speed and manueverability are impacted by a guard and they are not practical.
He says there are pending cases in Texas, Washington, and Pennsylvania.
He might need to add a few more states, and countries to that list.
Benda tells the jury he is making $400 per hour testifying as an expert. O’Sullivan begins to cross examine him for the defense.
Watts, one of Audrey Decker’s attorney’s asked Benda if putting warnings in boldface capital letters has decreased injuries. Benda said, “It may have. The question is, is it acceptable that more than 200 people are killed (yearly?).
We are not exactly sure where he came up with the 200 fatalities a year. I suspect he was actually referring to the number of accidents, not the number of fatalities.
NDN talked about a presentation tool being used by Decker’s side. The questions her side needs to prove are being displayed by an overhead projector. When Benda answerers “yes”, a large, red “YES” pops up next to the question.
Benda and a colleague tested a boat similar to Decker’s for steering torque, safety, and handling. OMC tracked down the actual boat in Michigan and tested it last month.
Benda told the jury the guard did not impact steering torque, handling, or create safety issues. It did marginally affect performance (speed) and stopping distance.
They discuss revolutions per minute, RPMs, and being hit by a propeller.
Benda talks about needing a safety program.
Dr. Brian Benda, a bioengineering expert, is being led through his career and credentials by Mikal Watts, one of Decker’s attorneys.
We will anticipate seeing some numbers when he gets down to business.
NDN notes the Sprietsma case (U.S. Supreme Court December 2002) opened the door for consumers to sue boat manufacturers even though the Coast Guard did not mandate guards and a single guard was not available for all boat models.
“U.S. Coast Guard statistics show there were 176 boat propeller accidents in 2007, with 24 deaths and 166 injuries.”
This is a repeat of the correct statistics for USCG reported propeller accidents. Back on Saturday June 6th NDN printed statistics based on Event 1 data only. We commend Naples Daily News for following up on our comments and making the correction.
It is incredible how fast Event 1 data keeps getting picked up and used by others. For example, we came across an article this morning already quoting the Event 1 stats as previously listed by Naples Daily News on Saturday. In the fourth paragraph of a June 11th South Floridian injury attorney blog post about the trial. They cited the Event 1 stats from NDN and say there were only 7 deaths and 75 injuries in 2007.
Everybody keeps quoting Event 1 stats in error and re-quoting one another. We spend a lot of time trying to correctly them, but they spread like rabbits.
Thanks again to Naples Daily News for making the correction. That will make it easier for us to convince those using their earlier statistics.
We also strongly encourage the U.S. Coast Guard to make their annual release of accident statistics easier for the media and others to properly interpret.
The population is continuously being exposed to Event 1 statistics instead of the full accident counts (see Saturday June 6th entry for more info) and led to believe there are far fewer reported propeller accidents and fatalities than were actually reported.
Griffin estimates Decker would have made $110,677 in 1999 based on her earnings before the accident.
The woman she was caring for died a year later. Griffin contacted the accountant who placed Decker with the lady and asked if Decker were still in the business if she would have been able to have been placed at similar earnings after the death of the elderly lady. The accountant said Decker would have probably been placed at $40,000 to $50,000 which is what those jobs more typically pay.
Jurors were shown Deckers medical care costs, prescription costs, costs of future medical procedures, and costs of things she needs for daily chores.
Sharon Griffin, an expert witness, detailed the impact of the accident on Decker’s earning abilities. She said Decker worked for a New York company for 25 years as a retail clerk, she and her husband opened an Italian restaurant that closed, and she cared for an older lady as a full time live in caretaker for 7 years prior to the accident. Decker earned $98,076 in 1998 and has not worked since the accident. Griffin does not believe she is even close to employable.
Plaintiff attorneys are attempting to show OMC knew propeller injuries were a hazard that caused injuries and death, about 47 a year.
Just a little clarification, they were trying to show “propellers” were a hazard that caused a reported about 236 propeller strikes and 47 fatalities a year.
Manufacturers divied up the cost of propeller guard testing at SUNY at Buffalo based on the number of propeller lawsuits they faced.
Dr. Anthony Wolfe, a plastic surgeon who worked on Decker’s face testified by videotape. Under cross examination by OMC’s O’Sullivan, Wolfe said he could not tell with great certainty if her injuries were caused by the propeller of by another part of the boat.
The defense continues to try to make a case the injuries were not caused by the propeller.
Bradley Winston, one of Decker’s attorneys, asked Wolfe if he could tell if the injuries were blunt injuries or came from a sharp object. Wolfe believed they were caused by a sharp object.
NDN reports the trial will involve economic experts who will testify about the costs in the past and future, the loss of earnings, and other financial information. Decker has not worked since the 1999 accident.
Dr. Lorraine Golosow, a plastic surgeon, provided some numerical data on Decker’s injuries but was unable to estimate number of stitches initially used.
In defense cross examination she was unable to determine if the injuries were caused by a propeller. The defense is trying to show Audrey Decker was pushed away from the boat by the gearcase and only struck on the arm by the propeller.
Watts asked Kueny about the Coast Guard continuing to investigate mandating propeller guards. Kueny agrees the Coast Guard issued proposed regulations in 2001.
Watts asked if it was the Coast Guard’s position to have propeller guards in 2002. Kueny said he did not believe that to be true. Watts reminded him it was published in the Federal Register, and Kueny said it was a proposal.
They were discussing the proposed propeller safety regulations for houseboats to which we have spent much of the last two years detailing a response.
Watts asks Kueny if other boat and engine manufacturers split the cost of the OMC guard testing at SUNY at Buffalo based on the number of lawsuits they faced. Kueny said he wasn’t aware of that.
Watts also pointed out the test dummies used at SUNY had necks that were four or five times stiffer than humans. Kueny also admitted the SUNY testing focused on cage type guards, not the ring type guard being discussed in this case.
Watts later showed a 2002 Coast Guard boating safety article listing 236 propeller strikes and 47 deaths. Kueny agreed that was a pretty consistent number the Coast Guard is finding every year.
When asked if there was one word in OMC’s file cabinets that say anything about entrapment, Kueny said, “Not that I have seen.”
Watts showed the jury an OMC letter warning Boston Whaler that would not warranty propellers if they were damaged and had guards on them. He tried to show the jury OMC studied guards, made and sold one,but would not cover damages if one was used. This fits with the plaintiff’s argument OMC made more money by not pushing guards, even while they knew of the dangers of propellers.
O’Sullivan displayed an OMC Propeller Guard instruction manual. He pointed out the warning that it was not intended to protect swimmers.
We have a copy of the instruction manual. The warning he pointed out is actually more of an instruction than a warning. It would be similar to the one below.
Its wording it pretty interesting. It does not say it does not provide protection for swimmers, it says it was not intended for that purpose. Arm and Hammer baking soda was intended for baking, not for keeping your refrigerator smelling nice. But it works.
Mikall Watts, one of Audrey Decker’s attorney’s, questioned Kueny trying to disprove the Defense’s opening argument statements by Jay O’Sullivan saying OMC believed all guards were unsafe and did not push them (try to further develop or sell them). The crux of Decker’s case is OMC made more money by not pushing guards. Guards would have protected propellers and cut in to their lucrative business of selling replacement propellers.
We commented on the propeller profit issue in our 10 June 4 PM Court Blog comments.
Mikall Watts, one of Decker’s attorneys, said OMC had 80 million reasons not to push sales of propeller guards, the $80 million in sales of propellers and replacements they would loose.
James Hoover of Miami Beach, formerly with Miami-Dade Parks and Recreation in the 1980’s said they used guards for 8 or 10 years on lifeguard rescue boats until they switched to personal watercraft.
We previously addressed many of the numbers mentioned in this feature article when they were first presented in the court blog. It is an excellent article with a nice photo.
Kueny testified he headed a research team for OMC that developed a guard marketed since the 1960s. There were never any complaints about it, it was available for the 25 hp engine on the Decker’s boat and only cost $5 to $10 to manufacture.
The $5 to $10 cost could be used later in cost benefit analysis calculations.
Don Kueny, previously served as OMC chief engineer, senior chief engineer and litigation liaison before he retired in 1993 and remained a consultant. Mr. Kueny, now 74, testified many injuries by propellers go unreported and OMC knew that years ago. “Unless a person goes to the hospital, many are not reported.”
The Coast Guard believed 5 to 10 percent of minor injuries were reported, while about 90 percent of serious injuries were, per Kueny’s testimony.
He agreed Coast Guard statistics show about 100 boat propeller injuries annually between 1976 and 1990.
He admitted OMC made about $40 million in sales from propellers.
Plaintiff attorneys are trying to make the point OMC may have resisted developing and using guards because guards would have increased propeller life, cutting into their replacement propeller business. From NDN coverage it is not exactly clear whether it was a total of $40 million, $40 million a year, or $40 million over some span of years. NDN covers this topic further later on.
Kueny said the majority of propeller $ dollar sales were from stainless steel propellers used on larger boats. He said boating enthusiast often buy more than one of them to find the fastest one.
We covered the propeller market in the past and drew a Boat Propeller Life Chart showing how propellers flow though the system. We also polled about 440 people on the Average Life of an Aluminum Propeller Over 100 Horsepower and about 390 people on the Average Life of a Stainless Steel Propeller Over 100 Horsepower. Stainless propellers were shown to have a considerable longer life.
Kevin Liles, one of Decker’s attorneys, said OMC did ship 28 Horsepower motors with propellers, discounting what the defense said in opening statements.
The defense may have been trying to say that although they sell a large number of propellers annually, part of this large number is ordered to go with the new drives (drives shipped less propeller). They were trying to make OMC look less dependent on profits from the replacement propeller market. Now Liles is saying that big number of replacement propellers does not really get reduced by the number of drives they made, they were really all replacements making us a lot of money.
The propeller business can be very profitable. We once heard a nice colorful quote at MerCruiser on its profitability. I will try to find and post here later.
Kueny said OMC became aware of propeller injuries in 1965.
That is a bit hard to believe. Our “Propeller Accidents News Coverage Prior to 1990” page lists media reports for about 20 of them prior to 1940, and many more prior to 1965. Some of those accidents were very high profile national news, like the Imogene Wittche accident in June 1949 and the Boni Buehler accident in August 1953. You would almost had to have been on another planet to have missed the Buehler accident. More details on high profile early propeller accidents are available on our High Profile Propeller Accidents page.
Kueny admitted he makes $200 per hour as a defense witness.
They are insinuating his judgement could be clouded by this and future paychecks.
Sullivan, a defense attorney for OMC, tells the jury “that not one manufacturer supplies a guard with its engines.”
We may reply to this one later.
A defense attorney said the Deckers purchased their 1988 Boston Whaler 18 months before the accident. It had been used by four different families and someone had put on an Italian propeller. He held up the propeller and said it had no OMC numbers on it.
“He shows jurors a propeller guard and how sharp it is, saying that could injure someone. That’s because water is 840 times as dense as air and a guard needs to be sharp to cut through it.”
Defense attorneys often point out the difference in densities of air and water when talking about blunt trauma. They usually leave out the fact that people typically weigh less than 5 kilograms (about 12 pounds) in the water and are easy to move around, especially when their feet are not planted on the ground. Also interesting the density ratio seems to be increasing, at least according the defense. Those objecting to the use of guards, used to say water was “830 times denser.”
Watts, an attorney for the plaintiff, told the jury Decker’s medical costs have reached over $893,000 of which $345,000 was covered by insurance.
Mikall Watts, an attorney for the plaintiff, said we are here because of what OMC chose to ignore 35 years ago, when John Kennedy was president.
He told jurors they would present evidence from OMC’s file cabinets, showing they knew the dangers of propellers, the injuries and deaths “and that 5- or 10 percent of such accidents weren’t reported”. “That meant anywhere from 70 to 2,000 yearly occurred.” He pointed out OMC had been selling a propeller guard since 1963 to loggers to protect their propellers from damage from logs.
It is not 5 or 10 percent of such accidents are not reported. He said, or probably meant to say that only 5 to 10 percent ARE reported. That is how he increased the USCG stats to “70 to 2,000 yearly.” His statement was based on the following statement, “The Coast Guard believes that only 5 to 10 percent of all boating accidents, not involving fatalities are reported.” It comes from page 7 of the 1989 NBSAC Propeller Guard Subcommittee report. We are not sure of the 1963 beginning sale date and seem to recall seeing OMC at least working on propeller guards much earlier than that.
NDN reports defense attorneys are still arguing trying to prevent defense attorneys from introducing a 20 year old deposition including OMC propeller sales volumes. The trial was to have began 30 minutes ago.
We will comment on this document later.
Outboard Motor Company (OMC) has been bankrupt for more than 10 years.
We covered the bankruptcy live here on rbbi.com on a page titled, What’s Next for OMC beginning in mid December 2000 and going forward about three months. We were a leading source of information on the OMC bankruptcy and even helped in placing ex-OMC employees.
5 defense attorneys and 3 lawyers representing OMC selected a 5 woman, 3 man jury plus two alternates.
Coast Guard statistics show there were 176 boat propeller accidents in 2007, with 24 deaths and 166 injuries.
NDN corrected the earlier Event 1 only statistics per our email to them (see our response to their 6 June article). The statistics above are the correct USCG reported statistics for reported struck by motor or propeller accidents.
Attorneys argued more than 56 motions today including several motions in limine (attempts by one side to prevent the other side from introducing evidence that could prejudice the jury).
A defense attorney argued he wanted to show propeller guards could entrap people.
The judge said he could use prior depositions to impeach witnesses
This could have bearing on the numbers later presented.
Audrey Decker is 64.
She has been through more than 40 operations in the ten plus years since she fell overboard.
Federal statistics show there were 80 boat-propeller accidents in 2007, the most recent year for which statistics are available, with 75 people injured and seven killed. That was down from 107 in 2006, when there were 98 injuries and eight deaths.
A Web site – rbbi.com – which tracks the issue, listed four U.S. deaths this year, and 18 injuries, with five in Florida, including a double amputation. It listed 13 U.S. deaths last year, with 54 injuries, 12 in Florida, …
The U.S. Coast Guard reports accident statistics as a series of up to three Events. For example in the Decker accident was probably logged as Event 1 = falls overboard, and Event 2 = struck by propeller. The statistics used by NDN do not reflect the number of people injured or killed in a 2nd or 3rd Event. The US Coast Guard actually reported 2007 “Struck by Motor/Propeller” statistics of 176 accidents, 24 fatalities, and 166 injured.
We emailed Aisling Swift at NDN, pointed out the error, and directed her to our Propeller Accident Statistics page which further discusses the Event data. We also pointed out our listing of recent propeller accidents (she referenced out page as rbbi.com) only includes those we found reported in the media. NDN later printed the correct statistics in their 9 June coverage of the case.