In mid 2011, Brunswick requested a rehearing of their appeal of the Jacob Brochtrup propeller injury case in front of the U.S. Fifth Circuit Court of Appeals. Brunswick feels the original court (U.S. District Court, Western District of Texas, Austin) did not force Brochtrup to prove the design of their boat was unreasonably dangerous under the Texas Risk-Utility test. Brunswick also feels they jury instructions led the jury to believe the boat had already been declared to be an unreasonably dangerous design.
The Appeals court quoted a previous decision:
“Texas requires courts addressing the risk-utility of a product to consider:
- the utility of the product to the user and the public weighed against the gravity and likelihood of injury from use
- the availability of a substitute product that is not unsafe or unreasonably expensive
- the manufacturer’s ability to eliminate the unsafe elements without significantly decreasing usefulness or increasing cost
- the user’s awareness of the product’s danger and its avoidability because the danger is obvious or there are suitable warnings or instructions
- consumer expectations
Timpte, 286 S.W.3d at 311.
The appeals court went on to say Jacob Brochtrup was not required to submit the best evidence of all five risk-utility factors. Brochtrup’s evidence on the first element of his design defect claim was sufficient.
Brunswick continues to push for a full risk-utility analysis. We began to wonder why, other than just to continue to delay the outcome of this trial. Read More→