Bean partially wins appeal in Barhanovich case in U.S Court of Appeals

Back in 2012 Mark Barhanovich of Biloxi, Mississippi was going out fishing in his boat with a friend just off Biloxi. The Suzuki outboard motor struck a dredge pipe, broke off, flipped into the boat, and killed Mr. Barhanovich, at least partially with the propeller.

Mark Barhanovich's center console fishing boat. Photo from Edward Fritsch expert witness report

Mark Barhanovich’s center console fishing boat.
Photo from Edward Fritsch expert witness report

Mark Barhanovich

Mark Barhanovich

Bean, the dredging firm, previously settled with the Barhanovich family.

Bean brought Suzuki of Japan into the suit in an effort to recapture some of any potential losses. Suzuki moved for summary judgement in U.S. District Court of Southern Mississippi and the case was dismissed.

We covered the Barahanovich accident and case in several previous posts.

The U.S. Court of Appeals for the Fifth Circuit heard the Barhanovich case in September 2016.

On 4 November 2016, the U.S. 5th Circuit Court of Appeals filed its opinion. As is sometimes the case, the U.S. Court of Appeals affirms in part (agree with the lower court on some things), and reverses and remand in part (disagree with some of the lower court’s findings and remand the case back to them).

Per the Court of Appeals, Bean’s appeal claimed the district court erred in:

1. Excluding Bean’s original expert report
2. Excluding Bean’s second expert report
3. Relying upon Bean’s criminal proceeding to decide civil liability issues
4. Denying Bean’s motion to conduct certain testing on the motor involved in the accident
5. Failing to apply the superseding cause doctrine
6. Holding that Bean cannot meet its summary judgment burden without expert testimony

The Court of Appeals:

1. Agreed with the District Court in excluding Bean’s original expert report
2. Found the second expert report should NOT be excluded
3. Did not say much about point 3 (the U.S. Attorney General fining Bean)
4. Suggested the lower court consider reopening the discovery phase, allow Bean to test the motor, and allow Suzuki to rebut their findings.
5. Did not talk much about point 5
6. Point 6 is moot now that the 2nd expert report is allowed

The second expert report, said to have been a supplemental report by Edward Fritsch of ATA Associates, was rejected by the lower court for being late and Suzuki claimed it raised new issues instead of just supplementing those already laid out in his first report.

Basically the U.S. Court of Appeals felt the District Court was too rough on Bean by totally rejecting the 2nd expert witness report due to its lateness and Bean not timely requesting more time (note Bean’s expert witness’ 1st report had already been excluded). The appeals court suggested a way to penalize Bean for being late without totally excluding the report. The U.S. Court of Appeals said, “More appropriate sanctions include allowing SMC (Suzuki of Japan) to re-depose and rebut Fritsch (Bean’s expert witness), and awarding SMC costs and attorneys’ fees for this additional discovery.”

Deer Island Barge Position

Red balloon marks position off Deer Island, Mississippi of the barge associated with the dredging operation per USCG 2012 Week 37 Local Notice to Mariners dated September 12, 2012.

As to allowing Bean to test the motor, the U.S. Court of Appeals notes the Coast Guard will no longer be blocking access to the vessel since the U.S. Attorney General’s criminal investigation has been completed (Bean was fined). Now the U.S. Court of Appeals suggests, “the district court should consider whether to reopen discovery for the limited purpose of allowing (1) SMC to rebut and re-depose Fritsch and (2) Bean to test the motor. The district court should also consider awarding costs and attorneys’ fees to SMC for its additional discovery.”

Judges in the case were Judges Jones, Dennis, and Prado. Of them, Judge Edward C. Prado wrote the opinion. Judge Jones dissented on the point of allowing the 2nd expert report to be admitted. Judge Jones said Bean had plenty of opportunity to file the report earlier or to request extensions, they did neither.

Judge Jones said, “A district court that has accommodated litigants at every turn and declines to do so at the eleventh hour when a litigant has not sought a similar accommodation or disclosed an expert report within a reasonable period of time cannot be said to have clearly abused its discretion. I respectfully dissent.”

Our interpretation of what happened

Bean will be able to continue to contend in U.S. District Court that Suzuki of Japan is at least partially to blame for the Barhanovich accident.

In allowing Bean’s second expert report to stand, the U.S. Court of Appeals gave Bean new life in the case. Bean previously reported they settled with the family for $6 million. Bean (probably Bean’s insurance company) now has a chance to recover some of the funds paid out to the family by pinning some of the blame on Suzuki. If Bean wins the second go around in District Court, our understanding is Suzuki would then be ordered to pay Bean some funds for Suzuki’s contribution to accident.

Bean’s expert will be limited generally to using the 2nd expert report and possibly what they can learn from testing the outboard motor or parts of it.

Suzuki will probably be allowed to re-depose Bean’s expert and to use an expert to rebut his findings in the testing of the outboard and in his 2nd expert report.

Don Kueny, previously of OMC, is the only boating expert seen to date from Suzuki. Mr. Nobuyuki Shomura of Suzuki in Japan previously answered questions about their business and its operations during discovery. We characterize his replies as reluctant. He was not very forthcoming.

Bean will probably be financially penalized in someway for being late in filing the 2nd expert report.

We suspect this could all take some time for those involved to schedule some time, get back up to speed, accomplish their assigned tasks AND write their respective reports AND depose those involved.

The case might settle somewhere along the way now that Suzuki of Japan knows they cannot escape on summary judgement at the point the case was previously in.

Just like the current political arena (is now 3 days till the 2016 presidential election) both sides will be sharpening their final verbal attacks.

A tip to those of both sides of the Barhanovich case. We suggest you view several of our 2nd half 2016 posts. Those of interest can be viewed from Archive for Outboard Flipped Into Boat. We suspect the various charts and warnings will trigger a few ideas each side can use or should be prepared for.

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