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Malibu Boats loses 200 million dollar jury trial

Parties in the Batcheler vs. Malibu Boats Legal Case / Trial in Georgia.

  • Stephan Paul Batchelder & Margaret Mary Batchelder (parents of Ryan Batchelder, deceased).
  • Dennis Ficarra (operator of the boat and Ryan’s great uncle).
  • Malibu Boats West.
  • Malibu Boats LLC.

The Trial Jury verdict / award 28 August 2021

Ryan Batchelder

Ryan Batchelder

  • $5 million for life of Ryan Batchelder.
  • $75 million for pain and suffering of Ryan Batchelder.

This total of $80 million was divided between Dennis Ficarra being 75 percent at fault, Malibu Boats West 10 percent at fault, and Malibu Boats LLC 15 percent at fault.

In addition to these findings, the jury found for punitive damages.

  • Malibu Boats West for punitive damages in the amount of $40 million dollars.
  • Malibu Boats LLC for punitive damages in the amount of $80 million dollars.

Making the award / verdict total of $200 million dollars.

Law.com posted a copy of the actual Batchelder vs. Malibu Jury verdict form.


Background on Ryan Batchelder Accident

We covered the Ryan Batchelder accident back when it happened. See Ryan Batchelder, 7 of FL, killed: boat propeller accident Lake Burton.

Briefly, Ryan Batchelder, 7, was in the open bow of a 2000 Malibu Response XL ski boat with three other children. The boat operator was slowly circling in Lake Burton (Georgia) on August 14, 2014. They crossed a wake, large quantities of water came over the bow. Ryan and another child went into the water. The boat operator, Dennis Ficarra, Ryan’s great-uncle, reversed the boat in an attempt to avoid sinking. Ryan was struck by the boat propeller. Resulting in his body being entrapped on the propeller.

2000 Malibu Response XL boat image Courtesy OnlyInboards.com

2000 Malibu Response XL
Courtesy OnlyInboards.com
Note this is not the exact boat involved in the accident

The 2000 Response XL above has a tower, as did the boat rented by the Batchelders.


Legal Teams in the Batchelder vs. Malibu Trial Case

The Judge

  • The Honorable B. Chan Caudell

The Defense Team

  • Robert L. Shannon Jr. and Logan M. Owens of Carlton Fields of Atlanta, Georgia.
  • Laurie Webb Daniel and Nicholas Boyd of Holland & Knight LLP of Atlanta, Georgia.
  • Bruce Russell of Russell & Russell PC of Clayton, Georgia.

The Plaintiff Team

  • Donald “Don” R. Fountain Sr. and Ben Whitman of Clark, Fountain, La Vista, Prather & Littky-Rubin of West Palm Beach, Florida.
  • Andrew “Drew” S. Ashby and Maxwell K. Thelen of The Ashby Firm of Marietta Georgia.

Batchelder vs. Malibu Case Trial Citation

IN THE SUPERIOR COURT OF RABUN COUNTY STATE OF GEORGIA.
STEPHAN PAUL BATCHELDER and MARGARET MARY BATCHELDER, Individually, as Administrators of the Estate of RYAN PAUL BATCHELDER, deceased,
Plaintiffs.

v.

MALIBU BOATS, LLC, f/k/a Malibu BOATS INC.; MALIBU BOATS WEST, INC., et al.
Defendants.

CIVIL ACTION
FILE NO. 2016-CV-0114-C.


Claims

Plaintiff’s Claims

Among claims were the bow of the 2000 Malibu LX is very low in the water when underway on plane. Even closer to the water at non-planing speeds. This results in very little freeboard (water level is very close to top of the bow). Making the vessel susceptible to being swamped.

Plaintiff also claimed Malibu was aware of the problem and failed to warn customers of the hazzard.

Defendants Claims

Robert Shannon Jr. Quote from The Clayton Tribune 28 August 2021: “We deny the allegations that are in this case and that’s why we are here.” “We believe Malibu makes a great product. We believe the accident occurred based on the way the boat was operated.”

Batchelder Case Documents

Many Batchelder vs. Malibu boats case documents can be found on Georgia’s Peach Court online court portal.


The Lack of of Bow Capacity Warning

One element of the current Malibu case was the lack of a bow warning stating the capacity of the bow in people and pounds, along with any other necessary instructions.

Some have asked if other boat builders were putting bow warnings on their vessels in that era.

Attaching a portion of an image I clipped off Boat Trader on 8 September 2021. It shows the helm area of a 1992 Correct Craft Nautique listed for sale. This vessel. The Malibu Response LX in this accident was built in 2000.

Thus the 1992 Correct Craft Nautique in the image was built about 8 years before the 2000 Malibu boat in this accident.

You can clearly see the Correct Craft bow warning on the area you crawl over to get into the “play pen” bow.

The image includes the text of the warning from an operators manual.


The Kreusch Accident

A remarkably similar accident to the Ryan Batchelder accident occurred on August 11, 2007 in Green County, Ohio on Lake Shawnee.

A family outing with a 20 foot open bow Malibu Response LXi (the next model after the Response LX) had eight on board and one skiing. After the skier fell, the boat operator slowed the boat, and turned into the wake. The boat swamped. The operator put the boat in reverse to pull the front of the boat back up.

As the boat swamped, a child in the bow wearing a life jacket was either washed out or told to exit the boat. Four-year-old Mark Kreusch could not be found. A search ensued. He was found under the boat, entrapped in the boat propeller.

Those present were able to capsize the boat (turn it over). Consequently this exposed the deceased boy entrapped in the propeller. Alcohol was not a factor in the accident.

Kreusch Accident Documentation

The Kreusch accident was widely covered in local and regional media. Some reports, such as the front page of the August 14, 2007 Dayton Daily News describing the vessel as a 20 foot Malibu boat.

One of Malibu’s major competitors was Correct Craft. CorrectCraftFan (CCF), is a forum for Correct Craft boat owners. CCF discussed the Kreusch accident and noted a Malibu boat was involved.

Kreusch accident in CorrectCraftFan

Kreusch accident in CorrectCraftFan August 15, 2007.

The Kreusch accident is in the U.S. Coast Guard’s Boating Accident Report Database as BARD # 2007-OH-0048.

The State of Ohio produced a lengthy accident report including several witness statements and images.


Georgia Law and “Substantially Similar Accidents”

The Kreusch accident is eirlie similar to the Batchelder accident. However, on 31 December 2020, the Judge in the Batchelder case ruled the Kreusch accident did not meet the requirements of a “substantially similar” accident. The words “Substantially Similar Accident” have special legal meaning which we will be discussing in the coming days in Part 2 of this post.

In Georgia considerable leeway is given to judges to determine if an accident meets the bar of being a legally “Substantially Similar Accident”. The Judge in the Batchelder case wrote, “The Court finds that Defendants would be unfairly prejudiced by introduction of evidence of the death of a four-year-old child caused at least in part by entanglement on a boat’s propeller almost seven years prior to this case. This purported evidence was never litigated and subjected to the cross examination crucible.”

Basically, a “perfect” Substantially Similar Accident would involve these things.

  1. The same product.
  2. The same model.
  3. Built near the same time.
  4. Doing the same thing.
  5. In an accident caused by the same thing.
  6. At or about the same time (not many years apart).
  7. That was previously tried as a legal case.

One can always rely upon Lawyers representing defendants to point out micro differences between two accidents because is their responsibility to do so. That is part of the “cross examination crucible” cited by the Judge in this case.

Thus the Batchelder vs. Malibu jury was not made aware of the Kreusch accident or of many other Malibu swamping accidents.

It would have been interesting to see the impact of this information upon the jury.


Credibility, Completeness, Accuracy, and Similarity of Boat Accident Reports

There is obviously a range of:

  1. Credibility of of boat accident reports.
  2. Completeness of recreational boat accident reports.
  3. Accuracy of boat accident reports.
  4. Similarities between boat accident reports / accidents.

We anticipate addressing the distribution of boat accident reports over the variables above with regard to:

  1. Legal cases.
  2. Boat builders Post Sale Monitoring the safety of their products.
  3. Accident prevention.

in upcoming posts.


Statement by Lawyer for the Plaintiff

The following quote comes from Yahoo!:

Don Fountain stated that “the jury sent a very loud and clear message to Malibu and the entire boating industry that manufacturers who have actual knowledge of life threatening safety hazards and intentionally fail to warn and withhold information of dangerous conditions will be held accountable.”
 

Clark Fountain and the Batchelder family hope that this verdict will change the boating industry and prevent any parent from ever experiencing the horrors associated with losing a child.


Malibu’s 2021 Annual Financial Report

 
Just two days prior to the verdict (26 August, 2021) Malibu Boats published their annual financial report. In it was the first public mention of the case and resulting trial we have seen from them.

Legal Proceedings:

The Company is a defendant in a product liability case alleging defective product design and failure to warn. The case is Stephen Paul Batchelder and Margaret Mary Batchelder Individually, as Administrators of the Estate of Ryan Paul Batchelder, deceased, etc., et al Plaintiffs, v. Malibu Boats, LLC, f/k/a Malibu Boats, Inc.; Malibu Boats West, Inc., et al, Defendants, In the Superior Court of Rabun County, Georgia, Civil Action Case No. 2016-CV-0114-C. The case involves a personal injury accident involving the propeller of a boat manufactured by the Company.

 
Plaintiffs seek damages, including economic and punitive damages, alleging that the accident was caused by a design defect and a failure to warn. The Company maintains product liability insurance that is applicable to this case. The complaint was initially filed in the Superior Court of Rabun County, Georgia on May 9, 2016. The trial commenced on August 16, 2021 and is continuing as of the date of this Annual Report on Form 10-K.

 
The Company believes that the allegations in the case are unfounded and denies that there was a design defect or that any defect in the boat was a legal cause of the injury. The Company is unable to provide any reasonable evaluation of the likelihood that a loss will be incurred or any reasonable estimate of the range of possible loss.


Malibu’s 30 April 2021 8-K SEC Filing

When significant events occur in publicly traded company the are supposed to file an 8-K form with the Securities and Exchange Commission. Malibu filed an 8-K report regarding the jury verdict in the Batchelder case on 30 August 2021.

Malibu’s 8-K filing reports.

  1. The August 28th Batchelder jury verdict and awards.
  2. Malibu disagrees with the jury finding of Malibu Boats LLC being the legal successor and responsible for the liabilities of Malibu West.
  3. The jury’s finding of Malibu Boats LLC being the successor has the potential of creating a maximum liability of $140 million for Malibu Boats LLC.
  4. While the Company and Boats LLC maintain product liability insurance applicable to this case, such insurance coverage may be limited to $26 million.
  5. Malibu strongly disagrees with the verdict and the judgment, and intends to file post-trial motions with the trial judge.
  6. Malibu intends to appeal in the event its post-trial motions are unsuccessful.
  7. Pending resolution of the post-trial and appeals process, the payment of any damages in this matter is expected to be stayed (not be collected at this time).

Will the Case be Appealed?

The Atlantic Journal Constitution reported 30 September, “Bobby Shannon, an Atlanta attorney for Malibu, said the company is reviewing the case and has not decided whether to appeal.”


Media Coverage of the Batchelder vs. Malibu Boats trial in Georgia

We list media coverage in Three Categories. 1. Boating Industry Trade Media, 2. Boating Forums, 3. All Other Media.


Boating Industry Trade Media (trade journals)

The primary boating trade journals have yet to cover the trial in a public news piece (Boating Industry, Soundings Trade Only, International Boating Industry). IBI has released one article but takes a healthy subscription price to read it. That article will likely eventually be in their magazine.

  • Malibu expected to appeal against liability judgement in $200m court award. International Boat Industry (IBI). 7 September 2021.
    This is the first “non paid” coverage by the boating industry, and you may still have to sign up to view it.
  • Malibu faces largest ever Georgia damages award for pain and suffering. International Boat Industry (IBI). 3 September 2021.

Boating Forums

3 September 2021

2 September 2021

31 August 2021


Other Media

September 2021

31 August 2021

  • “What Got the Jury Mad”: 140M- Including $120 in Punitives – Awarded to Parents of Child Killed in Boating Accident” Law.com. 31 August 2021. Don Fountain, lead Plaintiff attorney, said, We had the minutes of three separate management meetings where they said, “We should do something, we should send notices and warnings about the swamping danger.” They put the warnings on their new boats, but they decided not to send out notices to the owners of older boats. They didn’t bother with sending out a 62-cent warning label. I think that’s what got the jury mad. Mr. Fountain said Malibu’s settlement offers ranged from 1.9 million to 2 million dollars.
  • Family of 7-year-old boy killed while boating on Georgia lake is awarded $200 million. The Telegraph (Macon, Georgia). 31 August 2021.
  • Lake Worth Parents Awarded $200 million in damages. Palm Beach Post (Florida). 31 August 2021.
  • Jury awards $200 million to family of boy killed in Georgia boating accident. WSB-TV Channel 2 Atlanta, Georgia. 31 August 2021.

30 August 2021

28 August 2021

  • The Clayton Tribune. Verdict Reached in Case Involving 2014 Boating Death. 28 August 2001. The case was tried in rural Georgia in the Rabun County Courthouse in Clayton Georgia. The local newspaper is The Clayton Tribune which covered the award today, 28 August 2021. Their coverage is currently available on The Clayton Tribune home page.

Earlier References


Full Disclosure

I was an expert witnesses for the Plaintiff in this case.


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Comments

  1. I know nothing about the Malibu boats or others similar in type, design and purpose. In my opinion these describe situations of operator error. When driving a boat with a low profile such as these boats, always keep the bow up when crossing your wake to pickup a downed skier, wakeboarder or other.
    Even if the bow digs into the water, do not back up, continue forward and flip on your bilge pumps.

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