Brochtrup Wins Mercury Propeller Case Appeal

On May 27, 2011 Jacob Brochtrup won his propeller accident case again. This time his legal team led by Robert “Robby” Alden of Byrd Davis Furman defeated an appeal by Mercury Marine and Sea Ray (both Brunswick companies) in the U.S. Court of Appeals for the Fifth Circuit in New Orleans, Louisiana. Brochtrup first won the case back in April 2010 in the U.S. District Court, Western District, Austin Division. At that time the jury found in his favor for $3.8 million in medical expenses and damages of which Brunswick was 66 percent liable. We covered the original case on our Brochtrup Propeller Case page.

During the trial decided back in April 2010, Brunswick repeatedly moved for judgement as a matter of law, claiming the facts were established, they just wanted the case ruled on. Brunswick also objected to to jury instructions defining the elements of a design defect. Their motions were denied, and Brunswick ultimately lost the case.

In the appeal, Brunswick objected to the instructions the jury had been given as to the elements of a Texas design defect claim, and to not stopping the case and ruling on it based on the evidence presented when they moved for judgement as a matter of law.

Mercury claimed Brochtrup did not present sufficient evidence to show the stern drive was designed in a way that was unreasonably dangerous. This court (Fifth Circuit) “concludes a reasonable jury could find the MerCruiser to be unreasonably dangerous” AND Brochtrup’s proposed alternative (Guy Taylor’s 3PO propeller guard with a rear shield that swings up / flaps up when underway) “did not adversely impact the MerCruiser’s utility in all situations or completely preclude some of the uses for which it was designed.” The court also cites experts testifying the 3PO guard (1) was a safer overall design, (2) was not excessively expensive, (3) was necessary to avoid these types of propeller injuries, and (4) the 3PO guard would in fact prevent these types of propeller injuries. This evidence, plus a former MerCruiser owner testifying he considers the exposed propeller to be dangerous and would have purchased a propeller guard if one had been available, shows that judgement as a matter of law would not have been appropriate. The District Court needed to consider the facts, and they did.

Mercury Marine claimed Brochtrup did not present an estimate of the probability of being injured by an exposed propeller, he did not present information of the public awareness of the hazards of an exposed propeller, and he did not present the expectations of an ordinary consumer about the dangers of an exposed propeller.

We find Mercury’s comment on not presenting information of the public awareness of hazards of exposed propellers a bit humorous considering Mercury’s involvement in blocking the U.S. Coast Guard’s public service announcement on propeller guards, a video titled “Don’t Wreck Your Summer“. Mercury and the rest of the industry blocked the safety announcement because they thought it showed the industry in a bad light. Does the boating industry want to keep the public in the dark, or do they want them to be aware of the dangers of exposed propellers? You be the judge.

At any rate, the Appeals Court ruled Brochtrup presented sufficient evidence that the MerCruiser was defectively designed in a way that made it unreasonable dangerous.

Mercury also claimed Brochtrup failed to show his alternative design (the 3PO guard) was economically feasible because he did not present manufacturing and labor cost data. The Appeals Court said the Texas Supreme Court has never ruled that you had to provide manufacturing costs. In the most closely related opinion, the Texas Supreme Court ruled the plaintiff did not even have to build and test a prototype, they only had to show the alternative design was capable of actually being developed.

Upon a close reading of Mercury Marine’s objections to the jury instructions concerning design defects, their objection was totally based on the way the instructions were formatted. Mercury wanted to add a “(1)” and place the design defect definition at the end of the instructions instead of up in the middle of them. The Appeals Court found the jury was correctly instructed, and noted great latitude is given regarding jury instructions.

In the end, the three judges in the U.S. Court of Appeals Fifth Circuit found for Brochtrup “and affirm the District Court in all respects.” The Brochtrup v. Mercury Marine & Sea Ray Appeal opinion the judges rendered and an actual sound recording of the Brochtrup Propeller Case Appeal are available online.

It looks like the appeal was pretty weak. Brunswick even left out the failure of their last minute efforts to get an economic expert to testify on Brochtrup’s life care costs in the 2010 trial, and their 2010 objections to the life care costs not being devalued back to a present value (use the time value of money to discount future costs back to the present).

We apologize for being a few weeks late in covering this appeal. We were in the middle of trying to move to our new site and put off covering several events to finish the move. The ruling in this appeal was very significant. It will interesting to see what effects it has on the future of propeller safety litigation and upon the industry’s reluctance to adopt propeller safety devices.


  1. Anonymous Jones

    What I find strange about this whole situation, is that our legal system wants to protect people from their own bad decisions. You do something obviously stupid ( i.e. being in the water near a boat with a running engine ), and expect someone else to pay for it? What ever happened to common sense? A common kitchen knife is safe when used properly, but deadly in the hands of someone with a childs mentality, should we put guards on them too to save stupid people from themselves. Common, take a little responsibility for yourselves instead of putting the blame on everyone else. Consumer protection has gone way too far, this is just stupid.

  2. Actually in this situation it was not his fault…he made no bad decisions and if you had done some more research instead of just immediately judging…then you would’ve known that instead of sounding like an insensitive X@#X!.

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