Brunswick Misled Two Federal Courts on Frequency of Propeller Accidents

Brunswick requested a rehearing of the Jacob Brochtrup v. Mercury Marine and Sea Ray propeller injury case before the U.S. Fifth Circuit Court of Appeals on June 10, 2011. Mercury Marine and Sea Ray are both divisions of Brunswick.

On page three of Brunswick’s formal request for a rehearing, Brunswick faults Brochtrup for not providing information on the frequency or likelihood of injuries like those he received, no evidence of the number of accidents involving exposed boat propellers, and no proof of the “frequency or likelihood of injuries caused by exposed propellers on boats of this design” (Brunswick claims propeller accidents are rare events).

Then on the top of page 4, Brunswick cites some propeller accident frequency comments made by Peter Chisholm, Mercury Marine Product Safety Manager, during the original trial in U.S. District Court, Texas Western District, Austin Division:

The jury heard no evidence any closer to this subject than the testimony from Peter Chisholm, Mercury Marine’s Product Safety Manager, and that testimony did nothing to help Brochtrup on this point. Chisholm merely agreed that some unspecified number of people are injured by boat propellers each year, but he firmly denied this number was even as large as one hundred.

Mr. Chisholm’s comments are referenced as being based on the U.S. District Court, Western Texas, Austin Division trial transcript at “20 Tr. 94 (lines 4-16)”.

When I first saw this I about came unglued. It appears that either Brunswick is showing their lack of knowledge of USCG annually reported propeller accident frequencies, or doing something worse.

USCG’s recently released Recreational Boating Statistics 2010 reports U.S. Coast Guard reported propeller accident frequencies for the last several years on pages 35-38. Just look down the “Total Times Event Occurred in All Accidents Column” till it crosses the “Struck by Propeller Column.

We copied a portion of page 35 of the USCG Recreational Boating Statistics 2010 report below and red lined it to illustrate the total number of USCG reported propeller accidents that met their criteria for 2010. USCG reported 179 propeller accidents in 2010.

USCG 2010 Propeller Accident Statistics

USCG 2010 Propeller Accident Statistics

Peter Chisholm’s testimony was given on 1 April 2010. The most recent Recreational Boating report at that time was probably the 2009 issue which contained the 2008 stats. The total number of propeller accident accidents reported to USCG that met their criteria for recent years are:

  • 2006 Struck by Motor/Propeller (234)
  • 2007 Struck by Motor/Propeller (176)
  • 2008 Struck by Motor/Propeller (181)
  • 2009 Struck by Propeller (184)
  • 2010 Struck by Propeller (179)

Brunswick (Peter Chisholm, Mercury Marine Product Safety Manager) denies that more than one hundred people are stuck a year, but USCG reported statistics for “Struck by Propeller” are considerably higher.

Yes, we note that prior to 2009, these accidents were listed as “Struck by Motor/Propeller” AND that the 2010 BARD definition still includes being struck by the motor:

“Person struck by propeller: A person is struck by the propeller, propulsion unit, or steering machinery.

The industry often claims people were struck by the motor instead of the propeller. While we agree that while a portion of some propeller accident victim’s injuries may have been caused by contact with the drive (skeg, leading edge of the drive, bullet/torpedo, etc.) it appears unlikely that many people struck by the drive would not also be struck by the propeller. It also seems highly unlikely that anyone behind the boat struck by propeller or propulsion unit would not have also been struck by the propeller. See Was Peter Chisholm Using a Propeller Strike Multiplier?.

At any rate, in recent years, in excess of 175 propeller accidents per year have been reported to USCG that met their criteria to be included in USCG’s BARD (Boating Accident Report Database) and USCG’s annual boating statistics report.

Brunswick denied there were more than 100 propeller accidents per year. Brunswick’s denial is a bold faced mistruth (We tried to be politically correct).

It is possible Brunswick was somehow confused about the U.S. Coast Guard’s practice of reporting accidents as a series of events. For example: a specific accident might be reported as a series of three events. Event 1 – Collision with floating object, Event 2 – Falls overboard, and Event 3 – Struck by propeller. Most propeller accidents in USCG’s annual reports are Event 2 accidents as seen in the USCG table we provided above: Event 1 (49), Event 2 (114), Event 3 (16).

If Peter Chisholm, Mercury Marine’s Manager of Product Safety does not understand the Event 1, Event 2, Event 3, and Total Times Events system USCG uses to report all forms of boating accidents, that’s sad. Mr. Chisholm just finished his second consecutive term as a member of the U.S. Coast Guard’s National Boating Safety Advisory Council (NBSAC) and served as Chairman of NBSAC’s Boat’s and Associated Equipment Subcommittee which oversaw NBSAC’s propeller strike injury avoidance efforts. He received a “United States Coast Guard Public Service Commendation” award from the Coast Guard at the January 2011 NBSAC Meeting for his service. If Peter Chisholm, Mercury Marine’s Product Safety Manager, does not understand USCG uses a series of events to describe all types of boating accidents AND logs those events as Event 1, Event 2, and Event 3 data, then people in boats built by or powered by Brunswick are being placed at unnecessary risk for many types of injuries.

Members of the boating industry have often put forth Event 1 data as representing the total number of propeller accidents. Maybe that is what Mr. Chisholm is doing again? USCG reported Event 1 propeller strikes in recent years have been less than 100 per year.

Whatever is going on, we strongly encourage the panel of Judges (Circuit Judge W. Eugene Davis, Circuit Judge Edith Brown Clement, and Circuit Judge Jennifer Walker Elrod) that served on the appeals case at the U.S. Court of Appeals 5th Circuit, to contact Brunswick and call their bluff on this one. Ask them why they claim there are less than 100 propeller accidents per year when the U.S. Coast Guard claims there are 175 plus propeller accidents per year reported to them that meet their requirements to be recorded in USCG’s annual Boating Statistics report.

While your at it, ask Brunswick why they made that claim twice, once in the trial, and again in the request for rehearing.

I have met Pete Chisholm and he seems like a nice guy. I found it hard to believe he was insisting the propeller accident count was less than 100 accidents per year unless he was somehow limiting his response (to Event 1 accidents, to outboards, to amputees, to accidents on major holidays, etc.) so I tracked down the transcript of the trial (Jacob Brochtrup v. Mercury Marine & Sea Ray. U.S. District Court, Texas Western District, Austin Division).

The exact reference cited by Brunswick in their request for a rehearing was “20 Tr. 94 (lines 4-16)”. That passage is quoted below. Mr. Alden is Robby Alden, attorney for Brochtrup. Mr. Norwood is Colvin Norwood, an attorney for Brunswick. Pete Chisholm is on the witness stand answering the questions. These are Mr. Chisholm’s answers on 1 April 2010.

Q. (BY MR. ALDEN) As an employee of Mercury Marine and somebody that’s responsible for product — I’ll rephrase the question.
As an employee of Mercury Marine, somebody that’s involved with product safety, you pay attention to dangers and hazards which your products use, like the number of people that get injured each year with propellers, don’t you?

A. Yes, sir.

Q. And you know that hundreds of people get injured seriously every year with boat propellers?

MR. NORWOOD: I object as outside the scope of the record. There was no questions at all about this.

THE COURT: Well, he’s the safety project — he can answer that.

A. I’m a aware that there are a number of injuries every year that occur, but I don’t believe that number is a hundred a year.

That was all Mr. Chisholm had to say about the frequency of propeller accidents. We see no reference to limiting his data to Event 1 accidents, to outboards, to the number of prop accidents involving Brunswick Corporation boats or drives, etc. He was not just caught on the street on the way to Fleet Farm and asked these questions. He was testifying in a propeller injury case as an expert witness and had months to years to prepare. What happened here?

We would very much welcome a comment from Mercury Marine or Brunswick clearing up this matter. Please let us know how we misinterpreted your statements OR issue a correction to the U.S. 5th Circuit Court of Appeals. Thank you for your assistance in advance.

By the way, when we forwarded a link to this post to Robby Alden (Jacob Brochtrup’s attorney) at Byrd Davis Furman in Austin Texas, he suggested we point out:

“The reason the trial court didn’t hear more evidence of the frequency of accidents is because Brunswick convinced the judge to exclude the witnesses who were going to testify about that on the grounds that the evidence was irrelevant!”

While attorneys often bellyache about being wronged by the other side, this time the Judge even jumped in! After Brunswick argued to exclude several witnesses (Koptyko, Mendez-Fernandez, and Price) that would have discussed the frequency of propeller accidents because their testimony was not relevant, when Brunswick turned around in closing arguments and said that no testimony about propeller accident frequency had been offered, the Judge scolded Brunswick for their tactics, but did so out of earshot of the Jury. The District Judge said on the record:

“But more prejudicial in your argument, and almost caused me to come out of my seat, is I sustained your motion in limine to keep off the stand Phyllis Kopytko. I sustained your motion in limine to keep off the stand Miguel Mendez-Fernandez. I sustained your motion in limine to keep off the stand Charles D. Price because you said that the prejudice of all these other propeller injuries outweighed the relevance, and then, you’ve got the gall to sit up here in closing arguments and ask the jury why didn’t they present evidence of that. The Court finds that very prejudicial and very wrong.”

Was Peter Chisholm Using a Propeller Strike Multiplier?

We briefly wondered if Peter Chisholm was applying some multiplier to the USCG annual propeller accident data claiming that some percentage of the strikes USCG reports were from drive only strikes (person did not hit the propeller). We recalled an earlier statement by Richard (Dick) Snyder of Mercury Marine, Mr. Chisholm’s predecessor) and retrieved it. In a 5 July 1995 public comment letter to the United States Coast Guard on a proposed houseboat propeller safety regulation (CGD-95-041), Mr. Snyder said:

“You properly and accurately raise the issue of the USCG statistics between 89 – 93, 17 reports including 16 injuries and 1 fatality (Emilio Cruz) for houseboats (Code # 8 ) and struck by boat or propeller (Code #12). If you go back to the earliest USCG data covering this issue, there were 30 more reports over the 20 years beginning in ‘69 which included one other fatality in ‘74. That’s 2 fatalities in 25 years plus around 40 injuries where maybe one third will be struck by boat, gearcase skeg or strut, or gearcase anti-ventilation plate.”

Prior to 1995, USCG lumped struck by motor or propeller data with struck by boat data. Even then, Mr. Snyder thought only about a third of those accidents (struck by boat, propeller, or motor) were not struck by the propeller. Now (post 1995) struck by boat accidents are no longer included in the struck by propeller or propulsion unit stats. The percentage of people struck by drive or other running gear only would now be much less than 1/3, even by Mr. Snyder’s admission.

Recent U.S. Coast Guard annual struck by propeller or propulsion unit counts are in excess of 175 strikes per year.

175 strikes per year X 2/3 = 115 which is still in excess of Mr. Chisholm’s claims.

By the way, we have since proven that Mr. Synder’s historical houseboat propeller accident statistics above are about as accurate as Mr. Chisholm’s are in the present (see page 138 our study of the rejection of the proposed USCG houseboat propeller safety regulation).

Wonder What Would Have Happened if the Judge Caught Chisholm’s Misstatement

The District Court Judge was extremely livid with Brunswick telling the jury the plaintiffs had offered no testimony on the frequency of propeller accidents when if fact they had tried to, but Brunswick had pleaded with the Judge to keep those witnesses out of the court because their testimony might prejudice the jury and was not relevant to the case.

We are only left to wonder what District Court Judge would have said if he caught Pete Chisholm (Brunswick) misrepresenting U.S. Coast Guard propeller accident statistics in his testimony. Or, what the jury would have done if they found out Brunswick was not telling them the truth about the frequency of propeller accidents.

Brochtrup was a landmark trial as it was, but if the plaintiff had been able to bring Chisholm’s misstatement to the attention of the Judge and Jury, it could have been much more.

Additional Propeller Accident Frequency Comments

USCG does NOT log all U.S. propeller accidents that are reported to them. Several reported propeller accidents are rejected for not meeting their criteria. “Non-Reportable Boating Accidents” are defined on page 10 USCG’s 2010 Boating Statistics report. In addition, both sides of the propeller safety issue have differing views about how many propeller accidents go unreported each year.

The U.S. Coast Guard says the more severe a boating accident is, the more likely it is to be reported. The boating industry says propeller accidents are severe, so they must all be reported. Propeller safety advocates point to many studies showing propeller accidents are vastly under reported, and produce examples of well known propeller accidents listed in BARD as boating accidents, but not recorded as propeller accidents. Another well known disconnect with BARD is the lack of participation by the National Park Service (NPS). Many boating accidents occurring in National Parks are reported to NPS but NOT to USCG.

For propeller accident statistics from 1993 to present, please visit our Propeller Accident Statistics page.

Propeller accident frequency is sometimes referred to as propeller accident counts or the annual number of propeller accidents / propeller strikes / prop strikes per year.

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