Listman vs. OMC trial 16 November Session 2a

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Robin Listman vs. Outboard Marine Corporation
Second Judicial District Court of the State of Nevada, County of Washoe

16 November 2011 Session Two – 3pm

Our coverage was obtained via a video feed supplied by Courtroom View Network (CVN). The images are also courtesy of CVN.

This session focused on testing of the proposed / exemplar guard.

Testimony was heard from:

  • Kelly Kennett – an expert witness for the defense

We heard from two attorneys:

  • Jay O’Sullivan for OMC
  • Robert Frank Vaage (Robert Vaage) for Listman

Kelly Kennett

Listman Trial - Kelly Kennett

Listman Trial - Kelly Kennett image courtesty of CVN

Robert Vaage continued his cross examination of Kelly Kennett from before lunch.

Tyler Kress comes up with reference to SUNY testing of propeller guards. Are you familiar with the 1990 testing? Yes, I read his entire PhD.

Kennett said there was nothing fundamentally wrong with Kress’ approaches. The tests were well conducted.

Vaage, You know he tested blunt impacts with heads of dummies, and cadaver limbs? Yes, that is not really done anymore since then (no cadavers used now).

His outcome showed the cutoff between injury and serious injury/death was 12 to 13 mph.

Kennett is aware of it, but says the death speeds correlate to head accelerations.

Kennett was asked if he knows Ben Hogan and has seen a video of Hogan testing a guard with a live person in the water being struck by a guard at 12 mph? He knows Hogan, Hogan is a client of his, he has heard of the video but has not seen it.

Kennett agrees that guards down provide some level of protection but he cannot quantify it over all body sizes and boat characteristics.

Vaage asked a series of questions to build up a chart showing the likelihood of serious injury or death to people coming into an open propeller or a propeller guarded by the exemplar guard from different directions.

Kennett agreed that persons within ten feet of an engaged propeller are at serious risk.

When Vaage began to ask about 100 movements of people coming at the guard from the rear, how many would get into the guard? Kennett has not done that type of testing. We do not know.

Kennett said he was never trying to determine if the exemplar guard was down was it a net benefit or detriment. Kennett said, we were just trying to point out there were some serious detriments.

Vaage pointed out that in his deposition he said the testing did not prove that these prototypes were a net detriment.

Vaage, You can’t tell this jury that that guard makes this boat more dangerous than a spinning propeller? Correct.

Kennett said he can contribute to the discussion of net benefits and detriments, but “I am not the arbiter of that final decision.”

Vaage began to discuss what the word “might” meant as used by Kennett.

Vaage, When you said as a result of all your testing indicates some the things that might happen? Yes.

Vaage, What does “might” mean when you say this to the jury?

Vaage then went to Kennett’s deposition pg 177 lines 12-19 where Kennett said, maximize the potential for limb interaction with the prop.

Kennett said, yes we were looking for a longitudinal entry.

The limb was lined up, secured or tied with strings, and ran over.

You mentioned to understand the validity you must understand how it was done? Yes.

You tied limbs up and backed over them? Yes.

For purposes of fairness, did you put a limb or a full dummy in the water and let it flow or move freely and see how it interacted? No.

Can you think of a way you could put a fake limb in the water and let it move? Yes, with some actuators perhaps.

When you came on this case there were no limitations in terms of time or money? Time was tight. We competed the water testing in one day.

Vaage, Did you think about tying a limb at an angle from the side? Kennett said, is no way I could do a million tests.

Vaage, Can you provide any information in terms of damage? Kennett thinks the boat was going 2 to 3 mph per the testimony of others.

Vaage, What if one of Robins limbs struck a guard at 2 to 3 mph? Kennett, she would likely be fine.

Kennett says his opinion is her leg can go through the vanes and she was laterally aligned.

Vaage, Earlier you talked about the difference between water and air. Earlier you talked about the photos of small kids in the propeller guard in a garage. Did they have any value other that to scare people? Kennett said that was a geometric study.

Vaage talked about lamb heads and asked if Kennett that since he wanted to make things as real world as possible, why didn’t the tie a lambs head in the water and hit it with a boat? Did you do that? No. Kennett thinks his approach was better.

Listman Trial - Propeller Guard Tines

Listman Trial - Propeller Guard Tines image courtesy of CVN

Vaage showed a photo indicating the gap between the center tines of the guard being about 3 1/2 inches and the other gaps being smaller.

They discussed the fidelity of the sawbones limbs as to how well they represent real limbs. Kennett says the skin and bones are good, the “flesh” is foam so it cannot be used to estimate depth of cuts.

Kennett suggests Robin Listman came into the propeller from a prone position (laying relatively flat near the surface of the water with her head pointing away from the boat).

Vaage, The testing you did showed some of the risks. Can you point me to any testing to show its benefits? Kennett, No, but it would have protected from the side.

Vaage, you call yourself an impartial scientist, not an advocate for a client? Correct.

Vaage, you have the ability to select certain tests. If you know that certain tests will not help your client’s position and it would be better not to do them, do you tell your client that? I don’t need to run a test if I already know the answer.

When Kennett was hired as a confidential consultant for the automotive industry and he knew he would not be testifying, yes he did discuss avoiding some tests with his clients, but he has never done that when there was a potential for him to testify.

Vaage, there have been some suggestions that the testing done at the larger firm you were previously at was not always Koshure? Yes, I was aware am that.

Kennett went to Failure Analysis just after Robert Taylor left them.

Listman Trail - Guard Down

Listman Trail - Guard Down image courtesy of CVN

Vaage spoke of the prototype guard in the down position and showed an image. Vaage said it provides some protection you just can’s say how much.

Vaage, So you are not looking for a certain result, you are just looking for a scientific answer. He is not advocating for his client.

Vaage, What about those you work with? Kennett said something like they did a good job but I can’t speak for them.

Then Vaage dropped the bombshell that Kennett may have anticipated given his response to the previous question. Vaage showed a video of the test crew filming a fake arm in the guard in the water. This video had sound and the test crew was saying all kinds of inappropriate things, including “That a keeper” “That’s a doozy, glad its not my arm” “Move in closer” “Yaa! Yaa!” plus lots of laughing and celebrating from being able to get the limb caught on the prop in the image.

Vaage asked Kennett about the voices on the video. Kennett named the technician that was the primary voice.

Vaage left him in silence.

Listman Trial - Arm in Guard With Voices

Listman Trial - Arm in Guard With Voices image courtesy of CVN

We will be following up with a more accurate listing of exactly what was said, but everything Kennett said all day went right out the window when the jury heard that tape.

History repeats itself again. There is similar audio on the 1990 SUNY test videos. Cress comes in and hears the crew saying all kinds of inappropriate things. He starts yelling and and cursing at them for what they were doing, and in so doing, did so himself.

It was funny that Kress did the same thing he was yelling at the crew for doing back in 1990 (saying inappropriate things on the tape. Now, everybody felt the air go out of the room when similar audio was played from these tests.

Redirect of Kelly Kennett by O’Sullivan for OMC

Talked about net benefit, net detriment in some settings, the O’Sullivan asked Kennett that if he knew of any government agency that if there was a net benefit to a propeller guard that would not require the same?
Lot of objections to that question.

O’Sullivan asked about the states of Georgia and Florida where Kennett has done some work with the government. Kennett said that if something is a net detriment, it is almost exclusively handled at the federal level.

O’Sullivan, You mentioned not seeing the Ben Hogan video of someone being struck by a propeller guard in the water. Did you know the individual involved was a stunt man? Yes.

Vaage, no more questions, have a safe trip.

It seemed like O’Sullivan was just trying to chat with him a few minutes so the audio on the video was not the last thing the jury remembered of his testimony.

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