Kenneth W. Fisher Will be Allowed to Testify for Plaintiffs in McGarrigle v. Mercury Marine

For basic information on John McGarrigle and Barbara McGarrigle v. Mercury Marine in U.S. District Court, D. New Jersey, see our McGarrigle v. Mercury Marine case page.

Very briefly, John McGarrigle fell from a small boat when it hit a wave, was not wearing a lanyard kill switch, the boat circled repeatedly, he tried to re-board it, and was struck by the propeller.

Both sides moved for summary judgement on some issues prior to the trial. Both sides won some issues and lost some issues. The full opinion written by Disrict Judge Noel L. Hillman is available on

The defense tried to block Kenneth W. Fisher from being an expert witness for the plaintiff. They said he was not an expert in this field (kill switches on small boats) under Daubert. They also do not want to allow Dr. Fisher or others to use U.S. Coast Guard Navigational and Vessel Inspection Circular No. 4-89 (Circular 4-89). Defense claims Circular 4-89 only applies to commercial vessels. Defense also wants to prevent Dr. Fisher or others from using American Society of Testing and Materials (ASTM) F 1166-07 standard regarding human factors engineering (they grant it refers to ships and marine structures, but claim it does not specifically mention recreational boats).

In a 20 December 2011 opinion, the court said Dr. Fisher will be allowed to testify and he can use ASTM F 1166-07, but he will not be allowed to use Circular 4-89.

At the same time, Plaintiffs moved for summary judgement to prevent Defense from being able to claim the accident was caused by the victim taking a small boat out in choppy water and going too fast, they also wanted to block evidence of his behavior after being ejected (tired to re-board the circling boat), and wanted to block evidence that neither Mr Garrigle or his father read the outboard owners manual.

In the same 20 December 2011 opinion, the court said the defense would be allowed to present evidence of a proximate cause of the accident being the condition of the water and the speed of the boat. Defense will also be allowed to discuss the victim’s attempts to re-board the circling boat. The defense will not be able to introduce the failure of Mr. Garrigle or his father to read the owners manual as evidence of comparative fault or as a proximate cause because the defendant acknowledges some people operate their outboards without reading the manual, and thus it was foreseeable.

We will now discuss the decision to allow Mr. Fisher to testify in more depth.

Debate Over Kenneth W. Fisher, Expert Witness for the Plaintiff

To win a product liability suit, plaintiffs must show the product that caused the harm was not reasonably fit, suitable or safe for its intended purpose. They can do that by showing the product failed to provide adequate warnings or instructions, or it was designed in a defective manner. In this case, Plaintiffs intend to meet that burden of proof through testimony of their expert witness, Dr. Kenneth W. Fisher. Defendants claim Dr. Fisher is not qualified to testify in this case. They say he fails to meet the requirements in Federal Rule 702 governing admissibility of expert witness testimony. To meet those qualifications, the defense says he must be qualified to testify as an expert, his testimony must be reliable (based on methods and procedures of science, not upon subjective belief or unsupported speculation), and the expert must have grounds for their belief (testimony must be relevant to the case and assist in trying the facts).

Qualifications: Defense claims Dr. Fisher’s expertise lays in the design and construction of ships and large maritime structures, not in small recreational vessels. Plaintiffs claim the defense’s definition of qualifications is so tight that only previous employees of outboard manufacturers would qualify, then go on to point out the qualifications of Dr. Fisher. The court found him qualified to testify and cited a case in which excluding an expert witness from testifying just because they were not the best qualified or had the most appropriate specialization was called an abuse of discretion.

Reliability: the court listed the factors to be considered in determining if an expert witness’s testimony is reliable or not: if it consists of a testable hypothesis, has been subject to peer review, has a known or potential rate of error, existence and maintenance of standards controlling the technique’s operation, if the method is generally accepted, if the relationship of the technique to the established reliable methods, the expert’s qualifications, and non-judicial uses.

In this case, Dr. Fisher is offering an opinion that type B lanyard (see our coverage of the case) was defectively designed, and that type A lanyard is a safer alternative, as would be warnings on the engine. The court said this is not a complex opinion so they will only focus on Dr. Fisher’s selection of standards, and upon his overall reliability.

Defense claims Dr. Fisher’s reliance upon American Society of Testing and Materials (ASTM) F 1166-07 standard regarding human factors engineering is wrong because they do not think the standard applies to recreational boats. Defense says the standard applies to ships and marine structures, not recreational boats or outboard engines. Dr. Fisher claims the small boat falls under the category of a maritime structure, but could only find one other person that agreed with his position. The court found the Defense’s opposition to the ASTM standard to be more of a disagreement than an unreliability.

Defense argued there was no reliable basis for Dr. Fisher’s claim that type A lanyards would be a safer alternative design. Dr. Fisher did not conduct tests on the lanyards or research accident occurrences with either style lanyard. The court said lanyard A is already in use by the industry and that could stand as evidence of its reliability.

Thus the court found Dr. Fisher’s opinion to be reliable under Rule 702.

Fit: the court must examine the experts conclusions to determine if they could have reliably flowed from facts know by the expert and the methodology they used. Dr. Fisher is offering an opinion that the lanyard was defectively designed because it allowed the plaintiff to start and operate the small boat without using a lanyard. Dr. Fisher reviewed the outboard motor involved in the accident, regulations and codes, the defendants and a competitors operators manual. His opinions could logically flow from those experiences and from his identification of another lanyard (lanyard type B) often used in the industry that requires the lanyard key to be inserted before the engine will start.

Thus Dr. Fisher and his opinions meet the requirements of Rule 702 and Daubert.

The challenging of an expert witness is quite common in boat propeller injury trials. Both sides frequently challenge expert witnesses. The Defense often challenges the same experts they previously challenged somewhere else. The term Daubert is often used. It refers to a specific case, Daubert v. Merrell Dow Pharmaceuticals. The Daubert case and two other cases helped to articulate what is referred to as the Daubert Standard regarding the admissibility of expert witness testimony in U.S. Federal Courts (see Daubert Standard on Wikipedia).

Defense Wants to Block Testimony Claiming Its Engine Was Defective

Mercury Marine claims that between 1986 and July 2007 they sold over 750,000 8 to 25 horsepower outboards using lanyard type B. Mercury Marine says the Plaintiff’s accident is the only one they are aware of using that scenario (tiller steered outboard, victim ejected, did not use lanyard type B, and was struck by the propeller of the circling boat). Therefore, Dr. Fisher is offering an opinion that is not supported by the facts, and should not be allowed to do so.

PGIC comment – If we get some time, we will see if we can jog their memory a bit with a few examples.

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