Batchelder vs. Malibu case SEC filing

[Chartman]

We, PropellerSafety, covered the Batchelder vs. Malibu trial and the resulting media coverage in Malibu Boats loses 200 million dollar jury trial.

Some members of online boating forums are pretty harsh on large jury awards, and have legitimate reasons for being so.

We just encourage those strongly disagreeing with a specific boat accident trial verdict to consider they have not seen all the evidence presented to the jury, read the thousands of pages of depositions, seen the testimony of expert witnesses, inspected the boat, been to the accident site, seen the accident reconstructions, or been present for the week or more a jury of our peers takes to review the evidence presented to and argued before them.

We are not saying any jury reached the right or wrong verdict.

We are saying it is hard to state whether a group of people graded something properly or not when you did not see what they graded (the evidence) and you do not even know what the grade scale was (the judge’s instructions to the jury).

A modern legal case can create terabytes of information. It is impossible for anybody to reduce that information to a few paragraphs from which a reader unzips them in their brain to get the whole data dump.

For instance, in the recent Malibu trial, the jury was 12 people nearly half women and men from a rural venue. The trial lasted 2 1/2 weeks and involved testimony of two dozen witnesses. It is very hard to make an informed decision about what the jury should have done without hearing those two weeks of testimony and being part of the jury’s deliberations.

We published a post listing over a hundred specific pieces of evidence not typically available to those not directly involved in a legal case or present at the trial. The post is titled, Boat Accident Trials: Harsh Forum Comments on Verdicts.

I suspect this post will receive some harsh comments of its own, but hope a few readers are swayed to at least briefly consider its message.

Thanks for listening.

Gary

[MTBoy]

Nope.  If anything you’re post does just the opposite in my mind.

Edited September 7, 2021 by MTBoy

[85 Barefoot]

On 9/4/2021 at 12:04 AM, granddaddy55 said:

but civil district courts are located in urban areas using jury pools of uneducated jurors who are poor and think the “MAN” needs to pay, New Orleans civil district court is famous for its bias towards the plaintiff lawyers and therefore we have the highest automobile insurance rates in the country due to their lucrative awards and billboard lawyers everywhere, so yes when large corporations like Ford make an egregious monetary decision like the pinto’s gas tank fires they should pay, but to paint those lawyers as saviors of product safety is a bit much

This jury was from rural Georgia.  And many people think that a rural demographic is actually the least plaintiff friendly in many states.  In any event:

Actually its not too much to paint those lawyers as saviors of product safety.  That's literally the reason the Pinto went the way of the dodo.  And why seat belts became standard.  And then shoulder belts.  And then ABS.  And then air bags.  And then dinging chimes.  And the reason heavy equipment has beepers when they're in reverse.  And the reason my truck will not go forward with a door open.  And parking sensors.  And the reason truck suspensions have evolved after "death wobble".  And the reason motorcycle helmets have ratings, etc. etc.  I could go on and on. 

 It's kind of surprising to  see the absence of anyone speak up that a response LX has a literal bowl for a bow and a former CEO say they have no record of any tests they did on the safe amount of weight for the bow.  Don't many of you understand that the jury literally rendered this verdict simply for the failure to provide an adequate warning?  Hate them if you want but warnings are there for a reason.  Would it have prevented this accident?  Don't know, but Malibu wouldn't have had anything to worry about.

Edited September 15, 2021 by 85 Barefoot

[85 Barefoot]

7 hours ago, BigCreek said:

An unfortunate incident happened here at Norris Lake the other evening. Two college aged kids were standing in the bow of a MasterCraft while underway. The boat hit a wake and both were ejected and run over by the boat. One had significant prop vs body injuries, the other was fine. The boat driver picked up a couple of charges, including underage consumption of alcohol. 

Does this mean that we need a 6-foot fence around the bow on all boats so that this cannot happen again? Should alcohol be banned in the United States so this underage driver/drinker cannot commit such an act of idiocy again? How much should MasterCraft have to pay because this kid got hurt?

Or, does it mean that sometimes, people do stupid things, and people get hurt because of it. Nobody needs paid $200M because that boat was being used in a way that it is not designed to be used.

Nobody would think it would be fun to do any of the idiocy people do in a boat when riding in a car. For some reason, people feel bulletproof in a boat, as if nothing bad could possibly happen. It's a shame that people get hurt, or drown due to carbon monoxide poisoning. This is not the fault of the company building the boat. This is the fault of the undereducated. Some people are just too stupid to know the risks they are taking, and occasionally, someone dies because of it. 

Do you not understand the stark contrast with that example and what happened in Georgia?  Literally too many to list.

[85 Barefoot]

On 9/4/2021 at 9:30 AM, justgary said:

I have to agree.  New York State chief judge Sol Wachtler reportedly said, "a grand jury would indict a ham sandwich, if that's what you wanted."  Lawyers (and some judges) rely upon the legal ignorance of juries.  In see a huge difference between an unsafe product that is currently on the market and a very isolated case that happens years after the product was made.  It is clear that the family didn't want justice, or they would have sued the rental shop and the driver of the boat.  They sued the boat maker instead, presumably because of their deeper pockets.  Lawyers and judges have created a situation where everybody is a victim and somebody has to pay.  Nobody has to be alert or careful any more, because it is never their fault. 

A hypothetical situation here:  Two families are enjoying the day on the shore of their favorite lake.  The kids are playing in the water while the parents grill burgers and dogs nearby on the shore.  Nobody notices the gator in the grass until he grabs one of the kids and takes him under.  Who is at fault?  Who has to pay?  The grieving family can find a lawyer that can bring them "justice," and I'm sure he won't tell them that sometimes freak accidents happen, and that the outcomes can be very sad.  Instead, he'll put dollar signs in their eyes and find a judge that will take a case.

In the present case, "punitive damages" were certainly not warranted, yet the judge allowed it. 

This is the reason we can't have nice things without stickers or safety covers on them.

The purpose, evidence presented, and decision of a grand jury proceeding as compared to that of a jury verdict after a trial are 2 different things.  The jury indeed found the driver 75% at fault.  Just because he wasn't a party at the time of trial that they didn't necessarily (not) pursue him, right?  You realize that Malibu could have argued rental shop was responsible too, right?  (I am deducing that because driver was not a party but was included on the verdict form that someone linked).  You realize that the parents could have already pursued the rental marina, right?  You realize that after 2.5 weeks of evidence that the jury knows a little more than both of us about what happened during the design of that boat, and on the day of the accident, right?  

No they won't.  Based on that nonsensical scenario, and your statement that "Lawyers and judges have created a situation where everybody is a victim and somebody has to pay", which is  inaccurate, its pretty clear that you don't understand the basics.  But, I won't assume you're here for an education.  But, suffice it to say you're wrong.  The Disney situation was entirely distinguishable.   

You're welcome to that opinion.  The judge and 12 people who spent 2.5 weeks listening disagree with you.

You realize that had Malibu had a sticker on the windshield that provided a maximum capacity or any other limitations this is a non-issue (according to the verdict form), right?  So where exactly was it?  Certainly wasn't "covering" anything.

Edited September 15, 2021 by 85 Barefoot

[Michigan boarder]

1 hour ago, 85 Barefoot said:

You realize that had Malibu had a sticker on the windshield that provided a maximum capacity or any other limitations this is a non-issue (according to the verdict form), right?  So where exactly was it?  Certainly wasn't "covering" anything.

I think that's the whole point here.  Would the sticker have made any difference?  I would argue no, the driver still would have behaved the same way and the tragedy still would have occured.  So instead, a lawyer does some quick research and sees that there is no sticker and knows that he has it won, and goes for the 200m.  That's the problem.  

[shawndoggy]

2 minutes ago, Michigan boarder said:

I think that's the whole point here.  Would the sticker have made any difference?  I would argue no, the driver still would have behaved the same way and the tragedy still would have occured.  So instead, a lawyer does some quick research and sees that there is no sticker and knows that he has it won, and goes for the 200m.  That's the problem.  

It's not THAT big of a problem... $200M verdicts are exceptionally rare.  

[TallRedRider]

My only comment might be that if the jury trial produced terabytes of information, the jurors sure didn't process all that information either.  The human brain can't do that.  It boils down to the simple facts.

Malibu never tested the bow to see how much weight could safely go there, did not post a weight and did not put a warning to boat renters that when the bow is loaded that someone could fall out and get run over and die.  I am pretty sure that the jurors knew those facts 5 minutes into the trial and a good lawyer reminded them of this in the last 5 minutes of the trial.  The other 2.5 weeks is likely garbage in the jurors' minds, terabytes of it.  In fact, the terabytes of information probably just served to obscure any rational defense. 

 

 

 

[Steve B.]

On 9/2/2021 at 9:54 PM, Chartman said:

On August 28, 2021, the jury rejected the Plaintiffs’ design defect claims and found that the driver

It all comes down to jury instructions. Huge missing link here for an informed take on why this or any jury finds the way they do, and the values they assign within those instructions.

Steve B.

[Wcl]

Cant wait for the stickers all over my boat that say this " when the bow is loaded that someone could fall out and get run over and die."  Lot of trial lawyers on this forum.  They provided me the useless gas cans that spill more gas per gallon than every can i used my entire childhood.  Give me a break

[Wcl]

11 hours ago, BigCreek said:

An unfortunate incident happened here at Norris Lake the other evening. Two college aged kids were standing in the bow of a MasterCraft while underway. The boat hit a wake and both were ejected and run over by the boat. One had significant prop vs body injuries, the other was fine. The boat driver picked up a couple of charges, including underage consumption of alcohol. 

Does this mean that we need a 6-foot fence around the bow on all boats so that this cannot happen again? Should alcohol be banned in the United States so this underage driver/drinker cannot commit such an act of idiocy again? How much should MasterCraft have to pay because this kid got hurt?

Or, does it mean that sometimes, people do stupid things, and people get hurt because of it. Nobody needs paid $200M because that boat was being used in a way that it is not designed to be used.

Nobody would think it would be fun to do any of the idiocy people do in a boat when riding in a car. For some reason, people feel bulletproof in a boat, as if nothing bad could possibly happen. It's a shame that people get hurt, or drown due to carbon monoxide poisoning. This is not the fault of the company building the boat. This is the fault of the undereducated. Some people are just too stupid to know the risks they are taking, and occasionally, someone dies because of it. 

Recently on our lake someone ran a boat aground on a sandbar, outside of channel markers, someone was thrown out of bow, not hurt thankfully,  damage to boat 15k, they are suing the rental resort bc they dont want to pay 15k, say they were not instructed in sand bars outside of channel.  Ru kidding me you run outside of channel markers, full speed, hid a sandbar, wreck a malibu and sue.  People need to get a grip.  Play stupid games, win stupid prizes.  Own your stupid actions.  Not trying to diminish tragedy, but own your s***. 

[85 Barefoot]

On 9/7/2021 at 7:03 PM, Michigan boarder said:

I think that's the whole point here.  Would the sticker have made any difference?  I would argue no, the driver still would have behaved the same way and the tragedy still would have occured.  So instead, a lawyer does some quick research and sees that there is no sticker and knows that he has it won, and goes for the 200m.  That's the problem.  

I have more faith in humanity than you apparently.  People here argue about how far under towing capacity limits a “safe” tow rig is.  Back in the day people were warned about max speed with the wedge down.  The newbies here likely don't even know what I'm referring to.  People are warned about max capacities in their boats and they’re followed.  Yet you’re essentially saying that a sober adult would disregard a warning that only so much weight should be in the bow, and knowingly put his child relatives at risk.  I don’t buy it.

Quick research?  Accident was 7 years ago.  They gambled many years of work and major expenses to possibly recoup nothing.  I bet they were prepared for no verdict against Malibu.  But, its a high risk high reward framework for the best of the best product attorneys.  Either way, it ain’t up to them anyway.  A jury of Georgia citizens listened to what they did for 2.5 weeks and after assessing it, decided that this was appropriate.  Unlike you, I have no “problem” with the legal system we are fortunate to have, anomalies, warts, and all.  I’m not even saying I agree with the verdict, but I do respect it and don’t see a “problem” just because a big verdict was rendered by 12 people who know far more about the evidence than I.

Edited September 15, 2021 by 85 Barefoot

[Chartman]

1 hour ago, Steve B. said:

It all comes down to jury instructions. Huge missing link here for an informed take on why this or any jury finds the way they do, and the values they assign within those instructions.

Steve B.

Not the jury instructions, but the the actual verdict as read is on Lawdotcom which includes three pages of  various questions the jury was instructed to answer with the Jury's handwritten answers, plus the typed up version as well. 

[Michigan boarder]

2 hours ago, 85 Barefoot said:

I have more faith in humanity than you apparently.  People here argue about how far under towing capacity limits a “safe” tow rig is.  BAck in the day people were warned about max speed with the wedge down.  People are warned about max capacities in their boats and they’re followed.  Yet you’re essentially taking the position that a sober adult would disregard a warning that only so much weight should be in the bow, and knowingly put his child relatives at risk.  I don’t buy it.

Quick research?  Accident was 7 years ago.  They gambled many years of work and major expenses to possibly recoup nothing.  I would predict they were prepared for no verdict against Malibu.  But, its a high risk high reward framework for the best of the best product attorneys.  Either way, it ain’t up to them anyway.  A jury of Georgia citizens listened to what they did for 2.5 weeks and after assessing it, decided that this was appropriate.  Unlike you, I have no “problem” with the legal system we are fortunate to have, anomalies, warts, and all.  I’m not even saying I agree with the verdict, but I do respect it and don’t see a “problem” just because a big verdict was rendered by 12 people who know far more about the evidence than I.

Fair enough. Hypothetically and for arguments sake, because really that's all we are doing here, what if someone was sitting on the gunnel and fell off and was injured.  Is it the same thing?  Do we need big signs on the gunnels too?  Or what if they hit a big wave while the passenger was kneeling and facing forward on the spotters seat and their face impacted the windshield, should there be a big sign on the windshield that says not to do that?  With the logic that was presented and won the case, either of those injuries (although I'm sure not as severe) would still result in a negligence verdict for the plaintiff, wouldn't it?  And I'm not questioning the faith in humanity, I'm saying that the lawyers targeted what they knew would pay off.  Do we need a sticker on a wakeboard that says face plants may result in concussions?  Or on a wakesurf board that says submerging the board may result in an abrupt resurfacing of the board into a person's face?  Now that I think of it, are there signs on other boat manufacturers that limit the weight or occupants of a bow (honest question)?

[justgary]

2 hours ago, Wcl said:

They provided me the useless gas cans that spill more gas per gallon than every can i used my entire childhood.  Give me a break

Don't forget to mention that you can't drive your riding mower with two hands on the wheel or even back up with the blade spinning.  Lawyers think that driving your mower with one hand on the wheel and one hand on the "go" lever is better.  It also has so many safety interlocks that it won't start anyway.  Good thing, I guess, since the gas can safety cap poured gas all over the ground.

Honestly, I'm sick of having to use stuff designed by lawyers.

[85 Barefoot]

On 9/7/2021 at 11:54 PM, Michigan boarder said:

Fair enough. Hypothetically and for arguments sake, because really that's all we are doing here, what if someone was sitting on the gunnel and fell off and was injured.  Is it the same thing?  Do we need big signs on the gunnels too?  Or what if they hit a big wave while the passenger was kneeling and facing forward on the spotters seat and their face impacted the windshield, should there be a big sign on the windshield that says not to do that?  With the logic that was presented and won the case, either of those injuries (although I'm sure not as severe) would still result in a negligence verdict for the plaintiff, wouldn't it?  And I'm not questioning the faith in humanity, I'm saying that the lawyers targeted what they knew would pay off.  Do we need a sticker on a wakeboard that says face plants may result in concussions?  Or on a wakesurf board that says submerging the board may result in an abrupt resurfacing of the board into a person's face?  Now that I think of it, are there signs on other boat manufacturers that limit the weight or occupants of a bow (honest question)?

No, they wouldn't.  This verdict doesn't say every injury in a boat is a manufacturer's fault, doesn't say people can't assume risks, nor that drivers are no longer responsible for things that happen when they're the captain.

As to other manufacturers and their bow weight capacities, yes they do...in fact, Malibu does!  At least one Malibu representative testified they started testing and warning about bow weight limitations after the verdict against Mastercraft.  My last several new Malibus all provide a bow capacity both in terms of persons and weight.

Edited September 15, 2021 by 85 Barefoot

[kskonn]

Out of curiosity, does the fact that Malibu had already changed their product to warn users about bow weight restrictions help or hurt them? I am assuming that most jurors would see that as an admission of a problem? I am guessing the only way Malibu could have eliminated this liability would have been to retroactively test out of production models and then provide a warning label to all individuals who have that model registered to them. I wonder if Malibu ever did that in regards to this issue, or if they will going forward.

[hunter77ah]

9 minutes ago, kskonn said:

Out of curiosity, does the fact that Malibu had already changed their product to warn users about bow weight restrictions help or hurt them? I am assuming that most jurors would see that as an admission of a problem? I am guessing the only way Malibu could have eliminated this liability would have been to retroactively test out of production models and then provide a warning label to all individuals who have that model registered to them. I wonder if Malibu ever did that in regards to this issue, or if they will going forward.

The updated warning "technically" can't be held against them.

[TicTac]

On 9/7/2021 at 10:43 AM, DUKENO1 said:

And Mcdonalds coffee will burn you if you spill it in your lap

I'd be surprised if that's true today. Because the famous McDonald's spilled coffee lawsuit has changed the way McDonald's prepares and serves coffee.

https://www.deshawlaw.com/blog/the-real-facts-of-the-mcdonalds-coffee-case

 

Quote

McDonald’s admitted during discovery that, based on a consultant’s advice, it held its coffee at between 180 and 190 degrees Fahrenheit to ensure that it would still be hot once a person had driven several miles to work before drinking it. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

McDonald’s quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonald’s coffee, at the temperature at which it was poured into Styrofoam cups, was not fit to drink because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonald’s had no intention of reducing the “holding temperature” of its coffee.

Stella Lieback’s expert witness, a scholar in thermodynamics as applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds. Other testimony showed that as the temperature decreases toward 155 degrees, the extent of the burn relative to that temperature decreases exponentially. Thus, if Liebeck’s spill had involved coffee at 155 degrees, the liquid would have cooled and given her time to avoid a serious burn.

 

More recently, Polaris has some product design issues that have generated lawsuits. "Newsflash, gasoline burns!" Is that a fair dismissal of product liability for RZR fires? https://www.nytimes.com/2019/09/06/business/polaris-rzr-fires.html

We want trailers that don't flip while driving down the highway at 70mph. And engines that won't spontaneously catch on fire. And hulls that don't suddenly spring leaks and drown our kids. The threat of an expensive lawsuit is wonderful justification for spending money on quality assurance testing. It's an imperfect system. And the fact that we're all contentedly driving around propeller driven, liquid explosive powered watercraft is some evidence for how the system is functioning.

[85 Barefoot]

49 minutes ago, TicTac said:

I'd be surprised if that's true today. Because the famous McDonald's spilled coffee lawsuit has changed the way McDonald's prepares and serves coffee.

https://www.deshawlaw.com/blog/the-real-facts-of-the-mcdonalds-coffee-case

Not to mention McDonalds had like 800 written reports of burn victims.  And they served it well-above industry standard.  And plaintiff required major skin grafting to her thighs and genitals.  And the national response is to laugh at the hot liquid warning on their cups now.  

[vaporbluebu]

11 minutes ago, 85 Barefoot said:

Not to mention McDonalds had like 800 written reports of burn victims.  And they served it well-above industry standard.  And plaintiff required major skin grafting to her thighs and genitals.  And the national response is to laugh at the hot liquid warning on their cups now.  

I was one of those people laughing until I saw the documentary…I’m not laughing anymore. That was horrible!

[Chartman]

19 hours ago, Michigan boarder said:

Fair enough. .... Now that I think of it, are there signs on other boat manufacturers that limit the weight or occupants of a bow (honest question)?

One of the inspirations behind the Malibu Response LX (playpen open bow Response) was Correct Craft's Nautique with an open playpen bow. The boat in the recent Malibu verdict was a 2000 model year Response LX. Attaching a photo of a 1992 Correct Craft Nautique I downloaded today (8 September 2021) off Boat Trader. I marked the bow label and attached a copy of the text of the warning from the operators manual. You can see Correct Craft was warning at least 8 years before the vessel in the current case was built.   gary

[Wcl]

On 9/7/2021 at 7:35 AM, BigCreek said:

An unfortunate incident happened here at Norris Lake the other evening. Two college aged kids were standing in the bow of a MasterCraft while underway. The boat hit a wake and both were ejected and run over by the boat. One had significant prop vs body injuries, the other was fine. The boat driver picked up a couple of charges, including underage consumption of alcohol. 

Does this mean that we need a 6-foot fence around the bow on all boats so that this cannot happen again? Should alcohol be banned in the United States so this underage driver/drinker cannot commit such an act of idiocy again? How much should MasterCraft have to pay because this kid got hurt?

Or, does it mean that sometimes, people do stupid things, and people get hurt because of it. Nobody needs paid $200M because that boat was being used in a way that it is not designed to be used.

Nobody would think it would be fun to do any of the idiocy people do in a boat when riding in a car. For some reason, people feel bulletproof in a boat, as if nothing bad could possibly happen. It's a shame that people get hurt, or drown due to carbon monoxide poisoning. This is not the fault of the company building the boat. This is the fault of the undereducated. Some people are just too stupid to know the risks they are taking, and occasionally, someone dies because of it. 

Recently on our lake someone ran a boat aground on a sandbar, outside of channel markers, someone was thrown out of bow, not hurt thankfully,  damage to boat 15k, they are suing the rental resort bc they dont want to pay 15k, say they were not instructed in sand bars outside of channel.  Ru kidding me you run outside of channel markers, full speed, hid a sandbar, wreck a malibu and sue.  People need to get a grip.  Play stupid games, win stupid prizes.  Own your stupid actions.  Not trying to diminish tragedy, but own your s***. 

[Wcl]

Thank god for the "system"

[Chartman]

7 hours ago, kskonn said:

Out of curiosity, does the fact that Malibu had already changed their product to warn users about bow weight restrictions help or hurt them? I am assuming that most jurors would see that as an admission of a problem? I am guessing the only way Malibu could have eliminated this liability would have been to retroactively test out of production models and then provide a warning label to all individuals who have that model registered to them. I wonder if Malibu ever did that in regards to this issue, or if they will going forward.

The Response LX was not out of production when the entire towboat industry became greatly concerned out about the need to do something to reduce their risk in 2012 following the Robert Bell vs. MasterCraft verdict of thirty million dollars. That award called a lot of attention to  instances like the one in the currently Malibu case both in terms of water over the bow and in terms of new boat models based on significant changes to prior ones not always being rigorously tested.