Batchelder vs. Malibu case SEC filing

[ahopkins22LSV]

13 hours ago, Ronnie said:

Just an FYI  

This Malibu Crew forum has from day one never been supported, owned, run, taken suggestions on how to run or otherwise been associated with Malibu Boats. It is a user owned and supported website. 

 

5 minutes ago, BigCreek said:

I always thought that this forum has no real affiliation with Malibu Boats, Inc. 

it doesn’t. They may monitor it but nothing official. Completely run by volunteers 

[REHinH20]

14 hours ago, tksport said:

There was no alchohol and the captain had 40+ years of experience and owned numerous boats.  You have no facts.

I have to agree with @justgary here.  It did not take me 40 years to recognize that children don't need to be unsupervised in the bow of ANY boat.  Nor do I take the boat "around in circles" deciding where to go!  Even the Tube pullers recognize what happens when a boat goes in a circle!!  I do agree this was a terrible tragedy, but it seems UNUSUALLY fishy that someone jumps on this site (NOT AFFILIATED with Malibu and starts throwing "facts" around.

[hunter77ah]

These "tricks" are fun until someone gets hurt.  Have to wonder if this case involved something similar.

Regardless, still feel bad for the family and the poor kid didn't make it.

Edited September 10, 2021 by hunter77ah

[Jhucke]

15 hours ago, tksport said:

Here are some facts:

Ryan didn’t have to die.

The family was conflicted as they wanted MORE MONEY

Fixed that for you.

RIP Ryan, terrible tragedy. 

Edited September 10, 2021 by Jhucke

[Michigan boarder]

16 hours ago, tksport said:

The kids would not have been on the bow. You have no facts.

I was speculating based on experience.  I'm impressed that you can run factual (yet hypothetical) scenarios so well and be so certain.

[Michigan boarder]

16 hours ago, tksport said:

 

No one saw it, but he was washed out of the boat on top of a floating seat cushion. He washed out the left side, where it was impossible for the driver to see him. In an attempt to prevent the boat from submarining further, the driver put the boat into reverse for 1-2 seconds to pull the boat out of the dive. The maneuver worked, and the boat popped back up to the surface. The bow seating area was completely filled with water and the cockpit was filled with about 2 feet of water. 

 

That is operator error.  It's not a big area to look at, and the operator should be able to see who is in that area at 4-7mph and who is not.  

I agree it's a tragedy.  I have a son named Ryan and know exactly what he was like at 7 years old, so I get it. 

[justgary]

6 hours ago, hunter77ah said:

Have to wonder if this case involved something similar.

This is a very good point.  I can see how somebody could float out on a cushion and not be noticed by the driver... who, by the way, only hit reverse for one to two seconds.

The truth is seemingly unimportant to our legal system.  No wonder since truth comes in so many colors.

I saw a billboard ad for a lawyer today that claimed that he had "recovered millions" for his customers.  As if they had actually lost money, not something more irreplaceable.  I guess the thing that gets me about lawyers is they seem to always operate without risk to themselves or their businesses, yet everybody else is clearly at risk when they are at work.

[Chartman]

19 hours ago, tksport said:

I’m familiar with this case 

Here are some facts:

- There is a federal database of boating incidents involving injury or death called the BARD database. Anyone can see how boats are performing in the real world and whether they have problems. Malibu never looked. Had they looked, they would have seen about 80+ incidents involving bow swamping or capsizing. 

- Several years before this incident, an incredibly similar incident happened in Ohio with a variation of this same boat. It was so similar, that it was even another 4 year-old kid in a life jacket was wrapped around the propeller under eerily similar circumstances. This incident was in the BARD database and was posted several times on the Malibu Crew website: a web forum that Malibu set up for their users to interact. Malibu claims it never knew of this, and that they saw it for the first time when we showed it to them. Ryan's mom found it using a complicated and sophisticated tool called Google.  

Malibu even filed a Motion in Limine to "Exclude Mention of; Reference to, Argument of Malibu's Alleged Failure to Review BARD Database" on  May 1, 2020. They were asking the Judge to prevent the Plaintiff (family) from bringing up that Malibu did not review the BARD database.

In that motion, Malibu wrote, "Lastly, Plaintiffs attempt to portray the information as readily available at anytime. Plaintiffs are well aware of the fact that in order to obtain information from BARD a request for documentation must be made to the BARD database and an individual with the Coast Guard database provides the responsive documentation within a period of time."

Malibu is saying the only way you can obtain information from BARD is to request it from the database and somebody with the Coast Guard provides the info within a period of time. 

The annual BARD Databases from 1969 to present are on the computer I am typing on right now. If I query the database (ask it a question) the result is furnished faster than I can see it happen on the screen! I don't have to wait for somebody with the Coast Guard to do anything. It is true however, that if you want to search accidents withheld from the database in some states from some years due to privacy reasons, you do have to ask for USCG assistance. 

A high level Malibu executive said they had thousands of boats out there without an incident, tens of thousands of drivers, millions of hours. Then he was pressed on their potentially being Malibu Boat accidents in the BARD database during his deposition on 26 April 2017:
Question: "So all I want to know is, and your belief is that if you looked in the database there would be nothing there? 
Answer "That would be my belief."

He was saying he did not think a single Malibu boat had ever been involved in a BARD reported accident. (now days BARD reported accidents must have injury beyond first aid, death, person disappears from vessel under circumstances indicating death or injury, vessel and or property damage of $2,000 or more, or complete loss of vessel, )

There are over 1,200 BARD reported accidents involving Malibu boats from 2000 through most of 2016, including many swampings. Over half of them are in Public BARD. Over 60 percent of the rest of them are in the State of California. 

So a major Malibu executive thinks they have not had a single accident reported to BARD, and over 1,200 of them were reported from 2000 thru part of 2016. 

*************

Some were asking how Malibu could find current owners of older boats to put warnings on them.

The Malibu Crew can be used to do that. For example for quite a while including in February 2020 a "sticky message" was near the top of  TMC's Malibu Boats - General Discussion Area providing info on a  2019 Malibu Boats recall. It is titled, "2019 Malibu Boats Recall, Non Operational" by bbattiste247 this was a post by a member, but was made "sticky" so it stayed near the top for a long time so everybody could see info on the recall on a gasket on the fuel pump regulator. This showed how Malibu could use the forum if they wished to notify owners of older vessels.

******************

The Ohio accident referenced by tksport appeared in CorrectCraftFan (a Correct Craft forum) 15 August 2007 (see image below), the Dayton Daily News 12 August, 13 August, 14 August 2007, The Columbus Dispatch 15 August 2007 front page leading story, Springfield News Sun 14 August 2007 front page, The Journal News (Hamilton Ohio) 13 August 2007, WHIOTV7 13 August 2007, Xenia Daily Gazzette 13 August 2007 front page, and some other outlets.  The Correct Craft document is at the end of this post.

As others mentioned later, The Malibu Crew is an independent publication. 

 

gary

[Stevo]

46 minutes ago, Chartman said:

Malibu even filed a Motion in Limine to "Exclude Mention of; Reference to, Argument of Malibu's Alleged Failure to Review BARD Database" on  May 1, 2020. They were asking the Judge to prevent the Plaintiff (family) from bringing up that Malibu did not review the BARD database.

In that motion, Malibu wrote, "Lastly, Plaintiffs attempt to portray the information as readily available at anytime. Plaintiffs are well aware of the fact that in order to obtain information from BARD a request for documentation must be made to the BARD database and an individual with the Coast Guard database provides the responsive documentation within a period of time."

Malibu is saying the only way you can obtain information from BARD is to request it from the database and somebody with the Coast Guard provides the info within a period of time. 

The annual BARD Databases from 1969 to present are on the computer I am typing on right now. If I query the database (ask it a question) the result is furnished faster than I can see it happen on the screen! I don't have to wait for somebody with the Coast Guard to do anything. It is true however, that if you want to search accidents withheld from the database in some states from some years due to privacy reasons, you do have to ask for USCG assistance. 

A high level Malibu executive said they had thousands of boats out there without an incident, tens of thousands of drivers, millions of hours. Then he was pressed on their potentially being Malibu Boat accidents in the BARD database during his deposition on 26 April 2017:
Question: "So all I want to know is, and your belief is that if you looked in the database there would be nothing there? 
Answer "That would be my belief."

He was saying he did not think a single Malibu boat had ever been involved in a BARD reported accident. (now days BARD reported accidents must have injury beyond first aid, death, person disappears from vessel under circumstances indicating death or injury, vessel and or property damage of $2,000 or more, or complete loss of vessel, )

There are over 1,200 BARD reported accidents involving Malibu boats from 2000 through most of 2016, including many swampings. Over half of them are in Public BARD. Over 60 percent of the rest of them are in the State of California. 

So a major Malibu executive thinks they have not had a single accident reported to BARD, and over 1,200 of them were reported from 2000 thru part of 2016. 

*************

Some were asking how Malibu could find current owners of older boats to put warnings on them.

The Malibu Crew can be used to do that. For example for quite a while including in February 2020 a "sticky message" was near the top of  TMC's Malibu Boats - General Discussion Area providing info on a  2019 Malibu Boats recall. It is titled, "2019 Malibu Boats Recall, Non Operational" by bbattiste247 this was a post by a member, but was made "sticky" so it stayed near the top for a long time so everybody could see info on the recall on a gasket on the fuel pump regulator. This showed how Malibu could use the forum if they wished to notify owners of older vessels.

******************

The Ohio accident referenced by tksport appeared in CorrectCraftFan (a Correct Craft forum) 15 August 2007 (see image below), the Dayton Daily News 12 August, 13 August, 14 August 2007, The Columbus Dispatch 15 August 2007 front page leading story, Springfield News Sun 14 August 2007 front page, The Journal News (Hamilton Ohio) 13 August 2007, WHIOTV7 13 August 2007, Xenia Daily Gazzette 13 August 2007 front page, and some other outlets.  The Correct Craft document is at the end of this post.

As others mentioned later, The Malibu Crew is an independent publication. 

 

gary

1200 incidents in 16yrs 

there are roughly 6k boats produced per year, some one do the math on that for me .

does the 1200 number of incidents include accidents involving alcohol???

[Chartman]

1 hour ago, Stevo said:

1200 incidents in 16yrs 

there are roughly 6k boats produced per year, some one do the math on that for me .

does the 1200 number of incidents include accidents involving alcohol???

If you want to get into closer to actual numbers, page 13 of the 2020 U.S. Coast Guard Boating Statistics publication which is based on the annual BARD data cites a USCG funded study which found 93 percent of non-fatal, non-hospital admitted injuries were not captured in BARD

The amount of under reporting has been debated for decades. USCG suggested only 10 percent of accidents were reported for many years.

If you want to be generous and say 30 percent of Malibu's accidents were reported during that period the number of accidents would be approaching 4,000.

The purpose of the post was to point out that a very high level executive at Malibu thought there would not be a single accident in BARD there were over 1,200. Malibu had no process or program in place to monitor the safety of their boats after they left the plant.

[Chartman]

Malibu sort of filed for an Appeal

Malibu filed for JNOV (Judgement Not Withstanding the Verdict) or a new trial in the Batchelder case. They focus on their claim that Malibu Boats is not a successor to Malibu Boats West, Inc. and list 28 addition reasons.

No supporting materials are attached to their motion. 

Malibu reserves the right to add supporting materials after the trial transcript becomes available. 

About 15 of the points are mentioned in the most recent post on our website. Or you can read the from PeachCourt for about 50 cents a page along with hundreds of other documents on this case. Look in Rabun County Superior Court for Batchelder.

gary

 

 

 

[justgary]

15 minutes ago, Chartman said:

The purpose of the post was to point out that a very high level executive at Malibu thought there would not be a single accident in BARD there were over 1,200. Malibu had no process or program in place to monitor the safety of their boats after they left the plant.

You do recall that the executive is from "Malibu East" and the boat was built by a different company ("Malibu West"), right?  I am not sure what each executive from the new company should know about the old company, but I would assume that they also have new company business to attend to.

It must be great to be able to pick and choose the facts that only help your side.

Honestly, as a business owner this whole thing scares me to death.  I can do my best to create a product and satisfy demand, grow the business, and then get my teeth sued out of me by some "creative" lawyer after some freak incident.  It doesn't matter that I can only afford to pay myself, I'm supposed to somehow have the backing of many different professions to save me from certain doom. 

The lawyer doesn't have any skin in the game and can shoot the moon with every case, while I struggle to find a lawyer I can afford to defend myself.  It's the ancient Chinese curse: "May you be involved in a lawsuit in which you are right."

 

[IXFE]

23 hours ago, Stevo said:

@tksport joins an hour ago , comes in hot right to this thread and speaks with authority with no established community credibility. 
 

hmmmmm…. 
 

@Chartman has a total of NINE posts, ALL of them on this topic, and EIGHT of them in this thread HE started. Hmmm… 

Smells like somebody’s got an agenda, can’t put my finger on it. But the more you post the more I see flaws the more you lose credibility.

To the REAL legal professionals who are and have been contributing members to this community (you know who you are), I greatly value your respective input on this topic.  

RIP Ryan (and the 13 soldiers we lost last week who’s families won’t get $200m) 

[jjackkrash]

9 hours ago, justgary said:

 

The lawyer doesn't have any skin in the game and can shoot the moon with every case

 

You can think what you want about the merits of the case or the system, but this is simply false. Trial stakes are huge for plaintiffs' lawyers if it is a contingent-fee case; the lawyers have literally all the skin in the game.

One zero verdict can break a firm--even a successful firm.  Experts can cost hundreds of thousands of dollars per case and those fees are fronted by the lawyers; depositions cost 10s of thousands of dollars per case and those fees are fronted by the lawyers; not to mention thousands of hours of lawyer and paralegal time and overhead and staff salaries to pay for the years leading up to trial; and endless appeals even if you hit a big verdict.  Some lawyers need to resort to hard-money lenders and 20% interest rates to finance a big case that won't settle and have to bet all their personal assets as collateral.  

Big trials are seriously high stakes affairs.  Almost every case that goes to trial involves one side that has seriously miscalculated the risk and exposure and strength of their case.  And, this case isn't over.  There is still plenty of opportunities for a zero, especially if Malibu is right about the successor liability issue on appeal.    

 

Edited September 11, 2021 by jjackkrash

[IXFE]

2 hours ago, Stevo said:

1200 incidents in 16yrs 

there are roughly 6k boats produced per year, some one do the math on that for me .

I’m your huckleberry…

Today Malibu/Axis production is about 5,000 per year. But back in 2000 it was closer to 2,000 / year. So over the period 2000 - 2016 let’s say the average annual volume was 3,000. 

Multiply that by 16 years you get a total of 48,000 boats produced. 

If 1,200 reported accidents are 10% of total accidents (per USCG), then actual accidents were really 12,000

12,000 / 48,000 = 1 in every 4 boats suffered a major incident involving serious injury, death, major damage, or total loss. 

Hmmm… 

[tksport]

22 hours ago, justgary said:

Don't get me wrong, I think that this case is tragic.  I believe in attempting to make an injured party whole when possible.  But the concept of an enormous "punitive damage" award for not mailing letters to previous buyers is ridiculous.

By the way, I bought my boat used; how would Malibu find me if they wanted to warn me about something?

The question is why did the jury award that?  Punitive damages have a higher burden of proof.  It seems they found the actions or lack of actions after numerous warnings egregious.  Regarding how would they find you?  The dealers may not reach every new owner...but they did not try to reach even 1.  It would be nice to think that corporations would do the right thing without regulation or litigation  Do you not expect the potentially dangerous products you you use in the United States to have undergone testing?  

[Ronnie]

My question is, why are these two new guys here spouting all this? What’s in it for them. Are these attorneys for the case. What are they looking for here? Ammo for the appeal? What is it guys?

@Chartman

@tksport

 

[justgary]

4 minutes ago, Ronnie said:

My question is, why are these two new guys here spouting all this? What’s in it for them. Are these attorneys for the case. What are they looking for here? Ammo for the appeal? What is it guys?

@Chartman

@tksport

 

They both thought this site is sponsored/hosted/moderated by the evil Malibu company.  I think their distorted facts and attempts at libeling Malibu is actionable....

[wakesonthesnake]

1 hour ago, justgary said:

Honestly, as a business owner this whole thing scares me to death.  I can do my best to create a product and satisfy demand, grow the business, and then get my teeth sued out of me by some "creative" lawyer after some freak incident.  It doesn't matter that I can only afford to pay myself, I'm supposed to somehow have the backing of many different professions to save me from certain doom. 

 

1 hour ago, jjackkrash said:

Some lawyers need to resort to hard-money lenders and 20% interest rates to to finance a big case that won't settle or they have to bet all their personal assets as collateral.  

The difference is the law firm does not have to take that kind of business, there is plenty of work without swinging for the fences.  I too think about this as a small business owner.  This will not sink Malibu but many small businesses have been sunk by slip and falls and the sorts.   

[justgary]

22 minutes ago, wakesonthesnake said:

 

The difference is the law firm does not have to take that kind of business, there is plenty of work without swinging for the fences.  I too think about this as a small business owner.  This will not sink Malibu but many small businesses have been sunk by slip and falls and the sorts.   

I wasn't even worried about a slip; I have general liability coverage for that.  Product liability is the big worry, because you can't forsee how somebody might misuse your product and then become a "victim" because their misuse is somehow your fault.

[IXFE]

7 hours ago, wakesonthesnake said:

This will not sink Malibu but many small businesses have been sunk by slip and falls and the sorts.   

We don’t know the ultimate outcome of this, and I’m sure it will take years to achieve. But let’s not be flippant about $200M. To put it in perspective, that’s almost 2x MBUU’s annual net income (aka profit).

Edited September 11, 2021 by IXFE

[wakesonthesnake]

So true, I was thinking how many boats they would have to sell to make that up.  I am sure it would be in the tens of thousands.  I am sure that amount would be more than the sales of all the boats with the play pen by far.   

[JohnBrabant]

I am just glad that this information is being put on the Crew site, discussed and debated.  It also is instructive to people who may have just acquired one of the models that is subject to bow swamping, that they need to proceed with all due caution with weight in the bow, or put ballast in the stern if they plan to have people up front.

[shawndoggy]

8 hours ago, justgary said:

You do recall that the executive is from "Malibu East" and the boat was built by a different company ("Malibu West"), right?  I am not sure what each executive from the new company should know about the old company, but I would assume that they also have new company business to attend to.

It must be great to be able to pick and choose the facts that only help your side.

Honestly, as a business owner this whole thing scares me to death.  I can do my best to create a product and satisfy demand, grow the business, and then get my teeth sued out of me by some "creative" lawyer after some freak incident.  It doesn't matter that I can only afford to pay myself, I'm supposed to somehow have the backing of many different professions to save me from certain doom. 

The lawyer doesn't have any skin in the game and can shoot the moon with every case, while I struggle to find a lawyer I can afford to defend myself.  It's the ancient Chinese curse: "May you be involved in a lawsuit in which you are right."

 

I wrote before but I'll reiterate here that the successor liability question is pretty interesting here.  On the one hand I get it -- "that was them not us," but on the other hand what did "new" Malibu do to distinguish itself to the consumer from the "old" Malibu (this is way before my time, so I have no idea)?  For those who blame the lawyers, should a legal maneuver like a reincorporation or an asset sale allow an ongoing enterprise avoid past liability (especially for a product that the successor entity continues to manufacture)?  It's not like the successor entity just acquired a building and a bunch of fiberglass... they continued to make the same boats as the predecessor.  If that worked every time, seems to me that you could see it become a regular part of corporate / business planning, especially for businesses that manufacture products with a greater than negligible potential for death ....

As for picking and choosing the facts, it's not like Malibu wasn't represented here.  That's how our (imperfect) justice system works... both sides get to make their cases and a jury of our peers gets to decide what's true.  It's messy, but until my plan to be appointed as the emperor of the universe are realized, it's the best we've got. 

If your insurance policy isn't covering the cost of your legal defense, you might be buying the wrong insurance @justgary.  Many policies would cover hiring a lawyer to defend you.  And unlike that example, here you've got a NASDAQ listed public company that does hundreds of millions in revenue a year vs. some PI attorneys who almost certainly took the case on a contingency basis.  I don't know anything about this case but it sure seems to me that Malibu had to have been well represented.  The plaintiff's side is definitely the little guy here.  How much do you figure was invested in plaintiff's legal fees before they even got the chance to depose the engineering guy who (apparently) said that they just cut a hole in the bow and called it a day?  Had to be six figures at least?

[shawndoggy]

9 minutes ago, JohnBrabant said:

I am just glad that this information is being put on the Crew site, discussed and debated.  It also is instructive to people who may have just acquired one of the models that is subject to bow swamping, that they need to proceed with all due caution with weight in the bow, or put ballast in the stern if they plan to have people up front.

100%.  I'm kindof embarrassed to admit that last weekend we had a larger group of friends out with us, so I had a bunch of people to get through.  We had a teen behind the boat wakeboarding and I new that the next person up would be surfing.  I figured I'd get ahead of the game by filling the center and bow ballast while I was pulling the wakeboarder.  If course as soon as I came off plane, another boat's roller was staring us down and the bow was real heavy with one guest up there too.  I took a pretty good splash over the bow (10-15 gallons, probably), on a boat with like 3x the freeboard of a rlx.  

Dumb (!!!!) mistake that we all laughed about 30 seconds later.  But when I read the posts about this case I can totally sympathize with how a fun day on the water can turn to tragedy in a split second.   Definitely a wakeup call to stay on my toes.