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Batchelder vs. Malibu case SEC filing


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  • justgary

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@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 y

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 supp

Quoting myself… let me try this a different way.  Today MBUU has $41M cash in the bank. Let that sink in @shawndoggy. Just because a company is a “NASDAQ listed public company” doesn’t mean they

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I’ve been around boats and boating my whole life. I’ve seen everything from my smallest personal canoe to a 90 foot motorsailer I helped crew take on water. And mind you the 90 ft. Choey Lee bow is 30 feet above the waterline. Spectacular site seeing those waves breaking over that bow but that another story. Point being is we choose to engage in the activities we do and therefor accept the risks associated with it. Unfortunately and tragic yes sometimes accidents happens and so sad. Ultimately in the end though it’s the owner/operator/consumer/users responsibility to educate themselves and discipline themselves to mitigate those risks. Just my opinion.

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1 hour ago, Chartman said:

It is no secret who I am. I am Gary Polson of PropellerSafety.com / Polson Enterprises.  I have already stated multiple times in this forum I am with PropellerSafety.com . I signed the post that started this thread as "Gary Polson" and have signed most or all the rest of them as Gary.  If you go to PropellerSafety.com you will see it is ran by Gary Polson. No secrets here.

I am not an attorney. In our PS post about the $200 million award which we directed viewers here to,  I openly state I was an expert in this case.

As to my interest - below is a direct quote from the Plaintiff's Expert Witness Disclosures filed with the Superior Court of Rabun County State of Georgia on 31 October 2019 pertaining to what I would be testifying about:

"Subject Matter: Accident Data Availability, BARD (Boat Accident Reporting Database), Prior Similar Accidents, Consumer Field Data, Research, Recalls, Technical Service Bulletins.

Opinion Summary: Mr. Polson may testify regarding industry and publicly available accident data and information, including the U.S. Coast Guard BARD (Boat Accident Report Database), online forums, news media, State boat accident reports, FOIA requests, Social Media, trade journals, public court records, consumer field data, the types of information and searches available, the listing of incidents and data relevant to the issues involved in this case, and the results of searches and other information sources that were also available to the Defendants before and after the sale of the boat and before the subject accident."

**********

As to me being a "new guy" I worked for MerCruiser in the early 1990s when their Scorpion engine came out. I regularly monitored the old usenet rec.boats and rec.sport.waterski newsgroups back then for comments and issues concerning the Scorpion and other MerCruiser products. I was even written up in the 1995 special Internet issue of Soundings. Malibu was regularly monitoring and participating in rec.sport.waterski back then.

I joined TMC in March 2017 as part of my effort to identify accidents similar to the Batchelder accident. I also searched Malibu Boat Owners (MBO) a predecessor of TMC and and Wakeside rides the successor of MBO.

I was been online in the old dial up bulletin boards in the 1980s.

Maybe new to posting here, but have been around here and forums a while. Even boating on The Well if anybody remembers where that was.

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

As to what am I looking for here - the same thing I am over on PropellerSafety.com (abbreviated later as PS) You can read our mission under the About Us tab. No secrets there either.

More specifically at this time (case is over) we hope to raise awareness of the importance of manufacturers using annual BARD databases and other sources as a means of continuous product safety improvement, especially in the area of boat propeller safety. The process is often called Post Sale Monitoring of product safety or Post Sale Surveillance of product safety.

Most boat builders now have extensive safety programs regarding reporting, investigating, and preventing shop floor accidents. Some have big celebrations to recognize so many million many hours without a lost time accident. For example Malibu put out a press release about celebrating three million man hours without incident on July 16, 2019. They even gave away a boat and several $500 gift cards. That is a tremendous accomplishment and we congratulate them for it.

While Malibu and many boat builders have extensive employee safety programs and systems, when many boat builders are asked about similar programs and systems regarding the safety of those using their products all you hear is crickets.

If anybody is interested in using BARD we point them to the large pile of training materials, charts, tips, worksheets and online videos we freely available online on our site (see the "BARD Training" tab in the PS menu). 

As to "other sources "The Malibu Crew" is a great example. Just typing swamped into the TMC search box currently finds 281 results. Yes some of them are for other meaning of the word swamped and some are multiple references to the same instance.
But many of those threads at least raise concerns about swamping. Yes, many of the more recent ones refer to larger wake surfing boats but many still refer to ski boats like the Malibu Response LX. The same goes for searching the TMC for sank, sunk, or sinking. 

Use google to search TheMalibuCrew by entering this search phrase in google including the quotes plus the site part            

"water over the bow" site:themalibucrew.com         

That search currently finds over 350 threads. Not all of them will involve swamping. But boat builders wanting to Continuously Improve the safety of their products can use tools like BARD and forums like TMC to monitor what is going on with their products.

Several threads of the nature of "We sank our 06 Response Lxi with water over the bow" should have raised some eyebrows at Malibu if they were monitoring TMC.

Malibu could have just asked the Coast Guard to supply them an annual list of their BARD reported accidents and typed a few search terms into TMC now and then and gathered valuable product safety information. They did not per their own depositions..

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

In summary - my identity is not a secret, and I hope my goals here are shared by at least some others (raising awareness of how manufacturers can make safer boats by monitoring their boats in the field) while I answer a few questions and help out a little where I can.

Gary Polson

 

That's one down and one to go.

Thanks for the introduction Chartman.

@tksport

 

  • Like 3
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On 9/11/2021 at 2:38 PM, justgary said:

@Chartman- I recognize what you are trying to do, but I can't help but think that you are tilting at windmills.  You can't make a boat completely safe.  Ever.  To attempt to do so might be one thing, but to force others to do so is disingenuous. 

If you think it is possible to build a safe boat, start your company and I'll help you test your designs.  Good luck trying to sell them.

I live in much more fear of injury while being towed behind my boat than of dipping the bow.

He didn’t.  He specifically said:

“In summary - my identity is not a secret, and I hope my goals here are shared by at least some others (raising awareness of how manufacturers can make safer boats by monitoring their boats in the field) while I answer a few questions and help out a little where I can.”

 

Edited by 85 Barefoot
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2 hours ago, wakesonthesnake said:

Mr. Polson, the actions you describe above amount to trolling.  Your handle Chartman is appropriate as you are logging all the cases of seeming accidents related to boats from our comments.  This is a site about Malibu boats and our enjoyment from them.  Your comments seem to fall out of the Terms of Use of this site.

So encouraging Malibu to use The Malibu Crew and the wisdom of its members to make safer boats is bad? 

I am a fan of Malibu Boats as well. Malibu is a great American story, their boats are stylish and exciting, there is an aura around the brand. I like the inventiveness Malibu has been showing with new technologies to shape the wake. Their new digital displays are great. Plus they have a very strong following and kinship among their owners as seen in this forum and elsewhere. I certainly enjoy seeing Malibu boats at boat shows. They look really nice!  I remember the Corvette edition from my days at MerCruiser. Malibu has showed early and continued leadership in using the Internet as a marketing tool.

Just because I am a fan of Malibu Boats does not mean the company should not look in the U.S. Coast Guard Boating Accident Report Database (BARD) and learn from what they find.

 

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wakesonthesnake
6 hours ago, Chartman said:

So encouraging Malibu to use The Malibu Crew and the wisdom of its members to make safer boats is bad? 

I am a fan of Malibu Boats as well. Malibu is a great American story, their boats are stylish and exciting, there is an aura around the brand. I like the inventiveness Malibu has been showing with new technologies to shape the wake. Their new digital displays are great. Plus they have a very strong following and kinship among their owners as seen in this forum and elsewhere. I certainly enjoy seeing Malibu boats at boat shows. They look really nice!  I remember the Corvette edition from my days at MerCruiser. Malibu has showed early and continued leadership in using the Internet as a marketing tool.

Just because I am a fan of Malibu Boats does not mean the company should not look in the U.S. Coast Guard Boating Accident Report Database (BARD) and learn from what they find.

 

Have you been in a Malibu on the water for recreation in the last five years?  That is what this site is for.  Your site and agenda have another purpose. 

If you truly do recognize the inventiveness than you would realize the boats now are light years ahead of where they were when the boat in the settlement was made, including there safety.  You make it sound like they are churning out lawn darts with there ears plugged and eyes covered.

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6 hours ago, csleaver said:

Well, there you go.  Lawyers admit that warning stickers are worthless because nobody reads them.

And the "big, fat, rich company" part was right at the top of the diatribe.

I also have a peeve about slapping a web page up without bothering to proofread the material first.  I can tell who the "coloscopy bag" is....

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On 9/11/2021 at 2:23 PM, 85 Barefoot said:

He didn’t.  Nor is that the legal standard for potentially dangerous products put into the field.  He specifically said:

“In summary - my identity is not a secret, and I hope my goals here are shared by at least some others (raising awareness of how manufacturers can make safer boats by monitoring their boats in the field) while I answer a few questions and help out a little where I can.”

 

Curious, do you have an angle in this somehow, 85 barefoot?

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1 hour ago, Jhucke said:

Curious, do you have an angle in this somehow, 85 barefoot?

I don't know what you infer by angle.  I have no involvement, nor know anyone who is,  if that's what you're asking.  I do have an opinion in response to the loud voices that this was some miscarriage of justice.  I don't have a problem with 12 people on the jury, hearing what they did for 2.5 weeks (reportedly), coming to the conclusion they did.  I am a former Response LX owner if that's an "angle".  Furthermore, I did have a relative get killed in an accident in which the manufacturer should have known about a significant danger for which they provided no protection (that was not boating related).  Contrary to the blanket assertions herein, they had a heckuva time finding any attorney, and I appreciated that who did finally  help them risked an incredible amount of time and money to get to the bottom of what can only be described as a lazy, cost-cutting design.  So, I'm not willing to listen to people impune the Batchelder lawyers for doing all they can for their client, nor agree with the bandwagon that justice was incorrectly served.

What's your "angle" Jhucke?

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On 9/9/2021 at 9:04 PM, tksport said:

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

I dont know about that. I think in most cases the kids would be up there. And an inexperienced boater, maybe its their first time renting or on boat, probably wouldnt stop them.

And people ignore the warning stickers. I see boats all the time over loaded past the weight capacities with lead bags and ballast bags. I see boats on the water all the time with WAY to many people in them. 

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On 9/9/2021 at 9:09 PM, tksport said:

Ryan, his older brother, and his two cousins were sitting the bow seating area (the front nose of the boat)

Four people in the box of a 2000 Response? Im going to guess that at one of them was sitting on the front gunnel. Thats not a lot of room in one of these boats.

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2 minutes ago, COOP said:

Four people in the box of a 2000 Response? Im going to guess that at one of them was sitting on the front gunnel. Thats not a lot of room in one of these boats.

Let's say the kids were average of 50 lbs.  I have this model boat and there's no way I'm putting 200 lbs up there unless I'm idling in a no wake zone, and I'd rate my navigation abilities as expert level.

This is misuse of the boat, not a design issue.

BTW, 4 kids in bow, a driver... how many other passengers aboard?  That's 5 human bodies at least all in front of the dog house, with no mention of anyone on the observer seat which there almost certainly was.

Also, the capacity plate on this boat is 8 ppl.  Were they over that?

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SouthsideBoarder

Tragic loss for the family.

When there’s a case like this does either side do a “recreation” of the event using a professional driver, dummies/equivalent weight (not real people to prevent further injury), water conditions, speed, reported driving technique, etc. to see what outcomes or if a similar outcome is produced?

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On 9/12/2021 at 9:20 AM, justgary said:

Well, there you go.  Lawyers admit that warning stickers are worthless because nobody reads them.

And the "big, fat, rich company" part was right at the top of the diatribe.

I also have a peeve about slapping a web page up without bothering to proofread the material first.  I can tell who the "coloscopy bag" is....

The warning stickers are FAR from worthless. That is this entire case. If there had been a warning sticker Malibu very well may have not been liable for the judgement against them. Doesn't matter if the sticker works or not as long as it is there. 

Steve B.

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I'm not a lawyer, thank G** but much of this is a "jury of peers" issue who are persuaded by the prosecutor and emotions to screw the money guy. Doubt any of the jury were familiar with water risks let alone boating in general. Probably the judge fell into that camp as well. A true jury of peers is in this forum.

  • Like 2
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32 minutes ago, Steve B. said:

The warning stickers are FAR from worthless. That is this entire case. If there had been a warning sticker Malibu very well may have not been liable for the judgement against them. Doesn't matter if the sticker works or not as long as it is there. 

Steve B.

Did you read the web page that @csleaver posted?  The lawyer clearly stated that warning stickers are worthless and nobody reads them, so having them doesn't protect you from yet another lawyer.

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7 minutes ago, justgary said:

Did you read the web page that @csleaver posted?  The lawyer clearly stated that warning stickers are worthless and nobody reads them, so having them doesn't protect you from yet another lawyer.

You made me look. Does that guy’s writing seem persuasive?  I almost thought it must be a spoof website ala The Onion. 

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43 minutes ago, Baggerlance said:

I'm not a lawyer, thank G** but much of this is a "jury of peers" issue who are persuaded by the prosecutor and emotions to screw the money guy. Doubt any of the jury were familiar with water risks let alone boating in general. Probably the judge fell into that camp as well. A true jury of peers is in this forum.

You would be amazed at how perceptive jurors can be. Maybe at some point you will embrace an opportunity to serve as a juror and begin to appreciate the process. 

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33 minutes ago, shawndoggy said:

You made me look. Does that guy’s writing seem persuasive?  I almost thought it must be a spoof website ala The Onion. 

Please don't take offense, but that web page represents how a huge portion of America views lawyers.  Nothing I read there surprised me.

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20 minutes ago, Bozboat said:

You would be amazed at how perceptive jurors can be. Maybe at some point you will embrace an opportunity to serve as a juror and begin to appreciate the process. 

I tried to be perceptive when I was on a jury for a DUI case a long time ago.  I wanted to object to a lot of the things the state's attorney said.  The kid's lawyer didn't object except for a few very obvious times.

The one thing I kept thinking is that this kid was not a "peer" of anybody on the jury.

I was glad I didn't get chosen for the shaken baby murder case a few years ago.  The judge put 125 prospective jurors through the process, and plenty made it to voir dire.  I got excused when the attorney asked me why, as my own only employee, I couldn't just take three weeks off without pay.  I reminded him I was the only person in the court room that wasn't getting paid, then I asked him if he was prepared to take three weeks off and not have his job suffer for it.  The guy had an attitude the way he asked it, so I was ok with not having to listen to him any more.

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