McGarrigle v. Mercury Marine
Boating Accident Lawsuit based on Product Liability Cause of Action
DISTRICT OF NEW JERSEY



---------------------------------------------------------
                                                            
JOHN MCGARRIGLE, and
BARBARA MCGARRIGLE, h/w:                                 Civil Action No. 09-4625
Plaintiffs                                                 
                                                    
v.                                                        
                                                    
MERCURY MARINE                                
Defendant                                            
                                                        
---------------------------------------------------------









Before the Court is defendant’s motion for summary judgment and plaintiffs’ cross-
motion for partial summary judgment. For reasons explained below, defendant’s motion
for summary judgment will be granted in part and denied in part, and plaintiff’s cross-
motion for summary judgment will be granted in part and denied in part. Dr. Fisher will be
allowed to testify as plaintiff’s expert, but cannot rely on the US Coast Guard Navigation
and Vessel Inspection Circular No. 4-89 in his opinion. Defendant is permitted to introduce
as evidence of proximate cause facts regarding the condition of the water and speed of
plaintiff’s boat, and evidence of plaintiff’s behavior after he was ejected from the boat.
However, defendant will not be permitted to introduce facts regarding plaintiff’s father’s
failure to read an owner’s manual as evidence of comparative fault or proximate cause
since such misuse was foreseeable by defendant.

I. BACKGROUND
This consumer product liability case arises out of a boating accident that occurred on
July 21, 2007, in Seabreeze, Cumberland County, New Jersey. Plaintiff, John M.
McGarrigle, was operating his father’s boat, a twelve foot aluminum fishing boat equipped
with a 2001 15 horsepower Mercury Marine outboard engine, when he was pitched
overboard. As plaintiff fell into the water, his grasp on the tiller caused the boat to spin in
a clockwise motion. The boat circled plaintiff several times, coming closer to plaintiff with
each rotation.

Plaintiff did not try to swim towards the shore. Plaintiff tried to grab hold of the circling
boat and climb on board, but the boat went over him and the propeller from the engine
struck his face and neck causing severe injuries. Several witnesses observed the boat
going in circles and went to assist the plaintiff or call for help. One witness, Dr. William
Pace, swam out approximately 100 to 150 feet from the shore, and supported plaintiff as
he pulled him toward the shore.

New Jersey Marine Patrol Officer William Panco investigated the accident and
interviewed plaintiff about a month after the accident. Plaintiff told Officer Panco that the
bay was fairly “choppy” on the day of the accident and that he was running about fifteen
miles per hour. Plaintiff stated he hit a wave and was ejected from the boat. He also told
Officer Panco that he “had a few beers earlier in the day” although Officer Panco did not
feel that intoxication contributed or caused this accident. Rather, Officer Panco
concluded that the accident was caused by “excessive speed” although he testified that
he has no personal knowledge of the plaintiff’s actual speed. Officer Panco had
responded to the accident scene and observed that the water was “choppy” and “rough”
for the type of boat used by plaintiff. However, there was no small craft advisory issued
that day by the U.S. Coast Guard.

The Mercury Marine outboard engine should be operated with a “lanyard” stop switch.
The purpose of the lanyard is to provide a safety device to stop the engine in the event of
the operator being thrown overboard. One end of the lanyard is inserted into the “run/off”
switch while the other end is fastened to the operator. If the operator moves far enough
away from the engine, or is thrown overboard, the lanyard will turn the engine off in order
to prevent injury from a runaway boat. When plaintiff’s father, John W. McGarrigle (“Mr.
McGarrigle”), purchased the Mercury Marine engine in September 2001, he did not
receive a lanyard stop switch. He did, however, receive an owner’s manual which
described the nature, function, and purpose of the lanyard and the dangers of failing to
use it.

Neither Mr. McGarrigle, nor plaintiff read the owner’s manual. Defendant’s expert admits
that it is well known that there are people who will operate the boat who have not read the
owner’s manual. Mr. McGarrigle stated that had he read the manual, he would have
obtained a lanyard. Both Mr. McGarrigle and plaintiff admit that had a lanyard been used,
the accident would not have happened. Mercury Marine has been designing,
manufacturing and selling outboard engines for use on recreational boats since 1939.
There is no evidence that any of Mercury Marine’s engines are not in compliance with all
applicable safety laws and regulations. On its 2.5 to 6 horsepower outboard engines,

Mercury Marine uses a type of lanyard that prevents the operator from starting the engine
without first inserting the engine end of the lanyard into the emergency stop switch on the
engine (hereinafter “lanyard A”). All other manufacturers of outboard engines also use
the lanyard A. On its 8 to 25 horsepower outboard engines, however, Mercury Marine
uses a design that allows the operator to start the engine without having the lanyard stop
switch connected to the engine (hereinafter “lanyard”). The lanyard B allows another boat
passenger to restart the engine without a lanyard and navigate back to the person in the
water.

Plaintiff was operating a Mercury Marine engine that relied on the lanyard B and,
therefore, allowed plaintiff to start the engine without a lanyard stop switch. There were
no warnings on the engine advising the operator to use a lanyard switch or to read the
owner’s manual before operating. Plaintiffs brought a product liability action against
Mercury Marine alleging that Mercury Marine placed into the stream of commerce a
product which was not fit, suitable and safe for its intended purpose; that plaintiff was a
foreseeable user of the product and the events that occurred on July 21, 2007 were
foreseeable; and that defendant failed to properly design and manufacture the engine and
failed to adequately warn foreseeable users of the engine in violation of N.J.S.A. 2A:58C-2,
et seq.

II. JURISDICTION
This matter was removed from Superior Court of New Jersey by defendant. This Court
exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (diversity). Plaintiffs
are citizens of Pennsylvania. Defendant is a division of Brunswick Corporation which has
its principal place of business in Lake Forest, Illinois, and is incorporated in the State of
Delaware. Plaintiff has alleged severe, permanent injuries, pain and suffering, and lost
wages. Defendant in its notice of removal asserts that the amount in controversy exceeds
$75,000.00, and plaintiff does not dispute that assertion. See Sherman v. Bally’s Hotel &
Casino, No. 09-cv-970, 2010 WL 1491425, at *1 (D.N.J. Apr. 13, 2010) (finding claims for
potentially permanent injuries and pain and suffering often give rise to damages in
excess of $75,000).

III. SUMMARY JUDGMENT
Summary judgment is appropriate where the Court is satisfied that “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.
S. 317, 330 (1986); Fed. R. Civ. P. 56(c). An issue is “genuine” if it is supported by evidence
such that a reasonable jury could return a verdict in the nonmoving party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under the
governing substantive law, a dispute about the fact might affect the outcome of the suit.
Id.

In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving
party's evidence “is to be believed and all justifiable inferences are to be drawn in his
favor.” Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson,
477 U.S. at 255). Initially, the moving party has the burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
the moving party has met this burden, the nonmoving party must identify, by affidavits or
otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to
withstand a properly supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence that contradict those offered by the
moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do
more than just rest upon mere allegations, general denials, or vague statements. Saldana
v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

If review of cross-motions for summary judgment reveals no genuine issue of material
fact, then judgment may be entered in favor of the party deserving of judgment in light of
the law and undisputed facts. See Iberia Foods Corp. v. Romeo Jr., 150 F.3d 298, 302 (3d
Cir. 1998)

IV. DISCUSSION
In order to pursue a product liability action against a manufacturer, a plaintiff must show
“by a preponderance of the evidence that the product causing the harm was not
reasonably fit, suitable or safe for its intended purpose.” N.J.S.A. 2A:58C-2. This can be
demonstrated by showing that the product failed to contain adequate warnings or
instruction, and by showing that the product was designed in a defective manner. Id.
Plaintiffs intend to meet their burden by providing expert testimony through their expert,
Kenneth W. Fisher, Ph.D. Defendants argue that Dr. Fisher is not qualified to testify in this
matter.

A. Expert Admissibility
Defendant argues that plaintiffs’ expert should be stricken as plaintiffs’ liability expert
and should be precluded from testifying because he and his opinions cannot survive the
Daubert/Kumho Tire analysis. Federal Rule of Evidence 702 governs the admissibility of
expert testimony. Rule 702 states: If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the facts
of the case. Fed.R.Evid. 702. The three requirements outlined in Rule 702 are referred to
as: qualification, reliability and fit. Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316,
321 (3d Cir. 2003) (citing Schneider v. Fried, 320 F.3d 396, 405 (3d Cir. 2003)).

The Third Circuit explained the three requirements as follows: First, the witness must be
qualified to testify as an expert. Qualification requires that the witness possess
specialized expertise. We have interpreted this requirement liberally, holding that a broad
range of knowledge, skills, and training qualify an expert as such. Second, the testimony
must be reliable. In other words, the expert’s opinion must be based on the methods and
procedures of science rather than on subjective belief or unsupported speculation; the
expert must have good grounds for his or her belief. An assessment of the reliability of
scientific evidence under Rule 702 requires a determination as to its scientific validity.
Third, the expert testimony must fit, meaning the expert’s testimony must be relevant for
the purposes of the case and must assist the trier of fact. Id. (internal quotations and
citations omitted). Defendant challenges plaintiffs’ expert on all three requirements.

1. Qualification
Defendant argues that Dr. Fisher is not an expert regarding small fishing boats and 15
horsepower engines. Defendant argues that with respect to the design, manufacture or
testing of outboard engines or lanyard stop switches for such engines, Dr. Fisher has had
no formal education or informal training, no employment experience or background, and
no teaching, consulting or writing experience. Defendant further argues that Dr. Fisher
has had no professional involvement with any pertinent recreational boat organization
and has had no relevant personal experience or previous expert witness experience with
regard to the type of boat and engine involved in this matter. Defendant maintains that Dr.
Fisher’s expertise is in the area of design and construction of ships and large maritime
structures, and the contracts and financing of such activities.

Plaintiffs respond that defendant’s definition of qualifications is so narrow that only
former employees of outboard engine manufacturers would qualify. Plaintiffs state that
Dr. Fisher has extensive experience in the area of boating safety; that he has been a
professor of naval architecture, marine engineering and mechanical engineering prior to
engaging in consulting work full time; that he is a graduate of Webb Institute of Naval
Architecture and has a master’s degree in naval architecture, marine engineering and
engineering mechanics from the University of Michigan; and that he received a doctorate
in engineering economics applied to ship design from the University of Sydney.

Plaintiffs point out that Dr. Fisher is a contributing author and editor of the books Maritime
Product Liability and Developments In Marine And Small Craft Liability. Plaintiffs state that
Dr. Fisher has analyzed, reported and testified in product liability cases including claims
involving placement of grab-rails on recreational boats, steps for boarding cabin cruisers,
securing of electrical cables against sparkgeneration, personal protection from rotating
engine shafts on yachts, handrails alongside stairways, footwells on personal watercraft,
anti-skid deck properties, railings alongside ramps, and “hold-back devices” for raised
engine hatch covers.

Plaintiff further states that Dr. Fisher gave seminars across the nation to over 200
representatives of manufacturers of boats and boat equipment regarding the rationality
of design decisions. The Third Circuit instructs that the qualification requirement should
be interpreted liberally, and that “a broad range of knowledge, skills, and training qualify
an expert as such.” Calhoun, 350 F.3d at 321 (citing In re Paoli R.R. Yard PCB Litig., 35 F.3d
717, 741 (3d Cir. 1994) (“Paoli II”)); Thomas & Betts Corp. v. Richards Mfg. Co., 342 Fed.
Appx. 754, 760-61 (3d Cir. 2009).

It appears from Dr. Fisher’s deposition testimony and affidavit that he has not previously
provided any testimony concerning lanyard stop switches. Dr. Fisher’s expertise seems
to be more in the area of larger vessels or ships, rather than small craft boats. However,
Dr. Fisher’s formal qualifications in the marine industry are extensive and are not
challenged by defendants. Moreover, Dr. Fisher provides in his affidavit that the
mechanics, functioning and safety issues pertinent to the use of smaller hand-tilled
outboard engines in the rage of 8-25 horsepower are not unique and involve the same
safety issues as larger outboard engines.

Therefore, liberally applying the qualification requirement to Dr. Fisher’s qualifications, the
Court finds that Dr. Fisher is qualified to testify as an expert in this case. See Thomas, 342
Fed.Appx. at 761 (finding expert’s testimony would not be unhelpful to a finder of fact
merely because it referenced the rubber molding industry generally and not the subset
industry of underground electrical connector manufacturing); Pineda v. Ford Motor Co.,
520 F.3d 237, (3d Cir. 2008) (finding expert’s expertise in the stresses and other forces
that might cause a material to fail was more than sufficient to satisfy Rule 702, and that
the expert did not need to be substantively qualified in the design of automobile rear
liftgates or the drafting of service manual instructions); Holbrook v. Lykes Bros. S.S. Co.,
80 F.3d 777, 782 (3d Cir. 1996) (finding it “an abuse of discretion to exclude testimony
simply because the trial court does not deem the proposed expert to be the best qualified
or because the proposed expert does not have the specialization that the court considers
most appropriate.”).

2. Reliability
Factors the Court should consider in determining whether an expert’s opinion is reliable
are:
(1) whether a method consists of a testable hypothesis;
(2) whether the method has been subject to peer review;
(3) the known or potential rate of error;
(4) the existence and maintenance of standards controlling the technique’s operation;
(5) whether the method is generally accepted;
(6) the relationship of the technique to methods which have been established to be
reliable;
(7) the qualifications of the expert witness testifying based on the methodology; and
(8) the non-judicial uses.
Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 405 (3d Cir. 2003) (citing Paoli
II, 35 F.3d at 742 n. 8 (citing Daubert, and United States v. Downing, 753 F.2d 1224 (3d Cir.
1985)). These factors “are neither exhaustive nor applicable in every case.” Pineda, 520 F.
3d at 248 (citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. at 137, 151, 119 S.Ct. 1167
(“noting that Daubert itself ‘made clear that its list of factors was meant to be helpful, not
definitive’”) (other citations omitted). The trial court has “considerable leeway in deciding
in a particular case how to go about determining whether particular expert testimony is
reliable.” Kumho Tire, 526 U.S. at 152, 119 S.Ct. at 1176; Viking Yacht Co. v. Composites
One LLC, 613 F.Supp.2d 626, 634 (D.N.J. 2009) (“an expert’s testimony is admissible so
long as the process or technique the expert used in formulating the opinion is reliable.”)
(citing Pineda, 520 F.3d at 247 (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 (3d
Cir. 1994) (internal quotation marks omitted)). The Third Circuit has cautioned that “the
standard for determining reliability ‘is not that high,’ [] even given the evidentiary gauntlet
facing the proponent of expert testimony under Rule 702.” In re TMI Litigation, 193 F.3d
613, 665 (3d Cir. 1999).

In this case, plaintiffs’ expert is offering an opinion that the lanyard B was defectively
designed, and that a safer alternative would be the lanyard A or warnings on the engine.
As such, this is not an overly complex opinion and, therefore, there is no need to address
every Daubert factor. Rather, the Court will focus on Dr. Fisher’s choice of industry
standards and overall reliability.

Defendant argues that Dr. Fisher’s sole reliance on the 2007 American Society of Testing
and Materials (“ASTM”) F 1166-2 07 standard for his opinion regarding human factors
engineering is misplaced because the ASTM F 1166-07 does not apply to See Milanowicz
v. The Raymond Corp., 148 F.Supp.2d 525, 533 (D.N.J.,2001) (finding that while ASTM lacks
the legal authority of federal regulations, it provides detailed design standards which
reflect systematic testing and safety certification); see also http://www.astm.
org/ABOUT/overview.html (“ASTM International, formerly known as the American Society
for Testing and Materials (ASTM), is a globally recognized leader in the development and
delivery of international voluntary consensus standards.”). recreational boats and
outboard engines. Defendant maintains that the ASTM F 1166-07 refers to ships and
marine structures, but it does not specifically mention recreational boats or outboard
engines. Plaintiff argues that the ATSM F 1166-07 applies to “maritime structures” and
the 12' boat involved in this case falls under the category of maritime structure.

Defendant replies that Dr. Fisher could only name one other person, a naval architect, that
agreed with his position that a 12' recreational boat was a “maritime structure.”
Defendant’s criticism of Dr. Fisher’s reliance on the ASTM F 1166-07 is more a
disagreement in methods than a showing of unreliability. See U.S. v. Williams, 235 Fed.
Appx. 925, 928 (3d Cir. 2007) (“The requirement of reliability is lower than the standard of
correctness. A judge can find an expert opinion reliable if it is based on ‘good grounds’ or
methods and procedures of science rather than on subjective belief or unsupported
speculation”) (citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786)). Although defendant points
out that the ATSM F 1166-07 seems to be tailored for larger vessels or ships, defendant
does not provide any evidence, or expert testimony, that a 12' recreational boat is not a
“maritime structure”.

Even if the ASTM does not directly apply to recreational boats, plaintiffs argue that there
are no ASTM standards that directly apply to recreational boats or outboard motors and,
therefore, Dr. Fisher applied the standard that most closely fit. Plaintiffs state that experts
often reason by analogy using general principals established by a certain standard even if
not directly on point. Plaintiffs point out that defendant’s expert has agreed that experts
sometimes reason by analogy.

Defendant does not challenge plaintiffs’ assertion that no other ASTM standard directly
applies to recreational boats. Defendant does not argue that the ASTM, in general, should
not or does not apply to recreational boats. Therefore, the Court finds that Dr. Fisher’s
reliance on the ASTM F 1166-07 by analogy to recreational boats is not unreliable under
Rule 702. See In re Ephedra Products Liability Litigation, 393 F.Supp.2d 181, 189 (S.D.N.Y.
2005) (“The analogies, inferences and extrapolations connecting the science to the
witness’s conclusions must be of a kind that a reasonable scientist or physician would
make in a decision of importance arising in the exercise of his profession outside the
context of litigation.”); see also In re Human Tissue Products Liability Litigation, 582 F.
Supp.2d 644, 657 (D.N.J. 2008).

If there is a gap between the ASTM F 1166-07 standards as written and as applied by Dr.
Fisher, any inconsistencies go to the weight of the evidence, not to its admissibility. See
Campbell v. Metropolitan Property and Casualty Ins. Co., 239 F.3d 179, 186 (2d Cir. 2001);
Crowley v. Chait, 322 F.Supp.2d 530, 541 (D.N.J. 2004)(revisions by experts were not
evidence of flawed methodology, but raised questions that went to the weight and
credibility of the testimony, not to its admissibility); Voilas v. General Motors Corp., 73 F.
Supp.2d 452, 459 (D.N.J. 1999) (finding that challenge to expert’s decision to discard
certain options goes to the weight to be accorded to the expert’s opinion
rather than its admissibility).

Notwithstanding the ASTM F 1166-07, plaintiffs also argue that, in addition to the ASTM,
Dr. Fisher relied on the US Coast Guard Navigation and Vessel Inspection Circular No. 4-89
(“4-89 Circular”) regarding human factors engineering application to design,
construction, overhaul, and maintenance of vessels. Further, plaintiffs point out that Dr.
Fisher has suggested a reasonably safe alternative design, the lanyard A, which is
already used in the industry, and proposed that defendant add a warning on the engine to
either insert the lanyard switch or read the owner’s manual before operating. Defendants
reply that the 4-89 Circular is limited to commercial vessels and, therefore, is not
applicable. Unlike the ASTM F 1166-07, plaintiffs do not offer any evidence that the 4-89
Circular could be applicable to recreational boats. Thus, Dr. Fisher may not rely on the 4-
89 Circular as a standard for human factors in this case involving a 12' foot recreational
boat. The exclusion of the 4-89 Circular, however, does not render Dr. Fisher’s opinion
unreliable since he is permitted to rely on the ASTM F 1166-07.

Defendant also argues that there is no reliable basis for Dr. Fisher’s opinion on a safer
alternative design by using the lanyard A because he has not conducted certain tests or
research on accident occurrence using one type of lanyard versus the other. Defendant
further argues that there is no reliable basis for Dr. Fisher’s opinion regarding use of a
label that would be affixed on the outboard engine. Dr. Fisher has pointed to an alternative
design, the lanyard A, already used in the industry. An alternative design that is in use by
an industry can be evidence of its reliability. See Milanowicz v. The Raymond Corp., 148 F.
Supp.2d 525, 533 (D.N.J. 2001) (finding an important indicia of reliability to be whether
other manufacturers and consumers in the industry utilize the allegedly defective design
or proposed alternative); see also Lewis v. American Cyanamid Co., 155 N.J. 544, 560, 715
A.2d 967, 975 (N.J. 1998) (under New Jersey law, to succeed on a design-defect claim, a
plaintiff is “required to prove that a practical and feasible alternative design existed that
would have reduced or prevented his harm.”). As stated above, this is not an overly
technical case.

The fact that the very stop switch that Dr. Fisher proposes be used, the lanyard A, is used
by the rest of the recreational boating industry, as well as by defendant in other boat
models, provides the requisite indicia of reliability. See Thomas v. CMI Terex Corp., No. 07–
3597, 2009 WL 3068242, at *8 (D.N.J. Sept. 21, 2009) (Simandle, J.)(finding expert was not
required to test alternative safer design already in use on a similar piece of machinery
because it provided sufficient reliable proof that this alternative design (extremely simple,
to the point of needing very little explanation) was feasible and effective) (citing Lindsey v.
Caterpillar, Inc., No. 03–5762, 2007 WL 1816105, at *4–5 (D.N.J. June 22, 2007));
Milanowicz v. The Raymond Corp., 148 F.Supp.2d 525, 533 (D.N.J. 2001) (“In alternative
design cases, evidence of industry practice may help negate criticism based on lack of
testing.”). Likewise, no extensive testing and research would be needed in this case to
offer an opinion that a warning label should be affixed the outboard engine. Id. Thus, the
Court finds that Dr. Fisher’s opinion is sufficiently reliable under Rule 702.

3. Fit
The third and final requirement is that the expert testimony “fit,” meaning, “the expert’s
testimony must be relevant for the purposes of the case and must assist the trier of
fact.” Calhoun, 350 F.3d at 321. A connection must exist “... between the expert opinion
offered and the particular disputed factual issues in the case.” TMI Litigation, 193 F.3d at
670 (citing Paoli II, 35 F.3d at 743). In order for an expert’s testimony to fit, “the scientific
knowledge must be connected to the question at issue.” Paoli II, 35 F.3d at 745 13. “Fit is
not always obvious, and scientific validity for one purpose is not necessarily validity for
other unrelated purposes.” TMI Litigation, 193 F.3d at 670. The standard for fit is “not that
high” but “is higher than bare relevance.” Paoli II, 35 F.3d at 745. Plaintiffs do not have “to
prove their case twice - they do not have to demonstrate to the judge by a preponderance
of the evidence that the assessments of their experts are correct, they only have to
demonstrate by a preponderance of evidence that their opinions are reliable.” Oddi v.
Ford Motor Co., 234 F.3d 136, 145 (3d Cir. 2000). “A court ‘must examine the expert’s
conclusions in order to determine whether they could reliably flow from the facts known
to the expert and the methodology used.’” Id. (citing Heller v. Shaw Industries, Inc., 167 F.
3d 146, 153 (3d Cir. 1999). “A court may conclude that there is simply too great a gap
between the data and the opinion proffered.” Id. (citations omitted).

Defendant argues that Dr. Fisher should not be permitted to testify that the design of the
outboard engine was and is defective because it does not incorporate a lanyard A type
stop switch. Defendant states that between 1986 and July 2007, it sold more than
750,000 8 to 25 horsepower outboard engines that use the lanyard B. It also states that,
other than plaintiff’s accident, it is aware of no other accidents of a scenario similar to
plaintiff’s, which resulted in propeller strike injuries to an ejected operator of a small
hand-tilled outboard engine who did not use the lanyard.

Defendant further states that the accident occurred because neither plaintiff nor his
father read the owner’s manual which would have advised them to use a lanyard, and
because plaintiff was operating his boat at too high a speed and failed to swim to shore
after he was ejected. The issue in this case is whether the lanyard stop switch used by
defendant was defectively designed and caused plaintiff’s injuries. Dr. Fisher is offering
an opinion that the lanyard was defectively designed because it allowed the operator to
start and operate the boat without using the lanyard. Dr. Fisher examined the outboard
engine involved in this case, reviewed certain regulations and codes, and reviewed
defendant’s as well as a competitor’s owner’s manual for recreational boats.

His conclusions can flow from his experience and methodology of identifying another
lanyard stop switch commonly used in the industry that requires the key to be inserted
before the engine will start. See Milanowicz, 148 F.Supp.2d at 533 (finding that an
important indicia of reliability is industry practice - “whether other manufacturers and
consumers in the industry utilize the allegedly defective design or the proposed
alternative” and that “[i]ndustry practice may be used as a proxy for peer review” so that
“evidence of industry practice may help negate criticism based on lack of testing”) (citing
Stanczyk v. Black & Decker, Inc., 836 F.Supp. 565, 567 (N.D.Ill. 1993); McPike v. Corghi, S.P.
A., 87 F.Supp.2d 890, 893-94 (E.D.Ark. 1999)).

Thus, Dr. Fisher and his opinions meet the requirements under Rule 702 and Daubert.
Plaintiff’s Cross Motion Defendant seeks to introduce evidence that plaintiff’s decision to
operate his father’s small fishing boat in water too high and at a speed too great was the
only reason he lost control of the boat and was ejected overboard. Defendant also seeks
to introduce evidence of plaintiff’s behavior after being ejected as the reason for his
injuries.

Finally, defendant seeks to introduce evidence that plaintiff’s father failed to read the
owner’s manual, or offer it to his son to read. Plaintiff argues that defendant should not be
permitted to introduce evidence of plaintiff’s alleged comparative negligence. In New
Jersey consumer design defect cases, “the conduct of an injured plaintiff ... is not
relevant in Defendants also summarily state that it is entitled to summary judgment
because a product safe for normal use is not defective. Since defendant has not shown
as a matter of law that the product at issue is safe for normal use, it is not entitled to
summary judgment on this ground. Wallace v. Ford Motor Co., 318 N.J.Super. 427, 723 A.
2d 1226 (App.Div. 1999) (citing Grier v. Cochran Western Corp., 308 N.J.Super. 308, 324-
25, 705 A.2d 1262 (App.Div.1998); Johansen v. Makita USA, Inc., 128 N.J. 86, 101, 607 A.2d
637 (1992)).

“However, a plaintiff’s conduct may be relevant to the ‘question of proximate cause,’ in
that a jury may find that plaintiff’s conduct ‘had been the sole cause of the accident.’” Id.
(quoting Johansen, 128 N.J. at 102-03, 607 A.2d 637; citing Grier, 308 N.J.Super. at 325,
705 A.2d 1262). In addition, if the consumer plaintiff knows of the danger or risk and
nonetheless voluntarily proceeds in the face of the known danger or risk, a plaintiff’s
comparative negligence can be submitted to the jury. Johansen, 128 N.J. at 94, 607 A.2d
at 642 (“In general...when a plaintiff with actual knowledge of the danger presented by a
defective product knowingly and voluntarily encounters that risk, a trial court should
submit the comparative-negligence defense to a jury.”); Ramos v. Silent Hoist and Crane
Co., 256 N.J.Super. 467, 478-79, 607 A.2d 667, 672 (App.Div. 1992) (distinguishing between
a workplace setting where comparative fault is disregarded and non-workplace settings
where a plaintiff’s comparative fault is “limited to unreasonably and intentionally
proceeding in the face of a known danger.”). However, “[c]ontributory negligence is not a
defense to a strict-liability action when a plaintiff’s negligent conduct consists of merely
failing to discover or guard against the possibility of a defect in a product.” Johansen, 128
N.J. at 94, 607 A.2d at 641 (citations omitted).

Here, there is no evidence that plaintiff intentionally proceeded in the face of a known
danger. The deposition testimony presented shows that plaintiff did not read the manual
and did not know that the engine was to be operated with a lanyard. Therefore, evidence
of plaintiff’s comparative negligence as to a known risk will not be permitted. However,
evidence that plaintiff operated the boat in water too high and at a speed too great
causing him too lose control and be ejected will be permitted on the issue of proximate
cause. See id., 128 N.J. at 98, 607 A.2d at 644 (determining that plaintiff’s actions were
relevant to the issue of proximate cause even though jury could not consider conduct as
evidence of contributory negligence); see also Madden v. Cosco, 2010 WL 2867899, at *4
(N.J.Super.A.D. 2010) (“absent a comparative negligence defense, a plaintiff’s conduct is
also relevant to establishing proximate cause.”) (citing Johansen, 128 N.J. at 97-99, 607 A.
2d at 644). Likewise, defendant will also be permitted to introduce evidence of plaintiff’s
actions after he was ejected from the boat before contact with the engine’s propeller. Id.
Plaintiff’s conduct surrounding the accident is essential to the facts determining how the
accident occurred. In order to present a prima facie case of how the accident occurred,
plaintiff must detail his actions using the engine. Therefore, defendant is permitted to
introduce such facts as evidence of proximate cause, but not as evidence of comparative
negligence.

With regard to evidence of plaintiff’s father’s failure to read the owner’s manual, plaintiff
has produced testimony by defendant’s expert stating that defendant knew that
operators would not read the manual before operating the engine. Under New Jersey law,
“in applying strict liability in torts for design defects, manufacturers cannot escape
liability on grounds of misuse or abnormal use if the actual use proximate to the injury
was objectively foreseeable.” Soler v. Castmaster, Div. of H.P.M. Corp., 98 N.J. 137, 151,
484 A.2d 1225, 1232 (N.J. 1984) (citing Cepeda v. Cumberland Engineering Co., Inc., 76 N.J.
152, 386 A.2d 816 (overruled on other grounds); McDermott v. TENDUN Constructors, 211
N.J.Super. 196, 210, 511 A.2d 690, 698 (App.Div. 1986). The evidence shows that the
failure to read an owner’s manual before operation of the engine was foreseeable by
defendant and, therefore, facts of plaintiff’s father’s failure to read the manual or provide
it to his son to read will not be introduced to show comparative fault or proximate cause.

V. CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment will be granted in
part and denied in part, and plaintiff’s cross-motion for summary judgment will be granted
in part and denied in part.
s/Noel L. Hillman

NOEL L. HILLMAN, U.S. District Judge

At Camden, New Jersey

Date: December 20, 2011
Back to Boating Accident Legal Help
Back to Maritime Law for Boating Accidents - Negligence or Product Liability