February 26, 2012
Contact: Eric W. Boyer, Esq.
Managing Partner
305-670-1101 Ext. 1023
Product Liability/Defective Design

James McNallly

BANGOR, Maine — Quintairos, Prieto, Wood & Boyer, P.A. (QPWB) trial attorney James J. McNally, a partner in the Miami office, successfully defended a large recreational boat manufacturer in an accident involving a 56-year-old plaintiff who was a Methodist pastor.
The plaintiff was injured in a recreational boating accident in the navigable waters offshore of Isleboro, County of Waldo, State of Maine. At the time of his accident and the time of trial, the plaintiff was a Texas resident. Throughout the litigation the plaintiff continued to assert that his medical and employment specials were in the amount of $1.5 million and that his pain and suffering claims exceeded $3.5 million.
The case was originally brought against several other defendants pursuant to Maine product liability law and statutes, and was originally venued for several years in state court in Waldo County, Maine. Thereafter, the plaintiff sought claims against the recreational boat manufacturer and when that occurred, the defense successfully removed the case to the U.S. District Court of Maine and successfully asserted that federal maritime and admiralty law applied to plaintiff’s claims.
As to plaintiff’s accident, the plaintiff fell into the water while holding onto an upright stowed swim ladder and asserted as his principle claim that the swim ladder was defectively designed as result of how it was positioned while in a stowed position since it could double as a handhold when a person was on the swim deck.
After falling into the water from the swim deck, the plaintiff then came into contact with the speedboat’s spinning propeller. As a result of the accident, the plaintiff suffered a left above-the-knee amputation. The plaintiff was on the boat’s swim deck, with the speedboat backing up, trying to retrieve his 17 year old son’s baseball hat that had blown in the water.
Plaintiff argued that, if the boat’s swim ladder had been more securely affixed and had not been designed to invite its use as a handhold when stowed upright, he never would have fallen into the water and come into contact with the boat’s propeller.
In support of his product liability claim, plaintiff used a local expert who asserted he had designed a large number of industrial machine guards and was qualified as a “safety engineer” to testify that it was a “simple fix” to make the swim ladder more secure. The fix he proposed was a “simple” one of using a clamp and bracket to affix the swim ladder to the transom of the recreational boat, along with a quick release pin to deploy the swim ladder into the water. As part of his expertise, plaintiff’s expert testified that he was a professional member of the American Society of Safety Engineers.
Plaintiff’s expert was challenged in a Daubert hearing in which the court ruled he was minimally qualified. At the same hearing, the court indicated that the two defense experts were well qualified; these were a naval architect and professional engineer; and the other, an engineer and boat builder with Coast Guard licenses.
Through its experts, the defense maintained that the swim ladder was perfectly safe and that the cause of this accident was plaintiff’s remarkably risky behavior. Over strenuous objections by plaintiff, the defense also presented to the jury the applicable standards for the design of swim ladders issued by the American Boat and Yacht Council and accepted by the American National Standards Institute (ANSI).
In order for the jury to visualize how the swim ladder was mounted and functioned on the accident boat, an exact mock-up of the boat’s full-size transom was displayed showing where the water line was, along with the swim deck and exact same swim ladder, where defense counsel and experts, in front of the jury, climbed on the demonstrative exhibit by using the swim ladder.
The defense utilized experts who were all highly experienced in hydrodynamics, marine engineering, boat building and boat behavior, who conducted well documented testing and provided testimony that countered plaintiff’s arguments in detail. When confronting plaintiff’s safety engineer, the defense addressed his claimed “simple fix” by questions addressing it in terms of strength of materials, failure mode and impulse forces, which plaintiff’s expert admitted he did not fully understand or know how to calculate.
After one week in trial, the jury deliberated for one hour and twenty minutes and returned a verdict in favor of the defense, finding that the recreational speedboat and its swim ladder was safe and not defective.

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