Cortes v Davey Marine Centre involved a product liability action against the retailer of a recreational boat.

Facts

The plaintiffs purchased a new 23-foot Sea Fox recreational vessel from Davey Marine Centre in July 2010. After 10 months of use, the outboard engine fell off the transom while the boat was travelling at approximately 50 miles per hour across Biscayne Bay. Five people were on board; three were reportedly thrown into the water and all five claimed serious personal and psychological injuries. The initial joint survey revealed that the Mercury Verado 250 horsepower engine, which had been installed by the boat manufacturer (a co-defendant in the case), may have been mounted using metric stainless steel bolts and standard thread Society of Automobile Engineers brass nuts. The actual nuts were never recovered from the scene of the accident.

Arguments

Two plaintiffs' attorneys filed a state court suit in Broward County, Florida on behalf of the five passengers. The boat's insurer also intervened to subrogate for boat repair damages, plus the amounts paid under the policy's medical payments provision. Davey Marine Centre disputed the allegations of negligence, strict liability, breach of contract and breach of warranty, as well as the claim under the Magnuson-Moss Warranty Act, which was being used to assert a claim for attorney's fees. Early mediation was attempted, but the plaintiffs' demands were excessive and it became apparent that the case was going to proceed to jury trial.

Davey Marine Centre's liability defence was based on the fact that the engineering strongly supported the fact that the top set of mounting nuts had been missing on the date of the accident, which was the boat owner's fault. Davey Marine Centre held that the plaintiff boat owner had raised and remounted the engine in an effort to increase speed and had neglected to replace the top nuts (which the plaintiff denied).

Based on the engineering, the nut-bolt combination – even if mismatched – was strong enough to hold the engine securely against the transom (assuming that all four nuts had been properly torqued down). Examination of the top bolts showed that they were undamaged, while the bottom bolts were mangled and nearly fractured. Further, brass shavings were evident on the lower bolts, but could not be detected in the top bolts, even with a light microscope. Both results indicated that the plaintiffs' engineer's theory that the top nuts had failed during load and come off during the voyage was not tenable. The defence also attacked the medical claims, arguing that many of the claimed injuries had been asserted more than one month after the accident had taken place and were the result of either pre-existing conditions or, in some cases, non-anatomic psychosomatic complaints.

Trial

The Magnuson-Moss Warranty Act claim was successfully challenged before trial on the basis that it did not apply to personal injury actions. Thus, the matter proceeded to trial on theories of strict liability, negligence and breach of implied warranty of merchantability. The trial lasted 14 days, including jury selection from a pool of 50 jurors. In addition to the five plaintiffs, the plaintiffs' case included the testimonies (live or via video) of approximately 15 doctors, an engineer, an expert in vocational rehabilitation and an economist. The defence presented a much more streamlined case, utilising a metallurgist/engineer, a naval architect and an examining orthopaedic surgeon. The defence also relied on extensive cross-examination of the plaintiffs' witnesses, which was essential to highlight the holes in their case. In their closing argument, the plaintiffs' attorneys asked the jury for a collective award of approximately $2.1 million.

Decision

On March 14 2014, after four hours of deliberations, the jury returned a defence verdict, finding completely in Davey Marine Centre's favour.

On April 13 2016 the judge denied the plaintiffs' motion for a new trial.

For further information please contact please contact William Boeringer at Fowler Rodriguez by telephone (+1 786 364 8400) or email (wboeringer@frfirm.com). The Fowler Rodriguez website can be accessed at www.frfirm.com.

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