Personal Watercraft Litigation - Discovery Strategies & Trial Preparation
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ROBERT B. BAKER, FL
ATLA 2006 ANNUAL CONVENTION
Personal Watercraft Litigation – Discovery Strategies And Trial Preparation
I. In preparing for trial in any complex products case, it is best to begin by carefully drafting motions in limine on legal issues seeking rulings which may ultimately control the presentation of your case. Similarly, it is most important to properly construct legal arguments in opposition to the defendants most often used motions in limine which are intended to frustrate and derail the presentation of your case in chief.
The particular motions in limine in any given case will often be quite fact specific. Therefore, the focus of this presentation will be on the most important and common defense motions in limine, as well as the plaintiff’s counter-arguments. Next, the presentation will be the plaintiff’s most commonly used motions in limine in a personal watercraft case, as well as the defendant’s anticipated responses. [1]
II. Most commonly encountered defense motions in limine and personal watercraft litigation.
A. Defendant’s motion in limine to exclude mention of “off-throttle” or “off- power” steering, particularly in cases without an eyewitness.
Personal watercraft manufacturers will ask the trial judge to rule that plaintiff’s counsel be precluded from referring to off-throttle steering (“OTS”) or off-power steering (“OPS”) as either a defect or counter-intuitive during presentation of plaintiff’s case in chief. This is especially true in those cases where an eyewitness was not present to testify regarding the turning of the handlebars just prior to the accident. In a warnings case, the manufacturer will argue that evidence concerning OTS or OPS is irrelevant to the remaining issues in the case.
In a strict liability design defect case, plaintiff should argue that these OTS or OPS arguments are highly relevant and are precisely the design defect to be considered by the jury. Proximate causation evidence is not a prerequisite. Most states allow a stacking of inferences in this regard. Defense should not be permitted to object to terms that they themselves include in their written literature, including owners’ manuals, operating guides, safety handbooks and safety videos.
In a warnings case, the fact that the craft possessed handling characteristics of having no OTS or OPS steering is still highly relevant and, in fact, essential to plaintiff’s case as plaintiff will contend that the counter-intuitive nature of the machine is a major reason why defendant was negligent in failing to include adequate aged-based warning on the craft. Inform the court that this design characteristic requires a certain level of mental maturity and physical development to understand and operate the personal watercraft with the inherent design feature of off-throttle steering. This cannot be appreciated and understood by a minor in the absence of an explicit age-based warning.
B. Defense will move to exclude from evidence the National Transportation Safety Bureau’s (“NTSB”) Safety Study regarding personal watercraft.
The manufacturer will seek to have the court exclude the May 18, 1998 personal watercraft safety study under the pretense that it is information supplied by outside sources and contains evaluations or statements of opinions by a public official. The manufacturer will further argue that based upon the incomplete nature of the compiled data gleaned from accident reports, the report is inadmissible. Under Florida Rule of Evidence § 90.803(8), defense will argue lack of trustworthiness. In the case of Lee v. Department of Health and Rehabilitation Services, 698 So.2d 1194 (Fla. 1997), the Florida Supreme Court stated: “Records that rely on information supplied by outside sources or that contain evaluations or statements of opinions by a public official are inadmissible under this provision.”
The plaintiff should argue that this report is admissible as a public record or report. Counsel should point out that the NTSB is an independent federal agency dedicated to promoting aviation, railroad, highway, marine, pipeline, and hazardous materials safety. Established in 1967, the agency is mandated by Congress through the Independent Safety Board Act of 1974 to investigate accidents, determine the probable cause of the accidents, issue safety recommendations, study transportation safety issues, and evaluate the safety effect of this after study of transportation issues. The Safety Board makes public its actions and decisions through safety studies, safety recommendations and statistical reviews. Therefore, the plaintiff will argue that this fits within the public records exception to the hearsay rule.
Federal Rule § 803(8)(c) permits public records that set forth “factual findings resulting from an investigation made pursuant to authority granted by law”. The federal rule thereby allows admission when a public official is required to interpret and evaluate facts and information supplied by persons outside the agency. In Beach Aircraft Corp. v. Rainey, 488 US 153, the United State Supreme Court found that conclusions based on a factual investigation of a public agency were admissible if they were trustworthy without regard to whether the conclusions were “fact” or “opinion”.
C. In a death case the manufacturer will seek to exclude testimony of any “grief “expert.
Defense will argue that this testimony should be inadmissible because it neither proves nor disproves a material fact as no one disputes that the survivors do, in fact, grieve the loss of their loved one. They will further argue that such testimony is cumulative to the testimony of the survivors. Finally, they will argue that grief associated with death of a loved one does not require expert opinion.
Plaintiff should argue that jurors do require expert opinion and that such testimony will assist the jury in understanding the evidence and deciding damage issues. In Angrand v. Key, 657 So.2d 1146 (Fla. 1995), the Florida Supreme Court held that the experience, age and other relevant information about the jurors or the facts in a particular case could provide a basis for the trial judge to conclude that a grief expert or person with similar expertise, training and education would assist the jury in understanding the evidence or in deciding the appropriate damages. “These are factors to be considered by the trial judge in the exercise of his or her discretion.” [2]
III. Plaintiff’s most important motions in limine in a personal watercraft case.
A. Plaintiff should move in limine to limit any evidence regarding effectiveness of age-based warnings on all terrain vehicles (“ATV’s), including the CPSC study on ATV’s.
Defendant will present evidence through their experts that the addition of a specific age-based warning to ATV’s did not help to reduce the numbers or percentage of death and injuries to minors after such mandatory warning labels were added in response to a CPSC study released in 1996.
It must be brought the court’s attention that ATV’s are not “substantially similar” to personal watercraft so that evidence of ineffectiveness of warnings on ATV’s would not logically tend to prove that a warning on a personal watercraft would likewise be ineffective. Pursuant to the case of 3M Corporation v. McCann Medical Reports Division v. Brown, 475 So. 994 (Fla. 1st DCA 1985), a party must establish that two products are substantially and materially similar so that evidence of a defect in one model can be considered a basis for finding a defect in another model. Based on this reasoning, defense will argue that the same should hold true in offering evidence that age-based warnings on personal watercraft would be ineffective. The plaintiff must argue that this predicate cannot be established for the following reasons:
1. ATV’s come in children and adult sizes; personal watercrafts come in one size.
2. The percentage of underage children injured on ATV’s is very different than the number on personal watercraft.
3. ATV’s were actively marketed to children even after the CPSC consent decree whereas personal watercrafts are not marketed directly to children.
B. Move in limine to strike any evidence regarding violation of an operational statute by the rider or owner.
Personal watercraft manufacturers argue in each and every case that the resulting injury or death was solely caused by operator error and/or improper instruction from the owner. It is therefore important to bring to the trial judge’s attention before the presentation of any evidence that such argument is highly prejudicial and should not be permitted. Statutes requiring minimum operator age typically seek to make it unlawful for any person having charge of or control over a personal watercraft to authorize or “knowingly permit” the personal watercraft to be operated by a person under the minimum age in that state. [3] In the absence of any credible evidence that the owner “knowingly” permitted a person under age to operate the watercraft, such argument should be impermissible. Further, the probative value of such information is vastly outweighed by its unduly prejudicial nature and confusion of the issues.
C. Plaintiff should move in limine to prohibit introduction of accident reports.
Unfortunately, all too often law enforcement officers determine that personal watercraft accidents are as a result of operator error, inattention, recklessness, and the like. They simply see that the operator impacted either a stationary or moving object and opine that there was a lack of attentiveness on the part of the operator. This is obviously untrue, but law enforcement is typically not concerned with the defective design characteristics of the personal watercraft, nor are they adequately trained to make such a determination. Therefore, defense counsel will often times try to either seek introduction of a police report or seek to elicit testimony from the investigating officer as to their conclusions in the report.
In Florida, case law clearly states that “The accident report privilege precludes the admission of information contained in a police accident report if the information is based on statements made to the investigating officer by witnesses and persons involved in the accident.” See, Hammond v. Jim Hinton Oil Company, 530 So.2d 995 (Fla. 1st DCA 1998). The privilege does not, however, preclude admission of tangible evidence that the investigating officer observes personally at the scene.
It is important for plaintiff’s counsel to make the trial judge aware of this important distinction prior to the presentation of any tainted argument/evidence.
[1] The purpose of this paper is to provide a skeletal outline of the most common motions in limine in a personal watercraft case. Because of space limitations, many specific case citations could not be included. Please feel free to contact Mr. Baker directly to obtain legal memorandum on all of the above topics, as well as any supporting case law.
[2] In seeking to use a grief expert or the like, it is important to ask the prospective jury panel during voir dire about any past experience with loss of an immediate family member. Those jurors who have not endured the loss of a loved one will be more inclined to benefit from the expertise of a grief or bereavement expert.
[3] See Florida Statute § 327.39(6)(a).
