Brunswick Corp., on behalf of its Mercury Marine and Sea Ray divisions, is asking for a rehearing in a case in which it was found partially liable for a 2005 accident on Lake Austin in Texas in which a teen's leg was severed by a propeller.
The Fifth Circuit Court of Appeals in May affirmed a decision handed down last year by a jury that Brunswick was partially responsible for the accident.
Brunswick would not comment on the motion. Robby Alden, an attorney for the plaintiff, told Soundings Trade Only that “historically, those are very rarely granted,” especially in a case with a unanimous opinion, such as this.
In court papers filed June 10, Brunswick is asking for the rehearing, saying the appeals court’s decision was “mistaken in at least two important aspects.”
First, “the panel has been misled into giving [Jacob] Brochtrup (the plaintiff) the benefit of evidence that he never presented and which the jury never heard nor saw. As a result, Brochtrup has been allowed to prevail without offering evidence on the required element of his claim — that is, the requirement that he provde this recreational boat, as designed, was unreasonably dangerous under the Texas risk-utility test.”
Second, according to Brunswick, the “panel has not applied the correct standard of review to assess the error appellants have identified in the trial court’s charge. The charge encouraged the jury to believe that Brochtrup did not have to prove that this boat, as designed, was unreasonably dangerous under the Texas risk-utility test. Instead, the charge wrongly suggested that, beyond proving the cause of his injury (which was never in dispute, anyway) Brochtrup needed to do no more than suggest a safer alternative design would have prevented his injury.”
On the day of the accident, Brochtrup, who as 18 at the time, and three others were in a 17.6-foot Sea Ray powered by a 135-hp MerCruiser sterndrive. When one of the tow ropes unhooked and fell into the water, Brochtrup jumped in behind the boat to retrieve it, according to court documents.
The driver put the boat into reverse to stop its forward motion and backed over Brochtrup. The propeller shredded his right leg, which was ultimately amputated at the hip joint.
The case went to trial three times. The first two juries were unable to reach a verdict. The third jury concluded that there was a design defect and awarded damages to Brochtrup.
Jurors ordered the company to pay $3.8 million in medical expenses and damages, finding that Brunswick shared more than half the blame for the accident. Jurors found that Brochtrup also was responsible, as was the driver of the boat.