10th Circ. Says Experts Unreliable In Jet Ski Injury Suit

By Mike Curley

Law360 (March 29, 2021, 6:54 PM EDT) -- The Tenth Circuit on Monday refused to revive a suit by a woman alleging a Kawasaki Jet Ski's seat was defective and caused her to fall off while riding, saying the district court was within its discretion to exclude the opinions of both of her experts as unreliable.

The panel's decision affirmed both the exclusions and the summary judgment that ended Nicole Wells' suit. Wells alleges that during her family's vacation in Utah in 2015, she fell off a Kawasaki Motors Corp. USA Jet Ski as a result of the defective seat and its jet propelled water into her rectum, resulting in "shocking" internal injuries including a tear in her large intestine.

The Utah district court threw out testimony from Wells' experts: Dr. Anand Kasbekar, who testified that the seat was defective and caused her to slip off, and Joellen Gill, who testified that the warnings on the Jet Skis were not effective in preventing injury. Without those experts, the district court granted summary judgment in January 2020, prompting Wells' appeal.

The panel agreed with the district court, saying that Kasbekar's method of testing the Jet Ski was unreliable. To test the seats, Kasbekar placed on the seat a bag filled to weigh as much as Wells did in the summer of 2015 and covered it in bathing suit material. Then he used a cable-and-pulley system to measure how much force was needed to slide the bag off the seat, according to court documents.

This method was not subject to peer review and had no information about its error rate, the panel wrote, saying that even if the panel believed it was reliable, the district court was within its discretion to find otherwise and did not need to find it reliable based only on Kasbekar's testimony.

Likewise, the panel found the district court was within its discretion to find Gill's testimony unreliable, saying she did not provide an alternate design that would have been safer to support her contention that a better seat design, and not a warning, was needed to prevent injury.

In addition, the panel wrote, Gill's opinion is not based on testing, peer review and accepted studies but rather on generalized studies of warning labels and a limited subset of deposition testimony.

"Ms. Gill cites merely a few deponents' testimony and one article on [personal watercraft] warnings to support her point that consumers would not locate and read the on-product label, and cites no research or data to support her other points," the panel wrote.

Richard A. Mueller of Thompson Coburn LLP, representing Kawasaki, agreed with the ruling, saying Gill did "no real work" and had nothing to verify her theory, while Kasbekar's testing was "limited and unconventional and unverifiable."

"It was a hard-fought case," he said. "The technical issues were extensively briefed before the trial court."

Representatives for Wells could not immediately be reached for comment Monday.

Wells is represented by Kenneth R. Friedman of Friedman Rubin PLLP.

Kawasaki is represented by Richard A. Mueller and Heather F. Counts of Thompson Coburn LLP.

The case is Wells v. Kawasaki Motors Corp. USA et al., case number 20-4004, in the U.S. Court of Appeals for the Tenth Circuit.

--Editing by Daniel King.