4th Circuit Panel Affirms Summary Judgment In Watercraft Injury Suit

(February 26, 2018, 3:54 PM EST) -- RICHMOND, Va. — A Fourth Circuit U.S. Court of Appeals on Feb. 20 affirmed a trial court’s decision grant summary judgment to the makers of a personal watercraft (PWC) because a woman who was injured after falling off of one did not present enough evidence on how the product was defective (Deborah Meek Hickerson v. Yamaha Motor Corporation U.S.A., et al., No. 17-1075, 4th Cir., 2018 U.S. App. LEXIS 3951).

(Opinion available.  Document #77-180228-013Z.)

Suit

In 2012, Deborah Hickerson was riding on a 2011 Yamaha VXS WaveRunner, a PWC made by Yamaha Motor Corp. and Yamaha Motor Co LTD. (collectively, Yamaha).  The warning on the PWC advised riders to wear protective clothing while on it.  While Hickerson was riding as a passenger on the PWC, she fell off of the back and into the jet thrust behind it and suffered injuries to her rectum, perineum, vagina, anus and colon.  She had to undergo eight weeks of medical procedures and recovery.  When she was injured, she was not wearing a wetsuit.  She admitted that she did not read the warning before riding.

Hickerson filed suit in the U.S. District Court for the District of South Carolina against Yamaha, claiming strict liability, negligence and breach of warranties.  During discovery, Hickerson proffered the expert testimony of Dr. Anand Kasbekar.  The District Court found Kasbekar to be a credible expert.  However, the District Court disqualified Kasbekar’s opinion for a set of alternative warnings.  Yamaha then moved for summary judgment, which the District Court granted.  Hickerson then moved to reconsider, and the trial court denied the motion.

On appeal, Hickerson said the court erred by excluding Kasbekar’s opinions, by granting summary judgment to Yamaha and by denying her motion for reconsideration.

Affirmed

The panel said the District Court did not err by excluding Kasbekar’s testimony.

“Hickerson contends the district court abused its discretion by failing to conduct a proper Daubert [Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)] analysis before excluding Dr. Kasbekar’s inadequate warning opinion.  She argues the court mistakenly held that the proposed inadequate warning opinion was based only on the excluded alternative warning opinion when, in fact, Dr. Kasbekar had formulated his inadequate warning opinion by drawing on his experience, training, testing, and knowledge of PWC industry standards.  Yamaha responds that the district court appropriately excluded the inadequate warning opinion because it was unsupported with any scientific indicia of reliability.  To that point, Yamaha noted that Dr. Kasbekar’s claim for the inadequacy of the glove box and rear craft warnings hinged chiefly on their location; however, his only support for that proposition was his already excluded alternative warning opinion.  The district court did not abuse its discretion when it excluded Dr. Kasbekar’s inadequate warning opinion,” the panel said.

The panel further said Hickerson relied “to her detriment” on Kasbekar’s testimony to support her defective warning claims.

“Because ‘the question of the adequacy of the warning’ does not reach the jury unless ‘evidence has been presented that the warning was inadequate,’ and Hickerson failed to present such evidence, her warnings claims could not withstand summary judgment,” the panel said.  “The district court did not err in awarding summary judgment to Yamaha on the defective warnings claims.”

The panel also said the trial court did not err in granting summary judgment on the defective design claims.

“Hickerson based her claims of strict liability, negligence, and breach of warranties on theories of warning and design defects.  Because the record is devoid of admissible evidence on either theory of defect, the district court properly entered summary judgment for Yamaha on all claims,” the panel said.

Judge G. Steven Agee wrote the opinion.  Judges Dianna Gribbon Motz and Henry F. Floyd concurred.

Counsel

Hickerson is represented by David G. Owen in Aiken, S.C., and Douglas Franklin Patrick Sr. and Austin Fletcher Watts of Covington, Patrick, Haggins, Stern & Lewis in Greenville, S.C.

Yamaha is represented by Andrew Walker Barnes and Robert Holmes Hood Jr. of the Hood Law Firm in Charleston, S.C., and Richard Alan Mueller and Heather Faye Counts of Thomas Coburn in St. Louis.