Thompson Coburn partners Rick Mueller and Heather Counts continued their string of product liability victories for Yamaha Motor Corp., U.S.A., after a jury in the U.S. District Court for the Southern District of Florida returned a verdict in Yamaha’s favor on Monday afternoon.
On January 16, 2017, Dariana Mizrahi and a friend went on a ride with Nick Bonder on his 2013 WaveRunner FX Cruiser personal watercraft. She was 16 years old at the time of the accident. Nick Bonder, the operator, was 15 years old. They rode from Golden Beach to Biscayne Bay in Miami and came upon a five-foot wake. Bonder accelerated into the wake without warning his passengers. Mizrahi fell off the back of the craft and suffered a water intrusion or orifice injury. She was helicoptered to a nearby hospital and survived.
She sued Yamaha Motor Corp., U.S.A. and Yamaha Motor Co., Ltd. (the wholesaler and designer of the FX Cruiser), alleging strict products liability and negligence claims for design defect and failure to warn. The case was tried in federal district court in Miami (Mizrahi vs Yamaha Motors Corp USA et al (17-24484-Civ-Scola)). The plaintiff retained Dr. David Lenorovitz to testify that the WaveRunner’s warnings, including the warnings’ requirement that users wear a wetsuit bottom or equivalent protective clothing, were inadequate. The plaintiff also retained Brian Haygood from SEAL Corporation in Tyler, Texas, to testify that even had the warning been adequate, his testing purportedly showed that wetsuit bottoms do not prevent injury, and that the craft was defective for lack of a raised, rigid seatback to prevent rearward falls.
Following Daubert rulings, the plaintiff abandoned her design defect claim (no longer arguing that the craft was defective for lack of a raised, rigid seatback) but continued with her claim that the warnings were inadequate alleging that they were poorly located on the craft, were unclear, and that wetsuit bottoms do not protect against injury. Rick Mueller cross-examined both experts at trial. Under Rick’s questioning, Dr. Lenorovitz, the warnings expert, admitted that the warning was not unclear; the warning could be understood by a reasonable consumer. Following Yamaha’s motion for judgment as a matter of law at the close of evidence, the court held that Haygood’s testimony regarding the efficacy of wetsuit bottoms was unreliable and would not be raised before the jury in closing argument.
On Monday, July 29, 2019, the eight-person jury returned a unanimous defense verdict on the plaintiff’s failure to warn claims after approximately two hours of deliberations. The plaintiff’s case was handled by Curt Miner of Colson Hicks Eidson (Miami), who asked the jury to award the plaintiff nearly $20 million dollars. Yamaha was defended by Rick and Heather (St. Louis) and Scott Sarason (Miami), with assistance from paralegal Renee Watson.
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