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10th Circuit affirms summary judgment for Kawasaki, rejects plaintiff’s claim that ‘warnings don’t work’

April 1, 2021

Products Liability partners Rick Mueller and Heather Counts secured another victory on behalf of Kawasaki Motors Corp., U.S.A., when the 10th Circuit unanimously affirmed the summary judgment ruling for Kawasaki (following the exclusion of all of the plaintiff’s experts) in Wells (formerly Rider) v. Kawasaki Motors Corp., U.S.A., 2019 WL 5802637 on March 29, 2021.

Plaintiff Nicole Wells (then aged 16) was injured during a 2015 family outing on Lake Powell where she fell from the rear of a Jet Ski. She was taken by helicopter to Salt Lake City for treatment, which ultimately included multiple surgeries.

The case was filed by “Inner Circle of Advocates” firm Friedman Rubin of Seattle, Washington. The plaintiff demand was large and Kawasaki never made an offer. There were dozens of witnesses in the hard-fought case, including experts in mechanical engineering, thermal fluid sciences, biomechanical engineering, and human factors. Kawasaki moved to exclude all of the experts designated by the plaintiff and the third-party plaintiff (the operator of the Jet Ski). The technical issues were extensively briefed before the trial court (Judge Nuffer, D. Utah.). Following Kawasaki’s initial Daubert briefs, the plaintiff essentially dropped three of her experts and went forward with the remaining two liability experts – Dr. Anand Kasbekar (mechanical engineer) and Ms. Joellen Gill (human factors).

In this products liability case, the plaintiff took the novel position on her failure to warn claims that the “failure to warn” was really that Kawasaki should be faulted for relying on a warning at all, because “warnings don’t work.” (This was mostly due to the fact that there was a specific on-product warning about this risk.) Thus, the plaintiff argued that Kawasaki was obligated to “design out” the alleged defect by reconfiguring the product’s seat shape.

The district court judge excluded Ms. Gill, in part, for her failure to test or survey users regarding the warnings that she claimed were inadequate. While she had human factors expertise and relied on general warnings literature, the district court found Ms. Gill unqualified and her opinions unreliable.

The district court excluded Dr. Kasbekar (the design engineer), finding his opinions unreliable, as well. He used “furniture bags” to test the boat seats while the seats were sitting on the floor in his lab. This unconventional (albeit simplistic) testing was considered to be unverifiable, and the Tenth Circuit affirmed his exclusion, noting that the district court did not have to accept his opinions based on his own ipse dixit regarding their reliability.

The Tenth Circuit oral argument (where Kawasaki was represented by Rick Mueller) was conducted via Zoom. The questioning by the appellate panel was very active and, in fact, the oral arguments “ran over” by more than 10 minutes.

This is the third federal appeals court that has considered similar issues and affirmed judgment for defendants. Hickerson v. Yamaha (4th Federal Circuit) found the Uniform Warning Label located on personal watercraft (including Jet Skis and WaveRunners) to be adequate as a matter of law. Ruggierio v. Yamaha (3rd Federal Circuit) also found the warning adequate as a matter of law and affirmed a directed verdict for the defendant.

The team here was Rick Mueller, Heather Counts and Renee Watson. There was additional assistance on the briefs from litigation partners Carl Rowley and Mike Nepple, and associates B.I. Middleton and Tim Briscoe.