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From Products Liability Law Daily, July 7, 2015

Design, warning defect issues for jury in boating tube accident case

By Susan Lasser, J.D.

In a boating accident involving an inflatable boating tube that severed a six-year-old passenger’s foot, genuine issues of material fact existed on the passenger’s design and warning defect claims against the tube’s designer/distributor and manufacturers to preclude judgment as a matter of law for the defending parties, a federal district court in Alabama ruled. The court also held that the passenger’s engineering expert’s testimony was admissible and provided sufficient evidence in support of the defect and causation elements of the passenger’s claims to prevent summary judgment (Williams v. The Coleman Co., Inc., July 6, 2015, Bowdre, K.).

Background. In 2009, a boating accident severed the foot of six-year-old Brandon Williams (passenger). The accident involved a Monster Mania tube, an inflatable donut-shaped, towable boating tube, designed and distributed by the Coleman Company (Coleman) for recreational tubing. Coleman contracted with Polyama Plastic Industrial Ltd. (Polyama) for the production of the Monster Mania tube and provided Polyama with the design specifications for the tube as well as the tube’s warnings. Polyama filled the Coleman order by contracting with Zhongshan Pleasure Time Plastic Industrial Ltd. (Zhongshan) to manufacture the Monster Mania tube. Zhongshan manufactured the tubes using the Coleman specifications and attached Coleman’s warnings. The tubes passed from Zhongshan to Polyama to Coleman before being sold to consumers.

The accident. Williams and his family were on the boat of a family friend for a day of tubing on the lake. The boat owner pulled the tube within a few feet of the back of the boat and tied the tow rope pulling the tube to a wooden railing, coiling the excess rope on the floor of the boat. After tying the rope off, the owner piloted the boat toward the center of the lake, pulling the Monster Mania tube a few feet off the back of the boat. As the boat picked up speed and began to plane, the Monster Mania pitched in the air, landing upside-down in the boat’s wake. When the top of the tube contacted the water, the tube broke free from where it had been tied to the wooden rail, and the tow rope, still attached to the tube, quickly unraveled as the boat sped away. Williams had been riding in the back of the boat and the rope became tangled around his leg and jerked him into the air, pulling him toward the boat’s rear railing. As it became taut, the rope pulled Williams into the gap between the railing and the boat, severing his foot in the process. A later inspection of the boat revealed that a steel fastener that attached the wooden railing to the boat had been bent to the point of failure, partially detaching the wooden railing from the boat.

Following the accident, Williams, through his legal custodian, brought suit against Coleman, Polyama, and Zhongshan (defendants), alleging products liability claims for strict liability, negligence, breach of warranty of merchantability, and breach of implied warranty of fitness for a particular purpose. Relying on an expert’s report, Williams alleged that the Monster Mania tube was defectively designed and contained inadequate warnings. Before the court was Coleman’s motion for summary judgment, joined by Polyama and Zhongshan, and the defendants’ motion to strike Williams’ expert, John C. Frost. Polyama and Zhongshan also sought summary judgment on Williams’ negligence claim in a separate motion.

Safety engineer’s expert hypothesis. Williams hired John C. Frost, a safety engineer, to determine how the accident could have been avoided. He developed a hypothesis that the Monster Mania tube created significantly greater drag forces when towed in an inverted position, and the additional drag on the rope wrenched one end of the wooden railing from the boat, allowing the tow line to slip free. He tested his hypothesis by pulling the Monster Mania tube behind the boat at various speeds and in different positions. After conducting the tests, Frost included the averaged drag numbers in his report. He explained that the drag forces created by the tube when it flipped increased from about 40 pounds to over 500 pounds, “dramatically increasing the strain on the railing where the rope had been tied.” The expert opined that but for the increased strain on the rope, the railing would not have been wrenched free and the accident would not have occurred.

Moreover, his report identified two major design defects in the Monster Mania tube. First, because of the location of the tube’s tow handle—the strap was sewn onto the tube to which the tow line was attached—the tube became submerged when inverted. The expert found that if the tow handle had been attached to the centerline of the tube instead of to the bottom portion of the tube, the tube would have skimmed over the water when towed in an inverted position rather than causing the tube to “submarine.” He also found that the cover on the bottom of the tube created a strong vacuum when towed upside-down. The second defect related to the tube’s cover, which Coleman designed with a solid, non-permeable bottom and an open top. The bottom cover had a one-way-flapper valve that allowed water to drain out of the tube. Frost stated that, when towed in an inverted position, the water rushing underneath the tube created a vacuum by sucking the air out of the cavity created by the donut-shaped tube. The one-way flapper valve sealed the bottom of the tube, ensuring that the vacuum was not broken. The vacuum effect created by the tube could have been eliminated if the flapper valve had been designed differently, according to Frost.

Finally, Frost concluded that the warnings on the tube were insufficient to alert consumers to the dangerous drag forces created by the tube when towed in an inverted position. The tube’s operator manual, the on-product warnings, and the Monster Mania’s packaging did not warn about the dangers of towing the tube without a rider or provide guidance on how to transport the tube safely on the boat. Frost pointed to similar tubes made by Coleman’s competitors that contained appropriate warning language. He opined that the accident likely would have been avoided if the tube had included adequate warnings.

Joint motion to strike expert testimony and motion for summary judgment. The defendants’ only argument was that the passenger could not establish either the defect or the causation elements of his product liability claims because his expert’s report and testimony (the passenger’s only evidence in support of the two elements) should be excluded under Federal Rule of Evidence 702 and Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). After determining that the defendants’ motion to exclude the expert’s testimony was without merit, the court denied the summary judgment motion.

The court found that Frost possessed sufficient education and experience to testify as an expert regarding the design of the tube, the drag forces created by the tube, and the adequacy of the tube’s warnings. In addition, although the defendants alleged that Frost’s methodology was flawed for a number of reasons, the court found that the defendants’ objections all went to the weight of the expert’s testimony, not to its admissibility. As such, the objections could be addressed sufficiently through cross-examination. Because the expert’s testimony and report were admissible, the court denied the defendants’ joint motion for summary judgment because genuine issues of material fact existed as to whether the Monster Mania tube was defective and whether that defect caused the passenger’s injuries.

Manufacturers’ motion for summary judgment. The manufacturers, Polyama and Zhongshan, sought judgment as a matter of law on the negligence claim, under maritime law, in which Williams alleged that the makers were negligent in connection with the design, testing, warnings, and manufacturing of the Monster Mania tube. They claimed, however, that they did not owe the passenger a duty related to the design, testing, or warnings of the Monster Mania tube and that, although they owed a duty relating to the manufacturing of the tube, the passenger failed to establish a manufacturing defect. Specifically, the manufacturers asserted that they did not owe a duty because they followed the specifications of the tube buyer, Coleman—arguing that because they did not design or develop the tube or its warnings, they could not have been negligent in relation to those aspects of the tube.

In response, Williams argued that the manufacturers had a “non-delegable duty” under admiralty law “to manufacture a product which is reasonably safe for its intended purpose.” The court agreed with the manufacturers on this point, finding that the great weight of common-law principles, which apply in admiralty law, supported the proposition that a manufacturer does not have a duty related to the design of a product unless that manufacturer played a role in designing the product. Merely playing a role in the production of the tube did not establish that Zhongshan and Polyama owed the passenger a duty relating to the design of the tube or its warnings. They would owe such a duty to Williams related to the design of the Monster Mania tube only if they had actually played a role in its design.

Because the court found sufficient evidence existed that the manufacturers, in fact, did play a role in the design of the tube, a genuine issue of material fact was created to preclude summary judgment in their favor. While Coleman conceded that it provided the manufacturers with most of the design specifications for the Monster Mania tube, it denied specifying the location of the tow rope attachment—one of the elements of the tube’s design that the passenger’s expert cited as being defective. Because all of the defendants denied designing the location of the Monster Mania tube’s tow rope attachment, and one of them must have designed the location, the court ruled that credibility determinations by the jury were required on whether either manufacturer played any role in designing the Monster Mania tube and whether they owed Williams a duty related to the tube’s design. Thus, the manufacturers’ motion for summary judgment on the passenger’s negligence claim was denied.

The case is No. 4:11-cv-02384-KOB.

Attorneys: M. Clay Martin (Martin & Helms PC) for Brandon Williams. Matthew K. Holcomb (Hinkle Law Firm LLC) for The Coleman Company, Inc. W. M. Bains Fleming, III (Norman Wood Kendrick & Turner) for Polyama Plastic Industrial Ltd. and Zhongshan Pleasure Time Plastic Industrial Ltd.

Companies: The Coleman Company, Inc.; Polyama Plastic Industrial Ltd.; Zhongshan Pleasure Time Plastic Industrial Ltd.

MainStory: TopStory DesignManufacturingNews WarningsNews ExpertEvidenceNews SportsandRecEquipmentNews AlabamaNews

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