Product Group Asks 11th Circ. To Reboot Kawasaki Jet Ski Suit

November 8, 2012 – Media Coverage

Law360, New York (November 8, 2012, 3:41 PM EST) -- The Product Liability Advisory Council Inc. on Tuesday asked the Eleventh Circuit to reverse a district court ruling in a suit claiming Kawasaki Motors Corp. U.S.A. makes dangerously defective jet skis, saying the lower court had erred by allowing unreliable expert testimony.

PLAC, a nonprofit industry group that represents more than 100 corporations, claims that a Georgia federal judge failed in his gatekeeping obligations under the U.S. Supreme Court’s Daubert standard, which governs the admissibility of expert testimony in federal court cases, by allowing unreliable expert testimony in a suit brought by a woman who claims she was severely injured after falling off a watercraft that lacked a protective seat back or engine kill switch. The testimony led to a $3 million design defect verdict against Kawasaki, according to the nonprofit.

“A trial judge has no discretion to admit conclusory opinions lacking any foundation except the expert’s say-so; to switch the burden to establish reliability from the proponent to the opponent; nor to treat the right of cross-examination as a proxy for gatekeeping,” the group said in an amicus brief. “That is what occurred in the present case.”

At issue is the testimony of Michael Burleson, who according to PLAC proposed an alternative seat design for the jet ski and whose expert report was allowed over the objections of Kawasaki despite the plaintiff’s failure to identify any solid data in support of the reliability of the design, in effect shifting the burden onto Kawasaki to demonstrate the proposed alternative design was unreliable.

The complaint, originally filed in Florida in 2007, was brought by Georgia college student Megan Sands, who was riding as a passenger on a Kawasaki 2003 Ultra 150 Jet Ski in the Bahamas when she was thrown backward from her seat into the water, causing her to suffer severe, extensive and permanent damage to her lower extremities.

Sands said in her complaint that the jet ski did not have either a raised seat back or a “sissy bar” to prevent passengers from falling backward, or a kill switch that would allow an ejected passenger to cut off the engine.

The case was transferred to Georgia and went before a jury in August 2011, resulting in a favorable verdict for Kawasaki on strict liability and negligent failure to warn claims and a finding in favor of Sands on design defect claims. The jury awarded Sands $3 million for her past and future medical expenses, according to court documents.

A central element of the appeal — and the focus of PLAC’s brief — is the district court’s denial of Kawasaki’s motion to exclude testimony by Burleson, who provided the only expert testimony on behalf of the plaintiff purporting to provide evidence of design defect, according to the brief.

The bulk of Burleson’s testimony was an attempt to establish a reasonable alternative seat design, asserting that a raised seat back would have prevented the accident without sacrificing safety or comfort, according to the brief.

According to PLAC, in offering this testimony Burleson did not present testing or engineering analysis, and as a result his testimony that a seat back would enhance safety and would not create additional new hazards for riders, as Kawasaki had claimed, was merely a “hypothesis dressed up as expert opinion” and should therefore have been excluded under Daubert gatekeeping standards, according to PLAC.

PLAC also objected to the trial court’s “double standard” in allowing Burleson’s allegedly unsubstantiated opinion while excluding an exhibit submitted by Kawasaki’s own expert providing computer-generated kinematic analysis on the basis that he had not tested an actual watercraft, according to the brief.

Representatives for the parties were not immediately available for comment Thursday.

Sands is represented by the Law Office of David H. Pollack LLC, Barrow & Ballew PC, Harp & Callier LLP and Franklin Taulbee Rushing Snipes & Marsh LLC.

Kawasaki is represented by Thompson Coburn LLP, Hawkins Parnell & Young and Edenfield Cox Bruce & Classens PC.

The case is Megan Sands v. Kawasaki Motors Corp. U.S.A. et al., case number 12-14667, in the U.S. Court of Appeals for the Eleventh Circuit.