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John Mcgarrigle, and Barbara Mcgarrigle, H/W v. Mercury Marine

December 20, 2011


The opinion of the court was delivered by: Hillman, District Judge


Before the Court is defendant's motion for summary judgment and plaintiffs' cross-motion for partial summary judgment. For reasons explained below, defendant's motion for summary judgment will be granted in part and denied in part, and plaintiff's cross-motion for summary judgment will be granted in part and denied in part. Dr. Fisher will be allowed to testify as plaintiff's expert, but cannot rely on the US Coast Guard Navigation and Vessel Inspection Circular No. 4-89 in his opinion. Defendant is permitted to introduce as evidence of proximate cause facts regarding the condition of the water and speed of plaintiff's boat, and evidence of plaintiff's behavior after he was ejected from the boat. However, defendant will not be permitted to introduce facts regarding plaintiff's father's failure to read an owner's manual as evidence of comparative fault or proximate cause since such misuse was foreseeable by defendant.


This consumer product liability case arises out of a boating accident that occurred on July 21, 2007, in Seabreeze, Cumberland County, New Jersey. Plaintiff, John M. McGarrigle,*fn1 was operating his father's boat, a twelve foot aluminum fishing boat equipped with a 2001 15 horsepower Mercury Marine outboard engine, when he was pitched overboard. As plaintiff fell into the water, his grasp on the tiller caused the boat to spin in a clockwise motion. The boat circled plaintiff several times, coming closer to plaintiff with each rotation. Plaintiff did not try to swim towards the shore. Plaintiff tried to grab hold of the circling boat and climb on board, but the boat went over him and the propeller from the engine struck his face and neck causing severe injuries. Several witnesses observed the boat going in circles and went to assist the plaintiff or call for help. One witness, Dr. William Pace, swam out approximately 100 to 150 feet from the shore, and supported plaintiff as he pulled him toward the shore.

New Jersey Marine Patrol Officer William Panco investigated the accident and interviewed plaintiff about a month after the accident. Plaintiff told Officer Panco that the bay was fairly "choppy" on the day of the accident and that he was running about fifteen miles per hour. Plaintiff stated he hit a wave and was ejected from the boat. He also told Officer Panco that he "had a few beers earlier in the day" although Officer Panco did not feel that intoxication contributed or caused this accident. Rather, Officer Panco concluded that the accident was caused by "excessive speed" although he testified that he has no personal knowledge of the plaintiff's actual speed. Officer Panco had responded to the accident scene and observed that the water was "choppy" and "rough" for the type of boat used by plaintiff. However, there was no small craft advisory issued that day by the U.S. Coast Guard.

The Mercury Marine outboard engine should be operated with a "lanyard" stop switch. The purpose of the lanyard is to provide a safety device to stop the engine in the event of the operator being thrown overboard. One end of the lanyard is inserted into the "run/off" switch while the other end is fastened to the operator. If the operator moves far enough away from the engine, or is thrown overboard, the lanyard will turn the engine off in order to prevent injury from a runaway boat.

When plaintiff's father, John W. McGarrigle ("Mr. McGarrigle"), purchased the Mercury Marine engine in September 2001, he did not receive a lanyard stop switch. He did, however, receive an owner's manual which described the nature, function, and purpose of the lanyard and the dangers of failing to use it. Neither Mr. McGarrigle, nor plaintiff read the owner's manual. Defendant's expert admits that it is well known that there are people who will operate the boat who have not read the owner's manual. Mr. McGarrigle stated that had he read the manual, he would have obtained a lanyard. Both Mr. McGarrigle and plaintiff admit that had a lanyard been used, the accident would not have happened.

Mercury Marine has been designing, manufacturing and selling outboard engines for use on recreational boats since 1939. There is no evidence that any of Mercury Marine's engines are not in compliance with all applicable safety laws and regulations. On its 2.5 to 6 horsepower outboard engines, Mercury Marine uses a type of lanyard that prevents the operator from starting the engine without first inserting the engine end of the lanyard into the emergency stop switch on the engine (hereinafter "lanyard A"). All other manufacturers of outboard engines also use the lanyard A. On its 8 to 25 horsepower outboard engines, however, Mercury Marine uses a design that allows the operator to start the engine without having the lanyard stop switch connected to the engine (hereinafter "lanyard B"). The lanyard B allows another boat passenger to restart the engine without a lanyard and navigate back to the person in the water. Plaintiff was operating a Mercury Marine engine that relied on the lanyard B and, therefore, allowed plaintiff to start the engine without a lanyard stop switch. There were no warnings on the engine advising the operator to use a lanyard switch or to read the owner's manual before operating.

Plaintiffs brought a product liability action against Mercury Marine alleging that Mercury Marine placed into the stream of commerce a product which was not fit, suitable and safe for its intended purpose; that plaintiff was a foreseeable user of the product and the events that occurred on July 21, 2007 were foreseeable; and that defendant failed to properly design and manufacture the engine and failed to adequately warn foreseeable users of the engine in violation of N.J.S.A. 2A:58C-2, et seq.


This matter was removed from Superior Court of New Jersey by defendant. This Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (diversity). Plaintiffs are citizens of Pennsylvania. Defendant is a division of Brunswick Corporation which has its principal place of business in Lake Forest, Illinois, and is incorporated in the State of Delaware. Plaintiff has alleged severe, permanent injuries, pain and suffering, and lost wages. Defendant in its notice of removal asserts that the amount in controversy exceeds $75,000.00, and plaintiff does not dispute that assertion. See Sherman v. Bally's Hotel & Casino, No. 09-cv-970, 2010 WL 1491425, at *1 (D.N.J. Apr. 13, 2010) (finding claims for potentially permanent injuries and pain and suffering often give rise to damages in excess of $75,000).


Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).

An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

If review of cross-motions for summary judgment reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts. See Iberia Foods Corp. v. Romeo Jr., 150 F.3d 298, 302 (3d Cir. 1998) (citation omitted).


In order to pursue a product liability action against a manufacturer, a plaintiff must show "by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose." N.J.S.A. 2A:58C-2. This can be demonstrated by showing that the product failed to contain adequate warnings or instruction, and by showing that the product was designed in a defective manner. Id. Plaintiffs intend to meet their burden by providing expert testimony through their expert, Kenneth W. Fisher, Ph.D. Defendants argue that Dr. Fisher is not qualified to testify in this matter.

A. Expert Admissibility

Defendant argues that plaintiffs' expert should be stricken as plaintiffs' liability expert and should be precluded from testifying because he and his opinions ...

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