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The parents of a 12-year-old girl who was killed in a jet ski accident have lost their bid for a new trial in their products liability lawsuit against Yamaha Motor Corp. now that a federal appeals court has ruled that the trial judge properly limited testimony from three expert witnesses. In Calhoun v. Yamaha Motor Corp., a unanimous three-judge panel found that the trial judge, Senior U.S. District Judge Louis H. Pollak of the Eastern District of Pennsylvania, had “carefully and thoughtfully restricted testimony that offered opinions on specific matters without reliable foundation.” Chief Judge Anthony J. Scirica, in an opinion joined by Judges Marjorie O. Rendell and Thomas L. Ambro, found that “an expert may be generally qualified but may lack qualifications to testify outside his area of expertise.” The suit began in 1990 but took more than a decade to make it to trial due to two pretrial appeals, including one that went to the U.S. Supreme Court. In one of the appeals, Yamaha’s lawyers had argued that, because Natalie Calhoun had died on navigable waters, federal maritime law controlled the case and that all state law remedies should have been excluded. The Supreme Court disagreed and upheld a 3rd Circuit decision that said the Calhouns were entitled to pursue state law remedies in a maritime wrongful-death case in which no federal statute specified the appropriate relief and the decedent was not a seaman, long shore worker or person otherwise engaged in a maritime trade. At trial, Pollak barred two experts from testifying that the jet ski’s warning was inadequate because it said riders should be at least 14 years old, when, in the expert’s opinion, it should have imposed a 16-year-old age limitation. One of the experts was barred from testifying that the jet ski’s acceleration mechanism was badly designed because riders could accidentally activate the throttle by clenching their hands in a “stress reaction.” A third expert was barred from opining that the throttle design was faulty because it resembled a bicycle brake. On appeal, the Calhouns’ lawyers — David F. Binder and A. Roy DeCaro of Raynes McCarty Binder Ross & Mundy — argued that Pollak’s restriction of the expert witnesses went too far. According to the suit, the accident occurred in June 1989 when Natalie Calhoun was vacationing with her friend, 13-year-old Melanie Fox, and Melanie’s family at the Palmas del Mar resort in Puerto Rico. Melanie’s mother, Corinne Fox, gave permission to the girls to rent a jet ski at the marina. Although the jet ski carried a warning that the minimum recommended age for operation was 14, the girls were allowed to rent it. Neither girl had ridden a jet ski before. The 19-year-old salesman gave them 10 minutes of instructions, according to the opinion. After Melanie’s uneventful 30-minute ride, she reported that the jet ski was “fun” and “easy,” the opinion said. But Natalie struggled and fell off once while attempting to turn. The salesman rode out to her in another jet ski, but by the time he reached her, she had remounted and assured him she was “OK,” the opinion said. But when she restarted the jet ski, Natalie made a sudden turn, and planed at high speed across the lagoon toward an anchored boat. As she approached the boat, she screamed but did not appear to attempt to veer away. She crashed into the boat and died from massive head and neck trauma. One witness who saw the accident testified that she appeared “frozen” and “scared stiff,” the opinion stated. Natalie’s parents, Lucien and Robin Calhoun, filed suit against Yamaha alleging claims of strict liability, negligence and breach of implied warranties of merchantability and fitness. The plaintiffs lawyers focused on an alleged defect in the design of the jet ski’s accelerating mechanism, which is referred to as a “squeeze finger throttle” and resembles the braking mechanism on a bicycle. They also contended that the warnings on the jet ski were inadequate. At trial, Pollak permitted three expert witnesses to testify for the plaintiffs but limited the extent of their testimony. Before the case was submitted to the jury, Pollak dismissed the negligence claim. The jury returned a verdict in favor of Yamaha on the strict liability claims, clearing it of any liability. On appeal, the Calhouns asked for a new trial, arguing that Pollak went too far in restricting their experts. Now the 3rd Circuit has ruled that all of Pollak’s evidentiary rulings were correct. Judge Scirica outlined the qualifications and proposed testimony of each witness and found that Pollak had properly barred testimony that would have been unreliable. The first expert, Edward W. Karnes, was planning to testify that the jet ski was defectively designed. Karnes also planned to tell the jury that the warnings on the jet ski should have restricted operation to those 16 and older. Karnes holds a doctorate in experimental psychology and is a professor of psychology at Metropolitan State College in Denver. His specialties include “human factors engineering,” and he has worked as a human factors engineer at the Martin Marietta Corp. Defense lawyers opposed his qualification, arguing that Karnes has no degree in engineering and lacks expertise in marine vessel design or operations. But Pollak ruled that he was qualified to testify as an expert because of his extensive experience in general design and operations. However, Pollak imposed restrictions. Karnes was allowed to describe the squeeze finger throttle on the jet ski and to testify that because of the throttle’s similarity to a bicycle brake, a child in a stress situation would naturally squeeze the mechanism in order to stop the jet ski. But Karnes was not allowed to tell the jury of his other theory — that as a “stress reaction,” a person would have a tendency to clench her hands, which would inadvertently activate the throttle. Scirica found that the restriction was proper because “there was no support for Dr. Karnes’ opinion on an asserted ‘tendency’ to clench hands as a ‘stress reaction.’ There was no literature confirming this theory, nor demonstrable tests.” As a result, Scirica found, the proposed testimony was “speculative and unreliable.” Similarly, Scirica found that “Karnes’s general knowledge in the fields of psychology and human factors engineering may allow him to testify regarding proper warnings in general. But proffering admissible testimony that the proper age for jet ski use is 16 or above requires more specific knowledge.” Scirica found that Pollak was also correct in barring Albert Bruton, a lieutenant for San Diego’s Marine Safety Services, from testifying that Yamaha’s accelerating mechanism was not as safe as other alternative designs. Pollak allowed Bruton to testify about jet ski operation and, generally, about warnings due to his extensive experience with jet skis. But he was barred from testifying about design defects or the proper substance of a particular warning. Scirica found that Pollak’s restrictions were proper, noting that Bruton “had no education or experience in product design of jet skis or accelerating mechanisms; nor did he provide scientific, statistical or other evidence evaluating the relative safety of different jet ski models or their accelerating mechanisms.” Likewise, Scirica found that Pollak had properly restricted the testimony of Robert A. Warren, an accident reconstruction consultant with a focus on marine engineering who has a bachelor’s degree in naval architecture and marine engineering. Pollak allowed Warren to describe the squeeze finger throttle on the jet ski, but forbade his proffered testimony that it was unsafe due to its similarity to a bicycle’s braking mechanism. He also prohibited Warren from offering testimony about warnings. Scirica agreed with the restrictions, finding that Warren never conducted tests to “evaluate the relative merits of alternative throttle designs,” and, as a result, “was unable to give reliable testimony on whether Yamaha improperly employed the squeeze finger throttle.”

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