Attorney David Kleinberg, from Neufeld, Kleinberg & Pinkiert, PA was lead trial counsel in a six-week, products liability, marathon trial against Yamaha for selling a defective wave runner. Mr. Kleinberg’s trial team was able to prove: (a) that Yamaha knew of this design defect; (b) knew that many people were sustaining severe injuries due to the design defect; and (c) that Yamaha had the technology and capability (they owned actual patents!) to cheaply and effectively correct the design defect; but elected not to fix the problem that proximately caused catastrophic injuries to our client and the death of her best friend.
The defense machine was relentless. While they forced our costs to approach one million, their fees and costs had to exceed four million. They dragged it out to be a true marathon of a trial, April 29 – June 10. Fortunately, from time to time, right defeats might. This is one of those times.
The case involved a beautiful 15 year old girl permitted to use her Uncle’s Yamaha Waverunner XL800 while at the Easter party at his WPB waterfront home. It was her first time as a driver of a [wave runner]. She took her 14 year-old best friend on the ride. The ride lasted less than 15 minutes. She was running parallel to a 31′ open ocean racing boat on her right. She made a right U-turn to head home. As she began the turn, she felt close to the [race] boat so let off the throttle to continue her U-turn at a lower speed. But the moment she did, the PWC lost all steering ability. This is the defect, off throttle steering (OTS).
Over the next 0.4 seconds the racer not only delivered massive blunt trauma, but the stainless steel propellers of each of the two V-8 500 HP engine/outdrives slashed through the girls. The 14 year old passenger died in the water of overwhelming blood loss. The 15 year-old driver was saved, only to spend the next three months clinging to life as the specialists at St. Mary’s Trauma performed dozens of procedures to rebuild the damage to her body. In addition to blunt injuries to her internal organs, she suffered unspeakable degloving injuries from the low back to the knees (including the genitals). She also suffered horribly displaced fractures to the shoulder, hips, pelvis, and knee.
The excellent work of the Trauma Team only masked the real injury to her brain and soul. She was diagnosed with an organic Traumatic Brain Injury due to the combination of blunt trauma, blood loss and near-drowning/respiratory failure.
She never finished high school. She [now] cannot hold a job, She has struggled with substance abuse, and demonstrates dangerous impulsivity and violence. She cannot have or maintain any semblance of a normal relationship with a man.
On liability we were faced with the daunting task of facing the defense’s CSI-MIAMI team of original design engineers, reconstruction engineers, forensic specialists, human Factors experts, and Naval Architects assembled by Yamaha over twenty years of defending these cases, without a loss.
I was able to convince the jury that their experts were full of c**p, and our girl was telling the truth; my trial partner Robert Baker did a fantastic job exposing a twenty year history of actual notice of OTS problems, which Yamaha ignored in the face of both regulatory demands, and competitors’ changes.
The jury found the XL800 WaveRunner defective in both design and warnings.
Ultimately, the jury returned a verdict of $35 Million Dollars and apportioned 88% of the fault to Yamaha.