Calhoun v. Yamaha Motor Corp.

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

11-18-2003

Calhoun v. Yamaha Motor Corp

Precedential or Non-Precedential: Precedential

Docket No. 02-4098

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PRECEDENTIAL

Filed November 18, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 02-4098 & 02-4162

LUCIEN B. CALHOUN; ROBIN L. CALHOUN,

Individually and as Administrators of the

Estate of Natalie K. Calhoun, Deceased

v.

YAMAHA MOTOR CORPORATION, U.S.A.; YAMAHA

MOTOR CO., LTD.; PALMAS DEL MAR COMPANY;

PALMAS DEL MAR, INC.; PALMAS YACHT CLUB, INC.;

MARINA DE PALMAS YACHT CLUB, INC.; MAXXAM

PROPERTIES, INC.; ABC CORPORATION(S); XYZ

PARTNERSHIP(S); CANDELERO HOTEL CORPORATION;

MARINA DE PALMAS SHIPYARD, INC.

Lucien B. Calhoun; Robin L. Calhoun,

Individually and as Administrators of the

Estate of Natalie K. Calhoun, Deceased,

Appellants at No. 02-4098

Yamaha Motor Corporation, U.S.A.;

Yamaha Motor Co., Ltd.,

Appellants at No. 02-4162

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Civil Action No. 90-cv-04295

(Honorable Louis H. Pollak)

Argued: July 29, 2003

Before: SCIRICA, Chief Judge, RENDELL and AMBRO,

Circuit Judges

2

(Filed: November 18, 2003)

DAVID F. BINDER, ESQUIRE

(ARGUED)

A. ROY DeCARO, ESQUIRE

Raynes, McCarty, Binder, Ross &

Mundy

1845 Walnut Street, Suite 2000

Philadelphia, Pennsylvania 19103

Attorneys for Appellants/Cross-

Appellees, Lucien B. Calhoun;

Robin L. Calhoun, Individually and

as Administrators of the Estate of

Natalie K. Calhoun, Deceased

JAMES P. DONOVAN, ESQUIRE

(ARGUED)

Wilson, Elser, Moskowitz, Edelman

& Dicker

150 East 42nd Street

New York, New York 10017

JONATHAN DRYER, ESQUIRE

Wilson, Elser, Moskowitz, Edelman

& Dicker

The Curtis Center, Suite 1130 East

Sixth and Walnut Streets

Philadelphia, Pennsylvania 19106

Attorneys for Appellees/Cross-

Appellants, Yamaha Motor

Corporation, U.S.A. and Yamaha

Motor Co., Ltd.

OPINION OF THE COURT

SCIRICA, Chief Judge.

In this products liability claim under maritime law, a jury

rendered a defense verdict. The principal issue on appeal is

the proper application of Federal Rule of Evidence 702 to

the proffered testimony of plaintiffs’ experts.

3

I.

Because this matter has been twice before our court, see

Calhoun v. Yamaha Motor Corp., U.S.A., 40 F.3d 622 (3d

Cir. 1994); Calhoun v. Yamaha Motor Corp., U.S.A., 216

F.3d 338 (3d Cir. 2000), and also before the Supreme

Court, see Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.

199 (1996), its tragic facts have been well documented. But

we detail certain facts as they relate to the matters

currently under appeal.

In June 1989, twelve-year-old Natalie Calhoun was

vacationing with her friend, thirteen-year-old Melanie Fox,

and Melanie’s family at the Palmas del Mar resort in Puerto

Rico. On June 6, Melanie’s mother, Corinne Fox, gave

permission to the girls to rent a jet ski at the marina.

Melanie and Natalie rented a Yamaha Wavejammer

WJ500G Personal Water Craft from nineteen-year-old

Samuel Roffe, a beach concessionaire at the Palmas del

Mar resort. Affixed to the jet ski was a warning that the

minimum recommended age for operation was fourteen.

Neither girl had ridden a jet ski before.

In Natalie’s presence, Roffe gave Melanie ten minutes of

instruction. No parents or guardians were present at this

time. While Melanie was riding the jet ski, her mother

arrived at the marina. Roffe assured Mrs. Fox that riding

the jet ski was “safe.” After Melanie’s uneventful thirty

minute ride, she reported that the jet ski was “fun” and

“easy.”

When it was Natalie’s turn, she was uncertain and

expressed doubts. Mrs. Fox left the decision to Natalie, and

eventually, she elected to ride. Roffe asked Natalie whether

she was the requisite fourteen years of age, and she

responded affirmatively. Roffe then gave her the same

instructions given to Melanie. Natalie mounted the machine

and began her ride in the lagoon near the resort.

Unlike Melanie, however, Natalie struggled and fell off

while attempting to turn. Alarmed by this development,

Mrs. Fox urged Roffe to “bring her back.” Roffe rode out to

Natalie in another jet ski, but by the time he reached her,

she had remounted and assured him she was “okay.”

Natalie restarted the jet ski, made a sudden turn, and

4

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. Roffe testified she

appeared “frozen” and “scared stiff.” Tragically, Natalie

crashed into the boat and died from massive head and neck

trauma.

Natalie’s parents, Lucien and Robin Calhoun, brought

suit against Yamaha Motor Company, Ltd. and Yamaha

Motor Corporation, U.S.A., the manufacturer and

distributor of the jet ski.1 The Calhouns asserted several

bases for recovery, including strict liability, negligence, and

breach of implied warranties of merchantability and fitness

for a particular purpose. Plaintiffs focused on an alleged

defect with 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. Plaintiffs also alleged the warnings were

inadequate. The warning on the foot well of the jet ski

provided in part:

3. MINIMUM RECOMMENDED OPERATOR AGE: 14

A MINOR USING THIS WATER VEHICLE REQUIRES

CLOSE ADULT SUPERVISION. CHECK FEDERAL/

STATE LAWS FOR MINIMUM AGE REQUIREMENTS.

After several appeals, the suit went to trial.2 A jury

rendered a verdict for defendants.

At trial, the District Court made several rulings that

plaintiffs challenge on appeal. Although the District Court

permitted plaintiffs’ three expert witnesses to testify, it

limited the extent of their testimony. Moreover, the District

Court refused to submit the negligence claims to the jury,

holding that plaintiffs could proceed only on their strict

liability claims.3 Furthermore, in jury interrogatories4 and

1. The Calhouns brought suit individually and as administrators of their

daughter’s estate. Yamaha Motor Company, Ltd. and Yamaha Motor

Corporation, U.S.A. are collectively referred to as Yamaha.

2. Of note, we determined that “federal maritime standards govern the

adjudication” of Yamaha’s liability. Calhoun, 216 F.3d at 351.

3. At the close of evidence, Yamaha moved for judgment as a matter of

law under Fed. R. Civ. P. 50 on both the negligence and strict liability

claims. The District Court granted the motion as to the negligence claims

but denied it as to the strict liability claims.

4. The interrogatories first asked the jury to determine whether the jet

5

instructions,5 the District Court applied comparative fault

ski had a defective design and/or a defect due to an inadequate warning,

which was a substantial factor in causing Natalie’s death. Only if the

jury determined that the jet ski was defective in such manner was the

jury to proceed to the interrogatories concerning Roffe and Palmas del

Mar. These latter interrogatories asked:

5. Do you find that Samuel Roffe and/or Palmas del Mar were

negligent?

Yes___ No___

6. Do you find that the negligence of Samuel Roffe and/or Palmas

del Mar was a substantial factor in causing Natalie Calhoun’s

death?

Yes___ No___

7. Having found that Yamaha manufactured and sold a defective

Wavejammer that was a substantial factor in causing Natalie

Calhoun’s death, and that the negligence of Samuel Roffe

and/or Palmas del Mar was a substantial factor in causing

Natalie Calhoun’s death, what do you find to be the relative fault

of those substantial factors? You are to express this conclusion

in percentages, and the total must be 100%.

Defect(s) of Yamaha Wavejammer: ___%

Negligence of Samuel Roffe and/or Palmas del Mar: ___%

Total: 100%

5. The court instructed the jury:

It is for you, the jury, to determine whether the Wavejammer was

defective and whether any defect was a substantial factor in causing

Natalie Calhoun’s death. If you should determine that her injuries

were so caused, you will have two additional issues to consider.

First, you will be responsible for determining whether Samuel

Roffe and/or [Palmas del Mar], neither of whom, of course, is a party

to this litigation, were negligent. And whether that negligence also

was a substantial factor in causing Natalie Calhoun’s death.

And if the answer to that question is in the affirmative, you will

also have to apportion the fault between Yamaha, Samuel Roffe, and

[Palmas del Mar] in percentage terms.

6

principles and conditionally asked the jury to consider the

negligence of two non-parties to the suit.

The jury returned a verdict in favor of Yamaha on the

strict liability claims. The Calhouns appeal, arguing that

errors made by the District Court require reversal and a

new trial.6 Yamaha cross-appeals, contending the District

Court should have precluded the testimony of plaintiffs’

experts altogether and granted its motion for summary

judgment.

II.

Plaintiffs proffered three expert witnesses to testify at

trial. After conducting extensive Daubert hearings including

individual voir dire, the District Court determined that all

could testify but limited the extent of their testimony. We

review for abuse of discretion. See Gen. Elec. Co. v. Joiner,

522 U.S. 136, 138-39 (1997) (“[A]buse of discretion is the

appropriate standard” for “reviewing a trial court’s decision

to admit or exclude expert testimony.”).7

Fed. R. Evid. 702 governs the admissibility of expert

testimony. The Rule provides:

If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as

an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion

or otherwise, if (1) the testimony is based upon

sufficient facts or data, (2) the testimony is the product

of reliable principles and methods, and (3) the witness

has applied the principles and methods reliably to the

facts of the case.

6. We have jurisdiction under 28 U.S.C. § 1291.

7. In regard to Defendants’ cross-appeal, we do not believe the District

Court abused its discretion in allowing plaintiffs’ experts to testify on a

limited basis. In any event, the District Court granted defendants’ motion

for judgment as a matter of law on the negligence claims, and the jury

returned a verdict in favor of defendants on the strict liability claims.

This outcome will not be disturbed. As such, any alleged error in

allowing plaintiffs’ experts to testify is without consequence.

7

Fed. R. Evid. 702. Amended in 2000, Fed. R. Evid. 702

represents the logical outgrowth and memorialization of the

Supreme Court’s landmark cases establishing the

standards for admitting expert testimony.8 In Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the

Supreme Court charged trial judges with the responsibility

of acting as “gatekeepers” to exclude unreliable expert

testimony, id. at 597, and in Kumho Tire Co. v. Carmichael,

526 U.S. 137 (1999), clarified that this “gatekeeper”

function applies not only to testimony based on “scientific”

knowledge but to testimony based on “technical” and “other

specialized” knowledge as well. Id. at 141.9

We have addressed the requirements of Fed. R. Evid.

702, focusing on the “trilogy of restrictions on expert

testimony: qualification, reliability and fit.” Schneider v.

Fried, 320 F.3d 396, 405 (3d Cir. 2003). First, the witness

must be qualified to testify as an expert. Qualification

requires “that the witness possess specialized expertise.” Id.

“We have interpreted this requirement liberally,” holding

that “a broad range of knowledge, skills, and training

qualify an expert as such.” In re Paoli R.R. Yard PCB Litig.,

35 F.3d 717, 741 (3d Cir. 1994) (“Paoli II”). Second, the

testimony must be reliable. In other words, “the expert’s

opinion must be based on the ‘methods and procedures of

science’ rather than on ‘subjective belief or unsupported

speculation’; the expert must have ‘good grounds’ for his or

her belief.” Id. at 742 (quoting Daubert, 509 U.S. at 590).

An assessment of “the reliability of scientific evidence under

Rule 702 requires a determination as to its scientific

validity.” Id. Third, the expert testimony must “fit,” id. at

743, meaning “the expert’s testimony must be relevant for

the purposes of the case and must assist the trier of fact.”

Schneider, 320 F.3d at 405.

8. The Advisory Committee on Evidence Rules noted that Fed. R. Evid.

702 was amended in response to Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), and cases applying Daubert.

Fed. R. Evid. 702 advisory committee’s note.

9. Fed. R. Evid. 702 “affirms the trial court’s role as gatekeeper and

provides some general standards that the trial court must use to assess

the reliability and helpfulness of proffered expert testimony.” Fed. R.

Evid. 702 advisory committee’s note.

8

Here, the dispute centers on the second element, whether

the proffered testimony of plaintiffs’ experts was reliable.

While defendants asserted the experts’ qualifications were

lacking in general, the thrust of their challenge was that

the proposed testimony did not derive from scientific

methods and procedures, but was simply unsupported

opinion. In this respect, the District Court held that certain

aspects of the experts’ proposed testimony lacked proper

foundation and was inadmissible.

In determining whether testimony is reliable, we are

guided by several factors:

(1) whether a method consists of a testable hypothesis;

(2) whether the method has been subject to peer

review; (3) the known or potential rate of error; (4) the

existence and maintenance of standards controlling the

technique’s operation; (5) whether the method is

generally accepted; (6) the relationship of the technique

to methods which have been established to be reliable;

(7) the qualifications of the expert witness testifying

based on the methodology; and (8) the non-judicial

uses to which the method has been put.

Paoli II, 35 F.3d at 742 n.8. In assessing reliability, a court

need not rely exclusively on this list and may take into

account any other relevant factors, id. at 742; however, this

list provides an ample starting point.

With this framework in mind, we examine each expert’s

proposed testimony. The District Court carefully and

thoughtfully restricted testimony that offered opinions on

specific matters without reliable foundation. For example,

the District Court declined to permit testimony on the

proper age requirement for jet ski operators, without any

specific support—such as studies or data indicating that

persons above a certain age are more capable of operating

the jet ski. While the background, education, and training

may provide an expert with general knowledge to testify

about general matters, more specific knowledge is required

to support more specific opinions.

A.

Plaintiffs proffered Dr. Edward W. Karnes to testify that

the jet ski was defectively designed because riders would

9

accidentally activate the throttle by clenching their hands

as a “stress reaction.” Plaintiffs also proffered Dr. Karnes to

testify that the warnings on the jet ski should have

restricted operation to those sixteen and older. The District

Court prevented Dr. Karnes from testifying on these

matters.

Dr. Karnes holds a doctorate in experimental psychology

and is an emeritus professor of psychology at Metropolitan

State College in Denver. Among his specialties is human

factors engineering.10 He worked as a human factors

engineer at the Martin Marietta Corporation in Denver,

serving as the head of human factors research for six years.

Although defendants stress that Dr. Karnes has no degree

in engineering and lacks expertise in marine vessel design

or operations, the District Court qualified him as an expert

because of his extensive experience in general design and

operations.

An expert may be generally qualified but may lack

qualifications to testify outside his area of expertise. The

District Court allowed Dr. Karnes 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. Dr. Karnes’s other theory was not

permitted—that as a “stress reaction,” a person would have

a tendency to clench her hands, which would inadvertently

activate the squeeze finger throttle of a Yamaha jet ski.

Furthermore, Dr. Karnes was not permitted to offer an

overall conclusion that the design of the throttle was

defective.

With respect to warnings, the District Court allowed Dr.

Karnes to testify in general about how to design an effective

warning. Dr. Karnes was also permitted to opine that the

warning on the jet ski deviated from the proper criteria,

making the “vehicle unreasonably dangerous and defective,

especially for youthful operators.” But the District Court

prohibited Dr. Karnes from testifying that, in addition to its

10. Dr. Karnes explained that human factors engineering “is concerned

with an evaluation of the human factors that are involved in the design

and use of products, equipment, and facilities.”

10

other alleged flaws, the warning on the jet ski should have

restricted operators to those sixteen and older because Dr.

Karnes did not have “anything to say to support that

number rather than a number higher or lower.”

The District Court gave Dr. Karnes some leeway in

testifying about certain matters. Dr. Karnes’s general

knowledge of human factors engineering, along with his

review of the record evidence, provided an adequate basis

for his general description of the accelerating mechanism.

But there was no support for Dr. Karnes’s opinion on an

asserted “tendency” to clench hands as a “stress reaction.”

There was no literature confirming this theory, nor

demonstrable tests. Lacking support, his testimony was

speculative and unreliable. With no reliable foundation, the

District Court did not abuse its discretion by prohibiting

any conclusory statements on the throttle’s design.

Similarly, Dr. 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 sixteen or above requires more specific

knowledge. The District Court did not abuse its discretion

in prohibiting Dr. Karnes’s proffered opinion that sixteen

must be the minimum age.

B.

Plaintiffs proffered Albert Bruton to testify that Yamaha’s

accelerating mechanism was not as safe as other

alternative designs and that Yamaha’s warning should have

limited operation to those sixteen and older. The District

Court refused to allow the proffered testimony.

Bruton, a lieutenant for San Diego’s Marine Safety

Services for sixteen years, had extensive experience with jet

skis. He also had some experience designing warning signs

for public use, such as signs designating certain marine

areas for particular purposes, although he never designed

a warning label for a jet ski or any other product sold to the

public. Bruton had also conducted “aquatic related

accident” investigations. As defendants note, Bruton lacks

11

formal education or training in engineering, psychology, or

human factors.

Bruton’s testimony was also restricted. The District Court

allowed Bruton to explain how jet skis operate and the

differences between Yamaha’s jet ski and other brands and

models. Bruton was also permitted to discuss various

accelerating mechanisms, explaining how each type works.

A videotape was played showing Bruton riding a jet ski. But

Bruton was prohibited from opining as to which jet skis,

and particularly which accelerating mechanisms, were safer

because the District Court found his “ranges of

experiences” did not give him the expertise or knowledge to

make this determination.

The District Court permitted Bruton to testify about how

to frame an effective warning in general, for example, how

words should be arranged and lettered. But the District

Court prohibited him from opining on the proper substance

of a particular warning, including proposed testimony that

jet ski operations should be restricted to those sixteen and

older.

These limitations were well considered. Because Bruton

was knowledgeable about different types of jet skis and

their operation, it was appropriate for him to explain such

matters to the jury. But as noted, 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. Bruton had

neither the general background nor the specific knowledge

to support his proffered testimony that the “squeeze finger

throttle” was less safe than other designs.

With respect to warnings, Bruton was given much

leeway, especially considering he had never designed a

warning for any consumer product. As for his proffered

testimony on the specific substance of such warnings,

particularly the age requirement, Bruton offered no support

for his beliefs. His proffered opinions on these matters were

unreliable, and the District Court properly restricted such

testimony. There was no abuse of discretion.

12

C.

Plaintiffs proffered Dr. Robert A. Warren to testify that

the accelerating mechanism was unsafe because it

resembled a bicycle brake and that Yamaha’s warnings

were inadequate. The District Court restricted Dr. Warren’s

testimony on these matters.

Dr. Warren has a bachelor’s degree in naval architecture

and marine engineering, as well as higher degrees in other

fields. He worked with the Navy and the Department of

Defense and served as an accident reconstruction

consultant with a focus on marine engineering and boat

accidents. Defendants acknowledge that Dr. Warren’s

qualifications are generally sufficient, and the District

Court correctly held that his background qualified him to

testify as an expert.

But as with the other experts, the District Court

restricted the specifics of Dr. Warren’s testimony. The

District Court allowed Dr. Warren to describe the squeeze

finger throttle on the jet ski but forbade his proffered

testimony that the throttle was unsafe particularly due to

its similarity to a bicycle’s braking mechanism. The District

Court also prohibited Dr. Warren from offering testimony

about warnings.

Although Dr. Warren possessed expertise in relevant

fields, he failed to apply this expertise to the matter at

hand. At the time he wrote his expert report, Dr. Warren

had never operated a jet ski and, by the time of trial, had

only managed to ride a different model. Moreover, on voir

dire, Dr. Warren admitted he had never examined diagrams

of the different throttles used on jet skis. Dr. Warren’s

asserted knowledge of possible alternatives to the

accelerating mechanism came from his familiarity with

outboard motors, which employ a twist grip mechanism,

and from his recollection of a friend’s motorcycle, which

used a thumb throttle. Dr. Warren acknowledged he could

have conducted tests to evaluate the relative merits of

alternative throttle designs but did not do so. With such a

paucity of knowledge regarding the specifics of jet ski

accelerating mechanisms, Dr. Warren was unable to give

reliable testimony on whether Yamaha improperly employed

13

the squeeze finger throttle on its jet ski. Although Dr.

Warren had sufficient knowledge to describe the throttle

mechanism in general, the District Court properly

precluded him from giving further opinions on the matter.

Similarly, Dr. Warren lacked any specific basis on which

to opine on the adequacy of Yamaha’s warnings. Moreover,

in contrast to his background in naval architecture and

marine engineering, which provided Dr. Warren the

foundation to testify generally about mechanical issues, he

possessed no expertise with regard to warning design.

Thus, the restriction on testimony regarding warnings was

proper. There was no abuse of discretion.

III.

Plaintiffs contend that the District Court erred at the

close of evidence in granting defendants’ motion for

judgment as a matter of law on their negligence claims. See

Fed. R. Civ. P. 50. We exercise plenary review. See, e.g.,

Shade v. Great Lakes Dredge & Dock Co., 154 F.3d 143,

149 (3d Cir. 1998) (“This court utilizes a plenary standard

to review a grant . . . of a judgment as a matter of law.”).

Negligence claims are cognizable in admiralty and may be

asserted in addition to strict liability claims. E. River S.S.

Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 865-66

(1986). But the question here is whether plaintiffs’ evidence

supported these claims. The District Court explained that,

while the negligence claims were “there in the complaint,”

they “ha[d] not . . . survived in any real sense” during the

course of the trial. As such, the District Court held that the

negligence claims “ha[d] not been made out” and could not

be submitted to the jury.

We agree. It is clear that the focus of the trial evidence

was on plaintiffs’ strict liability claims. Plaintiffs provided

only cursory theories of Yamaha’s alleged negligence and

offered scant support to sustain them. The negligence

claims should not have been submitted to the jury.

Judgment as a matter of law was proper.

IV.

Plaintiffs argue the District Court erred in submitting to

the jury the possible comparative negligence of Roffe

14

and/or Palmas del Mar, neither of which were party to this

suit. According to plaintiffs, rules of joint and several

liability should govern, and the possible negligence of non-

parties cannot be considered. As plaintiffs allege an error of

law, our review is plenary. See, e.g., Harris v. City of

Philadelphia, 47 F.3d 1342, 1349 (3d Cir. 1995).

Though we think it likely there was no error, given our

other rulings, any error would be harmless. It was harmless

because the court’s instruction could not have affected the

jury’s verdict on the strict liability claim, in that the jury

decided as a threshold matter, that the jet ski was not

defective. In instructing the jury, the District Court stated:

Now, members of the jury, if and only if you decide

that the Wavejammer was defective in a way that

proximately caused Natalie’s death, you must then

consider whether [Roffe and/or Palmas del Mar]

committed negligent acts that contributed to the

accident.

Furthermore, the interrogatories clearly provided that the

first issue to be considered was whether Yamaha’s jet ski

was defective. The possible negligence of Roffe and/or

Palmas del Mar mattered only if Yamaha were liable.

Because the jury found that the jet ski was not defective, it

never reached the possible negligence of Roffe and/or

Palmas del Mar.

In this respect, the matter here is similar to that

addressed in Dillinger v. Caterpillar, Inc., 959 F.2d 430 (3d

Cir. 1992). In Dillinger, plaintiff sued under strict liability

for injuries he sustained while driving a vehicle

manufactured by defendant. Id. at 432. The district court

allowed defendant to introduce evidence that plaintiff was

not wearing a seat belt but only for considering mitigation

of damages. Id. We held that it was error for the district

court to allow such evidence because “the introduction of

. . . non-use of the seat belts would be directly at odds with

the [state] Supreme Court’s dictates barring evidence of a

plaintiff ’s negligence in [strict] liability proceedings.” Id. at

439. But we concluded that such error was harmless

because the jury had determined that the defendant’s

product “was either not defective or that the defect was not

15

a substantial factor in causing the accident,” and thus the

jury never reached the issue of seat belt use. Id. at 440.

While plaintiff argued “that the jury was influenced by the

evidence concerning [his] failure to use the available lap

belt in determining whether [defendant’s] product was

defective or whether a defect caused [plaintiff ’s] injuries,”

the court had to “assume that the jury was competent to

follow and did follow the instructions given.” Id. at 440 n.17.11

11. As noted, in holding that any possible error was harmless, we do not

mean to suggest there was in fact error. Although we need not decide,

the District Court was likely correct in submitting the conditional

interrogatories on the possible negligence of Roffe and/or Palmas del

Mar.

There is joint and several liability in tort suits under admiralty law.

But admiralty law also adheres to principles of comparative fault. See 1

Thomas J. Schoenbaum, Admiralty and Maritime Law § 5-4 (3d ed. 2001)

(explaining that both joint and several liability and comparative fault

exist in admiralty tort actions and noting that comparative fault still

applies in cases of strict product liability, “even though this requires a

comparison of negligence and strict liability”). The intertwining of these

concepts was addressed by the Supreme Court in McDermott, Inc. v.

AmClyde, 511 U.S. 202 (1994), which provides instruction for the matter

at hand.

In McDermott, the plaintiff settled with certain alleged tortfeasors, and

another alleged tortfeasor was immune from damages because of

contractual provisions with the plaintiff. Id. at 204-05. In the suit, the

plaintiff sought damages from yet another alleged tortfeasor, River Don

Castings, Ltd. (“River Don”). Id. The Court held that River Don was only

responsible for its proportionate share of liability. The Court explained:

Joint and several liability applies when there has been a judgment

against multiple defendants. It can result in one defendant’s paying

more than its apportioned share of liability when the plaintiff ’s

recovery from other defendants is limited by factors beyond the

plaintiff ’s control, such as a defendant’s insolvency. When the

limitations on the plaintiff ’s recovery arise from outside forces, joint

and several liability makes the other defendants, rather than an

innocent plaintiff, responsible for the shortfall. [In contrast], the

proportionate share rule announced in this opinion applies when

there has been a settlement. In such cases, the plaintiff ’s recovery

against the settling defendant has been limited not by outside

forces, but by its own agreement to settle. There is no reason to

allocate any shortfall to the other defendants, who were not parties

16

V.

For these reasons, we will affirm the judgment of the

District Court.

to the settlement. Just as the other defendants are not entitled to a

reduction in liability when the plaintiff negotiates a generous

settlement, so they are not required to shoulder disproportionate

liability when the plaintiff negotiates a meager one.

Id. at 220-21 (citations and footnotes omitted).

Although Roffe and Palmas del Mar did not settle with plaintiffs here,

nor is there immunity resulting from contract, the comparative

negligence rule announced in McDermott would still apply. Notably, Roffe

and Palmas del Mar are not parties to this suit because of the voluntary

acts of the Calhouns. Palmas del Mar was originally a defendant in this

case but was dismissed by plaintiffs. Roffe was a defendant in

companion actions brought and dismissed by plaintiffs in Florida and

Puerto Rico. As such, the Calhouns’ “recovery against [the two] has been

limited not by outside forces, but by [their own decision].” Id. at 221. The

Supreme Court explained that under such circumstances, defendants

should only be responsible for their proportionate share of liability. The

District Court was apparently correct in seeking a determination of the

relative fault of the relevant entities if the jet ski was determined to be

defective.

At least one court has come to a similar conclusion. In Siegler v. Grace

Offshore Co., 663 So. 2d 212 (La. Ct. App. 1995), the plaintiff sued his

employer, the employer’s insurer, and a crew boat operator for injuries

he allegedly sustained while offloading equipment from a drilling vessel.

Id. at 213. The plaintiff later voluntarily dismissed his claims against his

employer and its insurer. Id. at 214. As such, the court explained that

the crew boat operator could only be held responsible for his

proportionate share. Id. at 215. The court stated:

Although there has not been a settlement per se in this case, the

plaintiff voluntarily dismissed his claims against [his employer and

its insurer] with prejudice. For purposes of the proportionate

allocation of fault, we discern no distinction between a settlement

and a voluntary dismissal. Both are agreements entered into by the

plaintiff which serve to limit his recovery as opposed to the outside

forces such as insolvency or statutory immunity discussed in

McDermott.

Id.

17

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit