Petition for Writ of Certiorari — Elliott v. Mercury Marine

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90-814 ff eres

NUV 21 1990

No. JOSEPH F. SPANIOL, JR.

ho al

IN THE a

Supreme Court of the United States

OCTOBER TERM, 1990

ASHLEY ELLIOTT,

. Petitioner,

MERCURY MARINE, a Division of Brunswick Corporation,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

BRUCE J. ENNIS, JR.*

ANN M. KAPPLER

JENNER & BLOCK

21 Dupont Circle, N.W.

Washington, D.C. 20086

(202) 223-4400

R. BEN HoGAN, III

HOGAN, SMITH, ALSPAUGH, SAMPLES

& PRATT, P.C.

2323 Second Avenue North

Birmingham, Alabama 352038

(205) 324-5635

Counsel for

Petitioner Ashley Elliott

* Counsel of Record

ad ™

WILSON - Epgs PRINTING Co., INC. - 78S-O096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Where the United States Court of Appeals for the

Eleventh Circuit set aside a jury verdict solely on the

basis of its view of unsettled issues of Alabama state

law, and where the Supreme Court of Alabama has con-

sented to answer questions presenting those identical is-

sues as certified to the state court by the United States

District Court for the District of Alabama, do funda-

mental fairness and the well-established principles of

comity and cooperative judicial federalism necessitate

that this Court vacate the Eleventh Circuit’s decision and

remand for reconsideration in light of the Supreme

Court of Alabama’s answer to the certified questions?

(i)

TABLE OF CONTENTS

Page

ey 6 | oy | re i

ee he ky Vv

a nc aasnenntnmaecnecninnnennes 1

as apsneenenuanbeaninbqunennan 2

I ein ins cnncinnentitnecntannncunedscinantict 2

STATEMENT OF THE CASE ............00.-.200 cece 2

TSS ec 2

EEE EES ST Re 3

REASONS FOR GRANTING THE WRIT ................. 12

I. FUNDAMENTAL FAIRNESS AND THE

PRINCIPLES OF COMITY AND COOPERA-

TIVE JUDICIAL FEDERALISM COUNSEL

THAT THE ELEVENTH CIRCUIT’S DECI-

SION BE VACATED AND, IF NECESSARY,

CORRECTED ONCE THE SUPREME COURT

OF ALABAMA HAS AUTHORITATIVELY

SPOKEN ON THE CONTROLLING ISSUES

ES SE TET 12

TT TT ST OE yn 22

APPENDIX A

Opinion of the United States Court of Appeals for

the Eleventh Circuit, filed June 25, 1990 0.00000... la

APPENDIX B

Order of the United States Court of Appeals for

the Eleventh Circuit en Petition for Rehearing En

Banc and to Certify Questions to the Supreme

Court of Alabama, filed August 24, 1990 0000... 12a

(iii)

TABLE OF CONTENTS—Continued

APPENDIX C

Judgment of the United States District Court for

the Northern District of Georgia, filed January 17,

APPENDIX D

Beech v. Outboard Marine Corp., Civil Action

No. 89-AR-0789-M, Memorandum Opinion of the

United States District Court for the Northern

District of Alabama, filed September 19, 1990........

APPENDIX E

Beech v. Outboard Marine Corp., Civil Action No.

89-AR-0789-M, Certificate from the United States

District Court for the Northern District of Ala-

bama to the Supreme Court of Alabama Pursuant

to Rule 18, Alabama Rules of Appellate Procedure,

filed September 19, 1990 ......................-----.----0c-ec0-20++-

APPENDIX F

Beech v. Outboard Marine Corp., No. 89-1815,

Order of the Supreme Court of Alabama consent-

ing to answer questions certified by the United

States District Court for the Northern District of

Alabama, filed October 11, 1990 ..............................

APPENDIX G

In re: Outboard Marine Corp., No. 90-7686, Order

of the United States Court of Appeals for the

Eleventh Circuit denying Petition for Writ of

Mandamus, filed October 29, 1990 ............................

Page

l4a

15a

19a

23a

TABLE OF AUTHORITIES

Cases Page

Balido v. Improved Machinery Inc., 29 Cal. App.

OO a 19, 20

Balliache v. Fru-Con Const. Corp., 866 F.2d 798

(8th Cir. 1989) _.... TT ae RCE 16

Beech v. Outboard Marine Corp., Civil Action No.

89-AR-0789-M (N.D. Ga.) .2.....2..cecceee ec ceceeeeeee ee 8

Beech v. Outboard Marine Corp., No. 89-1815

BER ec oa Ea ae TO 9, 10, 22

Beliot Corp. v. Harrell, 339 So.2d 992 (Ala.

EE Rae pea RsCr ) Ve ee ae ae 19

Bellotti v. Baird, 428 U.S. 182 (1976) .................. a 15

Casrell v. Altec Indus., Inc., 335 So.2d 128 (Ala.

1976) ...... ; Pe = Ee LT Ee 5, 19, 20

Caterpillar Tractor Co. v. Ford, 406 So.2d 854

I 19, 21

Commercial Union Ins. Co. v. Bituminous Cas.

Corp., 851 F.2d 98 (3d Cir. 1988) 0... 13

Commissioner v. Estate of Bosch, 387 U.S. 456

CEE STS eee er. CONS a 13

Dunn v. Wixom Bros., 498 So.2d 1356 (Ala.

ER LT Oe ee Te OL Se ee 21

Elkins v. Moreno, 435 U.S. 647 (1978) ................... 15

England v. Louisiana State Bd. of Medical Ex-

aminers, $75 U.S. 411 (1964) .............................. 13

Entrekin v. Atlantic Richfield Co., 519 So.2d 447

FP) ee ea eee ee 6, 17, 19

Erie v. Tompkins, 304 U.S. 64 (1938) 0... 12

Exxon Corp. v. Eagerton, 462 U.S. 176 (1983)... 13

Fincher v. Ford Motor Co., 399 F. Supp. 106 (S.D.

Miss. 1975), aff'd, 585 F.2d 657 (5th Cir.

RE A Ee ee Oe Le ee ES 18

General Motors Corp. v. Edwards, 482 So.2d 1176

5 Pee eee ee 5, 8, 19, 20, 21

Gondeck v. Pan American World Airways, Inc.,

382 U.S. 25 (1962) (per curiam) ........................ 13

Hawkins v. Montgomery Indus. Int’l, Inc., 536

a Ee 6,17

Hines v. Joy Mfg. Co., 850 F.2d 1146 (6th Cir.

UIE adeuhihanliieiscleatinastillaihctatesiatiphadttistecsacenaibnisiebseceaa seat 16

TABLE OF AUTHORITIES—Continued

l | vity Ins. Co. v. King Kutter, Inc., 866 F.2d

i yn mn ee a

Kluwon Co. v. Stentor Elec. Mfg. Co., 318 U.S. 487

(1941)

Lehman Bros. v. Schein, 416 U.S. 386 (1974) ........

McKenna v. Ortho Pharmaceutical Corp., 622 F.2d

657 (8d Cir.), cert. dented, 449 U.S. 976

SUI ccs cnstatipniestenatnnchsdacennsdannanaaccudiadabeiathhinytlaiins

Nettles v. Electrolux Motor AB, 784 F.2d 1574

CRBS BID cctnencnsscnssetnninntingeremniannan tices

Nicolson v. Life Ins. Co. of Southwest, 783 F.2d

DE IO * sitin intense lek tetanic

Rivers v. Stihl, Inc., 434 So. 2d 766 (Ala. 1983)...

Rowden v. Tomlinson, 588 So.2d 15 (Ala. 1988) ...

Santiago-Hodge v. Parke Davis & Co., 859 F.2d

BE Ce I widibneretnih a ddibtentiiiinn

Scott v. Board of Trustees, 815 F.2d 653 (11th

he RAR RS At RNG Pees, © ee

Socony-Vacuum Oil Co. v. Continental Cas. Co.,

219 F.2d 645 (2d Cir. 1955) ...............................

Stovall & Co. v. Tate, 124 Ga. App. 605, 184

Re Oe SRD balaienhictthstinstits sudvoveciahensestsihieantneeiinas

The T.J. Hooper, 60 F.2d 787 (2d Cir.), cert. de-

nied, 287 U.S. 662 (1062) ....................................

Towne Realty, Inc. v. Safeco Ins. Co. of America,

854 F.2d 1264 (11th Cir. 1988) ...........-0........

United Parcel Serv., Inc. v. Weben Indus., Inc.,

794 F.2d 1005 (5th Cir. 1986) —.......0....

United States v. Buras, 475 F.2d 1870 (10th Cir.

1972) (denial of petition for rehearing en

banc), cert. denied, 414 U.S. 865 (1978) ............

Wallace v. Doege, 484 So.2d 404 (Ala. 1986)...

Washburn v. Rebun, 755 F.2d 1404 (11th Cir.

ERC CARS Sad POR 2 a So

Wilson v. Piper Aireraft Corp., 282 Or. 61, 577

Sy IE WRT ici th cpa cceio edatiidtn nent inaabins

Zant v. Stephens, 456 U.S. 410 (1982) -................

Page

6,17

vii

TABLE OF AUTHORITIES—Continued

Rules Page

Rule 18(a), Alabama Rules of Appellate Proce-

EEA IER eR SO Ie ee Ce RT 2

Other Authorities

19 C. Wright, A. Miller, E. Cooper, Federal Prac-

tice and Procedure (1982 & Supp. 1990)........ 138, 16

Corbin, The Laws of the Several States, 50 Yale

es gg RA OIE Fay SP 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. —

ASHLEY ELLIOTT,

" Petitioner,

MERCURY MARINE, a Division of Brunswick Corporation,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Ashley Elliott respectfully prays that a writ

of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Eleventh

Circuit entered in the above-entitled proceeding.’

OPINION BELOW

The opinion of the Court of Appeals for the Eleventh

Circuit, entered on June 25, 1990, is reported at 903 F.2d

1505, and is reprinted in the Appendix to this petition

at la.

1The parties to the proceeding below were petitioner and

Brunswick Corporation, which appeared through its division,

Mercury Marine.

JURISDICTION

This suit was tried in the United States District Court

for the Northern District of Alabama pursuant to that

court’s diversity jurisdiction, 28 U.S.C. Sec. 1332. The

court entered judgment for petitioner, pursuant to the

jury’s verdict, on January 17, 1989. See p. 14a, infra.

On appeal, the Eleventh Circuit invoked its jurisdic-

tion under 28 U.S.C. See. 1291 and 1294 and reversed

in a judgment and opinion entered on June 25, 1990. See

p. 1a, infra. The Eleventh Circuit denied a timely peti-

tion for rehearing en bane and refused to certify un-

settled and dispositive questions of state law to the Ala-

bama Supreme Court on August 24, 1990. See p. 12a,

infra. Jurisdiction is conferred on this Court by 28

U.S.C. See. 1254(1).

PROVISION INVOLVED

Rule 18(a) of the Alabama Rules of Appellate Proce-

dure provides:

“When Certified. When it shall appear to a court

of the United States that there are involved in any

proceeding before it questions or propositions of law

of this state which are determinative of said cause

and that there are no clear controlling precedents in

the decisions of the supreme court of this state, such

federal court may certify such questions or proposi-

tions of law of this state to the supreme court of

Alabama for instructions concerning such questions

or propositions of state law, which certified questions

the supreme court of this state, by written opinion,

may answer.

STATEMENT OF THE CASE

Introduction

In this diversity action, after removal from a state

court that had found petitioner’s claims cognizable under

state law, and after the federal District Court had up-

held a jury verdict for petitioner under state law, the

Eleventh Circuit resolved the dispositive questions of

state law differently, and then refused to certify those

questions to the Supreme Court of Alabama. The Su-

preme Court of Alabama has now agreed to resolve those

unsettled questions of state law upon certification from a

federal District Court in another case raising “identical”

issues, and is likely to decide the questions differently

from the way they were decided by the Eleventh Circuit.

If this occurs, it would be fundamentally unfair and con-

trary to principles of comity and cooperative judicial

federalism to treat petitioner differently than all other

litigants with respect to those state law issues. Accord-

ingly, the Court should grant certiorari, vacate, and di-

rect the Eleventh Circuit to reconsider its determination

of those state law issues once the Alabama Supreme

Court has ruled,” or, alternatively, the Court should hold

this petition for consideration after the Supreme Court

of Alabama has ruled.

Facts

On July 24, 1982, Ashley Elliott (“Elliott”), then four-

teen years old, was struck by the sharp metal blades of a

rotating propeller when she jumped into water and was

run over by a motor boat travelling at 5 m.p.h. The boat

involved was a “planing” pleasure craft.’ As a result of

the incident, Elliott suffered grievous injuries requiring

extensive surgery.*

2 The Eleventh Circuit could also certify the questions presented

in this case to the Supreme Court of Alabama and ask that they be

consolidated with the previously certified questions.

3 “Planing” means that as these boats increase speed, they lift

out of the water and “plane” on the surface.

4 Elliott sustained three deep gashes to the bone in her buttock

area and one in her calf. One of these cuts was so deep it severed

the sciatic nerve, causing paralysis below the knee. Another neces-

Elliott filed suit in Alabama state court on July 22,

1983, against Sportcraft, Inc. (“Sportcraft”), the manu-

facturer of the boat that struck her; Mercury Marine, °

the manufacturer of the boat’s motor, including the drive

mechanism requiring a propeller; and several others. All

defendants except Mercury and Sportcraft settled with

petitioner prior to trial. The state court overruled mo-

tions to dismiss filed by Mercury and Sportcraft. In

July 1988, Mercury and Sportcraft removed the case to

the United States District Court for the Northern Dis-

trict of Alabama. The case was tried in August 1988.

The jury failed to reach a verdict as to Mercury, and the

District Court declared a mistrial.®

In January 1989, the case was retried in the District

Court. Elliott contended that the marine engine manu-

factured by Mercury was defective under the Alabama

Extended Manufacturers Liability Doctrine (‘““AEMLD”)

for failure to incorporate a propeller guard into its de-

sign, and alternatively that Mercury was negligent or

wanton in failing to design, manufacture and market its

product with a propeller guard. Elliott alleged that this

defective design enhanced her injuries. During the trial

the jury heard evidence, including expert testimony,

from both parties regarding the feasibility of boat en-

gine propeller guards. At the close of evidence, the Dis-

trict Court denied Mercury’s motion for a directed ver-

dict. The court instructed the jury on three state law

theories of recovery: (1) compensatory damages based

sitated a colostomy. Elliott had to undergo nine surgical procedures.

She still is partially crippled, with disfiguring scarring.

5 Respondent Mercury Marine is a division of Brunswick Corpo-

ration (“Brunswick”). Before the case went to trial, Brunswick

was substituted for Mercury Marine in plaintiff’s complaint. After

the jury verdict was entered in favor of Elliott, Brunswick appealed

solely in the name of Mercury Marine. Both companies will be

referred to collectively as “Mercury.”

6 The jury entered a verdict in favor of Sportcraft.

on alleged negligence, (2) compensatory damages based

on alleged product liability under AEMLD, and (3)

punitive damages based on alleged wantonness. After

considering the evidence in light of the court’s instruc-

tions, the jury returned a verdict in favor of Elliott in

the amount of $1.5 million compensatory damages and

$3.0 miliion punitive damages. The District Court re-

duced the amount of the verdict Ly the sums Elliott had

received in settlement from other defendants, and en-

tered a judgment against Mercury in the amount of

$4,375,000.00. See p. 14a, infra.’

Mercury appealed, raising numerous issues. The Elev-

enth Circuit reversed, addressing only one issue: the

court ruled, as a matter of law, that Elliott failed to es-

tablish Mercury’s liability under either AEMLD product

liability or Alabama negligence law, and therefore Mer-

cury’s motion for directed verdict should have been

granted. The Eleventh Circuit concluded that both of

Elliott’s theories of liability apply “[vJirtually the same

principles” with regard to an allegedly defective design.

903 F.2d at 1506; 4a. In the court’s view, both theories

require Elliott to demonstrate (1) “ ‘that the product

does not meet the reasonable expectations of an ordinary

consumer as to its safety,’” id. at 1507; 4a (quoting

Casrell v. Altec Indus., Inc., 335 So.2d 128, 133 (Ala.

1976) ), and (2) that a “ ‘safer, pre-tical, alternative de-

sign was available to the manufacturer at the time it

manufactured the [product],’” id. (quoting General

Motors Corp. v. Edwards, 482 So.2d 1176, 1191 (Ala.

1985) ). The court held that Elliott had failed to estab-

lish either element of her two causes of action, and thus

had not presented a prima facie case under the AEMLD

or Alabama negligence law. Id.; 5a.

The Eleventh Circuit labeled the first element the ‘“con-

sumer expectation tes .’ The court acknowledged that,

7™The District Court subsequently denied Mercury’s Motion for

Judgment Notwithstanding the Verdict or in the Alternative for

Remittitur, or in the Alternative for a New Trial.

under Alabama law, “a jury ordinarily evaluates a plain-

tiff’s claim that a product is defective.” 903 F.2d at

1507; 5a. Nevertheless, the court ruled that Elliott’s

claim that Mercury’s boat engine was defectively de-

signed should not have gone to the jury. The basis for

this conclusion was the court’s finding that “certain

products whose inherent danger is patent and obvious,

do not, as a matter of law, involve defects of a sort that

a jury should resolve.” Jd. (emphasis added). In sup-

port of this view of Alabama law, the court cited two

cases that involved claims by intended users that the

product was defective for its failure to warn of poten-

tial dangers when used; whereas this case involves al-

leged defects in a product’s design that foreseeably

enhanced injuries to a third party, not the user of the

product. See id. (citing Entrekin v. Atlantic Richfield

Co., 519 So.2d 447, 450 (Ala. 1988), and Hawkins v.

Montgomery Indus. Int’l, Inc., 536 So.2d 922, 926 (Ala.

1988)). Without looking to any analogous Alabama

caselaw, and relying (without explanation) only on a

1971 Georgia intermediate appellate case, the Eleventh

Circuit then held “that the dangers inherent in Mer-

cury’s product should have been apparent to, or within

the contemplation of, Elliott”—despite the fact that she

was not the intended user of the product—and therefore,

as a matter of law, “Mercury has not manufactured a

defective product.” 903 F.2d at 1507; 6a (citing Stovall

& Co. v. Tate, 124 Ga.App. 605, 184 S.E.2d 834, 838

(1971) ).

In the second portion of its decision, the Eleventh Cir-

cuit held that Elliott “failed to produce evidence that

Mercury had access to a safe, practical design for pro-

peller guards at the time of her accident” and therefore

failed to establish liability under state AEMLD or neg-

ligence theories. 903 F.2d at 1509; 10a. The court cited

no Alabaria case law in support of its conclusion. Rely-

ing instead (without explanation) on an Oregon case,

the court stated that in order to submit design-defect

allegations to the jury, it is not enough to show the

“technical feasibility of a safe design”; there must also

be evidence from which the jury could find that the sug-

gested alternative is “practicable in terms of costs and

the over-all design and operation of the project.” Jd. at

1510; 10a (quoting Wilson v. Piper Aircraft Corp., 282

Or. 61, 577 P.2d 1822, 1826-1327 (1978)). In the

court’s view, Elliott had failed to make this latter show-

ing because the Eleventh Circuit’s assessment of the evi-

dence was that propeller guards could not yet be mar-

keted for general use, that propeller guards presented

some problems, and that a satisfactory guard was not

available. Jd. at 1509; 11a. The Eleventh Circuit found

that “an experimental propeller guard, useful for some

purposes, existed at the time of [Elliott’s] accident,” but

refused to “hold Mercury for its failure to adapt and

refine that design into one feasible for use on planing

propeller craft.” 903 F.2d at 1508; 6a.° Accordingly,

the court held that Elliott’s claims should not have gone

to the jury.

In her petition for rehearing en banc and to certify

questions to the Alabama Supreme Court, Elliott argued

that the panel had misinterpreted Alabama law. Elliott

urged the Eleventh Circuit to utilize the certification

procedures of Rule 18 of the Alabama Rules of Appellate

Procedure, and to ask the Supreme Court of Alabama

to determine the dispositive issues of state law upon

8 The Eleventh Circuit based these conclusions on its view of

four aspects of the testimony of both parties’ experts. 903 F.2d

at 1509; 10a. As we will show infra, it is likely the Supreme Court

of Alabama would view these conclusions as -rrelevant because

Alabama law only requires a showing that an alternative design is

technically and economically feasible, not that alternative designs

have been marketed for general use.

® Acknowledging that “it was possible to equip these boats with

guards,” 903 F.2d at 1509; 9a, the Eleventh Circuit noted that

rescue units in parts of California, as well as in New Zealand and

Australia, use propeller guards; moreover, the United States

Marine Corps landing craft at one time used guards. Z/d. at 1508

n.2; 7a n.2.

which the panel had ruled. The Eleventh Circuit denied

Elliot’s petition, without opinion, on August 24, 1990.

See p. 14a, infra.

Shortly thereafter, on September 19, 1990, the same

District Court judge who had upheld the jury verdict in

Elliott’s lawsuit certified five questions of Alabama law

to the Supreme Court of Alabama in another lawsuit

presenting precisely the same legal issues as this case.

See Beech v. Outboard Marine Corp., Civil Action No.

89-AR-0789-M, Certificate from the United States Dis-

trict Court for the Northern District of Alabama to the

Supreme Court of Alabama Pursuant to Rule 18, Ala-

bama Rules of Appellate Procedure (Sept. 19, 1990);

19a.*°

The plaintiff in Beech was run over and severely in-

jured while swimming near a boat powered by an out-

board motor manufactured by defendant Outboard Marine

Corporation (“OMC”). Plaintiff, through his father,

sued OMC alleging that the OMC engine was defective

because OMC failed to incorporate a propeller guard.

In moving for summary judgment in Beech, OMC argued

that the issues of Alabama law controlling that case are

indistinguishable from the issues ruled upon by the Elev-

enth Circuit in this case. The District Court agreed. In-

deed, the court remarked that “[i]t is so highly unusual

as to amount to a miracle that this court is now con-

fronted with the identical issues of Alabama law recently

presented to it in Elliott.” Beech v. Outboard Marine

Corp., Civil Action No. 89-AR-0789-M, Memorandum

Opinion at 3-4 (N.D. Ga., Sept. 19, 1990); 17a. The

District Court noted, as did the Eleventh Circuit, that

General Motors Corp. v. Edwards, supra, was the most

relevant state law decision. The District Court concluded,

however, that Edwards was not clearly controlling. The

court ruled that “there exist questions or propositions of

10The questions were drafted by the District Court judge, not

by either party. See p. 18a, infra.

law which are determinative of this cause and that there

are no clear controlling precedents of the Supreme Court

of Alabama on the said questions or propositions.” Jd. at

2; 16a. Because the District Court could see “no legiti-

mate, factual or legal distinction between Elliott and

[Beech],” '' the court “deem[ed] it appropriate that the

highest appellate court in the state of Alabama, the state

whose substantive laws are necessarily to be applied, be

given an opportunity to express itself before [the Dis-

trict Court] expresses itself.” Jd. at 4; 18a.’*

On October 9, 1990, OMC petitioned the Eleventh Cir-

cuit for a writ of mandamus, pursuant to Rule 21 of the

Federal Rules of Appellate Procedure, to direct the Dis-

trict Court (Hon. William M. Acker, Jr.) to withdraw its

order in Beech certifying questions to the Supreme Court

of Alabama. OMC again argued that because the case

against OMC in Beech is identical to this case (it involves

the same claims, the same legal issues, the same technical

issues, and the same expert witnesses), it must be con-

trolled by the Eleventh Circuit’s decision in this case.

On October 11, 1990, the Supreme Court of Alabama

consented to answer the questions certified by the District

Court in Beech. Beech v. Outboard Marine Corp., No.

89-1815, Order (Oct. 11, 1990); 23a. The Supreme Court

stated the certified questions as follows:

“1, Assuming that several witnesses for plaintiff

and several witnesses for defendant, all having the

threshold credentials and qualifications to be allowed

to express opinions as experts on water safety and/or

11 The court noted, in paritcular, that the expert witnesses in

Beech will either be identical to those who testified in Elliott, or

wll be making the same technical and bio-mechanical arguments.

Id. at 4; 18a.

12 Accordingly, the court decided to keep OMC’s motion for sum-

mary judgment under advisement until the Supreme Court of

Alabama either answered the certified questions or declined to

accept certification. Id.

i |

boat propeller design and/or the feasibility of de-

signing a guard for a boat propeller, express differ-

ing opinions as to the feasibility and desirability of

designing and marketing a propeller guard for pleas-

ure craft which, while arguably creating other dan-

gers, would, in fact, have protected a swimmer un-

der certain circumstances against certain kinds of

propeller injuries, can a swimmer injured under such

circumstances by an unguarded propeller present a

prima facie case under the Alabama Extended Man-

ufactures Liability Doctrine (AEMLD); or is the

trial court precluded from submitting to the jury

the question of whether or not a safer practical al-

ternative design could have been or should have been

made available to the consuming public?”

“2. Is is possible under AEMLD for an injured

swimmer to present expert testimony which will make

out a jury issue of product defect when the only al-

leged defect is the absence of a guard on a pleasure

boat propeller on an outboard motor and when the

only evidence offered by plaintiff is that a feasible

propeller guard could have been designed by a proper

use of the manufacturer’s resources?”

“3. As a matter of Alabama law, is or is not a

pleasure boat’s unguarded propeller dangerous be-

yond the expectation of an ordinary consumer?”

“4. Assuming that several witnesses for plaintiff

and several witnesses for defendant, al] having the

threshold credentials and qualifications to be allowed

to express opinions as experts on water safety and/

or boat propeller design and/or the feasibility of de-

signing a guard for a boat propeller, express differ-

ing opinions as to the feasibility and desirability of

designing and marketing a propeller guard for pleas-

ure craft which, while arguably creating other dan-

gers, would, in fact, have protected a swimmer un-

der certain circumstances against certain kinds of

propeller injuries, can a swimmer injured under such

circumstances by an unguarded propeller present a

prima facie case under a negligence theory, or is the

court precluded from submitting to the jury the ques-

tion of whether or not the failure to provide such a

propeller guard constitutes negligence?”

“5. Assuming that several witnesses for plaintiff

and several witnesses for defendant, all having the

threshold credentials and qualifications to be allowed

to express opinions as experts on water safety and/

or boat propeller design and/or the feasibility of de-

signing a guard for a boat propeller, express differ-

ing opinions as to the feasibility and desirability of

designing and marketing a propeller guard for pleas-

ure craft which, while arguably creating other dan-

gers, would, in fact, have protected a swimmer un-

der certain circumstances against certain kinds of

propeller injuries, can a swimmer injured under such

circumstances by an unguarded propeller present a

prima facie case under a wantonness theory, or is

the court precluded from submitting to the jury the

question of whether or not the failure to provide such

a propeller guard constitutes wantonness?”

On October 29, 1990, the Eleventh Circuit denied

OMC’s petition for writ of mandamus. Jn re: Outboard

Marine Corp., No. 90-7686, Order (llth Cir., Oct. 29,

1990), p. 26a, infra.”*

After briefing on the five certified questions, the Su-

preme Court of Alabama will be poised to answer those

questions. See p. 23a, infra."

13 Before the Eleventh Circuit ruled on OMC’s petition, the Su-

preme Court of Alabama granted OMC’s motion to stay the certifi-

cation proceeding in light of OMC’s petition for writ of mandamus.

After the Eleventh Circuit denied the petition, OMC petitioned for

rehearing, and that petition is still pending. In deference to the

federal court, the Supreme Court of Alabama has not yet lifted its

stay.

14 Beech served his opening brief on October 26, 1990.

ee ee ae

REASONS FOR GRANTING THE WRIT

I, FUNDAMENTAL FAIRNESS AND THE PRINCI-

PLES OF COMITY AND COOPERATIVE JUDICIAL

FEDERALISM COUNSEL THAT THE ELEVENTH

CIRCUIT’S DECISION BE VACATED AND, IF

NECESSARY, CORRECTED ONCE THE SUPREME

COURT OF ALABAMA HAS AUTHORITATIVELY

SPOKEN ON THE CONTROLLING ISSUES OF

ALABAMA LAW.

The unresolved issues of Alabama law currently pend-

ing before the Supreme Court of Alabama are identical

to the dispositive state law issues the Eleventh Circuit

decided below. It is possible—even likely—that the Su-

preme Court of Alabama will resolve those state law is-

sues differently from the way they were decided by the

Eleventh Circuit. If this occurs, fundamental fairness

and well-established principles of comity and cooperative

federalism would necessitate that the Eleventh Circuit’s

erroneous interpretation of state law be corrected so that

identically situated parties (Elliott and Beech) be treated

the same.

Pursuant to the Erie Doctrine, a federal court sitting

in diversity must apply the substantive law of the State

in which it sits. See Erie v. Tompkins, 304 U.S. 64

(1938). The Eleventh Circuit was therefore obligated to

apply Alabama law in reviewing the judgment sustaining

Elliott’s AEMLD and negligence claims against Mercury.

The parties vigorously argued the relevant legal issues,

pursuant to Alabama precedents. In both aspects of its

decision, however, the Eleventh Circuit travelled into un-

charted waters. Alabama law has not addressed the issue

of whether a jury is barred from considering whether an

unguarded boat propeller meets the reasonable expecta-

tions of an ordinary consumer as to its safety. Nor has

Alabama law addressed whether a jury can consider

whether a manufacturer should have used a safer product

when safer product designs were technically and economi-

cally feasible, even if they were not generally marketed.

In both regards, the Eleventh Circuit’s decision stands as

the first, and only, pronouncement of Alabama law.

But only two months after the Eleventh Circuit re-

fused to certify the questions, the Supreme Court of Ala-

bama agreed to decide the very same unresolved issues

of state law. The Supreme Court of Alabama is, of

course, “the final expositor[] of [Alabama] state law”

and of state policies that underlie it. England v. Louis-

iana State Bd. of Medical Examiners, 375 U.S. 411, 415

(1964). Once that court has spoken on the issues, all

other courts, including the Eleventh Circuit, must follow

its judgment. See, e.g., Exxon Corp. v. Eagerton, 462

U.S. 176, 181 n.38 (1983); Commissioner v. Estate of

Bosch, 387 U.S. 456, 463 (1967) ; Commercial Union Ins.

Co. v. Bituminous Cas. Corp., 851 F.2d 98, 100 (3d Cir.

1988).1° Thus, if the Supreme Court of Alabama disa-

grees with the Eleventh Circuit—and it most likely will,

28 discussed infra—Ellictt will be in the anomalous posi-

tion of being the only litigant penalized by the Eleventh

Circuit’s incorrect statement of Alabama law."*

The inequity of this result is heightened by the fact

that Elliott originally brought her suit in state court,

which ruled that her claims were cognizable unuer Ala-

bama law. The defendants moved to dismiss the state

court action, claiming that Elliott had not stated an

AELMD or negligence cause of action. The Alabama

15 See also 19 C. Wright, A. Miller, E. Cooper, Federal] Practice

and Procedure § 4507 at 91-92 & nn. 31 & 32 (1982 & Supp. 1990)

(citing cases) (hereafter “Wright & Miller’).

16—n analogous circumstances, this Court has granted certiorari

to ensure that identically situated parties are treated equally.

Gondeck v. Pan Am. World Airways, Inc., 382 U.S. 25 (1962) (per

curiam). In fact, in Gondeck, the Court granted certiorari “in the

interests of justice” even though it had previously denied cer-

tiorari in the same case. Jd. at 27. It did so because a subsequent

decision resulted in the petitioner “stand|ing] completely alone” in

his erroneous treatment under the controlling law. Id.

trial court denied those motions. Thus, that state court,

at least, believed that Elliott had, as a matter of Alabama

law, stated a valid claim against Mercury. Had respond-

ent not removed the case to federal court, the Alabama

state courts would have continued to rule on the Alabama

state law issues presented in this case and vigorously ar-

gued by the parties."7 And Eliiott would have had the

benefit of the state court’s correct, authoritative pro-

nouncement of state law, rather than the Eleventh Cir-

cuit’s inaccurate projection. The Erie Doctrine is prem-

ised on the principle that “the rights of the litigant

should not depend upon the accident of diversity of citizen-

ship.” Corbin, The Laws of the Several States, 50 Yale

L.J. 762, 774 (1941). Yet this may be exactly Elliot’s

plight unless this Court vacates the Eleventh Circuit’s

decision and directs the Eleventh Circuit to reconsider

respondent’s appeal in light of the Supreme Court of

Alabama’s definitive statements of controlling Alabama

law.

Vacating the Eleventh Circuit’s decision and remand-

ing for that court’s reconsideration after the Supreme

Court of Alabama rules in Beech, so that the federal

court can be correctly informed by the state court’s au-

thoritaitve judgment, would give life to “the important

considerations of comity and cooperative federalism which

are inherent in [our] federal system.” Lehman Bros. v.

Schein, 416 U.S. 386, 393-394 (1974) (Rehnquist, J.,

concurring). Indeed, it is the desire to “build a coopera-

tive judicial federalism,” id. at 392, which has led this

Court to embrace whole-heartedly the certification process

adopted by many States, including Alabama. See, e.g.,

*7 Indeed, had the Eleventh Circuit certified the unresolved ques-

tions to the Supreme Court of Alabama, as Elliott requested, the

present inequitabie situation would not have arisen. The Eleventh

Circuit has not hesitated to employ the Supreme Court of Ala-

bama’s certification procedure in other cases. See, e.g., Integrity

Ins. Co. v. King Kutter, Inc., 866 F.2d 408 (11th Cir. 1989);

Scott v. Board of Trustees, 815 F.2d 653 (11th Cir. 1987);

Washburn v. Rebun, 755 F.2d 1404 (11th Cir. 1985).

Zant v. Stephens, 456 U.S. 410, 416 (1982); Elinks v.

Moreno, 435 U.S. 647, 668-669 (1978) ; Bellotti v. Baird,

428 U.S. 132, 151-152 (1976). Unnecessarily allowing

the Eleventh Circuit to create and apply a rule of state

law that conflicts with the law established by the highest

court of the State “offend[s] the comity due to local

courts.” Santiago-Hodge v. Parke Davis & Co., 859 F.2d

1026, 1033 (1st Cir. 1988) (certifying unsettled question

to Supreme Court of Puerto Rico) .'®

Awaiting the ruling of the Supreme Court of Alabama

would not be a futile gesture. It is very likely that the

state court will provide answers to the certified questions

that directly conflict with the conclusions the Eleventh

Cireuit reached below. The Supreme Court of Alabama’s

ruling in Beech is almost certain to demonstrate that the

Eleventh Circuit was wrong in reversing, on state law

grounds, the jury verdict and judgment in favor of El-

liott.

First, the Eleventh Circuit departed from accepted fed-

eral practice in ascertaining the relevant Alabama law."®

18“ Rjeal injustice is done to the litigants and, worse, more

damage is done to the states’ jurisprudence and its policies by a

headstrong, resolute, inflexible determination on the part of a

federal court to barge ahead in a sort of ascetic, misguided im-

pulse, than will likely result from the slight delay occasioned by

invoking state adjudication of the controlling issues. For the

simple fact is that more and more, more federal courts are being

overruled by more state courts on local issues upon which such

federal courts have undertaken to read the Erie signs in the

quest of the Winter Haven grail.”

United States v. Buras, 475 F.2d 1870, 1373-1374 n.5 (10th Cir.

1972) (Brown, C.J., dissenting from deniai of petition for rehear-

ing en banc) (internal quotations, citations, and footnotes omitted),

cert. denied, 414 U.S. 865 (1978).

19It is remarkable that the Eleventh Circuit was so sanguine

about reversing the District Court un the issues of state law, for

it is generally accepted that such decisions are accorded consider-

able deference on appeal on the understanding that the District

Court judge has greater familiarity with the law of the State ‘n

In applying state law in diversity suits, the federal court

“functions as a proxy for the entire state court system

and therefore must apply the law that it conscienciously

believes would have been applied in the state court sys-

tem.” 19 Wright & Miller § 4507 at 89. The proper func-

tion of a federal court in diversity “is to ascertain what

the state law is, not what it ought to be.” Klaxon Co. v.

Stentor Elec. Mfg. Co., 318 U.S. 487, 497 (1941). In

the absence of controlling state law, the federal court is

not free tc indulge its preferences as to how the common

law should develop, but must determine how the highest

state court would decide the issue. E.g., Towne Realty,

Ine. v. Safeco Ins. Co. of America, 854 F.2d 1264, 1268-

1269 (llth Cir. 1988); United Parcel Serv., Inc. v.

Weben Indus., Inc., 974 F.2d 1005, 1008 (5th Cir. 1986) .*°

In making that judgment, the federal court must look to

decisions by the state supreme court in analogous cases,

and to decisions of lower courts in that State. Decisions

of courts of other States and other federal courts may

provide some insight, if the state supreme court would

have looked to those decisions in formulating its substan-

tive law. Other legal sources, such as treatises and law

review commentaries may also be helpful. See, e.g., Nicol-

son v. Life Ins. Co. of Southwest, 783 F.2d 1316, 1319

(1986); McKenna ~. Ortho Pharmaceutical Corp., 622

F.2d 657, 662-662 (3d Cir.), cert. denied, 449 U.S. 976

(1980) ; Socony-Vacuum Oil Co. v. Continental Cas. Co.,

219 F.2d 645, 647 (2d Cir. 1955). See generally 19

Wright & Miller § 4507 at 91-103.

In concluding that, under Alabama law, an unguarded

boat propeller is not dangerous beyond the reasonable

expectations of an ordinary consumer, the Eleventh Cir-

cuit cited no Alabama authority. See 903 F.2d at 1507;

which he sits. See, e.g., Balliache v. Fru-Con Const. Corp., 866

F.2d 798, 799 (8th Cir. 1989); Hines v. Joy Mfg. Co., 850 F.2d

1146, 1150 (6th Cir. 1988).

20 See 19 Wright & Miller § 4507 at 103 & n.55 (citing cases).

5a." Instead, the federal court quoted dicta from an

intermediate Georgia state court regarding a manufac-

turer’s liability for injuries caused by an axe, buzz saw

or airplane’s exposed propeller. Jd.; 6a (quoting Stovall

& Company v. Tate, supra). The court never discussed

any evidence suggesting that the Supreme Court of Ala-

bama would find the almost twenty-year-old dicta of an

21 The Eleventh Circuit did purport to rely on Supreme Court of

Alabama cases in determining the relevant legal standard for

analyzing this question, but the cases it cited in support of an

“open and dangerous” defense are not on point and may not be

applicable in the context of this case. See 903 F.2d at 1507; 5a.

Entrekin v. Atlantic Richfield Co., supra, was a failure-to-warn

case, and one of the alleged defects in Hawkins v. Montgomery

Indus. Int'l, Inc., supra, was also a failure to provide adequate

warnings. The courts held, simply, that “there is no duty to warn

where the danger is obvious.” Hawkins, 536 So.2d at 927 ‘Steagal,

J., on application for rehearing). Accord Entrekin, 519 So.2d at

450 (“A warning is to inform the user of a danger of which he

is not aware.”) This is not a failure-to-warn case; the alleged

defect is one of design. The manufacturer could not be expected

to have warned Elliott of the dangerousness of the unguarded

propeller since she did not use the product.

This highlights the major difference between the cases cited by

the Eleventh Circuit and this case: the plaintiff in both Entrekin

and Hawkins was the ultimate consumer of the allegedly defective

product. In both cases, the courts found, on the specific facts of

the case, that the product’s dangerousness was contemplated by the

consumer when he purchased (or used) the product, and there-

fore he could not recover for injuries caused when the product was

used. This is a kind of assumption of risk or contributory negli-

gence. See, e.g., Rowden v. Tomlinson, 538 So.2d 15 (Ala. 1988)

(contributory negligence); Wallace v. Doege, 484 So.2d 404, 406

(Ala. 1986) (same); Rivers v. Stihl, Inc., 484 So.2d 766, 773 (Ala.

1983) (assumption of risk). Elliott, on the other hand, cannot fit

into this mold; she was not the intended user of the product; she

was not a “consumer” at all. She was an innocent bystander when

the product was used. Although Elliott was a foreseeable victim

(from the manufacturer’s perspective), she cannot be charged with

responsibility for foreseeing that she might be run over by a

motor boat that has exposed steel propellers that are exceedingly

dangerous.

intermediate appellate level court of another State per-

suasive.”*

With regard to the second ground for its decision—

the availability of a safer alternative design—the Elev-

enth Circuit relied on no Alabama cases whatsoever. In-

stead, the court adopted legal standards articulated by a

federal court applying Mississippi law * and the Supreme

Court of Oregon applying Oregon law,** without ever

suggesting any basis for believing that these isolated

decisions—both of which are over ten years old—would

have persuasive effect in the Supreme Court of Alabama

or that Alabama takes the same doctrinal approach as

those other States. In short, contrary to this Court’s in-

struction in Klaxon, supra, instead of attempting to as-

certain what Alabama law “is,” the Eleventh Circuit ap-

parently sought only to determine “what it ought to be.”

The Supreme Court of Alabama is unlikely to agree

with the Eleventh Circuit’s view of Alabama law.** The

Supreme Court of Alabama is likely to answer the third

certified question by holding that, as a matter of Ala-

bama law, a pleasure boat’s unguarded propeller is dan-

gerous beyond the expectation of an ordinary consumer

22 As an earlier panel of the Eleventh Circuit acknowledged,

“Georgia’s product liability law .. . is significantly different from

Alabama’s product liability law.” Nettles v. Electrolux Motor AB,

784 F.2d 1574, 1578 (11th Cir. 1986).

23 See 903 F.2d at 1509; 10a (citing Fincher v. Ford Motor Co.,

399 F. Supp. 106, 114 (S.D. Miss. 1975), aff’d, 535 F.2d 657 (5th

Cir. 1976).

24 See 903 F.2d at 1510; 10a-lla (citing Wilson v. Piper Air-

craft Corp., 282 Or. 61, 577 P.2d 13822 (1978) ).

25 As then-Justice Rehnquist has explained, “the certification

procedure is more likely to produce the correct determination of

state law” than the federal court’s endeavor to ascertain it.

Lehman Bros. v. Schein, 416 U.S. at 395 (concurring opinion).

(or at least that the issue should go to the jury).”® This

result is likely because the Supreme Court of Alabama

has rejected an “open and obvious danger” complete de-

fense, Beliot Corp. v. Harrell, 339 So.2d 992, 997 (Ala.

1976), and has held that questions of the obviousness of

the defect are for the jury in AEMLD cases, Caterpillar

Tractor Co. v. Ford, 406 So.2d 854, 856-857 (Ala. 1981)

(failure to equip tractor with roll bar). Indeed, another

_ panel of the Eleventh Circuit has cited Caterpillar and

other Supreme Court of Alabama cases and expressly

held that “[u]nder the AEMLD,... a product may be

found defective even if the danger is open and obvious.”

Nettles v. Electrolux Motor AB, 784 F.2d 1574, 1579

(11th Cir. 1986) .?’

Moreover, in General Motors Corp. v. Edwards, supra

—the Alabama case most analogous to this case—the Su-

preme Court defined “reasonable expectations of an or-

dinary consumer” in a crashworthiness case in terms of

a comparison between the allegedly defective product and

“a safer, practical, alternative design [that] was avail-

able to the manufacturer at the time it manufactured

the [product].” 482 So.2d at 1191. And in Casrell v.

Altec Im :s., Inc., 335 So.2d at 131, the Supreme Court

quoted the following language from Balido v. Improved

Machinery Inc., 29 Cal. App. 3d 633 (1973) :

26 Under Alabama law, “the jury must be allowed to pass on the

evidence if any, no matt2r how slight, is offered, which, if believed,

would support a verdict in favor of the party against whom a

directed verdict is sought.” Entrekin v. Atlantic Richfield Co., 519

So.2d at 450 (internal quotes omitted).

27 No Alabama court has ever suggested that this pronouncement

of Alabama law is erroneous. Compare, e.g., United States v.

Buras, 475 F.2d at 1373-1374 n.5 (Brown, C.J., dissenting from

denial of petition for rehearing en banc) (enumerating state court

decisions explicitly rejecting federal court readings of pertinent

state law).

The panel decision, in this case does not distinguish, or even

mention, Nettles.

“A manufacturer’s failure to achieve its full poten-

tial in design and thereby forestall unreasonable dan-

ger forms the basis for its strict liability in tort. It

is a liability whose essence parallels the lack of due

care that is the essence of its liability for negligence.

It may be seen, therefore, that in cases involving

deficient design, foreseeability is merely scienter un-

der another name.”

In sum, based on Supreme Court. of Alabama prece-

dents, it appears that, under Alabama law, the fact that

an ordinary consumer may understand that a revolving

propeller involves danger does not preclude a finding that

a marine engine product is defective where it can be

shown that a safer, practical, alternative design was

available to the manufacturer at the time it manufac-

tured t’ 2 product in question. This is particularly true

in cases such as this, where the plaintiff is not the “con-

sumer” of the allegedly defective product, and therefore

cannot be charged with “contemplation” of its dangerous-

ness in the same sense as the intended user.

The second ground for the Eleventh Circuit’s reversal

is subsumed in Certified Questions 1, 2 and 4. The Su-

preme Court of Alabama is likely to answer these ques-

tions by holding, in effect, that “practical, alternative

design” does not mean only a design that is already be-

ing marketed, or is immediately capable of being mar-

keted, by manufacturers. Rather, prima facie showing

of a practical, alternative design, sufficient to support a

claim of defect under the AEMLD or negligence, is es-

tablished where the plaintiff submits some proof that the

alternative design was technologically and economically

feasible within the guidelines established by the Supreme

Court of Alabama in General Motors Corp. v. Edwards,

supra. In Casrell v. Altec Indus., Inc., for example, the

Supreme Court explained that defectiveness “ ‘must be

determined by the potential available to the designer at

the time of design.’” 335 So.2d at 131 (quoting Balido

v. Improved Machinery, Inc., supra) (emphasis added).

' |

| Later, in Dunn v. Wixom Bros., 493 So.2d 1356, 1359

(Ala. 1986), the Supreme Court of Alabama adepted the

holding of The T.J. Hooper, 60 F.2d 737 (2d Cir.),

cert. denied, 287 U.S. 662 (1932), where Judge Learned

Hand stated:

“A whole calling may have unduly lagged in the

adoption of new and available devices. It never may

set its own test, however persuasive be its usages.

Courts must in the end say what is required; there

are precautions so imperative that even their uni-

versal disregard will not excuse their omission.”

60 F.2d at 740. Thus, the Alabama court has registered

its opinion that the absence of a safer product on the

market would not, per se, preclude a finding of liability

under Alabama law.** Once the plaintiff presents some

evidence that it was technologically and economically pos-

sible for the manufacturer to use a safer design, even if

that design has some problems, it is the jury’s task to

decide whether the design was “feasible” and whether

the manufacturer unreasonably chose not to utilize it.

Cf. General Motors Corp. v. Edwards, 482 So.2d at 1198

(“|Jjuries ... are charged with the awesome respons-

ibility of deciding, on a case by case basis, the reason-

ableness of an automobile’s design.”’).

Under principles of fundamental fairness, comity and

cooperative federalism, this Court should ensure that

Elliott not be unnecessarily penalized for the Eleventh

Circuit’s incorrect pronouncement on Alabama law, if, as

expected, the Supreme Court of Alabama decides these

dispositive state law questions as petitioner has urged.

28 This reasoning is particularly appropriate in this case, where

the evidence at trial showed that respondent and OMC, the defend-

ant in Beech, controls 85% of the market and therefore could

ensure that a guarded propeller was never generally available. See

also Caterpillar Tractor Co. v. Ford, 406 So.2d at 858 (absence of

a federal standard does not excuse defendant’s failure to guard

where product was otherwise unreasonably dangerous).

Absent this Ceurt’s action, petitioner may be denied a

jury verdict to which she is rightfully entitled under

state law, even though petitioner at every stage did

everything possible to argue the state law issues, includ-

ing requesting that the court below certify the unsettled

state law issues to the Supreme Court of Alabama. The

Court need do little to avoid this wrong: the Eleventh

Circuit can itself correct its decision once it is provided

the necessary guidance by the Supreme Court of Ala-

bama.”

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for certiorari, vacate the Eleventh Circuit’s de-

cision below and direct the court to reconsider its deci-

sion once the Supreme Court of Alabama has answered

the state law questions certified in Beech v. Outboard

Marine Corp., No. 89-1815. Alternatively, the Court

should defer consideration of the petition for certiorari

pending the Supreme Court of Alabama’s decision in

Beech, and, if the Supreme Court of Alabama rules dif-

ferently than the Eleventh Circuit, thereafter grant the

petition, vacate the Eleventh Circuit’s decision, and re-

mand for reconsideration.

Respectfully submitted,

BRUCE J. ENNIS, JR..*

ANN M. KAPPLER

JENNER & BLOCK

21 Dupont Circle, N.W.

Washington, D.C. 20036

(202) 228-4400

29 This procedure should not inconvenience the court. If the Su-

preme Court of Alabama agrees with the Eleventh Circuit’s view

of Alabama law, the federal court can simply reinstate its judgment.

Respondent is not prejudiced because there is no outstanding ver-

dict against it; Mercury is not required to do anything.

a — ao

November 21, 1990

R. BEN HOGAN, III

HOGAN, SMITH, ALSPAUGH, SAMPLES

& PRATT, P.C.

2323 Second Avenue North

Birmingham, Alabama 35203

(205) 324-5635

Counsel for

Petitioner Ashley Elliott

* Counsel of Record

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APPENDIX A

UNITED STATES COURT OF APPEALS

ELEVENTH CIRCUIT

No. 89-7190

ASHLEY ELLIOTT,

Plaintiff-Appellee,

BRUNSWICK CORPORATION,

Defendant.

APPEAL OF MERCURY MARINE, A DIVISION OF

BRUNSWICK CORPORATION,

Defendant-A ppellant.

Appeal from the United States District Court

for the Northern District of Alabama

June 25, 1990

Before COX, Circuit Judge, and HILL*, Senior Cir-

cuit Judge, and SMITH**, Senior Circuit Judge.

HILL, Senior Circuit Judge:

The appellant, a manufacturer of motors for boats,

appeals an unfavorable judgment of $4,375,000.00 in this

lawsuit based on diversity jurisdiction. At trial, the

appellee contended that the appellant should have con-

structed guards on the propellers that it manufactures,

and asserted three theories of recovery: (1) compensa-

* See Rule 34-2(b), Rules of the U.S. Court of Appeals for the

Eleventh Circuit.

** Honorable Edward S. Smith, Senior U.S. Circuit Judge for the

Federal Circuit sitting by designation.

tory damages based on alleged negligence, (2) compensa-

tory damages based on alleged product liability under

the Alabama Extended Manufacturer’s Liability Doc-

trine, and (3) punitive damages based on alleged wanton-

ness. The jury returned a verdict in favor of the appellee

against Mercury in the amount of $1,500,000.00 compen-

satory damages, and $3,000,000.00 punitive damages. The

district court entered a judgment against Mercury in the

amount of $4,375,000.00, a sum which reflected a setoff

for the amount the appellee received in settlement from

other defendants. We reverse.

FACTS

In July, 1982, the appellee, Ashley Elliott, then four-

teen years old, jumped from a pier at night into the

water next to a boat; the rotating propeller on the boat’s

motor, and perhaps the boat’s cavitation plate, struck and

injured her. Elliott suffered grievous injuries requiring

extensive surgery. The appellant, Mercury Marine, de-

signed and manufactured the motor at issue, including

the drive mechanism which required a propeller. Con-

sumers generally use boats such as the one involved here,

(of the sort often referred to as “planing” pleasure

crafts‘), for skiing, fishing and other recreational activi-

ties. At trial, the evidence showed that the boat operator

had been drinking, but his conduct is not at issue in this

appeal.

TRIAL PROCEEDINGS

In July, 1983, Elliott filed suit in the Circuit Court of

Jefferson County, Alabama against Mercury and several

other defendants; most defendants settled with Elliott

prior to trial. Elliott contended that Mercury should

have constructed a guard around the boat’s propeller to

protect her from injury. In July, 1988, Mercury and a

1“Planing” means that as these boats increase in speed (up to

20 m.ph.), they lift themselves from the water and “plane” on the

surface.

co-defendant removed this diversity case to the United

States District Court for the Northern District of Ala-

bama. The parties tried the case in August, 1988, but

after two days of deliberation, the jury failed to reach a

verdict as to Mercury, and the court declared a mistrial.

In January, 1989, the parties retried the case, and the

court instructed the jury on three theories of recovery:

(1) compensatory damages based on alleged negligence,

(2) compensatory damages based on alleged product lia-

bility under the Alabama Extended Manufacturer’s Lia-

bility Doctrine (“AEMLD”), and (3) punitive damages

based on alleged wantonness. The jury returned a verdict,

and the court entered a judgment for the amount we have

already discussed.

Mercury filed a Motion for Judgment Notwithstanding

the Verdict or in the Alternative for Remittitur or in

the Alternative for a New Trial, which the court denied.

This appeal followed.

DISCUSSION

Mercury now asserts that the district court erred in

denying Mercury’s mction for both a directed verdict and

a judgment notwithstanding the verdict as to the issue of

Mercuryv’s liability; Mereury also asserts that the district

court erred in denying this same motion on the issue of

the punitive damages assessed against Mercury. Mercury

also challenges the district court’s admission into evidence

of a videotape deposition of one of Mercury’s attorneys

who repeatedly invoked the attorney-client privilege and

refused to answer. Likewise, Mercury contends that the

district court erred by denying its motion for a new trial,

and by allowing the admission of evidence concerning

Mercury’s wealth. Finally, Mercury asks in the alterna-

tive that we enter a remittitur as to the amount of

punitive damages that the district court assessed.

MERCURY’S LIABILITY

The trial court charged the jury in this case on two

liability theories, product liability under the Alabama Ex-

tended Manufacturer’s Liability Doctrine (“AEMLD”),

and negligence. Case law, found in Casrell v. Altec In-

dustries, Inc., 385 So.2d 128 (Ala. 1976), and Atkins v.

American Motors Corp., 335 So.2d 134 (Ala.1976), cre-

ated Alabama’s AEMLD. Virtually the same principles

apply under either theory.

In Casrell and Atkins, Alabama, like many states, par-

tially adopted Section 402A of the American Law Insti-

tute’s Second Restatement of Torts. That Section banished

the traditional obstacles of both privity and contractual

defenses to product liability claims by changing the

nature of the cause of action from contract to tort. Plain-

tiffs, moreover, no longer needed to prove the seller’s lack

of due care, since the new action, although based in tort,

removed the requirement that the product’s defect result

from the seller’s negligence. Advocates and scholars have

divided the new tort into many subparts, but the instant

ease clearly involves, not an alleged manufacturing flaw,

but a manufacturer’s alleged conscious decision to design

an inherently dangerous product.

With this qualification in mind, we now examine the

pertinent Alabama case law. Elliott contends that Mer-

cury’s design for its propeller was defective, since it did

not provide for a guard to encircle it. In Casrell, the

Supreme Court of Alabama interpreted “defective” to

mean “. .. that the product does not meet the reasonable

expectations of an ordinary consumer as to its safety.”

335 So.2d at 133. In General Motors Corp. v. Edwards,

482 So.2d 1176, 1191 (Ala.1985), that same court held

that if a plaintiff wishes to show that an allegedly dan-

gerous product is defective, he must also prove that a

“.. safer, practical, alternative design was available to

the manufacturer at the time it manufactured the [prod-

Die eta ain ote Ee ala Reale I a RIN kT ne RIM ASD

uct].” Mercury contends that Elliott failed to establish

either element of her cause of action. We agree.

1. Consumer Expectations Test

As adopted by the Alabama Supreme Court in Atkins

v. American Motor Corp., 335 So.2d 134, 147 (Ala.1976),

the Second Restatement states that a defective product is

one “. . . dangerous beyond that which would be contem-

plated by the ordinary consumer who purchases it, with

the ordinary knowledge common to the community as to

its characteristics.” Restatement (Second) of Torts,

§402A comment i. Our task today is to determine

whether a pleasure boat’s unguarded propellers are dan-

gerous beyond the expectations of the ordinary consumer.

We conclude that they are not.

Although, under Alabama law, a jury ordinarily evalu-

ates a plaintiff’s claims that a product is defective, our

review of the pertinent case law convinces us that certain

products whose inherent danger is patent and obvious, do

not, as a matter of law, involve defects of a sort that a

jury should resolve.

In our view, the ordinary consumer clearly understands

that a revolving propeller involves danger. “The use of

certain products,” as the Alabama Supreme Court has

noted, has always been ‘“‘. . . firmly grounded in common

sense.” Entrekin v. Atlantic Richfield Co., 519 So.2d 447,

450 (Ala. 1988). In Hawkins v. Montgomery Industries

Int'l, Inc., 586 So.2d 922, 926 (Ala.1988), moreover, that

same court held that although a jury must normally assess

a plaintiff’s allegations that a product is defective, an

“exception[]” exists when the involved parties “contem-

plated” the nature of the defect at the time of the acci-

dent.

Some products, by their nature, (or, in modern par-

lance, by their conscious design), place both users and

bystanders in some measure of danger. A knife or an axe

may cut persons, as well as their intended targets. Fish

hooks can wound; saws can maim, and revolving pro-

pellers can cause fearful damage. Yet as the Georgia

Court of Appeals noted in Stovall & Co. v. Tate, 124 Ga.

App. 605, 184 S.E.2d 834, 838 (1971), we do not hold

manufacturers liable simply because the use of their prod-

ucts involves some risk:

To illustrate, the manufacturer who makes, properly

and free of defects, an axe or a buzz saw or an air-

plane with an exposed propeller, is not to be held

liable if one using the axe or the buzz saw is cut

by it, or if someone working around the airplane

comes in contact with the propeller.

We hold that the dangers inherent in Mercury’s product

should have been apparent to, or within the contemplation

of, Elliott. Thus, Mercury has not manufactured a defec-

tive product within the meaning of the Restatement (Sec-

ond) of Torts.

2. Available Alternative Design

Elliott vigorously contends that Mercury had access to

a safe, practical design for propeller guards “which it

could have manufactured and marketed many years in

advance of the manufacture of the engine involved in this

lawsuit.” Mercury just as vigorously contends that Elliott

is unfairly attempting to penalize the company by creat-

ing an imaginary duty “to invent” an acceptable pro-

peller guard. :

We agree with Mercury that courts cannot burden com-

panies with an immediate duty to revolutionize their

industry. Elliott has demonstrated to our satisfaction

than an experimental propeller guard, useful for some

purposes, existed at the time of her accident. Elliott also

argues, however, that we should hold Mercury for its

failure to adapt and refine that design into one feasible

for use on planing propeller craft. With this we do not

agree.

As Mercury has stated, and as Elliott concedes, at this

stage neither industry custom, nor the pertinent regula-

tions, dictate the use of propeller guards. Witnesses for

both parties indicated that no boat manufacturer, boat

motor manufacturer, or boating accessory manufacturer

currently offers a propeller guard for planing pleasure

boats for the purpose of protecting persons from pro-

peller contact.2 Moreover, the Federal Boat Safety Act

of 1971, 46 U.S.C.A. § 4301, et seq., gives the Coast Guard

the exclusive responsibility for establishing safety regu-

lations. The Coast Guard, in its turn, has promulgated a

substantial body of boat safety regulations, none of which

require or recommend propeller guards.*

2 Certain rescue units in parts of California, as well as in New

Zealand and Australia, apparently use propeller guards for life

rescue operations conducted in high surf; at one time certain United

States Marine Corps landing craft also used them there. Both life

rescue boats and military landing craft, will, of course, probably be

either stationary or slow-moving, since they generally operate in

situations where floundering persons may be in the water, near

the revolving propeller blades.

In addition, slow-moving passenger boats in amusement parks

also use propeller guards. Finally, one propeller manufacturer uses

guards to protect the propellers on low-horsepower motors on non-

planing fishing boats, since users often take these boats into shallow

water containing underwater hazards such as rocks and stumps.

8 We also note that the Report of the Propeller Guard Committee,

prepared by the National Boating Safety Advisory Committee, and

presented on November 7, 1989, recommends that the “U.S. Coast

Guard ... take no regulatory action to require propeller guards”

(emphasis supplied). The Report reflects the concerns of several

of the experts at trial by noting that these “guards present under-

water profiles of significantly larger frontal area,” thereby increas-

ing the risk of accidental contact with persons in the water. The

Report also warns that ring-type guards may catch an arm, leg or

other appendage and hold it against the blades of the rotating

propeller.

Although the Coast Guard has considered the matter, it has not

adopted regulations requiring guards.

We suggest, although we in no way hold, that when the fed-

eral government has explicitly declared that its rules and regula-

tions supplant those of a state, a party may at least contend that

these regulations supplant pronouncements not only from state

Eliott argues, however, and we agree, that a manu-

facturer’s proof of compliance with either industry-wide

practices, or even federal regulations, fails to eliminate

conclusively its liability for its design of allegedly defective,

products. See e.g., Dunn v. Wixom Bros., 493 So.2d

1356 (Ala.1986) ; General Motors Corp. v. Edwards, 482

So.2d 1176, 1198 (Ala.1985). We do not, naturally, dis-

miss a manufacturer’s compliance with industry stand-

ards, but we must also remember that those standards

may sometimes merely reflect an industry’s laxness, in-

efficiency, or inattention to innovation. As Judge Learned

Hand stated in The T.J. Hooper, 60 F.2d 737, 740 (2d

Cir.1932) :

A whole calling may have unduly lagged in the adop-

tion of new and available devices. It never may set

its own test, however persuasive be its usages. Courts

must in the end say what is required; there are

precautions so imperative that even their universal

disregard will not excuse their omission.

In our view, it is difficult to articulate a rule that cate-

gorizes, in consistent fashion, those occasions when a

court should defer to a manufacturer’s compliance with

industry standards, and those occasions when a court

should fashion new guidelines as to what those standards

should be. In this case, however, we have the opinion of

experts to guide us.

At trial, the plaintiff showed the jury a videotape of

the boat actually involved in Elliott’s accident, with a

ring guard affixed to its propeller, and demonstrating a

loss in speed of only five miles per hour. At first blush,

this demonstration, the highwater mark of the plaintiff’s

case, was most impressive. On reflection, however, we

note that the plaintiff demonstrated only what both parties

legislatures, but from state juries as well. We caution, however,

that this suggestion in no way determines our holding today.

already had conceded; both parties agreed that it was

possible to equip these boats with guards.*

At trial, moreover, the experts called by both parties

agreed that no feasible guard existed that could be

adapted readily to existing motors. For example, one of

plaintiff’s witnesses, Dr. Arthur Reed, a naval architect,

estimated that Mercury might develop an appropriate

guard after a total of ten or eleven years of effort by

biomechanical engineers, hydrodynamic engineers, struc-

tural engineers, and materials engineers, followed by an

additional four years of prototype testing. Dr. Reed

frankly conceded, in short, that, in his view, “all of these

guards need technical development before they are ready

to really be marketed.”

Both parties’. witnesses, moreover, testified regarding

potential difficulties that these devices might engender.

Both groups of experts, for example, testified that the

use of these guards can result in a boat’s substantial loss

of power and speed, due to their added drag. Both

parties’ experts also testified that ring guards would cre-

ate handling and steering problems; they stated that these

guards, due to their circular shape, add new rudder areas

in entirely new planes, thus inducing dangerous handling

characteristics. Mercury’s experts, moreover, testified

that guards could create safety hazards. They stated that

some consumers would be likely to remove the guard to

gain power and promote fuel economy; a guard’s removal

would cause the boat to exceed its power rating, and thus

would create handling difficulties.

Both parties’ experts also explained that guards them-

selves can become a danger as they move through the

water. Experts from both sides agreed that guards can

4In fact, had the jurors been able to join the operator inside the

boat, instead of merely witnessing a videotaped demonstration of

his ride, they might have gained greater insight into some of the

difficulties generated by the application of these guards.

10a

entrap human limbs, increasing the risks of mutilation,

amputation and drowning. One of Elliott’s experts

acknowledged that if a boat were moving in the 30-35

mph range, a blow to the head by one of its guards would

be fatal; he also conceded that serious injuries would

occur even at lesser speeds.

In short, although Elliott’s experts promoted the use

of propeller guards, they agreed that companies could not

yet market them for general use. Both sets of experts,

moreover, discussed the problems that these devices en-

gender. Elliott’s nearest approach to evidence on their

utility was her videotape of the boat that struck her

equipped with such a guard; Elliott’s own experts, how-

ever, agreed that a satisfactory guard of this type was

not available. Elliott, therefore, failed to produce evi-

dence that Mercury had access to a safe, practical design

for propeller guards at the time of her accident.

We do not mean to suggest, by our holding today, that

the propeller industry may never design a feasible pro-

peller guard that satisfies the concern mentioned by the

experts at trial. Our review of the evidence and testi-

mony, however, convinces us that both current industry

standards, and the federal regulations, simply reflect the

consensus of experts that the industry’s adaption of pro-

peiler guards at this point would not only be infeasible,

but unwise, unsafe and unfortunate. As a general rule,

courts endeavor not to scapegoat manufacturers where

challenged designs are “in a state of flux” at the time of

manufacture. Fincer v. Ford Motor Co., 399 F.Supp. 106,

114 (S.D.Miss.1975), aff'd, 585 F.2d 657 (5th Cir.1976).

In this case, moreover, the challenged designs are not even

in a state of transition; at trial, even experts who pro-

moted these guards agreed that their application was not

yet possible. As one court reasoned in Wilson v. Piper

Aircraft Corp., 282 Or. 61, 577 P.2d 1322, 1326-27

(1978):

lla

If liability for the alleged design defect is to “stop

somewhere short of the freakish and the fantastic,”

plaintiff's prima facie case of a defect must show

more than technical feasibility of a safe design.

* * * *

It is not proper to submit such allegations to the

jury unless the court is satisfied that there is evi-

dence from which the jury could find the suggested

alternatives are not only technically feasible but also

practicable in terms of costs and the over-all design

and operation of the project.

Experts have studied this issue, and have stated that no

company has as yet developed a feasible guard; they have

also expressed serious concerns about its safety. We hold,

therefore, that when Elliott failed to demonstrate the

existence of a safer, practical propeller guard for use on

planing pleasure boats, as required by the Alabama Su-

preme Court in Ewards, she failed to establish a claim

under Alabama’s Extended Manufacturer’s Liability Doc-

trine. We also hold, for the same reason, that Elliott

failed to state a tort claim based on negligence.

CONCLUSION

Because of our holding on the subject of Mercury’s

liability, we need not reach the other issues raised in its

appeal.

We hold that the appellee failed to show that the

appellant manufactured a product defective in the sense

contemplated by the Restatement (Second) of Torts,

§ 402A, and as interpreted by the Alabama Supreme

Court.

We therefore REVERSE the judgment of the district

court.

12a

APPENDIX B

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-7190

ASHLEY ELLIOTT,

Plaintiff-A ppellee,

versus

BRUNSWICK CORPORATION,

Defendant,

MERCURY MARINE, a Division of

Brunswick Corporation,

Defendant-A ppellant

On Appeal from the United States District Court

for the District of Northern Alabama

ON PETITION FOR REHEARING AND

SUGGESTION OF REHEARING EN BANC

Opinion June 25, 1990

Before: COX, Circuit Judge, HILL*, Senior Circuit

Judge, and SMITH**, Senior Circuit Judge

* See Rule 34-2(b), Rules of the U.S. Court of Appeals for the

11th Cir.

** Honorable Edward S. Smith, Senior U.S. Circuit Judge for the

Federal Circuit, sitting by designation.

. a

PER CURIAM:

The Petition for Rehearing is DENIED and no mem-

ber of this panel nor other Judge in regular active serv-

ice on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule 35-5), the

Suggestion of Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ Emmett Ripley Cox

United States Circuit Judge

l4a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

Civil Action No. 88-AR-1104-S

ASHLEY ELLIOTT,

Plaintiff

vs.

BRUNSWICK CORPORATION,

Defendant

ORDER

Pursuant to the jury verdict of this date, plaintiff,

Ashley Elliott, shall have and recover of defendant,

Brunswick Corporation, the sum of $4,375,000.00 rep-

resenting the verdict in the amount of $4,500,000.00

minus the $125,000.00 previously received by pro tanto

settlement. Judgment in said amount is hereby EN-

TERED.

Court costs are taxed against defendant.

DONE this 17th day of January, 1989.

/s/ William M. Acker, Jr.

WILLIAM M. ACKER, JR.

United States District Judge

——— Oe!

15a

APPENDIX D ‘

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

Civil Action No. 89-AR-0789-M

MATTHEW BEECH, ETC., ,

Plaintiff

vs.

OUTBOARD MARINE CORPORATION,

Defendant

MEMORANDUM OPINION

[Filed Sep. 19, 1990]

The court has for consideration the motion for sum-

mary judgment pursuant to Rule 56, F.R.Civ.P., filed by

defendant, Outboard Marine Corporation (OMC), in the

above-entitled cause. The plaintiff is Matthew Beech, an

eight-year old minor who sues through his next friend

and father, Thomas L. Beech. The action is based on

allegations that plaintiff was run over and injured while

swimming with his father near a boat powered by an

88 horsepower Johnson outboard motor manufactured

by OMC.

In its brief in support of its Rule 56 motion, OMC al-

leges, correctly :

Plaintiff’s entire case is based upon his claim that

the OMC engine was defective in one respect: it did

not have a propeller guard. That is the only allega-

tion of defect against OMC.

16a

OMC argues that the issues of Alabama law are indis-

tinguishable from the issues presented in Elliott uv.

Brunswick Corporation, 903 F.2d 1505 (11th Cir. 1990).

Both parties agree that the Alabama case which comes

closest to the point is General Motors Corp. v. Edwards,

482 So. 2d 1176 (Ala. 1985), which was relied upon by

the Eleventh Circuit in Elliott. However, it appears to

this court pursuant to Rule 18, Alabama Rules of Ap-

pellate Procedure, that there exist questions or proposi-

tions of law which are determinative of this cause and

that there are no clear controlling procedents of the Su-

preme Court of Alabama on the said questions or prop-

ositions.

Elliott was a diversity action in which the question

of liability was governed by the Alabama substantive law

of (1) Alabama Extended Manufacturers Liability Doc-

trine; (2) negligence; and (3) wantonness. In L£lliott,

the Eleventh Circuit reversed the judgment entered by

the district court on a jury verdict in favor of a swim-

mer injured by an unguarded propeller manufactured,

designed and marketed by the defendant in that case.

The Eleventh Circuit gave two basic reasons for its find-

ing or interpretation of the applicable Alabama law:

(1) that the plaintiff had not proven that a safer, prac-

tical alternative design was available to the manufac-

turer-defendant; and (2) that a pleasure boat’s . un-

guarded propelier is not dangerous beyond the expecta-

tion of an ordinary consumer. West Publishing Com-

pany’s key numbered propositions of law preceding its

publication of Elliott, both under the heading “Products

Liability,” are:

Pleasure boat’s unguarded propellers are not “‘dan-

gerous beyond expectations of ordinary consumer”

so as to render propeller defective within meaning

of Alabama products liability law.

* * * ”

17a

Failure of pleasure boat motor manufacturer to

design safe, practical propeller guard for pleasure

boat motors did not render propeller unreasonably

dangerous under Alabama products liability law,

where neither industry custom, nor pertinent regu-

lations, dictated use of propeller guards.

The Eleventh Circuit stated these propositions of Ala-

bama law which led to its conclusion that defendant’s

motion for a directed verdict should have been granted.

The £iliott case was submitted to a jury which, in theory

if not in fact, evaluated the considerable expert testimony

offered by plaintiff, all to the general effect that a preo-

peller guard could have been adapted and made feasible

for use on a pleasure craft such as the one which injured

plaintiff while she was swimming. Plaintiff’s theory was

not that a feasible propeller guard presently existed but

that a feasible guard could have been developed and been

available by a reasonable use of the manufacturer’s re-

sources. Theoretically at least, the jury believed the

plaintiff’s experts. The central question on appeal to the

Eleventh Circuit was “Could plaintiff’s experts be be-

lieved?” The Eleventh Circuit concluded that ‘the con-

sensus of the experts [is] that the industry’s adoption of

propeller guards at this point would not only be in-

feasible, but unwise, unsafe and unfortunate.” This was

not only the Eleventh Circuit’s interpretation of the opin-

ions of the experts in that case but was an expression by

the Eleventh Circuit of the law of Alabama on this rather

narrow subject.

Is is so highly unusual as to amount to a miracle that

this court is now confronted with the identical issues of

Alabama law recently presented to it in Elliott. The

easier course would be to grant OMC’s motion for sum-

mary judgment on the precedent of Elliott. But plaintiff

in the instant case, while unsuccessfully attempting to

distinguish this case from Elliott, has alse asked this

court to certify to the Supreme Court of Alabama certain

18a

pertinent questions pursuant to Rule 18, Alabama Rules

of Appellate Procedure. Because this court can see no

legitimate, factual or legal distinction between Elliott

and this case, questions, as composed by this court and

not by plaintiff’s counsel, will be certified. In particular,

the expert witnesses in this case and in Elliott will either

be identical, or will be making the same technical and

bio-mechanical arguments. Under the circumstances, this

court deems it appropriate that the highest appellate court

in the State of Alabama, the state whose substantive laws

are necessarily to be applied, be given an opportunity to

express itself before this court expresses itself. There-

fore, by separate order, this court will certify certain

questions to the Supreme Court of Alabama.

This court will keep OMC’s motion for summary judg-

ment under advisement until the Supreme Court of Ala-

bama either answers the certified questions or declines to

accept the certification.

DONE this 19th day of September, 1990.

/s/ William M. Acker, Jr.

WILLIAM M. ACKER, JR.

United States District Judge

19a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION ,

Civil Action No. 89-AR-0789-M

MATTHEW BEECH, ETC.,

Plaintiff

vs.

OUTBOARD MARINE CORPORATION,

Defendant

CERTIFICATE FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF ALABAMA TO THE SUPREME COURT OF

ALABAMA PURSUANT TO RULE 18, ALABAMA

RULES OF APPELLATE PROCEDURE

[Filed Sep. 19, 1990]

(1) Style of the Case:

The style of the case in which this certificate is made

is Matthew Beech, an eight-year old miner who sues

through his next friend and father, Thomas L. Beech,

Plaintiff, v. Outboard Marine Corporation, a corpora-

tion, Defendant, Civil Action No. 89-AR-0789-M, United

States District Court for the Northern District of Ala-

bama, Middle Division.

(2) Statement of Facts:

The pertinent facts are set forth in the accompanying

memorandum opinion, and are elaborated in defendant’s

20a

motion for summary judgment and in plaintiff’s response,

both of which will be transmitted herewith to the Su-

preme Court of Alabama.

(3) Questions Certified:

A. Assuming that several witnesses for plaintiff and

several witnesses for defendant, all having the thresh-

hold credentials and qualifications to be allowed to ex-

press opinions as experts on water safety and/or boat

propeller design and/or the feasibility of designing a

guard for a boat propeller, express differing opinions as

to the feasibility and desirability of designing and mar-

keting a propeller guard for pleasure craft which, while

arguably creating other dangers, would, in fact, have

protected a swimmer under certain circumstances against

certain kinds of propeller injuries, can a swimmer in-

jured under such circumstances by an unguarded pro-

peller present a prima facie case under the Alabama

Extended Manufacturers Liability Doctrine (AEMLD) ;

or is the trial court precluded from submitting to the

jury the question of whether or not a safer practical

alternative design could have been or should have been

made available to the consuming public?

B. Is it possible under AEMLD for an injured swim-

mer to present expert testimony which will make out a

jury issue of product defect when the only alleged defect

is the absence of a guard on a pleasure boat propeller on

an outboard motor and when the only evidence offered by

plaintiff is that a feasible propeller guard could have been

sources?

C. As a matter of Alabama law, is or is not a pleasure

boat’s unguarded propeller dangerous beyond the expec-

tation of an ordinary consumer?

D. Assuming that several witnesses for plaintiff and

several witnesses for defendant, all having the threshold

2la

credentials and qualifications to be allowed to express

opinions as experts on water safety and/or boat propeller

design and/or the feasibility of designing a guard for a

boat propeller, express differing opinions as to the feasi-

bility and desirability of designing and marketing a pro-

peller guard for pleasure craft which, while arguably

creating other dangers, would, in fact, have protected a

swimmer under certain circumstances against certain

kinds of propeller injuries, can a swimmer injured under

such circumstances by an unguarded propeller present a

prima facie case under a negligence theory, or is the court

precluded from submitting to the jury the question of

whether or not the failure to provide such a propeller

guard constitutes negligence?

E. Assuming that several witnesses for plaintiff and

several witnesses for defendant, all having the thresh-

hold credentials and qualifications to be allowed to express

opinions as experts on water safety and/or boat propeller

design and/or the feasibility of designing a guard for a

boat propeller, express differing opinions as to the feasi-

bility and desirability of designing and marketing a pro-

peller guard for pleasure craft which, while arguably

creating other dangers, would, in fact, have protected a

swimmer under certain circumstances against certain

kinds of propeller injuries, can a swimmer injured un-

der such circumstances by an unguarded propeller pre-

sent a prima facie case under a wantonness theory, or

is the court precluded from submitting to the jury the

question of whether or not the failure to provide such a

propeller guard constitutes wantonness?

All of these questions presuppose that substantial evi-

dence of proximate causation is presented by the plain-

tiff.

The particular phrasing used in the above certified

questions is not intended in any way to restrict the Su-

preme Court’s consideration of the issues or its analysis

of the record certified in this case. This latitude, of

22a

course, extends to the Supreme Court’s restatement of the

issue or issues and to the manner in which it gives its

answers. See Martinez v. Rodriquez, 394 F.2d 156, 159,

n.6 (5th Cir. 1968). If the Supreme Court requests of

the Clerk of this court that the transcript of the entire

record in Elliott v. Brunswick Corporation be made avail-

able, the Clerk shall transmit it.

The Clerk of this Court is directed to transmit this

certificate, as well as a copy of the entire file in the case,

including the accompanying memorandum opinion, to the

Supreme Court of Alabama, all under the official seal of

the Clerk, and at the same time transmit copies of this

certificate and the accompanying memorandum opinion to

counsel for the parties.

DONE this 19th day of September, 1990.

/s/ William M. Acker, Jr.

WILLIAM M. ACKER, JR.

United States District Judge

28a

APPENDIX F

THE STATE OF ALABAMA

JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

October 11, 1990

89-1815

MATTHEW BEECH, a minor, who sues through his father

and next friend, THOMAS L. BEECH

Vv.

OUTBOARD MARINE CORPORATION

CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF ALABAMA,

MIDDLE DIVISION

ORDER

This Court having consented to answer the question

certified by the United States District Court for the

Northern District of Alabama, Middle Division.

IT IS ORDERED that the plaintiff, Matthew Beech,

a minor, who sues through his father and next friend,

Thomas L. Beech, shall file with the Clerk of this Court,

within twenty-eight (28) days from this date, an original

and nine copies of their brief, with certificate of service

on opposing counsel, on the questions hereinafter stated.

The defendant, Outboard Marine Corporation, shall file

with the Clerk of this Court, within twenty-one (21) days

24a

after receipt of plaintiff’s brief, an original and nine

copies of its brief, with certificate of service on opposing

counsel. Plaintiff may file a reply brief to defendant’s

brief within fourteen (14) days from receipt therof.

The questions are:

1. Assuming that several witnesses for plaintiff

and several witnesses for defendant, all having the

threshold credentials and qualifications to be allowed

to express opinions as experts on water safety and/or

boat propeller design and/or the feasibility of design-

ing a guard for a boat propeller, express differing

opinions as to the feasibility and desirability of de-

signing and marketing a propeller guard for pleasure

craft which, while arguably creating other dangers,

would, in fact, have protected a swimmer under cer-

tain circumstances against certain kinds of propeller

injuries, can a swimmer injured under such circum-

stances by an unguarded propeller present a prima

facie case under the Alabama Extended Manufac-

turers Liability Doctrine (AEMLD); or is the trial

court precluded from submitting to the jury the ques-

tion of whether or not -a safer practical alternative

design could have been or should have been made

available to the consuming public?

2. Is it possible under AEMLD for an injured

swimmer to present expert testimony which will make

out a jury issue of product defect when the only

alleged defect is the absence of a guard on a pleasure

boat propeller on an outboard motor and when the

only evidence offered by plaintiff is that a feasible

propeller guard could have been designed by a proper

use of the manufacturer’s resources?

3. As a matter of Alabama law, is or is not a

pleasure boat’s unguarded propeller dangerous be-

yond the expectation of an ordinary consumer?

25a

4. Assuming that several witnesses for plaintiff

and several witnesses for defendant, all having the

threshold credentials and qualifications to be allowed

to express opinions as experts on water safety and/or

boat propeller design and/or the feasibility of design-

ing a guard for a boat propeller, express differing

opinions as to the feasibility and desirability of de-

signing and marketing a propeller guard for pleasure

craft which, while arguably creating other dangers,

would, in fact, have protected a swimmer under cer-

tain circumstances against certain kinds of propeller

injuries, can a swimmer injured under such circum-

stances by an unguarded propeller present a prima

facie case under a negligence theory, or is the court

precluded from submitting to the jury the question

of whether or not the failure to provide such a pro

peller guard constitutes negligence?

5. Assuming that several witnesses for plaintiff

and several witnesses for defendant, all having the

threshold credentials and qualifications to be allowed

to express opinions as experts on water safety and/or

boat propeller design and/or the feasibility of design-

ing a guard for a boat propeller, express differing

opinions as to the feasibility and desirability of de

signing and marketing a propeller guard for pleasure

craft which, while arguably creating other dangers,

would, in fact, have protected a swimmer under cer-

tain circumstances against certain kinds of propeller

injuries, can a swimmer injured under such circum-

stances by an unguarded propeller present a prima

facie case under a wantonness theory, or is the court

precluded from submitting to the jury the question

of whether or not the failure to provide such a pro-

peller guard constitutes wantonness?

Hornsby, C. J., and Maddox, Jones, Shores, Adams,

Houston, and Kennedy, JJ., concur.

26a

APPENDIX G

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 90-7686

IN RE: OUTBOARD MARINE CORPORATION,

Petitioner.

On Petition for Writ of Mandamus to the

United States District Court

for the Northern District of Alabama

[Filed Oct. 29, 1990]

BEFORE: FAY, COX and BIRCH, Circuit Judges.

BY THE COURT:

The petition for writ of mandamus is DENIED.

Respondent Beech’s motion to dismiss petition for writ

of mandamus as moot is DENIED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.