In the Matter of C. F. Bean L.L.C., as Owner Pro Hac Vice and Operator, and Bean Meridian L.L.C., as the Record Owner, of the Barge Bean 20, Official No. 627225, Praying for Exoneration from or Limitation of Liability

Filing 454

Memorandum Opinion and Order Granting Suzuki Motor Corporation's Motion for Summary Judgment 329 ; Denying as Moot Suzuki Motor Corporation's Motions for Partial Summary Judgment 404 406 ; Denying as Moot Suzuki Motor Corporation's Motion to Strike 412 and Supplemental Motion to Strike 420 ; and Denying as Moot C.F. Bean, LLC, and Bean Meridian, LLC's Daubert Motion to Exclude Testimony of Suzuki Motor Corporation's Expert Don F. Kueny, P.E. 344 . Signed by District Judge Halil S. Ozerden on November 23, 2015. (BGL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
IN THE MATTER OF C. F. BEAN, LLC,
AS OWNER PRO HAC VICE AND
OPERATOR, AND BEAN MERIDIAN,
LLC, AS THE RECORD OWNER, OF
THE BARGE BEAN 20, OFFICIAL NO.
627225, PRAYING FOR EXONERATION
FROM OR LIMITATION OF LIABILITY

CIVIL NO. 1:13-cv-77-HSO-RHW

CONSOLIDATED WITH:
JERRIE P. BARHANOVICH,
EXECUTRIX AND PERSONAL
REPRESENTATIVE OF THE ESTATE
OF MARK BARHANOVICH, DECEASED

PLAINTIFF
CIVIL NO. 1:13-cv-84-HSO-RHW

v.
C. F. BEAN, L.L.C. and ARCHER
WESTERN CONTRACTORS, L.L.C.

DEFENDANTS / THIRD
PARTY PLAINTIFFS

v.
SUZUKI MOTOR CORPORATION,
SUZUKI MOTOR OF AMERICA, INC.
AND RSM INTERNATIONAL, INC.
D/B/A BOB’s MACHINE SHOP

THIRD PARTY DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING SUZUKI MOTOR
CORPORATION’S MOTION FOR SUMMARY JUDGMENT [329]; DENYING
AS MOOT SUZUKI MOTOR CORPORATION’S MOTIONS FOR PARTIAL
SUMMARY JUDGMENT [404] [406]; DENYING AS MOOT SUZUKI MOTOR
CORPORATION’S MOTION TO STRIKE [412] AND SUPPLEMENTAL
MOTION TO STRIKE [420]; AND DENYING AS MOOT C.F. BEAN, LLC,
AND BEAN MERIDIAN, LLC’S DAUBERT MOTION TO EXCLUDE
TESTIMONY OF SUZUKI MOTOR CORPORATION’S EXPERT DON F.
KUENY, P.E. [344]
BEFORE THE COURT are Suzuki Motor Corporation’s Motion for Summary
Judgment [329], Suzuki Motor Corporation’s Motions for Partial Summary

Judgment [404] [406], Suzuki Motor Corporation’s Motion to Strike [412] and
Supplemental Motion to Strike [420], and C.F. Bean, LLC, and Bean Meridian,
LLC’s, Daubert Motion to Exclude Testimony of Suzuki Motor Corporation’s Expert
Don F. Kueny, P.E. [344]. These Motions are fully briefed.
Having considered the parties’ submissions, the record, and all relevant legal
authorities, the Court is of the opinion that Suzuki Motor Corporation’s Motion for
Summary Judgment [329] should be granted. Suzuki Motor Corporation’s Motions
for Partial Summary Judgment [404] [406], Suzuki Motor Corporation’s Motion to
Strike [412] and Supplemental Motion to Strike [420], and C.F. Bean, LLC, and
Bean Meridian, LLC’s, Daubert Motion to Exclude Testimony of Suzuki Motor
Corporation’s Expert Don F. Kueny, P.E. [344], should be denied as moot. Suzuki
Motor Corporation will be dismissed from this case with prejudice.
I. BACKGROUND
A.

Factual Background
This case arises out of the death of Mark Barhanovich (“Barhanovich”) on the

morning of September 16, 2012. Mr. Barhanovich and one passenger, Mr.
Ransonet, were operating a 24' boat headed to a fishing reef known as “Katrina
Reef” in the Mississippi Sound. Barhanovich1 Answer, Defenses, and Claim [15] at
13. The boat was powered by a single outboard motor. Id. Suzuki Motor

1

“Barhanovich” refers collectively to Jerrie P. Barhanovich, Individually and as
Executrix and Personal Representative of the Estate of Mark Barhanovich, and the
wrongful death beneficiaries of Mark Barhanovich, Deceased.
2

Corporation (“Suzuki”) “designed in part and manufactured in part the subject 225
horsepower, 4 stroke outboard motor, Model DF225, bearing Serial No. 22501F510312.” Suzuki Ans. and Affirmative Defenses to Second Suppl. and Am. Third
Party Compl. [203] at 3.
During the trip to the fishing reef, Mr. Barhanovich’s boat and/or motor came
into contact with an underwater obstacle. The motor came out of the water and
entered the boat, striking Mr. Barhanovich and severely injuring him. Mr.
Barhanovich was taken to a hospital in Ocean Springs, Mississippi, for treatment,
but died later that day from his injuries. Barhanovich Answer [15] at 13. At the
time of the incident, C.F. Bean L.L.C., as Owner Pro Hac Vice and Operator, and
Bean Meridian L.L.C., as the Record Owner, of the Barge Bean 20, were engaged in
dredging operations in the area pursuant to a sub-contract with Defendant Archer
Western Contractors, LLC.
B.

Procedural History
1.

The Parties’ Claims

On March 15, 2013, a Complaint for Exoneration from or Limitation of
Liability [1] was filed in this Court styled “In the Matter of C.F. Bean L.L.C., as
Owner Pro Hac Vice and Operator, Bean Meridian L.L.C., as the Record Owner, of
the Barge Bean 20, Official No. 627225, Praying for Exoneration from or Limitation
of Liability” (“Bean Complaint”). On March 20, 2013, Barhanovich filed a separate
Complaint, Civil No. 1:13cv84-LG-JMR, naming as Defendants C.F. Bean, LLC

3

(“Bean”), and Archer Western Contractors, LLC (“Archer Western”). On June 11,
2013, the Court consolidated both cases, upon agreement of the parties and the
Court’s finding that the case filed by Barhanovich for maritime negligence was
predicated upon the same set of operative facts as those contained in the Bean
Complaint [1]. Order [24] at 1-2. The Court ordered that Civil No. 1:13cv84-LGJMR be consolidated with this case for all purposes, with this case to serve as the
lead case. Id. Archer Western filed its Claim [11] and Answer [13] to Bean’s
Complaint on May 3, 2013. Barhanovich filed an Answer [15] to Bean’s Complaint
[1] and asserted a Counterclaim against Bean on May 6, 2013.
With leave of Court, Barhanovich filed her First Amended Claim and
Complaint [57] against Bean and Archer Western on February 26, 2014. The First
Amended Claim and Complaint added Defendant David White, who was identified
as an employee of Bean Dredging. First Am. Claim and Compl. [57] at 4. On May
19, 2014, Bean, Archer Western, and David White filed their Answer [71].
Fundamentally, Barhanovich asserted claims against contractor Archer
Western, sub-contractor Bean, and Bean employee White, for violating federal law
because they “negligently did not adequately monitor, mark, light, inspect, and
warn of the dredge pipeline that was not readily visible to other vessels lawfully

4

navigating on the surface on September 16, 2012.”2 First Am. Claim and Compl.
[57] at 9. Barhanovich alleged that contact between Mr. Barhanovich’s boat and the
dredge pipeline caused the “running and spinning propeller” to enter the boat and
strike Mr. Barhanovich, causing him severe injuries and his untimely death. Id.
By Order [67] entered April 23, 2014, Bean and Archer Western were granted
leave to file a Third Party Complaint against Suzuki Motor Corporation, Suzuki
Motor of America, Inc., and Bob's Machine Shop, Inc. Bean and Archer Western
filed the Third Party Complaint [69] on May 1, 2014. By Order [156] entered
October 6, 2014, the Court granted Bean and Archer Western leave to file a Second
Supplemental and Amended Third Party Complaint [163], which was filed on
October 10, 2014. In the Second Supplemental and Amended Third Party
Complaint [163], which is the operative pleading at this juncture of the proceedings,
Bean and Archer Western advance claims against Third Party Defendants Suzuki
Motor Corporation, Suzuki Motor of America, Inc., and RSM International, Inc., as
the successor-in-interest of Bob's Machine Shop, Inc. (“RSM”).
Specifically, Bean and Archer Western assert that they were not negligent,

2

In connection with this incident, C.F. Bean, LLC, subsequently entered a plea of
guilty on October 27, 2015, to one count of violating the Seaman’s Manslaughter
Statute, 18 U.S.C. §1115, in the matter of United States of America v. C.F. Bean LLC,
Criminal No. 1:15cr71-HSO-RHW. At the plea and sentencing hearing, Mr. James
Bean, on behalf of C.F. Bean, LLC, admitted that “Bean, through its agents and
employees, in failing to properly mark the dredge operation, proximately caused the
death of Mark Barhanovich, in violation of the federal law that is aimed at
criminalizing such conduct.” Transcript of Plea and Sentencing Hearing [442-1] at
33.

5

and that Mr. Barhanovich:
. . . was operating his 24 foot pleasure boat, which was equipped with the
aforesaid Suzuki motor and [RSM’s] ‘Flats Jac’ jack plate, in the shallow
waters of or near Biloxi Bay just off the east end of Deer Island in
Harrison County, Mississippi, at an excessively high rate of speed when
the lower unit or other portion of the Suzuki motor is believed to have
struck the water bottom and/or some unknown submerged object, which
caused the Suzuki motor’s swivel bracket to fracture completely through
at a location beyond its hinged connection with the motor’s clamp bracket,
which allowed the bulk of the motor to separate entirely from the rest of
the boat and, impelled by the force of the underwater impact, to rotate
upward and to be projected forward into the passenger compartment of
the Barhanovich vessel, striking Mark Barhanovich and causing him to
sustain traumatic and fatal injuries.
Second Suppl. and Am. Third Party Compl. [163] at 4. Bean and Archer Western
advance third-party claims for indemnification, predicated upon a theory of product
liability, against Suzuki Motor Corporation, Suzuki Motor of America, Inc., and
RSM. Id. at 3-11.
On January 22, 2015, Suzuki Motor Corporation filed its Answer and
Affirmative Defenses [203] to Bean’s Second Supplemental and Amended Third
Party Complaint [163] admitting that it “designed in part and manufactured in part
the subject 225 horsepower, 4 stroke outboard motor, Model DF225, bearing Serial
No. 22501F-510312.” Suzuki Ans. and Affirmative Defenses to Second Suppl. and
Am. Third Party Compl. [203] at 1-10. Bean and Archer Western’s claims against
Suzuki Motor of America, Inc., Order [237], and RSM, Order [268], have since been
dismissed, leaving Suzuki Motor Corporation as the only Third Party Defendant.
On October 22, 2015, Barhanovich, Bean, Archer Western, and David White

6

filed an Unopposed Joint Motion [425] for Partial Dismissal with Prejudice,
suggesting that all claims asserted by or on behalf of Barhanovich were amicably
settled and compromised, and requesting that such claims be dismissed with
prejudice, with the caveat that Bean, Archer Western, and their insurers retained
the right to pursue their third-party claims for contribution, reimbursement, and
recovery against Third Party Defendant Suzuki Motor Corporation. Mot. [425] at 12. On October 22, 2015, the Court entered its Order of Partial Dismissal [426],
dismissing the Barhanovich claims with prejudice.
2.

Suzuki’s Motion for Summary Judgment [329]

The Second Supplemental and Amended Third Party Complaint [163],
asserts that Suzuki was negligent in the “designing and/or manufacturing of the
Suzuki Motor,” that it failed to “adequately instruct and/or warn of hazards
associated with the use” of the outboard motor, that the motor was “unreasonably
dangerous to the user,” and that the “materials were defective and/or insufficient to
serve the purpose intended.” Second Suppl. and Am. Third Party Compl. [163] at 89. Bean and Archer Wester also assert a negligence claim. Id.
On July 9, 2015, Suzuki filed its Motion for Summary Judgment [329].
Suzuki argues it should be dismissed because the expert disclosure deadline has
passed and Bean’s expert has failed to offer any formal opinion that there was a
defect in either the design of, or the warnings provided with, the Suzuki motor.
Mot. Summ. J. [329] at 1-2.

7

Suzuki asserts in its Memorandum in Support of Summary Judgment Motion
[330] that Bean and Archer Western appear to assert claims that arise under
“maritime products liability, couched in terms of strict liability in tort, negligence
under the Restatement (Second) of Torts §402A, and the Mississippi Products
Liability Act, §11-1-63, Mississippi Code Annotated.” Suzuki Mem. in Supp. [330]
at 5. Suzuki contends that general maritime law incorporates state law, as follows:
“Strict products liability is part of the general maritime law.”
Vickers v. Chiles Drilling Co., 822 F.2d 535, 538 (5th Cir. 1987). General
maritime law provides a cause of action for product liability, brought
either under a theory of negligence or strict liability. East River
Steamship Corp. v. TransAmerica Delaval, Inc., 476 U.S. 858, 106 S.Ct.
2295, 90 L.Ed.2d 865 (1986), at 865-66 (gathering cases). Because general
maritime law is “an amalgam of traditional common-law rules,
modifications of those rules, and newly created rules[,]” courts consult
state law and the Restatement (Second) of Torts for the applicable
substantive law of products liability. Vickers, supra, quoting E. River S.S.
Corp, supra, 476 U.S. at 865. The Supreme Court and the Fifth Circuit
apply § 402(A) of the Restatement (Second) of Torts to maritime products
liability cases. Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S.
875, 879–80 (1997); Vickers, 822 F.2d at 538; see Shoenbaum, Admiralty
and Maritime Law § 5-7 (5th ed. 2012) (“The applicable substantive law
of products liability in admiralty is Section 402A of the Restatement
(Second) of Torts[.]”).
Id. at 5-6. Suzuki next cites to the Mississippi Products Liability Act of 1993, Miss.
Code Ann. §11-61-63 (MPLA), and posits that the legislature’s enactment of the
MPLA supercedes state law’s reliance on the Restatement (Second) of Torts §402A.
Suzuki references a number of cases interpreting the MPLA in support of this
theory. Id. at 6-8.
In response, Bean filed its Memorandum in Opposition [361], and attached a

8

collective Exhibit A [360-1] consisting of its expert Edward Fritsch’s Affidavit dated
July 18, 2015, and Fritsch’s “Supplemental” Report dated July 15, 2015. Bean
maintains that Fritsch’s Affidavit, Supplemental Report, and deposition testimony
provide the expert opinions that support Bean’s claims against Suzuki, such that
Suzuki’s Motion must be denied on grounds that issues of material fact remain for
resolution by the trier of fact at the non-jury trial of this matter. Mem. in Opp’n
[361] at 4-8.
Bean also contends that its claims against Suzuki are strictly maritime
claims that should be “governed by Section 402A of the Restatement (Second) of
Torts as the proper substantive law in admiralty.” Bean’s Mem. in Opp’n [361] at 9.
Bean argues that the MPLA “has additional legal elements that don’t exist in [t]he
Restatement (Second) of Torts.” Id. at 11. Bean asserts that, to prove its product
liability claim against Suzuki under Section 402A of The Restatement (Second) of
Torts:
Bean is required to essentially prove three elements:
(1)
(2)
(3)

That the defendant sold or manufactured the product - SMC
[Suzuki] doesn’t contest that it is both the manufacturer
and seller;
That the product was unreasonably dangerous or was in a
defective condition when it left the defendant’s control; and
That the defect resulted in injury. There is no dispute but
that Mr. Barhanovich was killed by the SMC [Suzuki]
motor.

Bean’s Mem. in Opp’n [361] at 11-12.
On November 16, 2015, the Court entered a Memorandum Opinion and
9

Order [445] striking the Initial and Supplemental Reports of Bean’s expert Fritsch,
and prohibiting him from offering expert testimony on behalf of Bean at trial. In
response, on November 18, 2015, Bean filed a Motion for Reconsideration and/or
Motion to Continue [448]. Suzuki filed a Response in Opposition [451] on November
23, 2015. On November 23, 2015, the Court entered a Memorandum Opinion and
Order [453] denying Bean’s Motion [448].
3.

Additional Motions Filed by the Parties

Bean has filed a Daubert Motion [344] to Exclude Testimony of Suzuki Motor
Corporation’s Expert Don F. Kueny, P.E., and Suzuki has filed Motions for Partial
Summary Judgment as to Bean [404] and Archer Western [406]. Suzuki has also
filed a Motion to Strike [412] and a Supplemental to Motion to Strike [42] portions
of Bean’s Memorandum in Opposition [410] to Suzuki’s Motion for Partial Summary
Judgment as to Bean [404]. Archer Western has filed a Joinder [432] in Bean’s
Memorandum in Opposition [429] to Suzuki’s Motion to Strike [412]. These
Motions are all fully briefed.
II. DISCUSSION
A.

Summary Judgment Standard
“Summary judgment is appropriate when there is no genuine issue as to any

material fact, and the moving party is entitled to judgment as a matter of law.” Cox
v. Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th Cir. 2014); see Fed. R. Civ. P.
56(a). In deciding a motion for summary judgment, a court “view[s] the evidence

10

and draw[s] reasonable inferences in the light most favorable to the non-movant.”
Maddox v. Townsend & Sons, Inc., 639 F.3d 214, 216 (5th Cir. 2011). Before it can
determine that there is no genuine issue for trial, a court must be satisfied that “the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). If the movant carries this burden, “the nonmovant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue for
trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
To rebut a properly supported motion for summary judgment, the opposing
party must show, with “significant probative evidence,” that there exists a genuine
issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.
2000). “A genuine dispute of material fact means that evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Royal v. CCC&R
Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013) (quotation omitted). If the
evidence is merely colorable, or is not significantly probative, summary judgment is
appropriate. Cutting Underwater Techs. USA, Inc. v. ENI U.S. Operating Co., 671
F.3d 512, 516 (5th Cir. 2012)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986)).
Summary judgment is appropriate unless a non-moving party can produce
“significant evidence demonstrating the existence of a genuine fact issue.” Johnson
v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 676 (5th Cir. 2010) (citing Russell v.

11

Harrison, 736 F.2d 283, 287 (5th Cir. 1984)). In a non-jury case, “a district court
has somewhat greater discretion to consider what weight it will accord the
evidence.” Id. (citing In re Placid Oil Co., 932 F.2d 394, 397 (5th Cir. 1991)). When
a court decides a summary judgment motion prior to a bench trial, a court “has the
limited discretion to decide that the same evidence, presented to him or her as a
trier of fact in a plenary trial, could not possibly lead to a different result.” In re
Placid Oil Co., 932 F.2d at 398 (citing Nunez v. Superior Oil Co., 572 F.2d 1119,
1124 (5th Cir. 1978)). A court should draw its inferences without resort to the
expense of a trial, unless those inferences involve issues of witness credibility or
disputed material facts. Id. (citations omitted).
B.

Bean Cannot Create a Triable Issue of Fact on Its Product Liability
Indemnity Claim Against Suzuki Without Expert Testimony
The Court finds that Bean and Archer Western have failed to sustain their

burden of proof on the products liability claim against Suzuki regardless of whether
general maritime law, the MPLA, or the Restatement (Second) of Torts §402A
governs the issues in this case. In the absence of admissible expert testimony, Bean
and Archer Western cannot rebut Suzuki’s Motion for Summary Judgment with
sufficient evidence to prove, or otherwise create an issue of fact, that the Suzuki
outboard motor involved in the incident at issue in this case was “unreasonably
dangerous or was in a defective condition,” or that it lacked adequate warnings,
when it left Suzuki’s control.
Bean attempted to prove that the outboard motor was defective in design or
12

for lack of adequate warnings through its designated mechanical engineering
expert, Edward Fritsch. For the reasons set forth in the Court’s Memorandum
Opinion and Order [445] granting Suzuki’s Motions [331] and [379] to Strike
Fritsch as an expert, Fritsch’s Reports have been stricken and he will not be
allowed to testify at trial, thus Fritsch’s opinions cannot be used to support Bean
and Archer Western’s product liability claim against Suzuki.
Even if the Court had not stricken Fritsch’s Initial Report dated October 19,
2014, the opinions expressed by Fritsch in that Report were insufficient to support
Bean and Archer Western’s claims that Suzuki was negligent in the “designing
and/or manufacturing of the Suzuki Motor,” that it failed to “adequately instruct
and/or warn of hazards associated with the use” of the outboard motor, that the
motor was “unreasonably dangerous to the user,” and that the “materials were
defective and/or insufficient to serve the purpose intended.” Mem. Opinion and
Order [445] at 21 (citing Second Suppl. and Am. Third Party Compl. [163] at 8-9).
As the Court stated in its Memorandum Opinion and Order [445] striking Fritsch,
the Initial Report expressed no opinion at all about any defects in Suzuki’s motor or
inadequate warnings, therefore it would have been insufficient to create a material
fact question on the third-party product liability claims against Suzuki.
Bean also designated Robert Bartlett, a mechanical engineer, to perform an
“Evaluation of the Metallurgical Evidence in the Failure of an Outboard Motor . . . .”
[329-1]. As set forth in Suzuki’s Motion for Summary Judgment [ 329], Mr.

13

Barlett’s Report [329-1] dated October 20, 2014, contains no discussion of any
deficiency in the design, manufacture, or warnings with respect to the outboard
motor. Suzuki Mot. Summ. J. [329] at 9. Bartlett’s Report contains the following
conclusions:
The fracture through the clevis ears on the swivel bracket appeared to
be due to a single application of load, and no evidence was observed
which would suggest that a pre-existing crack or fatigue played a part
in this fracture.
The fracture through the body of the swivel bracket appeared to be due
to a single application of load, and no evidence was observed which
would suggest that a pre-existing crack or fatigue played a part in this
fracture.
The hexagonal hole in the transom plate appeared to be due to the head
of the nearby bolt being pulled through that plate as a result of a single
load cycle.
Bartlett Report [329-1] at 4. Clearly, Barlett’s Report does not support Bean’s claim
against Suzuki.
In its Memorandum in Opposition [361], Bean posits that it can establish its
product liability claim through Fritsch’s opinions and the testimony of Suzuki’s
Rule 30(b)(6) corporate designee, Mr. Nobuyuki Shomura. Bean Mem. in Opp’n
[361] at 16-22. Based upon Mr. Shomura’s testimony, Bean surmises that Suzuki
knew the outboard motor was unreasonably dangerous based upon Suzuki’s own
testing, that Suzuki knew impacts of greater than 31 miles per hour might sever
the motor at the swivel bracket causing the motor to launch into a boat, and that
Suzuki failed to adequately warn of this fact. Bean Mem. in Opp’n [361] at 16-17.

14

Bean further contends, based upon opinions rendered by Fritsch, that Suzuki knew
the outboard motor was unreasonably dangerous and thus:
had redesigned the swivel bracket so that it might be used in a 300
horsepower motor, its thickness was changed in anticipation of higher
loads that might be placed on it and yet the swivel bracket remained
interchangeable with the 225-horsepower motor.
Id. (citing Fritsch deposition at pages 200-201).
Bean reasons that such thickening of the swivel bracket in the original
design was something that should have been done and therefore the design of the
motor at issue was defective. Id. Bean concludes that Fritsch’s opinion, that
Suzuki knew that a safe alternative design was available prior to the manufacture
of the outboard motor at issue on December 14, 2001, was confirmed by the
deposition testimony of Mr. Shomura, as follows:
QUESTION BY MR. MOULEDOUX: An engineering change notice
shows that material was to be added to the swivel bracket casting, that
is, the casting was to be made thicker at various locations. Is that correct?
ANSWER: Yes that’s correct. Changes were incorporated.
QUESTION: Why was extra material added?
ANSWER: The mass production of 200, 225 and 250 began around
November of 2003. Subsequently, around September 2004, a new model,
DF 300 was being developed. This DF 300 model was aimed at increasing
the horsepower to 300 from 200, 225 and 250. And compared to 200, 225
and 250, the weight and the location of the center of gravity changed. In
addition, because the horsepower would increase, what we call thrust, the
force, the popular (sic) of the outboard motor generates also changed.
May I continue?
QUESTION: Yes.

15

ANSWER: And in order to be able to share the swivel bracket with 300
and 200, 225, and 250, certain changes were incorporated.
Bean Mem. in Opp’n [361] at 16-22 (citing deposition of Suzuki at pages 105-106).
This factual evidence gleaned from Suzuki, standing alone and without
explanation from an expert, is insufficient to carry Bean and Archer Western’s
summary judgment burden. The interpretation of test results, the analysis of
Suzuki’s testing methods, and the extrapolation of information gleaned from Suzuki
requires testimony from an expert properly designated “who is qualified as an
expert by knowledge, skill, experience, training, or education” pursuant to Rule 702
of the Federal Rules of Evidence. Rule 702 provides that:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise
if:
(a) the expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702.
The Court finds that the nature of Bean’s claim against Suzuki, including its
theory of the importance of Mr. Shomura’s testimony, implicates scientific,
technical, or other specialized knowledge, and that no reasonable trier of fact could
find for Bean and Archer Western on their products liability claim against Suzuki
in the absence of such expert testimony. Archer Western has not offered any other
16

competent summary judgment evidence that would create a material question of
fact for trial. At this juncture, Bean and Archer Western cannot present admissible
expert testimony that can be relied upon by a trier of fact to support their claims of
product liability against Suzuki.
Having considered the parties’ submissions, the record, and all relevant legal
authorities, the Court is of the opinion that Suzuki is therefore entitled to judgment
as a matter of law as to all claims advanced against it by Bean and Archer Western,
and that Suzuki should be dismissed from this case with prejudice.
Having granted summary judgment in favor of Suzuki, the Court finds that
Suzuki Motor Corporation’s Motions for Partial Summary Judgment [404] [406],
Suzuki Motor Corporation’s Motion to Strike [412] and Supplemental Motion to
Strike [420], and C.F. Bean, LLC, and Bean Meridian, LLC’s, Motion to Exclude
Testimony of Suzuki Motor Corporation’s Expert Don F. Kueny, P.E. [344] are moot
and should be denied as such.
III. CONCLUSION
IT IS, THEREFORE, ORDERED AND ADJUDGED that Suzuki Motor
Corporation’s Motion for Summary Judgment [329] is GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that Suzuki Motor
Corporation’s Motions for Partial Summary Judgment [404] [406], Suzuki Motor
Corporation’s Motion to Strike [412] and Supplemental Motion to Strike [420], and
C.F. Bean, LLC, and Bean Meridian, LLC’s, Daubert Motion to Exclude Testimony

17

of Suzuki Motor Corporation’s Expert Don F. Kueny, P.E. [344] are DENIED as
MOOT.
IT IS, FURTHER, ORDERED AND ADJUDGED that C.F. Bean, LLC,
Bean Meridian, LLC, and Archer Western Contractor, LLC’s, Second Supplemental
and Amended Third Party Complaint [163] against Suzuki Motor Corporation is
DISMISSED WITH PREJUDICE, and Suzuki Motor Corporation is DISMISSED
WITH PREJUDICE from this case.
SO ORDERED AND ADJUDGED, this the 23rd day of November, 2015.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

18