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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 BEFORE:

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

- - - - - - - - - - - - - - - - x : PETER D. MAINS and LORI M. MAINS: : Plaintiffs, : : vs : : SEA RAY BOATS, INC. : : Defendant. : : - - - - - - - - - - - - - - - - x

No. 3:01CV2402(AWT)

HARTFORD, CONNECTICUT APRIL 7, 2008

JURY TRIAL VOLUME V

HON. ALVIN W. THOMPSON, U.S.D.J. 18 19 20 21 22 23 24 25 Diana Huntington, RDR-CRR Official Court Reporter and a Jury of Nine

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APPEARANCES: FOR THE PLAINTIFFS: JOHN L. SENNING, ESQ. 16 Saybrook Road Essex, Connecticut 06426 HERRICK NIKAS, LLP-CA 1201 Dove Street, Suite 560 Newport Beach, California 92660 BY: RACHEL D. LEV, ESQ. RICHARD J. NIKAS, ESQ. FOR THE DEFENDANT: DAY PITNEY, LLP CityPlace I Hartford, Connecticut 06103-3499 BY: JAMES H. ROTONDO, ESQ. DANIEL J. FOSTER, ESQ.

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TABLE OF CONTENTS

PAGE CLOSING ARGUMENT BY THE PLAINTIFFS............. 823 CLOSING ARGUMENT BY THE DEFENDANT.............. 842 REBUTTAL ARGUMENT BY THE PLAINTIFFS............ 873 JURY CHARGE.................................... 877

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Sea Ray. THE COURT:

9:05 A.M. Good morning. I'm

We have a few thing to cover this morning.

going to try to cover them in a certain order, but if I miss one, let me know at the end. First, I should mention to defense counsel that Attorney Nikas called chambers on Saturday around 5:00. was the only one here, I answered the phone. I

The whole of

our conversation was that he told me that at that point he had no objections to the charge, he was trying to reach my law clerk, and I believe that was the end of the conversation. MR. ROTONDO: THE COURT: Thank you, Your Honor.

Secondly, in terms of the objections

to the charge, we sent an e-mail out from chambers and there was a request by each side with respect to definition of "revocation." sentence. Both sides had the same first

I used the second sentence from the defendant's

request and then I used language from White and Summers'. It was page 572 of the 5th Edition. So that's the

definition of "revocation" that we have in the charge. The objections to the verdict form were by I think you now have the revised draft and you

should have a markup of the draft showing the changes that were made.

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MR. ROTONDO: THE COURT:

Yes, Your Honor.

I did make one change or a couple of I changed the language,

changes that weren't mentioned.

which I did not mention before this morning, in paragraph IV.C to say what percentage is the plaintiffs' share. I just want to make sure I flag that for counsel's attention because I did not mention that before this morning. I thought it read better that way. And I think the other objections to the verdict form I agreed with the defendant's first objection which related to Question I.C, and I just shortened that. The second objection wanted me -- was a request that I break down the question into two parts. I thought And

it would be more consistent to simply break down and make in the charge the section on revocation similar in format to breaking down the elements in the charge on strict liability and breach of express warranty. And having done

that, I don't believe it's appropriate to break it down in the verdict form. I didn't catch it when we were doing

the charge Friday night. Objections to the charge, the duty to warn, you read the Giglio vs. CL&P case, 180 Conn. 235, which cited to Prosser on law of torts. I also read a Second Circuit

case, Basko vs. Sterling Drug Company -- I think the language that is cited to by the defendant is correct,

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there must be evidence that there was a danger which the defendant knew or should have known. And here there is no

evidence that the defendant knew or should have known of unreasonable dangers involved with use of the boat. And I think the defendant is also correct that this claim or theory, rather, of the products liability claim was not included in the joint trial memorandum. had some discussion about that on Friday. counsel pointed to a footnote. Plaintiffs' We

Having gone back and

looked at that, that footnote is in the defendant's request, which makes it clear it's only based on three theories of liability. I think it's inappropriate for the

plaintiffs to argue that that somehow included a request on a duty to warn theory. Objection number two dealt with comparative responsibility. And I did make a change but not the

language that the -- I made it consistent with the instruction on comparative negligence, but I think the language there that was suggested or requested by the defendant doesn't make it as consistent as the language that I used, and I'll point that out to you. Objection number three dealt with revocation. said on page 22 I do agree with the first point in terms of the revocation is for purchase of the boat, not seeking to do so in the lawsuit. That's a more accurate I

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formulation. Page 24, that is the definition of "revocation" or the language describing revocation. And I used the

White and Summers', I discussed that earlier. And then objection number four dealt with damages on page 25. valid one. Counsel should have gotten now the final draft of the charge. The next thing I pointed out to you was that in revocation, what I did to -- when I said I was making it consistent, if you look at the current draft on pages 22 to 25, you'll see that I have the introductory paragraph at the bottom of page 22. page 23 on revocation. paragraph. And I added the language on And I think that objection was a

Then I put "first" instead of that

And then we had language on notice within a And I

reasonable time, you put "second" in front of that. then I put "third" on the top of page 24, and then

"fourth" and "fifth," just so it's consistent with the form at I used -- well, it's my normal format. following what was in the request. So that's the -- that covers my responses to the things that were filed. Now, I believe there's a request from the plaintiffs for two additional charges. Do I understand it I was

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to be missing witness and failure to produce evidence, specifically service bulletins? MR. NIKAS: THE COURT: witness. That's correct, Your Honor. Let's talk about the missing

You said Mr. Marlow, I understand? MR. NIKAS: Mr. Marlow, Mr. Stooksbury and

Mr. Brown were the three Sea Ray exhibit identified on their witness list but did not testify at trial. Specifically, Mr. Marlow's referenced by one of the defendant's witnesses, the expert witness, Gregory Davis. And he did not testify later that afternoon when trial closed. We should be entitled to the inference that any

testimony he would have provided would have been unfavorable or else he would have testified. THE COURT: I understood it was Marlow, so I

went through and did a search for when Mr. Marlow was mentioned. Mr. Marlow was mentioned on April 2nd. It was

by the plaintiff in terms of the discussions with Mr. Marlow. Mr. Marlow was mentioned by Mr. Davis. I

think he's on a committee with Mr. Marlow. note that I have. MR. NIKAS: friend. THE COURT: Yes.

That's the

And described him as a personal

And then Mr. Wade was talking about who was on a

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conference call and he mentioned Marlow, Luster, and the plaintiffs and himself. How does that justify a missing witness instruction? MR. NIKAS: The fact that he was party to many

of the actions which are subject to this case, ostensibly has knowledge, was listed by defendants in their witness list, was under their sole control. And by not calling

him, removed the availability of him for cross-examination, should entitle us to an adverse interest. THE COURT: Can you take out of your analysis Because the

the fact that he was on their witness list?

trial memorandum order says you have to list people who you may call. them. So if you don't list them, you can't call

So the fact that they're on the trial memorandum

order and not called doesn't mean anything. So he was mentioned as being involved in some conversations. you said. MR. NIKAS: As I understand the rule, generally Other than that, I didn't catch everything

counsel in a civil trial may comment on the failure of a party to call an available witness whose testimony the party would naturally be expected to provide if available to him. It is presumed that if Mr. Marlow would have

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testified, that he would have provided favorable evidence for Sea Ray. THE COURT: Are you asking for permission to

make reference to him in your closing or are you asking for a missing witness instruction in the jury charge? MR. NIKAS: I ask for two things. One, I'd like

to make note in closing that he did not testify even though he was listed as a possible witness. THE COURT: possible witness. MR. NIKAS: I'd like to mention that he did not You can't mention he was listed as a

testify despite his mention by other witnesses having been a party to some of these telephone conversations and certainly the Mainses discussed that he was a party to these conversations. Both plaintiffs and defendant's

exhibits have letters from Mr. Marlow to the plaintiffs. THE COURT: MR. NIKAS: Okay. Additionally, Mr. Wade mentioned

Mr. Stooksbury, who was a supervisor to whom he testified went to when he was having discussions as to whether to replace the collector-style exhaust with the water lift exhaust. In fact, that's the only person he had

conversations with regarding the background as to that change. The fact that he did not testify we should be

allowed to comment on.

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THE COURT: charge on it, though. MR. NIKAS: we'll take that. THE COURT:

But I still don't see how we merit a

If I can mention it in closing,

Then the second point, I understood

there was going to be a request for charge on failure to produce evidence. an argument issue? MR. NIKAS: We'd like to reference it both in Is that a request for charge or is that

closing and, if possible, to get an instruction on it. But given the fact that defendants specifically referenced these materials, used them to attempt to impeach plaintiffs' witnesses but then refused to allow the documents to be submitted into evidence so that we could discuss what else is contained within those materials should entitle us to a presumption that the failure to produce that available evidence -THE COURT: When you say "that available

evidence," what are you talking about? MR. NIKAS: THE COURT: MR. NIKAS: Referred to by Mr. Rotondo. Defendants' Exhibit 59? 2001-13 service bulletin. Two

different service bulletins he referred to.

One goes to

the list of compression ratios on engine specifications, the second goes to water ingestion procedures, pickling

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procedures.

And actually the third one, which is the The Court will

diagram of the exhaust system, side view.

recall that we were only allowed to point out the diagramming system on that page and there was language on that page that contradicted that diagram. There was other

information on that page which we felt would have been important to prove notice of the defect but because defendants chose to refer to it but not produce it in evidence, we should be allowed to refer to that and also get a positive charge. THE COURT: diagram and the -MR. NIKAS: 2001-13 service bulletin, water That was the pressure ratio, the

ingestion, entitled "Gasoline Engines and Water Ingestion." THE COURT: MR. NIKAS: THE COURT: MR. NIKAS: I'm going over the topics. First one -It was the diagram. First one is engine specifications

is what the service bulletin is. THE COURT: MR. NIKAS: THE COURT: MR. NIKAS: water ingestion. That deals with compression ratio. Correct. What does the second deal with? The second is gasoline engines and

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THE COURT:

What was the question he asked about

MR. NIKAS:

Well, it was partially used to

discuss the first few steps of the water ingestion, pickling procedure. Mr. Rotondo limited his questions

only to the first steps and did not discuss the rest of the bulletin. THE COURT: And he mentioned the service

bulletin at that point? MR. NIKAS: THE COURT: MR. NIKAS: THE COURT: MR. NIKAS: He showed it to the witness. Okay. And the third is -The diagram. Which had the text on the left-hand

THE COURT:

It's not necessary when counsel uses

a document to impeach a witness that it be introduced. And in fact, in many circumstances it cannot be introduced because that witness is not competent to bring it in. MR. NIKAS: We understand that, Your Honor,

THE COURT:

So you're not going to get a missing You haven't satisfied the

evidence instruction, okay?

grounds for missing evidence instruction. MR. NIKAS: Appears the grounds are a party

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fails to produce evidence under his control and reasonably available to him and not reasonably available to the adverse party, then you may infer the evidence is unfavorable to the party who could have produced it but did not. THE COURT: So you want the instruction and you

want to refer to it in your closing? MR. NIKAS: THE COURT: Correct, Your Honor. What do you want to say in your

closing, just so I can get it all responded to at once? MR. NIKAS: Well, all I want to say is -- and

I'll even be exceedingly cautious, that you had witnesses shown various service bulletins. We were not allowed to

review the full content of those bulletins with the witnesses. THE COURT: You can't say that. You're

commenting on my ruling. MR. NIKAS:

That's why you weren't allowed.

Then we'd like to point out that the

defendant did not proffer those exhibits into evidence given -- I'd like to refer to them by title at least. THE COURT: MR. NIKAS: Is that in evidence? I think it's in the record. I know

we referred to 2001-13 as gasoline engines and water ingestion. THE COURT: Who referred to that by that title?

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MR. NIKAS: was identified.

It was the title which the document

When we were identifying the document, It's the pickling

that's what it was identified as. procedures. THE COURT:

And the title of the document was

MR. NIKAS: THE COURT: MR. NIKAS:

I believe so, Your Honor. By Mr. Rotondo? I don't know, Your Honor. Either I

I don't know how he did it, but I know I did. THE COURT: MR. NIKAS: So what do you want to argue again? We'd like to bring the jury's

attention to the fact that there were other materials contained in those documents that were never reviewed by the witnesses or presented to the jury. THE COURT: That's the basic point you want to

MR. NIKAS: THE COURT:

Correct. Other materials were contained in

those documents which have not been admitted into evidence. Mr. Rotondo? MR. ROTONDO: It's clear, Your Honor, that

Mr. Nikas wants to use the documents for improper purpose. He wants to comment and argue about things which are not

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in the record, and he's not allowed to do that. To go through -- there are four exhibits for identification that Mr. Nikas is referring to. The first

one is a list of compression ratios, which is Defendant's Exhibit 95. The second is the pickling procedures, which The diagram

is Plaintiffs' Exhibit for Identification 33.

in the side drawn that was reference is Plaintiffs' Exhibit for Identification 38. THE COURT: 38 is which one? It's the diagram of the elbow

MR. ROTONDO: height. THE COURT:

Okay. Plaintiffs' 38 for identification.

MR. ROTONDO:

And this water ingestion service bulletin was Plaintiffs' Exhibit 36 for identification. To go in reverse order, Plaintiffs' Exhibit 36, I never used that document. document. I never referenced that

I never showed that document to anybody.

That's a document that plaintiffs apparently want to use. There's nothing I did that would in any way open the door to the plaintiffs. MR. NIKAS: not four. I only referenced three documents, Three

I didn't reference that document.

documents, not four. THE COURT: But I thought you were talking about

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water ingestion procedures.

And you said the title was

used, if you didn't use it, Mr. Rotondo did. MR. NIKAS: That's the 33 document, Your Honor. Okay. I may have misunderstood.

MR. ROTONDO:

With respect to 38, Your Honor, we had a long argument about Exhibit 38 for identification. And based

on my cross-examination of Mr. Wicander, plaintiff was specifically given the opportunity to introduce parts of that evidence into evidence and the plaintiff elected not to do it. So there's no basis for plaintiff to now to get

some sort of negative inference against defendant for not introducing into evidence a document which he had in front of him -THE COURT: Isn't Plaintiffs' 38 -- wasn't -- I I want to check.

have a slightly different recollection. MR. NIKAS: THE COURT:

Again, Your Honor -One second, please.

(Pause.) THE COURT: Exhibit 38? MR. ROTONDO: THE COURT: Yes, Your Honor. You're talking about plaintiffs'

We had the discussion in the

evening, and then the defense went back and then sent a letter and the responses. The defense cited to the -- I'm I came in

going to mispronounce this -- Paolitto case.

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the next morning and I said that the conditions for curative admissibility had not been satisfied so the plaintiff was limited to inquiring about it but not permitted to admit it. MR. ROTONDO: right. You're right, I'm sorry. You're

The plaintiff was allowed to inquire. THE COURT: But not admit it. Plaintiff was allowed to inquire

MR. ROTONDO:

and did inquire about it. THE COURT: Yes. With respect to the pickling

MR. ROTONDO:

procedures, that's Plaintiffs' Exhibit 33, plaintiff was again allowed to inquire about the pickling procedures with respect to Mr. Wicander. And I don't remember

whether they did or they did not, but they had full access to do the same thing that I did, which was to inquire about the pickling procedures. And then with respect to Exhibit -- Defendant's Exhibit 95 for identification, different compression ratios, I asked the question of the witness was he aware that Mercury had a compression ratio of 100 psi, and he said that he was aware of it. I don't think I could have

established the evidentiary basis to get that document in through Mr. Wicander. THE COURT: You could not have.

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MR. ROTONDO:

I don't think there's any sort of

negative inference in my not doing so. MR. NIKAS: documents in. Mr. Wicander could have gotten the

He did testify in his direct testimony that

he was a MerCruiser certified mechanic, that he did have access to service bulletins, that he did have access to MercNet, that he did read the service bulletins and relied on the service bulletins. THE COURT: And in fact -The posture that

Let me say this.

we're in now is that the plaintiff didn't or could not have gotten certain evidence in in its case on direct examination of this witness. The plaintiff then argued

that the documents were admissible under the doctrine of curative admissibility. it was not. After reviewing the law, I ruled

So it's now inappropriate for the plaintiff

to comment on the fact that the document's not in when the reason they're not in is because of my rulings, my evidentiary rulings. It's a comment on my rulings, not a

comment on the defendant's actions in this case. So the answer is no. I will not give an

instruction and it would be inappropriate to comment on anything that is not in evidence. MR. NIKAS: I can refer to the fact that the

witnesses were examined about the service bulletins? THE COURT: You can talk about things that are

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in evidence. MR. NIKAS: THE COURT: And their testimony certainly -I'm not going to rule now as to

what's in evidence because I don't have a transcript in front of me. So we've taken care of that. And now we have

to -- before I lose track of this, I have two other things. Each side has an hour. Plaintiffs' counsel, I

assume, is going to reserve some of that for rebuttal? MR. NIKAS: THE COURT: of that. off. MR. NIKAS: that hour. Did the Court rule on the missing witness? THE COURT: I did. I said there is no basis for We will not come anywhere close to We will. You're responsible for keeping track If people go over, I cut them

I track the time.

missing witness instruction. MR. NIKAS: THE COURT: MR. NIKAS: THE COURT: But you -In terms of your argument? Correct. You're going to refer to certain

people whose names were mentioned and you didn't hear from them, that's the argument? I don't hear an objection and

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I don't see a problem, depending on exactly what you say. You've told me -- I think you've told me what you're going to say. At least I have an understanding of what you're

going to say based on what you've said, but I'm not blessing in advance whatever you say. MR. NIKAS: I'm trying to be overly cautious.

I'd like to mention they did not testify and the jury is free to draw whatever conclusions they want to from that fact. THE COURT: that, Mr. Rotondo? MR. ROTONDO: He is inviting the jury to Am I going to get an objection to

speculate and decide the case based on something that's not in evidence, what people who weren't here didn't say. MR. NIKAS: Your Honor. THE COURT: The doctrine exists to be used when The doctrine exists for some reason,

the groundwork is laid for it. MR. NIKAS: THE COURT: to. The jury's entitled to infer -They can't infer whatever they want

They have to draw reasonable inferences and you have You cannot argue

to argue reasonable inferences. unreasonable inferences.

I mean, there are lots of people

who could have come to testify who didn't. We need to go through the current draft of the

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charge.

I'm going to try to point out to you where Quickly, if I can. The juror who had

changes were made.

Oh, another important point.

a question about a lemon law concerning boats has written another -- he asked is there a lemon law concerning boats, he asked that question before. I am not giving a charge And then

on the law on a lemon law concerning boats.

something about, do the conduct there a recall on motor and exhausts if there is several -- this may say propellers. I'll have copies made of this note.

My answer is there will be no charge on the law involving anything that would be called a lemon law on boats. And to be honest, I don't know if there is such a

thing, although I have never heard of one. MR. ROTONDO: THE COURT: I've never heard of one either.

Mr. Senning, have you heard of one?

You're an expert in this area, Connecticut law. MR. SENNING: The Connecticut lemon law is

generally considered to pertain to vehicles. THE COURT: Just so there's no confusion -The language is a bit vague. I

MR. SENNING:

think that an argument might be made that it could, but there's no case law that decided that. THE COURT: law. There's no claim here under any such

So I'm going to just tell them no, just to make it

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simple. room.

I don't want any speculation back in the jury

And I don't understand the second half of the question, so I'm going to let you all see it. Are the plaintiffs going to be here soon? MR. NIKAS: office. THE COURT: Okay. On page 16, just above the They're waiting in the counsel's

caption, I revised that to say there are two theories, strict liability and breach of express warranty. On page 17, I took out duty to warn. On page 19 under comparative responsibility, four lines down -- no, three lines down it says all the elements of one or both of their theories of liability. And then that language, "and that defendant's actions caused the plaintiffs to suffer damages." That's the

language I put it which wasn't what the defense asked for, but I think in substance covers that ground. There's a typo on page 20, I won't bother you with that. Then we get to -- whoops, some pages are out of order. We took out the language that was in brackets concerning including wrongful death. My understanding is

that both sides agreed with me that it was not an issue in

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this case.

Based on that, I believe it's appropriate to

take that out. Page 22, revocation of acceptance. The first

two paragraphs on 22 and 23 have a lot of changes in them. And the paragraph at the bottom that says "second" has a new first sentence. And then after that it picks up with So you all might want to focus on

what was there before. that.

Do you all have time to read that now? Then I added "third," I added "fourth" and I

added "fifth" on page 24. Under "fifth," the second sentence is new because I needed to make a transition, "thus the plaintiffs must prove that they gave notice of revocation prior to any substantial change in the condition of the boat." And then we have just a few other minor changes. On page 26, Section E, first paragraph, the last sentence I added "with the exception of the issue of mitigation of damages, the plaintiffs have the burden of proving damages by a preponderance of the evidence." And those are the changes from the prior draft. Usually I have counsel tell me what their objections are, but I got written objections. I think

I'll just take them -- why don't we get a list now just so I'm sure there's no misunderstanding.

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Plaintiffs' objections to the charge are as

MR. NIKAS:

Your Honor, we wish to renew our

objection as to the failure to warn issue. We'd also like to direct the Court's attention to an affidavit by Mr. Senning which is attached as an exhibit to Plaintiffs' Opposition to Defendant's Motion for Judgment as a Matter of Law which the Court received this morning, which explains the factual circumstances surrounding the drafting of the jury instructions and an explanation for a footnote and the reference in the footnote to Section Q and describes the circumstances surrounding how those drafts were exchanged between counsel immediately prior to submission of the joint trial memorandum. THE COURT: MR. NIKAS: Okay. We'd also like to object on the

basis of the instruction as to the component of failure to warn and the Connecticut products liability statute as a separate component, a failure to warn and negligence cause of action. Both we feel should be present in the special

verdict form. THE COURT: MR. NIKAS: Your Honor. Okay. Those are our objections,

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 charge. have any.

THE COURT:

And defense objections you want to

preserve, Mr. Rotondo? MR. ROTONDO: THE COURT: Yes. The written ones, yes, I do.

Which ones? Your Honor, actually -- I don't

MR. ROTONDO:

THE COURT:

Anything in your Rule 50 papers is

preserved so we have it simple for you all. MR. ROTONDO: I have no objections as to the

THE COURT:

So let's see if we can make heads or

tails out of this second sentence in the -- I told you what I'm going to do on the first sentence. MR. NIKAS: The question, Your Honor, asked: Do

they conduct a recall on motor and exhaust if there are several problems? I believe is how that should read. Or, Do they conduct a recall on a

THE COURT:

motor and exhaust if there is several propellors -problems. MR. NIKAS: THE COURT: MR. NIKAS: Problems. Okay. Upside down, okay.

Either of the first two words could But I

be interpreted under either of those readings.

think it's "conduct recall on motors and exhausts if there are several problems."

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THE COURT:

Okay.

That would seem to suggest

that if the plaintiff failed to put in evidence of a recall, this juror would say, well, the plaintiff hasn't produced evidence the plaintiff should have produced. That would be improper for the juror to conclude -- to draw any adverse inference because there's no evidence of a recall. MR. NIKAS: And there are no nationwide recalls.

They're strictly voluntary under the Federal Building and Safety Act. THE COURT: My answer to the first question, so

there's no potential for mischievous inferences, is a simple no. What's the clearest answer I can give to the second question to achieve the same result? MR. NIKAS: It's a more complex answer because

it gets into issues of why there are no recalls in the boat arena as there are in motor vehicle arena because states -- in the maritime arena only Federal Building Safety Act issues, which up to now are related to propeller guards, are subject to those types of recalls. THE COURT: Maybe I should tell the jurors that

this is not an appropriate question or something like that. MR. ROTONDO: Perhaps just tell the juror the

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juror has to decide the case based on the evidence that the juror has heard in the courtroom and the law given to him by the Court. Can't speculate as to other things. First part will be no. I'll I'll tell the

THE COURT:

reconfirm my understanding of the question.

juror they must decide the case only on the evidence submitted in the courtroom and my instructions on the law and they cannot speculate as to other things. Okay.

I think that was everything I had on my list to address before we picked up. organize. I need a few minutes to

Are you all set in terms of -MR. NIKAS: Your Honor, we have -- I don't know

about Mr. Rotondo, but we have, I guess, four issues. One is, we would like to use two demonstrative exhibits, both of which are distillations of exhibits that were used in testimony of the witnesses. The first is a

better representation of Plaintiffs' Exhibit for I.D. 162 which shows the compression strokes of the engine. Mr. Rotondo had a question about the photograph, we removed that photograph. It basically shows the side view

of the cylinder and then each of the four strokes, compression cycle, and then identifies those parts. THE COURT: MR. NIKAS: Okay. The second is a larger

representation of the glass within the glass with the oil

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and the water. THE COURT: using? MR. NIKAS: that. THE COURT: MR. NIKAS: Okay. And then we understood, Your Honor, Correct. Just a larger version of The glass that Mr. Wicander was

that we would get written rulings on the Court's curative admissibility findings. THE COURT: MR. NIKAS: You will. And then also on the inability to We just wanted to --

introduce evidence on impeachment. THE COURT: MR. NIKAS: to -THE COURT: discussion, isn't it? MR. NIKAS:

That's all the same thing, isn't it? Well, curative admissibility goes

I mean, that's all that same

Well, the impeachment issue didn't

arise until the day after the curative admissibility issue arose. The impeachment issue didn't arise until Friday

afternoon when we were attempting to impeach the witnesses with documents and we were not allowed -THE COURT: I told you to go back and ask So I ruled on --

whatever questions you wanted to ask.

you wanted me to say I'm going to let you do things, and I

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said I don't see the basis for it.

And I told you to go

back and do whatever you wanted to do and I'll rule on questions and objections as they came up. MR. NIKAS: that. THE COURT: I'm not going to do a written ruling If we could get a written ruling on

on that, I don't know what questions to address. MR. NIKAS: THE COURT: Very well, Your Honor. Mr. Rotondo, any response to -With respect to the two

MR. ROTONDO:

demonstrative objections? THE COURT: Or any objection, let me just ask. I was shown five or six things

MR. ROTONDO:

these morning, diagrams, do I have objections because they were not in evidence. Now I'm told there are two. I

didn't see a glass within a glass. THE COURT: The glass within the glass is

something that Mr. Wicander used. MR. ROTONDO: within a glass. MR. NIKAS: glass within a glass. THE COURT: I don't see a problem with that. No, it's actually just a bigger I didn't see a diagram of a glass

Let's talk about the first issue, then. Plaintiffs' I.D. 162.

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MR. NIKAS: THE COURT:

May I, Your Honor? Sure.

That's going to be used for demonstrative purposes only? MR. NIKAS: If I can actually show the Court

MR. ROTONDO: THE COURT: you say it's clearer. MR. NIKAS: THE COURT:

I didn't make the connection. I understand why

I didn't either.

I'll use them both in conjunction. And then say here's a clearer since

he did disclaim having artistic talented when he drew it. MR. NIKAS: Because we only had one question,

you can see the different colors, trying to distinguish the four strokes. This actually sets them out as four

different things rather than four things written on the same cylinder. THE COURT: strokes, as I recall. MR. NIKAS: it's clear. Several times, just to make sure And he did testify about the

This way they at least can see it. I remember him testifying about it.

THE COURT:

You can use that as a demonstrative exhibit. So I think counsel will be ready in a few minutes after I give the court reporter a break?

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MR. NIKAS:

Yes, Your Honor. Your Honor, is it your practice to

MR. ROTONDO:

go immediately to plaintiffs', to defense, and back? THE COURT: take a short break. I usually take plaintiffs', then Depending on how long defense

argument is, I may go straight to rebuttal. MR. ROTONDO: THE COURT: Thank you.

We'll take a ten-minute recess and

the courtroom deputy will let the jurors know we'll be ready in about ten minutes. Thank you. (Whereupon, a recess followed.)

THE COURT:

Ready to bring the jury in?

(Whereupon, the jury entered the courtroom.) THE COURT: Please be seated everyone.

We're going to move the thing here so I can see all the jurors. Good morning, ladies and gentlemen. Ladies and gentlemen, I got a follow-up note from a juror. The first question of the note was: lemon law concerning boats? And the answer is no. Is there a

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I think the second question states something Do they conduct a recall on motor exhausts if there

are several problems? And my response to you there is that you must decide this case only on the evidence admitted here in the courtroom and my instructions to you on the law. cannot speculate as to other things. And you

So that's the best I

can do in terms of responding to that question. This morning you're going to hear closing arguments of counsel. Each side has up to an hour.

Counsel for the plaintiff goes first and reserves some time for rebuttal. So you'll hear from counsel for the

plaintiffs, then you'll hear from counsel for the defendant, and then counsel for the plaintiffs will have saved some time for rebuttal. We'll probably take a break at the end of the plaintiffs' first statement, and then we'll see how long the defendant's statement is to determine whether we take a break before we hear the rebuttal. straight through. Mr. Nikas. MR. NIKAS: Good morning. Most likely we'll go

Just about a week ago we started this trial and we heard from the first of our witnesses. Given the time

that's past and given the weekend, I'd like to review the

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testimony that you heard and go over the things that everybody said so you can remember who said what and what evidence is there before you. The first person you heard from was Peter Mains. And he told you that he bought this boat with his wife to enjoy it with their daughter. And having owned two

previous boats, he wanted to continue to enjoy an outdoor activity. Well, shortly after that, I guess we all heard about the laundry list of problems that he had and the complaints that he made. And you saw the letters and we

saw the responses, and there were item after item after item. And it was a long list sometimes. In fact, if you consider Peter's testimony in light of some of the testimony you heard afterwards from witnesses for both plaintiffs and the defendant, one thing was clear: fussy. boat. Peter Mains was fussy. He was very, very

He and his wife paid just shy of $140,000 for this And having returned their previous boat to Sea Ray

and having used that as a down payment on this one, he testified that he had the expectation that he would be able to get many years of use out of it. They bought the boat in May of 1998. From that

first week up until the time the engines failed in June of 2001, there were several repair attempts. Sea Ray flew a

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mechanic up.

The boat was taken to Haddam for repairs.

And finally in 2000 the boat disappeared for five and a half months. From the boating season supposedly lasting

six months, as Mr. Mains said, the boat was out of commission for an awfully long time. And when his wife, Lori, testified, she corroborated that her husband was particular. She

corroborated that the family used the boat with their daughter, their daughter's friends and other relatives. And everybody agreed that when these engines failed on June 10, 2001, it was rather unexpected. What was One

unexpected was they had fewer than 180 hours on it.

expert testified that's about 10 percent of the expected usage one would get from engines like these. Well, that's two of the witnesses, both plaintiffs. Who else did we hear from? Even though he

We heard from Thomas Wicander.

testified as an expert on the basis of his background, Thomas Wicander was contacted by Sea Ray to coordinate the repairs that would have started the date after these engines failed. They failed on June 10, 2001. Work was

supposed to begin on June 11.

And he was the person that

was charged with doing this work. He didn't get a chance to because on June 10 Peter Mains tried to start the engines and could not. Why

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not?

Well, initially I guess Mr. Wicander, Mr. Mains all The

thought it was because the engine had hydrolocked. boat was meticulously maintained. In fact, I think

Mr. Wicander testified that even when both engines were not working and apart, Mr. Mains went down with his family to go wash the boat while it was in dry storage. I guess

he did that so often that Mr. Wicander testified he had to give him a pool key to get him to go away sometimes. But why did the boat hydrolock? Well, when

Peter and Lori bought the boat, it came with a collector-style exhaust. And I know you've heard those But the

terms a lot: collector-style and water lift.

collector-style exhaust was the exhaust system that the boat came with. And when the boat was at the factory,

unbeknownst to Mr. Mains or his wife or anybody else, at least as far as the owners are concerned, Sea Ray decided to change out that exhaust system. I'm going to skip ahead a little bit. The second to last witness we heard from on Friday was a gentleman named David Wade. the customer service rep from Sea Ray. David Wade was

And you'll recall

when he was asked, Were you aware that the flushing procedures for the collector-style exhaust and the flushing procedures for the water lift muffler were different, he replied, No, I didn't know that. I didn't

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recall that.

Why is that important?

Well, if you're

going to flush the collector-style, the engines should not be running. If you're going to flush it with the water

lift, which is what Sea Ray installed when the boat was back at Tennessee, it should be running. Thomas Wicander and Thomas Greaves, who was the marine surveyor with the Irish accent, both testified that the exhaust hoses were higher than the exhaust elbows. And you'll recall with the rolled-up tube of poster board and the tennis ball, when that happens, it allowed water to run downhill into the exhaust elbows and into the engine. And all that water, you recall Thomas Wicander

say, was sitting on top of that piston preventing it from moving up. That's the hydrolock. At this time Thomas Wicander's only a mechanic. Granted, he was a Mercury-certified mechanic, he was a Sea Ray-certified technician, but his only role up until now was to try to find out what was wrong with these engines. He turned them over, got water to come out, And at this point nothing tells him --

started them.

there's no evidence before him to suggest anything other than those engines had hydrolocked. Why is that? Well,

if you remember, in his drawing he said the pistons are sitting in the cylinders and the head sits over both. couldn't see through the head until it's removed. And He

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until it's removed nobody -- not Mr. Mains, not Mr. Wicander, not the Sea Ray people that Mr. Mains had spoken to, not the people at the dealership -- nobody had any idea that there was a problem beyond the hydrolocking. When Mr. Wicander pulled that head off and was able to look into the cylinders, what did he find? heard this term. He found scoring. You

One engine, seven

cylinders out of eight were scored, and the other, half. Why was that significant? He testified that the scoring

proved that the ingestion occurred when the engine was running. Without the engine running, the water just

stayed on top of the piston, preventing it from starting, sure, that's a problem, but not causing the internal damage. And when he looked into the cylinders, he found

significant scoring that was historical, meaning it happened over time that those engines had been ingesting water. What were they ingesting water through? The And

exhaust elbow sitting right on top of the cylinder. given the layout, allowing water to flow back. The scoring was significant.

And he testifying

that there was no way possible that that scoring could have occurred without the engine running. He also testified that in their attempts to follow the MerCruiser procedures and pickle the engine and start it, that the level of scoring found could not have

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been caused by that. How'd the water get in? This is a better The red and blue

example of the picture you have there.

things are the valves, the "I" is the intake valve, the "E" is the exhaust valve; the "P" is the piston. With one

of those valves open, water is allowed to go through, sit on top of the piston. And when the engine is running, it

ate away the oil that protects the piston as it moves through the cylinder. After enough time, that water

eroded away the lubrication and allowed metal-to-metal contact. Let's fast forward just a bit to defendant's expert, Mr. Davis. Even though Mr. Davis said he didn't

really look at the engines, in fact somebody else completed that part of his report, he said the only thing that can scratch the cylinder walls, which he said was hard metal, was something harder than that. harder than metal. Neither is salt. Water is not The

You know that.

only thing that's harder than the metal in the cylinder wall would have been the metal in the piston adjacent to it. And after time, with that lubrication worn away by

the water, it allowed the piston to contact the cylinder and scratch it. The tolerance, unlike our pitcher in the That scoring

vase, is one-thousandths of an inch.

prevented the repair of the block and, Mr. Wicander

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testified, would eventually have led to catastrophic failure of the engines. It was fortunate that the engines failed where they did, at the dock. If they had failed at sea, if

they'd failed in heavy weather, if they'd failed at night, what would the Mainses have done? That danger presented

by the failure of the engines -- well, that's a problem. Thomas Wicander explained how the process worked. He drew pictures. He tried to explain how water

got into the engine, and he explained how it was impossible to tell at the time the original diagnosis was made what the problem was. Because without removing the

head, there was no way to be able to look down into those cylinders. Well, this was a big problem. The boat had other problems. You heard about

gelcoat cracks and water in the core and anchor windlasses and all sorts of things. Well, Thomas Greaves was the marine surveyor. At the time that he was hired, that's all he was: a marine surveyor. failure. He inspected the boat within two weeks of its He wasn't an expert witness. He was just trying

to give an accurate description of the condition of the boat. And what did he find? He found water in the core. He found

He found handrails that were improperly secured.

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that as small a man as he was, he testified he couldn't access the parts of the engine that you needed to access to inspect the boat. He was forthright. He listed them

all in 12 bullet points. Well, how serious were those problems? accurate were they? How

If you don't believe Thomas Greaves,

let's go to defendant's expert, Mr. Davis. Mr. Davis, when asked, Do you agree with all the conclusions in Mr. Greaves report, he said, Not all of them. I want you to remember, as we walk through that

list, 1 through 12, that he conceded that he agreed with each and every one, including the issue of the exhaust system restricting his access to the engine compartment. Each and every one. Well, what was Mr. Davis's job? You'll recall

that he had a lot of credentials, but he didn't look at the engines except superficially. I asked him, What was And he said,

the purpose of you being hired as an expert?

To complete inspection of the subject vessel and render an opinion as to her present condition and value. one. That was

Two, provide an opinion as to the cause of the And three, provide an opinion as to the

damage found. repair cost.

Let's take those in order. Let's talk about his opinion as to her present

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condition and value.

Maybe you remember the discussion Because the fact of the matter

about "to be" and "once."

is, the value that Mr. Davis concluded was not based on the condition of the boat as he inspected her on. The

value he provided was a boat with two good engines. And then he went so far as to corroborate the care that Peter and Lori took of the boat. came up with a value. Remember he

And then he said it was in such

excellent condition that he increased the value by 25 percent. Increased the value of a boat in good

condition by a quarter because it was in excellent condition. And I asked him what his opinion was. His

opinion was the vessel is in excellent condition except for the current condition of the engines. That's a lot

like, Other than that, Mrs. Lincoln, how was the play? He testified that the purpose of this boat was to be able to provide transportation on the water. And

ever since June 9, 2001, the only time the boat had seen water was to run tests on her. It's been almost seven

years since she's been used for her intended purpose. Well, the second thing he was asked to do was to provide an opinion as to the cause of the damage found. Remarkably, he found that the cause of the water in the hull core was by water. And he never provided an opinion

as to the cause of the water in the engines other than to

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state that he was informed it was because it was hydrolocked. He was critical of the pickling procedures that Tom Wicander used even though they followed the MerCruiser guidelines. He was critical even though he didn't see the

boat until more than two years after Tom Wicander removed the heads. And Tom Wicander himself said at the point at

which he saw the scoring on the cylinders there was no point in going any further. And then the last thing he was asked to do was provide an opinion as to the repair cost. solution to this? condition. What was his

The boat, he said, was in excellent So

Had less than 200 hours on the engines.

his recommendation was we get remanufactured engines and we put them in there for I think he said $12,000, and the boat will be worth $127,500 if we do that. So let's replace the engines that came with it from the factory that had less than 10 percent of their expected life used, and that is supposed to make sense. Well, not a lot made sense. The biggest problem

with the boat was the engines and the water that was in the engines. He never provided us with an opinion, a

guess, even a whim as to how that had happened. That's Greg Davis. for the defendant. That was witness number one At least he was

He was the expert.

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candid.

He told us that David Marlow at Sea Ray, who was

the director of customer service and he corresponded with Peter Mains, was a personal friend of his. He said that.

And he admitted that, well, we didn't come up with an opinion as to the water damage. And the value we got,

well, that's for a boat in a different condition other than the one he looked at. Well, who was witness number two? Beckman. Well, Dean What did So Dean

Dean Beckman worked at the dealership. Well, let's try to remember.

Dean Beckman say?

Beckman is from the dealership.

He said that he had all

but a handful of customers that were as knowledgeable and as attentive and contacted him as much as Peter Mains. All that's consistent with what everybody else said. he got along with him. Talked at the factory about That was pretty much the Said

Peter's problems with the boat. testimony.

Now we get to David Wade.

David Wade testified

for plaintiff even though he was an employee of defendant. It was his job to deal with the boat when it got to Tennessee. repairs. He had a long list of items. They put in a new stringer. They did hull

They sprayed on

some gelcoat. And oh, yeah, David Wade said he decided to change the exhaust. David Wade was a customer service

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rep. no.

When asked if David consulted any engineers, he said When asked if he consulted any materials, any

literature, any service bulletins, any technical manuals before he suggested this repair, he said no. When I asked

him, Then why did you change this exhaust system, he said, To deal with Peter's complaint about noise. How would he

know that this new different exhaust would even address those concerns about noise? the exhaust. He didn't know anything about He

He didn't know the purpose behind it. He didn't consult any

didn't consult any materials. engineers.

And he didn't consult MerCruiser.

And we're

to believe he made this decision all by himself, changing a major component of the boat because nothing was wrong with it, he just did it because he thought it would fix the noise. All on his own. Didn't tell anybody, didn't

talk to anybody. change was made.

He said he went to his boss and the Didn't tell Peter and Lori. I know you

brought your car in for a flat tire, we thought we'd change the interior, too, because you complained about the smell. Well, it would have been helpful to Peter and Lori

if David Wade understood the difference in the flushing procedures. Because remember when I started, I asked him, He said, No.

Do you know the difference?

Well, a month later, Peter uses the boat the first time. He uses the boat the first time since it gets

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back from Tennessee.

It runs for an hour and a half.

You heard about Peter's tendencies towards cleanliness. He flushes the exhaust using the procedure Except that Because

that he was provided with at the factory. procedure no longer works.

Why doesn't it work?

Sea Ray changed the exhaust.

When David Wade was asked Didn't appreciate

whether he notified Peter, he said no. why he should have notified him.

By the way, the boat failed to start on June 10, 2001. The MerCruiser engine warranty expired about two

weeks earlier. And even though -- let's think about this. the first time Peter and Lori have used the boat. about the repairs in Tennessee? It's

What

They happened after the The hull Did Lori

Sea Ray warranty had supposedly expired. repairs. The gelcoat.

Changing the exhaust. No. Sea Ray did.

and Peter pay for that?

A year after

the warranty had supposedly expired. Well, surely there's got to be another witness that helps explain all this. There's got to be another

witness that explains why the exhaust was changed, explains why the water got in the engine when it was running. There's got to be a witness that explains why There's got to be a Who is the last

all the repairs have been covered.

witness that makes sense of all this.

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witness for defendant?

Who is it?

It is Greg Wilson.

Last witness we heard from. He's in the area. He gets a call to go out to He's

the boat to deal with this exhaust noise issue.

going to install some baffles to try to fix this problem. Does he refer to any materials? service bulletins? Does he refer to any No. Does

Does he contact MerCruiser?

he know why the water lift muffler and exhaust was exchanged for the collector? He says no. Did you see the But I just

boat when it was in Tennessee? looked at it.

He says yes.

So the remainder of the questions that Mr. Wilson answers, do you remember what they were? were about his shoes. He had to take off his shoes. They He

was wearing boat shoes and he had to take off his shoes. He said it was like standing on river rock. I don't know

what that has to do with water in the engine, but it is consistent with the type of care that Peter and Lori took of the boat. They were incredibly meticulous.

Well, surely Davis, Beckman, Wade, and Wilson, none of those witnesses helps us understand this problem. Maybe ours do. Peter Mains, on corrosion, is asked about sparkplugs. When were the sparkplugs purchased? Four

days after the hydrolocking incident.

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Tom Wicander explains, We started the engine with the old plugs. I wouldn't put new plugs in, he said,

until after the problem had been fixed. Thomas Greaves, well, everything he said was agreed to by Mr. Davis. Well, who's left? Tom Wicander said the scoring could only have occurred while the engine was running. It could only have

occurred while the engine was running and the damage that he saw could not have occurred from the hydrolocking. any Sea Ray witness testify to the contrary? Both Tom Greaves and Tom Wicander said even after the change of exhaust, the outlet was higher than the elbow which would allow water to roll back into the engine. Did any witness from Sea Ray contradict that Did

testimony? Tom Greaves and defendant's expert, Greg Davis, both testified that the new exhaust system prevented access to the engine compartment and prevented access to the parts that needed to be inspected. Not only did no

witness from Sea Ray contradict that, their expert agreed. Did we hear from David Marlow, who is the director of customer service who wrote Peter the letter, who was there at the factory? Did we hear Mr. Todd Stooksbury, who was David

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Wade's boss who supposedly was the only other person that this exhaust change was discussed? We didn't.

Tom Wicander, Tom Greaves, Greg Davis, to the extent that he agreed with everything that Tom Greaves said, all concurred. was running. The water got in the engine when it

It scored the cylinders preventing the

engine blocks from being reused and damaging them fatally. That's the evidence you heard. nobody contradicted. And that's the evidence

Instead, they came after Peter for

being fussy, for making people take off their shoes, and for buying sparkplugs four days too late. They responded to the water ingestion with shoes and sparkplugs. And as fussy as he was and, yeah, the two prior boats had been returned, and yeah, the list of repairs that he wanted were long, think about this: Did you hear

one witness, from the mechanic that worked on the boat to defendant's expert to the two Sea Ray employees, did anybody say Peter was wrong? Did anybody ever say that

the list of items he wanted repaired were not valid? Think about it. They put the boat on a trailer and they

took it 1200 miles to Tennessee and it was there almost six months repaired at their expense. customer service? They did this for A

That's really good customer service.

year after the warranty expires.

They'll fix all