APPELLATE LAWYER OF THE WEEK THIRD TIME THE CHARM

							TEXAS LAWYER
June 13, 2011

                                                             Practice Focus

AppellAte lAwyer of the week: third time’s the ChArm
                                                                                                                                                             By John CounCil



    Sometimes an appellate win boils                                                                                      that the boat industry will finally develop
down to tenacity. And that’s certainly the                                                                                guards and put them on their propellers,”
case for Robert Alden.                                                                                                    says Alden. “I hope it’s the kind of the
    Alden represented his injured client                                                  Robert Alden, a                 judgment that the rest of the boating
three times in front of federal court juries                                              partner in Austin’s             industry will take note of.”
                                                                                          Byrd Davis Furman
in Austin, finally won a favorable verdict                                                                                    Alden also has another wish: “I’ve
and preserved that victory at the 5th U.S.                                                                                argued cases to the 5th Circuit, but not
Circuit Court of Appeals.                                                                                                 after I’ve tried it three times. I hope I never
    The ruling in Jacob A. Brochtrup v.                                                                                   have to try a case three times again.”
Mercury Marine, et al., a boating design-                                                                                     Austin solo Craig A. Morgan, who
defect case, is important, because                          damages to Brochtrup.                                         represents the defendants, says his clients
it’s “the first decision in the country                         Before and after the verdict, the                         will ask the 5th Circuit to rehear the case,
holding that an unguarded propeller is                      defendants moved for a judgment as a                          because the plaintiff failed to prove all of
an unreasonably dangerous product that                      matter of law, which the trial court denied.                  the elements of a design defect required
is defectively designed,” says Alden, a                     The defendants appealed those rulings as                      under Texas law.
partner in Austin’s Byrd Davis Furman.                      well as the trial court’s denial of a jury                        “There must be 100 million boats
    According to the 5th Circuit’s May 27                   instruction on the elements of a Texas                        on the water right now that don’t have
opinion, the background in the case is as                   design-defect claim.                                          propeller guards,” Morgan notes. “You
follows: Brochtrup was severely injured                         “After reviewing all of the evidence                      would have to change the design of every
after his right leg made contact with                       presented and drawing all reasonable                          boat on the water” to satisfy the plaintiff’s
the spinning motor of a boat engine. His                    inferences in Brochtrup’s favor, the court                    judgment.
leg ultimately was amputated at the hip.                    concludes that a reasonable jury could                            “He’s a good lawyer,” Morgan says of
Brochtrup sued Mercury Marine and Sea                       find the MerCruiser to be unreasonably                        Alden. “But I think the 5th Circuit got it
Ray (divisions of the Brunswick Corp.)                      dangerous,” the 5th Circuit wrote in a per                    wrong.”
in state court alleging a design defect                     curiam opinion affirming the trial court’s                                               — JOHN COUNCIL
— an unguarded propeller on the boat’s                      rulings. Fifth Circuit Judges Eugene Davis,
MerCruiser engine. After the defendants                     Edith Brown Clement and Jennifer Elrod
removed the suit to federal court, the                      participated in the panel decision.
case proceeded to trial three times,                            While the appellate victory is a big win
twice resulting in hung juries. The third                   for his client, Alden wants the decision
jury found a design defect and awarded                      to have broader implications. “I’m hoping


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