FORT MYERS — A federal jury last week awarded a 21-year-old Naples woman $1.75 million after she slipped off the back of a Sea-Doo three years ago and its jet thrust caused serious internal injuries.
But Christina Thomas’ win, after a six-day federal trial, was fleeting.
U.S. District Judge John Steele reviewed the verdict sheet before it was announced and rejected it. Jurors, who had deliberated roughly 5½ hours on Nov. 2, hadn’t correctly followed instructions and had found the driver and owner equally negligent and ordered them to pay Thomas. They weren’t defendants.
Fifteen minutes later, the six-woman, three-man jury returned with a new verdict: Zero.
They found that Bombardier Recreational Products Inc., which manufactured the 2006 Sea-Doo RXT, had not negligently designed the Sea-Doo and it wasn’t in a defective condition, making it unreasonably dangerous to users.
It was a trial where female jurors cried as they listened to Thomas detail how she slipped off the back of the Sea-Doo at Vanderbilt Beach on May 20, 2007, when water from its jet thrust shot inside her, causing excruciating pain, internal injuries and bloodied the Gulf of Mexico.
Thomas, now a student at Florida Gulf Coast University in Estero, was rushed to a hospital, where she spent about two weeks recovering from the Memorial Day weekend accident. She wore a colostomy bag several months into her senior year at Gulf Coast High School and was teased by other students. Months later, an operation reversed that, but the former cheerleader still has medical problems and can only give birth through a C-section. She was wearing a bikini and lifevest and can no longer wear a bikini due to severe scarring.
“They told me that I had so much salt water inside me that I could die from the infection,” Thomas told jurors the first day of trial, Oct. 26. “I had saltwater up to my lungs, underneath all the muscles in my legs, so I couldn’t, I couldn’t even walk. I couldn’t walk for a couple of weeks. I needed help to do anything.”
“I couldn’t sit up I just hurt so much,” she added. “I was on so much medication, but I could still feel everything.”
Thomas’ attorney, Robert Selig of Fort Lauderdale, is filing post-trial motions and is considering an appeal involving a pretrial ruling that barred him from mentioning 17 other women seriously injured in similar cases involving Bombardier, Kawasaki, Polaris and other manufacturers, including two settled by Bombardier.
That was one of the jury’s questions — the number of injuries since regulations were enacted. Steele had ruled Bombardier knew of those accidents, but Selig hadn’t proven they were “substantially similar” so it would create undue prejudice to Bombardier.
“To me, that was crucial,” Selig said this week, referring to jurors needing to know about similar cases. “I just hope the word gets out so no more people are injured like this.”
The 2007 lawsuit hinged on a warning label placed beneath the handlebars at the front of the two-seat Sea-Doo. Selig and his expert contended it wasn’t conspicuous enough, but Bombardier’s attorney argued it was and they ignored it.
It listed various cautions, including: Warning. To reduce the risk of injury or death, wear protective clothing. Severe internal injuries can occur if water is forced into body cavities as a result of falling into water or being near the jet-thrust nozzle. Normal swimwear does not adequately protect against forceful water entry into the lower openings of males or females. All riders must wear a wet-suit bottom or clothing that provides equal protection.”
Bombardier’s lawyer had argued Thomas, Sea-Doo driver James Del Sordo, now 25, and owner George Smith, the father of a classmate, were negligent because they didn’t read it or heed it. In their initial verdict, jurors found the men negligent, but not Thomas or Bombardier.
“He saw it and just ignored it,” Miami attorney Scott M. Sarason said of Del Sordo, who gave Thomas a ride that day. “Ms. Thomas said she trusted him. She’d never been on a personal watercraft in her life. It really defies logic for a passenger not to look for a warning.”
“The accident was so avoidable,” he said, adding that such injuries are rare and the industry has worked “diligently” to introduce boating safety programs. “Obviously, this type of accident was known to Bombardier because they warned about it.”
In addition to Thomas, Selig presented five other witnesses, including her mother, Lena Whalen of Naples; Dr. Susan Cera of Physicians Regional Hospital, a colorectal surgeon and medical expert; engineer Mike Burleson; and Edward Karnes, a retired aerospace engineer, human factors and ergonomics consultant. The men are expert witnesses on personal watercraft use. Sarason presented five witnesses, including Smith, Del Sordo and James Paul Frantz, a human factors and ergonomics expert.
Selig argued the Sea-Doo also should have had a lanyard for the passenger that would shut down the engine if a passenger slipped off, similar to what the driver has. Karnes testified a warning should be placed on the passenger seat, such as those on jet seat backs involving food trays or with each airbag in cars.
“So, location, location, location,” Karnes testified. “That’s the important part of it. ... It’s the person at risk who needs to have the information to be able to make the decision and not have to rely on somebody else.”
Jurors initially found Del Sordo and Smith should pay Thomas $1 million for past mental or physical pain and anguish and $600,000 for that in the future, and $150,696.80, a stipulated amount of medical bills not written off or covered by insurers.