United States District Court for the District of Wyoming:  Dewhirst & Dolven attorneys George Parker and Robin Lambourn obtained a defense verdict against product liability claims involving an off road motorcycle accident and also prevailed on a counterclaim at the conclusion of a jury trial in federal district court in Cheyenne, Wyoming.  Dewhirst & Dolven represented Defendant/Counterclaimant, Big Horn Power Sports, LLC (“Big Horn”), located in Sheridan, Wyoming.  Plaintiff, Karl F. Kretzschmar, claimed negligence and breach of Uniform Commercial Code (“UCC”) implied warranties against Big Horn.  Big Horn sold Plaintiff an off road motorcycle and installed numerous aftermarket parts on Plaintiff’s motorcycle.  While riding his motorcycle in Berthoud, Colorado for the first time after taking delivery, Plaintiff wrecked the motorcycle, resulting in injuries that led to a several-week hospital stay.  Plaintiff and his expert witness, Darren Murphy, alleged Big Horn did not properly assemble and install an aftermarket rear shock absorber, which they claimed caused the accident.  Plaintiff alleged numerous short term injuries, including broken ribs, internal bleeding, a closed head injury, and several lacerated organs, as well as permanent cognitive deficiencies and memory loss resulting from the accident.  At trial, Plaintiff requested $650,000 in damages from the jury for past and future medical expenses, pain and suffering, mental anguish, inconvenience, physical disfigurement, and impairment of quality of life.

Big Horn denied all of Plaintiff’s allegations.  Big Horn and its expert witness, Mark Kittel, P.E., opined no evidence existed that Big Horn improperly assembled the rear shock absorber because a third-party mechanic had apparently disassembled and reassembled the rear shock absorber after the accident, thus destroying the evidence on Big Horn’s assembly.  Moreover, Mr. Kittel’s reconstruction of the accident caused him to conclude the crash resulted from Plaintiff’s over-application of the brakes while entering a turn and inexperience rather than from a defective rear shock absorber.  Big Horn also presented evidence that Plaintiff took numerous pain medications on the day of the accident which may have impaired his ability to safely operate a motorcycle.   Furthermore, Big Horn disputed Plaintiff’s assertion that the accident caused his alleged permanent cognitive deficiencies and memory loss.  Big Horn argued Plaintiff’s memory loss was a progressive side effect of medications taken by Plaintiff for years before the accident.  Finally, Big Horn asserted a counterclaim for breach of the sales contract with Plaintiff.  In that sales contract, Plaintiff disclaimed negligence and breach of implied warranty claims and agreed not to file suit against Big Horn alleging those claims.  Plaintiff argued the sales contract was unconscionable and signed by Plaintiff under duress.

Before the claims went to the jury, the District Court entered directed verdict against Plaintiff’s breach of UCC implied warranty claims, leaving only Plaintiff’s negligence claim and Big Horn’s breach of contract counterclaim for the jury’s consideration.  On August 14, 2014, the jury returned a verdict in Big Horn’s favor on both Plaintiff’s negligence claim and Big Horn’s breach of contract counterclaim.  The jury found Plaintiff 80% contributorily negligent for the accident, thus barring him from recovering on his negligence claim.  The jury also decided Plaintiff breached the sales contract by filing the lawsuit against Big Horn, finding the sales contract was not unconscionable.  The District Court entered judgment in Big Horn’s favor on the following day.  The District Court will decide the amount of attorney fees and costs Big Horn will recover from Plaintiff as damages on its counterclaim at a future post trial hearing.    

Kretzschmar v. Big Horn Power Sports, LLC, No. 13-CV-87F, United States District Court for the District of Wyoming, Cheyenne Division