Aladin Air X Nitrox Computers
Recalled
at last
from the April,
2003 issue of Undercurrent
UWATEC AG, of Switzerland, is recalling about 390 Aladin Air X Nitrox
dive computers manufactured in 1995. The software “may inaccurately
calculate desaturation times, resulting in possible decompression sickness
under aggressive dive conditions.”
UWATEC has received five reports of DCS “allegedly associated
with use of the 1995 dive computers.” UWATEC has stated, “For
safety reasons, we ask that you stop using the 1995 dive computer immediately.”
To which we can only reply, “What took you so long?”
It turns out that problems with the Aladin Air X had already surfaced
by 1996. We learned of the computer’s long, sorry history by reviewing
public documents filed in product liability lawsuits by customers who
claim they got bent while using the computer. These records allege a
pattern of problems either being ignored or denied, in the face of mounting
evidence of a dangerous “air-switching” defect. In its Nitrox
mode, the user-programmable computer allegedly assumes that the user
is still breathing Nitrox during surface intervals. By not switching
to an air table, the software underestimates the buildup of residual
nitrogen during repetitive dives. The greater the number of repetitive
dives — and the longer the surface intervals — the greater
the danger.
Was a 1996 Recall Stifled?
Bret Gilliam, who today owns International Training Inc. (TDI and
SDI) and Fathoms Magazine, is the ex-vice president and CEO of UWATEC
U.S.A. He stated in a May 2002 deposition that on his first day of work
at UWATEC U.S.A. in April 1996, he found a recall notice drafted by
his predecessor, Sean Griffin. Gilliam, who has testified that he had
no prior knowledge of either a defect or a recall, asked UWATEC’s
owners in Switzerland for an explanation. But, he has stated, Heinz
Ruchti, UWATEC’s founder and owner, convinced him the recall notice
was bogus, merely an attempt by former employees who had been discharged
to get back at the company. Ruchti was preparing to sell the company
to Johnson Worldwide Associates — now Johnson Outdoor International,
which also owns Scubapro — and they finalized the sale in late
1996. It took effect in July 1997.
According to documents filed in the product liability lawsuit, two
ex-employees, who had been discharged before Gilliam’s arrival,
sued for wrongful termination in South Carolina in 1996 claiming, among
other things, that they had been “fired because of their attempts
to publicize the very air-switching defect.” An expert witness
at the wrongful termination trial even testified about the defect. The
jury in that trial handed down a $2 million verdict in favor of the
ex-employees, which UWATEC then appealed. By then, however, Johnson
owned UWATEC and allowed the suspect computers to remain in service.
Another Recall Turned Down
Gilliam, now CEO of UWATEC U.S.A., had dived with the Aladin Air X
himself and said he had no problems. So he testified that the defect
might just have been a mechanical flaw in one or perhaps only a few
units. As part of the strategy for appealing the wrongful termination
suit, Gilliam suggested that dealers be asked to return ‘95 Aladin
Air X’s for testing, hopefully to disprove the allegations of
defects. According to Gilliam’s deposition, he was instructed
by senior executives at Johnson’s and at UWATEC’s main office
in Switzerland not to do so — that such an action would only produce
bad publicity for the company.
Questionable Safety Commission Finding
The wrongful termination case was eventually settled out of court,
but publicity about the possible defect triggered a 1998 Consumer Product
Safety Commission (CPSC) investigation into the ‘95 Aladin Air
X. In September 1998, Gilliam had begun a limited recall of the unit
on his own initiative. After approximately 25 computers were returned,
he testified in his deposition, he was instructed to send them to Switzerland,
where the UWATEC facility would ostensibly make battery changes and
return them to the U.S. Two months later, Gilliam said, he was instructed
to provide a few of these returned computers to Johnson’s attorneys,
who then forwarded them to the Consumer Products Safety Commission for
their testing. The results of those tests produced no defects. When
asked in his deposition whether this sequence of events now suggested
to him that the computers had been “tampered with or altered in
some fashion by the time they were returned” from Switzerland,
Gilliam replied, “Apparently so.”
Gilliam stepped down as vice president and CEO of UWATEC U.S.A. in
November 1998 when Johnson merged UWATEC U.S.A. with Scubapro and relocated
both to El Cajon, Calif. He remained under contract as a consultant
until July 2000.
An Even Earlier Warning
In March 1999, Mitchell Skaggs and Resvan Iazdi, each using the 1995
UWATEC, developed serious DCS following a series of repetitive dives
on Nitrox. Court filings allege that both men were treated at Duke University
in North Carolina and released with continuing neurological deficits
and other injuries. Gilliam testified that two months later a copy of
a January 1996 document from a Swiss company called Dynatron, which
had developed the proprietary software for the Aladin Air X Nitrox,
was anonymously mailed to him and to Skaggs. The document referred to
the very air-switching defect and included instructions on how to work
around it until new units could be supplied. According to Gilliam’s
testimony, this document confirmed to him that the defect was, in fact,
real and had been covered up since at least early January 1996.
Product Liability Suits
Skaggs and Iazdi sued UWATEC, Scubapro, and Johnson in July 2001,
claiming product liability, negligent manufacture, breach of warranty,
and material nondisclosure. They claimed that the defendants had committed
“fraud, malice, and oppression” for specifically concealing
a known defect from users. Ironically, Gilliam testified that he had
personally heard Ruchti tell Skaggs — UWATEC’s sales manager
at the time — during the 1996 wrongful termination trial that
there was absolutely no defect in the product and that it could be used
with confidence. So much for insider knowledge.
Later, Skaggs and Iazdi were joined in their lawsuit by two other
divers who claim they got DCS while using the Aladin Air X Nitrox. These
plaintiffs allege that Johnson must have known about the defect long
before Skaggs and Iazdi got bent. If Johnson’s management hadn’t
discovered warnings of a defect during the due diligence phase of the
UWATEC acquisition, they certainly should have known about it after
the trial.
In his suit, Skaggs claims he suffered “permanently disabling
systemic injuries arising from serious Type II, central nervous system
decompression sickness.” He has given up his lucrative diving
career and recently told Undercurrent, “The thing that irritates
me most is I believe [Johnson, Scubapro, and UWATEC] knew about this
and acted like they didn’t. I tried to get them to notify the
public that something was wrong, and they never did anything, even after
more people got injured. I feel sorry for those other divers, and I’d
like to see some justice.”
After Gilliam’s May 2002 deposition, the legal proceedings seemed
to bog down, with lawyers for the defense trying to keep him from testifying
about the company’s attempts to cover up the defect, based upon
various claims of “privilege.” Later in 2002, the presiding
judge in the case ruled that Gilliam’s deposition would be reopened.
They deposed Gilliam again in October 2002, when he offered additional
evidence from his files that included correspondence, internal memoranda,
and faxes chronicling his lengthy dialog with senior executives about
the allegations of defect dating all the way back to his initial hiring
in April 1996.
At Last
Then came the surprise “voluntary” recall announcement
in February, two months ago. At least it was a surprise to the public.
It seems that a fifth diver, Bob Raimo, had been injured in April 2002,
while diving in Bonaire with an Aladin Air X Nitrox. In his complaint,
Raimo was described as a highly trained diver with more than 2,500 dives
in his log, including several on the 220-foot-deep Andrea Doria. As
the owner of two New York dive shops in the ‘80s and ‘90s,
he had also been an authorized UWATEC reseller. Like Skaggs, Raimo claims
he continues to suffer from lingering and debilitating injuries.
Raimo’s attorney, David Concannon — whose website www.davidconcannon.com
opens to a photo of a great white with the slogan “Is your lawyer
a shark or a guppy?” — wrote to Johnson last January threatening
to file a class action lawsuit calling for a mandatory recall of the
1995 computers unless the company initiated a voluntary recall first.
Johnson’s lawyers responded by threatening a counter suit. Concannon
then filed his class action, prompting a letter from a Johnson attorney
that claimed that the demand for a recall on such short notice was “asinine.”
Yet even as the legal fists were shaking, the company was apparently
working with the CPSC on a recall, which they announced on February
5.
By then, seven years had passed since a recall had first been attempted
and in those seven years at least five divers got bent, though less
than 400 computers were in service.
Concannon has withdrawn his class action suit and instead filed an
amended claim on behalf of Raimo, adding charges of fraudulent concealment
and deceptive advertising on top of the other plaintiffs’ claims
of material nondisclosure. Another plaintiff, David Sipperly, has reached
a confidential settlement for an undisclosed sum.
The defendants UWATEC, Scubapro, and Johnson Outdoors are vigorously
defending the remaining claims, and no liability has yet been determined.
Matthew Monroe, attorney for the defendants, declined to comment on
the merits of the case, telling Undercurrent, “I am not inclined
to try my cases in print. We do that in court where we have rules of
evidence and sworn testimony.” A trial is scheduled in November.
And, we should note, depositions are sworn testimony.
Meanwhile, if you have a 95 Aladin Air X Nitrox computer, stop using
it and contact UWATEC for a free replacement — the $900 Air Z
Nitrox. Complete instructions are on the firm’s website at www.UWATEC.com,
or you can call 800/806-0640.
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