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July 2011    Download the Entire Issue (PDF) Available to the Public Vol. 26, No. 7   RSS Feed for Undercurrent Issues
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Litigation: The Dive Industry’s Biggest Threat?

viewpoints by a British dive gear maker and an American lawyer

from the July, 2011 issue of Undercurrent   Subscribe Now

We often discuss the effects of lawsuits on the dive industry. The most recent was in our February story "Who's Responsible for a Diver's Death?" in which we compared the U.S. with other countries in investigating and explaining dive-related deaths, and assigning blame. Martin Parker, managing director of the English rebreather manufacturer Ambient Pressure Diving, had something to say about the topic, based on his experiences in courts on both sides of the Atlantic. Below, he gives his opinion, referring to his experience being sued in the U.S. (read the details in our February 2009 story "Rebreather Firm Wins Its First U.S. Lawsuit) and how the trial shaped his view of the responsibilities of divers, equipment makers and the legal system.

We have been making dive equipment since 1969, and always knew the potential for a lawsuit, so when the dreaded American lawsuit came in 2004, one day before the statute of limitations ran out, it was really one of those things that "we knew would happen one day." The sad fact is that there are around 400 diving deaths globally, and just over 100 of those are in the U.S. Approximately 20 occur worldwide while using rebreathers of various makes.

With open-circuit equipment, investigations are often a straightforward affair, but that wasn't always the case. In the late 1950s, the original regulator was known as the "widow maker," but as the product becomes more widely used and people understand that there are a myriad of potentially fatal causes, there is less emphasis on blaming the equipment and more focus on what the diver did and why. Rebreathers have followed the same pattern.

One of our customers died in 2004 while using one of our Inspiration rebreathers. It is a product that has been tested several times by various third-parties and agencies including the Navy test houses worldwide. Each time, it has been found to be an extremely reliable piece of gear. Named in the broad-brush lawsuit was everyone in the chain of supply: the manufacturing company (us), the manufacturer of one of the critical components, the facilitator of the sale and his partner who owned the dive shop that allowed its credit card machine to be used to take payment, the dive instructor, the training agency, the equipment examiner, and even the dive boat owner whose boat the deceased had dived from 10 weeks prior to his death. All parties were subsequently released from the case, with the exception of the manufacturer (us), who carries the ultimate responsibility. Judges and coroners on both sides of the Atlantic were keen to allow the widow her day in court.

Over the next six years, both parties investigated the incident. The discovery process, where you have to produce all documents pertaining to the matter, is a massive undertaking. In the end, copies of our hard disks were held with a forensic company in the U.S., and the plaintiffs were allowed to search the data. At a joint equipment inspection, we found the equipment was working exactly as it was supposed to. I repeated the dives done by the deceased so I would know what the dive site and the conditions were like that day. Three personal depositions later, we were ready to go to trial in New Hampshire.

The plaintiffs, though, were still fishing. They spent eight full days presenting their case, and at the end, it was clear to all they didn't have any evidence. They spent their eight days simply trying to trip up the various witnesses and discredit everyone involved. In contrast, our defense took just one day. The next day, we heard the summing up by both prosecution and defense before the jury deliberated. The jury was out for just 30 minutes before unanimously concluding that we the manufacturers were not responsible for the death. Federal Judge McAuliff agreed with the jury's decision, and awarded my company some of our legal costs.

Around the world, plaintiffs are attracted by the "no win, no fee" deal offered by their lawyers, but are they really aware that they will potentially be liable for some of the costs if the case should go against them? I don't know for sure, but I don't believe the widow was made aware of her potential liability, and I suspect she has a legitimate claim against her lawyers for those costs. Certainly in Europe, where the loser pays all the costs, there is a desire to have some evidence "in the bag" before going to trial, and a "no win, no fee" deal would only be offered by the legal team if either the evidence is overwhelming or they hope for a quick settlement from the defendant's insurance company.

In the U.K., the battleground tends to be the inquest. Having given evidence at three inquests, it seems common for the coroner to allow the widow and her lawyers free rein to follow any and every avenue. During this process, both sides bear their own costs. Before the inquest, the coroner binds you not to release information about the incident, which is frustrating for everyone, and is wrongly seen by some as the manufacturer withholding information. Invariably the decision is Death by Accident, but in some cases there isn't sufficient information to decide the cause of death, so the coroner records an Open Verdict - - which is all pretty unsatisfactory from the family's point of view. But, the coroner's job is to simply decide who died, where they died, when they died and how they died. An inquest is not about apportioning blame.

In the U.S., the lawyer who does the groundwork is often the lawyer who stands on his feet and fights your case. In the U.K., by comparison, you use a solicitor (British for lawyer) and then employ a barrister to fight your case in court. This means going through the education of the legal team twice over, and sometimes time is a little tight for that. Litigation is one of the biggest threats facing the diving business. Competition from other equipment manufacturers is healthy, but the litigation isn't. It cost us three years of profits to fight our U.S. case, but luckily, enough of our shareholders share the same passion for the business as I do, so they were completely supportive.

I love diving and I love divers . . . well, most of them. I have a passion for the business and for ensuring standards are upheld, and when someone wants to take away everything we have worked for in the past 40 years, you tend to dig in and be pretty stubborn.

So how does Parker's opinion fly on this side of the pond? We asked Rick Lesser, the head of Lesser & Associates in Redondo Beach, CA, and an attorney who has tried multiple dive cases in court, to respond.

In response to Martin Parker's comments, I agree somewhat. In my recent DEMA seminar section named "Top Ten Reasons Why Dive Professionals Get Sued," one of the first reasons is that "Dive Equipment Works." Having been involved in dive litigation for more than 30 years, and more recently on both sides of cases, I will say that Parker's view is generally accurate as it relates to equipment, but the ineptitude that is sometimes seen in instruction and supervision is staggering. So a broad statement covering simply a diver's death needs to be addressed further as to whether it was supervision-based, vessel-based (like leaving them in the middle of the ocean), or equipment-based. The last two are extremely rare these days, but supervision and instruction, problems particularly involving beginning or recently certified divers, are still very much with us.

While the English system may seem more equitable, the U.S. system allows heirs even without money to obtain access to the courts and a potential verdict in the event of dive instructor negligence or incompetence that leads to a loved one's death. Parker is also right in a sense that if a case is correctly analyzed, and the defense makes a very low offer and then does better in front of a jury, then the plaintiff will have to pay costs, but a careful analysis by experienced dive attorneys should avoid that problem. In short, like trying to determine who exactly is a Jones Act Seaman, determining responsibility for a diver's death is a broader question than Parker addressed in his comments.

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