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April 2015    Download the Entire Issue (PDF) Vol. 30, No. 4   RSS Feed for Undercurrent Issues
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A Tragedy of Dive Errors

Major bends in Rangiroa leads to a $7.8 million settlement

from the April, 2015 issue of Undercurrent   Subscribe Now

When dive industry professionals gather to create a quality film showing off dive gear in a beautiful dive setting, you would think they'd have the sense to hire the right people to make it, that the dives are planned in advance, and everyone is aware of what the others will be doing during the dives. It's called common sense, right? In this case, there was pretty much a total lack of common sense in the planning for a dive film to be made in French Polynesia, and that led to a gasp-inducingly inept dive in March 2012 -- as well as what could be the largest payout ever to settle a dive-injury-related lawsuit.

To celebrate its 40th anniversary, Bare Sports, which makes wetsuits and dive accessories, hired Bonnier Corporation, the publisher of Scuba Diving magazine, to create something memorable to commemorate the event. Bonnier decided to use one of its divisions, Warren Miller Entertainment, which makes action sport films, to create a "webisode" film featuring Bare Sports' dive gear. They decided to shoot it at Rangiroa Atoll, 220 miles northeast of Tahiti, and specifically in Tiputa Pass, a deep, wide passage with a current that can rip at 10 knots when it flows from the ocean to the lagoon, making it a gathering spot for sharks, eagle rays and other majestic predators. But its depths and strong current means Tiputa Pass is not a good site for standard openwater divers to jump into unprepared.

In early 2012, Bonnier and Warren Miller put together its team for the film, which included Michael Prickett, a Hawaii resident hired to be an underwater cameraman for the Tiputa Pass shoot. They also hired the Rangiroa-based dive operator Top Dive to conduct and supervise the webisode dives. On March 13, Prickett arrived in Rangiroa, along with Tim Willison, who worked for Warren Miller Entertainment, Peter Falk, who worked for Bare Sports, and Ryan Miyamoto, another freelance cameraman. They met Top Dive employees Nicolas Bernard and Audrey Clement, who would be modeling Bare Sports gear in the webisode. As divemaster, Bernard would be in charge of the filmed dives.

The divemasters didn't bother to ask beforehand whether their passengers were certified nitrox divers -- none were.

Later that day, Prickett, Falk, Miyamoto, Bernard and Clement motored out to Tiputa Pass for the first webisode dive. The Top Dive crew filled the tanks with a 32-percent mix of nitrox, but neither Bernard nor his staff bothered to ask beforehand whether their passengers were certified nitrox divers -- none were. Bernard and Clement told Prickett to use a Suunto Vytec dive computer, while Falk used a Suunto Cobra computer. However, if the divemasters had bothered to ask whether the men knew how to use those computers, they would have learned that Prickett had never used a dive computer. Bernard led three divers through the dive (Falk didn't dive that day), and they stayed close together, following and filming dolphins.

On March 14, the group motored back to Tiputa Pass, when the outgoing ebb tide significantly reduced the visibility due to the detritus and debris coming from the lagoon (sport divers always ride it when the tide is coming in and the water is clearer). Bernard announced that it would be a drift dive. Neither Prickett nor Falk had the experience to do a drift dive in Tiputa's strong current. Bernard had not prepared a pre-planned dive profile or even prescribed a maximum depth or time for that second dive. He had programmed Prickett and Falk's computers, but he set Prickett's Vytec computer in meters, and Falk's Cobra computer in feet, without telling the men about the differences. He gave the group a short pre-dive briefing and told Prickett, Miyamoto and Falk to go over the side first so they could shoot his and Clement's entry into the water from below. However, after everyone was in the water, Falk immediately had problems with his mask and returned to the surface. Prickett followed him up to see if he could help. After Falk got a new mask from the boat, both men re-descended, only to discover that Bernard had already finned off with Miyamoto and Clement to see dolphins.

Setting off in search of their divemaster, Prickett and Falk descended to 50 feet, then found themselves in a strong downcurrent, at the peak of the outgoing tide, which dragged them down to 211 feet -- their Nitrox 32-percent mix only allowed for a maximum depth of 130 feet. Neither man knew how to use his dive computer, and when they compared what they were looking at, they thought they weren't reading it right, because they didn't know Bernard had programmed one in feet and the other in meters. Falk started breathing too rapidly and quickly ran through most of his nitrox. Back at 100 feet, Falk signaled his depth to Prickett, who saw Falk's pressure reading and realized he did not have enough gas to reach the surface on his own. Giving up his search for Bernard, Prickett took hold of an agitated Falk and started to ascend, buddy breathing with Falk, who had run out of gas. Because Falk was breathing too quickly, Prickett's air also ran out at 30 feet. Hence the dilemma: drown or risk getting bent from the rapid ascent. With no choice, both rushed to the surface.

At the surface, they saw the boat and shouted until it motored over to get them. Unfortunately, the driver, Manu, didn't speak much English, and neither of the two divers could make him understand the DCS that loomed over them. As soon as the men climbed into the boat, Prickett started feeling the telltale muscle pain, vertigo and the lower body numbness of DCS. But instead of rushing them back to shore, a non-understanding Manu kept looking for Bernard, Clement and Miyamoto, who were still in the water. The three eventually surfaced some distance away. By the time Manu got them aboard, Prickett was suffering severe DCS symptoms in his central nervous system. Before the group could find a safe spot safe to try an emergency, in-water recompression, Prickett fell to the deck, paralyzed and unconscious.

Bernard said he thought Prickett had 25 years of diving experience. Prickett said his 25 years was as a surfing cameraman.

Top Dive had no recompression facilities, so the two men's treatment was delayed for hours until they could be flown back to Tahiti, where they underwent recompression treatment. Falk spent only three days in the hospital, but Prickett stayed there for more than a month and left in a wheelchair. Prickett, who still can't walk, still suffers from muscular spasms, vertigo and incontinence, and has permanent injuries to his lungs, back, and legs. He has incurred a pile of medical bills for surgeries, nursing, drugs and physical therapy, and his career as a camerman is over.

Prickett filed suit in California's Superior Court, claiming gross negligence by Bare Sports, Bonnier and Warren Miller Entertainment for, among other things, failing to select a safe dive site, not checking their contractors' dive experience and training in nitrox or dive computers, and sending them overboard alone into a deep, dangerous current without any markers or signaling devices.

During the police investigation, Bernard said he was unaware Falk and Prickett had gone down after changing out a mask, but that didn't stop him from continuing his dive -- a violation, per French Polynesia law, of his role as divemaster to supervise all divers and make the group surface. Bernard said he thought he was in the presence of experienced divers, and that Prickett had 25 years of experience. Prickett said he was only a standard openwater diver, and his 25 years of experience was as a surfing cameraman. Falk had less than 15 dives, none from a boat, none drift diving, and none with a diving computer. And despite Bernard having set a dive profile for 80 feet, he brought Miyamoto, who only had less than five dives and was only certified to 60 feet max, down to 130 feet.

Bernard admitted he hadn't told the three divers beforehand that they were going to breathe nitrox. What's more, a dive expert who checked the gear testified that Falk's computer had been calibrated for a 31-percent breathing mix while the actual breathing mix was 32 percent. That would cause the dive computer to register a deeper maximum depth than the depth required by the actual mix used. Falk's hyperoxic threshold was surpassed by as much as 260 percent. The same applied to Prickett's computer, but it indicated he was making an air dive, not a nitrox dive.

Because Bernard had programmed both of their computers, and set one to display depth in feet, the other in meters, this added to the two divers' confusion underwater. The dive expert also testified that the dive profiles recorded by Bernard's and Clement's computers showed totally different dives than the three other divers, a sign that they had been independent and had not dived the same dive. They had not been under divemaster supervision.

To top it off, investigators found that certification cards of most Top Dive's instructors were no longer valid, due mostly to their not having medical check-ups. Furthermore, the dives recorded on their computers grossly surpassed the depths to which openwater dive clients are permitted to descend. Top Dive's records showed that they frequently had more divers in groups than were permitted.

Bernard was indicted by Tahiti's criminal court in January 2013 for the many errors he made on that dive. The trial has been postponed until later this year. Currently, he and Clement are still listed on Top Dive's website as running its Rangiroa dive operation.

Back in California, Prickett's civil trial started last December. Experts called in to testify opined that the parties involved in the making of the film did a poor job in pre-planning and failed to hire experienced divers who knew what they were doing.

"Bonnier and, through their subsidiary, Warren Miller Entertainment, were the ones that selected everybody who was going to be involved in this," Bret Gilliam, a defense dive expert witness for Bare Sports (and an Undercurrent contributor) testified during the November 2014 pre-trial deposition. "What they did was basically made a poor selection. The Top Dive unit wasn't properly prepared or qualified for what they were being asked to do. They didn't have the proper equipment or the proper protocols for supervision and response, and they had no aspect of foreseeable contingency protocols in place. In addition, the supervisory role that should have been played by some members of the Top Dive team was essentially omitted completely because they tried to use Nicolas Bernard and Audrey Clement as diving supervisors when, in fact, their primary role was trying to serve as on-camera talent. It's a hopeless contradiction. It doesn't work."

But Bonnier and Warren Miller Entertainment hold the ultimate responsibility, because no one on their teams for the Bare Sports film had a diving background. "They seemed to think this was something they could do just like they might do a surf film or a ski film," Gilliam testified. "I don't think they were capable of assessing Top Dive." In fact, Top Dive ultimately was chosen by the Tahiti Tourism Board because they were willing to swap their services for nothing, only film footage.

"I've been involved in scores of filming projects . . . ." Gilliam testified. "We're trying to get the most qualified team who thoroughly understands not only the responsibilities . . . that support getting the project done, but also the necessary response and protocols for contingencies, foreseeable hazards, how they're going to respond to that. From what I can see, every step of the way here, we have no one who really was capable of making that assessment. Willison, who identifies himself specifically as the producer and director, has no diving background whatsoever. I don't see how they could have made any evaluation because they they didn't know what they were doing."

The trial lasted five weeks. Then on January 13, the second day of jury deliberations, Bonnier, fearing the verdict wouldn't go its way, decided to settle. Prickett later allowed the settlement documents to be unsealed, and court records showed that Bonnier paid $7.5 million to Prickett, with Bare Sports paying another $300,000. That amount is the most on record paid out for a dive-related injury case. While it goes a long way toward compensating Prickett for losing the profession he's had for 25 years, it came at the tragic expense of his health -- and through the malfeasance of companies that should have known to hire the right people to make an underwater film in a strong current.

-- Vanessa Richardson

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