The Use of Trial Exhibits by Expert Witnesses in Litigation
I did an article for Undercurrent called “Anatomy of A Diving Lawsuit” in 2009 that dealt with the analysis of a specific single case and trial that I worked on as the defense maritime and diving expert. This involved the disappearance of two divers at Cocos Island, nearly 500 miles offshore of Costa Rica. This is follow up piece that expands the narrative. A key thing at trial is being able to use exhibits during testimony to help the jury understand complicated facts, theories, and the geography on an area where an accident or fatality has occurred.
It’s a complicated process and most trials end up being won by primary expert witnesses during their live testimony. Doing the “grunt” work on the files is fairly routine but takes time and a bit of careful strategy in coming up with a defense posture that can play effectively to a judge or jury. But there is nothing like the pressure of a live deposition or trial wherein the absolute necessity for extemporaneous and calculated quick thought plays such a vital role. As an expert witness, it is impossible to fully anticipate where the cross-examination will go, what ploys are attempted by opposing counsel, what tactic to deceive you about the actual evidence or prior testimony may be taken, etc. It is a very stressful role to play as you must not only protect the defendants’ conduct with sometimes very extemporaneous responses, but also remember to maintain control and speak to the jury as a credible, likable, and professional witness in whom they should place their trust to explain the complicated facts and nuance so they choose to favor your opinion over that of the opposition. It is an arena that few people do well in and requires a tremendous degree of control and spontaneous thinking with no room for error. I’ve described it before as the equivalent of an “intellectual gladiator pit”. That sums it up pretty accurately.
If given the proper tools and time for preparation, there are few trial lawyers who can cross-examine me without actually hurting themselves in the process. For years, I’ve been able to make more points sometimes during cross than in direct testimony and this is not lost on the jury when opposing counsel gets his ass clobbered when he least expects it. That ability to think quickly and respond effectively to gain the advantage is what wins cases.
The pressure of depositions and trial work for an expert is difficult to fully articulate. But lawyers even occasionally ask themselves if they would like to place themselves on that line of fire. Even they don’t experience that pressure since they are not cross-examined. It’s a very surreal experience and only a handful of professionals are consistently successful at it. So far in my career (specializing exclusively in diving and maritime litigation), I’ve done 247 cases. I’ve yet to lose at trial. That’s a pretty tough record to equal. There are many “experts” who also tend to taint their credibility by almost exclusively doing either defense or plaintiffs sides as their “specialty”. You may have heard the term “plaintiff’s whores” applied to some “experts” whose entire careers have been devoted to selling themselves to those who are prosecuting the case on behalf of those suing for damages. The same term gets applied to those who only do defense work. This is usually brought out at trial and tends to immediately damage their credibility. It doesn’t help them that these types are also advertising in legal journals and running recruitment web sites.
In my career, my case load is nearly exactly evenly split between plaintiff and defense work. And I don’t advertise or even have a web site. All my work comes from referrals or my reputation from other trials that can be researched by lawyers on such things as WestLaw or Lexis. If I don’t absolutely believe in the conduct of a defendant or the facts that suggest that negligence did occur and a lawsuit is justified, I turn down the case. Because I am so extensively published on diving and maritime operations, medical and safety protocols, risk management, and all other issues involving these industries as well as having my expert opinion taken in hundreds of sworn depositions and trial testimony, I can never take a case that would be counter to prior opinions. That would give the other side cause to “impeach” my testimony and lessen its influence on the jury. So I sometimes end up turning down cases where I am actively solicited since my opinions and “moral compass” will not allow me to support their side. Like I said… it’s complicated. Especially if you believe in ethical behavior. That’s lacking a lot in litigation from my perspective.
Now to specifics and how trial exhibits have been practically, and successfully, applied to win cases.
Double Fatality at Cocos Island: defense maritime and diving expert
The above exhibit was derived from taking an actual satellite photo of Cocos Island and having a graphic artist produce a drawing that replicates it showing latitude and longitude as well as the island’s mountainous topography and the relative position of Dos Amigos Pequeno (the accident site) from the dive vessel’s anchorage in Chatham Bay, about eight miles away. The accident site was located off the main island’s west side and VHF radio communications to the dive boats was blocked by the high mountain. Since none of the jury had ever been there, these exhibits help them to understand the geography, currents, relative positions of the dive site to the support vessel, etc. during my live trial testimony. These are projected on large screens for their simultaneous viewing.
This exhibit shows another satellite photo of the small pinnacle where the dive took place. You can clearly see the impact of the seas as they strike the face of the pinnacle and deflect to wrap around it. The graphic then shows the actual direction of sea swell and prevailing current. It also shows the area on the south side of the pinnacle where almost complete calm water and no current exists. This was the planned pick-up zone for divers as they completed their observations of schooling shark activity on the north side and then rode the current around to the protected lee for recovery by the dive launch. All divers, except the two who disappeared, completed the dive and were picked up immediately upon surfacing in the lee zone. The two who disappeared were not see at all by the others and their disappearance remains a mystery. But the facts suggest that they died underwater and never surfaced. Since they were diving independently and not being guided or involved in supervised instruction, they were responsible for their own conduct underwater.
This exhibit shows the ocean current set and drift and what would happen to a diver or object on the surface if they came up and simply drifted. The current would have tended to push them within easy reach by swimming (less than 100 yards) of the southwest corner of the island. The current then wraps around the island and moves to the east making it even more likely that divers would simply have been brought to the south beach area unharmed. Since no trace of them or their bodies were found underwater or on the island, my argument convinced the jury that their deaths occurred underwater at the Dos Amigos Pequeno site. This shut down any arguments that the defendants (the divemaster, the vessel, the captain, etc.) failed to do a proper search & rescue in the aftermath. You can’t fail to do such an operation if no one comes up to find.
This graphic was produced from the exhaustive reports of the U.S. Coast Guard in their own search operations that lasted seven days and involved surface vessels, aircraft, helicopters, and manned high speed boats to canvas nearly 2000 square miles of ocean. The only trace ever found of the divers was a dive tank and a surface sausage float that had not been inflated. My testimony was that it was beyond any credible belief that such items would have been jettisoned by divers if they were drifting on the ocean surface and hoping to be found. A tank provides both positive buoyancy, low pressure air for Dive Alert whistles, and the ability to inflate a BC. The tank had over 500 psi remaining and therefore was a valuable safety tool for a diver. No other traces of the divers were ever found. It is more likely that one diver had an out-of-air emergency and they suffered the typical double fatality that has been statistically the case in so many scenarios. More likely than not, the tank and safety sausage either came apart during the underwater struggle and floated to the surface while the two divers sank to the deep bottom… over 1000 depths near the pinnacle.
The trial lasted two weeks. I was the last to testify and I was on the stand all day… nearly eight hours for both direct testimony and cross-examination. The jury believed my expert opinions and returned a complete defense verdict with no award for damages. It was a remarkable victory for the defense in a highly publicized and emotional case.
Diver Death During Training in Alaska: Plaintiffs’ diving expert
The above graphic is a dramatic illustration of the site where this
fatality occurred in Alaska. An instructor and one student were to
dive this wreck to a maximum depth of 110 feet for 20 minutes. This
shows the exact bathymetry of ocean bottom contours and topography
along with the outline of wreck laid over the ocean bed. The wreck is
in close proximity to shore and only submerged about five feet deep
at its stern. The bow is in nearly 120 foot depths. This gives the jury
a very clear overview of the site, its location near the shore, and the
various depths involved.
This case had multiple issues of negligence directed at the supervising instructor who allowed his student to run completely out of air during a training dive. This was even worse for the instructor’s conduct since it was just him and one student… no issues of trying to look after more than a single diver. After the diver ran out of air and made a panicked ascent, the instructor failed to share air or establish the student’s buoyancy on the surface by inflating his BC. More negligence was evident since the instructor insisted the student wear his weight belt under his BC waist and crotch strap so it could not be dropped. Although they were only a short distance from shore, the instructor decided to let the student sink beneath him and desperately try to cling to the instructor’s extra regulator second stage… only by his teeth… while being towed by the instructor on the surface. When the student became exhausted from such an ordeal, he finally lost his bite grip on the mouth piece and sank in less than ten feet of water. He was totally helpless since he was grossly overweighted by the weight belt that could not be dropped and completely out of air. Instead of diving down to rescue his student, the instructor (who had plenty of air remaining in his own tank) swam to shore. He then removed his own equipment, walked up the beach, and swam back out to the dive boat. He then called the Coast Guard and sat there for nearly two hours before rescue teams arrived. His excuse was that he couldn’t see the helpless student on the bottom… less than ten feet below him. At that point, he would have been easy to recover and bring to the surface. Instead, the instructor abandoned him to certain death by drowning.
When the rescue team arrived and the instructor directed them to the position where he had last seen his student, they went there and immediately could clearly see the body from the boat. They didn’t even have to get in the water. So the issue of vertical visibility was a huge factor in determining negligence and liability… not to mention the issues of the instructor’s overall truthfulness in a series of statements and testimony wherein he contradicted himself repeatedly.
I decided the best way to show the jury what the instructor had really seen was to return to the exact site under the exact same tidal and visibility conditions and place a mannequin (equipped exactly as the deceased diver) on the bottom in the same depth of water. I then photographed that “body” from the perspective that the instructor would have had from the surface of the water. The above photo shows the life sized mannequin ready to be deployed from my support boat into the ocean and placed on the bottom.
Since the exact location of the body recovery was in the USCG reports and rescue team records, I knew the exact location to place the “body” to re-create the scene. Before putting the “body” in the water, I photographed the support boat’s chart plotter and GPS as evidence that I was in the exact same location.
I then placed a surface buoy marking the exact location and showing how close to shore the helpless student was when the instructor abandoned him. The distance was less than 50 feet to the rocky beach.
This other photograph shows more perspective on the body location by providing scale with a person standing on the beach and showing another vessel in the background. The body was in nine feet of water when the instructor abandoned his student. The depths rapidly decreased to less than four feet deep in only 20 feet of linear distance to the shore. In my opinion, even a neophyte diver could have effected this rescue. The instructor involved had over 40 years of experience.
This view shows the “body” clearly visible in ten feet of water. I then had an assistant diver move the “body” progressively deeper in ten foot depth increments to clearly show that the student would have been easily visible and able to be swiftly recovered in far deeper depths.
This photo (taken from the just beneath the surface where the instructor’s point of view would have been) shows the “body” clearly visible at 50 foot depth.
These photos completely impeached the instructor’s credibility and testimony that he could not see the student in less than ten feet of water. I testified over the course of two and half days as the plaintiffs’ expert. The case settled (to the satisfaction of the widow and children) a day after I testified. The trial was halted at that point before the plaintiffs’ case was even completed.
The following press release came out in the trial’s aftermath:
Alaska Wrongful Death Suit Against PADI Instructor Settles Mid-Trial
Plaintiffs Reject Million Dollar Settlement Offer Prior To Jury Selection
Released on: 8/30/2011
A lawsuit filed in Kenai, Alaska has been settled on a confidential basis during the third week of a jury trial against PADI instructor Robert Hicks and his employer Alaska SeaLife Center.
The suit alleged that Matthew Myers, a student training in Hicks’ self-created Scientific Diving Course@ at the SeaLife Center died when he ran out of air during a deep dive, and was later abandoned by Hicks in nine feet of water approximately 30 feet from shore. Myers had been seriously overweighted and was being towed with Hicks’ regulator second stage mouthpiece in his mouth while underwater, with Hicks swimming above him on the surface until Myers dropped off. Hicks proceeded on to shore, then returned to their dive vessel anchored a short distance away and called for help, which arrived over one hour later, but remained on the vessel.
Myers left a widow and two small children, who were represented in trial by Anchorage attorneys of Phillip Weidner and Cristina Weidner Tafs, together with noted Divelaw attorneys, Michele Nelson Bass and Rick Lesser.
Freediver Death During School Cruise in Hawaii: Plaintiffs’ diving and maritime expert
This case involved a high school teacher who accompanied his students on a small expedition-style vessel (145 ft. long) for a trip around the islands of Hawaii. He engaged in freediving at an area off Lanai Island (west of Maui) adjacent to a rock formation known as Shark Fin Rock. In this area, the east side of the rock features shallow depths (15-25 feet) and is protected from current. However, the ship had their crew place their large inflatable launches to a mooring site on Shark Fin Rock’s west side where the area had an immediate precipitous drop-off and a strong current. The liability issues included whether this was an appropriate site, the fact that no staff accompanied the deceased, and then the boat crew failed to respond adequately when he passed out underwater. It was necessary to scramble other crew from the main ship since no scuba gear or oxygen units were aboard the launches. The deceased may not have been aware of the deep depths proximately to his entry point and that he would not have any crew support.
This first photo shows the bay on the west side of Lanai with Shark Fin Rock clearly shown. The orange inflatable is provided for scale.
Another view of Shark Fin Rock showing an inflatable boat taking tourists snorkeling in the correct area.
This re-creation of a NOAA nautical chart had to be completely redrawn to show accurate scale of the area. Shark Fin Rock appears as the small “island” to the left (west) of bay north of Palaoa Pt. This also shows the depth contours clearly and how close the ten fathom (60-ft. depth) line runs right to the edge of Shark Fin Rock.
This graphic reproduces a “look down” image in more detail of Shark Fin Rock and how the two inflatable launches were moored. The first boat was moored with its bow barely over a tie-in point in about 30 foot depths. However, the bottom then swiftly dropped off so that snorkelers entering the water were actually in 60-70 foot depths with a drop-off falling away sharply.
This photo shows the underwater topography and its steep drop-off with a diver included for scale. The deceased entered the water in this area and began freediving. He apparently was not advised of the deep depths, drop-off contour, and current that tended to sweep him into deeper water. He suffered an episode of latent hypoxia (sometimes called “shallow water blackout”) during his ascent from his breath hold dive. He passed out only 10 feet below the surface but no crew responded in time before he sank to a depth of nearly 100 feet and drowned.
This photo shows the position of another launch on the same mooring. The boat’s bow is over the pinnacle top in about 20 foot depths with its stern in over 70 foot depths and the drop-off falling away.
I used another diver to assume the same position of the deceased’s body in 100 foot depths where it landed on the bottom after being carried away from the mooring point by the current.
This graphic takes elements of the NOAA chart and lays in the current direction of drift showing that a freediver who entered the water would have been swept away from the rock and into deeper depths immediately.
We had another expert in the case who was a professor of Oceanography who could establish the current force and direction. He accompanied me to the site and participated in all my inspections, photography, and subsequent re-creations. In this photo, he has deployed a green dye from the launch at the mooring site to show the direction of current drift. We then timed the drift and distance traveled to get the current’s velocity.
I shot this photo looking back to Shark Fin Rock after ten minutes of the dye forming a trail that illustrates the current direction. It clearly shows that a person would be carried south-southwest into deeper water if they entered the water from that mooring at the Rock.
This excellent graphic shows the jury the “side view” that a diver could observe underwater. This illustrates the position of the launches and the immediate deep depths. The deceased entered the water from the stern of the first launch and was already in water over 70 feet deep when he apparently thought he would be in only very shallow snorkeling depths of perhaps 15-20 feet.
This last graphic shows the trajectory and final resting place of the deceased freediver’s body as it plunged from the launch and finally settled on the bottom after he passed out and the crew failed to rescue him in a timely manner. The time of his entering the water and being observed passed out beneath the surface to when rescuers got to him was estimated by various accounts to be from 8-15 minutes. Brain death from lack of oxygen occurs generally within six minutes of unconsciousness underwater with nothing to breathe.
This trial went all the way and last nearly four weeks. I was on the plaintiffs’ side representing the widow and children of the dead freediver. The jury deliberated and came back with a sizable award for them.
I hope that these three actual case examples show how important trial exhibits are to letting the jury get the feel of what it’s like underwater and on the surface of accident sites. Remember: the average juror is not a diver or a mariner so they need all the help they can get to grasp the facts and opinions of experts. Such exhibits are invaluable in giving them perspective.
I currently have 13 open case files… again nearly evenly divided between defense and plaintiffs work. My job is made far easier by using my own photography and the skills of a graphics artist to prepare trial exhibits and do the best we can to help a jury assess the facts and render their verdict.
In the end, it’s the jury who decides a case. Their job is the hardest of all.
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