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February 2009    Download the Entire Issue (PDF) Available to the Public Vol. 24, No. 2   RSS Feed for Undercurrent Issues
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Rebreather Firm Wins Its First U.S. Lawsuit

did diver error or product liability cause a user’s death?

from the February, 2009 issue of Undercurrent   Subscribe Now

In our April 2003 issue, we ran an article titled “Is the Inspiration Rebreather a Death Trap?” It focused on the inquest of an Irish diver who, while using the rebreather manufactured by British firm Ambient Pressure Diving, died within minutes of entering the water. The jury was uncertain of the cause of death, while Ambient said it was due to diver error.

The Inspiration is a closed-circuit rebreather that recycles exhaled gas through a carbon dioxide scrubber, removing carbon dioxide and injecting oxygen at preset levels. Closed circuit rebreathers are pricey (the Inspiration has a list price of $9,000) but they’re becoming more popular with sport divers and underwater photographers because they provide more bottom time at greater depth and don’t produce bubbles that bother marine animals.

At that time, 16 divers had died while using the Inspiration. Now, nearly six years later, the death count is 40. But while none of the investigations puts Ambient at fault, the manufacturer decided to stand up for itself in the first U.S.-based case of product liability filed against it. Instead of settling with the plaintiff, typically the course taken with lawsuits involving dive equipment, Ambient decided to fight back in court.

The plaintiff was Stephanie Barrett, who was four months pregnant when her husband Robert Barrett drowned while using an Inspiration in a Bainbridge, PA, quarry on August 3, 2002. The 32-year-old dive instructor was teaching a student and had two dive buddies along with him. Stephanie, seeking $5.75 million in damages, claimed a design defect in the Inspiration caused it to stop supplying oxygen after two minutes, when Barrett was 15 feet deep. Then, as is typical in liability cases searching for deep pockets, she sued a number of other parties, from the TDI instructor who certified Barrett six months prior to his death to the person who inspected his rebreather for the police investigation. Her claims of Ambient’s breach of warranty, and unfair, deceptive trade practices were dismissed for lack of evidence, but the negligence and product liability claims sat on the table and went to trial in New Hampshire, where Stephanie lives, in November 2008.

Ambient hired David Concannon, a lawyer in Wayne, PA, as trial counsel. He traveled to four countries and seven states to gather evidence to present to the jury. He even got Inspiration rebreather-certified and repeated Barrett’s last dive eight times in the Bainbridge quarry. Concannon told Undercurrent that the plaintiff’s attorneys “never visited the scene of the accident and never made any effort to interview any witnesses until three years after they filed the case. When I went to the dive site, I talked to the guy who brought Barrett to the shore, who said the Inspiration was turned off at the time. He had told the plaintiff’s attorneys a year before the trial, but it was never mentioned in the 300 pages of expert report that the lawyers put together.” That established the basis of Ambient’s case that the death was due to diver error.

The plaintiff’s star expert witness was Alexander Deas, manufacturer of the Apocalypse rebreather and an Ambient competitor. After tests in a pressure chamber to reconstruct Barrett’s rebreather video display, Deas testified that a combination of electronic and software failures of the Inspiration’s redundant control systems caused it to stop delivering oxygen. As a result, he claimed, Barrett passed out due to hypoxia and drowned. Deas estimated that within the first 45 seconds of the dive, the oxygen controllers disabled, and the primary and secondary power lines failed. Barrett would only have been conscious for six minutes and 20 seconds.

Inspiration Rebreather

Inspiration Rebreather

Because the Inspiration’s computer data was never recovered, it’s inconclusive how long he was conscious, Concannon argued at trial. Bill Hamilton, Ambient’s diving physiology expert and a longtime consultant to the technical diving community, disputed Deas’ methodology, saying his six-minute timeline was not scientifically valid. Deas’ six-minute estimate was further deflated when Barrett’s three dive buddies said they were together for 10 minutes when Barrett swam away as they reached the quarry floor. It was a local dive instructor who discovered Barrett’s body directly under the training platform where the dive buddies spent 38 minutes waiting for Barrett to return before they called the dive. Concannon faults them with negligence for not alerting the police until three hours after Barrett disappeared.

David Pence, diving safety officer at the University of Hawaii and one of Ambient’s expert witnesses, said Barrett failed to follow training guidelines by not reading the oxygen levels every minute of his dive. If oxygen was low, audible warnings would sound in Barrett’s left ear, in tandem with visual alerts. His dive buddies admitted they immediately went into the water without performing equipment inspections, and they didn’t see Barrett do it either. Pence also testified that Barrett was negligent by putting rubber seals on the Inspiration’s regulators, which keeps dirty water and ice out but creates a “cork-the-bottle” effect by stemming oxygen flow. Ambient includes a two-page “Do’s and Don’ts” letter with its rebreathers, which Barrett bought in June 2000, and one of the warnings is against the use of rubber seals. Barrett also used a less effective carbondioxide scrubber material not recommended by Ambient because it could cause carbon dioxide poisoning.

The eight-person jury was allowed to hear evidence of other deaths that occurred with the Inspiration, but Ambient also read the coroner’s verdicts, showing the rebreather was not at fault. After a two-week trial, the jury found the plaintiff did not prove that Ambient was strictly liable for Barrett’s death, and the judge dismissed Stephanie Barrett’s request for a new trial. “If the rebreather was not turned on when it came out of the water, that’s not Ambient’s fault,” says Concannon.

Even though the trial is over, Ambient and Deas still do battle. Concannon says that Deas is trying to get his competitors eliminated from the market or force them to license his design, and he bends his facts as an expert witness. Deas still believes he was right about product malfunction causing Barrett’s death, and that Ambient tries to discredit any expert witness testifying against it in legal cases. “I’ve sat on the sidelines for too long but I’ve decided to get involved because the death rate from using their rebreathers is just too high.”

Hamilton says operator error is the case in the vast majority of rebreather deaths. “They’re due to ‘finger problems,’ in that divers press the wrong buttons. Outright failure of rebreathers is very unusual, but the diver should be trained well enough to know how to handle it.”

Bret Gilliam, a frequent Undercurrent contributor and expert witness in dive-related lawsuits (although not this one), reviewed the Barrett v. Ambient case and agrees with the jury’s verdict. “Rebreathers are not for everyone. They should belong to the truly committed divers who will use them responsibly and respect their complicated mechanisms that require vigilant observation and compliance. They are not recommended for ‘weekend warriors.’”

Now, another case involving an Ambient rebreatherrelated death is being prepared in Los Angeles. Concannon says the facts are nearly identical to the Barrett case, and Alexander Deas says he may again be an expert witness for the plaintiff.

- - Vanessa Richardson

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