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August 2015    Download the Entire Issue (PDF) Available to the Public Vol. 41, No. 8   RSS Feed for Undercurrent Issues
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Aqua Lung Facing a Class-Action Lawsuit

for faulty dive computers somebody else made

from the August, 2015 issue of Undercurrent   Subscribe Now

Ralph Huntzinger, a diver from San Diego, filed a lawsuit in May against Aqua Lung America, alleging the software on some dive computers it distributes in the U.S. can malfunction, giving inaccurate information and thus making them life-threatening. According to the complaint he filed in U.S. District Court for the Southern District of California, Huntzinger is seeking class-action status, and wants more than $5 million in damages, plus court costs, for all affected buyers.

The computers he claims to be faulty are all Suunto computers; Aqua Lung, headquartered in Vista, CA, is the sole U.S. distributor for them. They include some Cobra models, Vytec models, Vyper and Vyper Air models, some D4, D6 and D9 models, the HelO2, the Gekko and the Zoop. When a permanent malfunction occurs, the computers report incorrect depths, show "self-dive" or indicate a dive is occurring when it's actually not, report incorrect air time remaining and/or incorrect air tank pressure.

"As an authorized repair facility for the dive computers, [Aqua Lung] is acutely aware of the defective software and/or hardware," Huntzinger's complaint states. "In fact, the defect is so well known to Aqua Lung that when a dive computer comes in for repair due to malfunction, its only attempt at repair is to replace the battery." If the computer continues to malfunction and is still under warranty, it's replaced with a new one because the defective software/hardware can't be repaired, but that replacement still contains the defective software and/or hardware. If the computer is outside of warranty, Aqua Lung simply tells the customer that there is no repair. Apparently, the computer defect is so prevalent that the ordinary two-year warranty for Suunto computers was extended to five years for problems related to self-diving, incorrect depth readings, tank pressure and temperature, but Aqua Lung didn't publicly state that it extended the warranty.

"This leaves consumers feeling as if they have fully repaired and functioning dive computers, when in reality the new computers suffer from the same defect and can similarly malfunction during a dive," the complaint states. "Despite knowing about these dangers, Aqua Lung does not warn consumers, or even the Consumer Product Safety Commission of the defects . . . Instead, [it] continues to expressly and impliedly represent that the Dive Computers are well-designed, properly manufactured, and safe for their intended use."

Huntzinger bought a Suunto Cobra 3 computer on the LeisurePro website in May 2013, but "had he known it was unsafe and unfit, he would not have purchased or used it," the complaint states. While it doesn't state whether Huntzinger found out his Cobra was defective during a dive, the complaint says he "suffered injury in fact, and lost money or property as a result of [Aqua Lung's] unfair business practice." Huntzinger's complaint states there's at least one reported death as a result of a malfunctioning Suunto computer during a dive. On December 10, 2010, Pamela Seigman was diving with a new Suunto Cobra 2 for the first time near the Hawaiian island of Lanai. During her second dive and unbeknownst to her, Seigman's Cobra failed to display the correct pressure remaining in her air tank, and failed to sound alarms that the manual states it was supposed to. The Cobra reported substantial air remaining when, in reality, she was out of air. Seigman died from asphyxia due to drowning. The Coast Guard investigation concluded that she died as a result of "equipment failure." When Aqua Lung later tested Seigman's Cobra, it malfunctioned and displayed an "ER 1" code, indicating that it was defective and unrepairable. Huntzinger isn't seeking personal injury damages for himself, but wants the $5 million to be split among him and other affected customers, which he believes to be in the thousands. However, Aqua Lung only distributes the Suunto dive computers in question, it doesn't make them. So does this lawsuit have any relevance because it's not the manufacturer? David Concannon, a trial attorney in Wayne, PA, who litigates diving accident cases, says Huntzinger may have a case. " California law holds the distributor and everybody in the "stream of commerce," i.e., the manufacturer, distributor and retailer, equally liable for injuries in a product liability case. The concept is called 'strict liability,' and the law is the virtually the same in every state."

On July 10, Aqua Lung struck back, filing a motion to dismiss Huntzinger's case. The main reason: Huntzinger never says his Cobra 3 ever malfunctioned, or that it was serviced or replaced by Aqua Lung. Because he alleges no direct injury, his complaint should be dismissed on this basis alone.

Other reasons for dismissal include the claim that Huntzinger has no standing under the U.S. Constitution to make claims on the diverse array of models, which includes some that were discontinued and haven't been sold in the last six years, putting them beyond California's statute of limitations of three to four years. Also, the Suunto models in question have significant differences in design, components and features (e.g., the Cobra 3 attaches with a hose to a tank to monitor air pressure, while the Zoop is worn on the wrist and doesn't read tank pressure at all).

Aqua Lung also says this also shouldn't be a class-action case because claims would have to be litigated under the laws of all 50 states, and California law may not be applied to claims of divecomputer buyers in other states. "Thus, the complaint should be dismissed . . . due to Huntzinger's improper attempt to raise claims on behalf of purchasers of numerous other, substantially different dive computers which [he] never purchased himself, and for the advertisement of which he never relied or suffered any pecuniary damage."

Timothy Blood, partner of the San Diego law firm Blood Hurst & O'Reardon, which is representing Huntzinger, told Undercurrent that motions to dismiss are routinely filed and expected in cases like this, but he doesn't expect Huntzinger's lawsuit to go away. A hearing on Aqua Lung's motion to dismiss is expected soon.

Ironically, although it's probably not related to this lawsuit, Aqua Lung and Suunto are parting ways at the end of the year. Huish Outdoors, which owns dive gear brands Zeagle Systems and Atomic Aquatics, will take over the distribution of Suunto dive computers in the U.S. starting January 1. A source at Suunto U.K. told us, "Aqualung wanted worldwide distribution of Suunto products. Amer Sports, Suunto's owner, was not prepared to acquiesce to that." An official statement on Aqua Lung's website verifies that, stating, "Aqua Lung's goal to have a global presence in dive instrumentation lead to our eventual decision to part ways . . . Concurrently, we have been working to develop our initial range of Aqua Lung brand dive instruments." Aqua Lung will start giving details about the new products in September, and expects to start selling them in January, right after its contract with Suunto expires.

- - Vanessa Richardson

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