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March 2015    Download the Entire Issue (PDF) Available to the Public Vol. 41, No. 3   RSS Feed for Undercurrent Issues
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Dead Diverís Wife Sues a Shadow Diver Star

grief and greed made this case go on too long

from the March, 2015 issue of Undercurrent   Subscribe Now

We've written many stories about how the deaths of divers have a big impact on the families they leave behind. The death of a loved one often does funny things to people's logic, emotions and common sense. And when a lawsuit results from grief and sorrow, all bets are off. Sometimes a person sues everybody he or she can imagine for the death of someone they cared about. And sometimes people are just plain greedy. Today, lawyers often sue everyone with the slenderest of connection to the death, in search of deep pockets.

For David Concannon, the defending attorney in this lawsuit, it was one of the craziest, wild cases he's been involved in during his 25-year career. "The plaintiffs' attorney sued everyone he could possibly think of, and allege everything he could think of," he says. "It was a spray-and-pray, shotgunstyle defense."

On July 30, 2008, Terry Sean DeWolf, 38, was one of a group of people diving at the Andrea Doria wreck, 50 miles off the coast of Nantucket, MA, and 230 feet down on the ocean floor. The Italian luxury liner, which sank in 1956, is popular with divers, not only because of the technical challenges it presents, but also because it is considered a trophy dive: The wreck, now deteriorating rapidly, is dotted with relics such as embossed china cups and dishes. But it is also considered the Mount Everest of diving, a perilous plunge that, including DeWolf's death, has claimed the lives of 16 divers.

DeWolf, a diver for 20 years with at least 100 technical, deep-compression dives under his belt, was one of 10 divers on the M/V John Jack that sailed out of Montauk, N.Y., toward the wreck. Richie Kohler, a veteran technical diver who had gained fame from the book Shadow Divers and then from co-hosting The History Channel's Deep Sea Detectives program, was aboard as the trip leader, having chartered the John Jack as part of his 2008 Andrea Doria Expedition. DeWolf signed a liability waiver that eliminated any claims against Kohler, thus he expressly assumed the risks of diving the wreck.

DeWolf successfully completed the first day of diving. On the second day, he entered the water at 7:50 a.m., but did not resurface at the expected time around noon (a lot of decompression time was required). He was found lying on his back at 235 feet, his rebreather mouthpiece not in his mouth and the breathing loop open, weights still in place, and alternate air sources not deployed. His body was recovered 10 hours after he went in the water. After examining tissue samples of DeWolf's heart, the medical examiner in Suffolk County, NY stated that DeWolf died of natural causes, namely a severe case of myocarditis, infection of the heart muscle. That condition caused DeWolf to have a heart attack as soon as he went underwater, lose consciousness and sink like a stone.

"Even at closing arguments, it wasn't clear what allegedly
killed DeWolf, other than it was Richie Kohler's fault."

DeWolf was survived by his wife Tammy and three teenage daughters. Two years after her husband's death, Tammy hired attorney David "Mac" McKeand to file suit in Texas on behalf of herself, DeWolf's estate, and their children. Tammy asserted claims against five defendants: The John Jack; Kohler; A&E Television Networks (the cable network that carried the History Channel, on which DeWolf had watched Kohler on his show Deep Sea Detectives); ITI Holdings, Inc, the company that owns the TDI dive training agency from which Kohler got his credentials as a dive instructor; and Lamartek, which manufactured the Dive Rite rebreather DeWolf was using on his fateful dive. Tammy also sued DeWolf's dive instructor and that man's dive shop, but they later settled.

The New York-based owners of the John Jack didn't respond to the suit (the owner had died and the boat was then sold), but the judge dismissed them as a defendant due to lack of jurisdiction. A&E Television Networks also stated it shouldn't be a defendant, because it had no connection to Texas or to DeWolf and had no affiliation with Kohler's charter. In her affidavit about why A & E should be a defendant, Tammy stated that she and Terry "first learned of Richie Kohler" from watching its show Deep Sea Detectives at their Houston home, DeWolf would not have heard of Richie Kohler if Kohler had not been on the show, and based on the show, she thought Kohler was highly qualified. The judge disagreed with her, and dismissed both A&E and ITI Holdings, owner of TDI.

In defense of its Dive Rite rebreather, Lamartek replied that Tammy wasn't diligent in following up with authorities after her husband's death. On August 1, 2008, the day after DeWolf died, the medical examiner tentatively concluded that he had drowned, and also arranged for his dive equipment to be inspected. But it wasn't until April 21, 2009 that McKeand called their office to follow up, saying that "the statute of limitations against the product manufacturer is running out." Two weeks later, Tammy called the medical examiner's office herself to say she didn't want DeWolf's equipment sent anywhere yet, but would "reflect on this information before deciding where she wants the equipment sent." DeWolf's dive gear remained in the evidence room, until August 2010, when staffers finally shipped it to Tammy.

Why did Tammy and McKeand wait so long to get DeWolf's dive gear? Concannon believes he knows. "McKeand spoke to other lawyers who have handled rebreather death lawsuits, and I am certain they told him that he didn't want the dive computer, saying something like, 'If you don't think it's useful, then don't get it from the medical examiner. Tell them to keep it because the battery will die and data will be lost, but it won't be your fault because you don't have it.'"

McKeand charged a variety of confusing and often conflicting arguments against Kohler at trial. For example, he said Kohler did not earn his instructor certifications, even though Kohler didn't need to be certified to lead the expedition, and DeWolf never received any scuba instruction from Kohler -- he already held all of the certifications that Kohler was certified to teach.

McKeand never picked a theory for his case, says Concannon. "Throughout the trial, he was saying it was not clear how DeWolf died. He never said anything about the medical examiner's ruling of myocarditis, but he listed other reasons -- defective rebreather, lack of experience, negligence, he had a mild case of myocarditis, then he didn't have one. He wanted to argue that DeWolf got lost or was unable to surface, not that he had a heart attack and dropped. Even at closing arguments, it wasn't clear what allegedly killed DeWolf, other than it was Richie Kohler's fault."

During the trial, Kohler testified that when DeWolf's body was recovered, he looked at the dive profile on his dive computer, which showed that DeWolf had moved laterally near the surface for a minute or two, then stopped moving and dropped straight down to the ocean floor, where he remained until his body was discovered eight hours later. Kohler had asked for the dive computer, but it had never been produced. In his closing argument, Concannon referred to a medical examiner staffer's testimony that he had shipped the dive computer to Tammy, plus testimony from one of Tammy's relatives that Tammy received the dive computer and put it in her car.

After a six-day trial, the jury took just one hour to return a unanimous decision that DeWolf was entirely responsible for his own demise. A month after the trial, the judge said the liability release DeWolf had signed applied to the case. That means the case should have been dismissed right off the bat. But DeWolf's widow, who appealed many times during the trial to have the judge reconsider rulings, didn't want to let those results stand. She brought an appeal last year, alleging a variety of errors in the trial court's rulings and its conduct of the trial.

But after reviewing the trial records, the Texas Fourteenth District Court of Appeals concluded that the trial court didn't make any errors, and that Tammy was often "not diligent in investigating and pursuing her potential claim." For several reasons, the appellate court overruled Tammy's appeal and re-affirmed the original judgment in favor of Kohler.

In his statement about the Kohler case, Concannon wrote, "Throughout the case, there was nothing but sadness and compassion for the diver's family. However, discussion with the jury after the verdict revealed they had little sympathy for the diver's wife. There is no doubt in my mind that this case began at the intersection of grief and greed, and it proceeded from there."

And it's not over yet. Concannon told Undercurrent that Tammy and her lawyer will probably appeal to the Texas Supreme Court. Stay tuned.

-- Vanessa Richardson

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