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June 2016    Download the Entire Issue (PDF) Available to the Public Vol. 42, No. 6   RSS Feed for Undercurrent Issues
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$25 Million Lawsuit on Rebreather Death

from the June, 2016 issue of Undercurrent   Subscribe Now

Wes Skiles, with more than 7,000 dives, was a world-renowned underwater photographer known for his beautiful photographs of cave systems. He died in 2010 at age 53, during an ascent from an easy open-water dive, after shooting goliath grouper for National Geographic off Florida's Boynton Beach. He was using a Dive Rite O2ptima FXclosed-circuit rebreather (CCR), which he had borrowed.

His death became the subject of a $25 million lawsuit against the rebreather manufacturer, with Dustin Herman the attorney for plaintiff Terri Skiles, Wes Skiles' widow, claiming Dive Rite had produced the rebreather Skiles was using without proper testing. He stated in his opening statement, "This is about failing to do safety testing on a piece of life safety equipment."

Dive Rite states on its website, "When we created the O2ptima the design parameters were simple; keep the breathing loop as short as possible, use state of the art proven electronics, and be able to use the MicroPore Extendair cartridge without extra O-rings. In the end, we were able to achieve these goals making the O2ptima one of the smallest rebreathers suitable for cave exploration."

David Concannon, an experienced, winning rebreather trial lawyer and the attorney representing Dive Rite (actually, the real name of the company is Lamartek, which does business as Dive Rite), countered that Skiles was responsible for his own death. He argued that although Skiles was a very experienced and accomplished scuba diver, he was not certified to use the device, and he violated several safety procedures common to all divers.

The evidence also showed that Skiles was taking both a drug to treat insomnia and a narcotic painkiller. He lost consciousness and drowned when he lost his mouthpiece during an ascent from 83 feet. Key evidence was a 45-minute video of the fatal dive.

Hermann said the video showed the equipment malfunctioned - the O2ptima's oxygen sensors were supposedly blocked by water, causing their readings to freeze and deprive Skiles of oxygen until he succumbed to hypoxia. Concannon countered that it showed that Skiles made many mistakes and that the warning systems of the CCR were working but ignored. He alleged that Skiles turned off his oxygen supply, adding, "Is it because he is impaired? Is it because he is inexperienced [in using that type of CCR]?

As the trial progressed, it was revealed that key evidence -- the rebreather's oxygen sensors, CO2 scrubber canister, and Skiles' Shearwater dive computer -- had been kept by his widow and never turned over to her own expert for testing, let alone to Dive Rite.

After only four hours of deliberation, a Palm Beach County FL jury of six, including two scuba divers, cleared Dive Rite (Lamartek), of wrongdoing. David Concannon said later, "Although it was a relief to win this case, it was still sad to show that a good man lost his life because he cut corners. The case provides a valuable lesson - that complacency kills."

Lamar Hires, owner of the 32-year-old family-operated dive equipment business in Lake City FL, and a friend of Skiles said, "This is a win for the entire diving industry because people have to take responsibility for their actions."

Concannon, a diver himself who has developed a specialty in sports and recreation law, agreed with Hires' assessment that the verdict had a far-reaching impact. He said he had been getting phone calls from throughout the world about the two-week trial that unfolded in Palm Beach County Circuit Court.

"Not only was Skiles a celebrity diver, but other underwater adventurers were worried about what would happen if Dive Rite was held responsible for his death," Concannon told Undercurrent. "A verdict against Dive Rite would have destroyed this branch of the diving industry. If a company could be held responsible for someone who was not certified, not trained, was on drugs and borrowed the equipment, everyone would have been at risk. It's a high stakes game for the entire diving industry.

"Here was a man who made a name for himself making dangerous dives into caves and in sub-zero water, yet his life was snuffed out on what is known as a "baby dive" into 80 feet of water on a beautiful day. It's a sad, sad tragedy," he concluded.

Immediately after Skiles' death, National Geographic featured his photographs of the interior of Blue Hole cave systems in the Bahamas and named him 'Explorer of the Year.'

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