An Open Letter of Personal Perspective to the Diving Industry by NetDoc

[Wookie]

Well, $800k to save your @ss vs the potential cost associated with losing it is potentially a pretty good spend.

As to explain why PADI (or any organization) does what they do... my guess is no more likely to be accurate than anyone elses.

Oh, I understand the initial $800k. I don't understand coming back in on the plaintiff's side. (Really, I do, I just want other folks to think about it too).

 

[RJP]

But if Mr. Hornsby was willing to use that data to show how much safer their DSD program is compared to other non-DSD diver samples, I simply adjusted for the bias of data based on one (two including pool) dive versus data based on doing multiple dives and the results paint a very different picture.

Hornsby compared two sets of EXISTENT data... which you early claimed was a flawed analysis. Yet somehow you were able to "simply" adjust an EXISTENT set of data (which you consider to be flawed) in order to make any meaningful comparison to a NON-EXISTENT set of data?

 

[redacted]

Hornsby compared two sets of EXISTENT data... which you early claimed was a flawed analysis. Yet somehow you were able to "simply" adjust an EXISTENT set of data (which you consider to be flawed) in order to make any meaningful comparison to a NON-EXISTENT set of data?

Actually, it was 4 or 5 sets of data but that is not the point. The data were not the problem. It was deaths per 100,000 PARTICIPANTS in a number of groups (DSD, DAN, etc) and did show less in the DSD group than in other groups (all certified divers). The problem is the comparison was between the DSD group that only does one dive (plus pool maybe) with the other groups (all certified divers) doing many dives. If you estimate the number of dives a certified diver has done (10, 100, more?) and make that adjustment, then it is fairly clear that DSD experiences more deaths per 100,000 DIVES despite the extra safety precautions it takes. To me, that suggests it might be beneficial to review those safety precaution. Or, I guess we could just write it off as the nature of DSD and forget it.

The analysis was flawed, not the data, leading to a misleading conclusion.

 

[boulderjohn]

About two years before this, PADI was involved in a case that you would have thought did not involve them at all. Two DMs acting on behalf of a dive club called the roll at the end of the first dive of a three tank boat trip and failed to notice one of the divers was missing. They continued to miss him for the rest of the day as he drifted about the sea before being found. It is fortunate that he lived. It's hard to imagine how PADI could have been included in the suit, but they were included on the theory that the DMs were "agents and/or employees" of PADI. PADI stayed in the suit until the end, and they ended up being held liable for $2 million in damages.

From that point on, PADI started making it clear in liability releases, etc., that the individual instructors working with divers are neither agents nor employees of theirs.

In this case, they were included in the suit, with the complaint saying that the instructor was "an agent and'or employee of PADI."

With what happened before, it is easy to see why they would want out of the case.

But what was the instructor going to argue in his defense? He was going to argue that it was not his fault. He was going to argue that the PADI standards forced him to do unsafe things. He was going to throw PADI under the bus. With PADI out of the case in an early settlement, they would not have been able to respond.

So, what should they have done in that situation?

 

[RJP]

Oh, I understand the initial $800k. I don't understand coming back in on the plaintiff's side. (Really, I do, I just want other folks to think about it too).

I don't believe they are "on the plaintiff's side" but rather "on their own side." In settling out of court they really had no choice but to include the following in the settlement agreement:

"Even though PADI is settling, it maintains and believes that Claimants are correct that defendants Blue Water Scuba, Lowell Huber, and Corbett Douglas acted improperly and were the primary if not sole cause of this tragic event. PADI desires and intends to remain a party to this action to the extent the court will allow in order to defend the professional reputation of PADI and to defend and represent PADI employees and agents who may be witnesses in this action."

As I understand the law, the fact that PARTY A settles out of court does not prevent PARTY B from continuing to assert a defense that PARTY A is actually at fault. That being the the case, even though the plaintiff has settled their case against PARTY A, PARTY A still remains at risk of essentially being found at fault as a result of the same plaintiff's case against PARTY B should PARTY B prevail by convincing the jury that PARTY A was at fault. Sure, PARTY A would not be on the hook for damages in that case... but they will have effectively been hit with a much higher penalty as there would now be precedent establishing a defect in PARTY A's product.

Frankly (see what I did there) you can evaluate the relative strength of the civil case against any defendant through the plaintiff's actions simply by looking at their willingness to settle:

Rule #1 of being a plaintiffs' attorney: "Settle anything and everything you can, then move on."

Rule #2 of being a plaintiffs' attorney: "If your case against a particular defendant is weak... see Rule #1."

 

[Wookie]

Well, PADI is settled out, and have no more liability in THIS CASE. They could take 100% of the blame and it wouldn't cost anyone anything. Had Willis settled out the instructor, Blue Water, and the rest of the plaintiffs, PADI would be happy, as nothing (read:Their standards) else would be called into question, but PADI doesn't control the rest of the defendant's insurance companies. And as I've repeatedly said, this whole thing is about insurance. Had Willis rolled over on this (and I bet they wish they had) none of these "personal perspectives", flawed and self serving as they are, would have been written, but the agent for Willis declared that he wouldn't settle any more frivolous cases. Now, the defendants lawyer, who happens to be my lawyer as well, has to use every trick in the book to win for his insurance company and client. I'd be willing to bet a fair sum that he has spent way more in hours (his associate costs me $400 an hour) than a settlement would cost. He has to win, so he's going to blame the parents, the doctor, the lake, PADI, and the good lord above if that helps him win his case. He has never lost or settled a scuba case, BTW. He's 8-0, usually involving rebreathers, but anyway. Se, since PADI is now fair game, as much blame he can shove their way is good for his client, but has long reaching ramifications for PADI. If their standards are found to be insufficient, there (I was told) are 20 lawsuits waiting for just such a ruling. So, while Blue Water and Douglas stand to take a beating, PADI stands to take a shellacking.

I'll say it again, then I'll quit posting until after the trial. This is not about a dead boy, may he rest in peace. This is about how the whole scuba business works.

 

[Zippsy]

Frank, after that post, I really don't understand what you had expected PADI to do even IF they were, in your mind, the most honorable, honest, fair organization in the world.

 

[Wookie]

Frank, after that post, I really don't understand what you had expected PADI to do even IF they were, in your mind, the most honorable, honest, fair organization in the world.

They certainly did what's best for PADI, and they can't be faulted for that. But, I won't stand by them anymore.

The question is, if we went back to before the settlement and sat in the defendants meeting and it became clear that Willis would fight to the bitter end, especially when all parties knew that the mother and a doctor had signed off the medical knowing what we know and believe, should PADI have stood firm with the rest of the defendants, or was this case unwinnable in a Utah court from the onset? And, maybe PADI could not do that, as they had expelled the instructor.

That's for far more devious minds than mine to decide.

 

[Zippsy]

Frank, thanks for the reply. I know you are not keen to continue discussing this so, hopefully, my reply doesn't entice you to. My opinion though is with the silly court system we seem to have, Willis should have settled. It sucks, based on the doctor / medical / family issue, but they should have. It wasn't a frivolous case. That is just my opinion though. Maybe I don't have as much faith in that lawyer as you do. Peace.

 

[The Chairman]

I don't know Pete,

As as I read this, and then the bulk of your posts, it becomes clear to me that you are in breach of SDI/TDI Standards, so, I have to ask, would they be doing the correct thing in dropping you from their roles? As a competent instructor, aware that you are in breach of standards, why have you not removed yourself? Seems to me you are playing the game you accuse Brian of, that being talking outside of school and without real knowledge in an effort to take advantage of the situation for your own gain.



SDI Instructor manual, a Code of Ethics:

The SDI Professional, by virtue of their voluntary membership in SDI, recognizes a responsibility andobligation to promote SDI and support the official decisions and adopted by SDI. In fulfilling thisobligation to the organization, the SDI Divers and Instructors shall:
Publicly support SDI as an organization
Make every effort to bring about necessary changes in a professional manner by direct contact withthose fellow SDI Members and Divers who are in positions of authority and responsibility.
Every SDI Member has an obligation to report violations of SDI Standards and of the Code of Ethics.
Every SDI Member should strive to set an example of professional behavior and ethical conduct in allactivities including, public speaking, articles and books, and various forms of Internet style discourse.
Unwarranted critical comment and deliberate inflammatory statements of diving is inappropriate andundesirable.

I haven't criticized SDI or it's official stance. I have criticized Carney's "personal perspective" about this suit. In fact, I think he is guilty of "Unwarranted critical comment and deliberate inflammatory statements of diving is inappropriate and undesirable." It would be unethical for them to exclude me for the very thing their CEO has done, doncha think? Ironic too.

There have been a number of criticisms about me here on ScubaBoard. I won't censor them or kick the people off of ScubaBoard for those comments. I won't let my mods do that either. Why? Ethics. Criticisms are not only healthy, but they can be seminal moments for change. Any organization that inhibits open and critical dialog is doing itself and it's members a horrible injustice. Don't be so insecure: let the narrative guide you.