"Drifting Dan" Carlock wins $1.68 million after being left at sea

[Leejnd]

Perhaps, but (like most diving accidents) there was a chain of failures ... some on the part of the diver, some on the part of the boat. The boat failed to select a better site given the poor conditions. The boat failed to post a competent and properly equipped lookout. The boat failed to discern that a diver was missing before departing to the next dive. The boat recorded the missing diver as having entered the water at the second dive site. The boat recorded the missing diver as having reboarded at the second dive site. That's pretty damning stuff, considering that the boat is supposed to be run by pros, even though the diver made a series of stupid amateurish mistakes.

Actually, the DM only recorded him as IN the water for the second dive. It was when he didn't surface from that dive that they began the search - at the second site.

Just clearing up that one little piece that has been incorrectly reported. The DM didn't mark him incorrectly three times - he did it twice: once at the end of the first dive, and once at the beginning of the second dive.

I too haven't stated that correctly in earlier posts.

 

[Thalassamania]

Third time's a charm?

 

[Ken Kurtis]

I do this with some hesitation and I really don't want to get into a re-hash of the whole case but there is deifnitely some bad info going around here so I thought I'd weigh in with a few thoughts. I may also (and hopefully won't violate some TOS) do some specific replies to some specific posts.

Caveat up front: I was an expert witness for the boat & captain in this matter. I don't agree fully with the jury's findings but that doesn't mean I don't think mistakes weren't made. But I also must confess that I really do think the captin is getting a raw deal here. The diver made a number of errors that got the ball rolling and then compounded those errors by making some more, and the DMs (employed by the shop) screwed up the roll call which is certainly not acceptable.

Mikemill hit it right on the head when he said I'm not trying to absolve everyone but simply saying if the roll call had been done correctly at Eureka how long would it have taken to find him. In other words, the actions/inactions by the roll call didn't cause Dan to drift away.

Also bear in mind that I've gone through some 53 POUNDS of documents which include roughly 20,000 pages of depos, reports, transcripts, etc. That doesn't mean I have all the answers but does mean that I may know things that haven't necessarily been well-publicized. If you're getting your info from the Internet and newspapers, I guarantee you haven't gotten the full picture.

But all of this may also mean I'm too vested in the case and have lost perspective. So bear that in mind too. That all being said:

THE DMs ARE NOT BOAT CREW/EMPLOYEES
In Socal, the charterer provides the DMs and is responsibile for all diving supervision. In this case, Ocean Adventures (which is owned by a good friend of mine) was the charterer and provided the DMs. The DMs were NOT boat crew nor employed/chosen by the boat/captain. It may sound like splitting hairs but is an improtant legal distinction.

IT'S A LIVE BOAT
No anchoring, engines running. Captain is required to be at the helm. Two-story boat and deck is not easily visibile from the wheelhouse.

DAN DIDN'T HAVE A BUDDY
No ever agreed to dive with him. Dan first asked Andy Huber (second DM, named in the suit) who said he couldn't because Andy had an advanced student to dive with. Dan was rejected by a seond diver as a buddy. Dan then testified that he decided to dive with Andy anyhow and feels he communitcated that to Andy because he looked Andy straight in the eye.

DAN KICKED TO THE RIGS WITH A LARGE GROUP
This is also common practice on this dive. This doesn't mean everyone was Dan's buddy. In reality, there were really four sub-groups, plus Dan.

DAN COULDN'T CLEAR HIS EARS
No problem here and certainly not faulting Dan for that. But that's why he lost everyone right away.

NO ONE LOOKED FOR DAN
Because no one agreed to buddy with him. I wouldn't notice Dan was "missing" from my group if I hadn't planned on him being with me in the first place.

DAN CHOSE TO DIVE ONCE HIS EARS CLEARED
He was still on the rig but should have (IMHO) aborted the dive when there was no one else around. He could have done the second jump. (He didn't know the second jump was canceled.) Instead he thought he saw bubbles and followed them down.

DAN MISSED THREE OPPORTUNITIES TO ABORT THE DIVE
If you go by what we teach, he should have aborted the dive when he couldn't clear his ears and lost everyone. His second opportunity would have been when he lost sight of the bubbles part way down to 108'. And his third time was from 108', which if he had done a direct ascent to the surface, would have put him on the surface at 7 minutes into the dive, not 16 minutes, as actually happened. In any of these instances, I think he would have surfaced right next to the rigs or the boat.

EDIT: I mistakenly included the 3-minute safety stop with the 8-minute ascent in my first version of this. Dan did drift for 11 minutes off the rig but only 8 of those were during ascent.
THE 8-MINUTE "GAP"
According to his computer, Dan reached 108' five minutes into the dive, finding no one along the way. He told three different stories about where in this descent he lost sight of the rig (either at 30', 60', or 108'). Regardless, his computer shows that it took him 8 minutes to ascend from 108' to 15' where he did a 3-minute safety stop. What was he doing in that 8 minutes? Was he sightseeing along the rig? Was he just drifting aimlessly in the blue in the current? That's an average ascent rate of 11.6 feet-per-minute. Seems suspicious.

THE SAFETY STOP
Dan said he knew there was a current and he knew it would carry him away from the rigs. Why then do the safety stop which is only going to carry him further away?

WHERE HE SURAFCED
Also in question. His original stratements were that he could see the boat and a mooring buoy near him to his right. That puts him out 1100' downcurrent where I think he surfaced. Also the math works out. However, at trial, he said he was 400 feet from the boat and the buoy he mentioned earlier was actually a buoy attached to the front of the boat. Except that the boat didn't have any buoys deployed in the water.

TIME ON THE SURFACE
Dan's computer shows him surfacing at 9:09AM. The roll call was completed and boat left at 9:30AM. That's 21 minutes. You can argue that it's ample time for someone on the boat to have seen him (unless he drifted off into the fog) or that it was ample time for him to kick back to the boat. Take your pick.

KICKING ABILITY/SPEED
The current was moving at 1.24mph. The Mares Volo fins Dan wore were tested by Scubalab (having nothing to do with this case) as being able to go at 2.6mph. That means he could have kicked faster than the current. Even from where I think he came up, he could have kicked back to the rigs before the boat left. If you take him at his word of 400 feet from the rigs and even less from the boat, he certainly could have kicked back.

DIVE EXPERIENCE/PREVIOUS DRIFITING
Dan was AOW, had about 70 dives, had been in currents before, and also had two entires in his logbook that indicate he surfaced well behind other boats on two previous occassions. In both of those instances, he simply waited for the boat to come get him.

TO CRAMP OR NOT TO CRAMP
Dan testifed that he either (1) kicked vigorously, (2) kicked for a minute, or (3) didn't kick at all becuase of possible cramping. At trail his attorney claiming while crross-examing me that what Dan meant was he kicked only hard enough to hold his position (for the 21 minutes before the boat left). They can't all be true. And if he really kicked for 21 minutes at 1.24mph to hold position, couldn't he have kicked just a LITTLE harder and made it back????

SEEING THE BOAT LEAVE
Dan says he say the boat leave. But he initially said he didn't kick. If the latter is true, he would have drifted off into the fog and couldn't see the boat leave. But if he saw the boat leave, then he had to be kicking. Which means he was wrong about not kicking. They can't ALL be true. So which is it?

SPECK IN THE OCEAN
Dan claims to have blown his whistle and infalted his sausage. By the same token, there's no proof of that other than his word. Even so, the idea that a diver with a sausage inflated is highly visible isn't really true, let alone at Dan's distance. We entered into evidence a staged photo of a diver in the water with a sausage 1100 feet from the rigs and what you see if a small speck and you have to klnow to look for it. There was an audible gasp from the jury when this was shown.

CAPTAIN IS RESPONSNBILE FOR EVERYTHING
While this seems to be "conventional" wisdom, no one was able to document it when challenged in depo. Not sure if it was pushed as an issue in court. Think of it this way: In cruise ship cases where there's been a murder or rape onboard the cruise ship, has a captain ever been arrested for it since he's "responsbile for the safety of the passengers"???

WHEN IS A PASSENGER NOT A PASSENGER
Also not pushed too hard (if at all) in court, but when do you stop becoming passenger? The phrase is usally "The captin is responsible for the safety of the passengers onboard his vessel". But what if you're not onboard? Is the captain responsnbile if you run out of air? If you get bent?

RESCUE TIMELINE
As detailed previously in the cross-post from Max, even if the search had been started at Eurkea, I think absolute best-case scenario is that is that Dan MIGHT have been found around 11:30AM. But it also might have played out exactly as it did, despite the best efforts of everyone starting at Eureka.

Anyhow, this isn't quite as cut-and-dried as some of you may think. There are an awful lot of gray areas in this case on all sides. And a lot of this comes down to who you want to believe and what perspective you wish to take.

- Ken

 

[merxlin]

Perhaps, but (like most diving accidents) there was a chain of failures ... some on the part of the diver, some on the part of the boat. The boat failed to select a better site given the poor conditions. The boat failed to post a competent and properly equipped lookout. The boat failed to discern that a diver was missing before departing to the next dive. The boat recorded the missing diver as having entered the water at the second dive site. The boat recorded the missing diver as having reboarded at the second dive site. That's pretty damning stuff, considering that the boat is supposed to be run by pros, even though the diver made a series of stupid amateurish mistakes.

I'm going to sound like a broken record, but we need to make sure we differentiate between the Boat (Sundiver) and the Dive OP (Ocean Adventures) as the Div Op had control over everything except where the boat was. I will agree it was the captains decision to drop the divers on the site, but if the Dive Op tells him that all the divers are qualified to dive it, I doubt he would have gone around and made personal assessments of their abilities.

I also still have an issue with the current only affecting one diver. A current that could move him 1100 ft in 15 minutes would seem to be able to move all the divers at least a portion of that distance, unless it was all surface current. If it was, that would have been evident when they were surface swimming to the rig, and would have been the obvious direction for the DM's to be looking for divers.

 

[Leejnd]

Ken, huge thanks for posting all of this detail. There are parts of it which do differ significantly from the published reports. Not that that surprises me - when ever does the press get a scuba-related case correct? Most of them still refer to our gas as "oxygen".

One thing I want to mention to you: there have been numerous posts in this thread in which many of us have stated that we recognize that this should not be blamed on the captain. This part, at least, as been accurately portrayed, and I believe is well understood by most everyone. Many posts have said the equivalent of "I wouldn't hesitate to dive with Sundiver or Capt. Ray." Mine included.

The key part of your post that surprises me, and differs so significantly from what has been reported (and posted online in various sources), is the idea that his "buddies" never accepted him to be part of their team. That's a pretty significant piece of information, and answers several important questions. Knowing this dramatically changes my view on this incident.

The rest of it - so many gray areas. But one thing I'm sure everyone agrees on is the negligence of the DM who logged him on a roll call incorrectly not once, but twice. Unfortunately, that error is just too big, too dangerous, and overshadows everything else. IMO.

Thanks again for shedding such light on a case that is very important to our local dive community.

 

[Rhone Man]

Thanks, Ken - valuable insights as ever.

I know that juries do tend to take a sympathetic view of the testimony of the claimant. I will always recall a good friend of mine who was Captain of a commercial airliner that crashed in the process of taking off from JFK. By the grace of God, and no small amount of skill and courage, he and his crew got everyone out alive and for the most part unhurt. I know that he found it very wounding when he kept having to hear testimony as various claimants turned up telling more and more improbable tales about how they had been "abandoned by the crew inside a burning aircraft", which were largely accepted by juries depsite being wholly at odds with all independent evidence. I don't think he ever quite forgave the legal system for the imputations.

 

[lemon]

Hi, Merxlin...!

I have no idea, neither I nor anyone else here is in any position to make that call. I don't know what skin lesion he had, what his past exposure was, what the day was like, etc... In no way was I claiming anything about the specifics of the case (apart from pointing back to a previous point about physical vs. emotional damages).

I was just doing my job as a medical moderator and providing some accurate background information. As you know, another poster had flatly stated that the possibility of someone developing cancer from a single bad sunburn was "crap". This is not correct.

there is absolutely no way that you can relate one episode of exposure lasting several hours and say with any degree of certainty that this caused his cancer. so, yes, this claim is crap. in fact, it is so ridiculous as to be laughable.

personally, i find the fact that he is blaming this single incident in a life of sun exposure for causing his skin cancer so outlandish that it makes me question the validity of his claims of PTSD.

 

[ItsBruce]

I wrote this as I went through posts since my last visit. Then I did some editing on it:

1. I agree with Thal: Ken's logic is impeccable (as usual). Ken’s own personal comments are consistent with the impeccable bit.

2. I disagree with Thal that the first breach of duty occurred when the diver surfaced, blew a whistle and waived and was not seen by anyone one the boat. I wonder if it wasn’t putting divers into the water in a current with only 1/4 mile visibility. However, since only 1 diver seems to have had a problem, perhaps it wasn’t.

3. Regardless of #2, I understand that the only breach presented to the jury was the bad roll call.

4. I have no information as to whether the jury agreed with or rejected Ken’s analysis. Even if it agreed completely, there is still time that Dan would not “own.” That would be the basis for damages. However, it would mean the damages were much greater per minute than I previously thought … and that might support an appeal or a reduction in the damage award.

5. Under the law, even if the Captain had done everything he could to ensure no one was left behind, but still left someone behind, because of the DM’s negligence, he is going to be found liable. That’s just the nature of the law. If I hire a taxi to take me somewhere and to wait for me to take me back, and it doesn’t, the taxi is liable.

6. MaxBottomtime says: “None of these problems would have occurred [sic] if he had followed even one procedure correctly.” Maybe, but not following them does not mean he was negligent. Why is it negligent to do a safety stop? Why is it negligent to spend 1 minute looking for a missing buddy? It is fine to say, after the fact, that you should surface immediately if you lose a buddy. But, at the time, unless there is a specific instruction to the contrary or an agreement to the contrary, isn’t the training to search for 1 minute and then surface safely?

7. DoctorMike and LeeAnne: No one is being punished. The court disallowed punitive damages, which are designed to punish and deter. The entire award was compensation for an injury.

8. For those that care: The law would generally give the boat the right to seek indemnity from the dive shop and the DM as the DM was the one who was negligent. However, as a matter of public policy the law recognizes that the actual negligent party (i.e. the DM) may not be able to pay for an injury he or she causes. Thus, the law asks: If the actual negligent party can’t afford to compensate the victim, is it better that (1) the employer compensate the victim or (2) that the victim go without compensation? The answer, as established by the Legislature and courts, is that responsibility should fall on the employer. Then, once the victim is compensated, it is for the responsible parties to work out who reimburses who.

 

[ItsBruce]

BTW: If I'm ever involved in a scuba case, I call first dibs on Ken!!!

 

[Thalassamania]

But I also must confess that I really do think the captin is getting a raw deal here. The diver made a number of errors that got the ball rolling and then compounded those errors by making some more, and the DMs (employed by the shop) screwed up the roll call which is certainly not acceptable.

There is no question that the diver made mistakes. There is no question that the Captain gets a raw deal. The Captain always gets a raw deal, his is a no-win situation wherein he has responsibility (at least under General Maritime Law). The Captain's problem is that he is, in all ways, responsible for the actions or inactions of the crew. The crew are those who are listing as such in the manifest, DMs are usually manifested as deck hands or mates. How were they manifested on this trip?

Mikemill hit it right on the head when he said I'm not trying to absolve everyone but simply saying if the roll call had been done correctly at Eureka how long would it have taken to find him. In other words, the actions/inactions by the roll call didn't cause Dan to drift away.

What caused Dan to drift away was (dare I point it out?) the current. This occurred because his surfacing was unobserved. While his surfacing may have been unobserved anyway, we will never know that since proper lookouts do not appear to have been posted, something that is the clear duty of the Captain.

Also bear in mind that I've gone through some 53 POUNDS of documents which include roughly 20,000 pages of depos, reports, transcripts, etc. That doesn't mean I have all the answers but does mean that I may know things that haven't necessarily been well-publicized. If you're getting your info from the Internet and newspapers, I guarantee you haven't gotten the full picture.

I'm sure that's the case. I often feel that even after wading through all the paper I still don't have the full picture. I return to my initial, if somewhat simplistic, analysis. He surfaced, a competent watchkeeper had not been posted, he was not seen. That was the ultimate cause of the incident. The screw ups in the head count may have been the fault of the inexperienced, distracted, confused (whatever) DMs, but they are still the responsibility of the Captain, and really only serve to show that the operation was not a professional and efficient one.

But all of this may also mean I'm too vested in the case and have lost perspective. So bear that in mind too. That all being said:

THE DMs ARE NOT BOAT CREW/EMPLOYEES
In Socal, the charterer provides the DMs and is responsibile for all diving supervision. In this case, Ocean Adventures (which is owned by a good friend of mine) was the charterer and provided the DMs. The DMs were NOT boat crew nor employed/chosen by the boat/captain. It may sound like splitting hairs but is an improtant legal distinction.

How were the DMs listed on the boat's sailing manifest? I suspect that we will find that they were, in fact, crew.

IT'S A LIVE BOAT
No anchoring, engines running. Captain is required to be at the helm. Two-story boat and deck is not easily visibile from the wheelhouse.

Still, the Captain is responsible to assure that his vessel is crewed and handled in a seamanlike fashion. In the science fleet the Captain of the ship is defined as having, "has full and final legal responsibility for the safety of the ship and all persons aboard." In this case aboard also means in small craft deployed from the ship, swimming from the ship or diving from the ship or any of it's support craft. I assume that similar language and precedence can be found for dive boats.

DAN DIDN'T HAVE A BUDDY
No ever agreed to dive with him. Dan first asked Andy Huber (second DM, named in the suit) who said he couldn't because Andy had an advanced student to dive with. Dan was rejected by a seond diver as a buddy. Dan then testified that he decided to dive with Andy anyhow and feels he communitcated that to Andy because he looked Andy straight in the eye.

While this makes the diver look stupid (and perhaps he was) it is not a salient point.

DAN KICKED TO THE RIGS WITH A LARGE GROUP

DAN COULDN'T CLEAR HIS EARS

NO ONE LOOKED FOR DAN

DAN CHOSE TO DIVE ONCE HIS EARS CLEARED

DAN MISSED THREE OPPORTUNITIES TO ABORT THE DIVE

These, also, are not salient points.

THE 11-MINUTE "GAP"
According to his computer, Dan reached 108' five minutes into the dive, finding no one along the way. He told three different stories about where in this descent he lost sight of the rig (either at 30', 60', or 108'). Regardless, his computer shows that it took him 11 minutes to ascend from 108' to 15' where he did a 3-minute safety stop. What was he doing in that 11 minutes? Was he sightseeing along the rig? Was he just drifting aimlessly in the blue in the current? That's an average ascent rate of 8 feet-per-minute. Seems suspicious.

What time does his computer show him as having descended? As an aside, this points out the stupidity of the current "safety-stop" or you will die curriculum.

THE SAFETY STOP
Dan said he knew there was a current and he knew it would carry him away from the rigs. Why then do the safety stop which is only going to carry him further away?

Because of the stupidity of the current "safety-stop" or you will die curriculum, but we've covered that in other threads.

WHERE HE SURAFCED
Also in question. His original stratements were that he could see the boat and a mooring buoy near him to his right. That puts him out 1100' downcurrent where I think he surfaced. Also the math works out. However, at trial, he said he was 400 feet from the boat and the buoy he mentioned earlier was actually a buoy attached to the front of the boat. Except that the boat didn't have any buoys deployed in the water.

I can easily understand him being somewhat confused as to details, people in such circumstances, especially scared amateurs, often are. But, in any case, I still feel that a competent and properly equipped lookout would have been able to spot him.

TIME ON THE SURFACE
Dan's computer shows him surfacing at 9:09AM. The roll call was completed and boat left at 9:30AM. That's 21 minutes. You can argue that it's ample time for someone on the boat to have seen him (unless he drifted off into the fog) or that it was ample time for him to kick back to the boat. Take your pick.

I think that the latter is more likely, though not absolute. I'd still like to know what time he submerged.

KICKING ABILITY/SPEED
The current was moving at 1.24mph. The Mares Volo fins Dan wore were tested by Scubalab (having nothing to do with this case) as being able to go at 2.6mph. That means he could have kicked faster than the current. Even from where I think he came up, he could have kicked back to the rigs before the boat left. If you take him at his word of 400 feet from the rigs and even less from the boat, he certainly could have kicked back.

As to making 2.6 knots over the bottom into a 1.25 knot current, in full gear, for a distance in excess of 1000 feet: Scubalab's protocol (Top Averaged Speed: Using a flutter kick at an average depth of 14 feet, in a pool, test divers took each fin on three speed runs. The highest speed for each run was taken from each diver and then averaged to come up with the top averaged speed for each fin.) is, IMHO, a rather disingenuous way to cast aspersions on what the diver should have been able to do. The circuit swim at Berkeley was 1,200 feet. The best that I ever did it in was 7.5 minutes. That comes out to 160 feet per minute. Back then I was 20 years old, highly motivated, ridiculously confident, solid muscle, and at the top of my form, I doubt if I could duplicate that today, and I doubt if either of us could, in full gear, reach and hold a speed of 2.6 knots over a 1000 foot open water course.

DIVE EXPERIENCE/PREVIOUS DRIFITING

Hell hath no fury as an unwarranted assumption, no?

TO CRAMP OR NOT TO CRAMP

I don't really understand this. As earlier noted I think that either of us would be hard pressed to make 2.6 knots over a 1000 foot open water course ... I even have my doubts about even 1.25 knots for 21 minutes ... though that sounds a bit more possible.

SEEING THE BOAT LEAVE
Dan says he say the boat leave. But he initially said he didn't kick. If the latter is true, he would have drifted off into the fog and couldn't see the boat leave. But if he saw the boat leave, then he had to be kicking. Which means he was wrong about not kicking. They can't ALL be true. So which is it?

I have no idea. Sounds like he's confused.

SPECK IN THE OCEAN
Dan claims to have blown his whistle and infalted his sausage. By the same token, there's no proof of that other than his word. Even so, the idea that a diver with a sausage inflated is highly visible isn't really true, let alone at Dan's distance. We entered into evidence a staged photo of a diver in the water with a sausage 1100 feet from the rigs and what you see if a small speck and you have to klnow to look for it. There was an audible gasp from the jury when this was shown.

This is a bit much also. 1100 feet is about three full football fields, at that distance a 6 foot object subtends about a third of a degree of arc. That is usually visible by naked eye (thats about the same as detecting a one foot object at a range of 150 feet: say a crow half a football field away), and is definitely visible with binoculars. To expand on this a bit: "normal" vision (what you think of as 20/20) can see down to a resolution of one arc minute (that's 1/60 of one degree), the Moon, even at its smallest, fills 29 arc minutes on the sky (about a 1/2 degree), the diver and safety sausage, in this case would have exceeded 20 arc minutes.

CAPTAIN IS RESPONSNBILE FOR EVERYTHING
While this seems to be "conventional" wisdom, no one was able to document it when challenged in depo. Not sure if it was pushed as an issue in court. Think of it this way: In cruise ship cases where there's been a murder or rape onboard the cruise ship, has a captain ever been arrested for it since he's "responsbile for the safety of the passengers"???

Under General Maritime Law (much of which is "common knowledge") the Captain is responsible: Shipowners owe a duty of reasonable care to passengers. Consequently, passengers who are injured aboard ships (this includes whist diving) may bring suit the same as if they had been injured ashore through the negligence of a third party. The passenger bears the burden of proving that the shipowner was negligent.

I don't know what the problem at trial was, I can point to a few dozen General Maritime Law experts that could unravel this issue in a flash.

WHEN IS A PASSENGER NOT A PASSENGER
Also not pushed too hard (if at all) in court, but when do you stop becoming passenger? The phrase is usally "The captin is responsible for the safety of the passengers onboard his vessel". But what if you're not onboard? Is the captain responsnbile if you run out of air? If you get bent?

Again, I do not understand the confusion here, I've had this rather clearly laid out to me any number of times. The Owner (and the Captain, as the owner's representative) bear responsibility for passengers and crew throughout the voyage, that includes swimming from the vessel, diving from the vessel, or being in a small craft that is tending the vessel (it even includes being in a submersible launched from the vessel, believe it or not). The Owner and Captain are not responsible for a passenger who is bent (though they might well be responsible for crew member who is bent, such as a DM manifested as a deck hand or mate), unless the case of bends can be shown (burden on the plaintiff) to be the result of the negligent operation of the vessel.

RESCUE TIMELINE
As detailed previously in the cross-post from Max, even if the search had been started at Eurkea, I think absolute best-case scenario is that is that Dan MIGHT have been found around 11:30AM. But it also might have played out exactly as it did, despite the best efforts of everyone starting at Eureka.

Anyhow, this isn't quite as cut-and-dried as some of you may think. There are an awful lot of gray areas in this case on all sides. And a lot of this comes down to who you want to believe and what perspective you wish to take.

- Ken

Like you, I think the question of the search timing is not particularly relevant. I have no dog in this fight, I know none of the principals, I'm just speculating as to what I would have written as an expert had I been presented with the limited information that I have.