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

[ChrisM]

Thanks for sharing that info Ken. It's been frustrating knowing there was a real story that the press couldn't cover properly but those involved also had to hold their tongues.

BTW, just had a negative PFO test so looks like you're going to have to dive with me again soon

 

[Ken Kurtis]

How were the DMs listed on the boat's sailing manifest?

As passsengers. That's the custom for shop/charterer-provided DMs here in SoCal. They are NOT crew and not listed as such. They're signed in just like the other passengers on the Sundiver manifest.

- Ken

 

[ItsBruce]

Let me toss one more hypothesis into the mix to explain the jury verdict. Please note that it is entirely speculation. However, it is not inconsistent with what evidence I believe there actually is. It is not pretty, and those of sensitive tendencies, should not read the rest of this post.

Earlier in the thread, someone had commented something to the effect that the ink on the check mark for Dan returning from the first dive was not as dry as the check marks for the other divers. That got me thinking ...

Is it possible that Dan was not marked present at the roll call after the first dive and was not marked as having entered the water when the rest of the divers entered the water for the second dive? Is it possible that Dan's absence was discovered during the roll call after the second dive and that at that moment, the DM realized Dan was missing after the first dive? Is it possible that after the second dive, the DM decided to hide his error by marking Dan as having returned from the first dive and then as having made the second dive? Is it possible that when the DM realized Dan had not returned from the first dive, he figured (1) Dan was gone for good (and could not contradict the log sheet), (2) if a search of the second site did not find Dan, it would not be a complete surprise, and (3) by altering the sheet for the first dive, it would look like Dan perished in the second dive with no fault to anyone?

It is certainly possible that the jury may have been thinking in this direction and that as a result, it decided to include in the damages a component of punishment. I've seen such things happen.

That the jury may have been thinking in this direction is not inconsistent with the information Ken has so thoughtfully provided. According to Ken's analysis, with which I largely agree, most of the time Dan spent in the water was not as a result of the bad roll call and the whole thing could have been Dan's fault for not making an effort to swim to the boat or rig. That would surely minimize Dan's recoverable damages. So, if Dan's damages were minimal (per Ken's analysis), and there was, after all, a pretty large blunder, why the huge verdict?

The huge verdict could be explained as punishment for what the jury may have been thinking happened.

Note I am not suggesting this is what happened on the boat. I have no evidence it did. However, there is evidence, in the form of the damage award and the contrast with Ken's analysis that suggests that perhaps the jury was thinking this way. The whole thing will pay a lot of greens fees for the appellate lawyers.

 

[Thalassamania]

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.

It does not matter who supplied the DMS. As I noted earlier, they were most likely manifested as crew or mates and thus are the Captain's responsibility.

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.

I think that was a mistake, I'd have never advised that. Ken's analysis (I think) destroys that claim and might well have resulted in a directed judgment against the plaintiff. But, hindsight's 20/20 and they won ... so I guess I'm wrong.

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.

I agree.

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.

While the taxi analogy does not hold up, I agree with your sentiment.

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?

It would be interesting to test the liability of the Instructor/Agency in the question of how the Safety Stop was taught. But that's a bone I like to pick.

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.

Yes.

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.

Good explanation.

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

I agree, but he lost.

Who were the experts on the other side?

 

[Thalassamania]

As passsengers. That's the custom for shop/charterer-provided DMs here in SoCal. They are NOT crew and not listed as such. They're signed in just like the other passengers on the Sundiver manifest.

- Ken

Interesting ... I doubt if that would pass muster with the Coast Guard, but that's not the question here. Thanks.

ItsBruce: You are a lawyer, you have a devious mind.

 

[ItsBruce]

ItsBruce: You are a lawyer, you have a devious mind.

Thalassamania: You are being redundant.

BTW: I want you on my cases, too.

 

[lemon]

Leaving aside the legal reason for claiming physical damages (see the posting earlier in the thread), it might be best to get some background about this before just assuming the worst:



Personal risk-factor chart for cutaneous melanoma.
MacKie RM, Freudenberger T, Aitchison TC.
Lancet. 1989 Sep 30;2(8666):799.

Abstract: Information from a case-control study of all patients with cutaneous malignant melanoma first diagnosed in Scotland in 1987 has been used to derive a personal risk-factor chart .....These factors are total number of benign pigmented naevi above 2 mm diameter; freckling tendency; number of clinically atypical naevi (over 5 mm diameter and having an irregular edge, irregular pigmentation, or inflammation); and a history of severe sunburn at any time in life.





Melanoma, past severe sunburns and multiple solar lentigines of the upper back and shoulders.
Reguiaï Z, Jovenin N, Bernard P, Derancourt C.
Dermatology. 2008;216(4):330-6. Epub 2008 Jan 29.

Abstract: Multiple solar lentigines of the upper back and shoulders (MSLBS) have recently been demonstrated as being associated with intense sunburns in the past.... This topographical association further illustrates the relation between past intense sunburns and cutaneous melanoma.






"Let’s look at how sun exposure relates to skin cancer. The two most common nonmelanoma skin cancers, basal cell carcinoma (BCC) and squamous cell carcinoma (SCC), are directly correlated with sun accumulation over many years....Melanoma is different. The sun exposure pattern believed to result in melanoma is that of brief, intense exposure — a blistering sunburn — rather than years of tanning."

skincancer.org

nowhere does it say a single sunburn will cause cancer. if you read your quote it says a sun exposure pattern of brief intense exposure is associated with melanoma.

i am all for sun protection but to claim one day of sun exposure as the cause of your skin cancer and then to use this as a basis for claiming damages in a law suit is just laughable.

 

[iztok]

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.

Well this one is simple. He marked it wrong first time. Second time he saw empty boat and marked everyone in the water. Which it was actually true as Dan was in the water

 

[doctormike]

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.

I hesitate to prolong this little side thread, and I think that my other post about the different nature of legal proximate cause and medical cause and effect pretty much addresses the issue that you raise.

You are certainly entitled to your opinion, and I don't mean to deny you that by posting facts that contradict that opinion. I am supposed to provide background medical information on this board, so that is what I did here.

It is extremely difficult to link any sort of cancer case to any sort of environmental exposure. In medicine, the host response has so much to do with who gets what condition, that you almost never "prove" causality with any certainty. Sure, we can say that this patient's fatal hemorrhage was caused by his aortic rupture which was caused by his gunshot wound to the chest. But patients with malignant mesothelioma who weren't asbestos workers had a lot of trouble proving proximate cause and getting restitution, for reasons like the one that you raise. Even though huge amounts of population data show that tobacco "causes" lung cancer and oral cavity cancer, you can never prove it for any single patient.

If it makes you feel any better, I would also not be willing to testify that he wouldn't have gotten cancer if he hadn't been out at sea for four hours on a foggy day, so we are in agreement. But to imply that a single severe sunburn doesn't significantly raise your baseline risk of melanoma - whatever that is - is just not supported by well documented and published scientific evidence. Hence my comment...

 

[mitsuguy]

Interesting ... I doubt if that would pass muster with the Coast Guard, but that's not the question here. Thanks.

ItsBruce: You are a lawyer, you have a devious mind.

depending on the vessel, the captain most likely is required to have at least one actual approved crew member on boat whilst the vessel is underway (even if not making way)...

I don't know the specific rules, but, for example, our 36' Newton dive boat requires a captain and at least one crew member on board while we are under way. If we are tied to a mooring, pier, dock, or are at anchor, only the captain need be aboard. Although most of our diving is for our own guests, at times, we lease the boat to the local dive club or other organizations for their use. When we do, they typically provide their own dive leaders. Although they do, we are still required to have a captain and at minimum, one crew member, with the proper credentials. If we do a drift dive with this particular vessel, we have to put one DM in the water with the guests, while a crew member stays aboard to assist with the captain.

One other thing - other injuries (beyond being bent as you mentioned) acquired during a dive are not the captains responsibility either, unless, as you mentioned, the boat / captain can be shown negligent. Either way, however, you can bet your butt I fill out the paperwork with even the slightest thought of injury. (The last time was a reverse block leading to inner ear barotrauma) Although I filled out the paperwork and submitted it to the CG, they basically said it was unnecessary, as the injury occurred in the water, under supervision of a divemaster.

Either way, my question here relates to the requirements on board the vessel in question. It sounds like it was a decent sized vessel, so, the question is, were crew members required aside from the captain? If so, were they present? If the DM's were signed in as passengers and not crew, then they would not have counted towards this requirement. Even if the groups DM has accounted for all divers, I still have my crew member account for them as well, if not myself, when available to.