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

[iztok]

I don't know if it is helpful to go over this again, but the literature supports the likelihood of a significant increase in the risk of melanoma following a single severe sunburn. Please realize that this is different from the cumulative UV effect of sun exposure over many years, which increases the chance of other types of skin cancer (basal and squamous cell).

Does anyone know what type of skin cancer he got? This would help as well.

 

[iztok]

I dove with Sundiver last year and having an opportunity I will do it again. One day when my grand daughter (less than 4 month old now) will be old enough perhaps two of us will dive of their boats together. I've seen both captains at work and I liked what I've seen. (and I've seen a captain of another vessel in FL slam her boat into the dock while many divers were on it)

Based on what I've read I don't buy Dan's story and I could easily see (and I am a new diver) several things he could have done differently and any of them could have potentially made a difference where a missed check would not even be in question as he wold have been spotted before that.

 

[merxlin]

I believe it was a basal cell carcinoma.

 

[Leejnd]

Having thought about this a bit more:

1. I think the jury got the percentages of fault about right. Dan may have set the stage for having been left behind, e.g. no buddy, submerging before reaching the rig, going deep looking for his "buddy" and doing a safety stop. However, the fact remains that someone marked him as being aboard when he wasn't, and as a result, the boat left without him. That error far outweighs anything Dan did wrong.

2. The damages were excessive. If the defendants were at fault for the entire time Dan was adrift, the damage figure seems very high relative to other incidents in which a plaintiff feared a horrible death. However, and noting that I don't know what Dan's expert may have said, given Ken's analysis and my understanding that the jury was only considering negligence in terms of Dan being left behind (i.e. not that there was no lookout), the first several hours of Dan's ordeal was not due to Dan having been marked as being aboard. (as Ken said, Dan "owned" those), so the damages for the time Dan was adrift due to the DM's negligence are even more extreme. Then, to compound this, consider how much emotional distress Dan suffered as the result of drifting during the time he was adrift without any fault on the DM compared to the time he was adrift due to the DM's negligence. I would expect that by the time Dan was adrift due to the DM's negligence, he was already resigned to dying at sea and anything beyond that was, by comparison, minor.

I'll say it again: I do not know what Dan's expert may have said. So, maybe Ken's analysis was challenged or even refuted. I do not know.

I could well imagine that if the trial court does not reduce the damage award, the Court of Appeal will intercede.

Excellent analysis. I'm not fully on board with the idea that Dan "owned" any portion of his time floating at sea - I won't go into the details of why. Just my opinion. But having learned some things in this thread that were not made public before, I would agree that the percentages of fault were about right. No more, no less.

The main things that I learned, that I didn't know before, are:

1) Dan did not have a confirmed buddy team (the in-water DM did not agree to take him)
2) He actually DID have the rig structure in sight early in the dive - he testified that he lost sight of it at some point - so he did not descend before he got to the rig
3) He WAS qualified to do this dive (70 dives and AOW most certainly qualifies someone to do a dive on the oil rigs).

Given #3, I think he should not be castigated for having "gotten in over his head" or done a dive that was beyond his skills. The things that went wrong on his dive didn't happen due to lack of experience. He may have made mistakes, but they (IMO) were mistakes that any diver could make - and should not have led to what happened. And no matter what, they do not excuse what happened on the boat.

I'm still surprised that the judge ruled that no part of the award could be punitive, as I feel that some punitive damages were appropriate. The botched roll calls are simply inexcusable, and the potential outcome of botched roll calls on future divers is just too dire - I feel the industry NEEDED a shot in the arm to inoculate it from ever doing this again. I tend to think that might be a reason behind the high award - even though they couldn't award punitive damages, that amount is going to have the desired effect, the jury may have been thinking (this is pure speculation, of course).

I wanted to add one more thing: I've had several local divers comment to me (off the boards, in personal discussions) that they firmly believe that the DM marked him on the roster after-the-fact (in other words, when he didn't turn up for the second dive, he quickly went and added him as in from the first, and out for the second). I'm not even sure this was possible, given what Ken reported (that it was sequestered as soon as Dan was reported missing). If that were true, that would raise this to a whole other level of crime that I don't even want to contemplate. I pray that is not what happened - that would be horrific.

Thanks to everyone for this discussion - I feel it was very enlightening.

 

[Zippsy]

Yeah. Sure you would. People keep saying that. Would you do it if you had to spend the entire time assuming you were not going to be rescued, and were going to die a horrible death floating alone in the ocean? Yeah. Uh huh. Didn't think so.

And even if you say you would, sorry - not buying it.

So he gets more money because he's a pessimist?? Sorry, I'm not buying it.

People have drifted a lot longer than that and didn't give up. There was a story just last week of a diver that swam for 10 hours to reach shore then walked home after a brief rest. I doubt that diver sat for long without trying to save himself and whinging 'I'm gonna die'.

 

[iztok]

I believe it was a basal cell carcinoma.

Thus cumulative sun exposure is an issue more than one time thing. Based on what has been written so far.

 

[Leejnd]

So he gets more money because he's a pessimist?? Sorry, I'm not buying it.

People have drifted a lot longer than that and didn't give up. There was a story just last week of a diver that swam for 10 hours to reach shore then walked home after a brief rest. I doubt that diver sat for long without trying to save himself and whinging 'I'm gonna die'.

I'm not ascribing any thoughts to Dan. I'm just making a point. Have you read any of Dan's interviews? Or are you just deciding without any background information that he was a whinging pessimist, because of my post? If you've read Dan's interviews, he says he never did give up. But the truth is (and I'm sure he knew this): the likelihood of finding a diver floating alone at sea miles from shore are pretty slim. That's just a fact.

 

[iztok]

But the truth is (and I'm sure he knew this): the likelihood of finding a diver floating alone at sea miles from shore are pretty slim. That's just a fact.

So how do you explain not deploying SMB at depth? If one is concerned (and with currents one should be) about being lost you should deploy SMB as soon as possible for a boat to start tracking.

 

[doctormike]

So he gets more money because he's a pessimist?? Sorry, I'm not buying it.

I think that the reason that the jury considered it a traumatic injury was because he believed that he was going to die. It's the same reason that mock executions and water boarding are considered torture, because they make you believe that you are going to die, even though you don't. So yes, I would also probably take a million dollars to float in the ocean for five hours and then be picked up. But I wouldn't take all the money in the world to drift off into the ocean and hope that I was going to be picked up...

People have drifted a lot longer than that and didn't give up. There was a story just last week of a diver that swam for 10 hours to reach shore then walked home after a brief rest. I doubt that diver sat for long without trying to save himself and whinging 'I'm gonna die'.

Well, Dan didn't give up either, but I'm not sure what that has to do with this case. People have survived all sorts of horrible stuff, but I don't see how that should bear on the responsibility of a dive operator to make sure that everyone was back on the boat before leaving the site. Which is, as I recall, what the lawsuit was about...

 

[doctormike]

So how do you explain not deploying SMB at depth? If one is concerned (and with currents one should be) about being lost you should deploy SMB as soon as possible for a boat to start tracking.

Good point, I agree.

Maybe he just had a safety sausage and not a real SMB with a spool... Does anyone know?