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

[doctormike]

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

Right, if it was a basal cell, I agree...

 

[Zippsy]

It doesn't matter how many dives the guy had under his belt. It doesn't matter that he made huge mistakes before, during and after the dive. The boat left him behind because they did not know that he was not aboard. How can you possibly (even partially) blame the diver for that?

I don't think anyone is blaming him for that. They are blaming him for the things he ALSO did wrong which ALSO helped lead to his ordeal. I used the capital letters to stress that the DM and possibly others ALSO did wrong which ALSO led to the drift.

Looking at it another way, if the DM noticed Dan wasn't on the boat right after the dive, Dan likely would have been found much sooner. ALSO, if Dan had called the dive and ascended when and where most responsible divers would have, he likely would have been found much sooner.

Just my opinion.....

 

[Ken Kurtis]

Does anyone know who the expert for Dan was or what he said?

Ken ... if you have the depo transcript for Dan's expert, I'll read and summarize it for everyone.

I think it was Karen van Housen from UCSD. She basically focused on divemastering shortcomings and problems she perceived with the DM slate, along with being critical of Ray's performance. However, she doesn't DM recreationally, hasn't DM'd for UCSD in about a decade, and doesn't hold a captain's license. So I have no idea what weight her testimony had. I don't have a transcript.

- Ken

 

[cruiser]

That's pretty much what the jury said too.

My biggest issue is the huge dollar award because the guy had to sit in the ocean for 5 hours.

Heck I'd sit out there all day for a cool $500k.

I would too, idocsteve.

However, Dan wasn't floating out there in the context of making some money. Rather, his dive boat didn't even notice he was gone and had abandoned him in the ocean. I can't begin to imagine what thoughts were tormenting him during this time. Was he going to die of dehydration? Hypothermia? Would he become fish food? Then maybe some thoughts of hope slipped in and buoyed his spirits, only to have the "Am I going to die?" cycle start all over again. His hours drifting at sea had to be torture in light of his abandonment.

 

[Ken Kurtis]

That makes no sense! If one for what ever reason results to ascent w/o visual reference it would only be prudent to deploy SMB as soon as possible. Esp. after not seeing the rig (intended target of the dive). From perspective of a diver you want to make yourself visible as soon as possible in such situation.

A lot of things that Dan did or didn't do don't make sense. That notwithstanding . . .

You're making an assumption that he had a line with him so that he could deploy the SMB from depth. My recollection is that he had no line with him.

Also, from his testimony, his mindset seems to be "I"ll just wait here because they'll come find me." It took him a while to transition to "Maybe they can't see me" and he deployed the SMB.

- Ken

 

[Ken Kurtis]

Does anyone know what type of skin cancer he got?

I think it was something on his nose that was removed.

Also bear in mind that he had his mask on much of the time. Mask has a translucent silicone skirt (i.e., not black).

- Ken

 

[Zippsy]

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.

Actually, I am just ascribing thoughts to your posts. You seem to be saying that the amount of the award is not too large because he [possibly?] thought he was going to die the whole time. You're right in that I don't know whether he did think that or not but why should the amount of money depend on why he thought that or not? Does he deserve more if he did think he was going to die?

 

[Ken Kurtis]

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.

Not to put you on the spot, but I really WOULD like to hear your thought process on this point.

The only way I think you could say Dan doesn't "own" any of this is to decide that the DMs had a 100% obligation to spot Dan on the surface, regardless of where he was or how hard his actions made it for him to be seen. (I said at one point in a depo that if I was deliberately trying to make myself invisibile to the boat, this was a good way to do it.)

If that's not the issue and you want to focus on the roll call, don't forget that Dan was already drifiting for 21 minutes at that point (regardless of where he came up) and that the boat wasn't just going to pick up and leave the site once Dan's reported as missing because (1) USCG won't permit it, and (2) If he's trapped on the rig, you need to send divers down to get him.

So I'd really (and seriously - this isn't a troll) like to hear your logic. Thanks.

- Ken

 

[Thalassamania]

He actually spent 18 minutes underwater, not one. I would not think it prudent to spend an additional three minutes on a safety stop when he knew before he dropped that there was a current and fog. I agree that the DM should bear most of the blame, but Dan should not be rewarded without a reduction for his own role.

His award was reduced.

Yah, that was what I had assumed...

When my crew is on board, even though the DM's for the group may be doing roll call, mine are doing a secondary check... Even though they are DM's, they are not assuming that role, they are assuming the role of a deck hand, and I place them responsible for making sure everyone is aboard - IMO, you can never leave it up to someone who ultimately can't be blamed for anything, because they aren't really responsible for it...

As a captain myself (and responsible for up to 23 divers plus crew), its my opinion that this is where the problem lies - someone not working for the boat was put in a position that should be assumed by the boat crew... forgive me if there is something I have missed...

I originally wanted to side with being lenient to the captain, but, if the roll call was only done by "passengers," then this is unforgivable, IMO.

P.S. sounds like he was almost asking to get lost however, which should definitely go against his credibility... for all we know, he planned the whole thing...

last edit (I promise): the captain and crew could not have prevented him from getting away from the boat... although you can post lookouts, you can never expect full coverage of the entire ocean within visible range of the vessel... sounds like bad organization on the DM / divers part as well obviously which led to this issue to start... the captain and crew are guilty (IMO) of not noticing he was missing after everyone was back on the boat after the first dive.... as many people say that it was the DM's fault, well, had the DM noted it correctly it could have been avoided, but ultimate responsibility for at least noticing they had a missing diver falls to the captain and crew, and ultimately, the captain alone... he is definitely guilty of this... lots of things contributed, but it still falls to him...

The Captain winds up holding the bag, it's no place for a "trust me" DM operation.

I'd get tired quickly playing football on your field.

Yeah, me too, I had a yards and feet brain skip.

That's pretty much what the jury said too.

My biggest issue is the huge dollar award because the guy had to sit in the ocean for 5 hours.

Heck I'd sit out there all day for a cool $500k.

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.

8 hours of fear of imminent death followed by PTSD, I don't know what that's worth. PTSD can destroy your life and your family in a way that no amount of cash would rebuild. I would not trade my family in.

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'.

Different people in different places. What hes being compensated for is his reaction to a very stressful situation, you can't fault him because you, or I, or some guy in Central America has a different one.

A guy I use to know tied his wounded buddy's hands together, threw his arms around his neck and proceeded to swim 10 miles out into the Gulf of Tonkin where he was finally picked up by a US Destroyer. It's an incredible story, his name was Mike Fitzgerald, he won a Silver Star for that, he didn't come down with PTSD. While Mike's example makes a wus of us all, it doesn't obviate the damage that Dan suffered, or mean that anyone who doesn't live up to Mike's example is somehow lacking and undeserving of consideration (or compensation).

I think it was Karen van Housen from UCSD. She basically focused on divemastering shortcomings and problems she perceived with the DM slate, along with being critical of Ray's performance. However, she doesn't DM recreationally, hasn't DM'd for UCSD in about a decade, and doesn't hold a captain's license. So I have no idea what weight her testimony had. I don't have a transcript.

- Ken

Karen's a great physician, and is an adviser to the Scripps DCB, but seems to me a strange choice for an operations expert. But I guess she was convincing. Even so, I fail to see how she her not DMing recreational, not having DM'd for UCSD in about a decade, or not not holding a captain's license means anything, you could raise similar complaints about, say, Jim Stewart, Chris McDonald, or me for that matter.

 

[cruiser]

Was anyone asked point blank at trial why Dan was checked in on the boat after the 1st dive when he wasn't even there, and who checked him in?

Was the boat/group under pressure to get to the next dive site and the (presumably) DM said, "Eff it, I'm checking him in"?