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

[Leejnd]

I didn't realize the purpose of the lawsuit was to send a message to and change the practices of the local dive community. I thought it was to change the industry. There is life outside SoCal. Believe it or not.

Um...yeah...I actually am aware that there are locations on the planet beyond SoCal. My point, which clearly did not get through, was that you seemed to be saying that this case and/or verdict has had/will have little if any impact on the dive industry. My point is that you don't live here, where there is ample evidence that it's had significant impact. Sorry if that was unclear. But I think your snarky comment about there being "life outside SoCal" was a bit uncalled for.

Any is a rather too encompassing term. I would say, across the overall industry, it won't have significant impact.

And that is the crux of our disagreement. That is simply false. Almost everyone feared the "next verdict" long before this lawsuit, and the one before it, and the one before it. That is WHY everyone has liability insurance with coverage of at least a million or two dollars per incident. Operators haven't been collecting signed waivers and buying insurance for decades because they were naive about potential liability.

I really find it incredulous that you might think that before this lawsuit, there was any operator in the U.S. who thought that if a customer got left behind due to a careless roll call that they couldn't be facing a mega lawsuit. If anything, this verdict merely confirms what everyone already assumed could happen.

People worry all the time about liability over issues even though those issues may not have splashed all over the news from a courtroom verdict. How many threads have been here (maybe some of you haven't seen all the ones in the Instructor forum) about liability of pros when merely on a boat as a buddy? Yet no one can ever point to a case where an instructor got slammed for that.

Operators take precautions all the time on things that have never resulted in a mega award. And that makes sense, because statistically it is highly unlikely that a given operator would be hit with this particular issue "next time". It will likely be something else, something new. That's the thing with liability. There is no telling what the "next time" will be about. And no matter what you do, there will be 12 peers to tell you that you could have done more.

I'm not really following your logic. On the one hand, you're saying that operators fear mega awards. Yet, now that one has happened, you say that it will have little or no impact. Yet, it is the mega awards that cause the fear, and here is one of them. The very thing that causes the fear. If there WERE no verdicts like this, there would be no fear. And if this case hadn't resulted in an expensive verdict, the fear might dissipate based on the fact that, obviously, this kind of thing can happen and NOT result in a big verdict.

But whatever - we can disagree. I'm fine with that, so let's just let it go. I happen to be in a position to see for myself the impact of this verdict, at least on our local diving community (which is where I do the vast majority of my diving, so it's all I have to go on). So I'm basing my opinion on what I'm seeing with my own two eyes, not speculation based on theories of how people react.

 

[Ken Kurtis]

Per Ken’s analysis, which I think is valid, by that point, Dan was out of visual range such that it was not then a matter of just motoring over to him and picking him up. At that point, it would have taken at least an hour or two to find him, if he was findable at all.

3 hours and 20 minutes under a "best-case" scenario that includes having performed an UW search for him at Eureka, then getting USCG permission to leave the site, and conducting (as one of the lawyers termed it) a "rifle shot" search in the fog that in a straight line leads right to Dan, who is still drifiting at 1.24mph while all of this is going on.

I think that if an appellate court is at all put off by the things Dan did wrong or by the size of the award, which is entirely possible, it could rule that Dan’s evidence failed to establish that but for the botched roll call, he would not have been left to drift.

Key point in my testimony at trial. While it's true that Dan's didn't cause the roll call to be botched, it's equally true dan drfited away long before the roll was taken. And, as you pointed out, it wasn't as simple as going "Oh, there he is." At the time a search likely would have been started, Dan was roughly 2 miles away and would drift another 1.25 miles before the Sundiver might gave caught up with him (bbased on my analysis/conjecture).

- Ken

 

[Leejnd]

He actully said that in some early interviews. He wasn't going to sue anyone, just wanted to make sure this never happened to another diver again.

When I was deposed, his lawyer asked me something about that. The questioning was something like:

LAWYER: Do you think Mr. Carlock's motives are simply to make the industry better.
KEN: I think the altruism went out the window long ago.
LAWYER: Really? When?
KEN: When you and your client decided this was worth $4 million for your time and trouble.

- Ken

So perhaps he determined that the ONLY way he could "make sure this never happened to another diver again" was through a lawsuit? Perhaps, as someone else mentioned, he might have decided that standing around at boat docks holding signs to do a proper roll-call might not have the desired effect? I'm just speculating here. I would agree with him, though, if that is the decision he came to. I just don't think the sign-holding thing would have the same effect as a lawsuit.

As for the exchange above - I'm no lawyer, but I thought it wasn't allowed for people to testify about what's inside the head of other people. How can you know what was in his head - what his motivation was? I thought questions like that were usually objected-to by opposing council, given that it would be considered pure speculation.

These are not "attacking" questions, Ken, just points for discussion. I sure don't know his motivation - maybe he smelled money the whole time he was floating out there hoping to get rescued. Did HE testify about his motivation? Just curious.

Thanks again for giving us the inside view!

 

[ScubaSteve]

So perhaps he determined that the ONLY way he could "make sure this never happened to another diver again" was through a lawsuit?

I highly doubt his intentions were as pure as he initially stated. If they are that pure, then he will likely donate the entire settlement to SUDS or some other SCUBA related charity.

 

[Leejnd]

I highly doubt his intentions were as pure as he initially stated. If they are that pure, then he will likely donate the entire settlement to SUDS or some other SCUBA related charity.

I continue to be surprised at people who seem to know what's inside someone else's head that they've never met. But in any case, we have no idea what he plans on doing with the money - assuming he ever sees any. Based on what the legal experts in here are telling us, this is likely going to be appealed anyway. So I would suggest it might be a good idea to hold off on speculating about either his motivations, or what he plans on doing with the money, until a) there actually IS some money (right now it's just all talk - no money has changed hands), and b) the case is truly over so he would be free to actually TELL us what's in his head.

Speculation is fun, tho - I'll give you that!

 

[merxlin]

I continue to be surprised at people who seem to know what's inside someone else's head that they've never met. But in any case, we have no idea what he plans on doing with the money - assuming he ever sees any. Based on what the legal experts in here are telling us, this is likely going to be appealed anyway. So I would suggest it might be a good idea to hold off on speculating about either his motivations, or what he plans on doing with the money, until a) there actually IS some money (right now it's just all talk - no money has changed hands), and b) the case is truly over so he would be free to actually TELL us what's in his head.

Speculation is fun, tho - I'll give you that!

BTW- The reason Ken's opinion was not objected to was that the question was asked by Dan's attorney. I don't think you can object to a question you ask.

As long as we are speculating: You know, Dan was very willing to go out and tell his story before the trial, yet now is noticeably silent. I would think that we would have heard at least a statement from him either admonishing the industry and demanding better standards, or stating that he hopes this sends his message out. I don't think either would jeopardize his case at appeal.

 

[Leejnd]

BTW- The reason Ken's opinion was not objected to was that the question was asked by Dan's attorney. I don't think you can object to a question you ask.

Well that certainly explains it! Thanks for that. I didn't catch that before (reading too fast). Although I have to admit surprise that it was Dan's attorney who asked it. My brother, an attorney, once told me that any trial lawyer worth his salt knows never to ask a witness a question that you don't know how it's going to be answered. That doesn't seem to me like a prudent question for Dan's attorney to ask - but he must have had his reasons. The bottom line is that he won his case, so clearly it didn't hurt!

As long as we are speculating: You know, Dan was very willing to go out and tell his story before the trial, yet now is noticeably silent. I would think that we would have heard at least a statement from him either admonishing the industry and demanding better standards, or stating that he hopes this sends his message out. I don't think either would jeopardize his case at appeal.

I too would love to hear what he has to say, and I agree that statements like that wouldn't hurt an appeal, should one be filed. For all we know, he's reading this thread and biting his knuckles, dying to get in here and set us all straight, while his lawyer is standing over his shoulder screaming "DON'T DO IT! WAIT FOR THE APPEAL!" :cool2:

Dan, if you ARE reading this, you certainly are not helping your standing in the local dive community by remaining silent. Let's hear it!

 

[ScubaSteve]

I continue to be surprised at people who seem to know what's inside someone else's head that they've never met.

As many including yourself have done.

 

[Leejnd]

As many including yourself have done.

Fair enough - I have certainly speculated. Always making it clear, of course, that it is pure speculation - none of us really know what's inside his head, except for him.

The difference, I think, is using the words "I highly doubt...". That indicates a surety to your opinion that I certainly do not feel. I personally find it just as believable that he did this to "send the message" (given that's what he repeatedly stated), as it is that he did this just to enrich his own bank account. But again, none of us really know, do we?

 

[Teamcasa]

When I was deposed, his lawyer asked me something about that. The questioning was something like:

LAWYER: Do you agree Mr. Carlock's motives are simply to make the industry better?
KEN: I think the altruism went out the window long ago.
LAWYER: Really? When?
KEN: When you and your client decided this was worth $4 million for your time and trouble.

- Ken

Mr. Carlock's adventures did have an impact on many divers and Captain's alike.
Will it last? Maybe. Although, I'm pretty sure that it will be the dive boat industry's insurance underwriters that will insure that only a member of the crew will do diver roll calls.

Will it happen again? Yep.