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

[Doug Charney]

Ok, I've avaoided posting here until now. Lots of people keep posting that the award was egregious. Just wondering, what is the exact monetary amount that should have been given in this situation?

If you ask me, Nothing.

It was his own bad actions that sent him drifting in the first place. The roll call was secondary and only prolonged his drift.
Don't get me wrong, I really do feel for the guy. I would not wish that on anyone, well maybe a few .
But it was him that set off the chain of events in the first place. He should have made sure he had a buddy, not play tag along with someone and a student. He should have surfaced immediately when he lost sight of them and the rig.

I'm off to get my flame retardant suit on now...:fire:

 

[merxlin]

If you ask me, Nothing.

It was his own bad actions that sent him drifting in the first place. The roll call was secondary and only prolonged his drift.
Don't get me wrong, I really do feel for the guy. I would not wish that on anyone, well maybe a few .
But it was him that set off the chain of events in the first place. He should have made sure he had a buddy, not play tag along with someone and a student. He should have surfaced immediately when he lost sight of them and the rig.

I'm off to get my flame retardant suit on now...:fire:

I disagree only because the DM was definitely negligent. There does need to be some compensation to this diver. But the award to me does need to be based on the actual outcome, not on the perception of what that outcome could have been. If we discount the skin cancer (highly improbable that this event caused that), it was a 5 hour ordeal. A low six figures to me would still be high, but understandable.

 

[Leejnd]

I'm off to get my flame retardant suit on now...:fire:

Doug, hopefully you won't be subjected to the flames that I'VE received. I'm actually quite stunned at some of the awful things that have been said to me - for the sole reason that I have an opinion on this case, and posted it. Kinda scary.

We are all entitled to our opinions, and have a right to publicly state them without being castigated, or even "banned from all SoCal boats" (as has been threatened to me). I applaud you for doing so, knowing that your opinion might differ sharply from some others.

As for your opinion, I do disagree with you, for reasons I've already stated. But I wanted to remind you that none of us participating in this thread (other than Ken) were in that courtroom. There is much about this case that we don't know...and the jury verdict did come down for the plaintiff, so that says something right there. Ken has done an excellent job of bringing lots of things to light that weren't available elsewhere - and even with all of that (and his obvious position on the side of the defense), many of us still hold to our opinions that the verdict was just.

 

[Doug Charney]

Doug, hopefully you won't be subjected to the flames that I'VE received. I'm actually quite stunned at some of the awful things that have been said to me - for the sole reason that I have an opinion on this case, and posted it. Kinda scary.

We are all entitled to our opinions, and have a right to publicly state them without being castigated, or even "banned from all SoCal boats" (as has been threatened to me). I applaud you for doing so, knowing that your opinion might differ sharply from some others.

As for your opinion, I do disagree with you, for reasons I've already stated. But I wanted to remind you that none of us participating in this thread (other than Ken) were in that courtroom. There is much about this case that we don't know...and the jury verdict did come down for the plaintiff, so that says something right there. Ken has done an excellent job of bringing lots of things to light that weren't available elsewhere - and even with all of that (and his obvious position on the side of the defense), many of us still hold to our opinions that the verdict was just.

A jury also aquitted OJ Simpson....

I'm just saying!

Sorry that you've been treated that way. I think everyone is entitled to their opinion. Too bad some people get their panties in a bunch over it.
Like I said, I have nothing but sympathy for the guy, but rules are there for a reason, he didn't follow the rules. As for the DM, I feel for him too. No one intentionally left Dan. I sure the kid thought all was good until it wasn't.

 

[Ken Kurtis]

Was it proven that Dan didn't attempt to swim to the boat?

Well, the fly in this ointment is the word "prove".

Firast of all, realzie that because I was a witness, I wasn't allowed to be in court when anyone else testified. So I don't know 100% what Dan said in court. But I do have info from his six depos and what the lawyers relayed to me prior to my testimony.

Dan testified didn't attempt to swim to the boat. He did say that he may have kicked ("relentlessly") for about a minute and then was afraid he'd cramp up so he stopped. Now I don't think he ever said he got cramps, but only that he feared he would get cramps if he continued kicking. So he testifed that he decided to "hold his position" and wait to be picked up, which I hear as meaning he then just drifted with the current.

I testified that he could have kicked back. A Scubalab test showed his fins could go 2.6mph. The current was 1.24mph. Also, once in the current and drifting, he'd have no sensation of movement, so the current in and of itself wouldn't be tiring him out or causing cramps. I produced a number of charts that showed, at various kick speeds, that he could have made it back to the boat before the boat left.

(And this ignores totally the thought that if he was kicking back and even making limited headway to the boat, that he would have increased his chances of being spotted because he would have been [1] close, and [2] splashing.)

On cross-examination, Dan's lawyer contended that "hold his position" REALLY meant not that Dan was just drifting with the current (and out of sight into the fog as I contended) but that he was kicking just hard enough to hold his position relative to the oil rig which is also how he was able to see the boat leave at 9:30, 21 minutes after he surfaced.

So I don't see why he'd say he wasn't kicking if he really was kicking to hold his position. I don't see how, if he's concnerned about leg cramps, he could kick for 21 minutes non-stop. I don't see how, if he was able to kick at 1.24mph for 21 minutes, that he couldn't have kicked just a LITTLE harder and made it back to the boat.

But the answer to your question is we don't really know. I take Dan at his word: He really didn't make any effort to kick back to the boat. I think his lawyer was simply trying to confuse the jury and defuse a potentially problematic area for them.

- Ken

 

[Ken Kurtis]

Just taking a wild guess, I would bet Dan will be billed by his attorney at a very high rate for the time he spent listening to your ramblings about your radio career.

Even better (because whoever calls the depo witness has to pay them) I got to bill THEM my very high rate for telling them of my rambling radio adventures.



- Ken

 

[Leejnd]

A jury also aquitted OJ Simpson....

I'm just saying!

Now THAT'S a "touche" if I ever saw one!

Sorry that you've been treated that way. I think everyone is entitled to their opinion. Too bad some people get their panties in a bunch over it.

Thanks. It's been rather upsetting - but as you can see, I've continued to post. I refuse to let threats stifle my free expression. If anything, I've been MORE active in this thread if only to send that message. :mooner: None of us should feel afraid to exercise our right to free speech.

As for the DM, I feel for him too. No one intentionally left Dan. I sure the kid thought all was good until it wasn't.

Agree 100%. I feel bad for everyone involved in this case. Including the other divers on the boat - that couldn't have been a fun experience for them either.

 

[doctormike]

If you ask me, Nothing.

It was his own bad actions that sent him drifting in the first place. The roll call was secondary and only prolonged his drift.

A jury also aquitted OJ Simpson....

I'm just saying!

Sorry that you've been treated that way. I think everyone is entitled to their opinion. Too bad some people get their panties in a bunch over it.
Like I said, I have nothing but sympathy for the guy, but rules are there for a reason, he didn't follow the rules. As for the DM, I feel for him too. No one intentionally left Dan. I sure the kid thought all was good until it wasn't.

Hmmm... well, I'm not a lawyer, but...

One of the things that goes into figuring a reward in cases of negligence is the concept of duty. I know something about medical malpractice, so I'll use that as an example.

For a medical malpractice to exist, there needs to be three things: (1) a duty to care for the patient (i.e. a doctor-patient relationship), (2) neglect of that duty, and (3) damages.

So if I write an article that says that drug X is good for condition Y, and someone with Y takes that drug and has a bad outcome, I'm off the hook as far as medical malpractice, since I have no duty to care for that patient (3, but no 1). Similarly, if a patient comes to my office and I give him a drug but forget to check his chart to figure out that he is allergic to that drug, and he takes it and does not have an allergic reaction, I'm also off the hook (1 and 2 but no 3).

SO, the reason why the DM's negligence might be considered relevant and Dan's is less so, is that the DM was acting as a professional to provide a service, and the jury concluded that accurately checking people in and out of the water was part of that service - that the DM had a duty that was neglected.

To extend the analogy with medicine - I see a patient and do a biopsy. The results come back as cancer, but the pathology report gets lost on my desk and I never call them. But the patient also misses a follow up visit, and they never call me to get the results.

If they had come in for a visit or called, they would have gotten the results, so their actions were definitely contributory to missing the diagnosis. However, that means nothing, since the duty to care is mine, and malpractice would exist.

Maybe the lawyers here can discuss the differences between the medical and dive industries in this regard - I'm sure that there are some. But I think that the similarity does exist in the question of the duty of the professionals involved in this case. To say that the award should be nothing because if Dan hadn't drifted off, he wouldn't have had the problem, does not acknowledge the role of professional negligence, IMHO.

 

[Ken Kurtis]

Divers are told in the briefing that the boat will come get you.

That is not quite true.

Divers are told in the briefing to surface in the same area where they are dropped (usually the NW corner or the or the east side [NW-to-SW corner]). They will then be directed (by someone on the boat) to swim out on the surface to the boat, or to group together to be picked up, or whatever.

Yes, there's an implication there that the boat will be in a position to get you, but to make it sound like you're told speficially "The boat will come get you" overstates it, IMHO. And the reality is that sometimes, you just swim over to the boat.

- Ken

 

[merxlin]

.................As for the DM, I feel for him too. No one intentionally left Dan. I sure the kid thought all was good until it wasn't.

I will very strongly disagree here. The DM had a job to do and did not do it. As soon as he realized Dan was not on board at the second location (this is excusing the DM for marking him in at the first location under the assumption someone answered for Dan during roll call), he should have stepped up and told the captain. This would have done two things- eliminated the appearance of a cover up, and also put into the search effort that he may have been at the first site. By marking him in the water at the second site, that was where the search effort concentrated.