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November 12, 2014
An Open Letter of Personal Perspective to the Diving Industry
by
Brian Carney
President of SDI/TDI/ERDI
I have spent the better part of the last 25 years of my life working in the diving industry. It has been my consuming passion including everything from working at an aquarium as a diver, to teaching a University diving program, to being part of the Executive management team of a manufacturer, and now my current position as President and CEO of SDI/TDI/ERDI. Over this period of time I have thoroughly enjoyed working with people from all over the world, and training others to experience breathing underwater for the first time. This is the reason I decided to make a commitment to a career in this industry.
Through my experiences, and as I have assumed more and more responsibility, I have observed a lot of evolution, innovation, and industry trends. Due to these responsibilities and my position within an international training agency, I feel it is my duty to bring to light some of the things that have recently occurred in this industry. They remain closeted and buried in confidentiality protocols that are detrimental to our collective business models and to the overall growth of diving. Those of you who have worked with me over the years know I prefer to talk about positive things. I believe that if I cast aspersions at my competitors, I set the wrong example of how people in this industry should work. Those who know me will tell you, I expect this of all the people I work with... professional respect and a duty to advance the industry as a whole. I personally feel there is no place for disparagement in this industry.
But eventually a point is reached where I feel compelled to speak out. Because of my personal beliefs, I have recently struggled with the issue of whether or not I should offer personal comment on the recent tactic another training agency has chosen to take towards its instructor members. I believe their actions are damaging to the entire diving industry. After much thought and reflection, I decided that, regardless of which agency I belong to, I have a greater responsibility to the industry as a whole to focus a spotlight on this tactic. Because, if this is the direction we are going, we are in grave trouble.
There is currently a lawsuit underway in federal court in Utah (Tuvell v. Boy Scouts of America, et al., Case 1:12-cv-00128-DB), where a boy lost his life in a PADI Discover Scuba Diving program. Normally, PADI supports its members and vigorously defends litigation. But not this time...
PADI did something strange after the Utah incident: less than two weeks after the accident, without conducting any investigation, without interviewing witnesses or waiting for the authorities to complete their investigation, PADI expelled the instructor, a veteran of the Iraq war, from PADI membership. The agency gave no reason other than that the instructor's continued membership "was no longer in the best interests of PADI". When the instructor asked PADI to explain its reasoning or identify which PADI standards he had violated, PADI never even gave him the courtesy of a response.
When the boy's parents filed litigation, PADI chose to settle the plaintiffs' case against their organization secretly and attempted to cloak the settlement in confidential agreements. PADI then illegally colluded with the plaintiffs' attorney to file false pleadings so PADI could remain a party to the case and secretly work against its own member. This was after already settling themselves out of the litigation. When this conduct came to light, PADI was sanctioned by a Federal Judge for its misbehavior. You can access and review this "Document 182" in the case file, which is available to the public at www.pacer.gov.
PADI also took other harmful action in the case. They paid a considerable sum of money to settle the case (the exact amount is noted in the transcript of the April 23, 2014 court hearing where PADI was sanctioned and is also available in the case file on www.pacer.gov.) But incredibly, the settlement agreement (that PADI prepared) contains a clause where the parties agreed that PADI's member was 100% at fault. Then, after the settlement, PADI turned over its instructor member's incident reports to the plaintiffs without a request or ever informing the member that it was doing so.
These are the reports that all members are required to file as a condition of their PADI Membership Agreement. These are the same risk management documents that say on them: "THIS REPORT IS PREPARED FOR THE PURPOSE OF RECEIVING LEGAL ADVICE FOR USE IN ANTICIPATED LITIGATION". In other words, the incident reports are privileged. They are protected from disclosure by both the attorney/client privilege (which belongs to the member instructor) and the attorney work product doctrine (which belongs to both the member and PADI). Then, when the member's attorney insisted that PADI recall the documents and protect them on the basis of privilege, PADI refused to do so. Remember, PADI had entered into a secret settlement with the plaintiffs that included a collusion clause.
It's sort of the ultimate example of throwing an instructor under the bus to selfishly protect their own corporate interests and sacrificing the member to take the fall when that instructor had actually followed every applicable PADI standard!
Now, the details of what actually happened during the dive will come out upon completion of the case, but from what is in the public domain now, the instructor followed all required training standards. So, you have to wonder why PADI would so quickly expel one of their members without an investigation and then secretly collude with a plaintiffs' lawyer to hold the members liable. Well, the reason can only be hypothesized, as PADI has yet to respond to multiple requests in both Federal Court and the court of public opinion. But the answer is pretty clear and obvious to any observer with access to the "behind the scenes" facts.
My reason for writing this open letter to the industry is to shed some light on why PADI engaged in such bizarre behavior in the Utah case. The dive center and instructor being sued in the Utah case carried insurance with Willis Insurance, which is not a member of the PADI endorsed program. So PADI, knowing this was an accident that could generate bad publicity and call into question the safety of its Discover Scuba Diving program, wanted to get out of the case as quickly and as quietly as possible. Because it would not hurt their own endorsed insurance program, PADI chose to simply expel the member and point the finger at him because it wouldn't cost them anything. This theory is further supported by the fact that PADI's underwriters filed a related federal lawsuit asking the court to order Willis' underwriters to pay PADI's legal fees in the Tuvell case.
PADI's underwriters continued to be involved in this case for another year in collusion with the plaintiffs' after PADI settled their own liability in the Tuvell case. They also never disclosed to the Federal Judge that PADI had settled the underlying case. In other words, PADI was trying to have Willis pay its lawyers' fees for colluding with a plaintiffs' attorney to hold Willis's insured parties liable.
You are most likely asking yourself, why I am drafting this notice and defending a PADI instructor who had a fatality during one of his courses. It is because I believe that one of the biggest dive training agencies in the world has an obligation to lead in a positive way so the whole industry can benefit. In years past, this type of behavior -- lying in court and colluding with plaintiffs -- was frowned upon by everyone. Not to mention being illegal. As a matter of fact, PADI has famously chastised and ridiculed attorneys and expert witnesses, who used to work on their own behalf for defense litigation, but now do other work with plaintiffs as well. Are you beginning to see the absurd context of all this? By this reasoning, it's perfectly fine for PADI themselves to collude with plaintiffs to "sand bag" their own instructor member and conspire against his defense... while simultaneously condemning all others for doing plaintiffs work of any kind.
To see PADI take this step should be of great concern... for not just every dive instructor in the industry, but also every dive store owner, manufacturer, and media person, because now you have to worry whether you can trust PADI at all. You have to ask yourself, "Will PADI do the same to me if it serves their interests? Am I the next victim going under the bus?"
I have never worked against any instructor... regardless of the agency they belong to and the fact that they might be competitors. Rather I have chosen to advocate for them when they are in a time of need. From my perspective as a training agency president and active diving industry businessman, PADI's action was irresponsible, secretly self-serving, and reeks of a big corporation attempting to sacrifice their own member who had acted completely within their standards of conduct. Such actions are beneath contempt and not in the best interests of the diving industry as a whole.
I conclude this letter by saying, I recommend and urge every dive professional in the industry to ask the organizations they are working with to put in writing that if you follow their standards, you will be supported by the organization you teach with. SDI/TDI/ERDI will be happy to do this regardless of the insurance carrier you use and I challenge all the training agencies to do the same. How can we work as instructors in the industry for organizations if we can't trust them to provide vigorous defense when accidents happen and standards are followed? Are the standards there only to protect and enable the agency in blaming the instructor no matter what happens?
If the above criteria as cited is true (and it is accurate and verifiable), then the diving industry has fallen to a shameful level and further contributes to undermining our collective interests and the overall business model for the sport of diving.
I regret having to write this letter... deeply so. And I know some will chastise and ridicule me for bringing this to light, but it would be irresponsible of me not to make this a discussion we all need to have. How long will it be before we destroy this industry from within? I love diving and all the segments that the industry is made of. It is too bad some of the people in this industry do not share the same passion that I do in protecting it. I would welcome an open discussion with anyone including heads of training organizations, manufacturers, and other industry professionals.
It is time for everyone in this industry to act responsibly and work together. And if a manufacturer, training agency or other dive professional chooses not to... spend your money elsewhere. Because sometimes at the end of the day, the only way that change will occur is how you spend your money. You literally can take that to the bank.
It's all about ethics in the end. You decide what path you think should be taken. For me, it's clear and based on common sense. And it's the right thing to do.
Sincerely,
Brian Carney - Brian.Carney@tdisdi.com
President
For more information on the ongoing litigation and to verify the above references, go to www.pacer.gov and follow Tuvell v. Boy Scouts of America, et al., Case 1:12-cv-00128-DB, in the United States District Court for the Northern District of Utah.
