Parents sue Boy Scouts for 2011 negligence death

[Basking Ridge Diver]

I am not an instructor - but even I will not take a PADI class in the future... Wow... Very sad that this behavior is even contemplated never mind condoned by an agency...

 

[RJP]

I don't know a thing about this case, and I have no idea whether the writer of the cited letter has the inside scoop either. But one thing in his letter strikes me as odd.

Though he provides a lot of detail that he presents as facts in the body of his letter... why does he say towards the end of the letter "If the above criteria as cited is true (and it is accurate and verifiable), then the diving industry has fallen to a shameful level..." ??

If he's uncertain as to whether the detailed information he included in his letter is true... why did he write the letter?

If he does believe the information he included in his letter is true... why does he feel the need to provide a conditional disclaimer in his letter?

The only other thought I have on the subject is this...

Although this case/topic has been brewing for quite a while, the writer of the letter was able to hold his tongue (pen?) for all these many months. But after "much thought and reflection" he feels that "eventually a point is reached where he feels compelled to speak out." And apparently that point just happens to be the week before DEMA.

Pulling the pin from a grenade by issuing a white paper or position piece the week before an industry trade show is a tried-and-true tactic for stirring things up and driving booth traffic. It gets people coming to your booth and patting you on the back and buying you drinks every night, while ensuring that your competitor has to spend the whole show defending themselves.

I wonder how long the "Should we include 'Be sure to visit us at booth #1731' in the letter" discussion went on?

:shocked2:

 

[JohnN]

I don't know a thing about this case, and I have no idea whether the writer of the cited letter has the inside scoop either. But one thing in his letter strikes me as odd.

Though he provides a lot of detail that he presents as facts in the body of his letter... why does he say towards the end of the letter "If the above criteria as cited is true (and it is accurate and verifiable), then the diving industry has fallen to a shameful level..." ??

If he's uncertain as to whether the detailed information he included in his letter is true... why did he write the letter?

If he does believe the information he included in his letter is true... why does he feel the need to provide a conditional disclaimer in his letter?

The only other thought I have on the subject is this...

Although this case/topic has been brewing for quite a while, the writer of the letter was able to hold his tongue (pen?) for all these many months. But after "much thought and reflection" he feels that "eventually a point is reached where he feels compelled to speak out." And apparently that point just happens to be the week before DEMA?

Pulling the pin from a grenade by issuing a white paper or position piece the week before an industry trade show is a tried-and-true tactic for stirring things up and driving booth traffic. I would have included "Be sure to visit us at booth #1731!"

:shocked2:

Given PADI's apparent propensity to litigate to protect their brand, I see the disclaimer "If the above criteria as cited is true (and it is accurate and verifiable). . ." as a prudent and reasonable hedge against a potential liable suit.

The timing is interesting, however an equally valid observation would be that you pull the pin from the rhetorical grenade before an event (DEMA) to maximize the effect during that show. I think the industry would be well served if the PADI representatives are made extremely uncomfortable about PADI's behavior in this case, including someone outside of the dive industry media picking up the story.

Kudo's to Mr. Carney

 

[Wookie]

Given PADI's apparent propensity to litigate to protect their brand, I see the disclaimer "If the above criteria as cited is true (and it is accurate and verifiable). . ." as a prudent and reasonable hedge against a potential liable suit.

The timing is interesting, however an equally valid observation would be that you pull the pin from the rhetorical grenade before an event (DEMA) to maximize the effect during that show. I think the industry would be well served if the PADI representatives are made extremely uncomfortable about PADI's behavior in this case, including someone outside of the dive industry media picking up the story.

Kudo's to Mr. Carney

I agree, I believe that this is Mr. Carney's attempt to avoid a defamation or libel suit. I don't have any idea how successful he has been at that, but I'm sure Mr. Richardson is meeting with his corporate attorneys.

Regarding the timing, this is sure to be the talk of DEMA. If not now, when is better? January? I was going to renew last weekend after I renewed my TDI/SDI. I will choose not to do that now. If not now, When? If not Brian Carney, who? Who should take a leadership role and call PADI on the table? Who will take responsibility for cleaning this mess up? Peter Meyer tried, it cost him his job, although I'm fairly certain his parachute wasn't too shabby. Why did it cost him his job? Turns out PADI's owners, the nameless faceless horde who don't dive are corporate clients of Willis in New York.

The wheels go round and round...

 

[whitefang21]

For the most part I don't cut and paste anything unless I am quoting a person. My articles, essays, and book are all my own words, even though someone insinuated that was not the case, based on my own actual research, experience, training, and beliefs. But this was sent to me by someone following the discussion here and on one of my linked in groups. Too good not to share it.

"You are receiving this email from us in response to the recent PADI Insurance Alert which was sent out via bulk email. If you did not receive the PADI Alert, please accept our apologies and ignore the contents of this email. We would also invite any and all concerned members of the dive community to contact me directly with any additional questions or concerns regarding this issue at any time.

PADI “INSURANCE ALERT”​

You have to hand it to PADI, they do know how to cause a fuss. They should, however, stick to trying to explain their own program because they inevitably get it wrong when talking about ours. Here are the facts:
1. While we do want to make some changes to the ratios we insure for Discover Scuba diving (DSD) type programs, those changes will not affect any policies already in force at January 1, 2013.
2. We have been discussing introductory program ratios with many of the training agencies out there and believe that changes are needed (some have already changed and some are reviewing changes as we speak). You should know, however, that this has nothing whatsoever to do with SDI as suggested by the PADI alert. We have never had any issues, or claims, involving SDI introductory programs, or SDI members involved with introductory programs. Our issues are strictly with the PADI DSD program. The real problem is that PADI ratios are not defensible in many circumstances (more on that later).
3. This is not new information and there is no need for any drama. PADI have been aware of our concerns for quite some time (years in fact) and we have been discussing those same issues with Willis insured’s on a continuing basis.
4. If you are a current Willis insured with a policy issued prior to January 1, 2013 you are fully covered for PADI DSD Programs, even with a 4:1 ratio. You do not need to take the precaution of “immediately reducing introductory scuba program ratios”, “or risk denial of coverage” as the PADI Alert says. Your current policy guidelines remain in effect. I’m not sure why PADI has to misrepresent the truth when they could have simply asked us, but that seems to be their typical modus operandi.
So, the PADI “Alert” is incorrect as usual. Now let’s turn our attention to the real issue at hand.
INCIDENT #1
On July 13, 2011 two minors (a 12 year old boy and a 13 year old boy) and an adult participated in a Dive Experience program (Discover Scuba Diving) led by a certified PADI Instructor. During their return to shore along a safety line, at a depth of 14 feet, the adult had issues with buoyancy and began to make a rapid ascent to the surface. The Instructor quickly caught the surfacing diver and returned to the safety line to find both boys missing.
One of the boys was found safe and sound on the surface and the other was found unconscious on the bottom. He never recovered.
This incident has resulted in legal action against PADI and the individual Instructor involved (The Estate of David Christopher Tuvell v. Boy Scouts of America, Professional Association of Dive Instructors (“PADI&#8221, et al, Case No. 1:12-cv00128 U.S. District Court for the District of Utah).
Now comes the interesting part. Willis insures the instructor involved and immediately assigned a well-known dive attorney, David Concannon, to perform a site evaluation and review the incident. Based on this investigation, it was clear that all PADI DSD standards had been met. The instructor involved reported the incident to PADI in the required manner and was summarily expelled from PADI, just 13 days after the incident. The only reason given by PADI was: “your continued membership is not in the best interests of PADI.”PADI did not do an on-site investigation, interview any witnesses or even obtain a copy of the police report. PADI also did not provide the instructor with any reference to standards that may have been violated, yet they expelled him immediately (copy of the redacted letter attached). The instructor formally requested a review by PADI (copy of his redacted letter attached) but he has had no response whatsoever.
Who is currently defending this PADI instructor? The Willis Dive Program underwriters!
PLAINTIFF ATTORNEY IS A PADI INSTRUCTOR
Interestingly, the plaintiffs’ attorney who is suing PADI and the PADI Instructor on behalf of the family in the Tuvell case is also a PADI Master Instructor. See: http://www.divelawyer.com/about-us/our-team/ According to the plaintiffs’ lawyer’s web site, “Mr. Hall has been a PADI open water instructor since 1984, with a Master Scuba Diver Trainer rating having provided instruction on every level of diving including numerous specialties. He is a certified NACD cavern instructor, a cave diver through NACD, GUE and NSS-CDS and a recipient of the Wakulla award, and holds additional certifications through IANTD. He has vast experience with mixed-gas diving, deep diving, cave exploration and wreck penetration.”
And what are some of the allegations he is making in the complaint?
· “The PADI DSD program in use by the defendants was defective in all its design and elements negligently created, and inappropriate for use.”
· “The Defendants were all aware of the defects in the program,”
PADI STATISTICS
This is only one of many reported incidents involving DSD programs over the last few years, and it is clear from these reports that current ratios and age requirements are not adequate for these programs. According to PADI statistics (DAN Dive Fatality Proceedings 2010) there were 36 DSD fatalities reported between 1989 – 2008 and there have been many more since. The following statistics were provided by Drew Richardson at the DAN workshop:

[TABLE="class: MsoNormalTable"]
[TR]
[TD]Program[/TD]
[TD="colspan: 5"]Historical Fatality ratio (fatalities per 100K dives)[/TD]
[/TR]
[TR]
[TD][/TD]
[TD]

1989 - 1998​

[/TD]
[TD]

1999 - 2008​

[/TD]
[TD]Average[/TD]
[TD][/TD]
[TD][/TD]
[/TR]
[TR]
[TD="width: 266"]Entry Level[/TD]
[TD="width: 155"]

0.341​

[/TD]
[TD="width: 176"]

0.415​

[/TD]
[TD="width: 124"]

0.378​

[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"]Advanced Open water[/TD]
[TD="width: 155"]

0.74​

[/TD]
[TD="width: 176"]

0.589​

[/TD]
[TD="width: 124"]

0.6645​

[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"]Discover Scuba Diving (DSD)[/TD]
[TD="width: 155"]

2.898​

[/TD]
[TD="width: 176"]

1.14​

[/TD]
[TD="width: 124"]

2.019​

[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"]Rescue Diver[/TD]
[TD="width: 155"]

0.143​

[/TD]
[TD="width: 176"]

0.091​

[/TD]
[TD="width: 124"]

0.117​

[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"]Specialties (deep, night, wreck etc.)[/TD]
[TD="width: 155"]

0.287​

[/TD]
[TD="width: 176"]

0.82​

[/TD]
[TD="width: 124"]

0.5535​

[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"]Divemaster[/TD]
[TD="width: 155"]

1.016​

[/TD]
[TD="width: 176"]

0.031​

[/TD]
[TD="width: 124"]

0.5235​

[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"][/TD]
[TD="width: 155"][/TD]
[TD="width: 176"][/TD]
[TD="width: 124"][/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"][/TD]
[TD="width: 155"][/TD]
[TD="width: 545, colspan: 4"]*ratio was reduced from 6:1 to 4:1 in 2001[/TD]
[/TR]
[TR]
[TD="width: 266"][/TD]
[TD="width: 155"][/TD]
[TD="width: 176"][/TD]
[TD="width: 124"][/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[/TABLE]
Even PADI’s own numbers suggest that the DSD program has issues!

INCIDENT #2
There is current case law which indicates that 4:1, 3:1 and even 2:1 ratios are dangerous under certain circumstances. Isham v. Padi Worldwide Corp., 2008 U.S.District Court Hawaii…, is a good example for several reasons:
1. The PADI Instructor involved, who was seriously injured himself during the accident, actually sued PADI for “Fraudulent Concealment” and “Negligent Misrepresentation” with respect to the safety of the DSD program. There was a “confidential” settlement in that case.
2. The injured DSD participant also sued PADI and there was a “confidential” settlement with him as well.
3. The judge in that case, included several negative comments in one of his orders (copy attached for review):
a. “PADI received letters from its members who ran PADI dive instruction classes. One such letter said “Please consider changing the ratio to 2:1 (but whatever you do – DO NOT increase the ratio)”
b. “PLEASE-PLEASE-PLEASE DO NOT change the maximum depth limit of 30 feet.”
c. “Shortly after the Discover Scuba Experience was released, PADI received another letter, which was written by a PADI member who employed 102 PADI instructors and averaged 55 introductory dives a day, The letter stated that “past experience has proven that even the most experienced of staff can have difficulty with only four participants even under “ideal” condition.”
d. “In 1997, a participant in the Discover Scuba Experience got separated from the group and died by drowning. The Coast Guard investigated that death and determined that the drowning occurred because of the participant’s diving inexperience and the lack of direct supervision by the dive instructor. The Coast Guard further determined that the Discover Scuba Experience instructions were ambiguous with respect to the meaning of direct supervision and in other respects.”
e. “The Coast Guard strongly recommended that PADI clarify their Discover Scuba Experience manual and that it was imperative that they provide clear instruction to help prevent dive casualties.”…”PADI did not provide evidence that it clarified its instruction manual regarding direct supervision”.
“Direct Supervision”, or the inability to provide it, appears to be the real issue here. If you have a problem with a DSD participant and have to attend to that individual, the rest of your participants are technically “alone” at that point. Regardless of your ratio it seems clear that this ends up being a violation of PADI standards!

CONFIDENTIAL SETTLMENTS
Confidential settlements seem to be a recurring theme with respect to DSD litigation and we must wonder why that is? We also have to wonder why there are so many? Of course, we don’t know the real numbers, but we think it would be beneficial to the industry at Large if PADI shared these numbers. After all, isn’t that how we improve the safety of our sport for all participants?
I could keep going on and on with examples like Veasey v. Hubbard et al..., 2011 U.S.District Court Hawaii, but the few we have discussed here surely have to be enough to cause some concern about the safety of current PADI DSD standards.

QUESTIONS?
So, if the information presented here has caused you some concern, we would suggest you contact PADI and V&B and ask for formal clarification of the following questions:
1. If a PADI Instructor conducts a DSD program with 4 participants and has to deal with an emergency situation involving one of the participants, is he / she still able to meet the PADI requirement to maintain “direct” supervision of the other participants?
2. If a PADI Instructor cannot maintain direct supervision of all his / her DSD participants because he / she need to address an emergency issue, and an accident results, will PADI expel the Instructor as they did with the instructor in the Tuvell case?
3. If I am expelled from PADI, will my V&B insurance still defend me like the Willis insurance is doing in the Tuvell case?
I think you need to get the answer to these in writing, because your future, or the future of your business, may well depend on it.

If the answers to these questions (if there are any!) leave you a little less than reassured, maybe it’s time to start looking for a different training agency?
While our primary goal is to provide appropriate insurance coverage for our client’s activities, we also feel it is important to help our clients avoid significant exposures of this nature, and that is the reason for this update. All Dive Leaders, Dive Facilities and Dive Vessels providing DSD type programs to their customers, need to be aware of these important issues, and should spend some time developing proactive Risk Management protocols specifically aimed at preventing DSD accidents.

ONE LAST COMMENT TO PADI
I would like to offer one last personal comment to the powers that be at PADI. Why do you have to behave like this? DIVE INSURANCE ALERT indeed! This is serious stuff – many people have lost their lives, a 12 year old boy is dead, an instructor who followed your standards is expelled by PADI without due process and is sued as a result – and you are concerned about selling insurance!
Shame on you.


Best regards.


Peter Meyer
Willis Recreational Dive Programs

RJP this is not new, and has nothing to do with dema. I think it Jim Hit it right on the head when he posted his quote.

I am not agency bashing here but who wants to be supported by agency that do not support you especially when you follow the standards.

This could be any of us that is the sad part.

 

[armywife(ret.)]

Same topic. Different release. Check out the dates... All in all, a sad state of affairs. Has anyone read the referred documents listed in newest letter from Mr. Carney? I would be interested in the FACTS regarding the tragedy.

 

[Wookie]

Same topic. Different release. Check out the dates... All in all, a sad state of affairs. Has anyone read the referred documents listed in newest letter from Mr. Carney? I would be interested in the FACTS regarding the tragedy.

I have spoken to the attorney representing the dive instructor. He has commented on a facebook page I am a party to. The reason they are stated as facts is that there has been finding of fact in the case.

 

[JohnN]

Same topic. Different release. Check out the dates... All in all, a sad state of affairs. Has anyone read the referred documents listed in newest letter from Mr. Carney? I would be interested in the FACTS regarding the tragedy.

There was another thread where a link to all the court documents (at that time). It was a long but interesting read. Memorable was the presiding judge spanking both PADI and their attorneys

----------------Added-----------------------
Found it !

gotta love google


http://www.scubaboard.com/forums/sc...tructor-under-bus-while-misleading-court.html

 

[Dr. Lecter]

Same topic. Different release. Check out the dates... All in all, a sad state of affairs. Has anyone read the referred documents listed in newest letter from Mr. Carney? I would be interested in the FACTS regarding the tragedy.

I have read the order and some of the briefing available from PACER. The upshot is that the only legal misstep PADI made was allowing the plaintiffs to file an amended complaint that kept PADI in as a party after the settlement that removed any actual claims against PADI. The secret settlement and collusion against the instructor was a lot of things, but if you read the judge's opinion that ultimately sanctioned PADI and the plaintiffs, it wasn't legally improper in and of itself.

The legal problem was a lack of candor to the tribunal, by presenting a new document purporting to assert claims against a completely settled-out defendant (PADI). Under the procedural rules in place for this court, however, they could have settled PADI out and then continued to litigate without informing the court or the other defendants...right up to trial. Lying by omission, in effect, would have been OK. But they couldn't make an affirmative misrepresentation like filing an amended complaint naming PADI as a defendant when PADI was already fully released from all liability.

 

[JohnN]

I have read the order and some of the briefing available from PACER. The upshot is that the only legal misstep PADI made was allowing the plaintiffs to file an amended complaint that kept PADI in as a party after the settlement that removed any actual claims against PADI. The secret settlement and collusion against the instructor was a lot of things, but if you read the judge's opinion that ultimately sanctioned PADI and the plaintiffs, it wasn't legally improper in and of itself.

The legal problem was a lack of candor to the tribunal, by presenting a new document purporting to assert claims against a completely settled-out defendant (PADI). Under the procedural rules in place for this court, however, they could have settled PADI out and then continued to litigate without informing the court or the other defendants...right up to trial. Lying by omission, in effect, would have been OK. But they couldn't make an affirmative misrepresentation like filing an amended complaint naming PADI as a defendant when PADI was already fully released from all liability.

PADI's lawyers managed a double-double, stupid and lacking in ethics.