The tragic death of David Tuvell is heart breaking. The individuals named as defendants – particularly Corbett Douglas – undoubtedly face significant legal and personal challenges. The fact that Douglas is a veteran, a school teacher, and apparently volunteered his time in this incident makes him a sympathetic figure – for divers all the more so. Those that know Douglas personally undoubtedly empathize with him.
Many on this board and elsewhere feel that Douglas has been treated unfairly by PADI. You can draw your own conclusions as to why PADI seems to be viewed negatively, particularly as to the events of this case, by many divers with a passing knowledge of this case.
The pleadings give a procedural picture of the case, but do not reflect what has occurred in the confidential mediation sessions – aside from a small snippet revealed in the transcript doc 157 – and of course do not reflect the informal settlement discussions between the various parties’ attorneys. The various insurance companies influence on the case is also unknown. What is certain is that this case – if it goes to trial – has a long way to go. Whatever your thoughts are on the issues involved, if the case goes to trail you will have more opportunities to weight in.
Keep in mind that roughly two percent of all federal civil cases go to trial. Settlement negotiations have occurred, and will continue to occur right up until the point where the jury returns its verdict. More likely than not, this case will result in settlement(s) that are confidential. Many might find it unusual in this case that the big party defendant – PADI – didn’t force plaintiffs to settle out the entire case; rather they left the remaining defendants to their own devices. Best practice would call for the settlement to dispose of the case, wrapped in a veil of confidentiality. Why did they not do so?
Case 1:12-cv-00128-DB, is a complex civil action being heard before an Article III court in Utah.
The case is captioned;
CHRISTOPHER JOSEPH TUVELL, SHERRY LYNN TUVELL, individually and as the heirs of David Christopher Tuvell, and THE ESTATE OF DAVID CHRISTOPHER TUVELL, Plaintiffs, vs. BOY SCOUTS OF AMERICA, PROFESSIONAL ASSOCIATION OF DIVE INSTRUCTORS ("PADI"), BLUE WATER SCUBA, LOWELL HUBER, CORBETT DOUGLAS, GREAT SALT LAKE COUNCIL, INC., BOY SCOUTS OF AMERICA.
The individual defendants in the original caption are Lowell Huber and Corbett Douglas. The medical personnel that treated Christopher Tuvell join the party in their individual capacities soon after the original complaint was filed, as well as an under-age party.
The case is in early procedural stages. The scheduling order – doc 178 – sets deadlines for the parties, the red letter date being the October 2015 trial date.
Notable is PADI’s settlement with the plaintiffs for a reported $800k (see doc 157), leaving them without a “seat at the table” or being the “empty seat” should the case go to trial.
Below you will find excerpts from the transcript doc 157. The judge sanctioned PADI and their attorneys, leveling a $2k sanction. This was a minor amount, but a big smack at PADI’s attorneys as they were hit with the 2k sanction on an individual basis. So, where does the leave the case?
The Blue Water Defendants asked the judge to restore the procedural posture of the case to the historical time point where PADI settled out. Motions were filed and the judge held a hearing the details of which are in doc 157/Transcript. The judge concurred with the BWD and the case was essentially reset to the point where PADI settled out.
If you want a copy of most of the pleadings to date in the case; PM me and I will email you the docs. Or you can download the docs from PACER at a cost of about $20.
Brian Carney’s email of today is interesting – he certainly puts his personal and his agency’s (TDI/SDI/ERDI) opinions of the case on record. Of course Carney is not the judge and the case is far from settled. At times he is judgmental in his opinions where the court has yet to rule. While his opinion that Douglas’ report to PADI is privileged is boldly stated, the issue of this document’s status has not yet been raised in the case and of course not ruled on by the court.
It would be illuminating to review the PADI/Instructor membership agreement-contract to see what the parties have agreed to. Perhaps a ScubaBoard member will post the agreement? In light of the agreement, would it would be worth speculating if Douglas has a potential action against PADI given his summary ouster and the public thrashings he has endured, given that the facts in the Tuvell case are far from being determined.
If you read the pleadings it is helpful if you have a basic grasp of the federal and Utah rules of civil procedure, how they interact in a federal case, how fault is apportioned, the local court and courtroom rules, and the relevant cases cited in the pleadings. The Mary Carter issue that PADI leaned on is interesting, as is the judge’s consideration of it.
As in most personal injury/death cases there are multiple parties involved as defendants and of course the defendants have cross claims in this action complicating the reading of the pleadings.
Settlements in civil litigation are encouraged and the overwhelming numbers of federal cases settle prior to trial. This case reflects the dilemma of a defendant – PADI – who agrees to settle prior to trial, with the remaining parties proceeding to trial. This leaves the defendant in these circumstances – PADI is this case – with the prospect of having derogatory lances hurled at them during the course of the trail that they are unable to rebut. In instances where they are the “empty seat”, they must weigh the cost/benefit of a certain settlement against not reaming in the case. Why didn't PADI insist on a full settlement for their cash payment and what motives might they have had for leaving Douglas and the other BWD as defendants in the case?
That said in the case of an “empty seat” – PADI no longer being a party to the on-going case – it is in the plaintiff’s interest to protect PADI so as to maximize the potential apportionment of fault to the remaining defendants who go to trial. Remaining defendants will seek to excoriate PADI so as to minimize their liability. Is there a Utah lawyer in the house who might speak to apportionment of fault in a general manner?
Should the case go to trial it remains to be seen how the jury evaluates Douglas’s personal liability/fault apart from the issue of whether or not he followed PADI’s standards and what protection the jury might give Douglas for having done so. Will his having followed standards lead to a reduction or elimination of his individually liability/fault? Or should he have know that leading the number of uncertified divers in his charge was inappropriate and refused to have done so?
Perhaps the plaintiffs will argue that Douglas should have known that he faced a potential Hobson’s choice – see Wookie’s post on circular procedural inconsistencies – and would conceivable face a scenario where he would leave an uncertified diver unoccupied while he attended the an emergent situation with another diver that called for him separate from the other divers in his charge.
PADI’s motives are voiced by Douglas – he contends they want to stay in the case so that they are able to defend their program and by extension their broader reputation. How this might happen?
This case and possible derivative actions have a long way to go, matters of law are yet to be decided, and a jury’s verdict is well beyond the horizon. Of interest will be the actions of the insurance companies, their insured, PADI and possible future actions that may take place.
The transcript will post as a follow-on to this post.
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DOC 157 – TRANSCRIPT HIGHLIGHTS
MR. CONCANNON:
My name is David Concannon and I represent Corbett Douglas and Blue Water Scuba of Logan and Lowell Huber, also known as the Blue Water defendants.
MR. BULLOCK:
Roger Bullock and Spencer Brown, Strong & Hanni, for Professional Association of Dive Instructors.
MR. BULLOCK:
The overriding concern and the concern from P.A.D.I.'s point of view is that it wouldn't be fair, that it won't be fair for Blue Water to point the finger of blame at P.A.D.I. and P.A.D.I. not having any opportunity to defend its diving course. Blue Water has made it clear that that is their agenda. They will acknowledge that, I believe, that they want to put P.A.D.I. on trial and try the P.A.D.I. diving course. Then they want to use that however they may in other cases and in publications and to the public and anything that will gain an advantage in other pending and future litigation.
THE COURT (in reference to PADI)
I have told you as I sit here I don't know exactly what your rights are to defend yourself.
That is a different debate than what the rules of procedure allow a party or an entity, against whom fault is being offered, that entity's right to defend itself when it has become a nonparty in the case. I will be glad to entertain motions or requests about that, to the extent that anyone wants to bring them, including your client to see what rights you have for justice at a trial, but the method that was utilized here strikes me as being a little bit improper. I think you're right, the damage does not appear to be too much yet.
MR. CONCANNON: May I briefly address the Court?
THE COURT: Go ahead.
MR. CONCANNON: Thank you.
I want to address something that Mr. Bullock raised that is new and different from the briefing, the question of motive. He said something along the lines that the Blue Water defendants have made statements in other cases to the public and in publications. He must be referring to himself and his own client because that is absolutely false. What has happened is that 13 days after this incident took place, P.A.D.I. expelled Corbett Douglas as a member of P.A.D.I. publicly.
It is listed in their Web site. The reason that they gave was that they had determined that Mr. Douglas's membership was no longer in the best interest of P.A.D.I. Mr. Douglas wrote a letter and asked P.A.D.I. to explain what basis they had for expelling him and what standards did he violate and P.A.D.I. never responded.
What P.A.D.I. did do at a public forum, at the largest diving trade show in the world, was stand up and make an issue of Mr. Douglas in front of a large audience of instructors and members of the diving industry profession.
Mr. Douglas is the father of four children and he is an Iraq war veteran and school teacher and professional scuba instructor.
I, for the life of me, have never been able to identify a single training standard that he violated. P.A.D.I. has never identified a single training standard that he violated.
Within the confines of this case Mr. Douglas has defended himself. Within the confines of this case Mr. Douglas has pointed out deficiencies in P.A.D.I.'s Discover Scuba Diving program and he has alerted the court, and others, and a federal judge in particular has pointed to the same deficiences.
He is simply defending himself. He has not settled the case. He is going to defend these allegations but not settling the case. P.A.D.I. had the same opportunity to defend itself by not settling the case. P.A.D.I. is as complicit, and you heard Mr. Hall acknowledge that P.A.D.I. requested that it stay in this case.
The Court asked about modifying the protective order, and P.A.D.I.'s real issue is that they don't want the world to know what they have done here, but the Blue Water defendants have not published that in any way.
If that settlement agreement becomes part of the public record, that is P.A.D.I.'s problem and maybe they shouldn't have done what they did. We have a case of monkey see, monkey do here, because, as Mr. Hall acknowledged, the Boy Scouts have a similar provision in their settlement agreement entered six months ago which says that we can stay a party to this case as long as we want, and then we'll let you know when you should dismiss us.
I have not heard a single federal case cited, not a single federal rule, and we keep talking about the Utah Supreme Court and Slusher, but whatever the Utah Supreme Court wants to do with its procedural rules is interesting, but it is irrelevant in an Article Three Court.
When it comes to motive, I take offense and my client takes offense to being accused of doing anything that is not in P.A.D.I.'s interest, and I submit that if they wanted to stay in this case and defend themselves, they could have done that.
I don't lightly violate the secrecy of a mediation process, but I can tell the Court that when we mediated this dispute in Las Vegas, the parties sat in three separate conference rooms. They did not make statements to the mediator. They did not make statements to each other, except for me going over to the Tuvells and expressing my condolences for their loss, because David Tuvell was the same age as my daughter Megan.
That is it. What we were told was P.A.D.I. thinks you're responsible. We were not told why. We were told P.A.D.I. says that you are responsible and you should pay. Whatever they say, and the Court is well aware of the time line here, the settlement in March, the partial statement in May, the full disclosure at the end of August, and whatever P.A.D.I.'s motives were, I would submit that they are not exactly being candid with this Court.
MR. CONCANNON:
One of the issues now is going to be the safety of the Discover Scuba Diving program. That is an issue that has been in the public domain for quite some time.
We contend that it is not that Corbett Douglas violated any standards. It is that the standards, if there is an issue over how David Tuvell died, the program does not allow you -- for instance, it does not tell you how to make a safe ascent. It does not tell you how to stay on the surface. It does not tell you to drop your weights and maintain your buoyancy.
None of this information is given to the participants. The instructors are not allowed to deviate from that. If those are in fact problems with the D.S.D. program, we think that that is something that should be explored in the litigation.
We don't think that the Court should protect the secrecy of P.A.D.I.'s statements and P.A.D.I.'s conduct. If you want to promote settlements, legitimate settlements, then, fine, let's take the money out of it. Let's take the $800,000 payment out of it.
Let's protect that, but there is no legitimate basis, and, in fact, we already have another defendant following the lead of P.A.D.I., and there is no legitimate basis to protect those other provisions. That is our position.
THE COURT: Thank you, Mr. Skolnick.
The motion of the Blue Water defendants is granted as follows:
First, I'm striking the protective order for good cause.
Under the circumstances I am finding it is improper for P.A.D.I. and the plaintiffs to do what they did with respect to misrepresenting, after a full settlement had been reached, misrepresenting that a case was still alive. It is as simple as that. I think that is improper behavior, and I do think the parties acted under these unique circumstances, they acted based on a belief that P.A.D.I. was still a defendant.
As to the protective order, I am going to require the amount to remain confidential, otherwise the protective order is stricken and revised in that manner.
Because I find that the Blue Water defendants acted to their detriment with the misrepresentation that claims were alive that weren't, I am going to order that the amended complaint be stricken and that the answer and the cross-claims that were in response to the amended complaint also be stricken.
As for the motion for sanctions, my understanding is that aside from the time and expense associated with this very motion, there hasn't been very much.
I'm going to award a $2,000 sanction, which I think will recognize primarily that the defendants, the Blue Water defendants unnecessarily responded to the amended complaint. That will be awarded against both P.A.D.I.'s counsel and the plaintiffs' counsel jointly and severally.
That is my very rough estimate and that is below any computation of any reasonable attorney fee for that relatively meager work. I'm not awarding attorneys' fees for this motion. I am going that low because I think that no one could reasonably argue that that is too high of an amount for the work attributed to it.
If there is an objection to that by the plaintiffs' counsel or P.A.D.I.'s counsel, I will entertain a motion for a more specific account of attorneys' fees that were incurred by Blue Water, but I think that would probably just cause more work, more unnecessary work. That is the way I see this. I don't see this case as being particularly like any case that was shown to me.
Whether P.A.D.I. can have a chair that it can occupy during the trial to defend itself, I don't know. I am not ruling on that. I know that the vehicle of remaining a cross-claim defendant is not a possible vehicle. It is up to, of course, the defendants to decide whether to file a third-party complaint. I'm saying nothing at all about the other defendants, the Boy Scout defendants or anyone else.
