So many things about this litigation don't make sense to me -- quite frankly, just as the TDI letter doesn't make sense to me (except as a marketing ploy prior to DEMA).
I was a criminal defense attorney and know that I, as the attorney, controlled the litigation strategy for my clients. In reality, the ONLY decision a client got to make was whether they pled guilty or not guilty and on that point, I guarantee I had quite a bit of "advice" for them. I've been involved in civil litigation as a party (and observer) and know the attorneys pretty much controlled both the litigation tactics and strategy. I would be shocked if the same was not true in this case (which, quite frankly, is borne out by the sanctions of the trial court).
Everyone WANTS to "blame PADI" for this but, really, was it PADI management who developed the litigation strategy and tactics or the trial counsel (along with PADI's insurance carrier which is undoubtedly paying for the attorneys)? And while "everyone knows" that V & B is "in bed" with PADI, is the actual carrier/re-insurer in the same position? I don't know (and frankly Scarlet....)
The death of these kids was very sad. I don't understand why the instructor did what he did. I'm not sure I understand the trial strategy/tactics. But, I do find this letter to be way over the top and would be honestly shocked when TDI is sued that it doesn't comply with the advice of counsel for its trial strategy and tactics. Blame the attorneys if you wish -- but I really don't think the client has much real control, regardless of who the client might be.
How many of your clients were largish, multinational entities with their own in-house counsel managing outside counsel? The idea that the client wasn't calling the shots on strategy here, despite whatever input trial counsel had, is hilarious.
---------- Post added November 13th, 2014 at 01:54 PM ----------
Does this mean that PADI paid the deceased's parents $800K and they're all done now and have no other recourse?
For all the rest of it, is it all finger pointing (by who?) trying to decide "who is to blame"?
If it turns out that the judge agrees that PADI's standards allow for unsafe ratios, what happens?
Can PADI he held responsible because the instructor followed their standards and someone died, even though the standards are plainly insufficient?
What about the instructor? If the instructor planned the dive in a way that plainly did not allow for handling an emergency without leaving one student alone, even if allowed by PADI's insufficient standards, is he at fault?
Note that by my reasoning, lacking the ability to teleport, any ratio more than 1:1 is insufficient to handle an emergency. Maybe other people don't agree?
Thanks!
flots.
For $800k, PADI has bought itself out of the expensive lottery that is staying in a lawsuit through final judgment and any appeals. They also avoid the possibility that, if their standards are found to be at fault in
this case, that could become an established fact to be used against them in
other cases. That may still be found in this case, but without PADI being a defendant when it happens, PADI can claim it wasn't present to contest that finding and therefore the question has to be litigated yet again in whatever other/later case(s) it comes up in.
What they haven't done is settled the plaintiffs' claims against the remaining defendants, which will go forward absent another settlement. As part of that process, the remaining defendants can argue that PADI's standards were the reason/a reason for the deaths, and that the instructor was therefore not liable/is less liable. If the judge or jury buys that argument, then at the end of the day the case might conclude with a finding that PADI was the/a cause of the accident and is responsible for $X worth of plaintiffs' damages. Of course, plaintiffs could not get any of that because they already agreed with PADI to settle their claims against it for $800k...so that'd be that.
The problem PADI faces is that it's much easier to shift blame to someone who isn't present to defend themselves, the so-called "empty chair." While you cannot stand up in front of a jury and say "PADI is clearly at fault here: they settled out for $800k rather than show up here today and defend themselves, because their standards for this class were indefensible," you will certainly try to imply it and juries will get there to some extent on their own. The plaintiffs have an incentive to argue on PADI's behalf and call witnesses from PADI, because it maximizes their chances of screwing over the remaining defendant and getting more money, but PADI clearly didn't feel like that was enough. Hence the attempt to remain in the case as a defendant (at least for a while...they couldn't stay in up until the jury is seated, because based on what I read in the sanctions opinion before that is when you have to declare you've settled out).
