Parents sue Boy Scouts for 2011 negligence death

[Wookie]

This wasn't a RESORT COURSE. It was a BOY SCOUT DSD. This wasn't an instructor churning and burning... Nor was he "In residence at a resort".

At least get the facts right when you beat up the straw man.

What's the difference? You have never been a resort instructor anyway. You know nothing of what you speak.

 

[cerich]

Well, I have taught more than a few resort classes over the years...

The things I REALLY want to know

1. Are my Accident/Incident reports I am required to send to the training organization protected by attorney/client privilege?

2. Is the agency I train through going to work with Plaintiffs attorneys against its members?

3. Will PADI reduce the ratio of DSD course to 2 to 1?

 

[armywife(ret.)]

Well, I have taught more than a few resort classes over the years...

The things I REALLY want to know

1. Are my Accident/Incident reports I am required to send to the training organization protected by attorney/client privilege?


2. Is the agency I train through going to work with Plaintiffs attorneys against its members?


3. Will PADI reduce the ratio of DSD course to 2 to 1?

1)Since I'm not an attorney, I can't say for certain. I suspect that once you turn any product over to PADI, it belongs to them. Attorney-client privileged would likely be between PADI and their retained, in-house, attorneys. Just a guess

2)Unlikely after this debacle.

3)Yes, but not for any altruistic reason. I believe that PADI's insurer, and the re-insurer will demand it.

 

[John C. Ratliff]

Well, I have taught more than a few resort classes over the years...

The things I REALLY want to know

1. Are my Accident/Incident reports I am required to send to the training organization protected by attorney/client privilege?

2. Is the agency I train through going to work with Plaintiffs attorneys against its members?

3. Will PADI reduce the ratio of DSD course to 2 to 1?

You know, there is nothing saying you cannot do this ratio for the DSD yourself. The PADI standards are "minimum." You can cite this thread as a real reason for your determination that your ratio for this course is 1:1. PADI would probably back you too (no agency wants to go through this).

SeaRat

 

[Zippsy]

There are two conversations going on about this, one involving the case and legal maneuvering the other involving PADI ratio standards.

Most of us that are talking about the ratios are saying they are not meetable (at their max 4:1) under any circumstances. We are strangely still arguing about it even though everyone seems to agree on that point. The primary difference is camp A believes that it's the the instructors responsibility to decrease the ratio, Camp B thinks that if it is an unrealistic standard, it should be PADI (or any other agency) that should decrease it via standards.

so in summary, we should beat up PADI for not mandating lower ratios, not allowing any use of instructor judgement and not reducing the ratio to the level best suited for the worst of their instructors under the worst conditions because there are a lot of resorts who ignore everything PADI says anyway. I guess my argument would be that these resorts would still ignore standards so how would PADI changing mandated ratios help at those resorts? Are you saying that their instructors would start saying "no, I won't do this anymore"? Are you saying that PADI should take all instructor judgement in every situation or just this one situation?

 

[Dr. Lecter]

Well, I have taught more than a few resort classes over the years...

The things I REALLY want to know

1. Are my Accident/Incident reports I am required to send to the training organization protected by attorney/client privilege?

It's starting to look like claiming a common-interest between the agency and the instructor in getting legal advice (which the accident/incident report would be intended to facilitate and thus remain a confidential communication for the purpose of securing legal advice and therefore arguably privileged) would be a less than persuasive argument.

That cuts both ways, though...if I'm a plaintiff and an agency claims it doesn't have to turn over an instructor's accident/incident report based on that theory, I have more grounds than ever to argue that I'm entitled to what the instructor submitted, even if I'm not entitled to PADI's internal communications (whether with PADI's counsel or just for the purpose of obtaining legal advice for PADI) about that instructor's report. I really wonder what bonehead decided on this particular business/legal strategy. It seems to have a lot of longer-term negative implications.

 

[Subfiend]

Just wanted to add a few comments- remember litigation at this level is a very complex matter. The law and rules are as much a component of strategy as the facts are.

A- Some jurisdictions (many state and most federal courts- FRCP Rule 14 material) have an open/automatic file discovery rule that requires ANY materials that are relevant and in control of the opposing party MUST be turned over- PERIOD. Now in some cases It MAY be turned over with a protective order but- almost always will become evidence at some point and therefore publicly disclosed. This type of record would clearly meet the relevancy and materiality component of any discovery obligation in such a law suit. So I don't see TDI or the online crowd getting this right.

B- The court sanctioned the TIME wasted by party for the misleading pleading. They did not sanction the conduct in a punitive way- ie the court did not find the conduct grossly unethical or prejudicial. Again seems many in the peanut gallery don't see the difference. In a multimillion dollar lawsuit a 2000 dollar sanction isn't sending a message - it was a stratagem call.

C- PADI has reduced its future liability by analyzing the actuarial cost of litigation, potential verdict, and collateral use of a negative verdict against a lump sum payout and future potential cross claim award. This is simply business math -every litigator helps their client engage in this analysis when discussing settling a case. It seems cold but it's a necessity in operating a business. Where I think it becomes screwy is the relationship of instructors, agency, and insurance carrier. I see a world of conflicts there that really are a separate discussion. There needs to be a better defined bright line.

D- the only questions left here I see are: whether cross claims can still be brought/awarded, whether there is still joint-several liability in post verdict indemnity, and what the PR implications may be given the dynamic of Boy Scouts and Instructors in these circumstances. I would imagine the settlement would entitle the other defendants to move to amend and file cross claims. BUT also see a judge denying as there was never a joint defense and therefore the potential cross claims existed at the inception of the case- and the failure to file them at the outset is a waiver. Could go either way. Depends on the circuits case law and I don't know where they fall.

One can guess the jurisdiction may not permit cross claims at this point or joint-several liability claims - which if it is true would be why they effected the settlement individually rather than globally in which case PADI is in the clear economically. One has to guess the litigation costs alone would be 250k or more without a verdict. However if there is a surviving cross claim or a joint-several liability component then PADI's decision seems less wise. Knowing what is in the public domain - If I were advising PADI I probably would have looked at a global resolution to make it cleaner- but again we are not privileged to all the inside baseball and facts from depositions etc.

On first blush - it appears - the instructor is in the wrong and liability rests with him. Leaving two students to chase a third is not "maintaining control of all DSD participants at all times". I have also thought - and said- a 2:1 ratio is the better DSD ratio without a certified assistant and 4:1 with an assistant should be the maximum.

But, It also violates the Boy Scout policy of no single adult alone with a single youth. So on both PADI and BSA policy grounds the instructor is in the wrong. This may have been the driving factor in PADIs settlement and the family's acceptance of it.

Given that- I think TDI got it wrong in sending out the letter. It could come back to bite them when they are in a lawsuit. Hypocrisy does not play well with a jury. And if counsel cleared it they need new counsel.

Just my 2 cents.

Without trying the case on Scubaboard, here are some facts. The following comments are purely my own.

A. FRCP 26(b), Scope of Discovery, says: “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." The accident reports are protected from disclosure by both the attorney-client privilege and attorney work product doctrine. That’s why they say on them: “THIS REPORT IS PREPARED FOR THE PURPOSE OF RECEIVING LEGAL ADVICE FOR USE IN ANTICIPATED LITIGATION.”

B. The court sanctioned the attorneys for PADI and the plaintiffs under 28 U.S.C. Section 1927, which states: “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” In other words, the lawyers were punished for acting unreasonably and vexatiously. A sanction is, by definition, a punishment.

C. Agreed.

D. Under Utah law, which is controlling in this jurisdiction, the parties can seek to allocate fault against any other person, regardless of whether they are a party to the case. This does not mean money is awarded. It simply means that the jury will be asked to apportion fault between multiple persons and parties, including the Tuvell parents, the boy, the physician’s assistant that cleared the boy for scuba diving even though he had asthma and a recent history of serious respiratory illness, his supervising pediatrician, PADI, the PADI members and the BSA. Any damage award received the plaintiffs will be reduced in accordance with the allocation of fault.

PADI is not on the hook for any more money but any damage award the plaintiffs receive will be reduced in accordance with the settlements received and the allocations of fault. Ironically, as of two days ago, PADI is back in the case. The plaintiffs asked for permission to file an amended complaint reinstating their claims that the DSD program is defective and adding a new claim for allocation of fault against PADI. This was done despite the fact that the plaintiffs already agreed in their settlement that PADI bore no fault in the death of David Tuvell. PADI did not object to the filing of the amended complaint. You can draw your own conclusions about whether the collusion continues -- the jury certainly will.

"But, It also violates the Boy Scout policy of no single adult alone with a single youth. So on both PADI and BSA policy grounds the instructor is in the wrong. This may have been the driving factor in PADIs settlement and the family's acceptance of it."

The instructor was never alone with a single youth. There were three participants in the water, a father/Scoutmaster, son and David Tuvell. The father made the rapid ascent to the surface and the instructor went to assist him.

---------- Post added November 14th, 2014 at 10:42 PM ----------

Well, I have taught more than a few resort classes over the years...

The things I REALLY want to know

1. Are my Accident/Incident reports I am required to send to the training organization protected by attorney/client privilege?

2. Is the agency I train through going to work with Plaintiffs attorneys against its members?

3. Will PADI reduce the ratio of DSD course to 2 to 1?

In a 2001 thread here on Scubaboard, a member posted a response to Question No. 1 from Pat Fousek, Director of Legal & Risk Management at PADI. Ms. Fousek stated:

"As was speculated on the bulletin board, any incident reports provided to PADI are considered preapred in anticipation of litigation and are therefore confidential and not released except on the direction of legal counsel or by court order."

See http://www.scubaboard.com/forums/archive/index.php/t-4700.html.

However, on October 23, 2013, PADI's counsel asserted that PADI does not believe that incident reports submitted to PADI by its members, pursuant to the terms of PADI's membership agreement, are privileged. PADI's counsel wrote to the PADI members' counsel:

"We decline to recall the documents bates-labeled PADI 0106 and PADI 0107 [the PADI members' incident reports] as requested in your email. After review of these pages, we do not believe that they are subject to any privilege or work product protection. As you know, the Douglas and Huber statements were part of an incident report that was designated as “prepared for the purpose of receiving legal advice or for use in anticipated litigation.” While we do not believe that the statements are privileged, we understand that Blue Water may intend to assert that privilege, and we will have to address that issue in the future. That is why we recalled the statements when we discovered that they were inadvertently produced. In contrast, pages 106 and 107 are forms contained in PADI’s files and prepared in PADI’s ordinary course of business. Therefore, they are not privileged and will not be recalled."

Copies of this correspondence are available here: https://www.scribd.com/doc/246679270/PADI-Says-Member-Incident-Reports-Are-Not-Privileged. Meanwhile, SDI/TDI takes the position that its members' incident reports are privileged and it will not turn them over without the individual member's consent or a court order.

 

[Zippsy]

You know, there is nothing saying you cannot do this ratio for the DSD yourself. The PADI standards are "minimum." You can cite this thread as a real reason for your determination that your ratio for this course is 1:1. PADI would probably back you too (no agency wants to go through this).

SeaRat

It's not only a good idea if you want to reduce the ratio, it is currently a PADI requirement to reduce the ratio if you do not believe you are able to meet the other standards of the program.

 

[Subfiend]

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 ----------



For $[redacted]k, 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 $[redacted]k...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 $[redacted]k 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).

No. 1 - PADI is now back in the case -- at its request, or at least with its acquiescence -- therefore any finding that the DSD standards are defective will be adjudicated with PADI defending itself in the courtroom and the jury's finding will stick in any subsequent case. PADI just bought itself another lottery ticket.

No. 2 - The settlement agreement will be introduced into evidence at the trial. The plaintiffs were recently allowed to amend their complaint to add a claim for allocation of fault against PADI, even though the plaintiffs and PADI already agreed in their settlement agreement that PADI was not at fault. Imagine the questions that can now be asked of PADI's witnesses on cross-examination.

No. 3 - PADI and the plaintiffs argued that they could keep their settlement a secret up until the time the jury was seated. The court disagreed. Moreover, in federal court, parties have a duty to promptly inform the court when they reach a settlement. There are a variety of reasons for this, including that the federal court loses jurisdiction once there is no longer a claim or controversy to be adjudicated and the plaintiff loses standing to sue as soon as it has received redress for its claims.

 

[Wookie]

It's not only a good idea if you want to reduce the ratio, it is currently a PADI requirement to reduce the ratio if you do not believe you are able to meet the other standards of the program.

So, the real question is did Douglas anticipate that he would not be able to meet the standards in some future time? I'd like to know how many DSDs he completed successfully, and if he had reason to believe that he might not be able to continue being successful at meeting the standards. I'm not picking on you, BTW, Zippsy, but you are asking the best questions.

If you've completed 200 successful 4:1 DSD's, would you not anticipate you'd be able to complete the 201st? I don't expect (but I don't know) this was his first rodeo.

---------- Post added November 15th, 2014 at 07:40 AM ----------

No. 1 - PADI is now back in the case -- at its request, or at least with its acquiescence -- therefore any finding that the DSD standards are defective will be adjudicated with PADI defending itself in the courtroom and the jury's finding will stick in any subsequent case. PADI just bought itself another lottery ticket.

No. 2 - The settlement agreement will be introduced into evidence at the trial. The plaintiffs were recently allowed to amend their complaint to add a claim for allocation of fault against PADI, even though the plaintiffs and PADI already agreed in their settlement agreement that PADI was not at fault. Imagine the questions that can now be asked of PADI's witnesses on cross-examination.

No. 3 - PADI and the plaintiffs argued that they could keep their settlement a secret up until the time the jury was seated. The court disagreed. Moreover, in federal court, parties have a duty to promptly inform the court when they reach a settlement. There are a variety of reasons for this, including that the federal court loses jurisdiction once there is no longer a claim or controversy to be adjudicated and the plaintiff loses standing to sue as soon as it has received redress for its claims.

If PADI loses the lottery, and they are found somewhat at fault for having substandard standards (see what I did there?) could they stand to have monetary damages assessed against them, thereby wiping out the reason they settled in the first place? It seems that PADI is very worried that someone (like you) will find that the standards are inadequate and that a jury will agree.

How many times has PADI had to defend the DSD ratios in court? I seem to remember an insurance agent telling me about a case in Hawaii where PADI had to defend their ratios.

If you don't mind, how many times had Douglas successfully taught a DSD for the Boy Scouts?