Parents sue Boy Scouts for 2011 negligence death

[DelrayDM]

Refer to post #207 by Subfiend, above.

Do I understand this correctly?

1) If a 'dive professional' has S.D.I. credentials, and the 'professional' is concerned that there is a possibility that someone will allege that an incident occurred, and the 'dive professional' corresponds with the investigator(s) for S.D.I., these conversations will be kept confidential.

2) If a 'dive professional' has P.A.D.I. credentials, and the 'professional' is concerned that there is a possibility that someone will allege that an incident occurred, and the 'dive professional' corresponds with the investigator(s) for P.A.D.I, these conversations may be 'readily' turned over to plaintiff's counsel.

3) If a 'dive professional' has S.D.I. credentials AND P.A.D.I. credentials, which would apply? Would it depend on which brand of pre-printed, supplied-by-the-agency release(s) were signed?

 

[Wookie]

Refer to post #207 by Subfiend, above.

Do I understand this correctly?

1) If a 'dive professional' has S.D.I. credentials, and the 'professional' is concerned that there is a possibility that someone will allege that an incident occurred, and the 'dive professional' corresponds with the investigator(s) for S.D.I., these conversations will be kept confidential.

2) If a 'dive professional' has P.A.D.I. credentials, and the 'professional' is concerned that there is a possibility that someone will allege that an incident occurred, and the 'dive professional' corresponds with the investigator(s) for P.A.D.I, these conversations may be 'readily' turned over to plaintiff's counsel.

3) If a 'dive professional' has S.D.I. credentials AND P.A.D.I. credentials, which would apply? Would it depend on which brand of pre-printed, supplied-by-the-agency release(s) were signed?

the option I have chosen to take is to submit my incident reports to the insurance company. Since they are paying for my defense, they can choose who to share my self incriminating evidence with.

 

[Subfiend]

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

He testified to this in his deposition but I don't recall the exact number. I believe it was more than 50. Possibly more than 70(?).

---------- Post added November 15th, 2014 at 10:27 AM ----------

Refer to post #207 by Subfiend, above.

Do I understand this correctly?

1) If a 'dive professional' has S.D.I. credentials, and the 'professional' is concerned that there is a possibility that someone will allege that an incident occurred, and the 'dive professional' corresponds with the investigator(s) for S.D.I., these conversations will be kept confidential.

YES. I believe TDI/SDI has put this pledge to its members in writing. However, in my experience, this is already TDI/SDI's company policy and they stand behind their members.

2) If a 'dive professional' has P.A.D.I. credentials, and the 'professional' is concerned that there is a possibility that someone will allege that an incident occurred, and the 'dive professional' corresponds with the investigator(s) for P.A.D.I, these conversations may be 'readily' turned over to plaintiff's counsel.

YES. See https://www.scribd.com/doc/246679270/PADI-Says-Member-Incident-Reports-Are-Not-Privileged

Here is a copy without the highlighting: https://www.scribd.com/doc/246761661/PADI-Says-Member-Incident-Reports-Are-Not-Privileged

3) If a 'dive professional' has S.D.I. credentials AND P.A.D.I. credentials, which would apply? Would it depend on which brand of pre-printed, supplied-by-the-agency release(s) were signed?

If you are a Member of PADI, the PADI Membership Agreement requires you to submit incident reports to PADI. Please see No. 2 above for how PADI views its responsibility to keep your comments confidential. (Hint: Anything you say can and will be used against you in a court of law.)

 

[sea_ledford]

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.

Didn't you earlier say that if someone can figure out how to safely take 4 DSD students at once, you would like to know how? This isn't a worst instructor and worst conditions issue, this is a best instructor and best conditions issue. And having standards rely on anyones judgement is simply giving the agency a way out.

So they keep a 4:1 ratio, you are leading a DSD with 2 students because, according to your judgment, the conditions aren't conducive to take 4. Something happens to one of the divers and you end up getting sued. PADI says, "well clearly the instructor broke standards, conditions only warranted 1:1 in this situation. The instructor didn't use good judgement."

To be clear, I DO think instructors should be able (and have to) to use their judgement for a lot of things. Determining if a standard is met after the fact based on the judgement call will never be in the instructors favor though.

I really don't understand any defense of the current 4:1 ratio when not a single person has come out and said they think they are safe. If acceptable ratios are only determined by the instructors judgement, why have standardized ratios anyway? If the class was completed without incident, the ratio was acceptable. If there was an incident, the ratio was too high.

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?

I completely agree with you on this one. If they are ignoring standards now, they will keep ignoring standards in the future. Primarily because to follow standards would make DSDs non-profitable. That doesn't justify having unattainable standards in the first place though.

 

[Dr. Lecter]

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.

For Nos. 1 and 2, there's clearly been movement since the sanctions hearing transcript I read...that is all a little bananas. Then again, so was PADI's first series of moves.

For No. 3, I would say you must have read a different sanctions hearing transcript than I did, but for your signature line In any event, in the transcript I read the court recognized that if they had not filed the amended complaint, then they very well might have had a basis under the state law the federal district court was bound to apply (to the extent it was substantive) to keep the settlement a secret until the jury was seated--federal procedure notwithstanding. I agree the personal jurisdiction issues are messy and the federal approach makes more sense, but this isn't a situation where there's a settlement removing jurisdiction over the case or concluding the entire case/controversy.

---------- Post added November 15th, 2014 at 02:54 PM ----------

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.”

Talk about begging the question

 

[Subfiend]

For No. 3, I would say you must have read a different sanctions hearing transcript than I did, but for your signature line In any event, in the transcript I read the court recognized that if they had not filed the amended complaint, then they very well might have had a basis under the state law the federal district court was bound to apply (to the extent it was substantive) to keep the settlement a secret until the jury was seated--federal procedure notwithstanding. I agree the personal jurisdiction issues are messy and the federal approach makes more sense, but this isn't a situation where there's a settlement removing jurisdiction over the case or concluding the entire case/controversy.

Actually, at the time of the settlement, no answers, cross-claims or third-party claims had been filed, so the settlement did, in fact, remove the plaintiffs' standing to assert their claims against PADI, and the court was divested of jurisdiction over the plaintiffs/PADI dispute because it was resolved. We cited numerous US Supreme Court and federal appellate court decisions and Wright & Miller to support this. What the judge said was that the Utah law on allocation of fault might have allowed PADI to stay in the case but he was not sure and the issue was not before him, so he deferred saying anything more about it.

Fast forward a few months and, lo and behold, the plaintiffs filed a motion for leave to amend to add an allocation of fault claim against PADI which, not surprisingly, PADI did not oppose. The court granted the motion. So, now PADI will be standing shoulder-to-shoulder with the plaintiffs in the courtroom in a joint effort to persuade the jury that the PADI members are 100% at fault, like their settlement agreement says, and not the plaintiffs or PADI. The plaintiffs will be saying the PADI standards are wonderful, even though they took $XXX to agree they aren't, and PADI will be saying its okay for parents to conceal their boy's medical condition when they enroll him in a PADI DSD experience. It's easy to see that Arthur Miller is not advising PADI in this litigation. (More like James Mason in "The Verdict.")

 

[Dr. Lecter]

Actually, at the time of the settlement, no answers, cross-claims or third-party claims had been filed, so the settlement did, in fact, remove the plaintiffs' standing to assert their claims against PADI, and the court was divested of jurisdiction over the plaintiffs/PADI dispute because it was resolved. We cited numerous US Supreme Court and federal appellate court decisions and Wright & Miller to support this. What the judge said was that the Utah law on allocation of fault might have allowed PADI to stay in the case but he was not sure and the issue was not before him, so he deferred saying anything more about it.

Fast forward a few months and, lo and behold, the plaintiffs filed a motion for leave to amend to add an allocation of fault claim against PADI which, not surprisingly, PADI did not oppose. The court granted the motion. So, now PADI will be standing shoulder-to-shoulder with the plaintiffs in the courtroom in a joint effort to persuade the jury that the PADI members are 100% at fault, like their settlement agreement says, and not the plaintiffs or PADI. The plaintiffs will be saying the PADI standards are wonderful, even though they took $XXX to agree they aren't, and PADI will be saying its okay for parents to conceal their boy's medical condition when they enroll him in a PADI DSD experience. It's easy to see that Arthur Miller is not advising PADI in this litigation. (More like James Mason in "The Verdict.")

I think you are parsing "case or controversy" far too finely by claiming separate ones exist as between P and each D, as opposed to looking at the single common nucleus of facts, but it's your case and briefing.

Too bad for them they weren't smart enough to see the issue before the amendment that was stricken was filed - they could have cleanly put the allocation of fault claim in then (I assume it was as of right rather than on motion) and avoided the whole mess. I wonder how the court would have resolved the non-disclosure of a settlement agreement at that point. Anyway, looks like a fun mess - enjoy

 

[Subfiend]

I think you are parsing "case or controversy" far too finely by claiming separate ones exist as between P and each D, as opposed to looking at the single common nucleus of facts, but it's your case and briefing.

Too bad for them they weren't smart enough to see the issue before the amendment that was stricken was filed - they could have cleanly put the allocation of fault claim in then (I assume it was as of right rather than on motion) and avoided the whole mess. I wonder how the court would have resolved the non-disclosure of a settlement agreement at that point. Anyway, looks like a fun mess - enjoy

Somebody was more concerned with being sneaky than being smart. That was the first clue that something was amiss. The plaintiffs could have amended their complaint as a matter of right but they moved for leave instead. They didn't have to. The second clue was the content of the proposed amended complaint, which changed the theory of recovery from the DSD program was defective to the DSD program was safe but defectively delivered. That was odd, too, but in hindsight it accomplished PADI's real objective: to change the discussion from the safety of PADI's DSD program to the propriety of the instructor's judgment. This is what PADI hoped to do all along by expelling the instructor and not saying what standards he supposedly violated -- by pointing out a standards violation, you start the discussion you hope to avoid.

The truly sad fact is that a family lost a son. A father of four lost a student. Nobody is happy about it. But the discussion PADI hoped to avoid is happening, despite the legal shenanigans, and this could lead to a real change for the better. Unfortunately, whoever tried to stifle this discussion and approved the sneakiness is still making high-level decisions at PADI, and this calls into question the integrity of PADI's corporate ethics and decision-making. Nobody is trying to show real leadership by saying "We made a mistake, we fixed it, and we will do better." (I remember when Joe Stella did this and saved Johnson Outdoors, Scubapro and Uwatec from going down the drain as a result of the Aladin Air X Nitrox debacle, so the model does exist in the scuba industry.) Instead, it's business as usual. So, when it comes to doing business with PADI, I say: "Caveat Emptor" - "Let the buyer beware."

 

[Omisson]

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 ----------



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.

1- So the question is whether or not the instructor or the agency or both are/is the protected entity(ies). If it's just PADI then they certainly could waive the purported privildge....



But as an attorney Do you really think an "incident report" - regardless of the preferatory language- would not have been discoverable in a discovery demand?



Especially since it would constitute at the very least potential impeachment material, not to mention is a regular business record kept pursuant to a duty, in the routine course of business, and contemporaneously made?


2- And if you've tried more than one case - are you seriously implying in a case of this magnitude a $2000 time-fee sanction was in any way consequential or substantive?

Please. Were grievance committees called? Were any attorneys personally sanctioned or reprimanded? Did any party get an adverse inference or curtailment in the pleadings?

I thought not. So I don't know what that means for the PR parade.

3- we agree ... So PADI eliminated its future economic liability... Sounds like they got what they wanted.

4- So the instructor abandoned two youths in a dangerous environment ... Not really much better... Sorry.....


Given all that:

A) Not sure what it all it means that PADI is "back in" but has no future economic liability... Is that really "in"?

B) I can see appellate courts spending decades on this.... Given the mess of the record below this is now creating.

C) does any of this square with SDI sending out a letter now?

 

[Subfiend]

1- So the question is whether or not the instructor or the agency or both are/is the protected entity(ies). If it's just PADI then they certainly could waive the purported privildge....

But as an attorney Do you really think an "incident report" - regardless of the preferatory language- would not have been discoverable in a discovery demand?

Especially since it would constitute at the very least potential impeachment material, not to mention is a regular business record kept pursuant to a duty, in the routine course of business, and contemporaneously made?


2- And if you've tried more than one case - are you seriously implying in a case of this magnitude a $2000 time-fee sanction was in any way consequential or substantive?

Please. Were grievance committees called? Were any attorneys personally sanctioned or reprimanded? Did any party get an adverse inference or curtailment in the pleadings?

I thought not. So I don't know what that means for the PR parade.

3- we agree ... So PADI eliminated its future economic liability... Sounds like they got what they wanted.

4- So the instructor abandoned two youths in a dangerous environment ... Not really much better... Sorry.....


Given all that:

A) Not sure what it all it means that PADI is "back in" but has no future economic liability... Is that really "in"?

B) I can see appellate courts spending decades on this.... Given the mess of the record below this is now creating.

C) does any of this square with SDI sending out a letter now?

It's possible you're not an attorney, but here goes anyway:

1. Read Federal Rule of Civil Procedure 26 and any source material about the attorney-client privilege (even Wikipedia if you don't have Moore's or Wright & Miller). The privilege belongs to the client, not the attorney, and it protects facts conveyed for the purpose of seeking legal advice, regardless of whether these facts are fixed in a tangible medium like an audio or video recording or written on paper. If the instructor has the facts to convey, the privilege belongs to him, even if the agency misleads him into providing the facts with language on the incident report that makes it appear as though they will maintain the privilege, prior statements from the head of Legal & Risk Management providing these assurances and the like. The facts are privileged. Period.

To answer your second question, read Rule 26. The scope of discovery does not include privileged material. It doesn't matter if the facts would be useful for impeachment, contained within a business record or anything else that makes having the facts appealing. The facts conveyed to an attorney for the purpose of seeking legal advice are not within the scope of discovery.

2. I have tried more than one case and I even spent some time clerking for a Chief U.S. District Judge. Based on this experience, yes. A sanction in federal court is a sanction no matter how small the amount. It matters. Maybe not to you, but it does within the judicial system.

3. PADI did not eliminate its future economic liability if a federal court jury finds that the DSD standards are unsafe and allocates fault to PADI. PADI may not have to pay any more money to the Tuvells, but it is facing other litigation over its DSD program and a jury finding here could be collateral estoppel in the other cases.

Thanks for asking the questions. I hope this is helpful.