Parents sue Boy Scouts for 2011 negligence death

[Dr. Lecter]

I can tell 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.

It's not really worth my time to debate with you any further, but thanks for asking the questions.

You're obviously an attorney, but I'm beginning to doubt your grasp on attorney client privilege. The facts are never privileged, and doing something contrary to your self-interest because you want to remain a PADI instructor isn't being tricked for purposed of deciding whether or not your communication (you know, that thing that may be privileged, unlike the facts) was confidential for purposes of deciding if it ticks all the boxes for privilege. Absent a common interest or a joint defense agreement, you have a hard time in PADI's shoes saying 'No, I don't have to produce the document that was submitted to me - no attorney included on the communication - by a party who has undeniably different interests from my own...they reasonably expected that communication would remain confidential!'

I'm not touching the sanctions issue - you're right that it's bad regardless. However, it's different to be called out by name in an opinion for sanction/censure. The court here was clearly pissed PADI and the plaintiffs' counsel missed the forest for the trees, never thinking 'gee, are we seriously filing a pleading naming a defendant against whom we've settled all claims?!' But I didn't get the sense from the argument on the motion to strike the amended complaint/for sanctions that the judge was overly concerned that the failure of candor was somehow deliberate. The litmus test is whether the affected attorneys have to report it as discipline for unethical behavior next time they apply for PHV somewhere.

Based on 3, WTF was PADI thinking (in your opinion) by getting back in? If they'd stayed out, then any findings against the DSD standards couldn't be used against them in other litigations. It might still be a PR nightmare, but it wouldn't be issue preclusion. Now they have the risk of both CE and a PR nightmare, plus being out $800k. Not...ideal.

 

[Omisson]

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.

Counselor:

Yea... 15 years as a litigator - 2nd circuit, SDNY, EDNY, USSC, FedCApp, AFCApp, attorney admitted lots of places, 70 criminal jury trials to verdict, 2 dozen civil verdicts both sides, federal and state court.... but not UTAH. So that's why I prefaced my comments about the issues with my caveat about "not knowing the local rules".

1) And you sidestepped my question - the fundamental issue is WHO is the privileged client - the Agency or the Instructor? Or BOTH?

Since PADI drafted the report, one can infer THEY ALONE are the privileged party - if so they need no one else's permission to waive their privilege.

If the report is as clear cut on privilege as you suggest why didn't the court sanction PADI or preclude or craft an adverse inference for its disclosure in favor of the instructor?

Ummm maybe because the court doesn't see that? Or did no one bother to timely bring a motion on the issue? Is the report even important or does it restate agreed upon facts?

2) Seriously, wow you see a 2k time-fee sanction as significant? Really? That aside, Again you sidestepped my question- was the bar or disciplinary committee referred? Did the court provide adverse inferences? Sanction the attorneys personally? Censure them?

The court said the misleading pleadings wasted time. The opposing party was paid a nominal fee for that waste. Please tell me you aren't tea leaf reading more into that....

3) I don't see collateral estoppel working if the Appellate record is as murky as it appears it will be -given this tortured route of the pleadings and settlements going on here. But hey maybe you know something more about the others DSD claims?

Are the other DSD claims you speak of being bundled in a class action? How many are there? Are they in the same circuit? How will the appellate courts treat this whole settlement issue? Will other jurisdictions be applying Utah law too? If not are their liability and privilege rules similar?

I think your counting way too many chickens that aren't even eggs yet, let alone hatched for a piece of Federal litigation, As my Federal Procedure professor Ned Cavanaugh used to say....it ain't over till the 9 wise men rule and even then you never know.

But I do think you raise a great point for the defense of both PADI and the Instructor. A child with Asthma of a significant degree lied and his parent/guardian lied in filling out the participatory paperwork. I would also imagine that means they also lied to the Boy Scouts on their BSA Medical... I'm noticing get a pattern here?

So they are now habitual liars... That is both exculpatory to PADI, BSA and the Instructor and damning to the credibility of the guardian/parent witness- you'd lie in official paperwork? Not once but multiple times....

So they will indeed bare liability too if it is apportioned. Moreover in some jurisdictions that contributory negligence may be dispositive alone.

Anyway thanks for the spin .... I mean your side of the story.... Can we invite the other attorneys to participate too or do you get the only soap box?

 

[Zippsy]

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.

He may have expected to have a successful 201st after 200 others but that wouldn't have been wise. Before I teach every course or guide every dive, I remember that there are always a million things that could go wrong.

As an aside, I usually don't take internet posts too personally and I hope I haven't offended you or anyone else. I guess I speak passionately about things I am passionate about. As I think I noted someplace earlier, I'm no PADI priest. There is a lot of stuff to pick on them for and their kickbacks taken on insurance premiums is very high on my list of all-time swindles in or out of the diving industry. I just believe that they should be picked on for things that really are something they have done wrong and I don't think this is one of them.

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 was in reply to someone who said it was easy to do a 4:1 if conditions were ideal. I was saying that I don't know how to keep 4 people happy and within immediate touching distance of me. I'm not saying it's impossible, just that I don't know how to do it. That's why I won't take 4 DSDs.

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.

For clarification, I was saying that if some people here get their way and PADI reduce their DSD ratio to 1:1, they would be aiming the change to make it easy for the worst instructor under the worst condition. Personally, I think I am a decent instructor and I usually teach in fairly good conditions. Usually I know I can easily take 2:1 and I can foresee under certain conditions a scenario of taking 3:1 in the ocean.

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 would defer to the lawyers on the forum about trial cases but I don't think that the incident / non-incident outcome of a course or dive determines whether or not good judgment was used. I believe that courts use the reasonable person test. If the fictional "reasonable dive instructor" would take 3 students based on the conditions, then 3 should not be considered too many. That may not help the deceased but it should help (or hurt) the instructor. I could be wrong but I suspect (okay, at least I hope) PADI would use a similar approach.

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.

I'm not sure I understand you here but since you said that you agree with me on this point, I'll shut up.

 

[Subfiend]

Absent a common interest or a joint defense agreement, you have a hard time in PADI's shoes saying 'No, I don't have to produce the document that was submitted to me - no attorney included on the communication - by a party who has undeniably different interests from my own...they reasonably expected that communication would remain confidential!'

Re: "No attorney included on the communication." That's not true. The incident report is included as part of the PADI QM process, it is going to the "Legal & Risk Management Department," and an attorney sits on the QM review committee getting the communication. Would it be reasonable for an instructor who is not an attorney to believe that an attorney is going to review the communication and the communication is going to be kept confidential and privileged? I am not asking if it would be correct to believe this, just would it be reasonable?

With all due respect, you can doubt my grasp of the attorney-client privilege, but you seem to be making statements about my "grasp" based on assumptions and not facts. You and I can spend all day parsing whether the instructor has a common interest with PADI, a reasonable expectation that they are protected by making a statement to PADI's lawyer or legal department, etc., etc., but the fact is these incident reports are supposed to be submitted to PADI by non-lawyers, within a day or two of a serious incident, under emotional circumstances, pursuant to the requirements of a contract. If I am defending the instructor, I am going to assert that the incident report is privileged until a judge tells me it isn't. If my grasp of the attorney-client privilege is incorrect, at least I have done all I can to protect my client's interests. Moreover, if I was representing the training agency and the plaintiff's attorney requested production of the incident reports, I would at least contact the instructor's counsel before turning them over and say "Hey, if you think these are privileged, here is your chance to say something to protect them before I turn them over." I would not simply produce an incident report without a request and without notifying the instructor's counsel, "inadvertently" or otherwise.

---------- Post added November 16th, 2014 at 09:49 AM ----------

Counselor:

Yea... 15 years as a litigator - 2nd circuit, SDNY, EDNY, USSC, FedCApp, AFCApp, attorney admitted lots of places, 70 criminal jury trials to verdict, 2 dozen civil verdicts both sides, federal and state court.... but not UTAH. So that's why I prefaced my comments about the issues with my caveat about "not knowing the local rules".

1) And you sidestepped my question - the fundamental issue is WHO is the privileged client - the Agency or the Instructor? Or BOTH?

Since PADI drafted the report, one can infer THEY ALONE are the privileged party - if so they need no one else's permission to waive their privilege.

If the report is as clear cut on privilege as you suggest why didn't the court sanction PADI or preclude or craft an adverse inference for its disclosure in favor of the instructor?

Ummm maybe because the court doesn't see that? Or did no one bother to timely bring a motion on the issue? Is the report even important or does it restate agreed upon facts?

2) Seriously, wow you see a 2k time-fee sanction as significant? Really? That aside, Again you sidestepped my question- was the bar or disciplinary committee referred? Did the court provide adverse inferences? Sanction the attorneys personally? Censure them?

The court said the misleading pleadings wasted time. The opposing party was paid a nominal fee for that waste. Please tell me you aren't tea leaf reading more into that....

3) I don't see collateral estoppel working if the Appellate record is as murky as it appears it will be -given this tortured route of the pleadings and settlements going on here. But hey maybe you know something more about the others DSD claims?

Are the other DSD claims you speak of being bundled in a class action? How many are there? Are they in the same circuit? How will the appellate courts treat this whole settlement issue? Will other jurisdictions be applying Utah law too? If not are their liability and privilege rules similar?

I think your counting way too many chickens that aren't even eggs yet, let alone hatched for a piece of Federal litigation, As my Federal Procedure professor Ned Cavanaugh used to say....it ain't over till the 9 wise men rule and even then you never know.

But I do think you raise a great point for the defense of both PADI and the Instructor. A child with Asthma of a significant degree lied and his parent/guardian lied in filling out the participatory paperwork. I would also imagine that means they also lied to the Boy Scouts on their BSA Medical... I'm noticing get a pattern here?

So they are now habitual liars... That is both exculpatory to PADI, BSA and the Instructor and damning to the credibility of the guardian/parent witness- you'd lie in official paperwork? Not once but multiple times....

So they will indeed bare liability too if it is apportioned. Moreover in some jurisdictions that contributory negligence may be dispositive alone.

Anyway thanks for the spin .... I mean your side of the story.... Can we invite the other attorneys to participate too or do you get the only soap box?

Okay, briefly, because I think the readers might be getting bored with our banter. I don't know how many cases I have tried because I don't count them. It might be more than 70 or it might be less, but I have never tried a criminal case to verdict, which is why I don't express opinions about federal criminal procedure. On the civil side, 24 years of trial experience and I have not lost a trial in 19 years. This and $4 will get you a cup of coffee at Starbucks. It probably means I don't try enough cases. Who knows? Admitted to practice in the US Supreme Court; 2nd, 3rd, 4th and 9th Circuits; multiple federal jurisdictions and two states. Admitted pro hac vice in 14 jurisdictions, including Utah, CA, FL, TX, ME, NH, NY, RI, AL, IL, NC and a bunch of others, where I associate with local counsel. You know the drill.

Check the docket and read the filings if you want to make statements about what the record shows/doesn't show. You have too many misstatements about what has happened in the case for me correct everything. For example, nobody has asked the court to draw an adverse inference and the attorneys were sanctioned personally. Please read the motions and the order.

Thanks for the agreement on the other issues. It's true that everybody in this case will get their day in court.

I hear they give out free soapboxes with every Scubaboard registration. Lots of people have them, including you. Your posts seem to be intended to see who has the bigger soapbox, you or me, but I don't think people really care. All this attorney banter starts to become noise after a while.

The really important discussion should be about safety and how to prevent a tragedy like this from occurring ever again. Personally, I don't think this discussion should end because PADI expelled the instructor. That act simply forecloses any discussion about the safety of the standards, as does trying to change the pleadings to eliminate a claim that the DSD program is defective and PADI colluding with the plaintiffs' attorney to hold the instructor liable. But, like I said, everybody will get their day in court - including the parents, the boy, the instructor, the physician's assistant and pediatrician, and PADI - and we can have the discussion there with PADI's full participation. Meanwhile, all of my clients in the scuba industry no longer offer PADI's DSD program to kids, and those that offer it to adults do so with a 2:1 ratio. They didn't wait for the trial in Utah before having a discussion about safety and standards.

 

[Wookie]

Actually, it's very enlightening. I do not agree with Omissions conclusions as an instructor, but I have respect for his legal opinion. I believe that he and I have very different scuba backgrounds, as scuba has been my entire career since 1996, as I was a nuclear and environmental engineer prior to that, but I've never been a lawyer.

i was involved in a dive fatality as an operator. The charterers lawyer advised me on the phone not to speak to the sherrifs department detectives, the coast guard investigators, or the certification agency until he could advise me, and to put nothing in writing until he cleared it first. In fact, he did not represent me, Subfiend would have had it become necessary, but I begin to understand why I received the advice I did. I'm guessing that the CG-2692 Record of Accident, Injury, or Death is not privileged nor is any statement made to any entity besides the lawyer.

in the greater scheme of things, what reports following a scuba fatality can be expected to be confidential? Only those to a lawyer?

 

[The Chairman]

in the greater scheme of things, what reports following a scuba fatality can be expected to be confidential? Only those to a lawyer?

Great take away. This is why I do not trust any agency fully. Standards are written in a futile attempt to keep fidiots in line. You shouldn't hide behind standards when it's your judgement that is the problem. If you really don't agree with the standards, then why teach for that particular agency? When you factor in lies by the parents and the kids so junior can do something fun that he's not physically up to and I just can't imagine holding PADI responsible for this cluster. Think about it, given the medical condition, it's quite possible that one on one would not have saved him. Having any sort of breathing episode under water is going to be tough to overcome.

 

[Subfiend]

i was involved in a dive fatality as an operator. The charterers lawyer advised me on the phone not to speak to the sherrifs department detectives, the coast guard investigators, or the certification agency until he could advise me, and to put nothing in writing until he cleared it first. In fact, he did not represent me, Subfiend would have had it become necessary, but I begin to understand why I received the advice I did. I'm guessing that the CG-2692 Record of Accident, Injury, or Death is not privileged nor is any statement made to any entity besides the lawyer.

in the greater scheme of things, what reports following a scuba fatality can be expected to be confidential? Only those to a lawyer?

This was great advice, and I would have given it to you as well. My own take with regard to the agency is that you should have a reasonable expectation that the agency is going to keep your accident report confidential and, if they are not, they should tell you this. If the agency is going to plaster “THIS REPORT IS PREPARED FOR THE PURPOSE OF RECEIVING LEGAL ADVICE FOR USE IN ANTICIPATED LITIGATION” all over their incident report form, at least they could advise the person filling out the form that they are not the one receiving legal advice if this is PADI's intent. Just my two cents... But, like I said elsewhere, "let the buyer beware."

 

[Wookie]

Great take away. This is why I do not trust any agency fully. Standards are written in a futile attempt to keep fidiots in line. You shouldn't hide behind standards when it's your judgement that is the problem. If you really don't agree with the standards, then why teach for that particular agency? When you factor in lies by the parents and the kids so junior can do something fun that he's not physically up to and I just can't imagine holding PADI responsible for this cluster. Think about it, given the medical condition, it's quite possible that one on one would not have saved him. Having any sort of breathing episode under water is going to be tough to overcome.

It's looking more and more like the agency is in the drivers seat. If you want to teach scuba, you have to be an agency member. To be an agency member, you have to agree to a code of conduct that absolutely protects the agency, with no guarantee that the agency will reciprocate in any fashion. If you want to captain a dive boat, and you want to carry in-water liability insurance for that boat, you have to have a leadership rating in good standing from an agency, which brings us back full circle.

i guess that's the part of this whole mess I take objection to. Regardless of the best intentions of any instructor, or their best adherence to what they know as best practices, or their desire to do a good job, if the poo hits the fan, they are left with no friend to stand beside them. A lawyer isn't your friend, any more than a hooker cares about you. Your agency will cut you free to flap in the breeze. Your insurance company will send you stern letters.

Not only did a child die on your watch, but you're left standing all by yourself.

---------- Post added November 16th, 2014 at 11:30 AM ----------

This was great advice, and I would have given it to you as well. My own take with regard to the agency is that you should have a reasonable expectation that the agency is going to keep your accident report confidential and, if they are not, they should tell you this. If the agency is going to plaster “THIS REPORT IS PREPARED FOR THE PURPOSE OF RECEIVING LEGAL ADVICE FOR USE IN ANTICIPATED LITIGATION” all over their incident report form, at least they could advise the person filling out the form that they are not the one receiving legal advice if this is PADI's intent. Just my two cents... But, like I said elsewhere, "let the buyer beware."

Why is none of this ever discussed in the "diving and the law" seminars at DEMA? We're always told to comply with local law enforcement requests and send incident reports to the agency. I'll be damned if I ever send another incident report to anyone.

 

[Subfiend]

Great take away. This is why I do not trust any agency fully. Standards are written in a futile attempt to keep fidiots in line. You shouldn't hide behind standards when it's your judgement that is the problem. If you really don't agree with the standards, then why teach for that particular agency? When you factor in lies by the parents and the kids so junior can do something fun that he's not physically up to and I just can't imagine holding PADI responsible for this cluster. Think about it, given the medical condition, it's quite possible that one on one would not have saved him. Having any sort of breathing episode under water is going to be tough to overcome.

As it stands now, the jury will be asked to allocate fault among everyone involved in the incident. I am certain there will be lots of percentages written next to lots of names on the verdict sheet. I don't think anyone in the courtroom will be happy with the outcome. Even when I win these cases, I am not happy with the outcome. I take no pleasure in other people's loss.

Ironically, my daughter is the same age as David Tuvell. She has exercise-induced asthma; therefore, she does not dive. She is disappointed about this, but she can make her own decision about whether to dive when she is an adult, based on competent medical advice. For now, however, the risk of losing her is just too high for any of us to accept.

 

[SeaCobra]

the NAUI accident report advises me to email it to "legal@naui.com". Fortunately, I have not had need of this, but in no way would I email such a document to a generic email inbox. I have asked who reads this inbox, who has the password, etc. To date I have not been answered. My take would be that anything I send to that inbox is not covered under privilege and will be used against me.