Parents sue Boy Scouts for 2011 negligence death

[The Chairman]

It's looking more and more like the agency is in the drivers seat.

I disagree. If the DOT puts an 80MPH sign on a dirt road, that doesn't mean I HAVE to do 80MPH. Oh sure, I probably will and even try to push it to a 100. However, it's still my butt on the line if I lose control. If I used sound judgement, ie professional judgement, I would not try to match the speed limit.

I remember Snowmageddon a few years ago. Elena and I are on the way to the Baltimore show, just outside of DC when the mother hit. There were already snow banks all over and at one point I turn to Elena and ask, "Why am I the only car doing 65MPH?" She replied rather tersely, "I don't know. Why are you the only #$^&% idiot doing 65 in this snow storm???" Standards, like speed limits, have to be adjusted downwards to match reality. (Actually, she never actually said ^, but she sure implied it. )

 

[cerich]

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.

this!!!!!!!!!!!!!!

 

[Omisson]

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 ----------



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.

Noticed you didn't answer a single question.

Just saying.

 

[Dr. Lecter]

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.

Finally you make a noise that sounds like a lawyer. Thanks for the commentary.

 

[Ayisha]

Here's something the lawyers will be interested in that's going around today. Subfiend might not be too happy about it though. Apparently emails aren't privileged either...

PADI Says Member Incident Reports Are Not Privileged

 

[JohnN]

Here's something the lawyers will be interested in that's going around today. Subfiend might not be too happy about it though. Apparently emails aren't privileged either...

PADI Says Member Incident Reports Are Not Privileged

I'm not certain why correspondence between opposing attorneys should be considered privileged, however it does look like the council for PADI had his bluff called and backed down.

 

[Huzzar]

Well, the takeaway for me from this very long thread is that you trust nobody except the lawyer that you are paying for yourself.

So, you can't trust PADI to protect your interests, I've heard elsewhere BSA will throw adult leaders under the bus too. My question now is about the lawyers that work for the insurance company that you buy liability coverage from. Can they throw you under the bus as well?

 

[Wookie]

Well, the takeaway for me from this very long thread is that you trust nobody except the lawyer that you are paying for yourself.

So, you can't trust PADI to protect your interests, I've heard elsewhere BSA will throw adult leaders under the bus too. My question now is about the lawyers that work for the insurance company that you buy liability coverage from. Can they throw you under the bus as well?

You buy liability insurance to protect your personal assets from your negligence. Insurance companies love to find reasons to collect your premium and deny your claim. My professional liability insurance has a number of clauses in it, including a 2:1 student teacher ratio of DSD, I must have an insured, certified dive supervisor on deck when divers are in the water, and my release must be properly filled out with no blanks or strikethroughs. If I don't meet those clauses, my insurance company may refuse to cover my defense. I additionally protect my personal assets by a corporate veil, but ask yourself. If the insurance company can possibly come up with a reason to deny your coverage, do you think they will?

 

[Subfiend]

Well, the takeaway for me from this very long thread is that you trust nobody except the lawyer that you are paying for yourself.

So, you can't trust PADI to protect your interests, I've heard elsewhere BSA will throw adult leaders under the bus too. My question now is about the lawyers that work for the insurance company that you buy liability coverage from. Can they throw you under the bus as well?

I don't, but that's just me.

 

[The Chairman]

So Subfiend, Say I did a no-no and took three people on a DSD, which is one past SDI's limit of 2. There's an accident, and you're suggesting that you would still cover me for knowingly exceeding standards? What if I took 8 DSDs? How about 23? Where is that line drawn, or are you suggesting that there is no line and my knight in shining armor will defend me anyway.