Training agency throws Instructor under the bus while misleading the court

[Karibelle]

What is important to note is that PADI does not alledge a standards violation. PADI does not say that the instructor did anything wrong, and above all, PADI does not say that the standards for student control are inadequate.

Is there more information somewhere about the actual incident? I read the document posted, and from what I read (entirely possible I missed something) the instructor's lawyer said PADI had provided no explanation for the expulsion. But that was pretty much it. Did I miss it in the document, or can you point to other proceedings related more specifically to the incident?

 

[knotical]

Is there more information somewhere about the actual incident? I read the document posted, and from what I read (entirely possible I missed something) the instructor's lawyer said PADI had provided no explanation for the expulsion. But that was pretty much it. Did I miss it in the document, or can you point to other proceedings related more specifically to the incident?

some info here: http://www.scubaboard.com/forums/sc...nts-sue-boy-scouts-2011-negligence-death.html

edit: and here: http://www.scubaboard.com/forums/ac...1-utah-boy-scout-drowns-diving-bear-lake.html

 

[Karibelle]

Thank you.

 

[Wookie]

I don't believe this has gone to litigation yet, so I'm not sure the story is out. I only have some inside information, and not much at that. The story I told earlier is as was told me by the insurance company representative.

 

[Centrals]

what is important to note is that padi does not alledge a standards violation. Padi does not say that the instructor did anything wrong, and above all, padi does not say that the standards for student control are inadequate. What padi did was dump the instructor, settle with the parents, and sneak back into the lawsuit on the side of the parents, in a not too transparent attempt to maintain their standards as right. That's why this is wrong.

unscrupulous!!

 

[Dr. Lecter]

unscrupulous!!

If you say so: the judge here didn't think so. He did think it was a technical violation of the duty of candor and rules of pleading to file an amended pleading containing counts against PADI after settling, though.

How does anyone read that transcript and not get that everyone understands and acknowledges as valid PADI's desire to stay in the case after settling? They were just stupid about how they did it - if they'd held off on settling until plaintiff had filed his amended complaint and then inked the deal and stayed in the case, they'd have been fine.

If you want to roast PADI for something, roast them on the substance (or lack thereof) of the DSD standards. Roast them for booting an instructor sans any kind of due process. Hell, roast them for hiring foolish legal help. But it's hard to fault them for trying to stay in a case after settling the liability with plaintiff when everyone involved knew the LDS was going to do its best to throw PADI under the bus as their defense against plaintiff's claims...and that at the end of the day, whether PADI's in the case or not, there's going to be a piece of paper from a jury that says whether PADI's the cause of a kid dying and, if so, how much of a cause.

 

[Wookie]

...and that at the end of the day, whether PADI's in the case or not, there's going to be a piece of paper from a jury that says whether PADI's the cause of a kid dying and, if so, how much of a cause.

Will there be? If PADI is successfully separated, can any fault be assigned to them for poor standards, if that's what BSA and the dive shop alleged? What if the Jury finds PADI 100% at fault, but PADI has already settled? What then, and can that happen?

 

[Dr. Lecter]

Will there be? If PADI is successfully separated, can any fault be assigned to them for poor standards, if that's what BSA and the dive shop alleged? What if the Jury finds PADI 100% at fault, but PADI has already settled? What then, and can that happen?

Of course there will be - read the hearing transcript and focus on the bits about the empty chair and about a settled defendant arguing to reduce the fault apportioned to it on the jury form.

This specific case aside, what are you supposed to do--tell the jury, "sorry guys, defendant A settled so you cannot consider defendant B's arguments that it was defendant A's negligently drafted and enforced standards that are 100% at fault here"? The point of a trial is to determine what happened and assign blame accordingly - settlement doesn't change who did what to whom, it just means that if the jury comes back with a $5,000,000 award and finds PADI 100% at fault and the LDS 0% at fault, then the kid's parents missed out on $4,200,000 worth of payday.

Don't confuse fault with liability. Fault is what the jury says; liability is what you're stuck with at the end of the day, and a settlement agreement that says $800k in exchange for a full release means never having to say you're sorry (or cut a second check) no matter what screw-ball jury you get.

 

[Wookie]

Of course there will be - read the hearing transcript and focus on the bits about the empty chair and about a settled defendant arguing to reduce the fault apportioned to it on the jury form.

This specific case aside, what are you supposed to do--tell the jury, "sorry guys, defendant A settled so you cannot consider defendant B's arguments that it was defendant A's negligently drafted and enforced standards that are 100% at fault here"? The point of a trial is to determine what happened and assign blame accordingly - settlement doesn't change who did what to whom, it just means that if the jury comes back with a $5,000,000 award and finds PADI 100% at fault and the LDS 0% at fault, then the kid's parents missed out on $4,200,000 worth of payday.

Don't confuse fault with liability. Fault is what the jury says; liability is what you're stuck with at the end of the day, and a settlement agreement that says $800k in exchange for a full release means never having to say you're sorry (or cut a second check) no matter what screw-ball jury you get.

So, the word on the street is that PADI settled to prevent their supervision ratios from ever coming into play. Rumor has it that there a number of cases pending that are all supervision ratio standard related. If PADI is found 100% at fault in this case because their ratios are inadequate (you and I both know that that won't happen, but "what if"), then that finding "could" be used in other cases, regardless of the settlement status?

In your opinion, what was the upside for PADI doing what they did?

 

[Dr. Lecter]

So, the word on the street is that PADI settled to prevent their supervision ratios from ever coming into play. Rumor has it that there a number of cases pending that are all supervision ratio standard related. If PADI is found 100% at fault in this case because their ratios are inadequate (you and I both know that that won't happen, but "what if"), then that finding "could" be used in other cases, regardless of the settlement status?

In your opinion, what was the upside for PADI doing what they did?

To compress a complicated area of law (collateral estoppel or issue preclusion) down into something generic and useful: no, it can't be used against them later if they're not a party because they settled. That jury A found PADI 100% at fault because X was negligence in case A can't be used against PADI in case B over whether X is negligent if PADI wasn't a party when when jury A made its decision even if it's the same issue.

Here, PADI wants to have its cake (settle and thus avoid both a possibly expensive judgment and an adverse ruling re: its DSD standards that can be used against it in the future) and eat it too (stay in the litigation in some capacity so that it can argue against the idea that its DSD standards are the reason this kid died, and thus avoid the ugly publicity of having a jury find them at fault).

However, the reason an adverse finding here, where they've settled out, can't be used against them later involves a requirement that the same party be involved in each case and have had a chance and reason to fully litigate the issue in the first case. So honestly, by trying to stay in and argue the point for public relations reasons...I wonder if they're not putting at risk their future ability to say "you can't admit evidence against us of the earlier jury's finding that DSD standards are negligence...because we weren't in that case as a party and thus didn't have a full and fair chance to litigate the issue."

There's probably a basis for them to be able to have it both ways related to the minimal incentive of a settled party to litigate, but it's a potentially risky play. A lot of collateral estoppel arguments turn later litigations into one big game of 'catch me, me'. I'm not sure why PADI couldn't have relied on the plaintiff--who has a huge financial incentive to have the jury find PADI A-OK and the LDS liable--to defend them and not put their ability to say 'hey, don't wave that jury verdict in our face--we weren't there to defend ourselves!' in jepoardy. It's hard to say you weren't there and didn't argue the point...when you moved mountains to stay there and argue the point.