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Training agency throws Instructor under the bus while misleading the court

Discussion in 'Scuba Related Court Cases' started by cerich, Aug 26, 2014.

  1. cerich

    cerich ScubaBoard Supporter ScubaBoard Supporter

    # of Dives: 5,000 - ∞
    Location: Georgia
    Sigmund Seamonster likes this.
  2. mills705

    mills705 Staff Instructor

    # of Dives: 0 - 24
    Location: Newcastle-upon-Tyne
    The Director of TDI has come out to question this court case.... In an open letter!
    Very interesting that he has stepped out to speak against PADI in this way!
  3. victorzamora

    victorzamora Solo Diver

    Yeah, that was crazy. At first I thought it was a pretty classless thing to do, but the more I thought about it the more I realized that this really is the classiest thing to do. He's risking a lot to defend the entire Scuba diving industry. Most divers want diving to be a self-policing activity with little or no government interference. Things like this case are what can force the Government's hand. If we don't handle things properly by ourselves, how can we expect to be trusted to do so?
  4. fire_diver

    fire_diver Solo Diver

    # of Dives: I just don't log dives
    Location: NW Oklahoma, USA
    November 12, 2014

    An Open Letter of Personal Perspective to the Diving Industry
    Brian Carney
    President of SDI/TDI/ERDI

    I have spent the better part of the last 25 years of my life working in the diving industry. It has been my consuming passion including everything from working at an aquarium as a diver, to teaching a University diving program, to being part of the Executive management team of a manufacturer, and now my current position as President and CEO of SDI/TDI/ERDI. Over this period of time I have thoroughly enjoyed working with people from all over the world, and training others to experience breathing underwater for the first time. This is the reason I decided to make a commitment to a career in this industry.
    Through my experiences, and as I have assumed more and more responsibility, I have observed a lot of evolution, innovation, and industry trends. Due to these responsibilities and my position within an international training agency, I feel it is my duty to bring to light some of the things that have recently occurred in this industry. They remain closeted and buried in confidentiality protocols that are detrimental to our collective business models and to the overall growth of diving. Those of you who have worked with me over the years know I prefer to talk about positive things. I believe that if I cast aspersions at my competitors, I set the wrong example of how people in this industry should work. Those who know me will tell you, I expect this of all the people I work with... professional respect and a duty to advance the industry as a whole. I personally feel there is no place for disparagement in this industry.
    But eventually a point is reached where I feel compelled to speak out. Because of my personal beliefs, I have recently struggled with the issue of whether or not I should offer personal comment on the recent tactic another training agency has chosen to take towards its instructor members. I believe their actions are damaging to the entire diving industry. After much thought and reflection, I decided that, regardless of which agency I belong to, I have a greater responsibility to the industry as a whole to focus a spotlight on this tactic. Because, if this is the direction we are going, we are in grave trouble.
    There is currently a lawsuit underway in federal court in Utah (Tuvell v. Boy Scouts of America, et al., Case 1:12-cv-00128-DB), where a boy lost his life in a PADI Discover Scuba Diving program. Normally, PADI supports its members and vigorously defends litigation. But not this time...
    PADI did something strange after the Utah incident: less than two weeks after the accident, without conducting any investigation, without interviewing witnesses or waiting for the authorities to complete their investigation, PADI expelled the instructor, a veteran of the Iraq war, from PADI membership. The agency gave no reason other than that the instructor's continued membership "was no longer in the best interests of PADI". When the instructor asked PADI to explain its reasoning or identify which PADI standards he had violated, PADI never even gave him the courtesy of a response.
    When the boy's parents filed litigation, PADI chose to settle the plaintiffs' case against their organization secretly and attempted to cloak the settlement in confidential agreements. PADI then illegally colluded with the plaintiffs' attorney to file false pleadings so PADI could remain a party to the case and secretly work against its own member. This was after already settling themselves out of the litigation. When this conduct came to light, PADI was sanctioned by a Federal Judge for its misbehavior. You can access and review this "Document 182" in the case file, which is available to the public at www.pacer.gov.
    PADI also took other harmful action in the case. They paid a considerable sum of money to settle the case (the exact amount is noted in the transcript of the April 23, 2014 court hearing where PADI was sanctioned and is also available in the case file on www.pacer.gov.) But incredibly, the settlement agreement (that PADI prepared) contains a clause where the parties agreed that PADI's member was 100% at fault. Then, after the settlement, PADI turned over its instructor member's incident reports to the plaintiffs without a request or ever informing the member that it was doing so.
    These are the reports that all members are required to file as a condition of their PADI Membership Agreement. These are the same risk management documents that say on them: "THIS REPORT IS PREPARED FOR THE PURPOSE OF RECEIVING LEGAL ADVICE FOR USE IN ANTICIPATED LITIGATION". In other words, the incident reports are privileged. They are protected from disclosure by both the attorney/client privilege (which belongs to the member instructor) and the attorney work product doctrine (which belongs to both the member and PADI). Then, when the member's attorney insisted that PADI recall the documents and protect them on the basis of privilege, PADI refused to do so. Remember, PADI had entered into a secret settlement with the plaintiffs that included a collusion clause.
    It's sort of the ultimate example of throwing an instructor under the bus to selfishly protect their own corporate interests and sacrificing the member to take the fall when that instructor had actually followed every applicable PADI standard!
    Now, the details of what actually happened during the dive will come out upon completion of the case, but from what is in the public domain now, the instructor followed all required training standards. So, you have to wonder why PADI would so quickly expel one of their members without an investigation and then secretly collude with a plaintiffs' lawyer to hold the members liable. Well, the reason can only be hypothesized, as PADI has yet to respond to multiple requests in both Federal Court and the court of public opinion. But the answer is pretty clear and obvious to any observer with access to the "behind the scenes" facts.
    My reason for writing this open letter to the industry is to shed some light on why PADI engaged in such bizarre behavior in the Utah case. The dive center and instructor being sued in the Utah case carried insurance with Willis Insurance, which is not a member of the PADI endorsed program. So PADI, knowing this was an accident that could generate bad publicity and call into question the safety of its Discover Scuba Diving program, wanted to get out of the case as quickly and as quietly as possible. Because it would not hurt their own endorsed insurance program, PADI chose to simply expel the member and point the finger at him because it wouldn't cost them anything. This theory is further supported by the fact that PADI's underwriters filed a related federal lawsuit asking the court to order Willis' underwriters to pay PADI's legal fees in the Tuvell case.
    PADI's underwriters continued to be involved in this case for another year in collusion with the plaintiffs' after PADI settled their own liability in the Tuvell case. They also never disclosed to the Federal Judge that PADI had settled the underlying case. In other words, PADI was trying to have Willis pay its lawyers' fees for colluding with a plaintiffs' attorney to hold Willis's insured parties liable.
    You are most likely asking yourself, why I am drafting this notice and defending a PADI instructor who had a fatality during one of his courses. It is because I believe that one of the biggest dive training agencies in the world has an obligation to lead in a positive way so the whole industry can benefit. In years past, this type of behavior -- lying in court and colluding with plaintiffs -- was frowned upon by everyone. Not to mention being illegal. As a matter of fact, PADI has famously chastised and ridiculed attorneys and expert witnesses, who used to work on their own behalf for defense litigation, but now do other work with plaintiffs as well. Are you beginning to see the absurd context of all this? By this reasoning, it's perfectly fine for PADI themselves to collude with plaintiffs to "sand bag" their own instructor member and conspire against his defense... while simultaneously condemning all others for doing plaintiffs work of any kind.
    To see PADI take this step should be of great concern... for not just every dive instructor in the industry, but also every dive store owner, manufacturer, and media person, because now you have to worry whether you can trust PADI at all. You have to ask yourself, "Will PADI do the same to me if it serves their interests? Am I the next victim going under the bus?"
    I have never worked against any instructor... regardless of the agency they belong to and the fact that they might be competitors. Rather I have chosen to advocate for them when they are in a time of need. From my perspective as a training agency president and active diving industry businessman, PADI's action was irresponsible, secretly self-serving, and reeks of a big corporation attempting to sacrifice their own member who had acted completely within their standards of conduct. Such actions are beneath contempt and not in the best interests of the diving industry as a whole.
    I conclude this letter by saying, I recommend and urge every dive professional in the industry to ask the organizations they are working with to put in writing that if you follow their standards, you will be supported by the organization you teach with. SDI/TDI/ERDI will be happy to do this regardless of the insurance carrier you use and I challenge all the training agencies to do the same. How can we work as instructors in the industry for organizations if we can't trust them to provide vigorous defense when accidents happen and standards are followed? Are the standards there only to protect and enable the agency in blaming the instructor no matter what happens?
    If the above criteria as cited is true (and it is accurate and verifiable), then the diving industry has fallen to a shameful level and further contributes to undermining our collective interests and the overall business model for the sport of diving.
    I regret having to write this letter... deeply so. And I know some will chastise and ridicule me for bringing this to light, but it would be irresponsible of me not to make this a discussion we all need to have. How long will it be before we destroy this industry from within? I love diving and all the segments that the industry is made of. It is too bad some of the people in this industry do not share the same passion that I do in protecting it. I would welcome an open discussion with anyone including heads of training organizations, manufacturers, and other industry professionals.
    It is time for everyone in this industry to act responsibly and work together. And if a manufacturer, training agency or other dive professional chooses not to... spend your money elsewhere. Because sometimes at the end of the day, the only way that change will occur is how you spend your money. You literally can take that to the bank.
    It's all about ethics in the end. You decide what path you think should be taken. For me, it's clear and based on common sense. And it's the right thing to do.
    sheeper likes this.
  5. Zippsy

    Zippsy Instructor, Scuba

    # of Dives: 2,500 - 4,999
    Location: SIngapore
    Imagine that... just before DEMA too.

    When he said "the instructor followed all required training standards", I got a pretty good idea why he wrote that letter. The last paragraph confirmed it. Market share is important and I guess I can't fault a business manager doing anything to get more market share.

    BTW, I've said so elsewhere but just to be clear, the standards that the instructor clearly broke include:

    Do not leave participants unattended, either at the surface or underwater.
    • Position yourself so that you or a certified assistant can make immediate physical contact with, adjust buoyancy for, and render assistance to, participants.​
    • Continually observe participants with only the brief, periodic interruptions needed to lead the dive and to provide assistance to individual divers.
    Last edited: Nov 18, 2014
    Omisson likes this.
  6. Hanzl

    Hanzl Angel Fish

    # of Dives: 1,000 - 2,499
    Location: Chisago, MN
    I missed where there was an actual investigation on their actions. I have heard those assertions as well.
  7. Jim Lapenta

    Jim Lapenta Dive Shop

    # of Dives: 500 - 999
    Location: Canonsburg, Pa
    Dive? There should not have been a dive. This was not a dive.

    It was a Discover experience that never should have happened. No pool training, falsified waiver, stupid BSA rules, and open water. Standards for kids should be one to one in a pool only. If someone else needs to be present to meet BSA rules then that other person should be a certified diver in the pool. Not another participant.

    Seeing this, no way I'd ever do a BSA event without another certified diver or DM to just be in the water. And it should be one to one.

    Did he break standards? Yes and no from my vantage point. He did leave people (not divers as they were not divers) unattended. No argument there. But as I have tried and failed to get my company to see when it comes to accident analysis on the job, which is why I quit our safety committee, they need to see what set the conditions for an accident to occur.

    On the job it's been "a supervisor said do this or go home", "don't worry about it we've done it this way for years", "it'll be fine maintenance already checked it out" and other bull crap excuses. Then when it comes time for worker's comp to review the claim it's denied or blame placed on the employee. Doesn't matter what the supervisor said, should have known better. That kind of crap.

    Here we had a situation where BSA standards required another person. No one on one with a boy. That's because of their failures in the past. They did at least learn from those. What they did not require was another certified diver for a scuba experience. Standards fail.

    Next we had a parent who falsified a medical waiver. Wow. How low can you go with your kid's safety at stake?

    Couple that with a standard that allowed minors to be taken into open water who had no previous training.
    Another that allowed more than one to one with a minor.
    Another that allowed more than one to one with a minor and did not require it be done in a pool only.
    Another that allows an instructor with only two arms to take more than two people (again not divers) underwater on scuba.

    The standards allow and in fact encourage failure. They promote failure as an option by providing a setting for it to occur.

    That to me sounds like an inherently defective set of standards resulting in an inherently defective program.

    One that is known and seen by any reasonably intelligent person to be defective and dangerous. At least in my opinion and why I will never conduct such a program in the manner those particular standards allow.

    That and I can't in fact do one. The agency guidelines I do them under only permit confined water (and is defined as a pool) with ratios of two to one with adults and one to one with minors. For me a minor is anyone under 18.
    flots am likes this.
  8. Omisson

    Omisson Public Safety Diver

    # of Dives: 1,000 - 2,499
    Location: Whitestone, New York, United States

    I really think you are just not capable of being rational when you address any issues with PADI, this is another example of pure BS.

    YES AND NO- the instructor broke standards?!?!? REALLY?

    Please show me the PADI Standard that permits an open water dive in murky (non pool like) conditions without a pool dive first?

    Please show me the PADI standard that permits taking a set of divers below the water and leaving them there unsupervised. EVER.

    Please show me the PADI Standard that allows a DSD instructor to be far away enough from a participant to permit the participant to bolt to the surface without being in the grab range of the instructor.

    Please show me the PADI Standard that says you can conduct the dive with 3 people when you can't responsibly supervise them in a murky, open water environment.

    The parent and child lying in their medical - the child having an asthmatic condition- which triggered the drowning is not a PADI standard issue.

    You analysis is defective because the ratio had nothing to do with the problems here.

    There is a problem with a DSD at ratios above 2:1 without additional certified assistants. But this case isn't about that. And the letter by TDI only shows itself to be pre-DEMA marketing... Because TDI would not have stood by an instructor who broke standards. In sending that letter they either didn't check the facts of the case or ignored those facts, neither is an acceptable explanation.
    boulderjohn and Zippsy like this.
  9. flots am

    flots am Solo Diver

    # of Dives: I just don't log dives
    Location: Wherever you go in life, that's where you are.
    I'm with Jim here.

    Lying about asthma is just stupid and really has nothing to do with standards. If you do stupid things, it's possible to die.

    All your points are 100% correct until something bad happens. However the standards that belong to the items you mention are defective by design, and in fact are traps, not help.

    Nobody would leave an unsupervised non-diver underwater, except when there was apparently a greater immediate risk that needed attention.

    Nobody would intentionally ever let anybody get outside of "grabbing range", however unless you've had someone truly panic and bolt, you can't imagine how little distance that is (hint - you pretty much have to be hanging on already, and hanging on hard). Remember you can't go grab the runaway without letting go of the other participant, and controlling a full blown panic takes both arms and generally both legs and full attention.

    The standards are perfect when nothing bad happens. As soon as the brown stuff hits the fan, they turn into a perfect trap.

    Conditions have nothing to do with it. Whether it's murky water or 100' of viz by a tropical beach, one professional simply can not attend to a real emergency with one diver and still maintain control of the other. It's just not possible.

  10. Omisson

    Omisson Public Safety Diver

    # of Dives: 1,000 - 2,499
    Location: Whitestone, New York, United States
    They become impossible when the instructor exercises the bad judgment to place himself and his students in an environment he can't hope to correct in case of an emergency... Lacking that good judgment is also a violation of your obligations... And again not PADIs fault.

    But again... The PADI bash parade doesn't seem to care about the facts...
    Zippsy likes this.

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