uwatec lawsuit

[leadweight]

Braunbehrens once bubbled...


This is exactly what happened to my SUUNTO, and I did get bent (although not severely so). However, all products will eventually fail. Are you saying that if a product fails, the manufacturer is responsible? I have heard of lots and lots of stories where the computer malfunctioned.

If they can get sued every time, I think they'll stop making dive computers before long. It's almost impossible to make a dive computer that is not subject to failure. First, it's a COMPUTER. That measn that the software could run into a bug. Second, we are talking about electronics used in salt water under pressure. It's easy to imagine the consequences.

I am not a lawyer, but it seems to me that the manufacturer is probably only liable if they were negligent. I.e., they knew there was a problem with the unit, yet they didn't recall it.

Any lawyers here who want to set me straight?

See if you can find a products liability lawyer in your area. Personal injury lawyers work on contingency. They only get paid if you win. If he/she takes the case, it is a good indication that there some issues in your favor. IMO, the argument is that a depth sensor should be designed so that if it fails it would fail in such a way that the failure is obvious. Reading 50 feet at 80 feet can kill you. Reading 60 feet at the surface tells you to s-can the thing.

This is not intended to be legal advice. Go see a lawyer that is qualified in this area. Like I said before, it has been along time since I have looked at this stuff.

By the way, I don't think the manufacturer has to know about the defect. Once they know and don't do anything about it that is additional wrongdoing which would bring punative damages into play. Products liability is not based on negligence. It is strict liability, with some limitations and exceptions.

 

[drbill]

When I first got into computers in 1967, they promised to make my life easier. By the mid 1980's I was able to do things I never would have tried without a computer so my workload increased. Now the range of things I can do with modern computers is so great that I work 110% of the time.

Seriously though I used a non-defect (I hope) Alladin Pro Nitrox. Given the diving I do it does seem to indicate shorter time to fly intervals than I might expect. To be safe I always use the 24-hour rule as a minimum and if my Uwatek tells me more, I wait two days if I can.

As for errors on depth, I dive with a wrist computer and a depth gauge on my console. So far they are the same within a foot or two. Redundancy but it doesn't bother me.

Dr. Bill

 

[chrpai]

This is where my Suunto ( and probably other computers ) seem worthless.

Does your computer have a plan/simulate mode that will tell you what that time to fly will be? Either way it seems kinda pointless to have a computer tell you how long until you can fly anyways. Who buys airplane tickets knowing in advance what all of your exact profiles are going to be? Seems like a little common sense is in order and do the 12 - 24+ thing.

 

[Braunbehrens]

leadweight once bubbled...


See if you can find a products liability lawyer in your area. Personal injury lawyers work on contingency. They only get paid if you win. If he/she takes the case, it is a good indication that there some issues in your favor. IMO, the argument is that a depth sensor should be designed so that if it fails it would fail in such a way that the failure is obvious. Reading 50 feet at 80 feet can kill you. Reading 60 feet at the surface tells you to s-can the thing.

The problem is one of ethics. I'm familiar with personal injury lawyers, and have used one in the past. However, I wonder if it's such a good idea to sue dive equipment manufacturers. This country is full of lawsuits, and most of the effects on society are negative.

If the maker produced the product in good faith, and it happened to malfunction, I'm not sure I can ethically hold them responsible. This is something I'm still trying to get my mind around.

On the other hand, I'm pretty psd that they just fixed it instead of giving me a new one, and then didn't even fix it right.

 

[Spray25]

Braunbehrens once bubbled...


The problem is one of ethics. I'm familiar with personal injury lawyers, and have used one in the past. However, I wonder if it's such a good idea to sue dive equipment manufacturers. This country is full of lawsuits, and most of the effects on society are negative.

If the maker produced the product in good faith, and it happened to malfunction, I'm not sure I can ethically hold them responsible. This is something I'm still trying to get my mind around.

On the other hand, I'm pretty psd that they just fixed it instead of giving me a new one, and then didn't even fix it right.

The start of this thread is very clear that one of the accusations against Uwatec is covering up the error. This does not qualify as "good faith" in my book.

Many companies fall victim to greed, unfortunately that can often cost an unsuspecting consumer dearly.

Most, if not all, companies that make dive computers champion there use in place of tables. In doing so they are asking people to stake their lives on the computer and face the liability associated with a defective design.

It would be one thing if Uwatec would have stepped forward and taken care of the problem from the start, however, they are being accused of hiding the truth. Talk about a bad move.

 

[wrongkey]

Braunbehrens once bubbled...


The problem is one of ethics. I'm familiar with personal injury lawyers, and have used one in the past. However, I wonder if it's such a good idea to sue dive equipment manufacturers. This country is full of lawsuits, and most of the effects on society are negative.

If the maker produced the product in good faith, and it happened to malfunction, I'm not sure I can ethically hold them responsible. This is something I'm still trying to get my mind around.

On the other hand, I'm pretty psd that they just fixed it instead of giving me a new one, and then didn't even fix it right.

From the description of your injuries, you'd probably have a hard time getting anyone to take your case on a contingency. You got whacked, but not bad, and you're fine now. Is that a fair summary? A product liability lawsuit is ordinarily very expensive to put together. It sounds like you're not hurt enough to make it worth anybody's bother. Not by a really, really long shot.

But what about a guy who gets wheeled in, and his wife has to tell the lawyer what happened? Do you really think it's a bad thing to hold the manufacturer responsible? If the reports are true, how in the world is this defective product going to get yanked without the company being sued? Not gonna happen. If the product is defective and caused the injury, what's the defense? Is it: "The diver screwed up; he trusted us?"

I think Leadweight is spot on with his comments about the company's responsibility. Just my opinion.

 

[leadweight]

wrongkey once bubbled...


From the description of your injuries, you'd probably have a hard time getting anyone to take your case on a contingency. You got whacked, but not bad, and you're fine now. Is that a fair summary? A product liability lawsuit is ordinarily very expensive to put together. It sounds like you're not hurt enough to make it worth anybody's bother. Not by a really, really long shot.

But what about a guy who gets wheeled in, and his wife has to tell the lawyer what happened? Do you really think it's a bad thing to hold the manufacturer responsible? If the reports are true, how in the world is this defective product going to get yanked without the company being sued? Not gonna happen. If the product is defective and caused the injury, what's the defense? Is it: "The diver screwed up; he trusted us?"

I think Leadweight is spot on with his comments about the company's responsibility. Just my opinion.

It might be a hard case to prove, unless the computer had been preserved and the condition could be replicated at will. The reason we hear about so many products liability cases where there have been repetitive failures is because the repetitive nature makes proof easier, the costs can be spread across many cases, and there are so many of them to start with. However, there is no requirement that the failure take place many times.

Frankly, if the magnitude of defect that was in issue with the Aladin was commonplace across the inductry, all of the dive computer manufacturers would be in lawsuits now. They are trying to insulate themselves with warnings in their instruction manuals, but that will not help with a product that is out and out defective.

It is possible that dive computers would disappear in such circumstances. That happened with light aircraft for a while.

 

[John C. Ratliff]

In one earlier post, the thought of "contributive negligence" was brought up. Here's a quote from my Product Safety book:

It was previously held that if a plantiff's negligence in any way, even to the slightest degree, contributed to his injury, he would not be compensated. Many felt this to be an injustice. In Barth v B.F. Goodrich Tire Co. the precedent was established that contributory negligence of the plaintiff or others is no defense in a strict liability action. The plaintiff could recover even if his negligence had in part (generally less than 50%) contributed to his injury (comparative damages). The degree to which such negligence contributed is used to prorate the liabilities. Thus, if the liabilities were assessed at $15,000 and the plaintiff's negligence were found to be 10% of the cause of the accident, he/she would recover $15,000 - 0.10 x 15,000, or $13,500. The significance of this ruling is, of course, that where defendants formerly paid nothing if the plaintiff had been negligent, now they will have to pay. This will increase the number of awards and consequently the costs of insurance.

Hammer, Willie, Product Safety Management and Engineering, Second Edition, American Society of Safety Engineers, 1993, pg 13

I think Uwatec has some problems here.

SeaRat

 

[wrongkey]

leadweight once bubbled...



It might be a hard case to prove, unless the computer had been preserved and the condition could be replicated at will. The reason we hear about so many products liability cases where there have been repetitive failures is because the repetitive nature makes proof easier, the costs can be spread across many cases, and there are so many of them to start with. However, there is no requirement that the failure take place many times.

Frankly, if the magnitude of defect that was in issue with the Aladin was commonplace across the inductry, all of the dive computer manufacturers would be in lawsuits now. They are trying to insulate themselves with warnings in their instruction manuals, but that will not help with a product that is out and out defective.

It is possible that dive computers would disappear in such circumstances. That happened with light aircraft for a while.

Correct. The one certainty is that an awful lot of money would be spilled in the course of attempting to prove the case. There had better be the prospect of a very significant recovery at the end of the day to make that risk worthwhile.

 

[AzAtty]

Since someone raised the issue...

1. Contributory negligence

Contributory negligence is a doctrine that allowed a defendant to escape liability if the plaintiff was even slightly at fault. For instance, if a person was jaywalking and was hit by a speeding motorist, the jaywalker was absolutely barred from recovering anything from the speeding motorist. Application of that doctrine reached its zenith in the late 19th century.

The more modern approach has been to adopt "comparative negligence" rules. Application of "comparative negligence" apportions damages between the defendant and plaintiff according to their relative degrees of fault. There is now a Uniform Comparative Fault Act that deals with the issue of apportioning damages and the degree of recovery. However, whether it has been adopted is a question to be resolved on a state-by-state basis. The way it works is thus: If A is 10% liable for his injuries, and B is 90% liable for A's injuries, A can recover from B a net 90% of A's damages. It's a relatively simple, commonsense apportionment framework, and it's much more equitable than straight contributory negligence.

2. Product liability

This is a fairly complicated area to adequately address in a brief post.

In some product liability cases, the issue is a manufacturing defect, i.e., there was some flaw in the manufacturing process that created an aberration in the resulting products. For instance, say that a first stage regulator was machined out of lead instead of marine-grade brass.

In other cases, the issue is a design defect, i.e. there is something inherently wrong with the design of a particular product. An incorrect algorithm, such as in this case, could be a design defect. A specification that calls for Rockwell 440D steel (a very hard, very brittle steel alloy) to be used in an application where softer, more resilient steel is appropriate would be another instance of a design defect.

In yet other cases, the issue is the presence (or absence) of adequate warnings that make the product unreasonably dangerous. This category can be further dissected into those instances where a plaintiff uses the product in a manner for which it was not intended and is injured. These are the typical "idiot" cases where someone has injured themselves by using a product in some manner and they sue for lack of a warning that said "WARNING: DO NOT TIE THIS ROPE INTO A NOOSE AND PLACE IT AROUND YOUR NECK!" or some such language. Other cases are those where the plaintiff used the product for its intended purpose and has sustained injuries because the plaintiff was not warned of a particular danger that could arise from the use of the product.

Theories of negligence and strict liability weave through product liability. There are various defenses available in products liability cases, including comparative fault, misuse that is not reasonably foreseeable, "state of the art", and assumption of the risk.

A negligence theory might apply in a design defect case if the designer did not adequately investigate the materials available to build the product and consequently chose an inferior material. Another possibility is a software designer commits an error in coding a decompression algorithm that causes a Nitrox model to assume that a diver on the surface breaths Nitrox instead of air, which leads to shorter surface intervals or decreased "no fly" times.

A strict liability theory may apply to those activities or products that are inherently dangerous or cannot be made any safer through the exercise of reasonable care. For instance, construction companies engaged in blasting operations will be held strictly liable for damages caused by their domolition activities because using explosives is an inherently dangerous activity. Likewise, the dynamite itself cannot be made any safer (and still serve its intended function), and a manufacturer could be held strictly liable for damages caused by that product. If a case falls into the strict product liability area, the only defense available to the manufacturer is assumption of the risk. That term should be familiar because you see it on every scuba diving waiver worth the paper it's written on.

There are defenses available in nearly all cases, but application of those defenses requires substantial factual and legal analysis. This is the province of the "what ifs," or, as my Contracts professor used to call them, "the crazyass questions you get when you're home over the holidays."

DISCLAIMER: There is an entire specialty of the law devoted to product liability, and I'm not a specialist in that area. The foregoing commentary is based upon my recollection of my Torts class and a quick look at Franklin & Rabin's Cases and Materials on Tort Law and Alternatives that I couldn't sell back after my first year of law school. Go talk to a specialist or have a look at Prosser on Torts if you want to learn more about the area. Use, reliance upon, quotation of, or any other application of this commentary may result in adverse consequences. In layman's terms, that means your butt may be in a sling with a noose around your neck.