That was a very infomative post 
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uwatec lawsuit
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Spray25
Contributor
Great post AzAtty!
What about the alleged cover up? Is that just a smoking gun to be used in one of the areas you brought up or is it a seperate actionable item by itself?
What about the alleged cover up? Is that just a smoking gun to be used in one of the areas you brought up or is it a seperate actionable item by itself?
Without seeing the evidence, I couldn't formulate an opinion on the conduct. The opinion of a journalist about whether something is a "cover up" doesn't tell me enough. Keep in mind that headlines sell papers, and the words "cover up" and "corporate conspiracy" are red hot sellers.
In general, if the company actively concealed a known defect that had a high probability of causing injury, that sort of conduct would likely open Uwatec to punitive damages. That is just a separate measure of damages, not necessarily a separate legal theory upon which the diver could sue.
If there was an agreement to commit some wrongful conduct, it is possible that the divers could sue on a civil (non-criminal) conspiracy theory. In most states, though, there is no cause of action for a conspiracy. However, one can still sue for the damages caused by an alleged conspiracy, but generally there is a separate legal wrong that actually causes the plaintiff's damages, and that is the theory upon which the plaintiff sues. Unless state law provides for a separate conspiracy cause of action, it just isn't worth the time to pursue it because damages for that claim are entirely dependent upon another theory.
As for smoking guns, evidence of knowledge of the defect is very helpful to the plaintiff. But that doesn't end the issue. There may be defenses such as assumption of the risk or the "state of the art" defense. I don't know a lot about the latter defense, although a classmate of mine wrote a paper on it that I might still have laying around. Essentially, the "state of the art" defense is the argument that the manufacturer made the product the absolute best they could given existing technology and know-how. In effect, the defense posits that even though the defect may have existed, but there was no known way to remedy it or compensate for it.
To the extent that some of the evidence of the "cover up" involves actions taken by Uwatec to fix a defect, under Rule 407 of the Federal Rules of Evidence, evidence of measures taken after an injury that would have prevented the injury if taken previously is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. For instance, if Uwatec issued a recall and fixed the problem, the Court could not consider that evidence in determining liability. However, the Court might consider the evidence for another purpose, such a proof of ownership, the feasibility of precautionary measures or other matters.
In general, if the company actively concealed a known defect that had a high probability of causing injury, that sort of conduct would likely open Uwatec to punitive damages. That is just a separate measure of damages, not necessarily a separate legal theory upon which the diver could sue.
If there was an agreement to commit some wrongful conduct, it is possible that the divers could sue on a civil (non-criminal) conspiracy theory. In most states, though, there is no cause of action for a conspiracy. However, one can still sue for the damages caused by an alleged conspiracy, but generally there is a separate legal wrong that actually causes the plaintiff's damages, and that is the theory upon which the plaintiff sues. Unless state law provides for a separate conspiracy cause of action, it just isn't worth the time to pursue it because damages for that claim are entirely dependent upon another theory.
As for smoking guns, evidence of knowledge of the defect is very helpful to the plaintiff. But that doesn't end the issue. There may be defenses such as assumption of the risk or the "state of the art" defense. I don't know a lot about the latter defense, although a classmate of mine wrote a paper on it that I might still have laying around. Essentially, the "state of the art" defense is the argument that the manufacturer made the product the absolute best they could given existing technology and know-how. In effect, the defense posits that even though the defect may have existed, but there was no known way to remedy it or compensate for it.
To the extent that some of the evidence of the "cover up" involves actions taken by Uwatec to fix a defect, under Rule 407 of the Federal Rules of Evidence, evidence of measures taken after an injury that would have prevented the injury if taken previously is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. For instance, if Uwatec issued a recall and fixed the problem, the Court could not consider that evidence in determining liability. However, the Court might consider the evidence for another purpose, such a proof of ownership, the feasibility of precautionary measures or other matters.
Would the change in the algorithm in future production without notifying current owners of the update constitute a) knowledge that there was a defect in the previous version; and b) concealment?
It seems to me that since the production of the defective units was not very long, and that the company corrected the problem in future versions; there SHOULD have been some sort of notification to the owners of the defective units that a potentially dangerous flaw had been determined and that they should exercise caution. Of course I have no idea if that notification occured or not, but it seems that it didn't if people were still using the computer long after Uwatec had corrected the problem in production.
Rachel
It seems to me that since the production of the defective units was not very long, and that the company corrected the problem in future versions; there SHOULD have been some sort of notification to the owners of the defective units that a potentially dangerous flaw had been determined and that they should exercise caution. Of course I have no idea if that notification occured or not, but it seems that it didn't if people were still using the computer long after Uwatec had corrected the problem in production.
Rachel
Sorry for the delay in responding. I actually do have to work sometimes, though I try to avoid it.
Your question raises several issues. Let's discuss the change in the algorithm first. There are several relevant questions you have to ask, but the most basic are: (1) what was the change; and (2) why did Uwatec make the change. The mere fact of a change in a product does not necessarily mean that there was a "defect" ab initio.
Here, Uwatec apparently changed its computer software so that on the surface, the computer calculated surface interval time and "no fly" time based upon the diver breathing plain old air. That could be a bad fact for Uwatec, and a good fact for the diver, depending upon the next question.
So let's consider the second question--why? Keep in mind that some evidence might not be admissible simply because subsequent remedial measures are generally not admissible under the rules of evidence.
Suppose Uwatec hires Dr. Deco for its expert witness (sorry Doc, gonna make you the bad guy here), and he testifies that after ten minutes on the surface--regardless of whether a diver breathes air or EAN32 on the surface--nitrogen offgasses at an identical rate. Then Dr. Deco testifies that in the vast majority of repetitive dives, a diver spends at least 10 minutes on the surface changing tanks. Thus, in his professional opinion, whether the computer calculated offgassing based upon breathing nitrox or air had no significant affect on the accuracy of the model. Then suppose Uwatec's R&D engineer testifies that the reason Uwatec changed the algorithm was simply because they added other features to the software, and in that process they simply rewrote the software using the same decompression model and one software engineer decided to write the nitrogen tracking subroutine in a different way.
Additionally, Uwatec might argue that at the time it coded the software, the model used for tracking residual nitrogen was the absolute best available, and there was no research at the time indicating that its coding was inaccurate or unsafe. That's effectively the "state of the art" defense, and as I said earlier, I don't know much about that defense.
So, as you can see, a mere change in an algorithm might not have anything to do with a defect in the software. Again, though, the ultimate conclusion depends upon the facts. That said, the fact that a change occurred would get me very excited if I were the plaintiff's lawyer, and I'd be doing some serious discovery work.
The classic case is the purchase of a house. The seller presents the house for sale "as is", and the buyer has an opportunity to hire a home inspector to discover any problems. So long as the seller does not make misrepresentations concerning the condition of the house, the seller won't be held liable for undiscovered conditions. Now, before anyone gets all excited about the hypothetical, each state has laws governing the necessary disclosures in residential real estate transactions that modify the standard caveat emptor ("buyer beware") philosophy I just described.
But that just highlights the real issue in this case: does Uwatec have a duty to disclose a change in its software and the reasons for that change? The general duty of care owed by one person to another is to exercise the degree of care and diligence that a reasonable person would exercise under the circumstances. I know that sounds like a bunch of mumbo jumbo, and it is. The greatest legal fiction ever devised by jurists is the "reasonable person." Such a person makes rational, reasoned decisions based upon all of the facts available under the circumstances, and is unswayed by emotional or other subjective influences. The reasonable person always thinks through all foreseeable permutations and possibilities arising out of a proposed course of conduct. Does this sound like anyone you know? Probably not, because the "reasonable person" does not exist. It's merely an objective standard against which courts measure the duties each of us owe to others.
So in this case, what are the elements of the duty of care owed by Uwatec? That's a difficult question, but a court will agree that Uwatec has a duty not to make a product that is unreasonably dangerous. A court might also agree that if a manufacturer creates a product that later becomes dangerous for a reason that was foreseeable at the time of manufacture, the manufacturer has a duty to inform consumers of that danger.
If Uwatec does have a duty to inform consumers of later-discovered problems, then we arrive at the question of whether Uwatec's non-disclosure was wrongful. If Uwatec failed to disclose the defect at all, and suppressed any knowledge of it from reaching the public, Uwatec breached its duty of disclosure. Furthermore, Uwatec's conduct might be considered reprehensible, extreme, outrageous and beyond the bounds of common decency. That could expose Uwatec to punitive damages.
Of course, if a court determines that Uwatec is strictly liable for any defects in its products, Uwatec is on the hook unless it can prove that the diver knowingly and willingly assumed the risk of injury in connection with using a Uwatec computer.
As you can see, there are a lot of "ifs" in this post. That's the nature of the law. Although we would like to think that there are absolutes, our world is not black or white; it's merely shades of grey, and we try to sort out which shade is darker or lighter than another. Let's not get off on a philosophical tangent, though.
Keep in mind that I'm approaching this as an academic excercise in legal analysis. I could jump right to a conclusion, but that skips the more important parts of what a lawyer actually does.
Your question raises several issues. Let's discuss the change in the algorithm first. There are several relevant questions you have to ask, but the most basic are: (1) what was the change; and (2) why did Uwatec make the change. The mere fact of a change in a product does not necessarily mean that there was a "defect" ab initio.
Here, Uwatec apparently changed its computer software so that on the surface, the computer calculated surface interval time and "no fly" time based upon the diver breathing plain old air. That could be a bad fact for Uwatec, and a good fact for the diver, depending upon the next question.
So let's consider the second question--why? Keep in mind that some evidence might not be admissible simply because subsequent remedial measures are generally not admissible under the rules of evidence.
Suppose Uwatec hires Dr. Deco for its expert witness (sorry Doc, gonna make you the bad guy here), and he testifies that after ten minutes on the surface--regardless of whether a diver breathes air or EAN32 on the surface--nitrogen offgasses at an identical rate. Then Dr. Deco testifies that in the vast majority of repetitive dives, a diver spends at least 10 minutes on the surface changing tanks. Thus, in his professional opinion, whether the computer calculated offgassing based upon breathing nitrox or air had no significant affect on the accuracy of the model. Then suppose Uwatec's R&D engineer testifies that the reason Uwatec changed the algorithm was simply because they added other features to the software, and in that process they simply rewrote the software using the same decompression model and one software engineer decided to write the nitrogen tracking subroutine in a different way.
Additionally, Uwatec might argue that at the time it coded the software, the model used for tracking residual nitrogen was the absolute best available, and there was no research at the time indicating that its coding was inaccurate or unsafe. That's effectively the "state of the art" defense, and as I said earlier, I don't know much about that defense.
So, as you can see, a mere change in an algorithm might not have anything to do with a defect in the software. Again, though, the ultimate conclusion depends upon the facts. That said, the fact that a change occurred would get me very excited if I were the plaintiff's lawyer, and I'd be doing some serious discovery work.
Believe it or not, mere non-disclosure of material facts is not necessarily wrong. The problem arises when one of the parties to a transaction has a duty to speak on a certain point and does not speak or takes steps to prevent the discovery of facts. Additionally, in some cases, a person who has an opportunity to discover the facts in the course of a reasonable investigation and does not take that opportunity will be barred from recovery.
The classic case is the purchase of a house. The seller presents the house for sale "as is", and the buyer has an opportunity to hire a home inspector to discover any problems. So long as the seller does not make misrepresentations concerning the condition of the house, the seller won't be held liable for undiscovered conditions. Now, before anyone gets all excited about the hypothetical, each state has laws governing the necessary disclosures in residential real estate transactions that modify the standard caveat emptor ("buyer beware") philosophy I just described.
But that just highlights the real issue in this case: does Uwatec have a duty to disclose a change in its software and the reasons for that change? The general duty of care owed by one person to another is to exercise the degree of care and diligence that a reasonable person would exercise under the circumstances. I know that sounds like a bunch of mumbo jumbo, and it is. The greatest legal fiction ever devised by jurists is the "reasonable person." Such a person makes rational, reasoned decisions based upon all of the facts available under the circumstances, and is unswayed by emotional or other subjective influences. The reasonable person always thinks through all foreseeable permutations and possibilities arising out of a proposed course of conduct. Does this sound like anyone you know? Probably not, because the "reasonable person" does not exist. It's merely an objective standard against which courts measure the duties each of us owe to others.
So in this case, what are the elements of the duty of care owed by Uwatec? That's a difficult question, but a court will agree that Uwatec has a duty not to make a product that is unreasonably dangerous. A court might also agree that if a manufacturer creates a product that later becomes dangerous for a reason that was foreseeable at the time of manufacture, the manufacturer has a duty to inform consumers of that danger.
If Uwatec does have a duty to inform consumers of later-discovered problems, then we arrive at the question of whether Uwatec's non-disclosure was wrongful. If Uwatec failed to disclose the defect at all, and suppressed any knowledge of it from reaching the public, Uwatec breached its duty of disclosure. Furthermore, Uwatec's conduct might be considered reprehensible, extreme, outrageous and beyond the bounds of common decency. That could expose Uwatec to punitive damages.
Of course, if a court determines that Uwatec is strictly liable for any defects in its products, Uwatec is on the hook unless it can prove that the diver knowingly and willingly assumed the risk of injury in connection with using a Uwatec computer.
As you can see, there are a lot of "ifs" in this post. That's the nature of the law. Although we would like to think that there are absolutes, our world is not black or white; it's merely shades of grey, and we try to sort out which shade is darker or lighter than another. Let's not get off on a philosophical tangent, though.
leadweight
Contributor
Personally, I think the plaintiffs have a really great case against Uwatec. They are in a good position because Uwatec is just about alone in calculating a time to fly. Everyone else uses a countdown. In effect, they are telling the diver it is OK to ignore the industry standard which was 12/24 hours at the time of the accident. IMO, that does away with contributory negligence. As I have mentioned above, Uwatec computers will often read less than 12 hours time to fly and I have yet to see mine ever read over 22 hours. When diving nitrox, time to fly is substantially shorter than with air, according to my Pro Nitrox computer. By the way, I plan for a minimum 22 hour time to fly, no matter what.
I did a quick review of my manual from a Pro Nitrox, which is a similar vintage computer and I did not see any warning which would negate that result. IMO, that does away with assumption of risk.
According to the article, time to fly indicated by the computer was less than half of what a non defective unit would have read. These guys got bent on the flight, which really helps them a lot with causation and proximate cause.
I don't know what exact profiles the divers used, but I am willing to bet they were over the NDL's and not making appropriate deco stops simply as a result of the over crediting of offgassing to the surface intervals.
No amount of money will make these divers well, and if the facts are proven, someone ought to be sent to a locked room with a roomate named Clarence.
I did a quick review of my manual from a Pro Nitrox, which is a similar vintage computer and I did not see any warning which would negate that result. IMO, that does away with assumption of risk.
According to the article, time to fly indicated by the computer was less than half of what a non defective unit would have read. These guys got bent on the flight, which really helps them a lot with causation and proximate cause.
I don't know what exact profiles the divers used, but I am willing to bet they were over the NDL's and not making appropriate deco stops simply as a result of the over crediting of offgassing to the surface intervals.
No amount of money will make these divers well, and if the facts are proven, someone ought to be sent to a locked room with a roomate named Clarence.
DolphinDiver
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My Vytec calculates time to fly. Not sure if other Suunto models do but I'm guessing at least the Vyper does too.
leadweight
Contributor
Are you certain it is not a countdown?
I have a Cochran Commander that shows a time-to-fly countdown.
It is always WAY longer than anyone elses computer on our trips because the Cochran pads the time with an extra 12 hours for safety according to the manual.
EG: my Alladin (air) will show 4 hours and the Cochran will show 16 hours for the same profile.
It is always WAY longer than anyone elses computer on our trips because the Cochran pads the time with an extra 12 hours for safety according to the manual.
EG: my Alladin (air) will show 4 hours and the Cochran will show 16 hours for the same profile.
I use a Suunto computer (or two of them), but on one issue I now see why Dive-Rite bluntly states that they will not market a DC that displays "no-fly" info. This is common sense.
If you have been doing a great deal of repetitive diving, wait 24 hrs. To be really safe, wait 24 hrs after any diving to fly. Wait longer if DAN standards call for it (ie. Deco diving). My Suunto will give a 16-18 hr no-fly time after the last dives of my dive vacation (which are more shallow than when I started the dive vacation). I still go 24 hrs. If I DO get bent, I am responsible, in my opinion, for not second checking my instruments with common sense. No lawyer will get my health back for me.
The S.I. issues are much the same way. If have been diving air and plan an eighty foot dive a half-hour after coming out of the water from a deeper dive, who is actually responsible? We all have an idea that residual nitrogen doesn't leave us quite that quickly. We should all know that waiting less than an hour after 100 ft dive to do another deep dive is waiting for Mr. Murphy to strike us down.
I had a Mosquito that went into free diving mode while lap swimming in the pool and froze there. It locked up and "thought" that I was a dead body at the bottom of the pool after about six minutes. To my knowledge, it read eight feet when it got sent back to the manufacturer.
The dive computer manuals state that the proper use of a DC is dependent on a TRAINED diver. To quote from my Suunto Vyec manual:
"WARNING: ONLY DIVERS TRAINED IN THE PROPER USE OF SCUBA DIVING EQUIPMENT SHOULD USE A DIVE COMPUTER. No dive computer can replace the need for proper dive training. Insufficient or improper training may cause diver to commit serious errors that may lead to serious injury or death."
If you have been doing a great deal of repetitive diving, wait 24 hrs. To be really safe, wait 24 hrs after any diving to fly. Wait longer if DAN standards call for it (ie. Deco diving). My Suunto will give a 16-18 hr no-fly time after the last dives of my dive vacation (which are more shallow than when I started the dive vacation). I still go 24 hrs. If I DO get bent, I am responsible, in my opinion, for not second checking my instruments with common sense. No lawyer will get my health back for me.
The S.I. issues are much the same way. If have been diving air and plan an eighty foot dive a half-hour after coming out of the water from a deeper dive, who is actually responsible? We all have an idea that residual nitrogen doesn't leave us quite that quickly. We should all know that waiting less than an hour after 100 ft dive to do another deep dive is waiting for Mr. Murphy to strike us down.
I had a Mosquito that went into free diving mode while lap swimming in the pool and froze there. It locked up and "thought" that I was a dead body at the bottom of the pool after about six minutes. To my knowledge, it read eight feet when it got sent back to the manufacturer.
The dive computer manuals state that the proper use of a DC is dependent on a TRAINED diver. To quote from my Suunto Vyec manual:
"WARNING: ONLY DIVERS TRAINED IN THE PROPER USE OF SCUBA DIVING EQUIPMENT SHOULD USE A DIVE COMPUTER. No dive computer can replace the need for proper dive training. Insufficient or improper training may cause diver to commit serious errors that may lead to serious injury or death."
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