Wes Skiles' Widow Looking For 25 Million from Lamartek

[JohnnyC]

I am just writing this to show the level of concern that goes into the creation of product guides, and especially the kind of foresight needed when they balance the need to give us good and proper directions for the use of the product with the fear that something they have written might be twisted to indicate they knew and were trying to hide some kind of defect.

This is why my favorite user manual is the Shearwater manual. Besides being easy to follow, accurate, and well-written, it makes an excellent point of the fact that this is still risky behavior, that there are no guarantees, and that no matter what you are responsible for yourself.

 

[diver42]

I don't know about you, but I personally consider whiplash injuries - which are real medical events - a bit more deserving of economic compensation than does failing to understand that hot coffee causes burns if you spill it in your lap, not understanding that a container of glue marked "flammable" and "keep away from heat" can actually blow up if it's too close to a heat source, or failing to release your seatbelt when you drive with a BAC of more than twice the US legal limit for driving. But that may just be my weird ideas, of course.

The question was not whether one is worse than the other. It was whether "There is no other developed country with an entire class of attorneys that are ambulance chasers. The number of frivolous lawsuits is unmatched." And I don't know what one case about scalding hot coffee (or the three pages of discussion) has to do with it. The fact is that the amount of "frivolous" lawsuits in the U.S. apparently isn't unmatched, it's matched. And that's just an article I happened to find in five seconds of looking.

Surely the questions about whether Mr. Skiles had a certification card on that particular rebreather is relevant. But is it conclusive? Couldn't he have been doing everything right, but there was a malfunction that no person could survive? Look at it this way: Imagine two of us go to Eagle's Nest. You are properly trained and certified (full cave, trimix, etc.), with plenty of experience in deep caves. I am not (though you don't know this). We get into the cave. At which point you cut my hoses, take my mask, entangle me in the line, and hit me on the head. Was the problem my lack of certification? Or imagine instead that in advance, after I've analyzed them, you switch my tanks for a set with a very high oxygen content, and I tox just after reaching the beginning of the line. Was the problem my lack of certification? Surely that was a potential problem. But was it the actual problem? No. (For the record, I'm qualified to dive Eagle's Nest and have done so several times, though only on OC.)

My point is that what may seem like an obvious problem may not have been the fatal problem, or even related, or even an issue. And what may seem obvious now, to those of us who have only heard some of the facts (like me) repeated third hand, may not have seemed obvious when the suit was brought. Don't forget, suits are filed before discovery begins, often when a widow or other family member doesn't know anything about what happened, anything about the equipment, and so on. It's easy to say that the case was BS, with the benefit of hindsight. But that's essentially the difference between wrong and frivolous.

Not all bad ideas are dumb ideas. And not all losing cases are frivolous. All of the bad facts might have been true—drugs, lack of certification, etc.—and the rebreather could still have been dangerously faulty as a result of a design defect. It sounds like that wasn't true. But isn't that only obvious now, with the benefit of hindsight—and all the investigation that was actually done as part of the case?

I don't mean to malign any of the people involved. (Though I do wonder about how they treated the evidence, if the third-hand facts I read were accurate.) I just think it makes sense to step back and look objectively at what was known at the start.

Anyway, sorry for the extra-long post. I'm not an expert in rebreathers or these injury law suits or anything like that. It just seems unfair to judge a decision made several years ago against what we know now.

 

[Patoux01]

But isn't that only obvious now, with the benefit of hindsight—and all the investigation that was actually done as part of the case?

I personally wasn't diving when the guy died. The first thing I read about it was "he didn't have training", I didn't have to look much further than that to know this case didn't even need considering. It's easy to check and sufficient to tell if the guy knows what he's doing (from the manufacturer side, because there's some good divers with no certs out there).
So if that is "all the investigation that was done", sure, hindsight 20/20.
If you think that this kind of crap ( Do You Know What Your Oxygen Cells Do When Water Blocked? ) is proper investigation required for this case, then no, i'm very sorry. That's like asking "do you know what your computer does when it's filled with water?", I don't need a so-called expert for this.


What if the design was actually dangerous, but it was covered in the training and was a "best choice out of crappy solutions" thing? I don't know, the guys are putting sorb underwater and breathing through it, seems dangerous enough to me to say there's a defect in the design.

 

[drrich2]

"Don't forget, suits are filed before discovery begins, often when a widow or other family member doesn't know anything about what happened, anything about the equipment, and so on."

And that is bad in its own right. Imagine suing someone when you don't even know much about what happened.

Richard.

 

[Basking Ridge Diver]

Don't let the facts get in the way of a good lawsuit. It's the new lottery system...

 

[boulderjohn]

"Don't forget, suits are filed before discovery begins, often when a widow or other family member doesn't know anything about what happened, anything about the equipment, and so on."

And that is bad in its own right. Imagine suing someone when you don't even know much about what happened.

Richard.

As someone who has been through this, I well know that there is a part of the process that in itself is a deterrent to such lawsuits. I recently interviewed several attorneys before pursuing a case I ultimately won. In each interview, the attorneys asked a lot of questions about the case, because they wanted to be able to gauge their chances of success. If they don't win the case, there is no payoff. They do get some money, depending upon state law, because despite what you hear on commercials. The client will have to pay their expenses in case they lose. That is nothing like the payout if they win, though, and they will not really be adequately compensated for their time. Consequently, even if there is no penalty imposed for a losing lawsuit, pursuing the case can be a real money loser for both the attorneys and the client.

I doubt many attorneys will take a case without knowing enough about it to believe they have a good shot at victory.

 

[Rhone Man]

Every country suffers from frivolous lawsuits, but there are definitely a number of reasons why the US is particularly at risk from them:

• Juries set the amount of damages in civil trials
• Ready availability of large punitive damages awards
• Lawyers can take a high percentage of an award as contingency fees - sometimes as much as 50% (plus expenses)
• Losing litigants are not normally at any risk of having to pay the winning litigants legal costs, even on a frivolous case
• Wide access to class action suits which help to aggregate claims otherwise too small to sue on

Taken together, these things do all help create a culture encourage lawyers to troll for cases, and "have a go" to see if they can score big on a case. I am not Yank-bashing, but just pointing out as a lawyer with a very international background (I have practised law in five different countries) how the US system stacks up in relative terms.

 

[Wookie]

Who would have thunk of sticky water? Why, just the other day I took the boat out of gear. I expected it to glide for a few hundred miles until I stopped it. I guess sticky water is to blame.

I happen to be in Florida. May I sue someone for this sticky water also?

 

[Johnoly]

..... Don't forget, suits are filed before discovery begins, often when a widow or other family member doesn't know anything about what happened,.....

Not in this case,

The medical examiner's very very detailed report was issued just weeks after the accident. It specifically listed the drugs, the O2 cells, no BoB, and the certs. The family had access to this information before the suit, yet proceeded.

 

[diver42]

The medical examiner's very very detailed report was issued just weeks after the accident. It specifically listed the drugs, the O2 cells, no BoB, and the certs. The family had access to this information before the suit, yet proceeded.

As I understand it, all of those things could have contributed or not, depending on what ultimately caused the accident. So you have to wonder why the family would sue after the medical examiner said that the rebreather didn't have a dangerous design flaw. That makes no sense. Once the family knew that the rebreather itself was not to blame, I don't see why they would sue. Though I have to ask, how did the medical examiner know this?

And weren't Mrs. Skiles and her children and her lawyers knowledgable enough to examine the rebreather on their own to figure out that it didn't have a dangerous design flaw? You would think any competent family member or attorney for a diver would be able to do this. They should have assumed that the company wasn't hiding anything, because companies never do. That much we have learned from history.

Frankly, it's just weird that the family would even want to know whether the manufacturer itself knew of any dangerous flaws with the unit. I understand that they could only learn this information by suing (and examining the company's internal communications and asking the company questions about its design and testing); but what a waste. After all, it turned out that nothing was wrong. So why did they want to investigate in the first place?

I think the key here is that the family lost the suit. That shows it was frivolous from the start.