It's worth noting when discussing statements from a defendants pre-trial deposition, or even under direct examination by the plaintiff's attorney, in U.S. legal system the defendant is under no obligation to defend themselves. From my personal experience, the defendant will have received instructions from their attorney in no uncertain terms to NOT attempt to defend themselves in such testimony and to limit their answers to precisely the questioned asked. A classic example is the question "Do you know what time it is?" where the proper answer is "Yes" or "No". An improper answer would be "Yes, it is 9:05 AM." If the defendant's attorney deems it useful to the defense, then during the either cross-examination of the defendant or often only when the defendant is called to testify during the defense portion of the trial the question asked will be "What time is it now?".
Thus great care should be applied to interpretation of such testimony as has been quoted in this and other discussion forums. Some of the questions are very narrowly worded and quite tricky, their answers very limited. For example, "What testing did you do?" would be expected to produce a very different answer than "Please tell us all testing that has been performed?" Even that question could receive an objection as being overly broad and the answer might very well be disregarded if it contained hearsay. For example, if Mr. Hires was simply told that lab testing had been performed, but did not personally perform the tests or observe the tests himself, it's unlikely his answer would be allowed. Instead, to introduce facts regarding lab testing a witness who had direct first hand knowledge of the testing, such as the technician who had performed the testing would be called to testify. The interpretation that the O2ptima did not receive third party testing simply can't be determined from the pre-trial depositions or direct questioning. For example, if Mr. Hires was asked did he have test results "in his office". The answer might have been "No.", but that did not mean O2ptima was untested and it would have been irresponsible to volunteer if those results existed or where there were located until Lamartek presented their defense. The plaintiff, hearing an answer they liked and possibly even expected, would have been unlikely to probe further.
As has been explained to me by several attorneys, considerable care must be exercised in interpretation of information presented at trials. The nature of a U.S. civil trial is that the burden of proof was on the plaintiff to demonstrate there was a 'legal cause' of death. The jury received a very detailed description of what that means, and it's not what you might expect; the definition is quite narrow. A classic is example is that of an early model Ford Pinto automobile, which had a proven defect that the gas tank would burst in to flames and explode with loss of life if hit hard enough in the rear. However, if the driver caused the car to hit a wall head-on while not wearing a seat belt and was subsequently ejected through the windshield and dies, the fact that the car had a known defect in the gas tank can not be considered a legal cause of death in that instance. This is why, I'm told, in the U.S. system the initial complaint (i.e. lawsuit) will usually be extremely broad, making every conceivable accusation against as many individuals and companies as can be uncovered. I personally would have expected it to have been much more broad than it was, naming NatGeo and the university who sponsored the project, the boat captain, any rebreather instructors and their training agency, anyone on the boat or diving in the water, the individual who owned the rebreather, anyone who previously owned the rebreather, and an endless list of manufacturers of various components in the rebreather including the manufacturers of the scrubber, breathing loop, electronics, cylinders, along with all consumables and their suppliers such as whoever sold the gas fills. Ultimately of the various but relatively few parties that were named, several were dropped, and one was settled by the insurance company for a 'nuisance' amount, leaving only Dive Rite to defend themselves and standing the entire $25M risk.
Back to testing... I can say that there was, in my opinion, sufficient unmanned testing of the various O2ptima components, and indeed the entire functional system. However, Dive Rite and Mr. Hires did not do this testing and apparently did not own the rights to publish the test results. It was performed by several third parties, most notably Micropore who actually has an unmanned in-water pressurized rebreather testing facility built to duplicate the one at NEDU. I know because I actually was tasked by Micropore to write and publish on the internet an article documenting and interpreting some of the test results that would be of interest to consumers. I recall they were quite protective of what they considered their proprietary information, and competitive advantage.
But unmanned testing will never, in my opinion, be enough to bring a new rebreather to market. Mr. Hires personally stepped up to be the "crash test dummy" and take the unit on manned dives, then several pre-production prototypes (I recall being told that it was ten) were distributed around to a variety of highly experienced rebreather instructors and divers to further dive the unit. Feed back from those testers was folded back into the final production design. That never had an opportunity to be introduced at trial.
An important aspect of the Skiles v Lamartek is that in light of the plaintiff's case presented at trial, the defense attorney decided at the last minute to present a narrowly defined case for the defense that was primarily the burden of proof was not met. The defense attorney did not call Mr. Hires to the stand to testify in his defense, and never called ANY of the various diving experts they had brought to town. The defense introduced practically no evidence, and called no rebuttal witnesses. High risk, but ultimately a successful defense. This means that at least as far as the original (widely published) complaint and subsequent trial is concerned, no one has heard the 'other side of the story' and unfortunately never will.
