Wes Skiles' Widow Looking For 25 Million from Lamartek

[Divin' Ivan]

We actually have a judicial system that while imperfect works most of the time. If Me. Skiles prevails it will be because qualified experts convince an impartial jury that the negligence of the manufacturer more likely than not caused her husband's death. The defense has an equal opportunity to demonstrate otherwise. Product liability lawsuits, while surely raising the cost of a product continues to be the most effective way to keep manufacturers accountable for faulty products that expose consumers to unnecessary risks. Product liability lawsuits are what keep you safe whether it's from the exploding gas tank in your pinto, the thalidomide in your medication or your rebreather sensors that weren't made correctly. The uninformed love to scream about tort reform until the day their loved one is lying dead because someone wasn't as careful building something as they should have been. Yes, I'm a lawyer but I'm also a diver that understands you cannot eliminate all risk in this sport. I've been on both sides of these, both seeking and defending against claims of compensation including cases in which people died because of poorly designed products. We have the best system in the world when it comes to seeking the truth so let the lawyers, judge and jury do their thing. So please, do not vilify Ms Skiles and indeed allow justice to work it's course.

 

[Rhone Man]

Reading the report (as a lawyer) the thing that jumps out is lack of causation. A company failing to test its equipment - even if proved - only becomes relevant if the testing would have detected a failure that caused the accident. There is not even an allegation of causation here.

 

[matt_w]

Just curious if one of you lawyers have an option on the phrase "was being used as intended at the time" in reference to the rebreather. Since I doubt Diverite intends for their unit to be used without training and without bailout, it seems like this is fairly easy to disprove in this case. Is that a key factor for a manufacturers liability?

 

[Divin' Ivan]

Just curious if one of you lawyers have an option on the phrase "was being used as intended at the time" in reference to the rebreather. Since I doubt Diverite intends for their unit to be used without training and without bailout, it seems like this is fairly easy to disprove in this case. Is that a key factor for a manufacturers liability?

That allegation is made to satisfy the element in a product liability case that the user has engaged in a foreseeable use of the product and not have misused it in a manner not reasonably contemplated by the manufacturer. In other words that Lamartek should have reasonably foreseen that Mr.Skiles would use the rebreather as he did.

 

[StefinSB]

We actually have a judicial system that while imperfect works most of the time. If Me. Skiles prevails it will be because qualified experts convince an impartial jury that the negligence of the manufacturer more likely than not caused her husband's death. The defense has an equal opportunity to demonstrate otherwise. Product liability lawsuits, while surely raising the cost of a product continues to be the most effective way to keep manufacturers accountable for faulty products that expose consumers to unnecessary risks. Product liability lawsuits are what keep you safe whether it's from the exploding gas tank in your pinto, the thalidomide in your medication or your rebreather sensors that weren't made correctly. The uninformed love to scream about tort reform until the day their loved one is lying dead because someone wasn't as careful building something as they should have been. Yes, I'm a lawyer but I'm also a diver that understands you cannot eliminate all risk in this sport. I've been on both sides of these, both seeking and defending against claims of compensation including cases in which people died because of poorly designed products. We have the best system in the world when it comes to seeking the truth so let the lawyers, judge and jury do their thing. So please, do not vilify Ms Skiles and indeed allow justice to work it's course.

I feel a lot saver already.

 

[JohnN]

We actually have a judicial system that while imperfect works most of the time. If Me. Skiles prevails it will be because qualified experts convince an impartial jury that the negligence of the manufacturer more likely than not caused her husband's death. The defense has an equal opportunity to demonstrate otherwise. Product liability lawsuits, while surely raising the cost of a product continues to be the most effective way to keep manufacturers accountable for faulty products that expose consumers to unnecessary risks. Product liability lawsuits are what keep you safe whether it's from the exploding gas tank in your pinto, the thalidomide in your medication or your rebreather sensors that weren't made correctly. The uninformed love to scream about tort reform until the day their loved one is lying dead because someone wasn't as careful building something as they should have been. Yes, I'm a lawyer but I'm also a diver that understands you cannot eliminate all risk in this sport. I've been on both sides of these, both seeking and defending against claims of compensation including cases in which people died because of poorly designed products. We have the best system in the world when it comes to seeking the truth so let the lawyers, judge and jury do their thing. So please, do not vilify Ms Skiles and indeed allow justice to work it's course.

Well said, but I remember from business school and product liability about a case where two (mouth breather) men used a gasoline lawnmower to trim a hedge, holding it by the wheels.

Needless to say, injury incurred. IIRC the case revolved around the lack of "reasonable" warning that came with the mower. I don't believe this was an apocryphal story. . . comments?

 

[Dr Simon Mitchell]

In other words that Lamartek should have reasonably foreseen that Mr.Skiles would use the rebreather as he did.

Hello,

If the court found for the plaintiff on that basis you can kiss the rebreather industry goodbye. Specifically, if it is OK to dive a rebreather with no training, alone, with no bailout (and there are other things that have not been raised by others on this thread) and STILL blame the rebreather manufacturer when something goes wrong, then selling rebreathers will simply be untenable.

Simon M

 

[Bennno]

In other words that Lamartek should have reasonably foreseen that Mr.Skiles would use the rebreather as he did.

They should have foreseen that a diver, that has not been trained on the unit, will use it?

 

[scagrotto]

We have the best system in the world when it comes to seeking the truth so let the lawyers, judge and jury do their thing. So please, do not vilify Ms Skiles and indeed allow justice to work it's course.

We don't need judges and juries to figure out the truth when we already know what it is. From what I've read about the incident it seems fairly certain that the truth is already known, and the problem was with Skiles, not the equipment.

Since I doubt Diverite intends for their unit to be used without training and without bailout

The nature of our civil justice system is such that what DiveRite intended doesn't necessarily matter unless the equipment was covered with warning stickers in various neon colors. Juries can be very good at expecting a lot of responsibility from defendants but not much personal responsibility from the plaintiff. In Skiles' case it may not be as important, since whether he was trained on that particular unit or not it can probably be demonstrated that he should have known that no matter how familiar he was with other gear he still needed training specific to that unit. As for bailout, the manufacturer should be off the hook if a malfunction is accompanied by a warning such that the user would know they should switch to their bailout. OTOH, not having bailout doesn't let the manufacturer off the hook if the malfunction doesn't result in a warning that indicates a need to switch to the bailout. That's a bit like blaming a victim for not wearing a seatbelt when their Pinto explodes.

 

[Divin' Ivan]

It really is all about causation and comparative fault. If a jury determines Wes Smiles was more at fault than the rebreathers design defects in causing his death, his widow will not win. I believe Florida requires that the plaintiff be no more than 49 percent at fault to recover. Let the process work as it is supposed to. In the meantime the diving public is getting a good look at how very good divers end up dead using rebreathers. This cave diver will be sticking with OC for the time being.