I testified in this trial as a non-designated expert (paid - but not "working" for one side or the other). Interestingly, I was subpoenaed by the plaintiffs based primarily on the investigation and equipment testing I did for the LA County Coroner.
The plaintiffs position (in my view) was essentially that "Horizon should have saved him" and, in deposition, they generally were contending that all rescue attempts are successful and if only the rescue had been launched earlier, the guy wouldn't have died. I countered that that simply wasn't true, that there have to be reasons to launch a rescue attempt. They essentially said, "Well, Horizon should have known he was in trouble," and I replied, "We're not psychics."
There were also a number of other factors to consider:
1. Diver had around 1000psi in his tank. He was in 14-18 feet of water. Even if he couldn't get off the bottom, had he kept his reg in and just waited for help, he'd have likely been alive when the Horizon DM arrived on-site.
2. Diver never ditched his weights because he had put them into zipped pockets rather than using the ditchable BC weight pockets. So he never ditched weight. Likewise, he never ditched the entire BC and tried to free ascend, which would have had the same effect as ditching the weights alone.
3. Diver had pulled the inflator mechanism out of the corrugated hose. Likely this happened after he and the buddy surfaced, argued a bit about lobsters (the buddy described him as being very upset), and then descended. I believe that when he pulled the inflator out and pushed the button, he got no inflation in the BC, got bubbles in his face, panicked, spit the reg out, pushed the mask to his forehead, bolted for the surface, passed out on the way up, and then settled back down to the bottom. (His computer printout confirms this as a possible scenario.) And had he simply re-insterted the inflator mechansim back into the hose, which requires no tools or special skills, all likely would have been well and the BC would have worked properly.
4. Much was made of "splashing" that the DM had said in depo - but not in his original on-scene comments - that he observed. But the splashing was never definitely ideitified as being from divers. It was not continuous. It could have been the two divers descending head-first and their fins splashed (a little too bouyant) as they went down. It could have been a sea lion (they were near a large rookery). It could have been a pelican diving for fish. "Splashing" does not necessarily translate into "diver in distress."
5. The DM went in a skiff to the area where he thought the splashing occured. The visibility was fairly good and he could see bottom features. He couldn't see anyone on the bottom and couldn't see anyone on the surface in distress, nor could he see any bubbles nearby. What exactly was he supposed to respond to? That there may have divers there previously and they may or may not have had some trouble that may or may not still be happening? There was simply nothing to respond to.
6. As for the percevied delay in responding (mentioned previously), don't forget this was a lobster trip and there was a large kelp bed between where the buddy surfaced and where they two together had previously surfaced. The buddy notified the DM (who was nearby in a skiff) when the buddy surfaced. They (reasonably IMHO) thought the diver may have continued the dive to look for lobsters. They looked for bubbles but could see none in the area. That's when they went back to the boat and did a roll call.
7. There was also some confusion in the roll call because the missing diver had signed first/last name on the roster but he actually went by his middle name.
8. Once they determined he was in fact unaccounted for, the DM got suited up and went back in the skiff to the area where the splashing was seen. He found the diver on the bottom in about two-and-a-half minutes. The plaintiffs charactarized that as "immediately" but while it's quick, you can cover a lot of ground searching in that amount of time, so it's not like they pulled up right on top of where he was laying.
9. The plaintiffs tried to use the "quickness" of the recovery as proof that when the DM was previously/first at the site of the spalshing, had he jumped in then, the diver could have been saved. I said one had nothing to do with the other and that there's no proof (nor way to prove) that they were even in the same spot both times, let alone anywhere near where the victim was actually found.
However I think the most brilliant thing, and what helped carry the day, was Horizon attorney Steve Hewitt's closing argument. He talked about the buddy system and how important it was for diving and that these two had buddied up. One of the tenants of the buddy system is that if you lose your buddy, you search for a minute or so, then surface. Hewitt was able to show that the buddy took close to five minutes to get through the kelp bed before he surfaced. Hewitt argued that had the buddy followed the lost-buddy procedure, either he (the buddy) might have found the deceased diver, or at least he should have surfaced as much as four minutes earlier and alerted Horizon's DM, who was already either on-site or on his way. Had the buddy done that, there's a better chance the diver could have been saved but by not doing that, Horizon simply was acting on the best information they had available.
The other thing that did not come into play here was whether or not the equipment, which was rented from an Arizona dive shop, was defective. In my inspection, I noted that there was a tie-wrap missing from where the inflator attatched to the corrugated hose. There was one there but an indentation where #2 had been. I don't know if it wasn't there when rented or came out when the inflator dislodged. But there was a suspicion that there may have only been one tie-wrap holding the inflator in, and had their been a second one, it wouldn't have dislodged.
The widow sued the dive shop as well but settled with them out-of-court. I'm aware that it was for what I consider to be - if the equipment truly was defective - an appalingly low amount, barely into five figures. It represented good lawyering on ther part of the shop's attorney, but I think a tactical error on the part of the plaintiff's attorneys. And once that horse had left the barn, I think plaintiffs ramped up their attack on Horizon because it was the only way to mitigate their lost opportunity.
Hopefully this gives you some better perspective in all of this. Things are not always as they seem on the surface. (Sort of like my whole "OK sign" comments above.)
One other note: I'm not sure why this press release came out now (through DiveNewsWire). I testified (imn San Diego where the trial was held) on October 19 and the verdict was rendered a week or two later. So this all went down roughly three months ago.
- Ken
