Parents sue Boy Scouts for 2011 negligence death

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I have been following this accident since it was first posted on SB and it has affected my participation as a PADI Divemaster. I became a divemaster to supervise BSA diving, and earned my Discover Scuba leader authorization for the same purpose. Since earning the ratings I've discovered how naive I was in considering these activities safe in anything other than a one-on-one basis. Additionally the legal (and emotional) liability of conducting these activities with youth as a divemaster, even one-on-one, has kept me from conducting them.

Initially I helped with several Discover Scuba sessions for BSA troops and enjoyed watching the youth learn. I did notice that youth (especially the males) like to test out everything - including the forbidden BC inflator. Later I did ONE session independently with ONE youth who was a model student. However the more I read, dove, and followed the sport the less inclined I was to continue DSDs, or other forms of diving supervision, with youth. This tragic accident was the final straw in my withdrawing from PADI.

PADI's participation (as posted here on SB) has soured me on doing anything under the PADI auspices. Just log me as another withdrawal from PADI.
 
The tragic death of David Tuvell is heart breaking. The individuals named as defendants – particularly Corbett Douglas – undoubtedly face significant legal and personal challenges. The fact that Douglas is a veteran, a school teacher, and apparently volunteered his time in this incident makes him a sympathetic figure – for divers all the more so. Those that know Douglas personally undoubtedly empathize with him.

Many on this board and elsewhere feel that Douglas has been treated unfairly by PADI. You can draw your own conclusions as to why PADI seems to be viewed negatively, particularly as to the events of this case, by many divers with a passing knowledge of this case.

The pleadings give a procedural picture of the case, but do not reflect what has occurred in the confidential mediation sessions – aside from a small snippet revealed in the transcript doc 157 – and of course do not reflect the informal settlement discussions between the various parties’ attorneys. The various insurance companies influence on the case is also unknown. What is certain is that this case – if it goes to trial – has a long way to go. Whatever your thoughts are on the issues involved, if the case goes to trail you will have more opportunities to weight in.

Keep in mind that roughly two percent of all federal civil cases go to trial. Settlement negotiations have occurred, and will continue to occur right up until the point where the jury returns its verdict. More likely than not, this case will result in settlement(s) that are confidential. Many might find it unusual in this case that the big party defendant – PADI – didn’t force plaintiffs to settle out the entire case; rather they left the remaining defendants to their own devices. Best practice would call for the settlement to dispose of the case, wrapped in a veil of confidentiality. Why did they not do so?

Case 1:12-cv-00128-DB, is a complex civil action being heard before an Article III court in Utah.

The case is captioned;

CHRISTOPHER JOSEPH TUVELL, SHERRY LYNN TUVELL, individually and as the heirs of David Christopher Tuvell, and THE ESTATE OF DAVID CHRISTOPHER TUVELL, Plaintiffs, vs. BOY SCOUTS OF AMERICA, PROFESSIONAL ASSOCIATION OF DIVE INSTRUCTORS ("PADI"), BLUE WATER SCUBA, LOWELL HUBER, CORBETT DOUGLAS, GREAT SALT LAKE COUNCIL, INC., BOY SCOUTS OF AMERICA.​

The individual defendants in the original caption are Lowell Huber and Corbett Douglas. The medical personnel that treated Christopher Tuvell join the party in their individual capacities soon after the original complaint was filed, as well as an under-age party.

The case is in early procedural stages. The scheduling order – doc 178 – sets deadlines for the parties, the red letter date being the October 2015 trial date.

Notable is PADI’s settlement with the plaintiffs for a reported $800k (see doc 157), leaving them without a “seat at the table” or being the “empty seat” should the case go to trial.

Below you will find excerpts from the transcript doc 157. The judge sanctioned PADI and their attorneys, leveling a $2k sanction. This was a minor amount, but a big smack at PADI’s attorneys as they were hit with the 2k sanction on an individual basis. So, where does the leave the case?

The Blue Water Defendants asked the judge to restore the procedural posture of the case to the historical time point where PADI settled out. Motions were filed and the judge held a hearing the details of which are in doc 157/Transcript. The judge concurred with the BWD and the case was essentially reset to the point where PADI settled out.

If you want a copy of most of the pleadings to date in the case; PM me and I will email you the docs. Or you can download the docs from PACER at a cost of about $20.

Brian Carney’s email of today is interesting – he certainly puts his personal and his agency’s (TDI/SDI/ERDI) opinions of the case on record. Of course Carney is not the judge and the case is far from settled. At times he is judgmental in his opinions where the court has yet to rule. While his opinion that Douglas’ report to PADI is privileged is boldly stated, the issue of this document’s status has not yet been raised in the case and of course not ruled on by the court.

It would be illuminating to review the PADI/Instructor membership agreement-contract to see what the parties have agreed to. Perhaps a ScubaBoard member will post the agreement? In light of the agreement, would it would be worth speculating if Douglas has a potential action against PADI given his summary ouster and the public thrashings he has endured, given that the facts in the Tuvell case are far from being determined.

If you read the pleadings it is helpful if you have a basic grasp of the federal and Utah rules of civil procedure, how they interact in a federal case, how fault is apportioned, the local court and courtroom rules, and the relevant cases cited in the pleadings. The Mary Carter issue that PADI leaned on is interesting, as is the judge’s consideration of it.

As in most personal injury/death cases there are multiple parties involved as defendants and of course the defendants have cross claims in this action complicating the reading of the pleadings.

Settlements in civil litigation are encouraged and the overwhelming numbers of federal cases settle prior to trial. This case reflects the dilemma of a defendant – PADI – who agrees to settle prior to trial, with the remaining parties proceeding to trial. This leaves the defendant in these circumstances – PADI is this case – with the prospect of having derogatory lances hurled at them during the course of the trail that they are unable to rebut. In instances where they are the “empty seat”, they must weigh the cost/benefit of a certain settlement against not reaming in the case. Why didn't PADI insist on a full settlement for their cash payment and what motives might they have had for leaving Douglas and the other BWD as defendants in the case?

That said in the case of an “empty seat” – PADI no longer being a party to the on-going case – it is in the plaintiff’s interest to protect PADI so as to maximize the potential apportionment of fault to the remaining defendants who go to trial. Remaining defendants will seek to excoriate PADI so as to minimize their liability. Is there a Utah lawyer in the house who might speak to apportionment of fault in a general manner?

Should the case go to trial it remains to be seen how the jury evaluates Douglas’s personal liability/fault apart from the issue of whether or not he followed PADI’s standards and what protection the jury might give Douglas for having done so. Will his having followed standards lead to a reduction or elimination of his individually liability/fault? Or should he have know that leading the number of uncertified divers in his charge was inappropriate and refused to have done so?

Perhaps the plaintiffs will argue that Douglas should have known that he faced a potential Hobson’s choice – see Wookie’s post on circular procedural inconsistencies – and would conceivable face a scenario where he would leave an uncertified diver unoccupied while he attended the an emergent situation with another diver that called for him separate from the other divers in his charge.

PADI’s motives are voiced by Douglas – he contends they want to stay in the case so that they are able to defend their program and by extension their broader reputation. How this might happen?

This case and possible derivative actions have a long way to go, matters of law are yet to be decided, and a jury’s verdict is well beyond the horizon. Of interest will be the actions of the insurance companies, their insured, PADI and possible future actions that may take place.

The transcript will post as a follow-on to this post.

---------- Post added November 12th, 2014 at 05:09 PM ----------

********************************************************************

DOC 157 – TRANSCRIPT HIGHLIGHTS

MR. CONCANNON:

My name is David Concannon and I represent Corbett Douglas and Blue Water Scuba of Logan and Lowell Huber, also known as the Blue Water defendants.​

MR. BULLOCK:

Roger Bullock and Spencer Brown, Strong & Hanni, for Professional Association of Dive Instructors.​

MR. BULLOCK:

The overriding concern and the concern from P.A.D.I.'s point of view is that it wouldn't be fair, that it won't be fair for Blue Water to point the finger of blame at P.A.D.I. and P.A.D.I. not having any opportunity to defend its diving course. Blue Water has made it clear that that is their agenda. They will acknowledge that, I believe, that they want to put P.A.D.I. on trial and try the P.A.D.I. diving course. Then they want to use that however they may in other cases and in publications and to the public and anything that will gain an advantage in other pending and future litigation.​

THE COURT (in reference to PADI)

I have told you as I sit here I don't know exactly what your rights are to defend yourself.

That is a different debate than what the rules of procedure allow a party or an entity, against whom fault is being offered, that entity's right to defend itself when it has become a nonparty in the case. I will be glad to entertain motions or requests about that, to the extent that anyone wants to bring them, including your client to see what rights you have for justice at a trial, but the method that was utilized here strikes me as being a little bit improper. I think you're right, the damage does not appear to be too much yet.​

MR. CONCANNON: May I briefly address the Court?

THE COURT: Go ahead.

MR. CONCANNON: Thank you.

I want to address something that Mr. Bullock raised that is new and different from the briefing, the question of motive. He said something along the lines that the Blue Water defendants have made statements in other cases to the public and in publications. He must be referring to himself and his own client because that is absolutely false. What has happened is that 13 days after this incident took place, P.A.D.I. expelled Corbett Douglas as a member of P.A.D.I. publicly.

It is listed in their Web site. The reason that they gave was that they had determined that Mr. Douglas's membership was no longer in the best interest of P.A.D.I. Mr. Douglas wrote a letter and asked P.A.D.I. to explain what basis they had for expelling him and what standards did he violate and P.A.D.I. never responded.

What P.A.D.I. did do at a public forum, at the largest diving trade show in the world, was stand up and make an issue of Mr. Douglas in front of a large audience of instructors and members of the diving industry profession.

Mr. Douglas is the father of four children and he is an Iraq war veteran and school teacher and professional scuba instructor.
I, for the life of me, have never been able to identify a single training standard that he violated. P.A.D.I. has never identified a single training standard that he violated.

Within the confines of this case Mr. Douglas has defended himself. Within the confines of this case Mr. Douglas has pointed out deficiencies in P.A.D.I.'s Discover Scuba Diving program and he has alerted the court, and others, and a federal judge in particular has pointed to the same deficiences.

He is simply defending himself. He has not settled the case. He is going to defend these allegations but not settling the case. P.A.D.I. had the same opportunity to defend itself by not settling the case. P.A.D.I. is as complicit, and you heard Mr. Hall acknowledge that P.A.D.I. requested that it stay in this case.

The Court asked about modifying the protective order, and P.A.D.I.'s real issue is that they don't want the world to know what they have done here, but the Blue Water defendants have not published that in any way.

If that settlement agreement becomes part of the public record, that is P.A.D.I.'s problem and maybe they shouldn't have done what they did. We have a case of monkey see, monkey do here, because, as Mr. Hall acknowledged, the Boy Scouts have a similar provision in their settlement agreement entered six months ago which says that we can stay a party to this case as long as we want, and then we'll let you know when you should dismiss us.

I have not heard a single federal case cited, not a single federal rule, and we keep talking about the Utah Supreme Court and Slusher, but whatever the Utah Supreme Court wants to do with its procedural rules is interesting, but it is irrelevant in an Article Three Court.

When it comes to motive, I take offense and my client takes offense to being accused of doing anything that is not in P.A.D.I.'s interest, and I submit that if they wanted to stay in this case and defend themselves, they could have done that.

I don't lightly violate the secrecy of a mediation process, but I can tell the Court that when we mediated this dispute in Las Vegas, the parties sat in three separate conference rooms. They did not make statements to the mediator. They did not make statements to each other, except for me going over to the Tuvells and expressing my condolences for their loss, because David Tuvell was the same age as my daughter Megan.​
That is it. What we were told was P.A.D.I. thinks you're responsible. We were not told why. We were told P.A.D.I. says that you are responsible and you should pay. Whatever they say, and the Court is well aware of the time line here, the settlement in March, the partial statement in May, the full disclosure at the end of August, and whatever P.A.D.I.'s motives were, I would submit that they are not exactly being candid with this Court.​

MR. CONCANNON:

One of the issues now is going to be the safety of the Discover Scuba Diving program. That is an issue that has been in the public domain for quite some time.

We contend that it is not that Corbett Douglas violated any standards. It is that the standards, if there is an issue over how David Tuvell died, the program does not allow you -- for instance, it does not tell you how to make a safe ascent. It does not tell you how to stay on the surface. It does not tell you to drop your weights and maintain your buoyancy.

None of this information is given to the participants. The instructors are not allowed to deviate from that. If those are in fact problems with the D.S.D. program, we think that that is something that should be explored in the litigation.

We don't think that the Court should protect the secrecy of P.A.D.I.'s statements and P.A.D.I.'s conduct. If you want to promote settlements, legitimate settlements, then, fine, let's take the money out of it. Let's take the $800,000 payment out of it.

Let's protect that, but there is no legitimate basis, and, in fact, we already have another defendant following the lead of P.A.D.I., and there is no legitimate basis to protect those other provisions. That is our position.​

THE COURT: Thank you, Mr. Skolnick.

The motion of the Blue Water defendants is granted as follows:

First, I'm striking the protective order for good cause.

Under the circumstances I am finding it is improper for P.A.D.I. and the plaintiffs to do what they did with respect to misrepresenting, after a full settlement had been reached, misrepresenting that a case was still alive. It is as simple as that. I think that is improper behavior, and I do think the parties acted under these unique circumstances, they acted based on a belief that P.A.D.I. was still a defendant.

As to the protective order, I am going to require the amount to remain confidential, otherwise the protective order is stricken and revised in that manner.

Because I find that the Blue Water defendants acted to their detriment with the misrepresentation that claims were alive that weren't, I am going to order that the amended complaint be stricken and that the answer and the cross-claims that were in response to the amended complaint also be stricken.

As for the motion for sanctions, my understanding is that aside from the time and expense associated with this very motion, there hasn't been very much.

I'm going to award a $2,000 sanction, which I think will recognize primarily that the defendants, the Blue Water defendants unnecessarily responded to the amended complaint. That will be awarded against both P.A.D.I.'s counsel and the plaintiffs' counsel jointly and severally.

That is my very rough estimate and that is below any computation of any reasonable attorney fee for that relatively meager work. I'm not awarding attorneys' fees for this motion. I am going that low because I think that no one could reasonably argue that that is too high of an amount for the work attributed to it.

If there is an objection to that by the plaintiffs' counsel or P.A.D.I.'s counsel, I will entertain a motion for a more specific account of attorneys' fees that were incurred by Blue Water, but I think that would probably just cause more work, more unnecessary work. That is the way I see this. I don't see this case as being particularly like any case that was shown to me.

Whether P.A.D.I. can have a chair that it can occupy during the trial to defend itself, I don't know. I am not ruling on that. I know that the vehicle of remaining a cross-claim defendant is not a possible vehicle. It is up to, of course, the defendants to decide whether to file a third-party complaint. I'm saying nothing at all about the other defendants, the Boy Scout defendants or anyone else.

 
PADI's lawyers managed a double-double, stupid and lacking in ethics.

Meh. Read the opinion and you'll see the judge doesn't disagree with their assertion that the client has valid interests that were served by what they did, they just took it a step too far when they filed the amended complaint - and to be fair, the amendments were in large part to remove allegations against PADI that the settlement had settled. It was sloppy litigation strategy that caused a opposing party some minor additional costs they shouldn't have had to incur, but as the opinion and the meager dollar figure of the sanctions suggest, it wasn't ragingly unethical...from a legal perspective.

From a business ethics perspective...let's just say PADI did a fine job of making lawyers look like upstanding ethicists. You literally could not pay me enough to teach these kinds of classes, but getting knifed in the back by your certifying agency is the kind of thing that's been known to provoke...let's call it less than legal retaliatory behavior by aggrieved individuals. And when you hear about it happening, you think 'well, they sorta had it coming.'

---------- Post added November 12th, 2014 at 05:37 PM ----------

Case 1:12-cv-00128-DB, is a complex civil action

Please don't make me laugh that hard.

---------- Post added November 12th, 2014 at 05:42 PM ----------

While his opinion that Douglas’ report to PADI is privileged is boldly stated, the issue of this document’s status has not yet been raised in the case and of course not ruled on by the court.

Of course, having turned over the document without even receiving a discovery request covering it (maybe they'll claim it was part of their initial disclosures obligation under the Fed R Civ P) makes it very hard to assert privilege/work product protections at all...which is what you have to do to raise the question of whether it's protected and get the court to rule on it. The TDI letter is grossly self-serving, but he's 100% right that turning over documents submitted to you by your instructor after an accident, for which you have a meritorious claim of privilege, is sleazy.

At this point, if I were a PADI-affiliated professional of any stripe, about the only thing that would make me trust PADI again is a public statement explaining who decided to play this matter in this way, that all involved in those decisions have been terminated, and that PADI will be indemnifying the affected instructor.
 
At this point, if I were a PADI-affiliated professional of any stripe, about the only thing that would make me trust PADI again is a public statement explaining who decided to play this matter in this way, that all involved in those decisions have been terminated, and that PADI will be indemnifying the affected instructor.
(written by DR. Lecter)

Great point juris doctor!

Hey RJP: I think the negative view that you share with Dr. Lector regarding Carney's motives may not be true. My gut tells me that Carney is a sincere and thoughtful person. I take the open letter that he emailed me to be his true thoughts. I think he cares about the diving industry (again, just my gut feeling as I don't know him; maybe you and Dr. Lecter do know him).

The diving industry is not well served by the actions that PADI has taken. PADI's actions are unethical and violates their agency relationship with their member instructors.

No way would I get certed as a DM or instructor--way too much liability. Are you kidding me!

markm
 
I've been reading over some of Dr. Lecter's input as to the legal perspective, and also getting 'knifed in the back' by your certifying agency.

Those of you who are instructors or dive master/equivalents, for whatever agency, I'd like to hear your thoughts on this line of thinking:

1.) Anytime there's a bad outcome, it's possible your agency could decide to terminate its relationship with you out of perceived self-interest. Assuming your malpractice insurance is not also terminated, I would think this possibility is a given. Ideally you'd be given the chance to 'resign to pursue other opportunities' rather than be formally terminated. So even here there are shades of grey.

2.) The agency might decide to settle its issues with a plaintiff apart from your dealings with the plaintiff. Probably not the 'we're in this together team spirit support' you'd hope for.

But...

3.) I'd think that only in extreme cases, such as with evident willful malice on your part, would you expect your agency might actively collude with the plaintiff to bring you down.

Even if there's no legal requirement for an agency to honor the 3.) philosophy, am I wrong in believing most dive professionals would expect their agency to at least remain neutral toward them, if it would not support them? Even if the agency suspected they were negligent?

Richard.
 
Even if there's no legal requirement for an agency to honor the 3.) philosophy, am I wrong in believing most dive professionals would expect their agency to at least remain neutral toward them, if it would not support them? Even if the agency suspected they were negligent?

While it would be nice if it were otherwise, any business will throw you under the bus if they think it's in their best interest.

That's why you don't keep checking and credit card at the same bank.
 
I've been reading over some of Dr. Lecter's input as to the legal perspective, and also getting 'knifed in the back' by your certifying agency.

Those of you who are instructors or dive master/equivalents, for whatever agency, I'd like to hear your thoughts on this line of thinking:

1.) Anytime there's a bad outcome, it's possible your agency could decide to terminate its relationship with you out of perceived self-interest. Assuming your malpractice insurance is not also terminated, I would think this possibility is a given. Ideally you'd be given the chance to 'resign to pursue other opportunities' rather than be formally terminated. So even here there are shades of grey.

2.) The agency might decide to settle its issues with a plaintiff apart from your dealings with the plaintiff. Probably not the 'we're in this together team spirit support' you'd hope for.

But...

3.) I'd think that only in extreme cases, such as with evident willful malice on your part, would you expect your agency might actively collude with the plaintiff to bring you down.

Even if there's no legal requirement for an agency to honor the 3.) philosophy, am I wrong in believing most dive professionals would expect their agency to at least remain neutral toward them, if it would not support them? Even if the agency suspected they were negligent?

Richard.

Lets rephrase the scenario.

You're a doc working ad locum, a patient comes in, you follow all hospital processes, procedures and exercise your best judgement, but poo happens.

The hospital immediately discharges you, publicly announces your discharge for no specific reason, settles with the heirs and works with them to your disadvantage.

Kinda ****ty, isn't it. . .
 
I've been reading over some of Dr. Lecter's input as to the legal perspective, and also getting 'knifed in the back' by your certifying agency.

Those of you who are instructors or dive master/equivalents, for whatever agency, I'd like to hear your thoughts on this line of thinking:

1.) Anytime there's a bad outcome, it's possible your agency could decide to terminate its relationship with you out of perceived self-interest. Assuming your malpractice insurance is not also terminated, I would think this possibility is a given. Ideally you'd be given the chance to 'resign to pursue other opportunities' rather than be formally terminated. So even here there are shades of grey.

2.) The agency might decide to settle its issues with a plaintiff apart from your dealings with the plaintiff. Probably not the 'we're in this together team spirit support' you'd hope for.

But...

3.) I'd think that only in extreme cases, such as with evident willful malice on your part, would you expect your agency might actively collude with the plaintiff to bring you down.

Even if there's no legal requirement for an agency to honor the 3.) philosophy, am I wrong in believing most dive professionals would expect their agency to at least remain neutral toward them, if it would not support them? Even if the agency suspected they were negligent?

Richard.

When you get bought out by a hedge fund or private equity investor, as PADI has, you are playing with the sharks. Their loyalty is to their owners and their interests. The management will be under extreme pressure to deliver financial performance in a declining market to meet hurdle rates that allow them to sell out, retire and sit on the beach. It's capitalism and it's made a home in your dive industry.
 
Lets rephrase the scenario.

You're a doc working ad locum, a patient comes in, you follow all hospital processes, procedures and exercise your best judgement, but poo happens.

The hospital immediately discharges you, publicly announces your discharge for no specific reason, settles with the heirs and works with them to your disadvantage.

Kinda ****ty, isn't it. . .

But the instructor didn't follow standards, did he? Did he always keeps all participants within reach and able to assist them? No, he left two kids on the bottom to go help a panicked diver. Tough choice but he blew it big time by breaking the most basic standard. If you read the Instructor Manual, that is one of the very few requirements of the course. You can't break a basic standard and cry that you met "most standards" or "the ones that I thought were important."

Supervision​
Do not leave participants unattended, either at the surface or underwater.
- Position yourself so that you or a certifi ed assistant can make immediate physical contact with, adjust buoyancy for, and render assistance to, participants.​
- Continually observe participants with only the brief, periodic interruptions needed to lead the dive and to provide assistance to individual divers.
 
But the instructor didn't follow standards, did he? Did he always keeps all participants within reach and able to assist them? No, he left two kids on the bottom to go help a panicked diver. Tough choice but he blew it big time by breaking the most basic standard. If you read the Instructor Manual, that is one of the very few requirements of the course. You can't break a basic standard and cry that you met "most standards" or "the ones that I thought were important."

So all of you that keep saying he broke standards explain something to me; Lets say I'm a super experienced instructor with 10's of thousands of safely lead dives and courses, doing a DSD in 15 feet of 100' visibility calm water in the tropics. I've done a pool session for the class and now I've taken two of the best of the class for a quick openwater dive. During that dive the divers separate, despite my best efforts, and one has a problem.

According to you, I am now in standards violation and if anything happens to either diver, it's my fault and legally I'm on my own.

The point the rest of us are tying to make is that if the above scenario happens and DOES lead to a standards violation (given the ideal situation and well within ratios) shouldn't the standards be changed so a CA is REQUIRED if doing more than 1:1 with ANY uncertified divers? Why wouldn't a dive agency do that? If they care about safety, why even have standards that are so easy to violate?

Supervision
Do not leave participants unattended, either at the surface or underwater.
- Position yourself so that you or a certifi ed assistant can make immediate physical contact with, adjust buoyancy for, and render assistance to, participants.
- Continually observe participants with only the brief, periodic interruptions needed to lead the dive and to provide assistance to individual divers.



This even contradicts itself! It would be during one of those "periodic interruptions needed to lead the dive and to provide assistance to individual divers" that the instructor would lose track of the other diver. And this is exactly what happened in the case. So where is the standards violation again? Oh, the one that can't be met if you are following it? Gotcha.


I just renewed my instructor insurance with Willis (because I am in one of the states that makes them contractually bound to continue providing insurance so long as I don't let it lapse), and it specifically says in the exclusions that intro classes must be no greater than 2:1 and no greater than 1:1 for minors. It also doesn't list PADI as a covered certification agency.

-Chris
 

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