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When a training agency decides it is more important than its instructor members or, worse, the training agency helps the plaintiff sue its own members

This is rare and should not be viewed as common in the industry. At the same time, This is an outrage and this agency needs new directors, new officers and a new board…..NOW!

Most importantly, the training agency lied to its members, continues to lie to its members and requires them to provide information to the agency that they claim is confidential and protected that is NOT.

Privilege is protection afforded by the US constitution that allows a client to say anything and everything to his or her attorney. Privilege also applies to communications between a patient and a physician and a person and his clergy. No court can compel the attorney, physician or priest to say what they have been told.

This is a sacred right as well as a legal issue. It allows the attorney to prepare the best defense or claim because they know everything. It allows a physician to provide the best care because they know everything. It allows a clergy to provide comfort and the person to receive forgiveness because the clergy knows everything.

There is one major exception to the law that applies to patients who have injuries from gun shots. All medical personnel are required to report this to law enforcement in most states. What is said by the patient is not reported, just the type of injury.

Without privilege, an attorney would not know how to prosecute or defend a case, and that is a right guaranteed by the US Constitution. Without privilege, a person might not see their physician or be defended by their attorney. Without privilege, a sinner might never receive absolution. Privilege is a right that is given by a higher protection than any other law or right by state or federal governments except the freedoms of the constitution.

Privilege is limited in its scope. The information must be provided by the person to the professional: clergy, doctor or lawyer. It must be specific to the professional and be of the nature of the services being offered. The information can only be heard or seen by the professional. It must be done after the incident, if legal in nature, to be privileged. It must be prepared by the client for the attorney, at the attorney’s request. Any waiver or violation of these rules and the privilege is waived, or gone.

No other person, party or organization can hear or see the privileged information. If a person, party or organization does, the privilege is lost. Again, there are exceptions such as employees of the attorney. Even improper handling of the information or possible access to the information can waive privilege. Courts have ruled handing privileged information to a third party, who was able to see the information waives privilege. Having a third party over hear the communication waives privilege. Handing the information to your insurance company or training agency before, as, or any time after an incident waives privilege.

That means you cannot take a document prepared for an insurance company and give it to your attorney and call it privileged. That means you cannot prepare a report for your attorney and give a copy to your insurance company. Once it leaves your hands and goes to anyone else other than the attorney the privilege is lost. Any document prepared prior to the incident also has no privilege unless specifically prepared in anticipation of litigation by your attorney.

How that got screwed up in a scuba diving case.

(Parentheses Surround the name of the document from which the information or the quote is taken. There are a lot of documents in this case, and discovery is ongoing.)

Simplified Version of the Facts

David Tuvell was participating in a Professional Association of Scuba Instructors (PADI) Discover Scuba Diving program at the Bear Lake Aquatic Base, which is owned by the Great Salt Lake Council of the Boy Scouts of America.  The dive program was offered by Blue Water Scuba of Logan, Utah and supervised by Corbett Douglas an employee of Blue Water Scuba. Tuvell died during the dive, and his parents sued everyone.

Case

Case Number: No. 1:12CV00128 BCW

US District Court District of Utah, Northern Division

The Parties

Plaintiffs

David Christopher Tuvell, Deceased

Christopher Joseph Tuvell, father of the deceased

Sherry Lynn Tuvell, mother of the deceased

The estate of David Christopher Tuvell

Defendants

Corbett Douglas, Instructor

Boy Scouts of America (BSA)

Blue Water Scuba of Logan, Utah

Bear Lake Aquatic Base

Great Salt Lake Council of the BSA

Professional Association of Diving Instructors (PADI)

PADI Americas, Inc. legal name of PADI

Lowell Huber, owner of Blue Water Scuba of Logan

PADI

PADI was sued because it was a PADI course the deceased was taking at the time. PADI is a training agency that provides training, curriculum and other benefits to and for scuba diving instructors. PADI courses train beginning divers as well as advanced diver and dive instructors. PADI is a mixed membership organization in that it has members who are professional, commercial and non-professional divers.

PADI has a form, the first page of which is pasted below, called the “Incident Report Form.” PADI contractually requires any member of PADI to complete the form and send it to PADI for any incident, injury or fatality. The form states it is “…prepared for the purpose of receiving legal advice or for use in anticipated litigation.” This would imply that the information on the form is protected by privilege. PADI tells its members, they must complete the form and that the information is privileged. See The ABCs of Incident Reporting.

clip_image002[4]PADI’s position on this issue was set forth on a dive bulletin board. (Dive incident reports [Archive] – Scuba Diving Forum – Diving Social Network) The position was stated on the forum by PADI’s director of legal and risk management.

As was speculated on the bulletin board, any incident reports provided to PADI are considered preapred in anticipation of litigation and are therefore, confidential and not released except on the direction of legal counsel or by court order. [spelling error appeared in the original post]

PADI members are required to file incident reports, even if they were just present on the scene. The report states it is privileged; however, it isn’t. Even worse, as these facts show, PADI allegedly provides the reports to the plaintiff as part of any settlement agreement if it is sued. So PADI, in effect, to protect its own butt, lies to its members, and then helps screw its own members in court.

PADI is not a law firm. PADI is an educational organization. There is no privilege with any document or statement made to PADI by anyone for any reason. A confidential document is still provided to all parties in litigation; it just can’t be given to people, not part of the litigation.

How PADI Mislead and then Pissed off the Court

PADI was a defendant in the case. PADI secretly settled with the plaintiffs in the case. This means the parties worked out an agreement where PADI paid the plaintiffs an amount of money and the plaintiffs released PADI, and dismissed their claims against PADI.

Settlement agreements are signed when the parties agree to settle their dispute and quit suing each other. A settlement agreement in litigation has two parts. The first is the agreement between the parties which outlines the amounts and the terms of the agreement. The second is the motion to dismiss based on the settlement agreement that is filed with the court. The court and the other parties never see the settlement agreement itself. Nor does the motion state anything other than the parties have settled.

The court then dismisses the case. In this case, however, several “odd things” occurred. Odd should be replaced by outright fraudulent things.

First, the settlement agreement was signed but no motion to dismiss PADI was made to the court. The original complaint was then amended, with PADI’s consent and allegedly PADI’s help, to remove most of the claims against PADI, even though PADI had settled ALL claims against it.

Once the motion is filed, the Judge reviews the motion to dismiss and grants the motion 99.999% of the time and dismisses the parties from the case, or if one party is staying, the claims between the parties. As a result, one defendant is gone from the case.

PADI signed a settlement agreement with the plaintiffs. The settlement agreement in part stated:

Claimants further understand and agree that this settlement is a compromise of disputed claims and that payment is not to be construed as an admission of liability on the part of any of the Released Parties who are released herein and by whom liability is expressly denied. Even though PADI is settling, it maintains and believes that Claimants are correct that defendants Blue Water Scuba, Lowell Huber, and Corbett Douglas acted improperly and were the primary if not sole cause of this tragic event. PADI desires and intends to remain a party to this action to the extent the court will allow in order to defend the professional reputation of PADI and to defend and represent PADI employees and agents who may be witnesses in this action. [emphasize added] (PADI-Tuvell Settlement Agreement)

I’ve practiced law for thirty plus years, and I have never seen anything like this. I’ve reviewed or written several dozen settlement agreements, and I have never seen or written anything like this.

PADI and other plaintiffs intended to keep their settlement agreement a secret. However, Utah law requires a settlement agreement releasing one defendant to be turned to the other defendants in discovery. When the plaintiffs’ attorney let it slip during a court hearing that a settlement had been reached with PADI, the other defendants demanded that the settlement agreement be provided to everyone in discovery.  

Meanwhile, discovery in the case proceeded and, just before it looked like PADI would be dismissed from the case in accordance with its complete settlement of all the plaintiffs’ claims against it, PADI “inadvertently” produced its Members’ incident reports to the plaintiffs without a discovery request and without first notifying the Members that their confidential reports would be produced. After a few days went by, the attorneys for PADI notified the other parties that the documents had been “inadvertently” produced and asked the documents be destroyed because the Blue Water Defendants might want to claim that they were protected by the attorney-client privilege. (Letter from PADI’s Counsel 10-18-2013, Objections to PADI’s Disclosures.)  This is absolute BS. See above information on privilege.

Eventually, the court found out what was going on with the secret settlement. (Order granting Mtn for Sanctions 08-27-2014.) The court granted sanctions (monetary damages) to the remaining defendants because PADI had:

·         Not immediately notifying the court of the settlement agreement

·         It prolonged the litigation by not leaving the case

·         Entering into a secret settlement agreement

·         Colluding with the plaintiff to file false and misleading claims post-settlement with the court

What unhinges me is this statement.

Plaintiffs and PADI have admitted that PADI insisted that it remain a party to the case, even after PADI and the Plaintiffs had reached a complete settlement of all claims, so PADI could assist the Plaintiffs in proving their claims against the Blue Water Defendants. [emphasis added]

The treachery lies and fraud in this case are unreal.

1.     PADI put itself before its own members. This was not a Spock issue were sacrificing one would save the world. This was simply we are going to sacrifice our member for no reason.

2.     This is another example of abuse of members by telling them they can protect them by completing forms.

3.     PADI lied and deceived its members to collect information about incidents they had no right to have and no right to say was privileged.

Again, this is BS. There is no privilege except between an attorney and the attorney’s client. Anything prepared in anticipation of litigation is prepared for the attorney, no one else. That has been the law since I passed the bar (the test to become an attorney). The attorney can only see the document, no third party, and no non law firm people.

Think you trade association represents you? You better make sure it does.

Do Something

At the very least let, PADI know. I suggest you join another association or form a new one.

NEVER EVER FILL OUT ANY INCIDENT REPORT FORM FOR ANYONE EXCEPT YOUR ATTORNEY.

 

What do you think? Leave a comment.

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5 Comments on “When a training agency decides it is more important than its instructor members or, worse, the training agency helps the plaintiff sue its own members”

  1. omisson says:

    Except that this is all not true.

    this was a DSD in Bear Lake, Utah- conditions described as low viz that day.

    Two youth were left alone under water at 15 feet of water rather than surfacing them and knowing where they were.

    But in summary:

    In the DSD There was no prior pool session first (violation one).

    The DSD was done in open water in conditions that were not pool-like (violation 2).

    There were three students and he left TWO under water unsupervised (youth) to follow an adult to the surface (violation 3).

    He lost sight of the two underwater youth (violation 4).

    He chose not to have an assistant instructor or divemaster (not a per se violation but violates the exercise reasonable judgment obligation).

    And on the general liability side the parents who are suing lied on medical forms to both PADI and the Boy Scouts about a serious asthmatic condition which was ultimately a major contributing factor.

    The youth who died was in a BCD that did not function properly (given to him by the instructor) and was overweighted (35lbs) by the instructor.

    * Boy is sick.

    * Boy decides to do DSD with Troop Pals in spite of this.

    * Parent completes release forms including Medical Release.

    * Medical Release reviewed and signed by Physician Assistant, not Physician.

    * No pool session is done.

    * The 120 pound boy had been given weight of 30 pounds for a five mil suit and steel cylinder.

    * At fifteen feet deep, an adult swims to the surface.

    * Instructor follows, leaving two on the bottom.

    * The Boy succumbs.

    * Search is initiated and the boy’s body is found 45 to 55 minutes later by a helper at the Camp, Mr. Jones.

    * Mr. Jones cannot lift body without removing weight belt and gear.

    * Sheriff shows up and takes statements from instructor and all survivors.

    * Within days, the incident report is filled out and turned in by instructor.

    * PADI expels instructor based on incident report within two weeks.

    * Instructor is advised verbally by PADI QA of specific violations. Standardized letter is sent in order to protect instructor in case of a law suit.

    * A year later, parents initiate law suit against instructor, PADI, Boy Scouts and dive shop.

    * Instructor’s attorney makes claim against PADI on behalf of instructor and dive shop.

    * PADI settles what is to them, a non-winnable case.

    * PADI remains in the case to defend its Discover Scuba Diving program so it won’t be thrown under the bus.

    * Brian Carney writes letter one week prior to DEMA condemning PADI for being prudent.

    * Instructor’s/dive store’s lawyer discusses the case openly on ScubaBoard.com.

    Fact: The instructor broke standards for a PADI DSD. Not just one, but a number of standards were violated. Providing an incomplete confined water session, including not doing a proper buoyancy check, leaving the kids at depth and ignoring the horrible visibility are the three obvious ones. PADI has zero tolerance when it comes to death/major injuries and breaking standards. I think this is wise and they are very reticent to consider any mitigating circumstances. The instructor was expelled for these very reasons and he was told about it. There was no double secret probation going on here. Yeah, it makes great controversy when you want to bash an agency, but the truth makes far more sense.

    Fact: The instructor was expelled long before any litigation was initiated. It wasn’t done to cover PADI’s butt, but rather to keep the instructor from possibly hurting anyone else. This was a prudent action and should be lauded by the entire dive community, including Brian Carney. Stopping an unsafe instructor is what Quality Assurance is all about. It’s my opinion that expelling the instructor actually increased PADI’s liability.

    Fact: This kid was given 30 pounds of weight for a five mil farmer john suit and a steel tank. Most cold water instructors I have talked to believe this to be at least 10 pounds over weighted. For a participant without adequate training to inflate a BCD, this was an obvious contributing factor. It’s why we don’t abandon DSD students in Open Water.

    Fact: The Incident Report was accidentally given to the opposing attorneys. What hasn’t been revealed is that PADI attorneys had always refused to give this up as a work product, and the local attorneys are the ones who made the mistake. There was no intent to throw the instructor “under the bus”, and PADI has ample proof of that. However, once the mistake was discovered, a claw back motion was initiated to prevent the document from being used as evidence. In other words, it can’t be used in the current litigation. A mistake was made and then made right.

    Fact: The Sheriff’s report is far more damning than the incident report. The opposing counsel has no need for the incident report, since the Sheriff did his job and got the facts right at the accident scene before mitigating legal risk was a factor. There are some conclusions drawn by the sheriff that are apparently being contested, but the report had all the details of the Incident report and a few more.

    Fact: PADI’s attorneys and the plaintiffs’ attorneys were fined only for delaying their disclosure of the settlement, not for an improper settlement which was approved by the judge. Why did PADI settle? How can you defend yourself when you’ve expelled your instructor for his violating your own standards? Plus, PADI was sued for “agency” (ie that the instructor and dive store were agents of PADI), meaning that PADI could have been found liable for their actions, without having done anything wrong itself. They reduced their legal liability by settling a law suit they had an unacceptable risk of losing. PADI is now staying in the case to be sure that they are not misrepresented by a frantic attempt to throw them under the bus. There is nothing illegal or unethical about this. Not in the least. I can see how the opposing attorney finds this frustrating. Moreover, I have yet to see any evidence that PADI colluded with the family in any way.

    The TDI letter that make the ridiculous claims you posted here doesn’t address any of these inconvenient truths and I would hope they as an Agency would not have stood by an instructor with so many serious standards violations that ended up causing the death of a young boy.

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    • You state my facts are not true and then list dozens of facts that I did not list. I don’t really care about the facts. The facts I reported came from the documents filed with the federal court. I downloaded from the Federal Court all of the documents filed in the case. I quoted directly from those documents.

      Don’t argue the facts of this case, they are meaningless for this discussion about the law.

      Your statement of the facts are not supported by the documents. I repeat, go pay for the documents and argue those to someone who cares, but don’t argue what you have heard, argue what the documents prove.

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      • omisson says:

        You state the instructor was “thrown under the bus” more or less- the instructor was expelled for gross violations of standards ONE YEAR before a lawsuit was even commenced and two weeks AFTER an incident report was filed with the agency who did its own investigation and found about 7 serious standards violations by the instructor.

        Should a training agency leave an instructor on the books who killed a child with gross negligence? I think not.

        PADI did not voluntarily disclose the incident report and the record clearly show a CLAWBACK for an accidentally disclosed document… it was turned over in error in the bates document exchange under rules 17 &14, and the attorney correspondence shows that they rescinded and moved appropriately to quash the disclosure….. and moreover under local rules the document was not considered privileged and would eventually have to be disclosed.

        PADI settled – as you well know- to take the risk out of going to trial- an actuarial calculation. A corporate defense attorney would know that.

        they had a vested interst in seeing the blame assigned to the proper party- in this case CLEARLY an instructor who grossly deviated from the industry best practices and express standards of the agency he taught for,

        As for the sanction- PADI was sanctioned the cost of time for an unnecessary pleading response -in a billable hour format- as expressly stated by the court. Your attempt to make it collusive or sinister is belied by the nature of the sanction and the fact no adverse inferences or disciplinary action was taken. it was a 2k fine for untimely disclosure of a settlement that resulted in a waste of opposing parties’ time. Hardly what you make it out to be.

        The documents IN TOTO are available on PACER to anyone who signs up… I have them- thanks… and unlike you I’ve reviewed all of them, not just those that support my agenda.

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  2. […] Here's an interesting take on the whole thing from an outside party. Any thoughts? When a training agency decides it is more important than its instructor members or, worse, the train… […]

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  3. 1. I don’t have an agenda. I started studying this case because I write a lot about lawsuits against the BSA. The actions by PADI sort of jumped off the page.

    2. PADI threw the instructor under the buss. As a defense attorney for 30 years, you never sacrifice anyone who can either help your case or if thrown under the buss hurt your case. By throwing the instructor under the buss the instructor is free to help the plaintiff’s sue the defendants.

    3. Nothing in the pleadings indicates any of the facts you allege that show gross negligence. Now you can argue that the complaint makes all sorts of facts, but the complaint is not facts, just allegations.

    4. It does not matter if the document was intentionally or accidentally provided to the opposing parties. The fact that a settlement was made must be noticed to the courts and all parties. PADI got caught lying to the court.

    5. The sanctions are not done, there are still issues being plead on what PADI did.

    6. A bad settlement is always better than a win. However settling at the cost of a member by an association, that is not right in my opinion.

    7. Any sanctions by a Federal court make something bad. They are so rare that it is clear that what PADI did was wrong.

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