In our April 2003 issue, we ran an article titled “Is the
Inspiration Rebreather a Death Trap?” It focused on the
inquest of an Irish diver who, while using the rebreather
manufactured by British firm Ambient Pressure Diving,
died within minutes of entering the water. The jury was
uncertain of the cause of death, while Ambient said it was
due to diver error.
The Inspiration is a closed-circuit rebreather that recycles
exhaled gas through a carbon dioxide scrubber, removing
carbon dioxide and injecting oxygen at preset levels.
Closed circuit rebreathers are pricey (the Inspiration has
a list price of $9,000) but they’re becoming more popular
with sport divers and underwater photographers because
they provide more bottom time at greater depth and don’t
produce bubbles that bother marine animals.
At that time, 16 divers had died while using the
Inspiration. Now, nearly six years later, the death count is
40. But while none of the investigations puts Ambient at
fault, the manufacturer decided to stand up for itself in the first U.S.-based case of product liability filed against it.
Instead of settling with the plaintiff, typically the course
taken with lawsuits involving dive equipment, Ambient
decided to fight back in court.
The plaintiff was Stephanie Barrett, who was four
months pregnant when her husband Robert Barrett
drowned while using an Inspiration in a Bainbridge, PA,
quarry on August 3, 2002. The 32-year-old dive instructor
was teaching a student and had two dive buddies along
with him. Stephanie, seeking $5.75 million in damages,
claimed a design defect in the Inspiration caused it to stop
supplying oxygen after two minutes, when Barrett was 15
feet deep. Then, as is typical in liability cases searching for
deep pockets, she sued a number of other parties, from the
TDI instructor who certified Barrett six months prior to
his death to the person who inspected his rebreather for
the police investigation. Her claims of Ambient’s breach
of warranty, and unfair, deceptive trade practices were dismissed
for lack of evidence, but the negligence and product liability claims sat on the table and went to trial in New
Hampshire, where Stephanie lives, in November 2008.
Ambient hired David Concannon, a lawyer in Wayne,
PA, as trial counsel. He traveled to four countries and
seven states to gather evidence to present to the jury. He
even got Inspiration rebreather-certified and repeated
Barrett’s last dive eight times in the Bainbridge quarry.
Concannon told Undercurrent that the plaintiff’s attorneys
“never visited the scene of the accident and never made
any effort to interview any witnesses until three years after
they filed the case. When I went to the dive site, I talked
to the guy who brought Barrett to the shore, who said the
Inspiration was turned off at the time. He had told the
plaintiff’s attorneys a year before the trial, but it was never
mentioned in the 300 pages of expert report that the lawyers
put together.” That established the basis of Ambient’s
case that the death was due to diver error.
The plaintiff’s star expert witness was Alexander
Deas, manufacturer of the Apocalypse rebreather and an
Ambient competitor. After tests in a pressure chamber to
reconstruct Barrett’s rebreather video display, Deas testified
that a combination of electronic and software failures
of the Inspiration’s redundant control systems caused it
to stop delivering oxygen. As a result, he claimed, Barrett
passed out due to hypoxia and drowned. Deas estimated
that within the first 45 seconds of the dive, the oxygen
controllers disabled, and the primary and secondary power
lines failed. Barrett would only have been conscious for six
minutes and 20 seconds.
Inspiration Rebreather |
Because the Inspiration’s computer data was never
recovered, it’s inconclusive how long he was conscious,
Concannon argued at trial. Bill Hamilton, Ambient’s diving
physiology expert and a longtime consultant to the technical diving community,
disputed Deas’ methodology,
saying his six-minute
timeline was not scientifically
valid. Deas’ six-minute
estimate was further deflated
when Barrett’s three dive
buddies said they were
together for 10 minutes when
Barrett swam away as they
reached the quarry floor. It
was a local dive instructor
who discovered Barrett’s
body directly under the training platform where the dive
buddies spent 38 minutes waiting for Barrett to return
before they called the dive. Concannon faults them with
negligence for not alerting the police until three hours after
Barrett disappeared.
David Pence, diving safety officer at the University
of Hawaii and one of Ambient’s expert witnesses, said
Barrett failed to follow training guidelines by not reading
the oxygen levels every minute of his dive. If oxygen was
low, audible warnings would sound in Barrett’s left ear, in
tandem with visual alerts. His dive buddies admitted they
immediately went into the water without performing equipment
inspections, and they didn’t see Barrett do it either.
Pence also testified that Barrett was negligent by putting
rubber seals on the Inspiration’s regulators, which keeps
dirty water and ice out but creates a “cork-the-bottle” effect
by stemming oxygen flow. Ambient includes a two-page
“Do’s and Don’ts” letter with its rebreathers, which Barrett
bought in June 2000, and one of the warnings is against the
use of rubber seals. Barrett also used a less effective carbondioxide
scrubber material not recommended by Ambient
because it could cause carbon dioxide poisoning.
The eight-person jury was allowed to hear
evidence of other deaths that occurred with the
Inspiration, but Ambient also read the coroner’s verdicts,
showing the rebreather was not at fault. After
a two-week trial, the jury found the plaintiff did not
prove that Ambient was strictly liable for Barrett’s
death, and the judge dismissed Stephanie Barrett’s
request for a new trial. “If the rebreather was not
turned on when it came out of the water, that’s not
Ambient’s fault,” says Concannon.
Even though the trial is over, Ambient and Deas
still do battle. Concannon says that Deas is trying to
get his competitors eliminated from the market or
force them to license his design, and he bends his
facts as an expert witness. Deas still believes he was
right about product malfunction causing Barrett’s
death, and that Ambient tries to discredit any expert
witness testifying against it in legal cases. “I’ve sat
on the sidelines for too long but I’ve decided to get involved because the death rate from using their rebreathers
is just too high.”
Hamilton says operator error is the case in the vast
majority of rebreather deaths. “They’re due to ‘finger
problems,’ in that divers press the wrong buttons. Outright
failure of rebreathers is very unusual, but the diver should
be trained well enough to know how to handle it.”
Bret Gilliam, a frequent Undercurrent contributor and
expert witness in dive-related lawsuits (although not this
one), reviewed the Barrett v. Ambient case and agrees with
the jury’s verdict. “Rebreathers are not for everyone. They should belong to the truly committed divers who will use
them responsibly and respect their complicated mechanisms
that require vigilant observation and compliance.
They are not recommended for ‘weekend warriors.’”
Now, another case involving an Ambient rebreatherrelated
death is being prepared in Los Angeles. Concannon
says the facts are nearly identical to the Barrett case, and
Alexander Deas says he may again be an expert witness for
the plaintiff.
- - Vanessa Richardson