Renowned underwater photographer Wes Skiles died in a 2010 diving accident because of faulty breathing apparatus that the manufacturer knew was prone to failure, his widow Terri Skiles alleges in a lawsuit filed last week in Palm Beach County (Florida) circuit court. She is seeking unspecified damages.
Terri Skiles also alleges that the manufacturer conspired to destroy evidence of that failure. Because of that, she says she will have difficulty proving that the manufacturer, its suppliers, and a distributor are to blame for her husband's death.
Wes Skiles died July 21, 2010 at the age of 53 while diving near Boynton Beach, Florida. The Palm Beach County Medical Examiner ruled last year that Skiles' death was an accidental drowning. "There was nothing to indicate natural causes or outside forces," the medical examiner's chief investigator told the Palm Beach Post in 2011.
At the time of his death, Skiles was filming a reef about a mile offshore with three other divers. He was a regular contributor to National Geographic, and had just finished a two-week assignment shooting underwater footage for a National Geographic film.
During the dive near Boynton Beach, he signaled to his diving companions that he intended to surface. A short while later, they found him unconscious on the sea floor. They rushed him ashore, but EMTs were unable to revive him.
When Skiles died, he was using an O2ptima FX rebreather apparatus that he had borrowed from another diver.
Rebreathers filter out carbon dioxide exhaled by the diver, then recirculate unused oxygen. Rebreathers use sophisticated electronics to monitor and control oxygen levels, because the consequences of breathing too much or too little oxygen can be fatal to a diver. (Conventional SCUBA air tanks expel CO2 along with any unused oxygen when the diver exhales; Skiles' companions were all using conventional breathing tanks).
Terri Skiles alleges in her lawsuit that "Due to an unexpected catastrophic failure of the subject O2ptima FX rebreather during the dive, Wesley Skiles passed out underwater and died." She is suing the manufacturer, Dive Rite, an affiliated online retailer called Dive Rite Express and Mark Derrick, the owner of Dive Rite Express. Also named as defendants are two companies that supply critical electronic components that Dive Rite uses to make the O2ptima FX rebreather.
According to Terri Skiles' claim, "Dive Rite was aware of serious quality control issues with the O2ptima FX rebreather" and had been warned that its oxygen control censors "were being damaged by unknown sources of moisture." That was allegedly leading to failures of the rebreathers with no warning to the divers. The sensors were also unreliable, and had been recalled by the supplier in 2007, "and subsequent batches continued to contain defective sensors," according to the lawsuit.
Skiles also alleges a series of manufacturing failures by Dive Rite, including improper assembly of the rebreathers, poor design, failure to properly inspect and test the rebreather before they were sold, and failure to investigate reports of safety concerns relating to the rebreather.
Dive Rite declined to comment.
Terri Skiles alleges that despite knowing about the O2ptima FX's defects and the associated risks, defendants continued to "tout" the rebreather as a safe product, while making "conscious efforts to suppress and conceal information about the known defects" from the public.
The onus is on Terri Skiles to prove that her husband died because the rebreather he was using actually failed. As it stands, her claim is based almost entirely upon circumstantial evidence (the alleged history of problems of the O2ptima FX rebreather). Skiles says her ability to prove Dive Rite and the other defendants were at fault because her husband's rebreather failed has been "significantly impaired" by the destruction of evidence.
Specifically, she alleges, Dive Rite and Dive Rite Express used false pretenses to insert themselves in the medical examiner's inspection of the rebreather used by Wes Skiles. By doing that, they were able to obscure evidence of the rebreather's failure in order to protect themselves from liability, and protect their economic interests as marketers of the O2ptima FX rebreather, Terri Skiles alleges.
Terri Skiles says in her lawsuit that Dive Rite owner Lamar Hires instructed Dive Rite Express owner Mark Derrick to interject himself in the medical examiner's investigation. Derrick allegedly "made materially false statements [to the medical examiner's office] by representing himself as a neutral third party in the matter."
Derrick then allegedly conducted "an extremely flawed inspection" of the rebreather that did not follow strict protocols set forth by the Navy Experimental Dive Unit for the inspection of diving gear involved in the death of a diver. He allegedly didn't photograph the apparatus or videotape the inspection, for instance. He allegedly "minimized obvious signs of failure in his report, such as moisture in the electronics, and used ambiguous and subjective terms when documenting his observations so as to prevent the true condition of the rebreather from being known."
Derrick twice declined a request for comment about the allegations against him, saying only that "the matter is under litigation. I'm looking forward to my day in court."
Attorneys for Skiles did not respond to repeated requests for an interview to answer the question: If Dive Rite and Diver Rite Express used fraud and conspiracy to interfere with a medical examiner's inquest, are they now subjects of a criminal investigation? And if not, why not?
Finally, the lawsuit alleges that once the medical examiner returned the rebreather to the diver that Wes Skiles had borrowed it from, Hires called that diver and instructed him to to send the rebreather to Dive Rite so it could be refurbished. Terri Skiles alleges that once the rebreather was back in Dive Rite's possession, Dive Rite replaced almost all of the parts, "thus completing the destruction of any evidence left behind by Mark Derrick and Dive Rite Express."