The Wall: Chronicle of a Scuba Trial
Chapter 8

Trial, Day 4 (continued)

Everyone assembles after the break and the jury is seated. At just before 2 p.m. Pearson rises, goes over to Jennie's picture and places the easel squarely before the jury box, only five feet from the closest juror.

"Ladies and gentleman of the jury, we have heard some dramatic testimony this week. And we've learned a lot about scuba diving, haven't we?"

Several jurors nod agreement. There is empathy here.

"But nothing we learned will ever bring this beautiful young lady back to her family, to be among the living. And nothing we learned will ever give them that grandchild that we now know died with Jennie.

"Please consider for a moment a different scenario. Consider for a moment a divemaster less pre-occupied with fish and eels, and more concerned about people, the very people she was paid to guide into that ocean. Consider for a moment if this divemaster had just floated back a little, kept an eye on her nine innocent charges, placed them between herself and the wall. She would have seen Jennie drifting away, drifting away because of nitrogen narcosis. Consider for a moment if this divemaster had tugged on Jennie's arm, pulled her alongside, motioned her to go higher. Divers are weightless under water, so it wouldn't have taken much effort, not much at all. But the divemaster has to be in touch, has to be aware of the people she is guiding. If the divemaster had been observant, if she had been aware, she could have pulled Jennie back from death!

"And what are we talking about -- just a few seconds of attention, really -- and we would not be here today! No 'mam, no sir, we would not be here today looking at only a picture of this beautiful woman. She would be with her parents or her husband, certainly with her child, and we would not be shivering at the thought of her body at the bottom of the Atlantic!

"But it didn't happen, did it? The divemaster was overworked! She was sent down to do a job and perhaps thought she was doing it the best way, even though we see now that she did it horribly wrong. But let's not blame Ms. Marvich alone. Consider her employer: a giant corporation that sends nine divers down this wall with only one junior divemaster to guide them. Ocean Realm International last year made over half a billion dollars in profit; not income, profit. They operate over 230 resorts and hotels around the world. They can't spare one more divemaster to help on such deep dives? Why not? Is that extra dollar of profit so important as to jeopardize someone's life? Safety vs. profit: it's a sad tale, isn't it?

"We always read about cutting corners in industry to make a profit. Well, scuba is an industry, just like making cars or making toasters. And this corporation cut a corner that has cost this woman her life!" His eyes are on the jury while his right arm points to Jennie's picture.

"Now we have listened to Mr. Kirkland's outlandish theory about suicide, and all that extra lead weight. We have listened to his paid experts concoct this absurd theory, while at the same time they have tried to refute truly expert testimony about Jennie's nitrogen narcosis. You have heard the medical experts, you have heard the scuba professionals. When you go back to deliberate this case, please take time to note the respective backgrounds of these professionals, what their real world experience has been, what they do for a living. Yes, compare their qualifications, then compare their testimony.

"And while we are on the subject of testimony, let's consider what the other side did not say, what they did not claim. No one has said that Jennie put on extra weights to kill herself! No one. It's all by implication, isn't it? If they believe it, why don't they come out and say so! Because they know there's not an ounce of evidence to support that.

"Just today, Mr. Harrison, Attorney Kirkland's expert, stated at the pool today that divers in warm water wear between 4 and 12 pounds of lead weight. Between 4 and 12 pounds! Do they want you to believe that another 4 pounds is the difference between life and death? Is it not possible that Jennie simply felt more comfortable with 16 pounds of lead weight? Is it not possible, indeed is it not more likely, that there is nothing sinister here at all, that 16 pounds is what she needed to stay buoyant in the water? Is it not likely that this emphasis on her weights is just a smokescreen to weasel out of responsibility? To make you think this woman wanted to die, to take her own life? Well. . . you bet it's a smokescreen! A technical mumbo jumbo to make you forget what this case is really all about, the death of a young woman!

"It is all so preposterous, what they would want you to believe. But this is a trial, and as members of the jury you have to be prepared to hear the preposterous. It goes with the nature of trials. But then you have to ask yourselves, hey, wait a minute. Common sense must count for something here!

"Ms. Knowlton was pretty. She was smart. You don't go to Columbia University unless you're smart. She came from a very good family. She had a wonderful career ahead of her. She had a boyfriend. She was pregnant, we've just learned. Yes, there are stresses, yes there are life changes. But using common sense, ladies and gentleman, there is no way, no reason this girl wanted to kill herself! She had everything to live for.

"But I'm going to go one step further. We don't have Jennie here to ask her but let's assume that, just for the sake of argument, let's assume that Jennie was upset about something and did try to break away from the group, to go deeper. That doesn't mean she tried to kill herself! That doesn't mean she wanted to even harm herself. Maybe it was like taking a few extra tylenol tablets, that's all. A simple prank, like 'I'll show you. Come get me!'

"So let's just assume that was her intention, and the weights made it easier for her to sink away from the group. Well, then what? For god sakes, she's drifting away! If that was her intention, go get her! Stop her!"

With his last two words Pearson races to one edge of the jury box and back, arms swinging over his head to show he is swimming. He abruptly drops his arms and looks up at the jurors:

"For god sakes, bring her back to shallower depths where she will be safer, then out of the water, talk to her on land, say 'hey Ms. Knowlton, what are you trying to do?' And get her some help! If this was her attempt to harm herself, it was only that, an attempt, and someone should have responded. And that someone was the only professional in the group, her divemaster. But she's too preoccupied with eels, so she doesn't even see this happening.

"OK, then let's have the backup divemaster go get her! Oops, one problem. There is no backup divemaster. No one's looking at the group of people. Only the fish are being cared for on this dive.

"But let me make it clear. I don't believe for a second that she killed herself or wanted to harm herself. The evidence is clear that she most likely suffered the condition our experts call nitrogen narcosis, and drifted away as a result. It's a recognized condition of deep diving.

"But, for the sake of argument, even if she wanted to harm herself by drifting away, that does not resolve the divemaster of responsibility. That does not resolve Ocean Realm of responsibility. For, as has been testified to repeatedly, all one has to do is grab hold of the sinking diver and bring them up to rescue them. Ladies and gentleman of the jury, anyway you want to look at it, this was a preventable death.

"Now we heard some more interesting testimony today about a waiver Jennie signed, in which she checked the box that she wasn't pregnant. The implication was that this girl was trying to put one over on the scuba outfit, in effect lying about her medical condition. Let's not make any bones about it, this is exactly what Mr. Kirkland wants you to believe, and is no doubt what he will soon stand up and tell you. That Jennie lied, tried to sucker in this company. Well, ladies and gentleman of the jury, let me deal with this head on!

"Imagine you're standing at the dive shop counter filling out forms with your boyfriend. It's a public place, and anything you check 'yes' to on that medical questionnaire -- somebody you've never met before, in a foreign country, in this scuba shop, is going to start asking you questions. Let's say you check yes to asthma on that form. Right away some clerk in the dive shop -- obviously not a medical person -- is going to start asking you, 'Oh, 'Mrs. Jones, how bad is your asthma?' or 'Mrs. Jones, do you have a doctor's letter to dive?' or, Mrs. Jones, you'll have to talk to our nurse before we let you on the boat' or something like that! In front of your boyfriend and any other people in the store, that's what's going to happen. And why the interrogation? Because they don't want to get sued if you die from an asthma attack! Makes sense to me.

"But this isn't asthma, this is an early pregnancy. And there is no evidence that early pregnancy is dangerous for divers. With millions of young women diving, it must be common for some of them to dive with early pregnancy. Women climb mountains when they're pregnant, they go skiing, they do lots of strenuous athletic activities. So it's no big deal. Maybe all the dive shop will ask her is to make sure she's not suffering from morning sickness when she gets on the boat. Not a big deal.

"But wait a minute. She hasn't yet told her boyfriend -- the father -- about the pregnancy! So she doesn't want to blab it all over this Cayman Island dive shop when she hasn't even told him!

"No sir, ladies and gentleman, Jennie did not, repeat did not, fly down to Grand Cayman Island with an intent to deceive any dive operator. She didn't even dream this was going to show up on the form she had to sign. But whammo!, there it is. She and Mr. Archer are filling out these forms in maybe 20, 30 seconds, quickly checking every 'no' box they come across since they're both healthy kids, and there it is, 'Are you pregnant?' It's just about the last item she comes to, they're both ready to hand the forms back in, so what's she gonna do? Stop right there and say, 'Oh, honey, by the way, something I forgot to tell you'? Or just hide the form so he doesn't see it, and wait for some clerk behind the counter to start asking her questions?

"Ladies and gentlemen, put yourself in that position, and think for a moment. You're caught off guard, you haven't even told your boyfriend or your parents, and now you're suppose to reveal your pregancy to a scuba clerk? And in public? How unfair! So you quickly check 'no' on the form and think no more about it. You're not hurting anybody, there is no attempt to deceive anyone. You just answer 'no' so as not to create a scene, so you can tell your boyfriend in private where it should be told, and you can share your happiness with each other, alone, not with some prying strangers in a dive shop, for god sakes! Yes, ladies and gentlemen, her motive was as simple and pure as that.

"Now I would probably be wasting my breath if Jennie had died because of that pregnancy, if her accident was directly or even indirectly related to being pregnant, because then we'd have a hidden condition that contributed to her demise. But her pregnancy had nothing to do with what happened on that dive. NOTHING. It was there, but it did not in any way cause or contribute to the accident. No one has claimed it did, and there is no indication that it played any role whatsoever.

"So you must discount completely any medical aspect of this pregnancy. It is immaterial simply because it didn't affect this dive in any way, shape or fashion. There has been no testimony that it did, and for one very good reason. Because it did not affect the dive in any way.

"So Mr. Kirkland is a smart lawyer, and has uncovered some interesting information, but nothing - repeat nothing - about this pregnancy or the way she filled out that questionnaire changes the fact that Jennie died due to negligence.

"Jennie's family deserves just compensation for their loss. For their double loss. No amount of money can truly compensate for the loss of human life, of course, but there must be some strong message sent to Ocean Realm and the professional scuba community that they are responsible for their divers, that they can't take a bunch of people a hundred feet down and not be responsible. You go down with nine divers? Then by god you should come up with nine divers! It's that simple. Ladies and gentleman, it is up to you to reach the proper verdict and find negligence against Ocean Realm International and its divemaster Charlene Marvich.

"None of us can put a price on precious human life. But in this case we must come to some monetary number; we are required to by the court. We therefore ask for an award, for the negligence leading to Jennie Knowlton's death, of two million dollars. That may sound like a lot of money, but it is a small price for a giant corporation to pay for negligence, for negligence leading to the loss of precious human life.

"Ladies and gentleman of the jury, I thank you for your attention."

Pearson returns to his seat and the judge motions for Kirkland to begin.

* * *

Kirkland stands and walks over to the jury box. He pointedly does not move Jennie's picture, but does not look at it either.

"Ladies and gentleman we have heard compelling testimony that Ms. Knowlton had a troubled past, with two previous suicide attempts. But we are not here to harm Ms. Knowlton's reputation, or to make the parents feel worse than they already do. We are here because of one reason and one reason only, because they have charged my client with negligence, and that is simply untrue. We must consider the issue of negligence in the context of what actually happened, and what actually happened is that Jennie went on that dive with a lot of extra weight, and in the space of less than two minutes disappeared from those around her. She left the group voluntarily, willfully. Not just left the group, mind you, but she dove down and away, making it impossible for anyone to catch her. That's what happened and that, ladies and gentleman, cannot be from negligence on the part of our divemaster or Ocean Realm International.

Let's talk about the testimony. You have heard compelling testimony that it's simply not possible to fall away as quickly as she did without clear intent. You have heard compelling testimony that she was breathing on the way down. Falling away quickly? Breathing on the way down? This is not what you would expect in someone affected by nitrogen narcosis, of someone who inadvertently drifts away from the group. No, this was a willful plunge to unrecoverable depths. A willful plunge.

Negligence? What negligence? Ms. Marvich did everything humanly possible to go after her, and only stopped when it was clear that she would become a second victim herself if she continued.

"Imagine you are being guided to the rim of the Grand Canyon. A party of nine of you, and a guide. The guide brings you to the very edge of the cliff and says, 'now everyone be careful.' That's obvious, of course, but you are determined to jump, and when the guide turns away for a moment, you jump. You don't slip, you jump. That is your intention. Is the guide negligent? Of course not.

"I could mention a dozen similar scenarios. Guides take people to potentially dangerous spots all the time. Mountain tops. Hot air balloon rides. Jungle safaris. Guides don't lock people up. They guide them, they show them, but they don't shackle them! If someone chooses to jump off a mountain top, or jump out of a hot air balloon, or walk into the path of hungry lions -- in other words if someone chooses to harm themselves when in the company of a professional guide -- we cannot, we must not call that negligence.

"We have heard testimony from Mr. Morgan that our divemaster was negligent, but in his own training tape he showed a divemaster performing just as Ms. Marvich did. His own training tape contradicted his testimony. It is simply impossible to watch every diver every second on every dive. That is not the standard in the diving community. I repeat: that is not the standard.

"We have also heard testimony that two divemasters should lead such a dive like this one. But that is also not the standard. Where would it stop? Why not three divemasters and a nurse back on the boat? Yes, you can always add layers of safety, including the safest thing of all -- don't go in the water.

"If you dive with the U.S. Navy your boat has a hyperbaric chamber and a doctor on board. That is the standard for the Navy, but it obviously doesn't apply to recreational diving. This was a moderately deep dive, but it was very calm conditions, very good visibility. There was no need for a second divemaster, and that is not the rule when conditions are good. So please don't be fooled. Plaintiff's attorney would like to create a new and higher standard by which to judge this case, but it is not up to the attorney or his paid expert to set any standard, it is up to people who actually conduct diving in the Cayman Islands. And that dive was handled completely according to the standards of the Cayman diving community. Completely.

"And yes, I would like to discuss their physician expert. We heard testimony from Dr. Bergofsky, a one-time doctor to the Navy Seals. Surely an impressive background. But then we learned that his opinion on the cause of two Navy diver deaths was not confirmed by the Navy itself! Then why did he tell us this information? To support an untenable theory? Why march in here and tell you fine people that Ms. Knowlton had nitrogen narcosis when he could not provide a single piece of evidence to support that theory?

"Yes, go back and compare the experts. But more importantly, compare what they said, how it stood up under careful cross examination, and I think you will see which has been the more credible testimony.

"And don't forget that Ms. Knowlton had a buddy on that dive. And while we are not here to criticize her boyfriend, just remember what the buddy is for. The time-honored practice is to have two people dive together, so that if one gets lost or goes astray, the other is there to help. That is buddy diving. Sadly, it failed here. But that failure is not the divemaster's fault. Don't blame Ms. Marvich. She did her job. In fact, she did her job very well. She cannot be logically blamed if a diver wants to harm herself, has pre-meditated to harm herself, and takes advantage of an opportune time to do so, when her dive buddy is thoroughly distracted.

"So Ms. Marvich showed them a moray eel, a fascinating creature, and everyone was enthralled. Everyone except Ms. Knowlton, who unfortunately had a different agenda. To get away and sink. To drown. She was a certified diver. She knew that no one could come after her. She surely knew that to go much deeper was suicidal for anyone on that dive. So all she had to do was get away, start her descent, and she would not be caught. She knew this, and now we know it also.

"She wasn't standing on the ledge of a tall building, so people could come and convince her not to jump. No, she was descending into unreturnable depths, an impossible situation for any rescue team. She certainly knew her air would be gone in mere minutes. It was a no-rescue situation, completely set up by Ms. Knowlton. Ladies and gentleman, this was no gesture! It was a conscious, pre-meditated act, and Ms. Marvich was the unfortunate divemaster on the scene. It could have been any of the fine dive professionals working on Grand Cayman.

"Now one last point, if you will bear with me. Mr. Pearson frets that I'm going to make all sorts of claims about Jennie hiding the fact that she was pregnant. But I'm not going to make any claims at all, for the facts speak for themselves. She got on that dive boat under false pretenses. Unfortunately I was not able to bring out the potential hazards to the woman and fetus of diving while pregnant, but we don't need that, for that is not the real issue now. The real issue is simply this: Jennie Knowlton signed on to dive with Ocean Realm International under false pretenses. Having done that, she then decided to harm herself on that last dive, and she did this knowingly, purposely, willfully.

"We'll never know why with any certainty. There was a troubled past, possibly a very troubled relationship with Mr. Archer. We'll probably never know all the nuances of what went on, why she did what she did. But this is real life, not a movie where everything is revealed at the end. And in real life sometimes you just don't get all the answers.

"But there is one thing I am absolutely certain of. There is no negligence here. There is compassion, there is sorrow, there is pity. But the evidence is overwhelming -- there is no negligence. I trust you will come to the same conclusion.

"Thank you for your attention during this long week."

* * *

The judge speaks. "Ladies and gentleman, it is time to begin your deliberations. The issue before you is one of negligence against Ocean Realm International and its employee, and if such is found you must determine a suitable monetary award due the family. There are no punitive damages at issue here. This means the court cannot punish the company for what happened, since there is testimony alleging fraud. The court can only assess a fine for negligence.

"I will explain to you the definition of negligence to be used in deliberating this case. It is an action or inaction that lead to the death of Jennifer Knowlton and, given the specific circumstances in this case, such action or inaction fell below the accepted standard. Let me repeat that. An action or inaction that lead to her death and, given the specific circumstances, such action or inaction fell below the accepted standard. "

In deciding on the accepted standard, you have heard the relevant testimony, and that is what you must base your decision upon. You may take as much time as you need to decide. I want to admonish you to please not let any feelings you may have toward either attorney sway your deliberations. Please concentrate only on the evidence presented in this court. The videos shown in this court, and the one taken at the pool, are available for your review if you wish.

"It is now 3 p.m. You may meet for the next two hours, and if no verdict is reached you will reconvene here tomorrow at 9 a.m. The bailiff will take you to the jury deliberation room. And remember, please do not talk about this case to anyone outside the jury room, until after the decision is announced."

Except for decision, this trial is over.