The Wall: Chronicle of a Scuba Trial
Chapter 2

Trial, Day One - 18 Months Later

The first order of business on this Monday morning - before the trial begins, before potential jurors are questioned - are three defense motions for dismissal. Knowlton. vs. Ocean Realm International, et. al., is a civil case, for compensation only. The parents are the plaintiffs. Their charge is unambiguous: wrongful death of their 20-year-old daughter due to "reckless negligence." Since there is no criminal charge, there is no official interest by the state. The family seeks a monetary award, plus the kind of release that can only come with a guilty verdict against someone - even if a faceless corporation - who might be responsible.

To get to Judge Mabel Whittaker's Cleveland courtroom the case has taken the usual circuitous route such cases often travel, only perhaps a bit more circuitous, since Jennie died in the waters off Grand Cayman Island, an independent country of British ancestry 500 miles south of Miami. Considering the large volume of discovery since Jennie Knowlton's death 18 months ago -- investigations, interviews, pre-trial hearings, depositions, even an on-site visit to the underwater wall where she disappeared -- it seems unlikely any of the dismissal motions will prevail. By the day of trial it is palpably apparent in the half-full court room that inertia favors getting on with the case already.

In truth, defense does not expect any of their motions to prevail just now, but they will be established nonetheless, as a basis for later appeal (if necessary). The defense's tone is the assumptive 'your- honor-you-must-dismiss-this-case-it-is-without-merit' style peculiar to lawyers. (It doesn't hurt trying. The defense always hopes a cogent point will catch a sympathetic judge's fancy and result in a quick "motion granted, case dismissed.")

The three defense arguments are not without merit, and in various incantations have been invoked in other cases of similar stripe. Speaking for the defense team is lead council Morris Kirkland, a thin man with the body of a long-distance runner, in his late 40s and showing his age mainly by frontal balding.

"Your honor, we request dismissal of this case on the grounds that there is no body. Plaintiff has produced no physical evidence that one Jennie Knowlton is in fact dead, other than hearsay from people working in a foreign country. Young people disappear all the time, only to surface months or years later. It is entirely possible that Ms. Knowlton did not die in Grand Cayman, that what happened is some sort of prank, and that she is alive. Whatever happened to her, your honor, there can be no charge of negligence against our client without proof of demise, and to have that proof we need the body. We demand dismissal on this ground, and cite the appellate decision in Johnson vs. Dolphin Yacht Charters, Appeal from the United States Court for the Western District of Pennsylvania (Civil No. 94-4321), to wit:

Whereupon Mr. Kirkland hands the judge a neat sheaf of papers, which encompass the cited decision.

Plaintiff's lead attorney, senior partner in the small Cleveland personal injury firm Pearson, McDermott and McFall -- Chester Pearson, tall, fiftyish, well tanned - stands to speak.

"Your honor, this is a bogus defense request and an insult to the Knowlton family. Their daughter Jennie has been certified deceased by the appropriate authorities of the Cayman Islands and we have the death certificate, which will be entered into evidence. She died on July 15, 1996. Moreover, your honor, evidence for this death can in no way be called 'hearsay' We have eyewitnesses to the exact circumstances that led to her death, and these eyewitnesses include both employees of the company and U.S. citizens vacationing on the island. The circumstances are such that her body can never be produced, at least not within the constraints of technology and resources available to the Cayman government.

"Furthermore, your honor, the case of Johnson vs. Dolphin World was entirely different from the one before the court today. In that case a man fell overboard on a yacht in the Caribbean Sea, and there were no eyewitnesses. The man's insurer refused to pay the death claim because no death certificate was issued. His wife sued the yacht company and lost because she could not prove he was dead, and there was at least some circumstantial evidence he was not. In fact, your honor, it was reported in the newspapers shortly after the appellate decision that he was alive, and that the death had been faked.

"In our case, your honor, there is no life insurance claim and we have eyewitnesses to the tragic event. We know where Jennie's body is, but it is unfortunately not recoverable. To dismiss our claim on the grounds cited by defense would be a gross injustice, your honor, and deny due process to the aggrieved parents." Whereupon Mr. Pearson also hands the judge some papers, including the cited death certificate.

Judge Whittaker is in her mid 40's, short, brunette. She has before her two of the sharpest lawyers in the business of wrongful-death civil litigation, and clearly relishes being in control. She disdains the poker face mien adopted by some of her male colleagues. Instead, she listens with emotion, raising her eyebrows when something sounds startling, or out of order, or ridiculously exaggerated. Her eyebrows raise more with defense than with plaintiff arguments. Hardly does Pearson say "aggrieved parents" then judge Whittaker responds:

"There seems to be sufficient evidence that Ms. Knowlton did in fact die on the date and in the manner indicated. If any evidence to the contrary surfaces during the trial, the court will take it into consideration. Therefore, defense motion is denied."

Kirkland is unfazed, and is ready with his second argument. For effect, he pauses about 15 seconds, straightens his tie and shuffles some papers at the table, then approaches the bench. "Your honor, we have a second motion for dismissal. This alleged disappearance took place in a foreign country, Cayman Islands, and must be tried there under British authority, not in the U.S." (Not that defense counsel really wants to try the case in Grand Cayman, but granting this motion would make it far more difficult for plaintiffs to mount their case; they would have to hire new lawyers and pay them by the hour, regardless of the verdict. British law does not have a U.S.-style contingency fee system.)

"Your honor," Pearson interjects, "Ms. Knowlton died while she was a guest of Realm International, indeed while scuba diving with the very dive shop they operate upon their premises." Pearson then hands the judge a pile of credit card receipts Jennie and her boyfriend had generated over the three vacation days before her demise, including receipts for the hotel and the scuba diving trips.

Kirkland retorts: "Your honor, we don't dispute that Jennie and her boyfriend were guests at the resort, or that they dove with an operation run by the company. Those facts, however, are way beside the point, which is that this court has no jurisdiction over the alleged incident. Notwithstanding the alleged disappearance, British and U.S. admiralty law -- established over two centuries -- has clearly upheld the sovereignty of each nation to try the cases that originate in either nation, irrespective of the citizenship of the people involved. To prove this point I will cite the appellate case of Cockroy vs. Regency Cruise Lines, which also involves a diving incident in Grand Cayman Island. The decision was handed down by the Southern District of New York, in 1985. Since the case went no further, the decision stands." Kirkland begins reading from the decision:

"Now your honor, before Mr. Pearson objects," Kirkland rushes on, "let me add that we don't want to deny the Knowlton family their day in court. But the hotel that Jennie and her boyfriend stayed in is in fact a registered Cayman Island business, one that pays taxes to the Cayman government. Irrespective of its association with the parent organization here in the U.S., this 1985 appellate decision clearly states that the proper venue for this claim is back in the Caymans, not in the U.S."

"Your honor!" Pearson rises, prepared for instant rebuttle.

"Just a minute," the judge rebukes. "Mr. Kirkland, are you finished with this part of your motion?"

"Yes."

"OK, Mr. Pearson, you may continue."

"Your honor, Mr. Kirkland is mixing apples with cumquats. The 1985 decision he quotes dealt with a diving outfit in no way controlled by Regency Cruise Lines. There was an arm's length business arrangement whereby Regency collected the money and kept a percentage as a booking fee. In the Knowlton case both the hotel and the dive shop were and are owned by the same corporation. The fact that Realm's operation on Grand Cayman pays taxes to the Cayman government is immaterial. It does not affect ownership and it does not affect culpability, your honor."

"I beg to differ!" thunders Kirkland, who is now on his feet. "Ownership is not the reason the appellate court overturned the lower decision in Cockroy. The reason is location. The accident took place in Cayman, and the court recognized this fact. That's why the trial was remanded to Cayman, not because of ownership, your honor."

Judge Whittaker has not read this decision, and now has two plausible arguments before her. "The court will take a 10 minute recess," she says, "while I have time to read the decision." She retires to her chambers.

Fifteen minutes later she returns. It seems that the 18 months of discovery, the legal legwork that has occurred to this point, the anticipation of all participants -- and perhaps judge Whittaker's own curiosity -- have created an inertia that will make this case go forward.

"I must disagree with defense in this instance," she begins. "The appellate decision makes specific mention of the fact that Regency Cruise Lines and Jeff's Dive Shoppes [the outfit Cockroy dove with] were separate companies, with different insurers and different governing boards. In the case before this court today, the parent company and the Cayman subsidiary have the same insurer and the same governing board. It seems to this court that refusing jurisdiction is both unnecessary and counter-productive to the legal process. It is the court's opinion that jurisdiction in this case is both proper and established. Motion denied."

Only about an hour has passed so far. The audience -- mainly Jennie's parents and relatives, a reporter who will write about the case, plus bailiff and court stenographer -- are perhaps a little bored, and want the main event to begin already. But there is one more motion to present, to at least get established on the record.

"Your honor," Kirkland begins. "If in fact Jennie is deceased, the evidence is overwhelming that she died an accidental death, and that there are no culpable parties. There can be no wrongful death claim in an accidental situation involving scuba diving, your honor. Scuba is an inherently risky sport, more so than laying on the beach or snorkeling. Furthermore, she signed a waiver for all accidents, acknowledging the risks involved, and I have a copy of it here (he places it before the judge). I quote, from the bottom paragraph:

Looking up at the Judge, Kirkland finishes: "We therefore request that this case be dismissed on grounds that there is not a shred of evidence for negligence, that Jennie willfully undertook a risky sport, and in fact signed a waiver acknowledging the risks involved."

Jennie's mother sobs from the back of the room. She is consoled by Jennie's father. Both are in their late 40s, and dressed in grey and black. You could not know anything about this trial but would be able to pick them out as a couple who have suffered some kind of horrible loss.

"Order, please," from Judge Whittaker. She is gentle, recognizing the emotive power of Kirkland's statements. The crying is muted and Kirkland continues.

"Your honor, we also submit before the court the coroner's assessment from George Town, Grand Cayman. And I will quote from this document:

Pearson rises abruptly. "Your honor, this is disgraceful, and I apologize for Mr. Kirkland's gracelessness before the Knowlton family. The girl is deceased, and to imply that her signature on a pro forma waiver absolves the company of negligence is an insult. Obviously her death was an accident. We are not here to press criminal charges, for god sakes! We are here to prove negligence, your honor. Mr. Kirkland is here to defend that charge. That's what the case is about! To dismiss because it was an accident is to deny due process!"

"Then what is the meaning of a waiver such as the girl signed?" asks Judge Whittaker. For the first time there is a trace of doubt in her voice, as if perhaps Kirkland has a point after all.

"Your honor, that question has been thoroughly explored in numerous cases involving scuba divers, and there are at least two appellate decisions. The basic reason for the waiver is to remove true nuisance suits from litigation; a diver scratches herself, or gets bitten by a shark, or develops the bends -- in other words, conditions that may be construed as an inherent part of diving. There is no basis for a lawsuit in those cases. An injured diver knew the risks, took the risks, and there is no negligence. However, in the 1991 case of Kutinsky, et. al. vs. Largo Sea Charters, which took place in Monroe County, Florida, the state appeals court made clear that the waivers didn't apply. In that case a dive boat sunk because of improper maintenance, and two divers were badly injured. They sued and defense claimed that the divers' waiver signatures invalidated the suits. The claimants won in court, and on several appeals the decision was upheld. I quote from the Florida State Supreme Court, February 24, 1995:

Pearson places the appellate decision on the judge's growing pile of papers. "Furthermore, your honor, if I may continue for a minute, less than an hour ago my esteemed colleague was arguing that the girl was not dead, that there was some prank involved. Now he's implying -- no, in fact he's stating -- that she suffered an accidental death. Yes, I believe he did use the "d" word, your honor. Clearly, the only prank in this case is the contradictory argument presented by Mr. Kirkland himself. In any case, your honor, we are fully prepared to make the argument that Jenny would be alive and well today but for the negligence of Realm personnel. Her signature on a piece of paper cannot be used to absolve Realm of negligence."

"I agree, Mr. Pearson. Motion denied."

Kirkland is not dismayed. Each argument is made independently of the others, and can be appealed on its own merits.

"Your honor, Mr. Pearson's protestations notwithstanding, let it be stated for the record that an establishment of accidental death with prior signature on a waiver countermands any award for damages or compensation."

"Thank you, Mr. Kirkland. Do you have any other arguments before this court, before we proceed with jury selection?"

"No, your honor."

"We'll take a 10 minute break."

* * *

Forget Court TV. Most trials are tedious, often boring affairs. Very few trial decisions lead to any legal precedent, and most are just humdrum affairs of interest only to the lawyers and litigants. Even the trials that excite the public - witness the OJ case, the Oklahoma City bombing - are often like turtles at a road crossing; it'll get there, but when?

And civil trials are worse. Their outcome is apt to be nothing more than the exchange or non-exchange of money. Some judges bridle at the use of their courtroom for the attempted transfer of wealth, particularly when the case won't make the newspapers or affect the future of the civilized world. So it is routine for most judges during a civil case to intersperse non-civil or felony matters, even mundane ones (for a judge) like a drug sentencing, a parole violation, or a speeding ticket.

Judge Whittaker has many on-going felony cases that require before-the-felon decisions, and she will likely insinuate them into Knowlton vs. Ocean Realm case when appropriate. Anyone in the courtroom may watch these proceedings, which begin right after the break. Without announcement, a parole violator is escorted in by a deputy; the felon is in chains and wearing the orange jump suit of a county prisoner. With his court-appointed lawyer beside him, Judge Whittaker admonishes him for violating parole (he was arrested for possession of an unlicensed weapon). His lawyer mentions "extenuating circumstances that have been presented before this court." There is some more given and take, and the prisoner is sentenced to one year in jail. The deputy escorts him away.

Again without announcement, another felon is brought in, similarly shackled and clothed. He is a convicted drug pusher, who comes before the judge with his lawyer (not court-appointed). He has pleaded guilty and his lawyer asks for mercy from the court. The judge reminds the attorney and his client that he has a previous drug-related conviction (for possession) and sentences him to 2 years in prison. Two people in the gallery wince but say nothing. The prisoner is led away.

Judge Whittaker then apologizes to the lawyers for the delay, and asks her bailiff to call in the jury pool one by one.

* * *

Lawyers for each side have three dismissals of potential jurors, and each side uses all three. Defense dismisses one potential juror because, on questioning, he admits to having once sued a neighbor. The neighbor ran over the would-be juror's dog, which was unleashed and laying on the neighbor's driveway. In other words, hyper-litigious. Defense also dismisses a woman who lost an 18-year-old daughter to a rare disease. Best not to chance seating an overly sympathetic juror.

For its part, plaintiff's counsel dismisses a female nurse who seems perhaps a bit too opinionated about medically-related issues. Just a hunch, of course, but she's gone. They also dismiss a man who is vice-president of a small manufacturing company. He clearly is not happy about being selected for jury duty, and comes across as anti- anything that interferes with business and making money.

And so it goes. Selecting jurors is often intuitive, and the lawyers intuit as best they can. When jury selection is over a panel of eight people is seated, four men and four women. Only two have ever engaged in scuba diving, and only one has been under water within the past three years. Their ages range from 27 to 68.

* * *

In trials plaintiffs must make their case first, and then defense can cross examine plaintiff's witnesses. Then defense calls its experts, who can be cross-examined by plaintiff's attorney. It's a formula for which there are a thousand variations.

Judge Whittaker's courtroom is located in the Old Cuyahoga County Courthouse, an early 20th century (1905-1912) Beaux-Arts design across the street the from the raw, vertical barren-box "Justice Center Complex" built to replace it. The old courthouse features an ornate, columned facade that pleases the eye, unlike its ugly modern neighbor which features only a monotony of windows separated by featureless concrete.

The differences are more striking inside the two buildings. The old structure's grand lobby, with its gently sloping central staircase, contrasts with the Justice Center's sterile box-like interior. Ceilings in the old building's courtrooms are 20 feet high, and where ceiling meets wall are carved moldings of deep chestnut. The grandeur is somewhat faded after a century of wear, but ask any lawyer or judge -- they usually prefer the Old Courthouse to the lifeless rooms across the street.

Judge Whittaker's bench -- a raised dias -- is at the back of the courtroom from the main entrance. To its immediate left is the witness chair, and to its left and in front is the jury box. The box holds 20 seats, but only 10 are occupied for this trial (two alternates). Opposite the jury, on the judge's right hand side, sits the court reporter with her stenography machine. In the middle of the room are two long tables. At one of the tables sit defense attorneys (Kirkland and an associate) and at the other table sit Plaintiff's attorneys (Pearson and an associate). The Knowltons were invited to sit at Pearson's table, but they declined, preferring to watch proceedings from the front of the room, in the viewer gallery. Also in the gallery are Jennie's older sister; a Cleveland Plain Dealer reporter; a representative of Ocean Realm International; and two or three strangers, people who are in some way connected with the litigants. Some will no doubt come and go during the trial.

Also in the room are two big easels containing removable posters. On one of the easels is a head and shoulder studio picture of Jennie Knowlton, in color and unframed. It will remain throughout the trial, a constant reminder of the deceased. On the other easel are a stack of poster-sized drawings. The front poster is a professional line drawing of a female scuba diver dressed with all her equipment.

The first plaintiff's expert is Giles Morgan, a dive instructor with Scuba Unlimited of Miami, Florida. Of medium build, with a slight paunch, he wears a deep purple shirt and light grey sport coat with yellow tie and checkered cotton pants, a jarring selection in winterized Cleveland. But he is dressed neatly, and the style is interesting. Morgan takes his seat, swears an oath to tell the truth, and Pearson begins his interrogation.

"Please state your full name and address, and your age..

"Giles Girard Morgan, ------ st., Miami, Florida. I am 38."

"And your occupation, Mr. Morgan?"

"I'm a master scuba instructor."

"Will you please tell the jury what that means, master scuba instructor?"

"Yes. I am qualified to teach scuba diving at the entry level, that is for people who have never dived before. And I am also qualified to teach advanced diving courses, to people who want to become professionals in the field."

"Does that mean you teach the teachers?"

"Yes, you could put it that way. I teach the people who will certainly become the teachers."

"So if I have never been scuba diving before, and want to learn, I could come to you for lessons?"

"Yes. Well, actually you would come to our scuba shop, and I or one of a dozen other people could give you the standard scuba entry course. We call it the basic certification course."

"I see. And if I already know how to dive, but I want to become a scuba teacher, a professional in the field, you could teach me?"

"Yes, but again, there is a standard instructor course, and I am one of several who would be involved."

"But there is a difference between, let's say, an ordinary scuba instructor, and one who teaches the teachers?"

"Yes, there are perhaps 20,000 regular scuba instructors in the country, but only about 350 master scuba instructors."

"Mr. Morgan, how long have you been a scuba diving instructor?"

"Fifteen years."

"And how many dives have you yourself made?"

"I estimate about 9,000."

"Is that a lot?"

"Yes, I would say so. Few people I know have done more."

"Well tell me, for the typical recreational diver, someone who just goes on vacation to dive, how many dives do they do?"

"You mean per year?"

"Yes, just to give us an idea."

"I would say the typical recreational scuba diver does maybe 10-20 dives a year, that is, when they are active divers. Many divers after becoming certified drop out and don't do any diving at all."

"OK, so 9,000 is really a lot of dives. I see. Mr. Morgan, most of our jury has never been scuba diving at all. Could you please explain, briefly, what it means to scuba dive? I believe you have brought some teaching aids for that purpose?"

"Yes, that's correct. May I go to the posters?" The judge nods yes, and Mr. Morgan gets up and walks to an easel which he moves so that it can be seen by all the jury. Morgan's style and rhythm show at once that he is a good teacher, someone who has explained this material many times before. He takes out a pocket pointer.

"This drawing of a scuba diver looks like she's carrying a lot of equipment, but its all essential, and when you get used to using it, it's not really a problem. First, to go under water and be able to breathe, you need to carry your own tank of air." He points to the tank on the diver's back.

"It's heavy on land but is weightless under the water. Then you need a way to get the air to your lungs, so we have a hose connected to a mouthpiece," and he points to this apparatus. "There is some more equipment you need. To swim under water you need fins on your feet. To help regulate buoyancy under water you wear an inflatable vest, one that can be inflated or deflated with two simple buttons that the diver controls. One lets air in and the other lets air out. We call this vest a buoyancy compensator or BC for short.

"To keep warm in the water you may need a wet suit that covers most of the body. Finally, to be able to see underwater you need a face mask that covers your eyes and nose. This picture shows all the equipment in place, so this diver is ready to jump in. With this equipment, anyone with healthy heart or lungs can go under water and breathe comfortably for a half hour to an hour, depending on how deep you go."

"Mr. Morgan, what keeps the diver from sinking once she gets into the water?" Pearson has never dove before, and this question sounds logical to him. But mainly he wants to tell the jury how a diver controls depth under water, and this question is Morgan's lead in. Unfortunately in our legal system jury members cannot ask questions. While this could conceivably be cumbersome if uncontrolled, written jury questions funneled through the judge would help facilitate understanding of unfamiliar topics. Instead, jurors have to rely on the lawyer's questions to make sure the expert's explanation is adequate. Jurors are often frustrated because a simple but important question goes unanswered, despite the expert's best intentions.

"Actually you want to sink. In fact, I neglected to mention the lead weights that every diver wears on a belt, that allow her to sink below the surface. These lead weights - usually two to four individual weights - add up to anywhere from about 4 to 10 pounds, and are worn in a belt around the waist. Without these weights, you would actually be stuck on the surface; it would be almost impossible to go down and stay down wearing all this equipment. The reason is because the wet suit and BC vest make you float; they have a lot of buoyancy. So by using lead weights, when you first jump in the water, if there is no air in your vest, you can easily control your buoyancy, and if you want to dive all you have to do is empty your lungs and you'll sink. That's called being neutrally buoyant. Then, if you sink too much, or go deeper than you want to go, you can simply kick yourself up or, in some circumstances, put some air in your vest -- that will make you rise up a little. All this is actually something we teach divers, and they learn how to control their buoyancy over time."

"Just so the jury understands, buoyancy means what?"

"It just means whether you tend to rise or fall in the water. Some people naturally sink when they try to float in a pool, so they are negatively buoyant. Other people naturally float in a pool, so they are positively buoyant. The same thing holds under water. And under water, if you stay at a certain depth without going up or down, we say you are neutrally buoyant."

"So during a dive, you are neutrally buoyant?"

"Well, that's the ideal, but it's hard to achieve. You sort of want to be close to neutrally buoyant, but that takes some experience. Most novice divers tend to have problems with buoyancy, and they are negatively buoyant at the start of the dive and then when they use up their tank air, positively buoyant at the end."

I see," says Pearson. "Well, would being negatively buoyant make a diver sink further than she is supposed to go?"

"Yes, but again, that's easy to control. When you see yourself falling, all you have to do is kick yourself up, or in some cases add a little air to your BC vest, and you will stop falling."

"Well, then, what could make a diver fall much lower than she is supposed to?"

"Lots of things could. First of all, if you don't check your depth gauge, you can go deeper than you intended and not even know it. It's difficult to know how deep you really are at any one time because there is no visual frame of reference; you can't tell by looking up at the surface or at anything around you. There are no street signs, as it were. For this reason all divers carry a depth gauge to tell them how deep they are at any instant. If you ignore the gauge it is easy to go deeper than you intended.

"Second, you could have an accident, like a heart attack, and simply lose control of yourself. In that circumstance you are likely to sink and drown."

"Mr. Morgan, would you expect heart attack in a 20-year-old woman?"

"OBJECTION!, your honor," Kirkland says. "Mr. Pearson is leading the witness. And the witness is not a medical expert."

"Overruled. Continued."

"I'll ask it again, Mr. Morgan. Would you expect heart attack in a 20-year-old woman?"

"Well, no, I wouldn't. I've never seen that or read about it. I would think someone would be in their 40's or 50's, at least, to have a heart attack while diving."

"OK, what else would cause someone to sink?"

"Well they could get an air embolus."

"What's that?"

"It's like a clot in the blood system, but it's really a giant air bubble. It can go to your brain and cause a stroke or make you lose control."

"Is that common?"

"Common? No, it is uncommon, but it's one of the things that can happen."

"What else?"

"Well, they could simply become confused from nitrogen narcosis."

"I'm sorry, Mr. Morgan, could you spell that for us. Maybe you should write it on the poster." This has all been rehearsed, of course, but for the jury it is made to look spontaneous. Morgan writes 'NITROGEN NARCOSIS' on the poster, just above the scuba diver's head.

"What is that?"

"Nitrogen narcosis is a condition that comes from too much nitrogen in the blood and it can make you lose concern about what you are doing. We increase our nitrogen levels as we dive; the deeper we go the more nitrogen accumulates in our blood. This extra nitrogen can affect the body's central nervous system, the brain and spinal cord. Some people liken it to being inebriated, and call it the "martini effect." Sort of like having two or three martinis and then acting foolishly because you're not in control."

"So it's like being drunk?"

"Yes, that's really the best analogy. One diver suffering the martini effect might take his mouthpiece out and do a somersault, and next thing you know he drowns."

"But doesn't everyone who dives have a high nitrogen level?"

"Yes, it comes from breathing in air at greater than normal pressures. But nitrogen narcosis only occurs after certain depths are reached, and only to certain people."

"Well, how common is this nitrogen narcosis?"

"It's quite common actually, but no one knows exactly. Lots of people report getting a little confused or addled at depth, but when they ascend the feeling goes away completely. That's the nice thing about nitrogen narcosis; it is cured by ascending."

"So would you say it happens half the time, or a quarter of the time?"

"Well, nitrogen narcosis is uncommon to non-existent on shallow dives. Probably never occurs at a depth of 50 feet or less. You begin to see it in some people at 70-80 feet, and it becomes really noticeable beyond 100 feet."

"If someone was diving to 80 feet, then, and all of a sudden that person kept going deeper, could that be a nitrogen narcosis effect?"

Kirkland rises. "OBJECTION! Witness has no basis for answering that question."

"Overruled. Continue." The judge is listening intently. The witness is credible and -- something often rare in the courtroom -- he can nicely explain things to lay people.

"Well, yes. That certainly could be an explanation."

"Would that be the most likely explanation?"

"Well, it depends on the circumstances."

"Mr. Morgan. You have been called as an expert witness in this case, and as an expert, have you had a chance to review the records extant on Ms. Knowlton, specifically the records relating to her diving death on July 15, 1996?

"Yes, I have."

"Have you reviewed the newspaper accounts?"

"Yes, I have."

"Have you reviewed the Cayman Island Coroner's report and the death certificate?"

"Yes."

"And have you reviewed the deposition transcripts taken of the people who dove with her that day, plus the deposition of Dr. Bergofsky and Dr. Martin?"

"Yes, I have."

"Having reviewed all this material, do you have an opinion with reasonable certainty, as to the likely, the most probable cause of her death?"

"Yes, I do."

Kirkland jumps up, animated. "OBJECTION, your honor." Witness is not qualified to opine on the cause of death in this case. He was not on the scene, he was never asked to formally investigate, he has filed no medical report and, I might add, we already have a formal coroner's report. I move that last question be stricken from the record."

"Your honor," replies Pearson in an even tone. "My witness has every right to an opinion. That's all I am asking him for. I am not asking him to file a formal report for the Cayman authorities, to alter the death certificate, or to create events that didn't occur. I am only asking him for his opinion. We are all entitled to our opinions. Mr. Morgan is an acknowledged expert in the field of scuba diving, and this court is legally entitled to hear his opinion of how Ms. Knowlton died."

"Overruled."

"Thank you. Now Mr. Morgan, what is your expert opinion as to just how Ms. Knowlton died on July 15, 1996?"

Morgan again turns to speak directly at the jury, just as he was coached to do for this question. But he is a professional and really doesn't need coaching.

"In my opinion she developed nitrogen narcosis at depth, and so became slightly confused, at least to the point that she did not check her depth gauge. If I can show this second poster," and he removes the first one to reveal a cross-sectional drawing showing a diver at various depths, "as she went deeper the martini effect grew worse and she continued to fall away. As you go deeper in the water you tend to develop less buoyancy, which means the deeper you go the more quickly you will sink, unless you kick yourself up or put air in your vest. Here at 30 feet, where the sea floor drops off to this cliff, there is no danger of narcosis. Even at 60 or 70 feet [he points] there is likely little danger. But at 80 feet you could expect to see some narcosis develop. I understand the divers went to 80 feet, and that was the last time, actually, anyone saw Jennie with the group.

"With nitrogen narcosis you are likely to take no action as you lose your depth control. I believe this is what happened to her. She had the narcosis set in at 80 feet or so, could do nothing to bring herself up, and fell away."

"When you say could do nothing and fell away, could you be more specific?"

"Yes," and now he removes poster number two to reveal poster number three, a cross section of the dive site from the surface to several thousand feet. Whereas the previous poster diagramed the dive path from surface to only 80 feet, now the jury sees the enormity of the dive scene. In this small scale version of the wall, the guided dive occupies only the first few inches. "Because of the nitrogen narcosis she did not feel any danger as she fell, did not feel compelled to rescue herself, to get back to the group. Quickly, as Ms. Knowlton fell along the wall, her body went way beyond the level that anyone could safely retrieve her. The deepest anyone could safely go would be about here [he points to a mark representing 150-foot depth]. I estimate that in about 2-3 minutes she was well beyond that mark. Based on the geography of this particular Cayman wall, I believe her body rests somewhere at two and five thousand feet depth.

"Mr. Morgan, is her body retrievable?"

"Well, you would need some awfully sophisticated equipment to get it. I don't mean to be crass, but if this was a nuclear missle, the Navy would send down a human powered submarine and retrieve it, in the name of national security. For example, with the Alvin submarine, the one that explored the Titanic, they could get it. So, within the realm of available technology, the body is retrievable. But as a practical matter, the body will stay there, unless some military organization like our Navy or the British Navy wants to make this a priority project."

"So in your own mind you are satisfied that she died somewhere along this wall?"

"Yes, definitely."

"In your opinion, was this accident preventable?"

"Oh yes, definitely."

"How so?"

"Easy, I'm sorry to say. The condition of nitrogen narcosis is cured by ascent. All someone had to do was grab on to her and bring her up. In fact, you don't have to come all the way to the surface; sometimes just 20 or 30 feet higher will do the trick. The nitrogen dissipates and the victim is himself again. Or herself. With ascent you're cured. It's that simple, really."

"And who should have done that? Who should have brought her up?"

"Well, whoever was deemed responsible for the dive, for watching after her."

"What about her dive buddy? Shouldn't he have pulled her up?"

"Well, obviously if he saw her sinking he should pull her up, but not if doing so would endanger his own life."

"But isn't the buddy responsible for his partner's welfare?"

Pearson is asking an obvious question, one he knows the jurors must be thinking. He is asking to get it out of the way.

"Well, we teach the buddy system, everyone does. But it's not that the buddy functions as a lifeguard. As a professional in the field, I don't assume there is any legal responsibility attached when we buddy people up. It's just a safety mechanism, in case one of the pair runs out of air, or needs help, there is supposed to be someone nearby to lend a hand. So yes, the buddy should help, but we don't think of the dive buddy as a babysitter or a lifeguard type of function."

"Well, what about the divemaster. Should she have pulled her up?"

"Well, yes of course."

"But what if the divemaster didn't see her sinking? How could she pull her up then?"

"I'm sorry, I don't understand your question."

"What if the divemaster didn't see Ms. Knowlton sinking. Is she then responsible?"

"I see. There's a contradiction there. If she's the divemaster then she's responsible, so obviously she should have kept this from happening."

"How so?"

"Well, people don't sink instantly. You don't have a rocket strapped to your back. It takes time to sink. So a divemaster with nine divers should always know where his or her divers are, and be able to act quickly if one goes astray. She shouldn't be showing them eels on a wall."

"In your opinion, then, if such did happen -- a diver went astray -- then the divemaster would be responsible?"

"Well, yes, unless it was completely out of the divemaster's control."

"How so?"

"Well, I suppose if a great white shark came from behind and grabbed one of the divers, there is really very little the divemaster could do about it. But otherwise, things like nitrogen narcosis, or someone getting the bends, the divemaster has to be aware of and be prepared to act. And act quickly."

"How would you have handled this dive?"

"I wouldn't have."

"What do you mean."

"I wouldn't take 9 divers down by myself on that wall."

"Why not?"

"Too many. Anything over six and you need a second divemaster to go along. I'm afraid this lone divemaster was overworked and the end result was terrible."

"Is that a rule, at least one divemaster per six divers?"

"No, it's not a rule. On a shallow dive you can take a bunch. But at depths of around 100 feet, where you have to watch every diver closely, you need two divemasters or two professionals if you're going to have more than six divers. It's more like common sense."

"Mr. Morgan, you teach divemasters?"

"Yes, I do."

"So you are familiar with the standards for being a divemaster?"

"Yes, in fact I helped to write some of them."

"In your opinion did the divemaster on this trip stray from those standards."

"Yes, unfortunately I believe she did, but she is not completely to blame?"

"How do you mean?"

"Well, as I said, they sent her down by herself with too many divers. This accident wouldn't have happened if there had been a second divemaster behind the group, looking out for all the divers. The absence of the second divemaster is unlikely to be her fault, and is surely the responsibility of the company she worked for. However, the fact that she was alone meant she should have stayed behind the group of divers, not in front of them against the wall. It's a matter of body positioning on deep dives, and when you're the only guide you always put the divers between you and the wall, unless there are two divemasters."

"In your opinion did the lone divemaster's actions or inactions constitute negligence on this dive, in regards to the deceased Jennie Knowlton?"

"Yes, I believe there was negligence in this instance, for reasons I've just explained."

"Thank you. No further questions."