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 Product Liability

Concannon & Charles routinely handles product liability cases on behalf of manufacturers and sellers, particularly in the area of sports equipment.  Some of the firm's notable successes in products liability cases include negotiating a substantial settlement on behalf of an injured party in California (Raimo v. Uwatec), and successfully obtaining defense verdicts at trial in a $10 million case in New Hampshire (Barrett v. Ambient Pressure Diving, Ltd.); a $16 million case in Texas in 2013 (DeWolf v. Kohler), and the $25 million claim brought by the family of National Geographic cinematographer Wes Skiles in 2016 (Skiles v. Lamartek).

Although each case is different, they all involve one common rule:  We do not prepare cases for settlement, we prepare cases for trial.

Too many lawyers take cases expecting -- indeed, hoping -- the case will settle before trial.  Not us.  From the very first moment we examine a file, we are preparing for the presentation of the case to a jury.  To do otherwise would be foolish, and a disservice to our clients.  Every case will eventually come to an end.  We prepare cases to achieve the right result.

Representative Case

Barrett v. Ambient Pressure Diving, Ltd.

In a closely watched test case that was discussed around the world, David Concannon achieved a defense verdict for Ambient Pressure Diving, Ltd., the English manufacturer of a sophisticated piece of scuba diving equipment known as the Inspiration rebreather. Ambient was found to be not responsible for the death of Robert Barrett, a diver who died while using an Inspiration rebreather in Pennsylvania in 2002.

The Inspiration is a closed-circuit rebreather that recycles exhaled gas through a scrubber system, removing carbon dioxide and injecting oxygen at pre-set levels.  The device allows scientists, researchers, explorers, military divers and sport divers to reach greater depths than conventional scuba gear, stay longer, and not produce bubbles via exhalation. Ambient requires divers to undergo extensive specialized training and receive advanced certification before they are allowed to purchase an Inspiration rebreather.

Ambient is the world market leader in the production of closed-circuit rebreathers. Its rebreathers are used by institutions and individuals all over the world, including various militaries, universities, and production companies working for National Geographic, the Discovery Channel, the History Channel, Sky News and the BBC.

The case was brought by Stephanie Barrett, widow of Robert Barrett, who claimed that a design defect in the Inspiration rebreather caused her husband’s death.  The federal court jury, however, rejected allegations by Mrs. Barrett, advanced by her expert witness, Alex Deas, Ph.D. of Scotland, that a combination of electronic and software failures in the Inspiration’s patented redundant control systems stopped the rebreather from delivering oxygen to Mr. Barrett underwater, causing him to lose consciousness and drown.  Mrs. Barrett’s other claims of negligence, breach of warranty, and unfair and deceptive trade practices were dismissed for lack of evidence.

Robert Barrett's Inspiration Rebreather

After a four year legal battle and a two week trial, a jury in the United States District Court for the District of New Hampshire deliberated for just one hour before returning a unanimous verdict in Ambient’s favor on November 18, 2008.  The jury found that Ambient’s Inspiration rebreather did not have a design defect and it was not unreasonably dangerous for its intended use.

On January 5, 2009, the Court issued an Order denying the Plaintiff’s post-trial motions.  The Court’s Order stated:  “The verdict in this case was not, in any sense, against the clear weight of the evidence. In fact, the verdict was entirely consistent with the evidence presented, was plausible, and was predictable.  The jury was not required to accept Dr. Deas’ doubtful theories of causation when more persuasive expert opinion and factual evidence was offered in contradiction and the evidence as a whole plainly pointed to diver error as the most likely cause of Mr. Barrett’s tragic death.”

Mrs. Barrett did not appeal.

In October 2009, Mrs. Barrett was ordered to pay Ambient $23,303.34 as reimbursement for some of the costs the company incurred in defending against her lawsuit.  An amended judgment was issued in March 2010 adding accumulated interest to the award of costs, and Ambient began execution proceedings against Mrs. Barrett in Maryland.  Writs were served upon Mrs. Barrett and her bank, the judgment was recorded against her home, and a writ of garnishment of wages was served on Mrs. Barrett’s employer.  Mrs. Barrett paid $23,303.34 on September 7, 2010.  

 

Although it may seem harsh to collect costs from the widow of the deceased, Ambient and the firm believe it was appropriate in this case, where it was clear from the outset that Mr. Barrett’s death was the result of the deceased's error.  The firm pursues a policy of collecting costs and, if possible, fees expended in defense of frivolous litigation.  In fact, the firm recently received an award of fees and costs in a wrongful death and product liability case it successfully defended in Texas, including the costs incurred to successfully defend the plaintiff's appeal.

The firm originally represented 11 of the 14 defendants in the case.  All of the firm’s clients, with the exception of Ambient, were dismissed prior to trial.  David Concannon was lead trial counsel for Ambient.  He traveled to four countries and seven states to obtain evidence to present to the jury.  He became certified to use the Inspiration rebreather, interviewed dozens of witnesses, and he repeated Mr. Barrett’s last dive eight times.  The evidence uncovered during this extensive investigation was used to show the jury that a defect in the Inspiration rebreather did not cause Mr. Barrett’s death.  It was only through meticulous preparation that this $10 million claim was defeated.