A Greenville SC jury has
rendered a $2 million verdict
against Uwatec, the Swiss manufacturer
of dive computers, for
“conspiracy, slander, and outrage”
in a suit filed by two former
employees that has called into
question the safety of Uwatec
Aladin Air-X Nitrox model dive
computers manufactured prior to
1996. Uwatec has filed an appeal
in the case. Officials are also
investigating whether Uwatec’s
president and CEO, Bret C.
Gilliam, obstructed justice,
committed perjury, and then
directed an employee to commit
perjury during the trial.
Problems began when Uwatec
fired its U.S. sales office managers,
Frank H. Marshall and Patricia
Daugherty, in April, 1996, purportedly
because the office had lost
money and the company had
decided to hire a new management
team. A month later, Uwatec filed a
report with the Greenville SC
sheriff’s office accusing Marshall
and Daugherty of breach of trust
and computer crimes, then said it
had determined that the acts had
been committed by another
employee and it had decided not to
press charges.
Marshall and Daugherty,
however, contend that they were
“set up” and that they were not
fired because of wrong-doing. (In
fact, Marshall told Undercurrent he
was an “employee they offered
their job back to,” and that this
fact was a matter of court record.)
Rather, the employees say they
were fired because they pressed
for a recall of up to 180 pre-1996
Aladin Air-X Nitrox dive computers
that they believe are defective.
They allege that an algorithmic
error in the computer could
result in an artificially low calculation
of the user’s blood nitrogen
levels. (According to the
plaintiff’s expert witness, Dr. Bob
Ling, “when the Nitrox computer
is set to dive at whatever EAN%,
e.g., 40% O2, the algorithm
continues to calculate at that
percentage during the surface
interval (instead of the correct
21% for air).... Over several
repetitive dives, the cumulative
effect could easily lead to decompression
illness if a diver takes the
reading to be diagnostically
correct.”) Ling reports that he tested a purportedly defective unit
and a unit manufactured in
March of 1996 in a “pressure pot”
and on independent dives on a
live-aboard trip doing four or five
dives per day. He states that his
“‘lab test’ (after 3 repetitive dives
of 30 minutes with 1 hr. surface
interval each) produced a desat
discrepancy of 13 hrs. and a no-fly
discrepancy of 8 hrs. The real
dives on the live-aboard produced
much larger discrepancies
cumulatively after 4 days.” Uwatec
contends that Ling acknowledged
that “a deviation in one unit was
in no way proof that an entire
series of units have the same
deviation” and that “there were
many different reasons deviations
might occur in dive computers.”
Uwatec states that it stands by
the safety record of the Aladin Air
X Nitrox and that it “has never
received any report, notice,
complaint, correspondence or
other information indicating any
potential defect in the Aladin Air
X Nitrox units aside from the
allegations of two terminated
Uwatec employees. Furthermore,
Uwatec has conducted comprehensive
in-house hyperbaric
chamber testing on several of the
allegedly defective units and these
test results indicate no defect in
the product.” One of the plaintiffs
contacted the Compliance Board
of the U.S. Consumer Product
Safety Commission regarding the
possible defect, and Uwatec
responded to the complaint by
furnishing their test results and
stating that they have received no
other complaints about the units.
To date, Uwatec has not received
a response from the Commission.
The perjury allegations stem
from Gilliam’s testimony at the
slander and conspiracy trial that
Uwatec had no pre-1996 Air-X
Nitrox dive computers for the
plaintiffs to test against reliable
computer units to see whether the
pre-1996 units gave unsafe or
erroneous readings. When two of
Uwatec’s dealers testified that they
had recently returned pre-1996
units to Gilliam and another
employee testified that Gilliam
had at least two units sitting on his
desk, the court ordered an
investigation on charges of
perjury. Further, according to the
transcript of the sanctions hearing
against Gilliam held in September,
the court has also ordered an
investigation of Gilliam for
“suborning perjury,” perjury, and
obstruction of justice during the
course of the trial.
The attorney for the plaintiffs,
Pat Paschal, noted in the record
that Gilliam’s actions were “compounded
by the fact that the
testimony indicated that a diver
using [a] defective unit...if it went
wrong on him to cause injury for
him he would never know it went
wrong. The only way to tell if they
went wrong is to compare one
against the other.... The testimony
was that Bret Gilliam told Frank
Marshall ‘don’t worry about this, it
is a conservative mistake, no one
will get hurt.’ ...[T]hat has been
their entire approach in this case...
[T]heir motive behind failing to
cooperate is if someone gets hurt
they will never know what caused
it. Their motive is not that they
have done wrong, but that they just
can’t get caught doing it.” The
court also observed that Uwatec
hoped “to sell the company for 25
million dollars.”
When Undercurrent spoke to
Gilliam about the suit prior to the
perjury investigation, he characterized
it as a complaint by disgruntled
employees that began
prior to his tenure with Uwatec.
However, according to counsel for
the parties to the suit, final settlement
proposals are currently being
drafted, but the dollar amount and
other terms are not being disclosed.
Uwatec’s new owner,
Johnson World Wide Associates,
has moved the company to California
without him and most of the
staff.
While Uwatec maintains that
the computers have no problems,
users who are concerned about
whether their Aladin computer is
safe to use should note that the
alleged algorithmic error affected
only Aladin Air-X Nitrox computers
tested prior to 1996. Aladin
computers have the test date
printed on the back of the wrist
unit in a “MM.YY” format, with
“10.95” indicating a unit tested in
October, 1995. The purportedly
defective algorithm is reportedly
not incorporated in the Aladin Pro
Nitrox or any of the other Aladin
Air-X or non-air-integrated Aladin
models. Should users wish to
contact Uwatec, they can be
reached at 011-41-62-777-29-40 or
by fax at 011-41-62-777-22-80. Their
website address is www.uwatec.com.
—John Q. Trigger