Monday, April 03, 2006

MacDonald v. Kahikolu (9th Cir. - March 31, 2006)

One of my (many) deficiencies is that I much prefer reading nonfiction -- including judicial opinions (which is by far my largest category of reading) -- to fiction. Nonfiction just seems more "real" to me than fiction. Maybe, of course, because it is. Which is, after all, the whole basis behind the distinction between these two forms of writing. (Yeah, yeah, I know: Fiction is also "real" in a way. But you know what I mean. Plus, don't even get me started on the new, allegedly "third" form of writing -- the memoir. Oh my.)

Anyway, one of the many bonuses of reading nonfiction is that sometimes you actually learn stuff. And, occasionally, you'll learn the weirdest stuff, and in the strangest places.

Like here. This is an otherwise nondescript (and entirely correct) decision by Judge Alarcon, which properly applies the negligence per se doctrine and remands for a factual finding about whether the failure to follow a Coast Guard regulation contributed in any way to the accident. Yep. Exactly right. As a result, I've got pretty much nothing at all to say about the decision itself. (That said, I've got a pretty darn good sense that the plaintiff will still end up losing on remand. But that's fine. As long as the court follows and applies the applicable legal doctrines, I've got no complaints. Plaintiff's still gonna lose, but he's going to do so on the correct legal basis.)

But even though I totally agree with the decision, and there was nothing on the legal end that I didn't already know, I still learned something. And to understand why it's important -- to me, at least -- you've got to know some (minimal) personal background.

You see, my wife, Sandy, is very fond of Hawaii. As am I, though slightly less so. As a result, lately -- or at least since we've both obtained cushy academic jobs -- we've taken vacations there pretty much every year. Or at least every year in which Sandy wasn't about ready to give birth. And even one of those times.

Anyway, my favorite activities in Hawaii are (1) tooling around the lava fields -- I'm a Big Island fan -- and (2) watching the fishies. We live on the ocean in San Diego, so hanging out on the beach isn't really that novel; however, the clarity of the water in Hawaii definitely is different than here. So faire-du-snorkel is one of our mutual favorites.

When I'm tooling around the ocean with my flippers, I often like to dive down and hang out near the bottom. You know; look at the coral and stuff up close. And I like to do so even where the water's fairly deep; say, 10 or 15 meters. The thing is, when I do this, my ears invariably start to hurt; undoubtedly from the pressure. So much so that I can't really get to all the stuff I want to see up close. Which, I figured, was just because of my messed-up ears. Something unique to me. C'est la vie.

But then I read this opinion. Which is all about -- coincidentally enough -- free diving in Hawaii. And I learn something that undoubtedly everyone else in the world already knew, but which I didn't. Which is that when you free dive, pretty much everyone's ears hurt. And that the correct solution is to blow your nose in order to equalize the pressure. Which I already do on plane flights and the like, but which I was too stupid to relate to free diving. Air pressure. Water pressure. Both of which are -- as their names reflect -- pressure. Equalize it and you're fine. Duh.

So the cool thing is that, next time we go to Hawaii, I can totally learn from what I've read here and dive down to depths previously unexplored by yours truly. And, from reading the opinion, I've learned that not only can you equalize pressure in such a manner, but that's there's nothing particularly technical about it; that you learn how to do it basically by trial and error, and that you can free dive 30-50 feet by doing so. I'm so, so pleased to hear that. Thanks, Judge Alarcon. You da man!

Now, you might think that my excitement in this regard would be somewhat minimized by the actual facts of this case, in which the plaintiff was on a free dive, tried to equalize the water pressure on decent, and ended up blowing out his eardrum. Thereby causing permanent injury and hearing loss. After all, he was an expert, and had done this all the time, and still ended up screwing it up. Plus, at trial, plaintiff's expert said that free diving was an inherently dangerous activity, and that no safe operator would permit a free dive of over 20 feet.

Yeah, you might think that I'd react that way, and be chastened by the entirety of the opinion. But, if you did, you wouldn't know me very well. Expert testimony? Pshaw. Hacks. All of 'em. Permanent hearing loss even by experienced divers? A freak accident. Definitely won't happen to me. I'm so special. Nothing can possibly happen to our hero.

Remind me of all of this if you see me in the Fall and I'm permanently deaf. But, for now, I couldn't be more psyched.