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Sunday, May 16, 1999 - Page updated at 12:00 AM

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The Cost Of An Industry's Silence -- Backyard Pool Tragedy: Was It Preventable?

Seattle Times Staff Reporters

The group that sets safety standards for backyard pools had never been held responsible for crippling accidents. Then came Shawn Meneely. His case showed the group had for decades failed to disclose that certain pools with certain diving boards would result in lethal injuries for certain divers.

KENNEWICK - Shawn Meneely romped up the diving board that sparkling July afternoon in 1991, hit the end with a tremendous bounce and launched into one of those gangly, goofy dives typical of a 16-year-old.

The goal, he'd told his friends, was to make the biggest splash possible. And he did, but hardly in the way he'd intended.

Meneely broke his neck on that dive, the top of his head smashing into the upslope of the pool's bottom. He was pulled from the water a quadriplegic. His first thought was that he wouldn't be able to lead the Kennewick High School basketball team that fall as the Lions' point guard.

But when the extent of his injury became known, Shawn's basketball career became a trivial issue. He was fighting for his life. When he eventually won that battle, the victory was tempered by the reality that he will never again move his legs and has only limited use of his arms. Shawn will spend the rest of his life in a wheelchair.

The Meneely family sued the makers of the pool, the diving-board manufacturer and the trade association that sets standards for the industry.

All but the trade association, the National Spa & Pool Institute (NSPI), settled out of court before the case when to trial last fall.

The Meneelys prevailed following a three-week trial, winning a stunning $6.6 million verdict.

Along the way, Shawn and his crusading parents exposed a 30-year effort by NSPI to hide its knowledge of the tragic consequences that can sometimes result when young, strong, athletic males - boys just like Shawn Meneely - leap from diving boards into the average backyard pool.

NSPI had commissioned a series of studies over the years as it became concerned about diving-related lawsuits like the one the Meneelys filed. It learned that its minimum standards for in-ground residential swimming pools were problematic - even dangerous - when combined with certain diving boards and certain divers.

"Accidents happen. We know that," says Kathy Meneely, Shawn's mother."But these people knew. They ignored the facts, changed conclusions and decided their studies were wrong when they didn't say what they wanted them to."

Before the case went to trial last fall, the family had been willing to settle with NSPI for as little as $160,000, provided it change its size standards for in-ground residential swimming pools. Make the pools deeper and longer or quit sanctioning diving boards on them, the family asked.

NSPI refused, insisting the standards for the size and shape of such pools are adequate, and that it is powerless to change them because they are voluntary.

Since then, NSPI has appealed the verdict, calling it a fluke - the result of a judge disregarding the law and a hometown jury bent on revenge.

What's more, the institute - with declared assets of more than $9.1 million - filed for protection in bankruptcy court in Virginia immediately following the Meneely verdict. Its attorneys have vowed Shawn Meneely will never see a nickel of that money.

"We're going to win on appeal," predicts NSPI's general counsel, David Karmol.

DEFENSE: THE DIVE, NOT THE POOL, WAS UNSAFE

NSPI says Shawn, alone, is responsible for his injury - a defense refined over hundreds of similar negligence lawsuits filed over the years.

Shawn, NSPI argues, had performed an unsafe dive. Indeed, even he had called it a "suicide dive," one in which he jackknifed into the water head-first at the last moment

What's more, NSPI maintained at the trial, the contractor who installed the pool hadn't built it to proper standards. Its deep end was a foot short and the transition from deep to shallow was far steeper than standards in place at the time it was built, NSPI argued.

"Swimming pools are much safer today as a direct result of the following of NSPI's standards," Karmol said in a written statement.

"It is indeed unfortunate that no one followed the NSPI standard in the building of the . . . pool, and that no one ever measured that pool to determine if it met current standards during its lifetime of use," he said.

"If they had, the diving board would have been removed and the tragic accident involving Shawn Meneely would never have occurred."

The case is now before the state Court of Appeals in Spokane, but it probably won't be resolved until it reaches the state Supreme Court.

If the verdict stands, NSPI says it will take the case to the U.S. Supreme Court.

The outcome could set a new standard in Washington state over the legal duty of trade associations that represent manufacturers of all kinds. Other courts around the country could be influenced by the case.

Shawn Meneely's parents, meantime, are continuing their fight to force a change in industry standards.

They are urging the American National Standards Institute (ANSI), a private nationwide organization that facilitates and coordinates voluntary standards among private industries, to drop its endorsement of NSPI's standards. NSPI, which is financially supported by dues from individual pool, spa and diving-board makers, has long pointed to that certification as proof that its standards are valid.

As part of its bankruptcy filing, NSPI objected to the Meneelys' efforts, arguing they could hurt its financial well-being. The institute also has sued the Meneelys' lawyers in bankruptcy court, arguing their efforts to pressure NSPI to change its standards for residential pools by taking the Meneely case to the news media is a violation of the protection afforded debtors under federal bankruptcy law.

The bankruptcy court last month allowed the Meneelys to proceed with their petition asking ANSI to withdraw its certification of NSPI standards. But it has also chastised the Meneelys' lawyers and admonished them about talking to the media.

BACKYARD POOLS LONG A WORRY FOR CONSUMER-SAFETY AGENCY

Setting a legal precedent, however, is hardly what Shawn Meneely had on his mind on July 25, 1991, when he, a friend and a few other youngsters went to the Kennewick home of the friend's grandfather to use the backyard pool.

The group had been diving and playing for about 45 minutes when Meneely made the plunge that forever changed his life.

"Nothing was going through my mind," Meneely said. "There wasn't really anything to think about, really - just swimming and having a good time in the pool."

Meneely can't remember the impact when the top of his head struck what is called the "transition wall," the angled bottom where the floor of the pool begins its upward slope from deep to shallow.

But he can recall immediately realizing he couldn't move his arms or legs and instantly thinking that he wasn't going to be able to play basketball again.

After one of the youths pulled him from the pool, he began swearing, he says. And then his friend's grandmother appeared next to him and began praying. He remembers joining her.

What happened that afternoon to Meneely, now 23 and a student at Eastern Washington University near Spokane, has happened to many other swimmers since in-ground, backyard pools became popular in the 1950s.

The U.S. Consumer Products Safety Commission, a government agency that oversees consumer safety, has been concerned about pool diving accidents since the early 1970s. In 1993, it conducted a series of tests to determine what, if anything, the government could do to curb the problem, said commission spokesman Russ Rader.

"We found there was a problem," said Rader. "What we didn't find was any practical solution to that problem.

"In order to prevent injuries by some design change, backyard pools would have to be so large and so deep that it's just not practical," he said.

The commission abstained when it came time to vote on whether NSPI's standards should be recognized by the ANSI in 1991.

"The staff still has concerns about the minimum dimensional requirements of swimming pools," wrote Jacqueline Elder of the commission's Office of Hazard Identification and Reduction.

ANSI's job is to coordinate and administer voluntary standards agreed upon by private industry. It does not develop standards itself and has no power to enforce or change them.

The NSPI is a trade association that uses its members' dues - up to $500 a year - to promote and protect the pool industry on a variety of fronts, including recommending standards for pool and spa construction.

The pool in which Shawn Meneely was hurt was installed in 1965 by John Williamson, Meneely's friend's grandfather. In most respects, its dimensions were within inches of industry standards for a Type II pool - a common backyard swimming pool - also known as a hopper-bottom pool.

It is funnel-shaped with a deep end, usually between 7 and 8 feet deep, sloping upward to shallow water. The NSPI estimates there are more than 3.4 million in-ground, residential pools in the country, nearly half with diving boards, although there are no precise figures on how many are Type II pools.

NSPI has recommended standards for the size of the pools since 1958, refining them six times since, most recently in 1987.

NSPI has known for more than three decades that problems can arise when these pools are equipped with diving boards - even though NSPI standards specifically say diving boards can be used on Type II pools.

When Shawn Meneely launched himself into the water that day, the springboard propelled him into the upslope of the transition wall, which begins about 10 feet out from the edge of the deep end of the pool.

From there, it angles up sharply from the deepest portion of the pool to the shallow end, going from roughly 8 feet deep to 3 feet deep in another 10 feet.

Meneely landed, head first and at considerable velocity, in water far shallower than 8 feet.

"These pools can be deceptive," said Seattle lawyer Fred Zeder, who along with partner Jan Peterson represented the Meneelys during the trial.

STUDIES CITING DANGERS WERE KEPT UNDER WRAPS

A 7 1/2-foot-deep pool is actually only that deep for a few square feet at the very bottom - often right below the tip of the diving board, Zeder pointed out. The depth decreases rapidly farther out into the pool because of the upward angle of the transition wall.

Indeed, over years of litigation and an unknown number of accidents, the transition wall in backyard pools has earned among lawyers and aquatic experts the sardonic nickname, "the quad wall" - as in quadriplegic.

Trade journal articles published in the 1970s showed a growing awareness among pool manufacturers and suppliers that crippling - and sometimes fatal - diving accidents were occurring in residential pools.

Perhaps the first warning occurred in 1970 when a teenage boy in Virginia sued after he was rendered quadriplegic diving into a hopper-bottom pool.

The pool manufacturer agreed to a $450,000 settlement.

But it wasn't until the Meneelys' lawyers began asking the right questions during their pretrial research that studies documenting the problem were found in NSPI's files and ultimately displayed in court.

NSPI began examining its standards for residential pools and became aware of a study already under way by Milton Gabrielsen, an aquatics expert at Nova University in Fort Lauderdale, Fla., Zeder said. That study was introduced by the Meneelys' attorneys during last fall's trial.

But Gabrielsen's tests raised concerns over the safety of the pool configurations endorsed by the institute, and it decided not to hire him, Zeder said.

Instead, in 1973 NSPI hired Milton Stone, a nuclear physicist who conducted a series of tests at the Massachusetts Institute of Technology.

Stone found that hopper-bottom pools weren't big enough to ensure that a diver could slow down enough after entering the water to prevent injuries.

"Within practical limits of pool design, depth for either a running dive or from a spring or jump board of 1-meter height, it is not possible to rely only on the slowing effect of the water to assure that the diver will not impact the bottom of the pool at dangerous velocities," Stone concluded.

Stone warned that the "worst-case risk" for injuries was borne by young, strong, tall and lithe boys unfamiliar with the pool.

In other words, boys just like 16-year-old Shawn Meneely.

NSPI, Zeder told jurors, stamped the report "confidential" and filed it away.

Stone would later disavow his study as faulty and help the industry promote a safe-diving campaign intended to change how people jump into swimming pools - not the design of the pools themselves.

John Williamson, the owner of the pool where Meneely injured himself, replaced his diving board in the summer of 1974, a month after NSPI received Stone's findings.

The type of board he put on his pool was manufactured by S.R. Smith, of Canby, Ore., one of the largest board makers in the country. It was a Model 606, with cantilevered springs, and bore a sticker saying it was rated for Type II pools.

In the end, the use of that board is what gave the Meneelys the edge Zeder said no other plaintiff in a pool-diving personal injury case had ever had.

In the early 1980s, NSPI commissioned another study comparing the S.R. Smith Model 606 diving board to other diving boards.

And an independent consulting engineer, Robert I. Weiner, recommended that the Model 606 be banned from residential pools.

The results of his study, in the possession of NSPI since 1982, had never been released until the Meneely lawyers found them buried in more than 6,000 pages of documents turned over in preparation for Shawn's trial, Zeder said.

Weiner found the Smith board "puts diver into the water at a higher velocity, a steeper angle and further from the tip of the board than the equivalent standard 8-foot fulcrum board."

Weiner observed more than 21 dives by an "experienced recreational diver."

"The result . . . showed that potential head strikes which could cause a quadriplegic injury to a diver occurred in six out of every nine dives," Weiner wrote.

No impacts were observed on similar divers executed from a standard fulcrum board.

"Every lawyer wants a case with a smoking gun," said Zeder. "And we got one."

S.R. Smith settled with the Meneelys for an undisclosed sum just before the trial. The jury in Shawn Meneely's case, when it returned its verdict in October last year, attributed 30 percent of the cause of the accident to the diving-board company.

S.R. Smith President Thomas Masterson said his company never saw the Weiner letter about banning the board.

Weiner, who became a paid consultant for the industry and was a designated expert witness for S.R. Smith before his death last year, disavowed the letter when deposed for the Meneely trial.

NSPI's Karmol contends the Weiner and Stone studies were just opinions, subject to debate, that were among a range of positive and negative findings in their files.

POOL-INDUSTRY GROUP HAD NEVER BEFORE LOST A LAWSUIT

NSPI, based in Alexandria, Va., began setting standards for backyard pools in the 1950s, when many Americans enjoying the postwar boom were moving to the suburbs and installing backyard pools.

Initially, they provided manufacturers and retailers a convenient selling point.

Later, they would provide a strong defense when the industry began getting hit with a growing number of lawsuits over quadriplegic injuries suffered by divers.

Suits were dismissed and the industry association won the cases that went to trial. Pool makers sometimes paid jury awards or out-of-court settlements, but NSPI itself never lost a suit - until the Meneelys sued in 1993 in Benton County Superior Court.

The suit contended that the pool was too small, with too little distance to the upslope at the shallow end, to accommodate the diving board that had been attached to it.

The suit also named Williamson, S.R. Smith and several other companies who manufactured and sold the pool.

Over five years of bitter litigation, Zeder and Peterson uncovered the Gabrielsen, Stone and Weiner studies.

Shawn Meneely says he still is angry about the revelations, because NSPI "kept that information not just from me, but from everybody who doesn't know anything about these pools and how dangerous they are when they have combination of the board and pool on there."

NSPI has consistently disputed that through a legal defense team, led by Los Angeles attorney William Ginsberg, who is perhaps most famous for representing Monica Lewinsky during the first months of the White House sex scandal.

Its defense was simple and successful: Blame the diver.

Ginsberg tried the case in Kennewick.

Zeder said NSPI has gone so far as to hold mock trials at association seminars, with quadriplegics in wheelchairs playing the part of plaintiffs, to harden its membership.

In the Meneely case, the association maintains that Shawn not only made an unsafe dive but that the pool didn't meet minimum NSPI standards in effect at the time it was built.

The standard then required a minimum depth of 8 feet at its deepest point and 20 feet of distance from the edge of the deep end of the pool to the top of the upslope. The Williamson pool measured 7 feet, 9 inches and 19 feet at those points, NSPI says.

In 1972, two years before Williamson put the S.R. Smith board on his pool, the industry modified those standards to require 22 feet from the deep-end wall to the top of the upslope, with a transition slope far more gradual than the one in the Williamson pool.

"What that means," says Karmol, NSPI's general counsel, "is that each one of these minimums must be met. If not, the pool becomes a Type I . . . where any installation of diving equipment is prohibited."

INDIANA STUDIES SWAYED JURY

Those claims were rejected by the jury, which instead chose to accept the version offered by the Zeder and Peterson.

They argued that even though the original plans for the Williamson pool couldn't be found, the pool's configuration so closely adhered to NSPI's 1961 standard - the one in effect when Williamson built his pool in 1965 - that the similarity couldn't be coincidental.

Moreover, Zeder and Peterson offered their own version of the Stone and Weiner diving studies, conducted at Ball State University in Muncie, Ind., to show that a few inches here or a foot there made little difference if a diver were to crash into the transition wall.

Experts at the school videotaped tall, athletic, teenage males performing various dives from an S.R. Smith board into an Olympic-sized diving pool.

Each dive was tracked by computerized cameras, which measured the diver's speed and position.

Outlines of the Williamson pool and NSPI's various standards were then superimposed over the taped dives, showing the divers repeatedly crossing through an imaginary transition wall at potentially neck-breaking velocities.

Jurors were shown the tape during the trial.

"If you accept the evidence from the Ball State diving study, there really isn't a backyard pool safe enough in the world for a diving board," said juror Sharon Meader. "You just can't put a diving board on a hopper-bottom pool."

Meader was convinced NSPI knew of those dangers, but ignored them to protect its members.

"They should not be responsible for setting standards," she said. "By its very nature, it is for the benefit of the people who belong to that trade. It's very hard for them to set limits."

Karmol and others at NSPI have accused the Meneely jury of misconduct, claiming it ignored the law and returned the hefty verdict to punish and "send a message to NSPI" to do as the Meneelys ask and change its standards.

Indeed, NSPI fought to prevent the case from ever going to trial by trying several times to have it dismissed. Zeder and Peterson, however, won a key victory when the trial judge ruled that NSPI had a duty to warn consumers about safety hazards when it issued standards that it knew its members would use.

Ginsburg couldn't be reached to discuss the case, but he told AQUA magazine in December, "If you take a look at the number of quadriplegic injuries off of boards, you'll find out that there may be two or three a year in the entire world involving boards like this one."

Just how many spinal injuries are suffered every year in diving accidents is unclear. Research published by The National Spinal Cord Statistic Center says diving is the fourth leading cause of the roughly 10,000 spinal injuries people survive every year, accounting for about 9 percent of the total.

Three out of five diving accidents occur in less than 4 feet of water and just 9 percent involve a low diving board.

NSPI's own research - conducted by Weiner in 1983 and marked as confidential - estimated that as many as 59 spinal cord injuries were suffered yearly in diving-board accidents.

FAMILY DREW TOGETHER IN BATTLE OVER POOL STANDARDS

NSPI's move to protect its assets in bankruptcy court has only hardened the Meneelys' resolve.

"If that puts them in financial trouble and those guys have to sell their damn Jaguars, then that's too damn bad," said Don Meneely, Shawn's father. "It would be nice to have them suffer a little hardship. There's a whole lot of families that have suffered hardship because of their inability to share that information."

The Meneelys live in a brown, split-level ranch house on 13 acres of farmland on the edge of Kennewick. A wheelchair ramp leading to a patio is its most recent addition.

Kathy Meneely is 47, a small woman prone to jeans, Western belts and golf shirts. Her hair, cut short, is dyed blond. It went gray after Shawn's accident, she says.

She once was a teacher's aide at a Kennewick elementary school, but gave that job up after Shawn was hurt. Her hands are hard and her arms bruised following a tangle with one of the seven horses she owns and trains.

Don, 46, is a math teacher and longtime coach of the Kennewick High's varsity basketball team - a privilege he says he's giving up after his younger son, Brian, graduates this spring. Like Shawn, Brian played varsity ball for his dad and is being courted by several Division II college teams.

Don Meneely isn't tall, although both Shawn and Brian are well over 6 feet. Not surprisingly, Don Meneely is intensely competitive with an unassailable can-do demeanor that infuses the family. Combined with Kathy Meneely's obstinate outrage over her son's injury, they make a formidable foe for NSPI.

Zeder is in awe of them. He's tried a lot of cases involving catastrophic injuries where families have been torn asunder in the aftermath. Not so the Meneelys, he said. From the outset, they've pulled together to help Shawn - and taken inspiration from him.

Shawn was so close to death those first days after the accident that the impact of his injury paled before his survival. The Meneelys celebrated every day he didn't die.

"You'd hear doctors beginning conversations with parents about decision over whether or not their son or daughter is going to make it," Don Meneely said. "You learn that survival and being able to maintain and get better is a tremendous thing."

That optimistic determination is evident in his son. Nothing demonstrates it better than his first days in intensive care after the accident.

He had undergone two surgeries and was on a respirator at Harborview Medical Center in Seattle, clinging to life. Unable to talk because of the ventilation tube in his throat, his first laborious communication was using an alphabet board - his father would point to each letter and Shawn would blink when he reached the right one.

His mother had been at his bedside night and day, holding his hand and Kathy Meneely wept when she recalled the first words he spelled:

"Get my mom a chair." ------------------------------- Mike Carter's phone message number is 206-464-3706. His e-mail address is: mcarter@seattletimes.com

Steve Miletich's phone message number is 206-464-3302. His e-mail address is: smiletich@seattletimes.com

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Copyright (c) 1999 Seattle Times Company, All Rights Reserved.

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