Litigating Trucking Accident Injury Claims for Plaintiffs and - - PowerPoint PPT Presentation

Litigating Trucking Accident Injury Claims for Plaintiffs and Defendants

Evaluating the Potential Impact of CSA Recordkeeping, Theories of Liability, and Other Special Issues Today’s faculty features:

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THURSDAY, APRIL 18, 2013

Presenting a live 90-minute webinar with interactive Q&A

Robert R. Foos, Jr., Lewis Wagner, Indianapolis Michael J. Leizerman, Managing Partner, EJ Leizerman & Associates, Toledo, Ohio

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Litigating Trucking Accident Injury Claims

April 18, 2013

Robert R. Foos, Jr.

Defense Planning for the Trucking Case

6

Defense Planning for the Wrongful Death Case Where to Start in Trucking Case Defense What to Include in the Case Investigation Discovery Techniques in Tractor-Trailer Collisions Admissibility of “Preventable” Designation Admissibility of CSA Scores Pretrial Motions Some Interesting Statistics Plaintiff’s Thoughts on Accident Causation

7

Where to Start in Trucking Case Defense

8

WHERE TO START IN TRUCKING CASE DEFENSE If you are going to defend trucking companies/drivers in wrongful death litigation you need to be prepared to head to an accident scene in a moments notice. You must have the proper equipment already in your vehicle or easily accessible.

• Camera/Video Camera
• Voice recorder
• Pen and Paper
• Reflective Vest
• List of Pertinent Contact Information

9

What to Include in the Case Investigation

10

What to Include in the Case Investigation

Counsel should immediately:

• Identify the exact location of the accident;
• Determine the owner of the tractor, trailer and cargo;
• Identify the employer of the driver, and his status (employee,

independent contractor);

• Ascertain whether any environmental or hazardous conditions

exist;

• Retain an approved independent adjuster;
• Locate the driver and make sure he/she doesn’t speak to anyone

but you;

• Determine if the driver is out of service;
• Determine if a post-accident DOT test is required (or was

performed);

11

What to Include in the Case Investigation

Counsel should immediately: (con’t)

• Determine whether law enforcement has directed post-accident

testing;

• Determine whether the carrier has independent drug/alcohol

testing requirements and learn what protocols must be met;

• Discuss retention of an accident reconstructionist with the carrier;
• Determine whether a biomechanical engineer and/or other experts

(conspicuity?) should be retained for scene investigation and vehicle inspection;

• Determine what ECM or other data is maintained by the carrier and

if it can be accessed remotely;

• Determine the location of the tractor and protect any data;

12

What to Include in the Case Investigation

Counsel should immediately: (con’t)

• Direct any necessary post-accident inspections;
• Determine a reasonable hold time for the tractor and any cargo,

taking into account the type of cargo;

• Interview the driver (I would not suggest allowing the independent

adjuster to speak with the driver);

• Determine whether the driver needs independent counsel;
• Determine whether the driver requires criminal counsel if charges

are pending or imminent (likely with new CSA rules);

• Obtain any photographs taken by driver;
• Obtain any driver accident forms completed by driver;
• Obtain a copy of any citations issued to the driver;
• Obtain copies of any statements from third parties;

13

What to Include in the Case Investigation

Counsel should immediately: (con’t)

• Obtain HIPAA complaint release from the driver regarding test

results pursuant to §382.405;

• Identify all claimants and nature and extent of injuries;
• Determine whether toxicology testing of claimants has/will
• ccur;
• In fatality accidents, identify funeral home and coroner and

learn whether autopsies will be conducted;

• Identify all witnesses, procure statements through independent

adjuster (you don’t want to be a witness later);

• Consider using a court reporter for taking statements where

appropriate;

14

What to Include in the Case Investigation

Counsel should immediately: (con’t)

• Interview the investigating law enforcement officer;
• Interview the responding DOT officer;
• Determine what, if any, level of DOT inspection will occur;
• Obtain law enforcement officers’ field notes, measurements and

photographs;

• Obtain copy of post-crash inspection report (will likely take

several days);

• Arrange for accident reconstructionist to meet with investigating
• fficer where appropriate;
• Obtain all accident reports and supplemental reports;
• Obtain all 911 reports for the time period preceding and

including the accident;

15

What to Include in the Case Investigation

Counsel should immediately: (con’t)

• Identify all emergency responders to accident;
• Obtain run reports and call logs for fire fighters and first

responders;

• Obtain photographs of scene, tire marks, debris field, signage and

vehicles through independent adjuster and/or accident reconstructionist (depending on the carrier);

• Identify applicable speed limits, signage or other posted warnings;
• Obtain the sequence and timing of all relevant traffic control

devices;

• Consider whether aerial and/or video photography is appropriate;

16

What to Include in the Case Investigation

Counsel should immediately: (con’t)

• Obtain accident history with respect to other accidents in the same

proximity;

• Inquire as to conspicuity, signage, barricades, detours, roadway

construction, and any factors affecting visibility;

• Identify contractors conducting roadway construction in the area;
• Obtain copies of all traffic or business video footage in the area;
• Obtain copies of all broadcast media coverage of accident, along

with raw data;

• Obtain internet data regarding the accident—don’t forget social

media sites of claimants;

17

What to Include in the Case Investigation

Counsel should immediately: (con’t)

• Determine the location and owners of all vehicles involved in the

crash and see if the vehicles have on-board computers—issue a litigation hold on that information;

• Procure cell phone records for all drivers involved;
• Inquire about carriers retention program and make sure that all

relevant, or potentially relevant data, is being preserved in compliance with that program and/or FMCSR;

• Obtain copies of Driver Qualification file, Driver Personnel file and

accident history, payroll information, current driver’s manual, six month’s of driver logs, time cards and records of duty status, trip packs, BOL’s, fuel receipts, tolls, dispatch records, pre-trip and post-trip inspections, maintenance records for tractor and trailer, relevant leases, contracts and insurance.

18

Document Retention

Discovery Considerations in Truck Accident Cases

19

DISCOVERY CONSIDERATIONS The trucking industry is highly regulated and plaintiffs attorneys love to set traps. A few issues that should be immediately considered are document retention issues and overly broad litigation holds. Further, depending on your venue, there may be a separate cause of action for spoliation of

• evidence. Be prepared to litigate these

issues even where you think you have taken all reasonable precaution. A few plaintiff advocates consider it your responsibility to monitor your drivers even when they are not working.

20

DISCOVERY CONSIDERATIONS

• I. The New CSA (formerly CSA 2010)
• II. Admissibility of “Preventable” Determination
• III. Document Retention

21

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010)

Why the change from SAFESTAT?

• In 2004 the FMCSA issued an Executive Summary on Improvements needed

in the Motor Carrier Safety Status Measurement System. The results were downright frightening.

Of the 645,551 active interstate carriers on record in Safestat, 26 percent, or about 170,000 had sufficient data to compute a value for one or more of the four safety evaluation criteria. There were large state-to-state variations in reporting of traffic violations, which introduce a degree of geographic bias in the ranking system. For example, California reported only 115 serious moving violations to the FMCSA database in 2001 compared to Indiana, which reported about 25,000. Indiana still has a reputation as one of the nation’s strictest states. The Executive Summary estimated that errors occurred in approximately 13% of all crashes and 7% of inspection transactions on interstate carriers. An estimated 11% of the reports held the wrong carrier accountable for a SafeStat related violation.

• Oddly enough, the FMCSA did not agree with the Executive Summary.

22

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010)

Compliance, Safety, Accountability—formerly CSA2010. Compliance, Safety, Accountability (CSA) is a Federal Motor Carrier Safety Administration (FMCSA) initiative to improve large truck and bus safety and ultimately reduce crashes, injuries, and fatalities that are related to commercial motor

• vehicles. It introduces a new enforcement and compliance

model that allows FMCSA and its State Partners to contact a larger number of carriers earlier in order to address safety problems before crashes occur. Rolled out in December 2010, the program establishes a new nationwide system for making the roads safer for motor carriers and the public alike! See http://csa.fmcsa.dot.gov/about/.

23

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) CSA’s SMS better identifies motor carriers for safety interventions than the previous SafeStat system.

• According to the FMCSA the results showed that the SMS is a significant

improvement over the SafeStat system in identifying unsafe carriers.

• Crash rates were higher for motor carriers identified with safety problems in the

SMS’s seven Behavior Analysis and Safety Improvement Categories (BASICs) than for motor carriers that were not identified with safety problems in the seven BASICs.

• The crash rate for motor carriers that were identified with safety problems by

the SMS in the Unsafe Driving BASIC was more than three times greater than the crash rate for motor carriers not identified with any safety problems by SMS.

24

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) The six major differences between the new SMS and SafeStat are as follows

• 1. SMS is organized by 7 behavioral categories

while SafeStat was comprised of 4 general safety evaluation areas.

• 2. SMS identifies safety problems to determine

who to investigate while SafeStat prioritized carriers for an overall compliance review.

25

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010)

• 3. SMS uses all safety inspection violations,

SafeStat only used out of service violations and specific moving violations.

• 4. SMS gives weight to risk based violations while

SafeStat did not.

• 5. SMS will impact carriers safety fitness

determination while SafeStat did not.

• 6. SMS assesses drivers and carriers.

26

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Compliance, Safety, Accountability 7 BASICS

• Unsafe Driving
• Fatigued Driving
• Driver Fitness
• Controlled Substances/Alcohol
• Vehicle Maintenance
• Cargo Related
• Crash Indicator
• Note that Driver Fitness and Cargo Related are not crash

indicators.

27

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Upon intake of any trucking defense file every defense attorney should, visit the SMS website and also pull the driver’s PSP (pre-employment screening program), if available, from the MCMIS (motor carrier management information program). MCMIS electronic profiles will contain five years of crash data and three years of inspection data, however, MCMIS will not include conviction data.

28

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Crash and Incident Data

Studies have shown the majority of serious multiple vehicle crashes involving trucks are instigated by the actions of passenger vehicles. The current CSA does not take into consideration "fault" when including crash data into a carrier's "crash" BASIC. All crashes involving the carrier are included (stopped rear-end collisions, suicides, cross-overs), thereby skewing the carrier's threshold at which FMCSA intervention will be initiated. The CSA database should only include those accidents in which "fault" was established against the motor carrier or driver. In addition, the database should only include DOT recordable

• accidents. The FMCSA is currently attempting to address crash

accountability within the CSA methodology.

29

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Will CSA be better than SafeStat? It’s too early to tell as we don’t yet have enough information to accurately evaluate not only the resulting, data-based determinations, but we have no basis to evaluate the data going into the system. So, if we have insufficient valid data to assess the accuracy of the system, what are the potential implications of using CSA data at trial?

30

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) FMCSA has said it has sufficient violation data to assess 40% of active carriers in at least one category, but only enough to “assign a percentile rank or score” in at least one category to 12% of active carriers, according to ATA officials. ATA noted in a recently released white paper that the vast majority of these carriers are only assigned a score in one category. The FMCSA contends this weakness is not problematic since “those carriers are involved in 83% of the crashes.”

31

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Recently, at the request of Congressman Duncan and his Subcommittee on Highways and Transit, the DOT Inspector General initiated an audit of SMS data. ASECTT was instrumental in getting Congressional review of SMS data by both Congressman Duncan's committee and by the Small Business Committee, chaired by Congressman Sam Graves.

32

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) The returns clearly show that CSA still has some serious flaws. In February of 2013 the CSA Subcommittee revealed three major areas of concern: (1) crash accountability data; (2) data quality issues; and (3) public display of carrier SMS information. A majority of committee members urged the agency to withhold percentile rankings in the BASICs from public view until other underlying issues (see the 3 areas of concern above) could be resolved.

33

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Realizing withholding the rankings in total was unlikely to be something the FMCSA would act upon, compromise recommendations were as follows:

Remove rankings from public view in BASICs where the numbers don’t correlate directly to crash risk (Driver Fitness, Controlled Substances/Alcohol). Keep the new Hazardous Materials Compliance BASIC measures hidden from public view, given similar lack of crash- risk correlation. Abstain from providing guidance or otherwise encouragement to third parties on how to use SMS data for carrier selection. And yet here we are!

34

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) A lawsuit was recently filed by ASECTT [Alliance for Safe, Efficient and Competitive Truck Transportation] and several other professional

• rganizations/industry participants in the U.S.

Court of Appeals, D.C. Circuit (USCA Case #12- 1305). In short, this lawsuit seeks to have the establishment of SMS data set aside as not properly put forward by appropriate rule making and as abdication of FMCSA responsibility to determine the safety status of all registered motor carriers.

35

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) CSA And The Potential Impact On Litigation There is no regulation or statutory authority that specifically states that information collected as a result of CSA will, or will not, be admissible in legal proceedings. Further, FMCSA Part 385 (Safety Fitness Procedures) does not specifically mention the admissibility of SafeStat data. As such, there are several possible implications, but little clarity, regarding the future usage of CSA data.

36

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Potential Implications of CSA Data Compliance with the new regulations will not protect a carrier from liability for an accident. However, the fact that the CSA program will force carriers to be overly vigilant in complying with safety guidelines, may mean that plaintiff’s lawyers will have less ammunition vis-à-vis certain carriers for negligent hiring, training, retention and/or negligent maintenance claims.

37

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Potential Implications of CSA Data Good safety records may also be beneficial in reducing potential punitive damages which are generally based on reckless disregard of public safety, or blatant violations of trucking

• regulations. At a minimum, CSA should force

motor carriers to be more diligent in safety record keeping, which will likely prove beneficial to defense counsel when defending negligence claims against compliant motor carriers.

38

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Potential Implications of CSA Data

CSA could also have the reverse effect for those carriers that have poor BASIC scores. Despite the FMCSA’s statement that PSP/DIR reports will not be made public, plaintiff’s will most likely attempt to use the subpoena power of the courts to obtain this information, similar to how plaintiffs currently acquire medical, criminal and traffic records. Requests from plaintiff’s counsel for SMS scores and rankings are now common fodder for depositions of safety managers.

39

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Potential Implications of CSA Data Whether this data will ultimately be admissible at a trial is questionable given that the FMCSA’s concern with implementing CSA is safety and not admissibility of evidence. Only time will be able to tell how trial courts will rule on the admissibility of data collected as a result

• f the CSA initiative.

40

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Potential Implications of CSA Data

• In Schramm v. Foster, a case against a broker for negligent

hiring of a motor carrier, the federal trial court held that the duty of the broker was to use reasonable care in hiring carriers, including at least: checking the SafeStat database; and maintaining records on the carriers used to assure the carriers are not manipulating their business practices to avoid unsatisfactory SafeStat ratings. Schramm v. Foster, 341 F.Supp.2d 536 (D.Md. 2004).

• Another wily plaintiff’s attorney recently obtained a $5.2

million dollar verdict against a broker for negligent hiring of a commercial carrier. Linhart v. Heyl Logistics LLC, et al., Case

• No. 10-03100 (D. Or. Judge Panner, Docket No. 230).
• We’ll likely see CSA used in the same manner.

41

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Potential Implications of CSA Data

In Doyle v. Watts Trucking, there was an accident involving allegations of “sleep deprivation” against the truck driver and vehicle maintenance against the carrier. The court allowed into evidence various safety reports from the FMCSA, including SafeStat data showing that the carrier regularly violated HOS rules and violated regulations on brakes and tire tread depth. The defendant

• bjected on relevance grounds, but the court

allowed the evidence. CSA data will contain similar

• information. Doyle v. Watts Trucking of Nebraska,

Inc., 2007 WL 197721 (Neb.Ct.App. 2007).

42

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) Potential Implications of CSA Data It is likely that CSA safety data will be sought in discovery and used, both for and against potential defendants at trial, regardless of the FMCSA’s intent. This further increases the importance of diligent CSA compliance. Fortunately, the trend seems to be limiting admissibility to only cases where the violations are causally related to the alleged negligent activity.

43

DISCOVERY CONSIDERATIONS

Admissibility of “Preventable” Designation

No two accidents or carriers are exactly alike and the FMCSA recognizes that not all accidents are preventable. Some types of accidents, however, can be prevented by drivers, while others require changes in motor carrier practices and policies or equipment. The new FMCSA method for determining preventability is based on examination of the facts in accident records. http://www.fmcsa.dot.gov/safety- security/eta/ETA%20Final%20508c.pdf, page 126.

44

DISCOVERY CONSIDERATIONS

Admissibility of “Preventable” Designation For accidents that occur after April 29, 2003, motor carriers must maintain an accident register for three years after the date of each accident. For accidents that occurred

• n or prior to April 29, 2003, motor carriers must maintain

an accident register for a period of one year after the date

• f each accident. Information placed in the accident

register must contain at least the following:(1) A list of accidents as defined at §390.5 of this chapter containing for each accident:(i) Date of accident.(ii) City or town most near where the accident occurred and the State where the accident occurred.(iii) Driver Name.(iv) Number of injuries.(v) Number of fatalities.(vi) Whether hazardous materials, other than fuel spilled from the fuel tanks of motor vehicle involved in the accident, were released. §390.15(b).

45

DISCOVERY CONSIDERATIONS

Admissibility of “Preventable” Designation What is the “official” definition of “preventable?”

• The National Safety Council’s definition states, “a

preventable collision is one in which the driver failed to do everything that reasonably could have been done to avoid the accident.”

• The American Trucking Association defines preventability

as follows: “was the vehicle driven in such a way to make due allowance for the conditions of the road, weather, and traffic and also to assure that the mistakes of other drivers did not involve the driver in a collision.”

• The FMCSR states that a preventable accident on the part
• f a motor carrier means an accident (1) that involved a

commercial motor vehicle, and (2) that could have been averted but for an act, or failure to act, by the motor carrier or the driver. §385.3

46

DISCOVERY CONSIDERATIONS

Admissibility of “Preventable” Designation

§385.7(f) states that factors to be considered in determining a safety rating include, "frequency of accidents; hazardous materials incidents; accident rate per million miles; indicators of preventable accidents; and whether such accidents, hazardous materials incidents, and preventable accident indicators have increased or declined over time." Unfortunately they offer no definition of "preventable accident indicators.“ Neither §390.15(b) nor §385.7(f) makes mention of recording of accidents as preventable or non-preventable.

47

DISCOVERY CONSIDERATIONS

Admissibility of “Preventable” Designation Part 385.7(f) states that factors to be considered in determining a safety rating include, "frequency of accidents; hazardous materials incidents; accident rate per million miles; indicators of preventable accidents; and whether such accidents, hazardous materials incidents, and preventable accident indicators have increased or declined over time." Unfortunately they offer no definition of "preventable accident indicators." Interestingly enough, Part 385.7(f) was changed in July of 2007 and specifically removed "preventable accident rate per million miles" from the factors to be considered in determining a safety rating under that part.

48

DISCOVERY CONSIDERATIONS

Admissibility of “Preventable” Designation Appendix A to §385 Explanation of Safety Audit Evaluation Criteria states, "Preventability will be determined according to the following standard: if a driver, who exercises normal judgment and foresight, could have foreseen the possibility of the accident that in fact occurred, and avoided it by taking steps within his/her control which would not have risked causing another kind of mishap, the accident was preventable." This a scary standard for litigators. If the carrier has already identified the accident as “preventable”, which is the default designation under FMCSR, it may have already tied our hands on admissibility and perhaps even liability. However, all may not be lost.

49

DISCOVERY CONSIDERATIONS

Admissibility of “Preventable” Designation

There are several arguments against the discoverability, and ultimately the admissibility, of a “preventable” designation.

• Subsequent remedial measure—See Harper v. Griggs, 2006

U.S.Dist. LEXIS 64691 (W.D.Ky., 2006);

• Protected from discovery by 49 U.S.C. § 504(f) because it is

required by the FMCSA—may no longer be a viable defense.

• Unfair prejudice under Fed. Evid. R. 403. See Tyson v. Old

Dominion Freight Line, Inc., 270 Ga. App. 897, 608 S.E.2d 266 (Ga.Ct. App., 2004);

• Prepared in anticipation of litigation, which necessarily requires

that such a designation is not prepared in the normal course of business—See Ward v. Rickrode, 849 A.2d 619; 2004 Pa. Super. LEXIS 113(2004);

• Constitutes mental impressions of the defendant regarding the

liability—See your local state rules regarding privileged information;

• Critical self-analysis doctrine—where applicable and recognized.

50

DISCOVERY CONSIDERATIONS

Admissibility of “Preventable” Designation The pivotal question may be which standard your client uses to determine its internal “preventable” designation. The case law would suggest that an internal standard which is different (RE: more strict) than the legal definition of “negligence” in the forum state will render the preventable finding inadmissible. If your carrier does not have a written, internal definition of preventable you will need to find out which of the previously listed definitions they use. The fact there is no FMCSR requirement that a carrier make a “preventable” or “non-preventable” designation may render the argument under 49 U.S.C. § 504(f) unavailable.

New carriers, who are required to make “preventable” designations under FMCSA, may still find this defense viable.

51

DISCOVERY CONSIDERATIONS Document Retention

Required Docs Retention Time FMCSR Citation Logs and trip docs 6 months §395.8(k)(1) General vehicle information One year and for six months after vehicle leaves carrier’s control §396.3 Post-Trip inspection 3 months §396.11(c)(2) Roadside inspection 1 year §369.9(d)(3)(ii) DQ file and investigation history Through employment and 1 year after §391.51(c) Alcohol and Drug test Positive: 5 years Negative: 1 year §382.401(b)(1) §382.401(b)(3) Accident Register 3 years §390.15(b)

52

DISCOVERY CONSIDERATIONS As a result of plaintiff’s attorney’s conduct, defendants' motion for sanctions seeking the exclusion of “any evidence at the time of trial that is derived from an examination of the Seaman wreckage,” including “any testimony from Plaintiff's forensic engineer and his work product” was granted. Estate of Seaman ex rel. Seaman v. Hacker Hauling, 840 F. Supp. 2d 1106 (N.D. Iowa 2011).

53

DISCOVERY CONSIDERATIONS The party moving for spoliation related sanctions must affirmatively establish that the missing evidence actually existed—not just allege it is missing. “It is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control

• f a party.”

Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 845, 734 S.E.2d 818, 820 (2012).

54

DISCOVERY CONSIDERATIONS Court orders an adverse inference instruction pertaining to the defendants’ destruction of actual driver’s logs required by the FMCSR. Additionally, the court found Qualcomm messages that contained a recap of the driver’s logs were not sufficient to constitute production of the actual driver’s logs. Ogin v. Ahmed, 563 F.Supp.2d 539 (M.D. Penn. 2008)

55

DISCOVERY CONSIDERATIONS Failure to maintain six months of driver’s log books and accompanying records, along with plaintiff’s demand letter for the records and the requirements

• f the FMCSA, created an inference that documents

were intentionally destroyed. The Court gave an adverse instruction stating: (1) carrier failed to properly monitor the driver’s safety performance; (2) carrier was aware of safety violations; and (3) carrier knew driver was operating in a fatigued state. Darling v. J.B. Expedited Servs., 2006 WL 2238913 (M.D. Tenn. 2006)

56

DISCOVERY CONSIDERATIONS Court found carrier had been “cavalier” and had “intentionally misled the Court and Plaintiffs” regarding the whereabouts of the log book, logbook audits and accident file. The Court further found the carrier had provided incomplete and/or false responses to discovery requests. Based on these findings the carrier was fined $30,000. Garrett v. Albright, 2008 WL 681766 (W.D. Mo. 2008)

57

Pretrial Motions

58

PRETRIAL MOTIONS Motions in Limine

• A Motion in Limine is the best tool for the successful defense
• f catastrophic cases. Consider the following potential

motions in limine:

Barring the demonization of trucking companies in general; Barring admission of irrelevant logs (remote from accident date); Barring admission of irrelevant ECM data (remote from accident date); Barring admission of Preventable Accident Determinations; Barring claims for negligent hiring/retention where applicable; Barring admission of other accidents.

59

Some Interesting Statistics

A 2006 Virginia Tech analysis of two studies conducted for the Department of Transportation found that 78 percent of crashes were caused by passenger car drivers. In fatal crashes involving a car and a large truck, 35 percent of the time the crash occurred in one of the four blind spots surrounding large trucks. In 2006, rear-end collisions where passenger cars strike large trucks were 2.7 times more likely than large trucks rear-ending passenger cars. Head-on collisions where passenger cars encroach into the truck’s lane are more than 10 times more likely to occur than vice-versa.

60

Some Interesting Statistics In 2010, 3,484 large trucks were involved in fatal crashes, a 9-percent increase from 2009. However, from 2007 through 2010 the number of large trucks involved in fatal crashes declined by 25 percent. The number of passenger vehicles involved in fatal crashes declined by 21 percent over the same period. The number of large trucks involved in fatal crashes declined by 25 percent, from 4,633 to 3,484, and the vehicle involvement rate for large trucks in fatal crashes (vehicles involved in fatal crashes per 100 million miles traveled by large trucks) declined by 20 percent.

61

Some Interesting Statistics Alcohol was detected in the blood of 3.0 percent of large truck drivers in fatal crashes in 2010, compared with 26.7 percent of passenger vehicle drivers. For 1.8 percent of large truck drivers in fatal crashes in 2010, the blood alcohol concentration was 0.08 grams per deciliter or more, compared with 23.2 percent of passenger vehicle drivers.

62

Some Interesting Statistics One or more driver-related factors were recorded for 27 percent of the drivers of large trucks involved in multiple-vehicle fatal crashes. In comparison, at least

• ne driver-related factor was recorded for 53 percent
• f the passenger vehicle drivers in multiple-vehicle

crashes. Speeding was the most often coded driver-related factor for both vehicle types; distraction/inattention was the second most common for large truck drivers, and impairment (fatigue, alcohol, drugs, illness) was the second most common for passenger vehicle drivers.

63

Some Interesting Statistics All statistics taken from the Large Truck and Bus Crash Facts 2010, which can be found at http://www.fmcsa.dot.gov/facts-research/research- technology/report/LTCC_Report_LargeTruckandBusCr ashFacts2010.pdf

64

Plaintiff’s View of Truck Accident Causation—note the lack of plaintiff’s fault.

Lack of Training on the part of the truck driver; Overloaded Trucks; Oversized Trucks; Poorly maintained brakes on the trucks; Driving in conditions of poor visibility due to smoke, fog, snow or rain; Truck driver inexperience; Fatigued, sleepy or tired driver driving too long and too many hours without rest; Speeding over the limit or driving at speeds or beyond the road and weather conditions; Running off the road; Failure to yield the right of way; Aggressive driving behavior; Truck drivers under the influence of drugs and alcohol while driving; Driving the truck in bad weather conditions; Dangerous or reckless truck driver with a long record of wrecks and accidents; Unsafe safety systems, reflectors, lights and other warning devices; and Failure of truck to have installed an underide protection underguard. Take a look at http://www.indianatruckaccidentlawyers.com/faqs.cfm#q1 or http://www.apitlamerica.com/ for some other interesting thoughts on trucking accidents by the plaintiffs’ bar. 65

501 INDIANA AVENUE • SUITE 200 • INDIANAPOLIS, INDIANA 46202 317.237.0500 800.237.0505 F: 317.630.2790 www.lewiswagner.com

Robert R. Foos, Jr.

Partner

rfoos@lewiswagner.com

Avoiding Eleven Common Mistakes in Truck Accident Cases

Michael Leizerman April 18,2013

If you don’t take anything else away from today …

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Mistake #1

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Not acting immediately when retained

Act Act Im Immed media iatel tely to Pr y to Prevent ent Sp Spoli

• liatio

tion

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Co Colle llect ct CS CSA A an and d Sa Safer Da er Data ta

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11/ 13/ 12 8:52 PM SAFER WEB **WARNING**WARNING**WARNING You are accessing a U.S. Government information system. This information system, including all related equipment, networks, and network devices, is provided for U.S. Government-authorized use only. Unauthorized or improper use of this system is prohibited, and may result in civil and criminal penalties, or administrative disciplinary action. The communications and data stored or transiting this system may be, for any lawful Government purpose, monitored, recorded, and subject to audit or investigation. By using this system, you understand and consent to such terms. **WARNING**WARNING**WARNING

WELCOME TO SAFER

The FMCSA Safety and Fitness Electronic Records (SAFER) System offers company safety data and related services to industry and the public over the Internet. Users can search FMCSA databases, register for a USDOT number, pay fines online, order company safety profiles, challenge FMCSA data using the DataQs system, access the Hazardous Material Route registry, obtain National Crash and Out of Service rates for Hazmat Permit Registration, get printable registration forms and find information about other FMCSA Information Systems.

Notice PLEASE NOTE: The FMCSA has implemented a more stringent credit card and transaction verification procedure. All credit card transactions now require verification of the credit card number, expiration date, security code, billing address and telephone number. To update your Docket Number (Operating Authority) information electronically, you will need a Personal Identification Number (PIN). A separate Personal Identification Number (PIN) is required to update your USDOT Number information electronically. Click here to request your Docket Number PIN and/or USDOT Number PIN. Allow 4 to 7 business days to receive your PIN by mail. Enforcement users must now use the FMCSA Portal link to SAFER to access SAFER Enforcement Related Functions. FMCSA Services FMCSA Registration & Updates Company Safety Profile Company Safety Profile Subscription Online Fine Payment MCMIS Data Dissemination Catalog SAFER Information About SAFER SAFER News Company Snapshot Updates Frequently Asked Questions Enforcement Users: Please use FMCSA Portal Login FMCSA Searches Company Snapshot Analysis & Information (A&I) Online Licensing & Insurance Orders to Cease Operation (OCO)/ Out of Service Orders (OSO) Cargo Tank Crash Rate & Inspection Out

• f Service (OOS) Rates for

Hazardous Materials Safety Permit Program (Calculated on

FMCSA Registration Forms Other FMCSA Web Sites FMCSA Home Page DataQs FMCSA Information Systems National HM Route Registry ITS CVISN FMCSA Portal

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Possible Keyword Matches

CARRIER/DBA NAME LOCATION ANDREW C PASCHALL COTTAGE GROVE, TN ANGELA VESTA PASCHAL MAYODAN, NC DARRELL M PASCHALL BURLINGTON, WI DAVID WAYNE PASCHAL REIDSVILLE, NC GORDON AND MADELAINE PASCHAL EXPEDITED TUCSON, AZ GREGORY PASCHAL ATLANTA, GA HERBERT V PASCHAL JR PICKENS, SC JEVON PASCHALL BOWLING GREEN, KY JOHN PASCHAL ROCKMART, GA KARL PASCHALL UPTON, WY KENDRED PASCHALL FARMS MURRAY, KY MADELAINE PASCHAL TUCSON, AZ MEREDITH PASCHAL CONCRETE INC ANDERSON, IN MICHAEL PASCHALL NEW WINDSOR, NY MIKE PASCHAL CONCRETE INC ANDERSON, IN NORMAN W PASCHALL COMPANY INC PEACHTREE CITY, GA PASCHAL & SHAW SUPPLY INC JACKSONVILLE, FL PASCHAL BOBBY VOYLES RESACA, GA PASCHAL BURIAL VAULT&CREMATION SERVICES LLC HUDSON, MI PASCHAL ENTERPRISES LLC SOUR LAKE, TX PASCHAL LAWN CARE ROCKMART, GA PASCHAL MOMANYI ARLINGTON, TX PASCHAL TREE SERVICE UNION CITY, IN PASCHAL WRECKER SERVICE DEARING, GA PASCHALL FARMS COTTAGE GROVE, TN PASCHALL FARMS LLC YPSILANTI, MI PASCHALL HOME SOLUTIONS BURLINGTON, WI PASCHALL SERVICES INC MURRAY, KY PASCHALL TRUCK LINES INC MURRAY, KY PASCHALL TRUCKING STAR CITY, AR PASCHALL TRUCKING WINTER HAVEN, FL PASCHALL TRUCKING INC FLORISSANT, MO PASCHALLS GREENHOUSE & NURSERY MURRAY, KY ROBERT PASCHAL KNOXVILLE, TN ROBERT PASCHAL JR UNION CITY, IN SHANE PASCHAL WELDING SOUR LAKE, TX STEVE D PASCHAL CARROLLTON, GA STEVEN E PASCHALL PURYEAR, TN THOMAS EDWARD PASCHAL JR GREENSBORO, NC WAYNE PASCHALL STAR CITY, AR WES & LYNN PASCHALL GILLETTE, WY WILLIAM E PASCHALL WINTER HAVEN, FL

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…s

Other Information for this Carrier SMS Results Licensing & Insurance

USDOT Number MC/MX Number Name Enter Value: PASCHALL TRUCK LINES

Search

Company Snapshot

PASCHALL TRUCK LINES INC USDOT Number: 105234 ID/Operations | Inspections/Crashes In US | Inspections/Crashes In Canada | Safety Rating

Carriers: If you would like to update the following ID/Operations information, please complete and submit form MCS-150 which can be obtained online or from your State FMCSA office. If you would like to challenge the accuracy of your company's safety data, you can do so using FMCSA's DataQs system. Carrier and other users: FMCSA provides the Company Safety Profile (CSP) to motor carriers and the general public interested in

• btaining greater detail on a particular motor carrier's safety performance then what is captured in the Company Snapshot. To obtain a CSP please visit the CSP
• rder page or call (800)832-5660 or (703)280-4001 (Fee Required).

For help on the explanation of individual data fields, click on any field name or for help of a general nature go to SAFER General Help. The information below reflects the content of the FMCSA management information systems as of 11/12/2012.

Entity Type: Carrier Operating Status: REGISTERED Out of Service Date: None Legal Name: PASCHALL TRUCK LINES INC DBA Name: Physical Address: 3443 US 641 SOUTH MURRAY, KY 42071 Phone: (270) 753-1717 Mailing Address: PO BOX 1080 MURRAY, KY 42071-0018 USDOT Number: 105234 State Carrier ID Number: MC or MX Number: MC-111485 DUNS Number: 62-975-578 Power Units: 1,157 Drivers:

1,289

MCS-150 Form Date: 09/28/2012 MCS-150 Mileage (Year): 123,822,787 (2011) Operation Classification: X Auth. For Hire

Exempt For Hire Private(Property)

• Priv. Pass.

(Business)

• Priv. Pass.(Non-

business) Migrant U.S. Mail

• Fed. Gov't

State Gov't Local Gov't Indian Nation

Carrier Operation: X Interstate

Intrastate Only (HM) Intrastate Only (Non-HM)

Cargo Carried: X General Freight

Household Goods Metal: sheets, coils, rolls Motor Vehicles Drive/Tow away Logs, Poles, Beams, Lumber Building Materials Mobile Homes Machinery, Large Objects Fresh Produce Liquids/Gases Intermodal Cont. Passengers Oilfield Equipment Livestock Grain, Feed, Hay Coal/Coke Meat Garbage/Refuse US Mail Chemicals Commodities Dry Bulk Refrigerated Food Beverages Paper Products Utilities Agricultural/Farm Supplies Construction Water Well

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Mistake #2

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Missing the “truck”

49 CFR §390.5

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“Commercial motor vehicle means any self-propelled or towed motor vehicle used

• n a highway in interstate commerce to

transport passengers or property when the vehicle …”

Sometimes a Pickup Truck is a CMV

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FMCSA 0P1

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Mistake #3

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Missing potential defendants/coverage

SHIPPER BROKER CARRIER RECEIVER

§390.13 Aiding or Abetting Violations

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No person shall aid, abet, encourage, or require a motor carrier or its employees to violate rules of this chapter.

TI TIP

Foundation to make regs apply to non-regulated parties

Restatement (Second) of Torts § 411 Negligent Undertaking

Shippers/brokers/others are liable: “for physical harm to third persons caused by [their] failure to exercise reasonable care to employ a competent and careful contractor

(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the [company] owes to third persons.”

Mistake #4

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Falling for the “independent contractor” defense. In most cases there is NO VALID independent contractor defense.

§390.3 Applicability of Regulations

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(e) (1) every employer shall be knowledgeable

• f and comply with all regulations…

(2) every driver and employee shall be instructed in and shall comply with all regulations… Definitions Matter

!

§390.5 Definitions

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Employer :Any person who owns or leases a CMV … or assigns employees to operate it Employee: Any individual employed by an employer and who in course of his employment directly affects CMV safety. Such term includes a CMV driver (including an independent

contractor while in course of operating a

CMV), a mechanic, and a freight handler.

Mistake #5

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Falling for “insurance coverage” defenses

| 94 | In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Section 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any terri- tory authorized to be served by the insured or elsewhere. Such

| 95 | Designated as cargo. It is understood and agreed that no condi- tion, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the pay- ment of any final judgment, within the limits of liability herein

Mistake #6

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Falling for the “regs don’t apply here” defense

“Counselor, the FMCSRs do not apply because the truck was in intrastate commerce. FMCSRs only apply in interstate commerce cases.”

Mistake #7

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Not distinguishing professional truck drivers from other drivers

Mistake #8

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Focusing on driver and not trucking company

Mistake #9

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Not knowing the “rules of the road” and where to find them

Where Do I Find the Rules?

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FMCSR

First Major Source of Rules for Trucking Cases

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Let’s Revie view A w A Few ew Key ey Regu gula latio tions ns

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§390.3(e) Knowledge and Compliance

103

• 1. Every employer shall be knowledgeable of

and comply with all regulations…

• 2. Every driver and employee shall be instructed

in, and shall comply with, all applicable regulations …

• 3. All CMV shall be maintained to comply with

regs

§390.11 Motor Carrier to Require

Observance of Driver Regulations.

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Whenever a duty put on driver, it shall be duty of motor carrier to require observance of duty. If the motor carrier is a driver, the driver shall likewise be bound.

§391 Driver Qualification

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Generally Requires:

• Written Application
• 3 year Driver History
• Check with previous employers – 3 years
• Minimum medical/physical qualifications
• Drug Screening
• Continuing Obligations - annual review/certification
• Road Test of Equivalent – demonstrate competence
• Can read and speak English

§392 Operation of Commercial Vehicle

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Sets out all requirements – what is important depends on the case.

§392.1 Scope of the Rules

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Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance,

• peration, or driving of commercial motor

vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, sh shall all be ins be instr tructed ucted in in and and com compl ply y wi with the r th the rul ules es in this part.

§392.2 Applicable Operating Rules

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• Every CMV must comply with law of

jurisdiction in which operated

• However, if FMCSR imposes a higher

standard of care, must comply with FMCSR.

§392.6 Schedules to Conform with Speed Limits

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No motor carrier shall schedule a run nor permit nor require the operation of any CMV between points in such a time period as would necessitate the CMV to speed.

§395 Hours of Service

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• 3 Major Rules

– 14 Hour Rule – cannot drive after 14 hours of work.

• Begins when start any kind of work
• When you hit 14 hours, cant drive anymore

– 11 Hour Rule

• Cannot exceed 11 hours of driving during the 14 hours.

– 60/70 Hour Rule

• Total Hours in 7 or 8 days
• Based on whether MC runs trucks everyday or not
• Not based on set week – rolling/floating
• Cant drive after 60/70 Hrs in 7/8 consecutive days until you get

under that number

• 34 hour restart

§383.111 & 113: Required Knowledge & Skills

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• All CMV drivers shall have knowledge and skill

necessary to operate CMV safely – sets out areas, including:

– Knowledge of the regs – Effects of fatigue, drugs and alcohol – Safe operation procedures – Backing – Visual Search – Communication – Speed management – Space Management – Night operation – Extreme Driving conditions – Hazard perception – Emergency maneuvers – Skid control – Vehicle and cargo inspection

§ 392.14 Hazardous Conditions; Extreme Caution

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• Extreme caution in the operation of a CMV

shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction.

• Speed shall be reduced when such conditions exist.
• If conditions become sufficiently dangerous,
• peration of the CMV shall be discontinued and

shall not be resumed until the CMV can be safely

• perated.

CDL Manual

Second Major Source of Rules for Trucking Cases

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Intro to Section 2

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This section contains knowledge and safe driving information that all commercial drivers should

• know. You must pass a test on this information to

get a CDL.

Inspections

• When to inspect
• What to inspect
• How to inspect
• What to look for during

inspection

• Use as question outline

to test driver knowledge & performance

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Inspections

Seven Step Method

• 1. Vehicle Overview
• 2. Check Engine Compartment
• 3. Start Engine-inspect inside cab
• 4. Turn off engine & check lights
• 5. Do Walkaround Inspection
• 6. Check Signal Lights
• 7. Start Engine -Check Brakes

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Seeing Hazards

| 117 | Seeing Hazards Lets You Be Prepared. You will have more time to act if you see hazards before they become emergencies.

Accidents

Disabled Vehicles

Drop Off

Work Zone

Foreign Objects

Children

Distractions

Off Ramps/On Ramps

Parked Vehicles

Impaired Drivers Pedestrians

Bicyclists

Slow Drivers Confused Drivers

Delivery Trucks Ice Cream Trucks Drivers Signaling

Other Sections

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3: Cargo 4: Transporting Passengers Safely 5: Air Brakes 6: Combination Vehicles 7: Doubles and Triples 8: Tank Vehicles 9: Haz Mat 10: School Buses

Mistake #10

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Not getting the key documents in every case

Mistake #11

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Not working with your experts as a team.

Michael Jay Leizerman

1-800-628-4500 michael@leizerman.com