Recordkeeping and Other Unique Issues Plaintiff and Defense - - PowerPoint PPT Presentation

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Litigating Trucking Accident Injury Claims: Theories of Liability, Impact of CSA Recordkeeping and Other Unique Issues

Plaintiff and Defense Strategies for Approaching Discovery, Pre-Trial Motions and Damages

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, MARCH 29, 2017

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

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Michael Jay Leizerman March 29, 2017 webinar

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

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Common causes:

Fatigue Distraction Rage Inexperience Equipment failure Bad weather

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Type:

U-turn Rear end Wheel off Leaving lane Underride

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OR

Rogue Company Follows the Rules?

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Collect Collect CSA CSA and and Saf Safer Da er Data ta

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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 Review A view A Few ew Key ey Regula gulations tions

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§390.3(e) Knowledge and Compliance

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• 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

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§390.11 Motor Carrier to Require

Observance of Driver Regulations.

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

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§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

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§391.11 Driver Qualification

(b)(1) Is at least 21 years old (b)(2)Can read and speak the English language sufficiently to converse with the general public… (b)(3) Can, by reason of experience, training, or both, safely operate the type of commercial motor vehicle he/she drives;

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§392 Operation of Commercial Vehicle

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

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§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, shall be instr shall be instructed in and ucted in and compl comply y with with the r the rules ules in this part.

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§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.

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§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

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§ 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.

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Controlling Speed

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Slippery Surfaces. It will take longer to stop, and it will be harder to turn without skidding, when the road is slippery. Wet roads can double stopping distance. You must drive slower to be able to stop in the same distance as on a dry road. Reduce speed by about

• ne-third (e.g., slow from 55 to about 35 mph) on a

wet road. On packed snow, reduce speed by a half,

• r more. If the surface is icy, reduce speed to a crawl

and stop driving as soon as you can safely do so.

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FMCSRs:

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• All available free online – Google FMCSR
• Read regulation and guidance
• Get regulations for time period applicable

to case

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§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

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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.

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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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2.4 – Seeing To be a safe driver you need to now what’s going

• n all around your vehicle. Not looking properly

is a major cause of accidents. 2.4.1 – Seeing Ahead All drivers look ahead; but many don’t look far enough ahead. The Importance of looking Far Enough Ahead. Because stopping or changing lanes can take a lot of distance, knowing what the traffic is doing

• n all sides of you is very important. You need to

look well ahead to make sure you have room to make these moves safely..

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How Far Ahead to Look. Most good drivers look at least 12 to 15 seconds ahead. That means looking ahead the distance you will travel in 12 to 15 seconds. At lower speeds, that’s about one block. At highway speeds it’s about a quarter of a mile. If you’re not looking that far ahead, you may have to stop too quickly or make quick lane changes. Looking 12 to 15 seconds ahead doesn’t mean not paying attention to things that are closer. Good drivers shift their attention back and forth, near and far. Figure 2.6 illustrates how far to look ahead.

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Look for Traffic. Look for vehicles coming onto the highway, into your lane, or turning. Watch for brake lights from slowing vehicles. By seeing these things far enough ahead, you can change your speed, or change lanes if necessary to avoid a problem.

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Controlling Speed

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2.6 – Controlling Speed Driving too fast is a major cause of fatal crashes. You must adjust your speed depending on driving conditions. These include traction, curves, visibility, traffic and hills. 2.6.4 – Speed and Distance Ahead You should always be able to stop within the distance you can see ahead. Fog, rain, or other conditions may require that you slow down to be able to stop in the distance you can see. At night, you can’t see as far with low beams as you can with high beams. When you must use low beams, slow down.

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The Effect of Speed on Stopping

• Distance. Whenever you double your

speed, it takes about four times as much distance to stop and your vehicle will have four times the destructive power if it

• crashes. High speeds increase stopping

distances greatly. By slowing down a little, you can gain a lot in reduced braking

• distance. See Figure 2.11

Controlling Speed

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Stopping Distance Chart

Miles Per Hour How Far The Rig Will Travel in One Second Driver Reaction Distance Vehicle Braking Distance `Total Stopping Distance

15 mph 22 ft. 17 ft. 29 ft. 46 ft. 30 mph 44 ft. 33 ft. 115 ft. 148 ft. 45 mph 66 ft. 50 ft. 260 ft. 310 ft. 50 mph 73 ft. 55 ft. 320 ft. 375 ft. 55 mph 81 ft. 61 ft. 39 0 ft. 451 ft.

Figure 2.11

The Effect of Vehicle Weight on Stopping Distance. The heavier the vehicle, the more work the brakes must do to stop it, and the more heat they

• absorb. But the brakes, tires, springs, and

shock absorbers on heavy vehicles are designed to work best when the vehicle is fully loaded. Empty trucks require greater stopping distances because an empty vehicle has less traction.

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2.6.1 – Stopping Distance Perception Distance + Reaction Distance + Braking Distance = Total Stopping Distance Perception Distance. This is the distance your vehicle travels from the time your eyes see a hazard until your brain recognizes it. The perception time for an alert driver is about ¾ second. At 55 mph, you travel 60 feet in ¾ second or about 81 feet per second. Reaction Distance. This is the distance traveled from the time your brain tells your foot to move from the accelerator until your foot is actually pushing the brake pedal. The average driver has a reaction time of ¾

• second. This accounts for an additional 60

feet traveled at 55 mph. Braking Distance. The distance it takes to stop once the brakes are put on. At 55 mph on dry pavement with good brakes, it can take a heavy vehicle about 390 feet to stop. It takes about 4 ½ seconds. Total Stopping Distance. At 55 mph, it will take about six seconds to stop and your vehicle will travel about 450 feet.

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Managing Space

2.7 – Managing Space To be a safe driver, you need space all around your vehicle. When things go wrong, space gives you time to think and to take action. To have space available when something goes wrong, you need to manage space. While this is true for all drivers, it is very important for large vehicles. They take up more space and they require more space for stopping and turning. How Much Space? How much space should you keep in front

• f you? One good rule says you need at least one second for

each 10 feet of vehicle length at speeds below 40 mph. At greater speeds, you must add 1 second for safety. 2.7.1 – Space Ahead Of all the space around your vehicle, it is the area ahead of the vehicle—the space you’re driving into—that is most important. The Need for Space Ahead. You need space ahead in case you must suddenly stop. According to accident reports, the vehicle that trucks and buses most often run into is the one in front of them. The most frequent cause is following too closely. 59

Crossing Lanes

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2.7.7 – Space Needed to Cross or Enter Traffic Be aware of the size and weight of your vehicle when you cross or enter traffic. Here are some important things to keep in mind. Because of slow acceleration and the space large vehicles require, you may need a much larger gap to enter traffic than you would in a car. Acceleration varies with the load. Allow more room if your vehicle is heavily loaded. Before you start across a road, make sure you can get all the way across before traffic reaches you.

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Seeing Hazards

| 61 | 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

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Seeing Hazards

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2.8.4 – Always Have A Plan You should always be looking for hazards. Continue to learn to see hazards on the road. However, don’t forget why you are looking for the hazards—they may turn into emergencies. You look for the hazards in order to have time to plan a way out of any emergency. When you see a hazard, think about the emergencies that could develop and figure out what you would do. Always be prepared to take action based on your plans. In this way, you will be a prepared, defensive driver who will improve your own safety as well as the safety of al road users.

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Distracted Driving

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2.9 – Distracted Driving Whenever you are driving a vehicle and your attention is not on the road, you’re putting yourself, your passengers,

• ther vehicles, and pedestrians in danger. Distracted

driving can result when you perform any activity that may shift your full attention from the driving task. Taking your eyes off the road or hands off the steering wheel presents

• bvious driving risks. Mental activities that take your mind

away from driving are just as dangerous. Your eyes can gaze at objects in the driving scene but fail to see them because your attention is distracted elsewhere. 2.9.1 – Don’t Drive Distracted If drivers react a half-second slower because of distractions, crashes double. Some tips to follow so you won’t become distracted: Do not attempt to type or read messages on your satellite system while driving. If you have to place a call, find a safe place to pull off the

• road. Do not place a call while driving.

2.9.2 – Use In-vehicle Communication Equipment Cautiously When possible, pull off the road in a safe, legal place when making/receiving a call on communication equipment. If possible, turn the cell phone off until your destination is reached.

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Aggressive Driving

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2.10 – Aggressive Drivers/ Road Rage 2.10.2 – Don’t Be an Aggressive Driver Put your pride in the back seat. Do not challenge them by speeding up or attempting to hold your own in your travel lane.

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Night Driving

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2.11 – Driving at Night 2.11.1 – It’s More Dangerous You are at greater risk when you drive at

• night. Drivers can’t see hazards as quickly

as in daylight, so they have less time to

• respond. Drivers caught by surprise are less

able to avoid a crash. With low beams you can see ahead about 250 feet and with high beams about 350-500

• feet. You must adjust your speed to keep

your stopping distance within your sight

• distance. This means going slowly enough

to be able to stop within the range of your

• headlights. Otherwise, by the time you see a

hazard, you will not have time to stop.

Drive slower when lighting is poor or confusing. Drive slowly enough to be sure you can stop in the distance you can see ahead.

Fatigue and Lack of Alertness. Fatigue (being tired) and lack of alertness are bigger problems at night. The body’s need for sleep is beyond a person’s control. Most people are less alert at night, especially after

• midnight. This is particularly true if you have

been driving for a long time. Drivers may not see hazards as soon, or react as quickly, so the chance of a crash is greater. If you are sleepy, the only safe cure is to get off the road and get some sleep. If you don’t, you risk your life and the lives of others.

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Steering

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2.17.1 – Steering to Avoid a Crash Stopping is not always the safest thing to do in an emergency. When you don’t have enough rom to stop, you may have to steer away from what’s ahead. Remember, you can almost always turn to miss an obstacle more quickly than you can stop. Where to Steer. If an oncoming driver has drifted into your lane, a move to your right is best. If that driver realizes what has happened, the natural response will be to return to his or her

• wn lane.

Driving slowly. Drivers often do not realize how fast they are catching up to a slow vehicle until they are vey close. If you must drive slowly, alert following drivers by turning on your emergency flashers if it is legal. (Laws regarding the use of flashers differs from one state to

• another. Check the laws of the states where you will drive.)

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Emergency Stopping

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2.5.2 I- Communicating Your Presence f you must stop on a road or the shoulder of any road, you must put out your emergency warning devices within ten minutes. Place your warning devices at the following locations: If you must stop on or by a one-way or divided highway, place warning devices 10 feet, 100 feet, and 200 feet towards the approaching traffic. If you stop on a two-lane road carrying traffic in both directions or on an undivided highway, place warning devices within 10 feet of the front or rear corners to mark the location of the vehicle and 100 feet behind and ahead of the vehicle, on the shoulder or in the lane you stopped in.

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Stay Alert

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2.23 – Staying Alert and Fit to Drive Driving a vehicle for long hours is tiring. Even the best of drivers will become less alert. However there are things that good drivers do to help stay alert and safe. 2.23.3 – When You Do Become Sleepy When you are sleepy, trying to “push on” is far more dangerous than most drivers think. It is a major cause of fatal accidents. Here are some important rules to follow. Stop to Sleep. When your body needs sleep, sleep is the

• nly thing that will work. If you have to make a stop

anywhere, make it whenever you feel the first signs of sleepiness, even if it is earlier than you planned. By getting up a little earlier the next day, you can keep on schedule without the danger of driving while you are not alert. 2.23.1 – Be Ready to Drive Get Enough Sleep. Sleep is not like money. You can’t save it up ahead of time and you can’t borrow it. But, just as with money, you can go into debt with it. If you don’t sleep enough, you “owe” more sleep to yourself. This debt can only be paid off by sleeping. You can’t

• vercome it with willpower, and it won’t go away by itself. The average

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Section 3: Cargo

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This section tells you about hauling cargo safely. You must understand basic cargo safety rules to get a CDL. If you load cargo wrong or do not secure it, it can be a danger to others and yourself. Loose cargo that falls off a vehicle can cause traffic problems and others could be hurt or killed. Loose cargo could hurt or kill you during a quick stop or crash. Your vehicle could be damaged by an

• verload. Steering could be affected by how a vehicle is

loaded, making it more difficult to control the vehicle. Whether or not you load and secure the cargo yourself, you are responsible for: 3.3 – Securing Cargo 3.3.1 – Blocking and Bracing 3.3.2 – Cargo Tiedown 3.3.3 – Header Boards 3.3.4 – Covering Cargo 3.3.5 – Sealed and Containerized Loads 3.4 – Cargo Needing Special Attention

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Basic Controls

• Accelerating
• Steering
• Stopping
• Backing
• Shifting gears

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Other Sections

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

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spoliation

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No notice to insurance co?

Green v. Royal Indem. Co., 1994 WL 267749 (S.D. N.Y. 1994). Pierre v. Providence Washington Ins. Co., 784 N.E.2d 52, 2002 (2002). Clarendon Nat. Ins. Co. v. FFE Transp. Services, Inc., 2004 WL 3210604 (N.D. Tex. 2004), judgment aff'd, 176 Fed. Appx. 559 (5th Cir. 2006).

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No cooperation?

Campbell v. Bartlett, 975 F.2d 1569 (10th Cir. 1992).

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Policy canceled?

To the truck company - the insurance company must give 35 days notice To D.C. - 30 days’ written notice of any cancellation, from the date of actual notice

• n the prescribed form

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Barbarula v. Canal Ins. Co. 2006 WL2246384

…while the underlying insurance policy was cancelled pursuant to state law, the MCS-90, which is controlled by federal law, with a separate cancellation provision, remained in effect and thus provided one million dollars in coverage. 12 hour lapse

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Potential Defendants

SHIPPER BROKER CARRIER RECEIVER

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§390.13 Aiding or Abetting Violations

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

TIP TIP

Foundation to make regs apply to non-regulated parties

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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.”

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Litigating Trucking Accident Injury Claims

March 29, 2017

Defense Planning for the Trucking Case

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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

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Where to Start in Trucking Case Defense

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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

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What to Include in the Case Investigation

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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);

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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;

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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;

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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;

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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;

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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;

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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;

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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.

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Document Retention

Discovery Considerations in Truck Accident Cases

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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.

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DISCOVERY CONSIDERATIONS

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

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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.

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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/.

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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.

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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.

106

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.

107

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.

108

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.

109

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.

110

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) The System defines a carrier's “Crash Indicator” measure to quantify “[h]istories or patterns of high crash involvement.” A carrier's Crash Indicator has two components: a raw measure of the carrier's crash history and a ranking against comparable commercial carriers. A carrier's Crash Indicator measure is the number of accidents per vehicle, with adjustments made based on the severity and recency of accidents and the miles driven per vehicle.

111

DISCOVERY CONSIDERATIONS CSA (formerly CSA2010) An occurrence is considered an “accident” for a carrier regardless of whether the carrier was at fault. Owner–Operator Indep. Drivers Ass'n, Inc. v. United States Dep't of Transportation, 831 F.3d 961, 965 (8th Cir. 2016).

112

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?

113

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.”

114

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.

115

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.

116

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!

117

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.

118

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.

119

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.

120

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.

121

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.

122

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.

123

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 well-known plaintiff’s attorney 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.

124

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 contains similar

• information. Doyle v. Watts Trucking of Nebraska,

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

125

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.

126

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.

127

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).

128

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

129

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.

130

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.

131

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.

132

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.

133

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.

134

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)

135

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).

136

DISCOVERY CONSIDERATIONS

The unfair advantages plaintiffs derived from spoliating evidence are discernible and, thus, easily remedied. If this case proceeds to trial, the court will instruct the jury that it should draw an adverse inference from the boat's disassembly. Rampolla should not have the benefit of relying on tests that his own unjustifiable actions prevented defendants from conducting. Accordingly, the court will exclude Rampolla's expert opinion to the extent it is based on the tensile bar tests and will exclude any other evidence relating to the tests. Graff v. Baja Marine Corp., No. CIV.A. 2:06-CV-68WCO, 2007 WL 6900792, at *4 (N.D. Ga. Dec. 20, 2007), aff'd, 310 F. App'x 298 (11th Cir. 2009).

137

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).

138

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)

139

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)

140

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)

141

Pretrial Motions

142

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.

143

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.

144

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.

145

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.

146

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.

147

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

148

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. 149

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