The mighty trucking case

Text Size

Share this page on any of these social networking sites:
Share this page on any of these social networking sites: LinkedIn

 

Advertise with Trial

Stand out from the crowd! Advertise in Trial  to reach a national audience of major decision-makers who are looking for products and services to improve their legal practices.

Learn more »

Danger on the road

February 2011, Volume 47, No. 02

The mighty trucking case 

Jeanmarie Whalen

Trucking litigation is high-powered and complex, and it brings together many elements of the consummate trial lawyer's practice. In your next trucking case, use these tips to put your case in high gear.

Truck accident litigation allows trial lawyers to combine many skill sets and trial techniques that they may already have—but that they rarely have an opportunity to combine in a single case. Few areas of litigation involve the same complicated interplay of law and facts.

For example, the interaction of state and federal law, while not unique to trucking cases, presents issues that set these cases apart from other motor vehicle litigation. Nearly every case involves significant damages claims—for deaths, catastrophic injuries like lost limbs, or complex injuries like brain trauma—which raise the stakes for all parties. And the subject matter often demands the use of high-tech trial presentation techniques. For all these reasons, trucking cases are among the most sophisticated and gratifying cases a lawyer can handle.

As soon as you take a case, you must find out as much as possible about the facts of the accident. Many insurance defense trucking lawyers actively market their ability to place “rapid response” investigation teams at the accident site as soon as the trucking company or insurer calls them. While truck companies and their rapid-response teams are planning their strategy and marshaling evidence favorable to their case, our clients are typically hospitalized, with litigation the least of their concerns. As a practical reality, the plaintiff often retains a lawyer well after the truck company’s lawyer gets involved in the case.

Further complicating this need for prompt action is the federal regulatory structure, which mandates that the truck company retain certain vital records for only six months after an accident, regardless of the statute of limitations.1 So one of your first tasks must be to send the truck company, the driver, and every potential defendant an immediate preservation letter. The law of spoliation differs from jurisdiction to jurisdiction, but without a comprehensive and timely preservation letter, your argument at trial for a spoliation charge or cause of action will never succeed. You need to lay the groundwork as soon as you begin working on the case.

A trucking expert and an accident reconstruction expert are vital to a truck wreck case, so hire them as soon as possible. Then it’s time to get on the road and go to the scene. You will need a clear knowledge of the scene for any depositions, discussions with experts, or even to properly interview your client and witnesses.

Don’t go to the scene alone. This is the first time your trial team should come together. You will want to take your trucking and accident reconstruction experts, a photographer/videographer, and an investigator. While you are learning the scene and working with your experts, your investigator can canvas the surrounding community to see if there are witnesses who might not have appeared on the police report.

During your visit to the accident site, you may want to consider whether the case will warrant retaining an animation specialist, especially one who can use laser scanning technology to create a digital 3D image that portrays the scene with extraordinary accuracy. For obvious cost reasons, the decision to retain this type of specialist can depend on factors you learn in discovery.

Another initial task is the preservation, download, and interpretation of the electronic control module or “black box” data from all the vehicles involved. Be sure your trucking expert has expertise with this data, because it may have great importance when the case is ultimately tried.2

Much recent attention has been paid to drivers being distracted by cell phones and text messages.3 In commercial trucking litigation, these issues are compounded by an array of onboard freight-tracking and logistics-planning equipment that multiplies drivers’ distractions.

Your initial preservation requests and in-suit discovery must fully explore the potential distractions of communications systems such as Qualcomm, as well as any satellite-based navigation or communication systems. These records will be maintained at the truck’s dispatch facility. This information will help you determine the truck’s whereabouts, hours of service, speed, and rest, and it is also necessary to effectively analyze the driver’s log book entries.

Choosing experts

Selecting your trucking expert is one of the most important decisions you make in handling a commercial trucking case. Highly qualified experts will have substantial driving experience, as well as thorough knowledge of the federal motor carrier safety regulations (FMCSR), state laws, and proper company safety policies. Unlike most car accident cases, which involve only one state’s vehicular code, truck wrecks require the ability to synthesize applicable rules from various sources.

As with any negligence case, the experts you need will depend on the liability issues specific to your case. Trucking cases often have liability fact patterns that require experts in several fields.

For example, if your case involves a nighttime collision in which a tractor-trailer jack-knifed and blocked a roadway, you may need an expert in truck conspicuity to establish the diminished visibility or virtual invisibility of the stationary tractor-trailer blocking the roadway. This expert can establish facts regarding your client’s ability to perceive that something was present on the darkened road ahead, to identify that object as a large truck, and to appreciate the truck’s position and the imminent danger it posed.

You will typically face an affirmative defense of comparative fault under these circumstances. A conspicuity expert can offer testimony that because low-visibility objects are poorer at attracting attention and stationary objects are naturally less conspicuous, your client’s ability to consciously perceive and react to the stationary truck blocking the normal lane of travel was significantly diminished.

Based on the same fact pattern, a human factors expert can establish your client’s specific perception and reaction times to the potential danger. Your accident reconstructionist can then offer testimony related to the mechanics of the crash, along with any evasive actions your client took to avoid the imminent and unexpected danger in the roadway.

Likewise, a trucking safety expert and a driver training expert may be required to testify concerning the truck driver’s negligence in failing to take appropriate action to warn oncoming traffic of the hidden danger ahead—or the trucking company’s negligence in failing to install or maintain reflective tape across the trailer, placing an unsafe and defective vehicle on our roadways.4

From a damages standpoint, litigating a trucking case often requires numerous experts to testify regarding devastating losses. By regulation, commercial trucks are permitted to weigh up to 80,000 pounds.5 Compared with private passenger vehicles that typically weigh between 2,500 and 5,000 pounds, the consequences of being hit by a moving truck or striking a stationary truck are frequently catastrophic. In interstate trucking litigation, the lawyer has to promptly assemble a team of experts who will help investigate and ultimately prove the damages in court.

A trial team may include a trauma surgeon, neurosurgeon, orthopedist, radiologist, neurologist, neuropsychologist, physical medicine specialist, and rehabilitationist. With such catastrophic injuries, trial lawyers must learn how to read and fully understand medical records and autopsy reports, as well as discern the significance of imaging studies and other technical injury-related medical data. By working with medical experts as early as possible, you can begin to educate yourself about the medical issues that must be presented in your client’s case.

A thorough analysis and presentation of your client’s damages also requires an assessment of your client’s long-term care needs. A life-care plan, often provided by a treating or retained physiatrist or medical rehabilitationist, will provide the basis for your economist to project the amount of money necessary to compensate your client for past and future medical care and injury-related expenses.

If your client had to stop working because of the accident, you will need to retain a vocational rehabilitation specialist who, after meeting with your client and conducting objective vocational testing, will offer testimony regarding his or her diminished employability. In turn, your economist can use this information to establish the monetary losses associated with past job loss and future permanent total or partial disability in the workforce.

Although this is not an exhaustive analysis of the experts you may need, selecting the right experts in the right fields is an important part of your litigation strategy, offering an array of creative approaches to proving your case and maximizing your client’s recovery.

High-tech tools

One of the most challenging and rewarding aspects of litigating commercial truck accident cases is the need for high-tech case investigation and trial presentation tools. These go beyond the laser scanner and black box.

Part of the FMCSR scheme limits the hours a driver can be “on duty, driving,” as well as the total on-duty time for a set period.6 Several types of technology provide effective tools for quickly and accurately determining whether a driver was fatigued due to driving beyond the permissible number of hours.

One new demonstrative evidence technology is the Individual Logging and Interactive Evaluation Display, which uses an interactive graph and map to show when and where a driver logged activity.7 Additional data plots can be added from extraneous sources such as receipts and cell tower records of calls; this may show that the driver was actually far from the location the logs reported. In a case where driver fatigue contributed to the crash, such evidence can be vital in proving your case against both the driver and the company that failed to discover the log entry fraud.

Many trucking lawyers are now using “super deposition” technology for their depositions.8 With a super deposition, you can integrate the trial presentation technology (typically with a program like Sanction or AD Summation9) with the video deposition. This allows a seamless presentation using a multimedia approach that is helpful to jurors.

The diverse experts, case presentation tools, and trial skills that must be coordinated to effectively represent a client in a commercial trucking accident case allow a trial lawyer to marshal case components that rarely appear together in other types of litigation. Even complex mass tort litigation, which presents different challenges due to the volume of cases and documents involved, often has far narrower issues by the time the cases are tried.

When you agree to represent a client in a trucking case, you must be committed to use all the resources necessary to properly pursue it. Once you have made that investment, the sense of professional accomplishment you will gain from successfully representing a catastrophically injured plaintiff is among the greatest rewards you can enjoy as a trial lawyer.

 

More on Trucking Litigation

AAJ Section
Motor Vehicle Collision, Highway, and Premises Liability
www.justice.org/sections

AAJ Litigation Group
Interstate Trucking
www.justice.org/litgroups

Litigation Packets
"Interstate Trucking: Cross-Examining the Company's Safety Director and Driver"
"Interstate Trucking: Regulations, Discovery, and Damages"
www.justice.org/exchange

AAJ Education Programs
"Litigating Truck Collision Cases" (# 42010)
"Interstate Trucking Litigation Group" (# 410-T29)
www.iplaybackaaj.com

  

Jeanmarie Whalen is a partner at Slawson, Cunningham, Whalen & Gaspari in Palm Beach Gardens, Florida. The views expressed in this article are the author's and do not constitute an endorsement of any product by Trial or AAJ.

Notes:

  1. 49 C.F.R. §395.8(k) (2010). Many trucking regulations changed in 2010. For a detailed discussion of the changes, see Morgan Adams, The New Rules in Trucking Discovery, on page 24 of this issue.
  2. See Steven Schorr & R. Scott King, Beyond Black Boxes, on page 32 of this issue.
  3. See e.g. Ira H. Leesfield & Mark A. Sylvester, Bad Call: Employer Liability for Distracted Driving, Trial 16 (Aug. 2010), www.justice.org/cps/rde/xchg/justice/hs.xsl/12870.htm; Robert L. Sachs Jr., Txt Msgs and Other Driving Distractions, Trial 20 (Feb. 2008), www.justice.org/cps/rde/xchg/justice/hs.xsl/700.htm.
  4. See 49 C.F.R. §§393.11, 393.13 (2010).
  5. 23 C.F.R. §658.17(b) (2010).
  6. 49 C.F.R. §395.3 (2010).
  7. This product is proprietary software from High Impact, Inc. (www.highimpact.com/interactive-presentations/ilied/).
  8. “Super deposition” technology allows a witness to be presented with a document or photo that appears on the video screen as a full-page exhibit. The witness’s image is in a smaller “picture in picture” window. The jurors can see the witness mark and demonstrate on exhibits and photos while still seeing the witness’s demeanor. One vendor using this technology is Trial Technologies, Inc. (www.hightechtrial.com/discovery.html).
  9. For information on Sanction, see www.verdictsystems.com; for AD Summation, see http://accessdata.com/products/ediscovery-litigation-support.

 


    The American Association for Justice
    777 6th Street, NW, Ste 200 • Washington, DC  20001 • 800.424.2725 or 202.965.3500

    © 2014 AAJ