Prep for your Case FAQs
1) What should be my first steps?
2) What are key things to look for in discovery?
3) Should I hire experts? If so, what kind?
4) Is litigation testing worth it?
5) Could I argue there was more than one accident?
6) What are common theories of liability in trucking cases?
Pre-Suit
Investigation
Remember, even if you get the case early on, your investigation is
already behind. By the time you meet your client, several investigations
have already been performed (law enforcement/DOT, trucking company, and
insurance company). So, after the initial client interview, send
preservation letters to every potential defendant and nonparty in
possession of evidence, informing him/her of his/her legal duty to
preserve evidence in a potential civil trial.
For
example, send a letter to the trucking company requesting preservation
of driver logs, onboard computer data (i.e., electronic control module
“ECM” data), and dispatch records. Otherwise, DOT regulations require
that these records only be kept for six months. Preservation letters not
only keep defendants from discarding evidence in the normal course of
business, but also prove notice if spoliation becomes an issue at a
later date. Further, to prevent spoliation and inadvertent loss of
evidence, you should locate, inspect, and secure the accident vehicles
as early as possible in your investigation. Go to the scene of the
accident with an investigator or accident reconstructionist and take
your own photographs and video of the scene. Then, identify and contact
all potential witnesses. Getting eyewitness information about speed,
distance, and driver behavior is crucial to your case. Since memories
tend to fade with time, the sooner you are able to contact and interview
witnesses, the more details you will be able to obtain.
After
identifying the truck driver, obtain a complete driving history from
each state in which he was issued a Commercial Driver’s License (CDL).
Also request a copy of the Uniform Traffic Accident Report. If there was
a motor carrier inspection performed on the date of the wreck, obtain
that report as well by contacting the Motor Carrier Safety Division of
the Department of Public Safety. Further, if fatalities occurred, a
Traffic Homicide Report from the Department of Public Safety should also
be requested. It is also imperative that you contact the appropriate
state agencies and request copies of any other filings or certificates
concerning the trucking company. Discovery Your discovery should focus
on establishing liability while still considering factors that
substantiate a claim for punitive damages. During discovery, below are
some of the things you will want to request:
ü Driver’s qualification file and driver logs ü Daily inspection reports ü Annual inspection report ü Inspection, maintenance, and repair records ü OEM data and/or printout ü Any drug and/or alcohol tests taken after the accident üAccident register ü Any bills of lading ü Weight tickets ü Hotel receipts for the week preceding the accident ü Any policy and procedure manuals or training documents ü Medical records of the defendant driver ü Medical records of your client ü The motor carrier profile from the DOT ü The DOT safety audit and rating of the trucking company ü All electronically recorded data relating to the truck, trip, and accident in question Also, request the following: ü Any writing that relates to driving safety system in place at time of accident
ü Any device or system used to record the speed of the truck before and during the collision (e.g., a GPS tracking system) ü Any writing in place at time of collision relating to safe operation (driving, loading, etc.) ü Any contracts or agreements between the truck driver and owner of tractor being driven ü Any
contract or agreement between the truck driver and the people for whom
he or she was driving50 You should always use a rules approach because
it is the best way to show the jury that the trucker or trucking company
did wrong in the case. Have a list of rules prepared before sitting
down to take the deposition and be sure that the list is thorough and
efficient. Ultimately, the existence and violation of these rules will
form the liability backbone of your client’s case. After obtaining the
responses to all written discovery, depose the following: ü Truck driver ü Trucking company corporative representative üSafety director ü Trainer or instructor ü Lay
witnesses Be sure to question the safety director thoroughly regarding
hiring criteria, safety policies, safety records and procedures as well
as methods of driver monitoring. The FMCSA maintains company safety
profiles on carriers, available athttp://www.fmcsa.dot.gov/.
Early
in the litigation, determine the existence and amount of insurance
coverage available in your case. Beyond the obvious discovery requests,
take a look at www.safersys.org to determine the amount of coverage the
trucking company has obtained. Remember that FMCSR Part 387 sets out the
minimum levels of financial responsibility for trucking companies.
Also, it is important to note that one of the unique considerations of
insurance coverage involving commercial carriers is the MCS-90
endorsement. This is a federally mandated endorsement for all commercial
carriers in excess of 10,000 lbs., enacted to prevent parties involved
in the shipping of freight from denying responsibility and pointing the
finger at each other and in effect preventing and/or delaying recovery
to an injured party.
EXPERTS
Carefully
consider the facts involved in your case and select appropriate
experts. For example, if your case involves a serious and permanent
injury, the use of an economist to prove loss of future earning and the
use of a life care planner to prove future medical costs can greatly
impact your case value. It is a good idea to hire an accident
reconstructionist early in the case, so he can be involved in the
inspection of the accident scene and vehicles while the evidence is
fresh. This expert is invaluable in your determination of liability and
also in determining any aggravating circumstances such as speed or
failure to take corrective action. An expert knowledgeable in the FMCSR
is also an important asset. Such experts can greatly assist you by
determining if a safety or logbook violation exists as well as providing
testimony regarding improper vehicle maintenance, inspection, and
equipment. Also, an expert can assist you in preparing for the trucking
company’s depositions in your case.
LITIGATION TESTING
I
spend a great deal of my practice handling product liability claims
against automobile manufacturers (see our Chapter Three section devoted
to product liability claims). I have learned that litigation testing is a
necessary fact of life for the product lawyer. A thorough understanding
of how testing can be offered at trial is critical in these cases. The
car companies certify their vehicles to Federal Motor Vehicle Safety
Standards through crash testing and heavily rely on that testing in
litigation to defend the product. These well-funded defenses routinely
run litigation testing to counter plaintiff’s expert’s positions and we
do the same to attack the defense positions. Moreover, even when
attacking the credibility of the other side isn’t the purpose of the
testing, Daubert concerns about the admissibility of expert opinions
many times require the experts.
on
both sides of the case to support their positions at trial through
litigation testing. A few years ago, I found myself handling an
increasing number of commercial vehicle cases, especially those
involving tractor trailer trucking wrecks. Without fail, at some point
in the case, the defendant tractor trailer driver comes up with some
ridiculous excuse as to why the accident occurred. Sometimes the
positions raise their ugly heads during interrogatory responses, but
mostly, the truck driver offers them for the first time at deposition. I
always wonder if these are planned out or off-the-cuff excuses for a
horrible tragedy. The first time I faced this was in a case where the
defendant driver made a left hand turn from the center lane of travel
and hit my client who was also to his left. He claimed my client was
speeding in the lane to his left and that the lane would have been clear
but for my allegedly speeding client. The logical question I asked at
deposition was, “Why were you turning from the center lane?” The
driver’s response was unexpected. This defendant truck driver explained
that it was impossible to make the turn in his truck from the left lane.
He further went on to lecture me that not only did he always make the
turn from the center lane, but that every truck driver who took that
route did the same thing. To finally drive the nail in my coffin, Mr.
Driver then tells me that the police in this small town allow these
turns from the center lane to assist the drivers in this impossible task
of making the left turn.
I
left the deposition realizing that I had a serious issue that needed to
be addressed. Even though this case was pending in Alabama, where such
turns are statutorily prohibited, the driver’s turn was not negligence
per se. Even worse, I could see a conservative jury buying this
argument. My instincts kicked in, and I immediately began devising ways
to disprove this position. Surely it wasn’t impossible, I thought. I
hired a commercial motor vehicle expert who had a commercial license and
could operate a tractor trailer. We rented an exact truck, and by
exact, I mean the same year, make, and model as the one involved in the
case. I then took a video camera and set out to film my expert make the
turn the defendant driver had said was impossible. We discovered the
“impossible turn” defense was a complete fabrication. We made the turn
multiple times with no problem. The driver really did me a favor by
throwing in that all the other drivers made that left turn the same way
he did. While we were videoing our expert, we were fortunate enough to
video several other drivers make the same turn from the left lane with
no problem. Even though the other drivers were driving different trucks
and carrying different loads, it was relevant to counter the defense’s
assertion that everyone did the same thing. Producing this video tape at
my expert’s deposition was the end of the case. The defendant driver
lost all credibility, and since I had also gotten the trucking company’s
safety director to agree with the impossible left turn defense, the
defense was left with zero credible witnesses and no solid theory to
rebut our allegations. The litigation testing I conducted in that case
disproved the defendant driver’s ridiculous excuse and resulted
favorably for my client. The success I had with litigation testing in
that case led me to use litigation testing in almost all of the trucking
cases I have handled since that time. The key to litigation testing is
finding the issue. I recently heard that every case is about something.
Our job as lawyers is to find out what that something is and then take
hold of that issue for our clients. I have learned that litigation
testing in a tractor trailer case can do just that under the right
conditions.
It
is often difficult to have litigation testing admitted into evidence.
To comply with the evidentiary hurdles, a product lawyer must first
decide what the litigation testing is trying to accomplish. Then, the
lawyer must devise a plan for the litigation testing that anticipates
any problems with admissibility. In my case above, it wasn’t enough to
have a truck make the turn. I needed the same truck, with the same load,
traveling at the same speed, and under the same driving conditions.
Obtaining that information takes planning through discovery. A product
lawyer can offer litigation tests for multiple purposes. A lawyer can
use litigation testing to recreate the event or to illustrate physical
principles in play. The evidentiary standards are different. This is an
oversimplification, but a recreation usually is attempting to show the
full event of what happened. An illustration is a small piece of the
puzzle.
Recreation
Testing The evidentiary burden is raised if the purpose of the test is
to recreate the accident or some aspect of the accident. The most
important hurdle when doing this type of litigation testing is making
sure what you are showing in your test is substantially similar to the
actual events. It is well established that “[a] test is not admissible
unless the test conditions are so nearly the same in substantial
particulars (as those involved in the episode in litigation) as to
afford a fair comparison in respect to the particular issue to which the
test is directed.”51 Making sure that what your test depicts is
substantially similar to the actual event is of critical importance.
That is not to say that the testing must be exactly similar; substantial
similarity by definition is not exactly the same. The jury must be able
to compare what is shown in the test and then make a fair judgment as
to the actual incident. We recently handled a case where our client was a
truck driver who started out as a defendant. Another trucker had hit
him from behind while our client’s tractor trailer was stopped in the
roadway. The impact killed our client so we were never able to ask him
what had happened. Our client had put out two of the required warning
triangles prior to his death. We initially believed our client’s vehicle
was disabled since his vehicle was stopped in the middle of the
roadway, but mechanical inspections failed to reveal anything wrong with
the tractor trailer. This case posed a serious problem. Our client was
in violation of the law in several aspects, including blocking the
roadway and failing to appropriately warn oncoming traffic.
