Posted on: 12/16/2011
Lee H. Stewart, Miller Christie & Kinney
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This article will touch on the general principles involving the defense of trucking cases, from the moment an accident occurs, throughout the course of discovery, and up until trial.
As anyone who has defended a trucking case knows, you basically start out with one -- if not two -- strikes against you. Generally speaking, jurors have negative opinions of defendant trucking companies. Plaintiff's attorneys know this, and can usually find something (e.g,. a DOT violation, previous tickets or accidents involving the driver in question, etc.) to attempt to inflame the jury. These difficulties can be compounded by the venue in which the case is pending. Generally speaking, this is determined by either the location of the accident or where the defendant resides or does business. Depending on the venue, the facts of the case may not matter in some places as much as they do in others. As an example of this, there was recently a case tried in the state in which I practice (Alabama) involving a minor rear-end collision, only $2,500 of retail medical bills and absolutely no "heat" in the case. After deliberating briefly, the jury returned a verdict in favor of the plaintiff in the amount of $250,000. On the other hand, it is important to note that some of even the more rural venues depend on trucking companies as being vitally important to the local economy, and thus are more friendly towards trucking companies than one would assume.
Of course, there are certain safeguards to protect you against runaway juries, such as appeals and removal. Generally speaking, a verdict wildly inconsistent with the facts and damages of a case will not be upheld on appeal. Of course, this is a last resort, and an option which can be utilized earlier is removal to federal court. Pursuant to Title 28 U.S.C. § 1332(a), United States Federal Courts will have jurisdiction over cases featuring complete diversity of citizenship among the parties as long as the matter in controversy exceeds $75,000. Typically, plaintiff's attorneys tend to disfavor federal courts, as the venues can be more conservative (they draw from different counties), the judges are more likely to grant summary judgment (they are appointed, not elected) and deadlines are more stringently enforced.
Get the Jump on the Plaintiff
It is important to assume that every trucking accident will result in litigation. Accordingly, it is crucial to dispatch an expert to the scene early on, while the evidence is still there. Likewise, you will need to speak with the driver as quickly as possible, while the events of the accident are still fresh in his or her mind. You should also obtain the necessary records from the trucking company immediately, to ensure that they are not discarded or misplaced. In doing all this, you will find yourself generally one step ahead of the plaintiff in terms of investigation. This should not be difficult, as the trucking company will always have first notice of an accident that ultimately leads to litigation.
Once it becomes evident that a lawsuit will be filed, it is important that all individuals involved with defending and investigating the matter take a "team approach." Each such person should be able to add something unique to the investigation, and taken together, should be able to determine exactly what happened. For example, the adjuster/risk manager should be able to secure the vehicles, avoid spoliation issues, obtain the "black box," etc. Likewise, the attorney will be able to guide the initial investigation, meet with the company to see if there are any problems regarding DOT regulations, and travel to the scene. Similarly, the independent investigator can do much of the legwork involved in obtaining the pertinent information and materials, and an accident reconstructionist can gather data from such evidence as skid marks, gouge marks, tire tracks and the like. The driver can also assist by providing information on potential witnesses. Lastly, the investigating officer can help greatly if he has taken photographs, as they can usually be obtained without a subpoena. Of course, these photographs will aid the expert in the investigation.
Once suit is filed and discovery commences, it is vitally important to obtain as much information as possible via interrogatories and request for production. This paper discovery should be directed at not only getting plaintiffs to state their claims in detail, but also at developing their medical history, both pre and post accident. Along those lines, subpoenas are crucial in obtaining the records necessary to fully develop the plaintiff's post accident treatment, and to uncover any pre-existing conditions that may exist.
Another tool to be used in discovery is a background check of the plaintiff. Your investigation should attempt to uncover any bankruptcy filings (which may lead to estoppel, if the bankruptcy trustee is the real party in interest), any civil/criminal history of the plaintiff (this will tell you more about his or her credibility), and the plaintiff's driving record, which could lead to the discovery of prior accidents, lawsuits and injuries.
In addition to the plaintiff's background, you should also investigate that of the plaintiff's expert. Depending on what is found, this can be used to impeach the expert's credibility, particularly if they are a "professional expert" who generally only testifies on behalf of plaintiffs.
Depending on the injuries being claimed, one option you may want to pursue is an independent medical examination. However, there are risks involved with this. While the doctor in question can help review medical records that can be highly useful in cross-examining the plaintiff's doctor (as doctors are typically hesitant to criticize one another's findings under oath), the risk is that juries do not typically like "armchair doctors."
In this regard, it is key to coordinate the experts you plan on using. These include "human factors" experts (who can testify regarding reaction/perception time, visibility, etc.), biomechanical experts and forensic engineers. Likewise, you should be aware of the fact that the plaintiff will generally be consulting with and retaining vocational rehabilitation experts, economists and "industry experts" whose aim will be to investigate and criticize the company in order to add "heat" to the case.
Deposition and Trial Preparation
After paper discovery is complete and experts are consulted, the next stage is depositions. One objective of the plaintiff's deposition is to attempt to impeach his or her credibility. Juries normally disfavor plaintiffs who overstate their injuries, downplay their pre-existing conditions, exaggerate the facts of the accident, etc.
Similarly, make sure the 30(b)(6) representative you select is a good one. This person should be familiar with DOT regulations, the policies and procedures of the company, and should make a good appearance. Also, spend a great deal of time preparing this person for deposition, so that they will have a good idea what the plaintiff's attorney will be asking and will be attempting to achieve. Other depositions to be taken can include fact witnesses, the investigating officer, doctors and experts.
General Evidentiary Issues
Surrounding all these aspects of discovery are certain general evidentiary issues. For example, it will be important to distinguish between the claims being made against the individual driver and those being made against the company. Pursuant to the principles of agency, the company is liable for the acts of the driver committed within the scope of his employment. However, plaintiff's attorneys will almost always sue under such theories as negligent/wanton entrustment, hiring, training, supervision, and/or maintenance of equipment. This is where the "heat" of a case tends to be. This is also where a plaintiff's attorney and his or her investigator will dig and try to find something in the driver's background or driving record (whether before or after being hired by the defendant company) in an attempt to depict the company as negligent (or wanton) in hiring, training, or supervising the driver. Likewise, depending on what the driver's records reveal, the argument by the plaintiff may be that the company should never have let the individual get behind the wheel of one of their trucks.
Regardless of the claims the plaintiff is making, always distinguish between negligence and wantonness. Generally, wantonness (or willfulness/recklessness) is acting with the knowledge that the action (or inaction) will likely result in injury. This is difficult for the plaintiff to prove, so if punitive damages are only recoverable for wantonness (and not negligence) attempt to position the case in such a manner that a motion for summary judgment regarding the plaintiff's claims of wantonness can be filed. If successful, this can greatly reduce the likely verdict range of a case.
While each trucking case is different, the above generalities will hopefully be useful in defending and trying such cases. While defendant trucking companies are normally somewhat at a disadvantage, it is important to remember that there are several ways to overcome any such disadvantage, or at the very least, to mitigate it.
Lee H. Stewart represents civil defendants in a wide variety of matters such as cases involving automobile and trucking accidents, premises liability and products liability. Mr. Stewart represents insurance companies in the defense of bad faith and fraud claims, as well as coverage disputes. Mr. Stewart attended the University of Kentucky where he received his B.S. in 1992. Thereafter, he graduated from Cumberland School of Law in 1996.
Lee H. Stewart
Miller, Christie & Kinney, PC
2090 Columbiana Road, Suite 3400
Vestavia Hills, Alabama