Lexis Nexis – Legal Insights
Over a decade since its introduction, the Reptile Theory continues to make a notable impact on personal injury litigation in the United States.
The theory, first introduced in Reptile: the 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan, started a movement that has evolved into seminars, retreats and law review articles aimed at understanding, exploiting and counteracting our “Reptile” brains.
What is the Reptile Theory?
The Reptile Theory focuses on safety and security issues to subtly encourage jurors to envision themselves in the same situation as a plaintiff.
The strategy relies on the “Triune Brain” concept of neuroscience, engaging the most primal part of a juror’s mind to provoke the feeling that if a defendant’s actions are allowed to continue, then the community and even the jury itself may be in danger.
Before the Reptile Theory, plaintiffs’ attorneys had to be careful to avoid invoking the Golden Rule when addressing a jury. Their arguments had to rely on the evidence presented. They could not implore jurors to reach a verdict based on jurors putting themselves in the shoes of a plaintiff or based on how those jurors wish to be treated.
The Reptile Theory allows plaintiffs’ attorneys to sidestep the Golden Rule, while making a similar impression on jurors. The attorneys start by establishing safety rules, and then demonstrating how a defendant’s unreasonable actions violated the rules to put a plaintiff in danger.
According to Ball and Keenan, plaintiffs’ attorneys who successfully use the tactic have garnered over $7.7 billion in verdicts and settlements. As expected, defense attorneys have responded quickly to develop strategies that blunt Reptile tactics.
Spotting Reptile Tactics in the Wild
Attorneys who practice the Reptile Theory try to establish safety rules from the outset of litigation, usually beginning with the complaint. These rules take the form of statutes, employee handbooks or industry standards.
The next indication of Reptile tactics comes during discovery, when a plaintiff’s attorney attempts to box a defendant into admitting a violation of these rules, rather than focusing on the plaintiff’s injuries or how the accident occurred. Written discovery often includes requests for industry standards and internal operating procedures, along with evidence of prior similar incidents that can establish a pattern of safety violations.
During depositions of employees or corporate representatives, attorneys employing Reptile tactics ask hypothetical questions that establish a rule with which no rational person would disagree, such as whether a person who causes damage should pay for it, forcing a defendant to agree to a standard of reasonableness.
Once a case proceeds to trial, an attorney relying on the Reptile Theory presents these safety rules to the jury, with a focus on why the rules should have prevented the accident. Closing arguments nudge jurors to conclude in their minds that these safety standards were intended to protect the larger public as well, and ultimately, the jurors themselves.
Responding to Reptile Tactics
Defense attorneys who recognize the Reptile Theory in action have several opportunities to counteract it.
When a complaint is filed, defense attorneys should ensure that the plaintiff has alleged sufficient facts to state a cause of action, especially where statutes may limit demands such as punitive damages. References to negligent hiring, supervision or training can be an indication of Reptile tactics as well as of a plan to open the door to evidence of prior similar incidents. In response, defense attorneys can limit these claims, and prevent the eventual introduction of Reptile-friendly evidence that could support the claims, by immediately filing motions to dismiss or strike.
During discovery, defense attorneys can fight a plaintiff’s attempt to establish safety rules, especially when plaintiff’s counsel uses hypothetical questions to do so. Because lay witnesses are not permitted to answer questions that aren’t based on their own direct perceptions, objecting to these inquiries during depositions, and even instructing a witness not to answer, can negate Reptilian questions.
In contrast, during expert depositions, hypothetical questions are permitted and should be anticipated. However, carefully preparing a witness to explain that their expert opinions are only based on facts of which the expert is personally aware can neutralize the effect of a Reptilian question.
After discovery, motions in limine can be especially helpful in preventing Reptile strategies. When the Reptile Theory first entered the scene, defense attorneys had difficulty identifying what they sought to exclude. While a judge may be reticent to grant a motion to exclude all Reptile tactics, if defense attorneys can establish that specific questions and evidence are part of the Reptile strategy, and explain how they may be used to inflame the jury, the likelihood of the judge granting such a motion increases.
Judges often rule that motions in limine are premature or defer ruling on them until the issue is raised at trial. However, filing these motions can put a judge on notice that the plaintiff is using the Reptile Theory.
At trial, defense attorneys should preserve objections to Reptile tactics for the record, as attempts to circumvent the Golden Rule can be reversible error on appeal in some jurisdictions. If a plaintiff is allowed to introduce evidence of past similar incidents, defense attorneys should be prepared to rebut this evidence by establishing a pattern of adherence to safety rules.
Even if a plaintiff is permitted to use the Reptile Theory throughout trial, defense attorneys can explain this tactic to the jury in opening or closing arguments and appeal to another part of a juror’s mind—the part that does not want to be manipulated into a decision.
The Beginning of the Reptile Theory’s Impact—or the End?
Over the past decade, few trial techniques have made the kinds of waves among trial attorneys that the Reptile Theory has. But the theory may end up being a victim of its own success.
As more plaintiffs’ attorneys adopt trial strategies and tactics that seek to exploit jurors’ Reptilian brains, and the defense bar becomes more aware of these strategies and tactics, expect judges to pay closer attention to whether the strategy is being employed in their courtrooms—and if they should put a stop to it.
(It is imperative that your attorney understands the Reptile Theory and is properly prepared to defend you against it usage.)
Jack Roberts
Did you know your fleet’s electronic logging devices may be vulnerable to hackers?
It’s true. Serjon, a cybersecurity firm specializing in fleet transportation security, held a press conference during the Technology & Maintenance Council annual meeting in New Orleans in early March. Urban Jonson, senior vice president, information technology and cybersecurity services for Serjon, briefed media on the threats facing fleets with compromised ELDs.
ELDs are essentially communication devices used to record and report truck driver hours of service. Due to certain technical requirements of the regulations, ELDs require the ability to “write” messages to the truck’s network to obtain information, such as engine hours. The ELD also requires internet access to report the HOS information.
This creates a truck network-to internet communication bridge that introduces significant cybersecurity concerns.
We sat down with Jonson to learn more about this new cybersecurity threat to North American fleets and what they can do to protect themselves. (This interview has been lightly edited for clarity)
HDT: Many fleets aren’t aware that ELDs can be hacked. Talk a little about how hackers can gain access to an ELD.
Jonson: Different ELD vendors use different designs to deliver the functionality required by the ELD mandate. A common design is a hardware device that connects to the vehicle’s on-board diagnostics (OBD) port and then uses a Bluetooth or Wi-Fi connection to a cellular device, such as a tablet or cellphone, to collect the ELD information and report it.
That ELD information can be attacked by hackers locally (close to the truck) or remotely across the internet.
In a recent paper presented at VehicleSec’241, the researchers were able to compromise an ELD device locally by simply connecting to the ELD Wi-Fi connection point, which had a predictable SSID [network name] and a weak default password. This allowed the researchers to send arbitrary CAN messages to the vehicle and even modify the firmware of the ELD itself.
There have also been reports of remote compromise of these types of vehicle OBD-connected devices going back to 2015, when a researcher could compromise Progressive Insurance OBD devices over the internet because the devices’ cellular modems were discoverable and openly accessible on the internet and had a weak default password.
HDT: What are these hackers looking for?
Jonson: The most likely ELD attack scenarios do not involve obtaining sensitive information from the ELD or the trucking company, but rather disabling or impacting the vehicle’s ability to function.
If an attacker can write arbitrary controller area network (CAN) messages to the vehicle’s CAN bus network, they can impact the vehicle’s functionality in many different ways. For example, if you can write messages to the CAN bus, you can send bogus sensor messages that would make the vehicle derate and go into limp mode, effectively disabling the vehicle.
The threat actor’s motivation could be money, in which case they could hold the company’s vehicles for ransom — not unlike what we have seen with traditional backend systems in the trucking industry.
It could also be a nation-state threat actor whose motivation is to negatively impact the U.S. transportation systems at a time of their choosing. If you disable enough trucks in tunnels or on bridges, interstates, and shipping ports and facilities, it would effectively snarl the entire transportation ecosystem.
In either case, the threat actors would be looking to compromise vehicle function “at scale,” which would require a systematic attack against an entire company or across multiple companies by attacking an ELD provider’s back-end infrastructure.
HDT: Can hacking into an ELD lead to a more widespread hacking issues? Can hackers gain access to other IT systems in a fleet?
Jonson: Getting access to a single ELD can compromise other systems, but usually at the ELD provider level and not the fleet itself. Most telematics system providers connect the ELD device to their backend system(s) for data collection, and then they integrate with the fleets through portals or direct system integrations.
HDT: Can hackers gain access to employees’ personal information?
Jonson: If the threat actor’s motives involve getting employee or customer data, they will attack the backend systems of the fleet rather than trying to get at the ELD devices.
Attacking regular backend systems requires much less effort and expertise. Estes Express was hit with ransomware in October 2023 and lost personal identifiable information due to the breach. This was done by compromising their backend systems and not via their operational technology, such as ELD or TSP devices.
Ransomware attacks against the backend systems of fleets are still the biggest threat to fleets and not attacks against the vehicles themselves. But that is just a matter of time and will happen eventually.
HDT: What is a worst case scenario for a fleet whose vehicles have been hacked via ELDs?
Jonson: The worst-case economic scenario is that fleets cannot use their vehicles to conduct business. Uptime in transportation is a major concern.
As our vehicles become more connected and more automated, with technologies such as lane-keeping assist and automatic emergency braking, the stakes for safety-critical applications increase dramatically.
A compromised ELD device on such an advanced vehicle with the ability to send arbitrary CAN messages could result in tragic consequences, including the potential loss of life.
HDT: What are some telltale early signs that a system has been hacked?
Jonson: There are few real-world public examples of threat actors attacking fleets, so it is hard to say what the early indicators would look like.
A compromised device could result in unexpected and unrelated diagnostic trouble codes (DTCs) being reported. Or there could be no symptoms at all until the vehicle cannot function and the owner receives a ransomware demand.
Trying to determine the difference between a cyberattack and diagnosing and troubleshooting normal vehicle issues is very hard to do.
HDT: What should drivers do if they suspect an ELD has been hacked?
Jonson: If a vehicle driver suspects that their ELD device or vehicle has been hacked due to erratic vehicle performance or activity, they should immediately contact their fleet maintenance professionals for further guidance. Safety should always be the first priority.
Jonson: First and foremost, evaluate the cybersecurity posture of the ELD devices in your fleet.
Not all devices are created equal. Make sure you ask your provider for information about their cybersecurity practices.
For additional information on criteria to use to evaluate a TSP/ELD provider, you can consult Cybersecurity Best Practices for Integration/Retrofit of Telematics and Aftermarket Electronic Systems into Heavy Vehicles by the Federal Motor Carrier Safety Administration and Cybersecurity Requirements for Telematics Systems by National Motor Freight Traffic Association.
All technologies and systems have the potential to fail, either due to outside influence, such as hackers, or on their own. I know of instances where fleets have lost access to their TSP/ELD systems due to cloud computing outages that were the result of provider misconfigurations. It was nothing malicious per se, but it still caused a major failure.
The best way to combat ransomware and ELD hackers is to make your business systems and vehicles as resilient as possible. Analyze your business and vehicles, identify critical systems that need to be protected, do your best to protect them, and develop contingency plans for what to do if those systems fail. I know of a motor freight carrier that got hit with backend ransomware but could continue operations due to a good backup plan.
FMCSA and its state partners conducted more than 12,300 investigations in 2023 and continued its shift to more on-site audits, up 13% over 2022.
Daren Hansen
For the third year in a row, more DOT audits are being performed on-site. As a result, investigators are finding more serious violations and issuing more penalties than in years past. Are you prepared for an auditor’s knock on your door?
The Federal Motor Carrier Safety Administration (FMCSA) relied heavily on off-site audits during the peak of the pandemic, performing more than half of its audits remotely. Last year saw a continued shift towards getting auditors back out into the field, where fully 80 percent of audits were performed.
Odds Are, You Have Violations
Why is the location of an audit important? On-site audits bring much more scrutiny — more interviews conducted, more documents reviewed, more vehicles inspected — so it’s no surprise they’re uncovering twice as many acute violations (the most serious kind) than they did just a few years ago.
If you think you’re too small for an audit or would survive one unscathed, consider this: fully 94 percent of audits resulted in violations last year, and over half (54 percent) were of companies with fewer than 7 power units. About 97 percent of those audited had 100 or fewer units.
If you’re not quite ready for that knock on the door, it’s time to get prepared for a DOT investigation of your compliance program, especially your documentation.
Comprehensive Audits Up 13%
In 2023, the FMCSA and its state partners performed over 12,300 investigations, down slightly from 2022 but the decline was limited to off-site audits. The total included roughly:
- 4,100 on-site comprehensive audits (up 13%)
- 5,800 on-site focused reviews (up 8%)
- 2,200 off-site audits (down 34%)
Complete Records are Vital
The state of your documentation will make or break your audit results, and meticulous recordkeeping has never been more important.
If you’re unsure where to begin preparing for an audit, getting your DOT-mandated paperwork in good shape is a great place to start. About 65 percent of all critical violations found during audits last year related to recordkeeping, including 7 out of the top 10.
Why does it matter? Consider a favorite target: false logs. If an auditor discovers that just 10 percent of your drivers’ logs are falsified, the best you can hope for is a Conditional safety rating. If additional violations are found, you could easily face an out-of-service order.
A comprehensive, on-site audit is the most intensive, potentially taking several days and involving an in-depth document review, interviews, and inspections covering all aspects of a motor carrier’s operations. An off-site audit involves a review of documents sent to the auditor, making it less stressful and intrusive.
Nearly half of audits in 2023 were “on-site focused,” where the auditor comes on-site and targets a specific safety problem, such as hours of service (HOS) or driver files, typically as a result of poor Compliance, Safety, Accountability (CSA) scores.
More Serious Violations, More Conditional Ratings
As noted, an increase in on-site audits means more serious violations are being found and higher penalties are being paid. Last year saw a 5-percent increase in investigations that led to either acute or critical violations, the types that can impact your safety rating. As a result, there was an uptick in carriers that received a Conditional safety rating last year.
More than 1 in 4 audits resulted in a fine, and both fine amounts and the number of enforcement cases ticked upward in 2023. When fines are levied, they are higher than ever — the maximum fines allowed by law are tied to inflation and have increased by 17 percent over the past three years.
2023 By the Numbers
- 94% of audits resulted in at least one violation
- 26% resulted in fines or other penalties
- 3,830 enforcement cases were finalized (up 6%)
- $26,700,000 in fines were collected (up 4%)
- $7,000 was paid per settlement, on average (up 2%)
- 52% of audits resulted in acute or critical violations (up from 47%)
- 32% of audits resulted in critical violations (up from 30%)
- 20% of audits resulted in acute violations (up from 17% and double the percentage from 2020)
- 35% of audits resulted in a less-than-satisfactory safety rating
- 29% were Conditional (up from 28%)
- 6% were Unsatisfactory (no change)
Audits are not only hitting motor carriers’ bottom lines; they’re having long-range impacts since less-than-satisfactory safety ratings can lead to lost business, higher insurance rates, and increased liability in court.
Top 5 FMCSA fines of 2023
- $426,210 — Violating OOS order, denying access, HM violations, false logs
- $160,000 — HM violations
- $135,390 — Random drug testing & CDL violations
- $126,960 — Driver qualification violations
- $111,410 — Log falsification & vehicle maintenance violations
Note from Dennis McGee;
(During conducting mock audits, I find many truck drivers using “yard move” at truck stops, shippers and receivers in areas which are OPEN to the public. Consequently, with the FMCSA current definition of “yard move”, these are false log entries. Currently, the “yard move” must be in an area NOT open to the public.
“Driving” time or “Line-3” time is considered time behind the wheel of a commercial motor vehicle that operates on a “highway” per 49CFR part 390.5. A
Insights Offered During TCA Session Intended to Help Drivers Minimize Accidents
Eric Miller
INDIANAPOLIS — Three trucking and insurance executives offered advice on how leaders can adopt technologies and impact their companies’ safety culture from the executive suite during a session at Truckload Carriers Association’s 2024 Safety and Security Meeting.
The discussion also was intended to help truckers gain insight into the steps and strategies involved in achieving minimal accidents within an organization, their key meaningful metrics and the importance of leaders’ roles in fostering a safety-oriented environment.
“One of the things that I look at more frequently is speeding,” Fortune Transportation Co. CEO Perry Olson said June 2. “Not so much as speeding, but where it’s occurring.
“If I’ve got somebody speeding in Montana on an interstate, that’s not where I need to focus. But if I’ve got somebody who’s speeding in a construction or a school zone, that’s more important.”
Olson said he also keeps an eye out for the different problems that individual drivers have beyond the Federal Motor Carrier Safety Administration’s Compliance, Safety, Accountability metrics and operations.
“I think we all understand that safety is not negotiable,” Kriska Transportation CEO Mark Seymour said. “You can save a little money now, but you’re going to pay for it later. It’s tough to restart what you’ve stopped. It needs to be there all the time.”
Asked what tech he deploys, Olson said he sees great value in the use of forward- and driver-facing cameras.
“There’s virtually zero debate about the value of forward-facing cameras,” Olson said. “But we employed driver-facing cameras in the early days. Driver-facing cameras provide data, but then what do you have to do with that data?”
“We don’t deploy driver-facing cameras, but forward-facing cameras are the technology that’s been the biggest differentiator in recent years,” Seymour said. “Not just for coaching, but for accident mitigation, accident responsibility and awareness.”
Mike Miller, general manager for Progressive Insurance Fleet Programs, said insurance companies are using data to create metrics.
“Over time, lots of vendors are working with the data to give you some ideas about behaviors,” Miller said. … “You want to either have the data, or you don’t want to have the data. Understand that insurance companies are going to be looking at that, and it’s going to affect your rates over time.”
Seymour said, “Over the course of my carrier, we have had about 25 acquisitions. But by no means do I want to profess that we’re good at it — but rather we’ve done a lot of it.
“You can’t fix broken. You can’t fix stupid. You can’t fix ignorance. Safety has to be a critical component. As we acquire businesses, we’ve not batted 1.000; we’ve made some mistakes. I’d say now after we have made those mistakes we understand how important it is to ask the right questions.”
Another important issue related to safety is to have your operators under supervision, Seymour added.
“There’s no greater value in your business than having your professional operators report to someone,” he said. “Typically, they’re the only people in your organization who generate revenue. How can they not be important enough to know who they report to?”
PHMSA Requests Comments on Multiple Hazardous Materials ICR
On May 10, the Pipeline and Hazardous Materials Safety Administration (PHMSA) requested comments on multiple hazardous materials information collection requests (ICR), including the Flammable Cryogenic Liquids ICR, the Response Plans for Shipments of Oil ICR and the Requirements for United Nations Cylinders ICR. Comments are due by July 9.
PHMSA Issues Correction to Harmonization with International Standards Final Rule
On May 9, PHMSA issued a correction to the Harmonization with International Standards final rule. The corrections address several errors to the hazardous material entries in the hazardous materials table. This correction is effective May 10.
FMCSA Requests Comments on VBC Petition for Inconsequential Noncompliance
On May 8, the Federal Motor Carrier Safety Administration (FMCSA) requested comments on Volvo Bus Corporation’s (VBC) petition for inconsequential noncompliance and has determined that certain model year 2009-2023 Volvo 9700 buses do not fully comply with Federal Motor Vehicle Safety Standard No. 108, Lamps, Reflective Devices and Associated Equipment. Comments are due by June 7.
FMCSA Requests Comments on Licensing Applications for Motor Carrier Operating Authority ICR
On May 7, FMCSA requested comments on the Licensing Applications for Motor Carrier Operating Authority ICR. The ICR applies to: (1) existing registrants (i.e., entities that already have a USDOT number and/or operating authority) that are subject to FMCSA’s licensing, registration and certification regulations that wish to apply for additional authorities; and (2) Mexico-domiciled carriers that wish to operate beyond the U.S. municipalities on the U.S.-Mexico border and their commercial zones. Comments are due by June 6.
FMCSA Requests Comments on Motor Carrier Records Change Form ICR
On May 7, FMCSA requested comments on the Motor Carrier Records Change Form ICR. The purpose of this ICR is to collect information required by the Office of Registration to process name changes, address changes and reinstatements of operating authority for motor carriers, freight forwarders and brokers. Comments are due by June 6.
FHWA and NHTSA Publish Joint Final Rule on Uniform Procedures for State Highway Safety Grant Programs
On May 6, the Federal Highway Administration (FHWA) and the National Highway Traffic Safety Administration (NHTSA) published a final rule amending the uniform procedures implementing the State Highway Safety Grant Program to waive, for fiscal 2025, the requirement targets for the common performance measures be identical to targets in the State Highway Safety Improvement Program. This final rule makes a corresponding change to a similar requirement in FHWA’s performance management regulation. This final rule is effective May 6.
NHTSA Requests Comments on Examining Distraction and Driver Monitoring Systems to Improve Driver Safety ICR
On May 6, NHTSA requested comments on the Examining Distraction and Driver Monitoring Systems to Improve Driver Safety ICR, which is part of a study to improve NHTSA’s understanding of the differences in approaches to driver state detection and the potential safety impacts of driver monitoring systems. Comments are due by June 5.
FMCSA Requests Comments on Updating Level VI Out-of-Service Criteria Incorporation by Reference
On May 3, FMCSA requested comments on the proposed amendments to the hazardous materials safety permit regulations to update the incorporation by reference of CVSA’s “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as Defined in 49 CFR Part 173.403” to reference the 2024 edition. Comments are due by June 3.
FMCSA Announces Upcoming Registration Modernization Stakeholder Day
On May 1, FMCSA announced a virtual Registration Modernization Stakeholder Day to engage stakeholders to hear more on their perspectives on improving the registration experience with FMCSA. The virtual public meeting will be held on May 29, and advanced registration is required.
Update on Exemptions
FMCSA Grants Gemini’s Intellistop Module Exemption
On May 10, FMCSA granted Gemini Motor Transport LP’s (Gemini) application for an exemption to allow it to operate commercial motor vehicles (CMV) equipped with a module manufactured by Intellistop Inc. (Intellistop), which is designed to pulse the required rear clearance, identification and brake lamps from a lower-level lighting intensity to a higher-level lighting intensity four times in two seconds when the brakes are applied and then return the lights to a steady-burning state while the brakes remain engaged. The agency has granted the exemption to Gemini, determining an individual and easily identifiable motor carrier operating a finite number of CMVs would likely achieve a level of safety equivalent to, or greater than, the level of safety achieved by the regulation. This exemption is effective May 10, 2024, and ends May 12, 2029.
FMCSA Denies Pitt Ohio’s Exemption Request from SDAP Program Requirements
On May 9, FMCSA denied the application from Pitt Ohio Express LLC (Pitt Ohio) to exempt its drivers from one of the requirements in the agency’s Safe Driver Apprenticeship Pilot (SDAP) program. Pitt Ohio requested an exemption allowing it to use drivers under age 21 holding a commercial learner’s permit and operating CMVs in interstate commerce to participate in the SDAP program. FMCSA analyzed the application and determined that there is insufficient basis to conclude that the exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.
CVSA Updates Three Inspection Bulletins
At the CVSA Workshop last month, the following inspection bulletins were updated:
- 2021-05 – Acceptance of Electronic Documents | (French) (Spanish)
- 2017-02 – Securement of an Intermodal Container on a Container Chassis Vehicle | (French) (Spanish)
- 2012-04 – Hydraulic/Electric/Surge Brake System and Light-Duty Trailer Inspection Procedure | (French) (Spanish)
