Doug Marcello
The Bottom Line
Trial success in case involving Plaintiff’s claim that his legs were run over by my client’s truck causing the amputation of his leg.
The Numbers
Plaintiff demanded $1.420 million. Pre-trial offer $50,000. Verdict $37,000.
The Facts
Plaintiffs hired my clients to move them from Pennsylvania to California. During the day of the move, freezing rain developed and became progressively worse.
After the truck was loaded, my driver decided to spend the night there due to the freezing rain. Plaintiff asked if he would move the truck because it was blocking the driveway. He also said that he would take the driver in his car to a spot where he would be able to turn the truck around in the morning.
Plaintiff and the driver agreed to meet at Plaintiff’s car which was parked across the street diagonal from the front of the truck. The driver proceeded to truck, did a walk around, and began to back up. Unknown to him, the Plaintiff had come to the passenger side of the truck.
Plaintiff alleged that the truck ran over his leg, resulting in its amputation. Plaintiff had had problems with the leg prior to the accident including peripheral neuropathy and vascular disease.
Plaintiffs also sought punitive damages against the driver and the company.
The Verdict
At the end of the four day trial in Pike County, PA the jury apportioned negligence 51% to the driver and 49% to the Plaintiff. It awarded the amount of the Medicare lien which was stipulated at $74,000. Reduced by Plaintiff’s negligence, the ultimate verdict was $37,000.
The Issues
My colleagues, Alyssa Adams and Tiffany Peters, drafted the motions in limine and briefs, including achieving the following:
- Excluded CDL Manual, Smith System, ATA Preventability Guidelines;
- Excluded the police report;
- Precluded Plaintiff witness from opining that Defendants’ conduct was “reckless” and/or “outrageous”;
- Excluded driver’s prior accidents;
- Excluded driver’s MVR;
- Excluded driver’s prior criminal conviction;
- Excluded evidence of out-of-pocket living expenses;
- Excluded testimony of “fear and terror” by Plaintiff’s pain expert.
| Developing a Fleet Accident Response Plan
John Kuder |
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Accidents cost you money. Worse yet, they get people hurt or even killed. Your best bet is to work to prevent accidents from happening. But what’s your plan when (not if) one of your drivers is involved in a collision?
If you want to reduce your cost of loss, liability, and inefficiencies, you need to invest in fleet accident management and develop an accident response plan.
Accidents are costly because, at the very least, they lead to lost time, late freight, vehicle downtime, and vehicle repair costs. At their worst, they lead to court dates, workers’ comp, and massive fines.
That’s why you need to have an accident response plan in place.
What Is an Accident Response Plan?
An accident response plan is a crucial part of fleet accident management. An accident response plan is a procedure with set steps in place taken after an accident by your drivers, your dispatchers, your managers, and possibly executives.
The accident response plan details who in your company is responsible for what duties, when those actions must take place, and when those actions must be completed by.
Your drivers, managers, and any other involved personnel must have the company’s accident response plan memorized.
What Is Involved in an Accident Response Plan?
An accident response plan is a coordinated effort between your driver, dispatch, and managers. Each person has a different set of priorities and responsibilities.
Important note: the strategies listed below are best practices. We are not lawyers and do not offer legal advice. We are experts in transportation safety and implementing safety procedures.
Driver
The driver’s responsibilities are the most straightforward. However, they’re also the most important. Your driver must take these actions in this specific order:
- Ensure that the scene is safe for their own sake and the sake of others (they should immediately move themselves to the safest place possible; oftentimes, this means staying in the vehicle)
- Contact dispatch then call 9-1-1 in any accident involving other people (if the accident poses imminent threat or harm to someone, your drivers should call 9-1-1 before calling dispatch)
- Avoid talking to the other people involved
- Record all the facts related to the incident
- Cooperate with police but refuse to talk about what caused the accident and never admit fault
- Wait for someone from the company to arrive
Dispatch
When dispatch is called about an accident, they must act quickly. Their job is to alert the appropriate personnel as soon as possible.
While talking to the driver, the dispatcher must learn:
- Where the accident took place
- The nature of the accident
- If anyone is hurt or who else was involved
- If the driver has already called 9-1-1
In addition, the dispatcher should maintain a professional tone, remind the driver to stay calm, and ensure that the driver is in a safe place.
Once they are off the phone with the driver, your dispatcher should contact their manager immediately.
Manager
Once the dispatcher alerts the manager, he or she must act just as quickly. The manager has several responsibilities:
- Getting the correct company personnel out to the scene of the accident
- Alerting other necessary members of the company (if it is a serious accident, it should be escalated to a higher level)
- Calling the involved driver to ensure that police have been notified and that the driver is safe
- Arranging transportation for the driver from the scene/medical attention for the driver if necessary
- Arranging transportation of the vehicle from the scene/towing of the vehicle if necessary
Whoever is a responder to the scene is charged with helping to ensure the scene is safe, cooperating with law enforcement, calling their insurance company at the scene, and ensuring the company does not increase its liability by admitting fault.
Putting Your Plan into Place
First and foremost, you need to have your accident response plan written down, step-by-step, with explicit instructions on who is involved. Then, you need to make sure everyone knows it. There are a few strategies you should use to accomplish this.
- New hire training – your drivers, dispatchers, and managers must be educated on how to handle accidents and emergency situations.
- In-person training – host in-person training with all involved employees on how to respond to an emergency. Don’t leave it up to chance, and don’t count on your employees to read a manual and act accordingly. Ensure they know and can take the corrective actions.
- Yearly refresher training – at least once per year, host refresher training on accident response plans. Do so with drivers, dispatchers, managers, and anyone else involved.
- Have the plan easily accessible – have your accident response plan available for employees to review. Give everyone a digital copy for their own reference if possible.
Doug Marcello
The LEAD: Ignoring your data, fearing discovery in litigation, can be fatal to your company. The data is there. Plaintiffs will get it. You must proactively cumulate and analyze it to promote safety and proactively prepare to defend any potential suit.
Many falsely feel that if they don’t aggregate and analyze their data, they are immune from being preyed upon by plaintiffs. If they don’t self-identify their vulnerabilities, they won’t be discovered when sued.
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In other words, what they don’t know won’t hurt them.
Wrong. Wrong in the misbelief that “it won’t be revealed”. Wrong in the failure to flip the script and use the analysis as a proactive defense for the trucking company’s benefit.
FALLACY: “We don’t want to analyze data for vulnerabilities so it can’t be discovered by plaintiffs.”
REALITY: Just because you don’t do it doesn’t mean that plaintiffs can’t find it.
Worse. Plaintiffs can find the vulnerability exposed by your data by doing their own analysis.
They can then spin your failure to mean their narrative. The result is to empower plaintiffs to paint your vulnerability as a “systemic failure” that they need for a Reptile Theory attack and explosive verdict.
YOUR DATA: PLAINTIFFS’ TARGET
Plaintiffs have targeted your data as a detonator for explosive verdicts. They know what you have. They know how to get it.
Any doubt? They teach courses on it. At a recent conference for plaintiff trucking lawyers, the sessions included the following:
-“Trucks: Treasure Troves of Data”
–“Telematics Systems: What They Are, How to Use the Rules of Procedure to Obtain Data, and Standards for Admissibility,
-“Examples of Telematics in Real Cases”
-“Cell Phones and Mobile Devices: What Data Exists; How to Get It, and How to Make it Admissible.”
Plaintiff attorneys are coming for your data, whether or not you cumulate and analyze it. Conversely, you’re not cumulating and analyzing your data doesn’t mean that they won’t get it.
What it does mean is that they get to spin what your data shows the way they want and the way that is most damaging to you.
Moreover, your failure to analyze your data can be, in itself, a target for their attack. “The trucking company could have known of the safety failures if it wanted to. It didn’t. Jurors, get their attention and focus their attention with a large verdict.”
FLIP THE SCRIPT…WITH YOUR DATA
So you can ignore the data, hope plaintiffs don’t find it, and pray that the jury won’t send you a nuclear message. Kinda like not going for your annual physical and taking comfort in not knowing your health.
Or…you can flip the script. Embrace, cumulate, and analyze your data as the foundation of your defense. Use your data as the foundation for your defense.
For the Reptile Theory to succeed, it needs to show a “systemic failure” by your company. Inadvertent accidents and conditions that don’t need correction won’t trigger the Reptile response.
How do I know this? It says so in the book, The Reptile Theory (pages 30, 31, 38, and 53).
Use your data as the foundation for your defense to these Reptile attacks. Demonstrate that you constantly analyze for vulnerabilities and, if found, address them.
Your defense—“We cumulated and analyzed the date. We identified the key indicators of unsafe conduct. We monitored compliance and punished violations. When we found vulnerabilities, we addressed them. Here’s how.”
The result—No systemic failure here. Nothing needs corrected. It was a one-off human failing, not a “systemic failure”.
PROACTIVELY REBUT PLAINTIFFS’ MANIPULATIONS
More importantly, you proactively write your narrative based upon your cumulation and analysis of data. You don’t surrender control of the narrative to the plaintiff.
Your cumulation and analysis of the data doesn’t stop the plaintiffs from trying to manipulate it their misuse. But you can proactively produce your rebuttal based on your more thorough analysis of the data over a period of time. And show that you’ve addressed any vulnerabilities that it revealed.
First, analyze the data to improve safety. The best defenses are a.) no accident and b.) strong “systemic safety procedures”.
Second, proactively develop the rebuttal based on your use of the data to promote safety. You know the attack is looming. Prepare your response today.
Determine the key indicators and support your decision with data. Proactively prepare your justification why these data points are the keys you monitor based on your experience and analysis.
The result: “No ‘systemic failure’. Nothing to correct. We’re on it.”
Third, even if the jury buys the plaintiffs’ spin, show you have actively sought to identify and correct safety issues shown by the data. The result is a disagreement on analysis, not a complete failure to cumulate and analyze the data Doing so deprives the plaintiffs of the argument that there is a “systemic” vacuum that needs to be filled by a big verdict.
Don’t fear your data. Embrace it. Use it. Proactively make it the foundation of your defense.
BOTTOM LINE: Cumulate and analyze your data to identify safety factors, monitor them, and enforce compliance. If you don’t, plaintiffs will.
What can you expect duging any roadside inspectin – but especially during the annual Roadcheck blitz? The inspectin guidelines are published and consistently used throughout North America.
Download the guide here.
Doug Marcello
Your driver is to be deposed. They are to be thrust into a foreign world for which they have neither any experience nor concept.
And out the other side of the process comes their “sworn testimony”, written in cement, as to the accident, training, investigation. It is a crucial event in the case.
Thorough preparation is the key to protecting your driver, and your company, from unnecessary or inadvertent problems from their deposition. Winging it is not an option.
A lot can, and has been, written about the preparation, but some key basics are as follows:
Calm concerns
This process is new and foreign to a driver. It is the legal equivalent of the trepidation we have facing surgery. Put them at ease. Explain the event – everything about the event so there is no unnecessary angst on the day. Tell them the where, who, and when.
Where? Often the other attorney’s conference room. Although in today’s world, Zoom or Teams is more the norm. If that’s the case, make sure: they have access to the online platform; know how to access it; and know they cannot drive during the deposition (seriously).
Who? Assure them your attorney will be there. Who else? Other attorneys, maybe the plaintiff, court reporter, and maybe a videographer.
When? Give the time and date. You may also want to give it to their company’s operations to avoid last-minute issues.
What questions do they have? You can’t fill a full glass. Over my 40 years I learned you need to start by answering the questions that they have first. Many of these questions are what I planned to address in my prep. No problem. Taken care of.
But if you don’t “empty the glass” first, nothing you say will be fully absorbed as they will focus on their questions to the exclusion of the preparation.
You need to proceed accordingly. It’s about the truth. I start every ‘dep prep’ by making it clear we tell the truth. While I have no reason to think otherwise, it always is my first point.
I make clear that I can defend a bad truth, however, I will never defend a good lie.
It’s about the questions. We are there to answer their questions, not educate, explain, or expound unless requested. It is an easy process. Question. Pause. Think of the answer. State the answer. Next question. Period.
I remind the drivers that “the more you say, the longer we will be there.”
The more they say leads to more questions. Answer the question. The whole question. And nothing but the question.
Their expounding gives the other attorney more time to think of questions while the driver is speaking. This serves to benefit unprepared attorneys who will often skip over questions when not afforded the opportunity to think because answers are short and direct.
It’s about what you know. Don’t guess. There are few things you can do wrong in a deposition. After untruthfulness is guessing. It is actually a form of untruthfulness to give an answer you don’t know.
If you don’t know, the truthful answer is: “I don’t know.”
Think first, then talk. Think with your mind, not with your mouth. After the question, pause. Think of the shortest answer in your mind. Give the short answer. And then…stop! Next question.
Obvious, right? But in today’s world, unnatural. The norm today is to fill the void. Fight the instinct. Stop!
Importance of time and distance
Time and distance precision is critical in accident cases. It can determine speed and reaction time.
While “a minute” is considered brief in everyday conversation, it is a lifetime in the sequence of an accident. Convey this concept.
Show the known time and distances from investigation: ECM time and speed, measured distances. This puts the elements in perspective.
After the overview, have the driver respond to your questions so they think them through. Telling them is less absorptive than them generating the answers on their own.
While you are going through the facts of the accident, their mind is on this unfamiliar event, what this means to their job, etc. It’s human nature.
Conversely, when responding to your questions, they are focused on composing the response. Their mind is engaged.
Ask the questions. Get the answers. Discuss any elements of their answer that need be addressed as to the facts that are documented. But start with their version.
Cover 150% of the questions. There is no such things as overcovering questions. I see my job – no, responsibility – as to ensure that the driver never receives a question we did not cover.
Sensitize them to non-accident questions: education, family info, criminal history. Let them know that this isn’t personal. It’s a normal part of deposition.
This is consistent with the ultimate purpose of preparation – no surprises on the day of.
Address demeanor
In today’s YouTube world, how they say it is as, if not more, important than what they say. Many live depositions are now recorded on video, especially if it is by Zoom.
Drivers need to appreciate the need for courtesy and calm. Don’t be baited. Don’t lose your cool.
Dress appropriately. I learned from a driver in my first trial that respectful comfort trumps formal discomfort. My driver told me that he was not comfortable with a tie.
Contrary to what I learned in law school and had seen on every TV trial, I heeded his suggestion. He did great. He was comfortable and credible.
The key is to make sure that the quality testimony is not obscured by the presentation. Have multiple sessions. How many times have you been driving home after an event and thought, “I wish I’d said…”
We all do. But we want to eliminate this, to the extent that we can, for the drivers after their depositions.
There should be at least three sessions, including one several weeks in advance.
A second session a week or so before the deposition. Answer questions they thought of after the first session. Review the highlights of what was covered in the first session. Repetition will develop familiarity.
Finally, avoid, or at least minimize, new elements on the morning of the deposition.
Don’t undermine the driver’s comfort or confidence that morning. Just address the points that need finalized.
There are many more tips and specifics, but these are the absolute minimum.
You and your company are going to have to live with that deposition throughout the case, and ultimately through trial. Make sure that you have done everything possible to ensure it is the most accurate that the driver can present.
