Following are two articles regarding the $100M verdict against Werner Enterprises. If you or one of your commercial trucks is involved in an accident, please engage help. Get someone you trust, and of course I am glad to help – JoelBeal@JBATelematics.com. No mater what you think about the facts of the case, preparedness is key.
Texas Supreme Court hears Werner’s controversial nuclear verdict case
Tyson Fisher
The Texas Supreme Court heard oral arguments in a controversial nuclear verdict case involving Werner Enterprises that has a wide range of stakeholders calling for tort reform.
On Tuesday, Dec. 3, attorneys for Werner, a truck driver and victims of a fatal crash stated their case in front of the Texas Supreme Court. Last year, the 14th Court of Appeals in Texas affirmed a lower court’s nine-figure verdict finding the trucking company and its driver liable for a 2014 crash.
Werner’s case has left trucking and legal stakeholders scratching their heads. Despite all the facts suggesting the truck driver did nothing wrong, plaintiffs’ attorneys convinced a jury otherwise. At the center of oral arguments on Tuesday was the level of duty a truck driver owes to motorists traveling on the other direction of a divided highway.
Attorneys also argued whether a legal doctrine known as the Admission Rule should be formally adopted in Texas. That rule could prevent a trucking company’s practices, policies and overarching operations and culture from being used in certain crash lawsuits.
2014 crash
The Texas Supreme Court case stems from a lawsuit filed by the family of Zachary Blake and Brianna Blake. Zachary, who was 7 years old, was killed in the crash with a Werner truck. Brianna, who was 12, was rendered a quadriplegic.
On Dec. 30, 2014, the Blakes were traveling east on Interstate 20 in Texas in a pickup truck driven by Zaragoza “Trey” Salinas. Weather conditions were icy at the time. Salinas lost control of the vehicle going 50-60 mph and careened across a grass median, entering the westbound lanes.
At this time, Shiraz Ali was driving a truck for Werner going west on I-20. He was driving below the speed limit when the pickup truck began to spin. Also present in the Werner truck was Jeff Ackerman, a Werner driver-trainer. According to the appellate brief, Ali reacted within half a second, hitting the brakes.
Even the Blakes’ expert witness conceded that Ali’s reaction was “very quick” and “appropriate to the conditions.”
In addition to Salinas making statements suggesting guilt and responsibility, a Texas Department of Public Safety trooper defended Ali’s actions. Trooper Villareal, a 17-year veteran who investigated the accident, concluded “this is truly an accident,” Ali “didn’t do anything wrong” and there was nothing Ali “could have done to avoid the collision.” A higher-ranking trooper who approved the report concurred.
More details of the crash can be found here.
Werner on the hook for more than $100M
During the trial, plaintiffs were allowed to present evidence that had no direct proximate effect on the crash in order to persuade the jury that Werner’s culture and policy had caused it.
This evidence included:
- Details about Werner’s training and supervision of Ali
- Werner’s lack of a “command center” for weather monitoring
- Werner’s handling of crash investigations
- Claims of Werner’s driving school director being unqualified
- Werner’s failure to require a CB radio
- Werner’s failure to require an outside temperature gauge
Werner argued, however, that this evidence had nothing to do with the crash in question and that relevant evidence insufficiently supported a finding of negligence.
In 2018, a jury found Werner 70% liable, Ali 14% liable and Salinas 16% liable. After calculating all damages, the jury award for the plaintiffs was in excess of $100 million. In May 2023, a state appellate court affirmed the ruling.
Duty of care
A question critical to the case in front of the Texas Supreme Court is where to draw the line when determining a truck driver’s duty of care to other road users.
Representing Werner and Ali, attorney Thomas Wright argued that drivers should not have to anticipate someone coming into their lane from the opposite side of an interstate with a 30-plus-foot median between them. Although motorists can foresee another vehicle encroaching into their lane in icy conditions when going the same direction, it is unreasonable to believe a car coming from the other direction is also foreseeable.
Wright conceded that a trucker owes a duty of care to react appropriately once a wayward vehicle enters his or her lane. In this case, both sides acknowledged that Ali reacted quickly and safely.
Representing the Blakes, attorney Darrin Walker argued that a cross-median crash was foreseeable considering the weather conditions. Supporting that argument, Walker pointed to the CDL manual, which states that drivers should slow down to about 15 mph during inclement weather. Ali was traveling at about 43 mph.
“The purpose of this rule is mainly to protect other motorists, because passenger vehicles are even more likely than an 18-wheeler to lose control on icy road conditions, and we don’t want an 18-wheeler going highway speeds on icy roads when another motorist loses control in front of it,” Walker said.
Admission rule
Werner is asking the Texas Supreme Court to adopt what is called the Admission Rule, which could determine the fate of nuclear verdicts like Werner’s.
The company has argued that since it accepted responsibility by admitting Ali was in the course and scope of employment, plaintiffs cannot pursue “derivative theories of negligence.” Under the Admission Rule, once an employer establishes liability, “evidence of the employer’s hiring, training or supervision practices becomes inadmissible as irrelevant and likely to prejudice the jury,” according to the law firm Lewis Brisbois.
In this case, the appellate and district courts rejected the Admission Rule by allowing a variety of evidence dealing with Werner’s companywide policies and training. This in turn allowed plaintiff attorneys to use a tactic known as reptile theory, which evokes emotions of fear and anger in jurors to encourage nuclear verdicts. As Lewis Brisbois put it, “This company was so terrible you should punish them, regardless of whether any of our evidence showed the company or its driver’s actions actually caused the subject crash.”
The Admission Rule has been adopted in several states. In Texas, courts are split on the rule, with some adopting it and others – like the 14th Court of Appeals – rejecting it.
Werner is asking the Texas Supreme Court to cement the Admission Rule into state legal precedent.
During oral arguments, Werner said that a trucker’s entire day is on trial. Rather than focusing on what a driver did immediately before and during a crash, juries are considering irrelevant information about the company.
(H3) What should have been a quick trial turned into a six-week circus dissecting every decision made by Werner.
“We wanted to make this case about everything except for the three-second accident sequence,” Wright said. “It was all about trying the company.”
Walker argued that the Admission Rule disincentivizes employers from training and supervising their employees. He said that the negligence of the employer and the negligence of the employee both contribute to an injury.
“I think it’s unfair to hide that from the jury and then foist liability that would ordinarily fall on the employer onto the untrained employee,” Walker said.
The following groups have filed amicus briefs in the case, all of them supporting Werner’s bid for the Texas Supreme Court to adopt the Admission Rule:
- Acuity Insurance
- American Trucking Associations
- Schneider National Carriers
- Texas Association of Defense Counsel
- Texas Civil Justice League
- Texans for Lawsuit Reform
- Texas Trucking Association
- Trucking Industry Defense Association
- U.S. Chamber of Commerce
Texas Supreme Court Hears Werner’s $100M Verdict Appeal
Attorneys Spar Over Jury Award in 2014 Fatal Accident
Eric Miller
Attorneys for Werner Enterprises have asked the Texas Supreme Court to reverse a $100 million verdict against the company in a case involving a fatal accident. The case centers on a 2014 crash in which a pickup truck crossed a median and struck a Werner truck traveling in the opposite direction on a snowy highway.
Werner has during trials in lower courts steadfastly maintained that its driver could not have avoided the crash and did not share any of the fault. However, a Texas jury in a 2018 trial was instructed that it could apply a “proximate cause” legal standard in the case. A proximate cause is defined as a partial cause that was a substantial factor in bringing about an injury, and without which such injury would not have occurred. The court ruled that there was sufficient evidence to support a finding that insufficient training and supervision for the Werner driver behind the wheel at the time “proximately caused the collision.” An appeals court upheld that ruling, prompting Werner to take its case to the state’s highest court.
In oral arguments on Dec. 3, Werner attorney Thomas Wright told the court that Werner driver Shiraz Ali could not have foreseen that a pickup truck would suddenly cross an icy divided highway and strike the carrier’s truck. He further argued that the appeals court deviated from legal precedent in upholding the lower court ruling, and “disregarded all the cases from the Texas state courts and around the country’s lower courts.” Wright added that the appeals court, “for the first time has held that a driver in his own lane under control of his vehicle is liable when somebody on the opposite side of an interstate highway loses control, spins out, crosses over a 30-foot median plus the shoulders, runs into the driver in his own lane with no time to react.”
Countering Wright’s stance, Supreme Court Justice Jane Bland asked, “Is it reasonably foreseeable that on an icy day that there may be lane intrusion by someone if not this exact scenario traveling across a highway median, but somewhat skidding and entering your lane?
Wright replied, “It’s certainly foreseeable somebody in the next lane could come into your lane, but you cannot realistically travel down the highway in any kind of weather if you have to anticipate that somebody without warning leave the interstate lane 30 feet across. That’s why they built the interstate highway system, to keep these cars separated. What’s the point of having an interstate?
Wright continued, “We believe that the plaintiff’s way to decide the case is to say he had no duty to people across the road. …If I thought that driving down the [divided] highway afraid that somebody would lose control, come across and hit me and it would be my fault, I might just stay home.”
Arguing on behalf of the plaintiffs in the case, attorney Darrin Walker suggested that the Werner driver should either have been “driving very slow or pulling over during icy conditions, and that at the time of the collision was driving too fast.”
“The road was like a skating rink,” Walker said. “It was covered in ice, cars were going off the road left and right, and there were two cross-median collisions in this case.” He acknowledged, however, that the Werner driver did not encounter those crashes.
“In some cases there may be some circumstances whereas a matter of law a cross-median collision is not foreseeable and the driver does not have to take any precautions,” Walker said, “but in this case the evidence was clear that a cross-median collision was foreseeable.”
The crash resulted in the death of 7-year-old Zachery Blake, catastrophic permanent injuries to 12-year-old Brianna Blake, significant injuries to 14-year-old Nathan Blake and the Blake children’s mother, Jennifer Blake.
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Werner objected to the 2018 jury’s finding that the driver and company were negligent, and also to the court judge’s decision to allow certain evidence in the case. Additionally, Werner objected to the jury’s award of future medical care expenses for the plaintiffs.
Werner maintained that at the time of the accident, Ali was “proceeding in his lane, in control of a Werner tractor-trailer and well below the speed limit, when the [plaintiff’s] vehicle suddenly careened into his path, leaving him no time to avoid a collision.”
Despite this, the lower court jury found both Werner and Ali liable and assessed the award, according to court documents.
Trucking industry groups have come forward to support Werner in legal briefs filed with the Texas Supreme Court. They include American Trucking Associations, the Texas Trucking Association, the U.S. Chamber of Commerce and the Texas Civil Justice League.
“In recent years, trucking companies have faced a growing trend of so-called ‘nuclear verdicts’ in highway accident litigation — verdicts that are not only shockingly large, but which, like the verdict here, are fundamentally unfair in that they are untethered to the realities of the case,” ATA wrote in a brief filed with the high court last month.
Werner ranks No. 16 on the Transport Topics Top 100 list of the largest for-hire carriers in North America and No. 4 on the truckload/dedicated sector list. It also ranks No. 30 on the TT100 of the largest logistics companies in North America.
Bahar Gholipour
CHICAGO — The familiar tune of the Bee Gees song “Stayin’ Alive” has been used for medical training for quite a few years now: It has the right beat — not to mention, the perfect title — for providing CPR’s chest compressions at the right pace to revive a patient.
The 1977 hit song has a rhythm of 103 beats per minute (bpm), which is close to the recommended rate of at least 100 chest compressions per 60 seconds that should be delivered during CPR. Plus, the song is well known enough to be useful in teaching the general public to effectively perform the lifesaving maneuver.
In fact, the American Heart Association (AHA) officially recommends that if you see someone collapse, you should “call 9-1-1 and push hard and fast in the center of the chest to the beat of the classic disco song “Stayin’ Alive.” The AHA has gone as far as depicting the act in an educational music video featuring comedian and physician Ken Jeong.
But although the song seems to be the perfect soundtrack for CPR, it does have some drawbacks. Namely, it is an American song, so not everyone around the world is familiar with it. However, there are other songs with the right beat that might do just as well, according to researchers in Japan.
In a new study, Dr. Yoshihiro Yamahata, of Kyoto Prefectural University of Medicine, and his colleagues tried using new songs to instruct a group of newly hired nurses to perform CPR. The researchers presented their findings this week at the AHA meeting in Chicago.
“The quality of CPR is the key to [helping] the victim recover,” Yamahata said. “Our solution to master adequate CPR skills is to put the educational words on several famous songs with 112 bpm and 8 beats” per measure, he said.
Receiving high-quality CPR can double, or even triple, a person’s chance of surviving cardiac arrest outside the hospital, according to the AHA. For effective CPR, the AHA recommends delivering at least 100 chest compressions per minute, making each compression at least 2 inches (5 centimeters) deep and ensuring full “recoil,” meaning the chest wall returns to its original position between each compression.
Joseph Bui
Civil cases generally only result in monetary damages or orders to do or not do something, known as injunctions. A criminal case may involve both jail time and monetary punishment.
The American justice system addresses the wrongdoings that people commit with two different types of cases: civil and criminal.
Generally speaking, criminal cases are offenses against the state, even if immediate harm is done to an individual. Accordingly, they are prosecuted by the state in a criminal court.
On the other hand, civil cases typically involve disputes between parties regarding the legal duties and responsibilities they owe to one another. In general, family law disputes and personal injury cases are civil cases. These cases are handled through civil lawsuits that are prosecuted in civil court.
Although there is some overlap between civil and criminal cases, there are several ways in which you can tell the difference between a criminal case and a civil case.
Criminal Case vs. Civil Case: Distinctions
Here are some of the key differences between a criminal case and a civil case:
Crimes are considered offenses against the state, or society as a whole
Criminal offenses and civil offenses are generally different in terms of punishment
The standard of proof is very different in a criminal case versus a civil case
Criminal defendants have a constitutional right to a trial by jury
Defendants in a criminal case are entitled to an attorney and will be assigned a public defender if they cannot afford one
More protections are afforded to defendants in a criminal trial
Crimes are Offenses Against the State
Even though one person might murder a particular person, the murder itself is considered an offense to everyone in society. Accordingly, crimes against the state are prosecuted by the state. The prosecutor, which is generally the district attorney or city attorney, files the case in court as a representative of the state. If it is a civil claim, then a private party files the case.
Differences in Punishment
Because criminal cases have greater consequences, including the possibility of jail and even the death penalty, criminal cases have many more protections in place and have a higher standard of proof.
The Standard of Proof
Everyone accused of a crime is presumed to be innocent until they are proven guilty. In general, crimes must be proven beyond a reasonable doubt, whereas civil claims are proven by lower standards of proof, such as the preponderance of the evidence.
“Beyond a reasonable doubt” means the prosecution has provided evidence that proves that there is no other reasonable explanation outside of the defendant’s guilt.
“Preponderance of the evidence” means it is more likely than not that something occurred in a certain way.
The prosecutor in a criminal proceeding has the burden of proving that the defendant is guilty beyond a reasonable doubt. This is known as the burden of proof.
Under this burden, the defendant has no obligation to prove their innocence. The standard of proof the prosecutor must meet is much higher than in a civil case. After all, criminal convictions, such as felonies and misdemeanors, tend to carry heavier consequences for a defendant than civil penalties do in civil suits.
Jury Trials
Criminal cases almost always allow for a trial by jury. Civil cases do allow juries in some instances, but many civil cases will be decided by a judge alone in what is referred to as a bench trial.
The Right to an Attorney
A defendant in a criminal case is entitled to an attorney. If they can’t afford one, the state must provide an attorney. Defendants in a civil case don’t have the right to an attorney. If they can’t afford one, they’ll have to represent themselves.
Defendant’s Rights and Protections
The protections afforded to defendants under criminal law are considerable. An example is the protection against illegal searches and seizures under the Fourth Amendment. Many of these well-known protections aren’t available to a defendant in a civil case.
The Same Conduct Can Result in Civil and Criminal Liability
Although criminal and civil cases are treated very differently, many people often fail to recognize that the same conduct can result in both criminal and civil liability. Perhaps one of the most famous examples of this is the O.J. Simpson trial. The same conduct led to a murder trial (criminal) and a wrongful death trial (civil).
In part, because of the different standards of proof, there wasn’t enough evidence for a jury to decide that O.J. Simpson was guilty beyond a reasonable doubt in the criminal murder case. In the civil trial, however, the jury found enough evidence to conclude that O.J. Simpson wrongfully caused his wife’s death by a preponderance of the evidence.
Kathy Close
States are required, as part of their commercial driver’s licenses (CDLs) programs, to share and receive data from the federal CDL database, Commercial Driver’s License Information System (CDLIS). The state’s MVR includes any data entered on the driver’s record through CDLIS. As a result, the report provided by the state on CDL holders is often called a CDLIS MVR.
MVRs are a critical piece of the driver qualification process. Anyone hired to operate a commercial motor vehicle (CMV) as defined in §390.5, which includes both CDL and non-CDL vehicle types, is subject to the recordkeeping requirement.
DQ File Requirements
Motor carriers are required to obtain an MVR covering the previous three years for each new driver they employ, and then update the record every 12 months during employment.
For the initial 3-year MVR, a request must be sent to every state in which the driver held a license or permit during the last three years. A copy of each state’s record must be:
- Placed in the driver’s qualification (DQ) file within 30 days of his or her employment date (this window can be shorter for CDL drivers, see their MVR requirements below), and
- Kept until three years after the driver’s employment ends.
The regulations also require a motor carrier to obtain and review an MVR on each driver annually, covering the previous 12 months. Each annual MVR and the note documenting the annual review can be removed from the driver’s qualification file after three years.
Additional Requirements for CDL Drivers
For interstate CDL holders whose MVR includes medical certification information, when accepting the driver’s current medical certification which was likely issued more than 15 days prior, the MVR must be obtained before the driver operates a CMV, to prove that the driver is physically qualified.
The CDL MVR:
- Must be obtained every time the driver’s medical certification status changes;
- Must be secured within 15 days following the driver’s medical exam; and
- May be used to satisfy the initial or annual MVR requirements (serves a dual purpose).
MVRs as a Risk Management Tool
But the MVR is more than just a regulatory obligation. The MVR offers the motor carrier a glimpse into the behaviors of the driver since past behaviors are often an indicator of future performance. The way a driver handles vehicles — personal and commercial — is often revealed through a review of his or her driving record.
A motor carrier’s hiring and safety policies should set standards as they relate to the MVR. Scoring traffic convictions is one way to objectively rule out a candidate or require a current driver to go through coaching or refresher training. The severity of a conviction, frequency of citations, and how long ago a traffic conviction occurred are often included in this decision-making.
FMCSA offers, not requires, the Pre-employment screening program (PSP) report. If used as a best practice at the cost of around ten dollars or less, the PSP report may offer additional information when vetting drivers at hire.
MVRs and PSP reports have some key differences. The PSP:
- Includes data from all CDL numbers a driver has held for the past 5 years, while the MVR includes only data from the current CDL issue by that state.
- Includes the original violation regardless of whether it resulted in a different conviction, while MVRs only show events resulting in a conviction.
- Includes a driver’s five-year crash history and three-year roadside inspection history, while the MVR includes only convictions in a given state and not warnings, citations, and tickets yet to be settled in court.
Mark Schedler
Preparing your drivers and dispatch team for successful roadside inspections doesn’t just help minimize the chance of vehicle-related violations — it’s critical for avoiding accidents and minimizing over-the-road repairs. Improve compliance and safety across your fleet with these 10 tips for a successful ELD roadside inspection.
- Clean the Truck Cab
Pay attention to the overall cleanliness of the cab. Remove extra garbage, especially from the top of the dashboard, which could impact viability and potentially cause items to drop into the area of the brake and accelerator pedals. A messy cab makes the officer ask “What else isn’t in order with this driver or vehicle?”
- Plan Your Route
The benefits of planning every single trip in advance are three-fold:
- Compliance: Make sure you have enough hours available and opportunities to take required breaks so you can legally and safely reach your destination without becoming fatigued.
- Safety: Check the weather forecast and plan your route so you can avoid excessive delays driving through big cities and extending the workday.
- Effectiveness: Look for potential obstacles along the route such as road closures, construction, or tolls that may cause delays. If applicable, use only route-planning software/applications suitable for use with heavy-duty truck operations to avoid illegal routes, low overpasses, and other hazards.
- Conduct a Thorough Pre-Trip Inspection
While each company’s version of a “proper” pre-trip inspection may differ slightly, as a standard, required items should be checked in the same sequence each time to create the habit for conducting a thorough pre-trip. There is no industry standard amount of time to log for a pretrip. Thorough inspections should be completed and logged for the actual time taken to do so.
- Mount, Charge, Connect, and Update HOS Electronic Logging Devices Before Driving
Before operating the vehicle, verify that the ELD display is in a fixed position where you (the driver) can view the device when seated driving position. Drivers must be able to present their record of duty status to an inspection officer via wireless web services and email, or USB and Bluetooth. For this reason, each driver should take extra caution to ensure their hours-of-service devices are fully charged and operating as expected, along with being updated to the most recent actual duty-status change.
Any unassigned driving time must have been accepted if legitimate, or rejected for processing by the office staff before commencing driving for the day.
Personal conveyance (PC) events must not have any business purpose and the driver must have been released from all duties. A PC event such as a move to a maintenance shop or closer to a shipper, will be reclassified as on-duty driving time during an inspection and a violation will likely be received. Misuse of PC is a major reason that falsification is usually in the top five driver roadside violations.
- Know Hours-of-Service Limits and Rules of Exception(s) Used
Make sure drivers and officer dispatch personnel know the hours of service rules and understand how many consecutive hours drivers are allowed to drive before they are required to take a break, if drivers qualify for any exceptions, and how to make appropriate use of their ELD to help regulate their compliance.
- Ensure Truck Driver In-Cab Driving Paperwork is in Order
Drivers should keep all applicable documentation up to date, organized, and easily accessible from their cab. Required documents include:
- Driver’s license, medical certification, and any applicable medical waivers
- Supporting documents, such as bills of lading and expense reports (up to eight supporting documents need to be retained for each driver, each day)
- Hazmat documentation
- Annual vehicle inspection information
- Permit credentials, including the International Registration Plan (IRP) cab card, International Fuel Tax Agreement (IFTA) license and decals, and any temporary permit
- ELD-related documents, including eight days of blank logs, driver information, and malfunction/transfer instructions for the device being used
- Confirm Prior Days’ Record of Duty Status’ (RODS) Certified on the ELD
Prior days’ RODS must be certified immediately after the last change of duty status for the applicable 24-hour period. Leaving logs uncertified is the same as having a prior day paper log that isn’t signed — it’s a violation.
- Conduct a Thorough Post-Trip Inspection
Post-trip inspections should include the same vehicle components checked in the pre-trip inspection. Establish a consistent step-by-step process for completing the inspection in an efficient manner, without leaving anything out.
- Complete DVIR to Note Any Safety Defects
Drivers of property- and passenger-carrying vehicles should complete a driver vehicle inspection report when a defect exists that affects the safety of the vehicle or could cause a potential breakdown. Carriers may require a DVIR regardless of the presence of defects.
- Be Positive
Attitude is everything. Drivers should remain calm, be respectful, avoid argument, and ask the officer to explain the violation(s). A driver can’t talk themselves out of an inspection, but they can certainly talk the officer into one.
Drivers and motor carriers share equal responsibility for achieving violation-free roadside inspections. Drivers should be prepared for a roadside inspection at any time, while it is the ongoing responsibility of the carrier to keep drivers trained, well informed of regulatory changes, and positioned for success.
