Keep Your Friends Close and Your Enemies Closer: An Update on the Plaintiff's Bar's Attack on the Trucking Industry
Staying abreast of plaintiffs’ lawyers strategies has almost become as important as knowing the FMCSA regulations. One of our best days defending common carriers and their drivers is when plaintiff’s counsel treats the case as an automobile negligence case. I fear that that day is ending.
Years ago, the only organized plaintiff’s attack most defense lawyers saw was presented by the American Trial Lawyers Association (ATLA). That group has now morphed into the American Association for Justice. This group supports plaintiffs’ lawyers generally but without a strong focused attack on the trucking industry.
Recently, a new threat has appeared on the horizon. Several organizations that are thinly veiled as public interest groups, Citizens for Reliable and Safe Highways (CRASH), stopbiggertrucks.org, Parents Against Tired Truckers (P.A.T.T.) and the Truck Safety Coalition have emerged. These groups appear to have a public interest veneer, however if you peal back the crust, a lawyer group is involved.
A few years ago a group emerged that is unabashedly a plaintiffs’ lawyer’s group that brings a frontal attack to the trucking industry: the Association of Plaintiff Interstate Trucking Lawyers of America (APITLA). The inaugural seminar was held in St. Louis on May 30th, 31st and June 1st of 2008.
That meeting focused on plaintiffs’ attacks on the trucking industry. The goal of the seminar was to teach the lawyers who attended ways to maximize their clients’ recovery in trucking cases. The seminar featured a nationally known lawyer who is knowledgeable in the trucking industry, David Nissenberg. Mr. Nissenberg spoke on expanding theories of liability in interstate trucking cases.
The stage was then taken by plaintiffs’ lawyers, several from the State of Missouri, who spoke on topics of damages, depositions and cross-examination of defendant truck drivers and safety directors. The lectures focused on techniques that were designed to trap drivers and safety directors and to drive up the value of the case. The first seminar was a marginal success. We have discussed its impact and materials.
APITLA also began sponsoring “Trucking Tuesdays.” These are podcasts that are broadcast through the West Legal Ed Center. To join the call, you are required to confirm that you are a lawyer who is not retained by trucking or insurance companies. The topics are generally how to prepare and win cases against trucking companies. We were able to infiltrate and learn that they are not “over the top” in terms of content; however, they continue to beat the drum of the anti-trucking parade.
APITLA publishes “The Lawyers Log Book.” This is a “For Plaintiffs’ Lawyers Only” magazine that comes out every two months or so. A recent issue included articles about FMCSA regulations, truck and train collisions, black boxes, tips with respect to getting past summary judgment and to the jury in trucking cases, and the criminal prosecution of truck drivers.
One article that was particularly interesting was one that gave tips to plaintiffs’ lawyers on investigating fatal collisions. The article suggests finding out if the driver was fired, and if so, attempting to get a statement from him because he “may have an ax to grind with his former employer.”
APITLA has also sponsored focused “mini” seminars. One, in September, 2009, focused on fatigue in the trucking industry “from crash to closing argument.”
Judging from its recent activity, APITLA is not going away. It hosted an “Interstate Trucking Super Summit” in September, 2011 in St. Louis. The faculty included several well-known plaintiffs’ lawyers and several experts. An overview of the seminar indicates the level of sophistication is increasing. The seminar topics again focused on maximizing recovery in trucking cases. One of the overriding themes of the seminar was what plaintiffs’ lawyers should focus on: to make the case about the company and not about the driver.
The other overriding theme, which is not new, (ironically somewhat tired) is summed up by chanting “fatigue, fatigue, fatigue.” This is not surprising because Dan Ramsdell, the National Director of APITLA, promotes himself as an “expert” on using fatigue in maximizing recovery in a trucking case. He published an article in The American Trial Lawyer magazine titled: "What To Do In Every (Fatigued) Trucking Case."
The article begins: “Fatigued truck driving is the number one safety problem in the trucking industry today.” The article includes this formula:
Fatigued Driving=Greedy Driving
Fatigued Driving=Greedy Driving=Predictable, Preventable, Punishable Catastrophy
While the real “catastrophe” may be Mr. Ramsdell’s spelling, Mr. Ramsdell’s point is that fatigue is a theme that the plaintiffs’ bar finds appealing, because it fits easily into a “company trades safety for profit” trial theme. Of course, Mr. Ramsdell does not miss the opportunity to promote himself in the article by implying that only a seasoned trucking lawyer (i.e. Dan Ramsdell) should be trusted with handling these types of cases. Some of you may remember my excellent article in ALFA International’s Transport Update that reported on Dan Ramsdell’s article. Mr. Ramsdell was not pleased.
Mr. Ramsdell, through APITLA, continued his fatigue marketing campaign at the September 2011 seminar. His topic was titled: “Asleep at the Wheel – A Conscience Disregard for Safety.” Here is how his coursebook paper begins:
“ASLEEP AT THE WHEEL - A CONSCIOUS DISREGARD”
- An Emerging New Standard of Care
FOUR MILLION DOLLAR CONFIDENTIAL SETTLEMENT SUMMARY
IN RESPONSE TO A CHALLENGE, THE AUTHOR WAS HIRED BY ANOTHER LAW FIRM WHO ACCCEPTED THE CHALLENGE, IN THIS CMV BUS vs. MOTORCYCLE REAR END CRASH CASE. THE AUTHOR WAS HIRED TO HANDLE THE FATIGUED DRIVING LIABILITY PORTION OF THIS CASE, FOR WHICH THE DEFENDANTS HAD PREVIOUSLY DENIED ANY AND ALL LIABILITY, AND WERE OFFERING ZERO TO THE PLAINTIFF.
(The challenge accepted was one made by the author that he could turn any rear-end interstate trucking crash into a punitive damages, fatigued driver case.)
AFTER HAVING SUCCESSFULLY DONE SO … PURSUANT TO THE CONFIDENTIAL TERMS OF THE $4 MILLION SETTLEMENT, THE NAMES OF THE PLAINTIFF & DEFENDANTS ARE WITHHELD.
It seems that one of the driving purposes of the seminar is for the leadership of APITLA to market their “skills” to lawyers who attend.
Mr. Ramsdell was not the only presenter. The other presentations were:
-Mining and Presenting Damages in a Trucking Case – John Shea
-Lay Witnesses in Brain Injury Cases – Marcus Davis
-Defense of a Fatigued Truck Driver – Marc Matthews (former Interstate Trucking Defense Attorney)
-Effective Use of the Latest Technology in Reconstructing Trucking Accidents- Dr. Richard Ziernicki
-Simplifying and Visualizing your Case: Two Essentials for Winning- Steve Garner
-How to Win your Case at the Truck Driver’s Deposition- Chip Sloan
-Controlling Legal Costs Through WestlawNext Technology and Efficiencies- West Law Representative
-The Criminal Prosecution of Interstate Trucking Companies and Truck Drivers for Violations of the FMCSR – Kerry Steigerwald and Steven Plourd
-Airbrake Study & 20 Years After NTSB Heavy Truck Air Brake Study – David Stopper
-Untangling the Wreckage- Investigating Truck Crashes- Brian Davis
-Considering Medicare’s Future Interests in Liability Settlements – Jason Lazarus
-The Impact of Race, Gender & Life Expectancy on Economic Damages – Robert Johnson
-Think About What You Are Doing, Understand Why You Are Doing It – David Bossart
-Gibbs v Albright – Ken McClain
-Debunking the “White Hat” Defenses – Todd Romano
-Back to the Basics – Bob Swint
-Demonstrative Evidence / Computer Generated Evidence/ Accident Reconstruction – Lynn Johnson
-Hours of Service Violations: Proof / Conscious Disregard for Life and Safety- Christian Searcy
-Investigating & Litigating the Inclement Weather Trucking Collision Case- Preston Scheiner
-Alternative Theories of Recovery- Danny Thomas
-Basic Information on Truck Inspection- Don Asa & James Acock
-Broker/Shipper Liability in Trucking Cases- Martin Healy & Jack Cannon
-Maximizing Recovery in Cases involving Intermodal Containers and Chassis – David Nissenberg
-How to Bullet Proof Your Expert from Daubert Challenges- Ted Bassett
-Why I have Enjoyed Trying Truck Wreck Cases for over 3 ½ Decades – Frank Branson
-Defending Interstate Trucking Companies – Nationally Renowned Interstate Trucking Defense Counsel- (This speaker will only be present at the conference during this 30 minute presentation)
-Driver Fatigue: The Trucking Company’s Responsibility- Jeff Burns
-Don’t Sell Your Client’s Case Short [And...Defendants Will Hide Their Insurance Coverage] – Kent Spence
-The DOT Physical- Thomas Landholt
-Sample Opening Statements- Burrell v O’Reilly-Ed Hershewe
-Q&A Panel Closing Arguments- Mark DiCello, Sagi Shaked, Jon Papin, Steve Garner & Shean Williams
-Jury Selection: 10 Psychological Questions Which Will Determine How the Jurors Will Vote Three Weeks Later- Thomas Girardi
-Record Keeping in the Digital Age- John Moore
-It’s Just a Rear-Ender- David Sweat
-The Psychology of Handling Each Phase of the Big- Rig Trucking Case & Trial- John Romano
-The 10 Items You Don’t Want Me to Find in Your File How to Avoid Legal Malpractice in Interstate Cases – Michael Mihm
-Focus Groups and Presentation of Live Voir Dire in Trucking Cases- Harvey Moore
It is important to know that the plaintiffs’ bar is addressing issues that are addressed by the defense bar. ALFA International’s Pete Doody and Renee Bloom from Quality Distribution gave a great talk at the DRI Trucking seminar on admitting liability.
Admitting liability was addressed at the APITLA conference. Mr. Eric Romano stressed to never assume liability will be admitted. His “intel” was a little off. While Renee and Pete gave scenarios where it would be wise to admit liability, Mr. Romano warns: “Defense seminars with insurance company defense lawyers, and insurance company representatives, and trucking company reps and lawyers are being held throughout America where the “teaching point du jour” is to tell the attendee lawyers to always contest all aspects of liability.”
Mr. Romano’s rationale goes like this:
“1. If you contest liability, it is always possible that someone on the jury might believe it, even if it is a case of clear liability.
2. If the trucking company contests liability fully and completely, but then the jury understands the fallacy of the defense and finds for the plaintiff, then there is the hope by the trucking company and the insurance company representatives that now at least one or two more defense-oriented jurors will successfully convince other members of the jury that they should stay low on damages since they are giving the plaintiff a break on liability. When you, as a plaintiff lawyer, assume that a case is one of clear liability, you may unfortunately fail to take those steps necessary that you otherwise would have taken in a fully and hotly-contested liability case. Some lawyers slack off in obtaining written or recorded witness statements when they think it is a clear liability case – only to be hurt months or years later in the litigation when liability is indeed contested and now that all- important witness has forgotten so many important things. Some lawyers slack off when it comes to obtaining the full and complete investigation early on in the case because they think it “is a case of clear liability and that is not necessary.” Never, never, never, never, never assume the case is one of good liability – never – I repeat, never!”
Another interesting plaintiff’s lawyer tactic was revealed. Mr. Romano advises to commit to your “O.S.P.A.” immediately upon becoming involved in the case. “O.S.P.A.” stands for “Opposition Strategy Prediction Assessment.” He advises “surveillance is a two-way street.” He points out that Plaintiff lawyers often become apoplectic over the fact that insurance defense lawyers and insurance defense company representatives for big trucking companies conduct surveillance on the plaintiffs with respect to the existence or extent of injuries or as related to other activities. Early surveillance on the defendant trucking company and truck driver relating to certain activities should be considered.
A Missouri case is good evidence of the danger of plaintiffs watching you. Coon v American Compressed Steel, Inc. 207 S.W.3d 629, (Mo. App. 2006) was a wrongful death case with a jury verdict of $2,000,000 compensatory damages and $1,000,000 damages for aggravating circumstances (the equivalent of punitive damages in a wrongful death case). The decedent was driving along I-70 when she was killed by a 37-pound steel plate that flew through her windshield. It was later determined that the plate had fallen out of a truck carrying a load of scrap metal. The drivers were allowed to decide how a particular load should be tarped, strapped, chained or otherwise secured. The drivers were expected to consider several factors, including the time it would take to tarp the load, the types of scrap metal involved and whether the truck would be traveling on highways (at highway speeds) or local streets. One week after the fatality, the company changed its policy and required drivers to place a tarp cover over all loads that would be hauled at highway speed. The plaintiff presented the testimony of a specialist in commercial motor fleet safety. The plaintiff also presented the testimony of an investigator who conducted surveillance of the company facility. The investigator observed that approximately 62% of incoming loads had scrap metal loads that were not tarped, chained or covered in any manner. Some of the loads were stacked over the top of the containers and hanging over the sides. The investigator further reported that he saw forty (out of a total of sixty-four) uncovered trucks during his ten days of surveillance. The court concluded this evidence supported the award of punitive damages.
Another interesting talk was by John Romano on the psychology of handling each phase of the big-rig trucking case in trial. He advised to be ready for “saga of defense ‘mind games’” in trucking litigation cases. He said to be weary of the defense lawyer approaching plaintiff’s counsel and saying something to the effect that “you already know this, but you’ve got some serious problems with your case.” He warns to not let an opposing lawyer suck you into an attitude of self-doubt and negativity about a case.
The level of paranoia and mistrust is almost comical. However, it is good to know what the other side is being told. Don’t assume that we are not being monitored as well.
The seminar included an extensive course book and what appears to be several sets of pattern interrogatories, requests for production, complaints, petitions and sample deposition outlines and questions.
Much of the APITLA advice is based on local trial guide “books” that have been published over the last few years including David Ball on Damages, The Essential Update, A Plaintiff’s Attorney’s Guide for Personal Injury and Wrongful Death Cases” (2d ed. 2005); David Ball and Don Keeton, Reptile, The 2009 Manual of the Plaintiff’s Revolution (2009) and, of course, Rules of the Road – A Plaintiff’s Lawyer’s Guide to Proving Liability (2d ed. 2010).
It is important to be “fully armed” when defending common carriers and their drivers. Part of the arsenal is to know what the other side is thinking.