Three experts tackle nuclear verdicts, COVID-19 effects, and post-crash investigations.
What dangers do nuclear verdicts hold for the transportation industry? How is COVID-19 affecting claims and litigation? And what are some strategies for effective post-crash investigations? We ask three experts what they think about these and other transportation-related issues.
HOW WORRIED ARE YOU ABOUT NUCLEAR VERDICTS IN TRANSPORTATION CLAIMS?
ERIC MIERSMA, BALESTRERI POTOCKI & HOLMES: The potential for a nuclear verdict is a genuine concern in some jurisdictions. This is particularly so when a defendant motor carrier does a poor job of maintaining its records or has poor hiring practices. Nuclear verdicts are the result of a jury wanting to send a larger message to a company or the industry as a whole. When plaintiffs can show that their injuries were caused by a company that can be depicted as uncaring and sloppy, then the jury is more likely to empathize with them instead of the defendant and award the plaintiff the maximum possible amount of damages.
JAMES FOSTER, CASSIDAY SCHADE LLP: On a macro level, the pandemic, severe economic conditions, and social unrest have led to increased stress and uncertainty. The combination of these three can lead to an immediate danger to the safety of the community and a fear and danger reaction. Based upon the principles of the reptile theory, this can lead to nuclear verdicts. However, and on a micro level, some industries are heroes, like trucking companies and truck drivers that brought food and medical equipment, and now vaccines, to communities. In my view, there will be fewer nuclear verdicts against trucking companies in 2021 and 2022, as the prior “threat” of the trucking industry has turned into the “protection” of the safety of the community, and trucking companies should be revered and not feared.
DALE THUMANN, CUSTARD INSURANCE ADJUSTERS INC.: Everyone in the transportation industry should be worried about nuclear verdicts. If hit with these verdicts, perfectly safe companies risk going out of business. Nuclear verdicts are also raising insurance rates industry-wide, some of which are unaffordable for certain companies. These verdicts can happen to any company, no matter their safety record. Our industry needs to continue development of strategies to defend these cases.
WHAT IS YOUR BEST STRATEGY FOR COLLECTING INFORMATION IN THE EARLY STAGES OF A TRANSPORTATION CLAIM?
JAMES FOSTER, CASSIDAY SCHADE LLP: The investigation must be initiated immediately after a catastrophic accident. Defense counsel should work together with both the independent adjuster and accident reconstructionist to first inspect the scene of the accident, and then inspect the vehicles involved to secure data on speed and braking, and interview witnesses. It is crucial to issue a preservation letter to the tow yard to prevent the claimant’s vehicle from being sold, and a preservation letter should be sent to the claimant for their actual cell phone and cell phone records. Best practices include securing all surveillance camera video from buildings and traffic control devices at the scene. All in-cab cameras and other computer data, including collision avoidance, positioning and messaging devices, logs, and maintenance records should be preserved. The commercial motor vehicle driver is the face of the company and should be interviewed as soon as possible to develop a laser-focused defense trial strategy.
DALE THUMANN, CUSTARD INSURANCE ADJUSTERS INC.: Rapid response is critical to collecting meaningful information. Even before an accident occurs, a team should be developed to handle transportation-related claims. This team should consist of an attorney, independent adjuster, and accident reconstructionist. All members must be familiar with their specific assigned tasks: obtaining photographs and speaking with all parties, such as law enforcement, witnesses, drivers, and claimants. The team should also designate who will obtain and preserve documents. The goal is to develop an early opinion of liability and facilitate the possibility of early claim resolution.
ERIC MIERSMA, BALESTRERI POTOCKI & HOLMES: My best strategy for collecting meaningful information early on is to spend as much time as possible talking to the driver and motor carrier. Not only are they the best source of information at the early stages of litigation, but also you need to build a relationship with them and establish mutual trust.
WHAT IS YOUR BEST STRATEGY FOR CONNECTING WITH JURIES?
JAMES FOSTER, CASSIDAY SCHADE LLP: Voir dire is crucial for connecting with jurors to let each juror know that they should not leave their common sense and logic outside of the courtroom when empaneled as a juror. The case is about the facts of this accident and the actual injury to the plaintiff, and not what “could have been” out of the reptile theory playbook. The trial should not be turned on its head by putting the defendant transportation company’s policies and procedures on trial, when they have no causal connection to the injuries sustained.
ERIC MIERSMA, BALESTRERI POTOCKI & HOLMES: My goal for connecting with jurors is to value their time and intelligence, and to find common ground with each of them. While you need to establish the elements of your case and introduce the necessary evidence, you can do so without being overly pedantic, repetitive, or condescending. If the jury does not like the lawyer, they probably will not like the client, either. It is already difficult enough to humanize a corporate defendant or defeat preconceived notions of truck drivers without also alienating the jury.
AS CANNABIS BECOMES LEGALIZED IN MORE STATES, HAS DRIVING IMPAIRED BECOME A BIGGER CONCERN?
DALE THUMANN, CUSTARD INSURANCE ADJUSTERS INC.: From our side, cannabis will remain simply another aspect of accident investigation. We have always investigated to determine if any alcohol or drugs, illegal or prescribed, contributed to an accident. What I feel is a bigger concern is cellphone usage while on the road, which statistics show causes many more accidents.
HOW DID COVID-19 AFFECT TRANSPORTATION CLAIMS/LITIGATION? IS THE EFFECT TEMPORARY OR PERMANENT?
DALE THUMANN, CUSTARD INSURANCE ADJUSTERS INC.: COVID-19 affected every aspect of transportation claims and litigation. New processes had to be developed, from filing claims to handling litigation. All parties had to become accustomed to working in a virtual world. A positive development is that communities rallied around transportation companies and their workers, realizing the impact they had on food and medical supply delivery. Who ever thought we would see yard signs saying, “WE LOVE TRUCKERS”? This newfound appreciation for our industry will help with litigation, but it will fade over time. Right now, defense teams should make sure jurors recall the great impact trucking companies had during the pandemic.
ERIC MIERSMA, BALESTRERI POTOCKI & HOLMES: COVID-19 greatly diminished the number of claims being filed during the early part of quarantine. Although trucks were still on the road, there were far fewer other vehicles, which translated into fewer accidents. This was a temporary lull, though, and claims are increasing now that there are more people on the road again. Early conventional wisdom was that plaintiffs would be more willing to settle cases because jury trials were being postponed for months if not years. However, I found this was not the case, and many cases either went into hibernation or plaintiff’s lawyers actually became more aggressive in their discovery and litigation. I believe this will moderate some when courts clear backlogs.
JAMES FOSTER, CASSIDAY SCHADE LLP: There has been an increased importance in preparing 30(b)(6) witnesses, drivers, and safety directors for deposition to withstand a reptile theory attack by plaintiffs. I think that the phrase “time and distance” has added importance to prepare defense witnesses virtually. In my view, these witnesses should be prepared over two or three sessions (time), while leaving enough of a gap between sessions for the defense witnesses to process plaintiffs’ reptile theory game plan and questioning (distance). This extensive virtual deposition preparation should significantly reduce the number of admissions made by the defense at deposition, directly leading to less nuclear verdicts at trial. With a return to in-person depositions, the hope is that this will be temporary. K
James Foster is a partner at Cassiday Schade LLP. jfoster@cassiday.com
Eric Miersma is member at Balestreri Potocki & Holmes. emiersma@bph-law.com
Dale Thumann is senior vice president, regional manager central U.S. operations, for Custard Insurance Adjusters Inc. dthumann@custard.com
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