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The Roundabout

CLM’s Transportation Committee talks nuclear verdicts, spoliation, and in-cab cameras

November 08, 2021 Photo

CLM’s Transportation Committee gathered together several risk and legal experts in the transportation community to discuss trends in the industry. In this edition, moderator James Foster leads a discussion about nuclear verdicts in the industry, the use of spoliation-of-evidence arguments against plaintiffs, and pros and cons of in-cab cameras.

James Foster: Nuclear verdicts have appeared in trucking cases in recent years. Do you expect that trend to continue into 2022?

Gary D. Lovell: Excessive jury verdicts are likely to be the trend for the next few years; they may even become the new normal in the current geo-political environment. This trend seems most prevalent in metropolitan venues, although there have been some disproportionally large verdicts in small, traditionally liberal venues in 2021.

Andrew Mikulecky: Sadly, I believe the trend will continue—and will continue to get worse. The use and success of the reptile theory does not show any signs of slowing down. In fact, I believe plaintiffs’ attorneys will use the increased emphasis on “safety” brought on by the COVID-19 pandemic to find jurors who are more willing to “punish” trucking companies that have a perceived violation of a safety standard. Additionally, each nuclear verdict emboldens plaintiffs’ attorneys in pushing settlement values higher and higher.

Tom Dittoe: Runaway verdicts have always been a hammer that the plaintiffs’ bar has tried to use as leverage in negotiations. Defense verdicts—and defense “wins” in terms of reasonable damages awards—never make the headlines. What is increasing is the almost universal knowledge of nuclear verdicts, as they happen, in both the legal community and the general public. I fear this is laying the groundwork for the trend to continue.

Foster: Have you been able to affirmatively use spoliation-of-evidence arguments against plaintiffs? Have you requested that plaintiffs preserve the vehicle (which may contain valuable information stored in event data recorders), and request that plaintiffs preserve their cellphone, cellphone records, and Facebook postings?

Lovell: We are sending early evidence-preservation letters to claimants pre-suit, and we send them to plaintiffs and their counsel after suit for preservation of vehicles, electronic control and airbag modules, phones, iPad/mobile devices, phone records, social media accounts, and home computers. In the pre-suit phase, there has been very low response to any such requests. In post litigation, it has been successful in providing an additional point of leverage for negotiations.

Mikulecky: To date, we have not been able to affirmatively use spoliation of evidence against a plaintiff. However, this is a strategic move that we often overlook, and it should be used more often, especially since our side is bombarded with spoliation letters all the time.

In terms of digital evidence, we always ask defense counsel to research any potential social media accounts associated with the plaintiff or even their close family members. With social media so prevalent in society, it is a great source of information regarding the plaintiff. More often than not, the plaintiff does not have a presence online or has a very low profile online, but a family member does. In those cases, it has been highly effective in showing information that was thought to be private.

Dittoe: Yes, it’s nice to see the spoliation issue cut both ways. In particular, social media background checks are becoming a standard tool in completing our due diligence in defending a case, and it is imperative to preserve this potential bonanza of information.

Foster: Have plaintiffs used different theories of liability recently—such as separate counts for negligent hiring and retention or willful and wanton conduct—in their continued reptile theory attack against the trucking industry?

Lovell: The trend in appellate rulings has broadened the employer’s liability negligent hiring, training, retention, and supervision by the employer beyond their respondeat superior liability for the employee’s actions, especially with claims of punitive damages. Plaintiffs’ counsel use those independent allegations to pit the employee against the employer, with the emphasis being that the employee’s negligent act was, in part, due to the result of the employer’s failure to properly train or supervise. The reptile theory “profit” motive is woven into the employer’s “skimping” on training and supervision.

Mikulecky: Absolutely. To be honest, I am shocked when a complaint does not include negligent hiring and retention. These theories are repeatedly pressed during the deposition of our corporate representative. It is a low-hanging fruit for plaintiffs to throw in these seemingly innocuous counts, but if not properly defended, it could spell disaster for a company.

Dittoe: The independent contractor model creates certain challenges from a safety and loss prevention perspective. Often, safety programs and education need to be incentive-based as opposed to mandatory. Plaintiffs are continually trying to create the perception that loss-prevention programs are inadequate, insufficient, and a sign of the trucking industry’s lack of concern for the motoring public.

Foster: Have you found that the retention of in-cab cameras or video from the scene of the accident has allowed you to evaluate a case early on in litigation, as well as defend the case at trial?

Lovell: Onboard cameras and third-party surveillance cameras (e.g., security cameras from nearby businesses and homes or traffic cameras) have been very helpful in assessing liability in the rapid-response phase. Unfortunately, much of that video is lost when not secured promptly after a loss. When used at trial, the video footage can speak much louder than eyewitness testimony.

Mikulecky: Our company is in the process of implementing a forward-facing camera system for our fleet, so we have not yet seen the benefit of the system. However, when fully implemented, I believe it will greatly aid in the evaluation and defense of a case. We will know early on whether a particular case should be resolved quickly or whether there is a strong defense to liability that needs to be mounted.

Dittoe: The proliferation of available video footage reduces the unpredictability of estimating how credible the involved parties and independent witnesses will be perceived. This obviously can work for or against the defendant in determining liability. In either case, more immediate and definitive liability determinations allow for a better understanding of the potential exposure and the strategic steps needed to limit or contain the exposure. K

Meet the Panel

James A. Foster is a partner at Chicago-based Cassiday Schade LLP. He leads an emergency response team for catastrophic transportation accidents and serves as co-chair of CLM’s Transportation Committee. He is also on the faculty and executive council of CLM Claims College’s School of Transportation.

Gary D. Lovell is a partner at Copeland, Stair, Kingma & Lovell and has represented motor carriers, transportation network organizations, brokers, and their insurance carriers in tort litigation for 34 years in cases ranging from cargo losses to catastrophic injuries and death. His trial experience includes over 90 trials to verdict in Georgia and South Carolina.

Andrew Mikulecky is the vice president of legal for Roadrunner Freight, a leading metro-to-metro less-than-load provider. In this role, he manages and oversees all auto liability litigation for Roadrunner.

Thomas Dittoe has been in commercial trucking claims and litigation management for 35 years. He is currently working for ARC Claims Management, handling claims on behalf of several large trucking firms.

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About The Authors
Jim Foster

James A. Foster is a partner at Chicago-based Cassiday Schade LLP. He leads an emergency response team for catastrophic transportation accidents and serves as co-chair of CLM’s Transportation Committee. 

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