The Roundabout

CLM’s Transportation Committee gathered together several defense experts in the transportation community to discuss litigation trends in the industry. In this edition, moderator Jim Foster leads a discussion about how COVID-19 is affecting the industry in and out of the courtroom.

Jim Foster: Welcome to another Roundabout, panel—let’s jump right in. Can the plaintiffs’ bar globally analogize the combination of the pandemic; severe economic conditions; and social unrest leading to stress, uncertainty, and anger in the community to the conduct of trucking companies and its reptile-theory threat to community safety? If so, will this continue the trend of nuclear verdicts in trucking cases?

Christopher Greene: While the “fear” component of the pandemic closely mirrors the generating of fear necessary to successfully utilize the reptile theory (and I do believe the trend in nuclear verdicts in trucking cases may continue), the pandemic or social unrest is not, in my opinion, likely to result in driving a continuation or an acceleration of nuclear verdicts. In fact, one of the often-overlooked benefits of the pandemic is going to be that truckers are viewed more favorably due to the nationwide press that the industry received during the shutdown. These truckers were viewed as real heroes during the early part of the pandemic, and defense attorneys need to weave that into the themes of their cases going forward. More importantly, it appears that the end result of the pandemic is that people are demonstrating greater levels of empathy; acting with much more compassion than before the pandemic. If true, then this will be a big help in developing new strategies on how to interact with jurors in the future. There is no doubt that voir dire will become even more important when picking a jury, given the overall social inflation, the uncertain impact of the pandemic, and with more millennials showing up for jury duty.

Charlie Wendland:  I’m glad we’re finally addressing nuclear verdicts as a pervasive issue in our industry and not just one-off cases with really bad facts or irrational jurors. I think the pandemic has created an opportunity to reposition how the public thinks about truckers and trucking companies. The positive press truckers have received for keeping the economy going during this time has been wonderful. Defense counsel should be reminding juries of this at trial.

Donna Burden: They will likely try, but not one juror has escaped impact from the pandemic. Additionally, it is one of the few times in our history where trucking companies and their drivers have been celebrated and displayed as heroes.

Foster: Will the fact that trucking companies and their drivers were deemed “essential” in maintaining community supplies of food and medical supplies go a long way toward preventing nuclear verdicts on a micro-level?

Greene: I truly believe the goodwill earned by truckers during the height of the pandemic will assist in humanizing the corporate offices of trucking companies, which could lead to potentially lower verdicts. It has always been important to personalize the corporate defendant of the trucking company in litigation, but that is going to be even more important in future trials. While the jury will always get the instruction that they should come to their verdict without allowing for bias or emotion, that is just not realistic. Going forward, using pandemic-related stories could go a long way in humanizing the clients in a bad trucking accident.

Wendland: Without question, and this should be part of defense counsel’s opening statement when defending trucking companies. Additionally, claims professionals should also know what their insureds were hauling at the time of loss. If their insured was hauling medical face masks to a hospital when the accident occurred, then that is information I’d be sharing with the claimant’s attorney pre-litigation.

Burden: It will last for as long as jurors, and the general public, remember all the “good” they have done, as well as the risks they have exposed themselves to during this crisis in order to provide groceries, medicine, and daily packages from Amazon that many are using to survive this pandemic. The challenge of the trucking industry is to not only be sure those good works are publicized, but also that they remain at the forefront in all our minds as we recover.

Foster: As you are aware, individuals’ personal responsibility during the pandemic, and following Centers for Disease Control and Prevention guidelines (including social distancing and wearing of masks), has been in the news. Do you foresee a defense theme or closing argument by defense counsel for trucking companies that, by analogy, an injured plaintiff’s responsibility, fault, or contributory negligence must be assessed in a transportation case?

Greene: Yes—absolutely. But before I go there, let me state that I have the opinion that, even in disputed liability cases, the defense attorneys gain credibility when there is an acceptance of responsibility. This is true even if the concession is merely a token acceptance. Why? It takes some of the sting out of the plaintiff’s argument (which is almost always about why defendants refuse to take any responsibility,) and it can keep the jury from getting mad at the defense and its client. Mad jurors oftentimes result in nuclear verdicts. Now, to your question, I do believe that the pandemic, and the accompanying personal responsibility that came with it (social distancing, wearing masks, staying at home), creates the opportunity to argue plaintiff’s own responsibility—kind of a reverse reptiling—which should lead to lower verdicts.

Wendland: It has been my experience that a lack of accountability by plaintiffs has led to a fair number of lawsuits. Whether or not to remind the jury about our new, COVID-heightened societal responsibility to each other as part of the defense theme will very much depend on jury makeup.

Burden: I see that as a minefield, as there are a lot of strong, conflicting opinions out there related to social distancing and mask requirements. You could run the risk of alienating or just infuriating a juror with that comparison.

Foster: Is early case evaluation, including meeting with the driver as soon as the accident has occurred, important in the resolution of trucking cases?

Greene: Early case evaluation is very important in helping to craft the right resolution strategy for a particular matter. Sometimes you have very limited information early in a case, especially around the damages suffered by a claimant. Therefore, a combination of early investigation and evidence gathering, coupled with making certain fact-based assumptions, is key to having an appropriate reserve up early in a claim and formulating the right strategy.

Also, being able to eliminate potential barriers to settlement is key. You have to put yourself in the shoes of the plaintiff and his attorney. You also need to understand the mechanics of how the plaintiff’s attorney may seek to use the reptile theory as a trial tactic so that you can evaluate early in a case the potential for that to occur. Conducting a detailed early evaluation and making some controlled assumptions will help you to get the right reserve up on the claim, avoid late surprises, shorten the lifecycle of that claim, and generally get your client the best possible outcome.

Wendland: The case evaluation, including meeting with the driver and reviewing their driver-qualification file, needs to happen immediately following a loss. I want to know everything, good and bad, as soon as possible so we know if this is a case to defend or resolve immediately.

Burden: Absolutely and without question, early evaluation and meeting with the driver as soon after the accident as possible is and remains essential to not only reporting his “story,” but also knowing if your driver and his version of the accident is credible and believable, which will help form initial impressions. Credibility still remains a key to the evaluation of trucking cases. With the advent of all the current technology now available and routinely used in trucking cases, witness testimony—including that of our driver—still remains a vital key factor in assessment of exposure. Also, early evaluation forces you to analyze exposure and determine what further needs to be done in terms of investigation and gathering of data, records, and other evidence.

Foster: Given the changes in the world since March 2020, what strategies have you found effective for keeping trucking cases from going nuclear? What has been your experience with COVID-19 and claims?

Greene: Early, honest assessment of liability and damages is key. Given that so many courts were closed for an extended period of time, the concern was two-fold: 1) that plaintiffs, being pushed by their attorneys, would just continue to run up medical bills during the delay, with unnecessary surgeries or other treatment; and 2) that judges would take the opportunity, during scheduling or status conferences, to really push the insurers to settle cases at higher levels so as to free up already crowded dockets. Fortunately, we have not seen either of those to a large degree. We continue to see greater opportunities to settle due to the lingering financial distress caused by the pandemic driven either by the plaintiff’s own financial needs, that of the attorney’s firm, or the continued delay in getting cases to trial. With that said, we continue to investigate all aspects of claims that are reported to us, analyze all potential defenses, and attempt to fairly resolve all claims presented. As claims and legal professionals, that is really all that we can do.

Burden: Nothing has gone “nuclear,” simply because nothing as gone to trial! During COVID-19, we have been doing a lot of virtual mediations since it has been almost eight months since there were any civil jury trials. Although efforts to attempt “social distancing” for a few civil jury trials may be underway in the fourth quarter of 2020, there is already a huge backlog of cases and jury trials. We maintain that it is in everyone’s interest to exhaust settlement efforts, and we have been able to do that in many cases through virtual mediations. COVID-19 has impacted our practice and claims inasmuch as most everything is being done virtually, and while “in person” is always better, it has been more efficient for those who wish to participate. We still have a surprising number of plaintiffs’ attorneys who just refuse to do anything virtually and will not proceed with depositions and will not even consider a virtual mediation. Since the courts in our jurisdiction have informally decided thus far not to force any party to proceed virtually, those cases go on the back burner when we hit those brick walls.

SIDEBAR

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.

Christopher Greene has over 30 years of diversified experience in the insurance industry, initially practicing for an insurance defense law firm and then serving within the legal departments of Progressive and AIG, before joining Canal Insurance Company 11 years ago. Currently he serves as senior vice president, chief claims officer, corporate secretary, and general counsel for Canal.

Charlie Wendland is the head of claims for Branch Insurance. Prior to joining Branch, he was the claims director for trucking at National Interstate Insurance. He serves on the executive council for CLM Claims College’s School of Transportation and as board member for CLM’s Northeast and Central Ohio Chapters.

Donna Burden is the founding partner of Burden, Hafner & Hansen, LLC, and has over 30 years of experience as a trucking and trial attorney in New York State. She is currently the general counsel and a director at TIDA, a former national director and chair of the DRI Trucking Law Committee, former vice chair of trucking and chair of the Transportation Committee of IADC, and a member of CLM’s Transportation Committee. She also served as faculty on the IADC Trial Academy at Stanford in 2015.