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Transcript of Litigating Trucking Accident Injury Claims for Plaintiffs ...media. Litigating Trucking Accident...

  • Litigating Trucking Accident Injury Claims for Plaintiffs and Defendants Evaluating the Potential Impact of CSA Recordkeeping, Theories of Liability, and Other Special Issues

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    THURSDAY, APRIL 18, 2013

    Presenting a live 90-minute webinar with interactive Q&A

    Robert R. Foos, Jr., Lewis Wagner, Indianapolis

    Michael J. Leizerman, Managing Partner, EJ Leizerman & Associates, Toledo, Ohio

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  • Litigating Trucking Accident Injury Claims April 18, 2013

    Robert R. Foos, Jr.

  • Defense Planning for the Trucking Case

    6

  • Defense Planning for the Wrongful

    Death Case

    Where to Start in Trucking Case Defense

    What to Include in the Case Investigation

    Discovery Techniques in Tractor-Trailer Collisions

    Admissibility of “Preventable” Designation

    Admissibility of CSA Scores

    Pretrial Motions

    Some Interesting Statistics

    Plaintiff’s Thoughts on Accident Causation

    7

  • Where to Start in Trucking Case Defense

    8

  • WHERE TO START IN TRUCKING

    CASE DEFENSE

    If you are going to defend trucking companies/drivers

    in wrongful death litigation you need to be prepared

    to head to an accident scene in a moments notice.

    You must have the proper equipment already in your

    vehicle or easily accessible.

    • Camera/Video Camera

    • Voice recorder

    • Pen and Paper

    • Reflective Vest

    • List of Pertinent Contact Information

    9

  • What to Include in the Case Investigation

    10

  • What to Include in the Case

    Investigation

    Counsel should immediately:

    • Identify the exact location of the accident;

    • Determine the owner of the tractor, trailer and cargo;

    • Identify the employer of the driver, and his status (employee, independent contractor);

    • Ascertain whether any environmental or hazardous conditions exist;

    • Retain an approved independent adjuster;

    • Locate the driver and make sure he/she doesn’t speak to anyone but you;

    • Determine if the driver is out of service;

    • Determine if a post-accident DOT test is required (or was performed);

    11

  • What to Include in the Case

    Investigation

    Counsel should immediately: (con’t)

    • Determine whether law enforcement has directed post-accident testing;

    • Determine whether the carrier has independent drug/alcohol testing requirements and learn what protocols must be met;

    • Discuss retention of an accident reconstructionist with the carrier;

    • Determine whether a biomechanical engineer and/or other experts (conspicuity?) should be retained for scene investigation and vehicle inspection;

    • Determine what ECM or other data is maintained by the carrier and if it can be accessed remotely;

    • Determine the location of the tractor and protect any data;

    12

  • What to Include in the Case

    Investigation

    Counsel should immediately: (con’t)

    • Direct any necessary post-accident inspections;

    • Determine a reasonable hold time for the tractor and any cargo, taking into account the type of cargo;

    • Interview the driver (I would not suggest allowing the independent adjuster to speak with the driver);

    • Determine whether the driver needs independent counsel;

    • Determine whether the driver requires criminal counsel if charges are pending or imminent (likely with new CSA rules);

    • Obtain any photographs taken by driver;

    • Obtain any driver accident forms completed by driver;

    • Obtain a copy of any citations issued to the driver;

    • Obtain copies of any statements from third parties;

    13

  • What to Include in the Case

    Investigation

    Counsel should immediately: (con’t)

    • Obtain HIPAA complaint release from the driver regarding test results pursuant to §382.405;

    • Identify all claimants and nature and extent of injuries;

    • Determine whether toxicology testing of claimants has/will occur;

    • In fatality accidents, identify funeral home and coroner and learn whether autopsies will be conducted;

    • Identify all witnesses, procure statements through independent adjuster (you don’t want to be a witness later);

    • Consider using a court reporter for taking statements where appropriate;

    14

  • What to Include in the Case

    Investigation

    Counsel should immediately: (con’t)

    • Interview the investigating law enforcement officer;

    • Interview the responding DOT officer;

    • Determine what, if any, level of DOT inspection will occur;

    • Obtain law enforcement officers’ field notes, measurements and photographs;

    • Obtain copy of post-crash inspection report (will likely take several days);

    • Arrange for accident reconstructionist to meet with investigating officer where appropriate;

    • Obtain all accident reports and supplemental reports;

    • Obtain all 911 reports for the time period preceding and including the accident;

    15

  • What to Include in the Case

    Investigation

    Counsel should immediately: (con’t)

    • Identify all emergency responders to accident;

    • Obtain run reports and call logs for fire fighters and first responders;

    • Obtain photographs of scene, tire marks, debris field, signage and vehicles through independent adjuster and/or accident reconstructionist (depending on the carrier);

    • Identify applicable speed limits, signage or other posted warnings;

    • Obtain the sequence and timing of all relevant traffic control devices;

    • Consider whether aerial and/or video photography is appropriate;

    16

  • What to Include in the Case

    Investigation

    Counsel should immediately: (con’t)

    • Obtain accident history with respect to other accidents in the same proximity;

    • Inquire as to conspicuity, signage, barricades, detours, roadway construction, and any factors affecting visibility;

    • Identify contractors conducting roadway construction in the area;

    • Obtain copies of all traffic or business video footage in the area;

    • Obtain copies of all broadcast media coverage of accident, along with raw data;

    • Obtain internet data regarding the accident—don’t forget social media sites of claimants;

    17

  • What to Include in the Case

    Investigation

    Counsel should immediately: (con’t)

    • Determine the location and owners of all vehicles involved in the crash and see if the vehicles have on-board computers—issue a litigation hold on that information;

    • Procure cell phone records for all drivers involved;

    • Inquire about carriers retention program and make sure that all relevant, or potentially relevant data, is being preserved in compliance with that program and/or FMCSR;

    • Obtain copies of Driver Qualification file, Driver Personnel file and accident history, payroll information, current driver’s manual, six month’s of driv