Admissibility of Trucking Industry Standards in Hiring/Supervision

Suppose you have a case where the jury needs to know if an employee is deemed to be in the course and scope of his employment when he deviated from the routine business activities. Typically this is not an issue that arises in the usual case of driver making a delivery, but there are times when a driver may deviate off course or he may be on personal mission.

I may have told you about a case I was involved where the "employee" caused an accident in company vehicle after hours when he was under the influence of alcohol.

The jury in that  matter had to  determine whether the "employee"  was in the course and scope of his employment at the time of the accident. He testified that on the evening of the accident, he met and entertained a customer at a bar, but the  accident occurred after he  left the bar and was on his way home.

In contradiction to the written company  policies regarding operating company vehicles after consuming alcohol, he testified that his employer  knew all salesmen drank but did not have a problem with it as long as they did not get caught. He testified that all of the terminal managers knew that salesmen routinely entertained with alcohol and that this was "part of the known way of doing a salesman’s job."  Also that "all freight lines" permit their sales representatives to drive a car after drinking alcohol as long as they did not get caught.

The potential customer that he  allegedly met on the night of his accident did  not recall meeting  for drinks. Nevertheless, the Plaintiffs intended  to present testimony from the customer that it was a standard practice for trucking sales representatives to entertaining him with alcohol. They argued that salesmen who worked for trucking companies would routinely entertain either buying him lunch, taking him to dinner, or having some ‘drinks.’

It was  clear that the plaintiffs' attorneys  wanted  to present to the jury that trucking companies encourage salesmen to entertain customers with alcohol in spite of their company policies. The attorneys  chose  to make an issue regarding the trucking industry standards regarding the business practices of sales representatives and the use of company vehicles. They had no problems with the qualifications and methodology of the former saleman or the customer  to render opinions on the standard business practices in the trucking industry, but they were aghast that the trucking company would put on expert testimony of the industry standards and trucking company going beyond the industry standards.

In contrast to the witnesses relied upon by the plaintiffs, we called upon Andrew J. Sievers, an accomplished professional safety and risk management expert in the transportation industry of nearly  30  years. His expertise includes the creation and enforcement of company safety programs for trucking and non-trucking employees alike.

In his experience, he was personally familiar with the appropriate business practices of sales representatives and corporate policies for the use of company vehicles.  Mr. Sievers was  far more qualified than the customer  to testify about trucking "industry standards of practice."

Andrew J. Sievers would be  helpful for the jury to understand the standard practices in the trucking industry regarding the hiring of employees.

The jury must also determine whether the trucking company  negligently hired or retained the salesman. The plaintiffs’ claim hinged on their ability to establish a general industry hiring standard for trucking sales representatives and to establish that this particular trucking company  failed to adopt or execute that standard practice.

With his extensive expertise in transportation industry hiring practices, Mr. Sievers would assist the jury to understand the industry standard for hiring and performing background screening on trucking sales representatives.  While there are no federal regulations for hiring sales representatives, the trucking company applied the same background screening standards to hiring salesmen that it applies to its tractor-trailer drivers. Thus, the jury would require expert testimony to understand the specialized nature of trucking industry hiring practices. The hiring of tractor-trailer drivers most certainly involves specialized knowledge. Hiring standards in the transportation industry are explicit in that they are regulated by the Federal Motor Carrier Safety Regulations.

Through the expert's extensive experience in safety, risk management, and human resources in the transportation industry, he was able to compare the policies of the trucking company to the statutory requirements, industry standards, and common practices of the transportation industry.

The plaintiffs argued that the trucking company  failed to perform adequate background checks before hiring the employee. Through his specialized knowledge of the regulatory requirements and the industry standards, our expert would explain to the jury each of the available mechanisms for medical history, employment history, criminal history, and driving history background checks.

For instance, the trucking industry partners with USIS/DAC Services for pre-employment screening of potential employees. In order for a jury to determine whether a USIS/DAC Services screening is appropriate, the jury will require expert testimony to explain the information available through USIS/DAC Services and the reliability of the available information.

Louisiana state and federal courts have regularly permitted expert testimony regarding industry standards of care, including in cases involving hiring practices:

In a slip and fall accident case, the trial court abused its discretion in disqualifying an expert in the field of industrial safety, loss prevention and hazard identification, including federal OSHA regulations. Manchack v. Willamette Industries, Inc., 621 So.2d 649 (La.App. 2 Cir. 6/23/93).

When a seaman was injured on a drilling rig, the court permitted an expert in the planning and execution of deep water well drilling programs who had specialized knowledge of the oil rig industry practices, OSHA and Coast Guard regulations, and the American Petroleum Institute ("API") standards. Parfait v. Transocean Offshore, Inc., 2004-1271 (La.App. 4 Cir. 8/10/07), -- So.2d –, 2007 WL 2473252.

In a case involving an explosion on a drilling barge, the court permitted expert testimony regarding the standard of care prevalent in the oil industry. Bergeron v. Blake Drilling & Workover Co., Inc., 599 So.2d 827 (La.App. 1 Cir. 1992).

An expert opinion was permitted to testify on the standard for underwriting practices of life insurance companies. Lane v. Life Ins. Co. of Va., 176 So.2d 202 (La.App. 4 Cir. 1965).

In an employer’s breach of contract action against a staffing agency, the court permitted expert testimony in the standard of care for screening an applicant in the staffing industry. Isla Resources, LLC v. Frey, 2005-1607 (La.App. 3 Cir. 5/31/06), 931 So.2d 1233.

 

In a civil rights action against the police department, the court permitted an expert witness in the field of police operations and administration with expertise in national standards and applicant screening policies to testify. Snyder v. Trepagnier, 142 F.3d 791 (5th Cir. 1998).

In a civil rights action against a city, the court permitted expert testimony on whether the defendant was negligently hired and retained and whether the defendant was deliberately indifferent to the treatment of prison inmates. Washington v. City of Shreveport, NO. CIV. A 03-2057, 2006 WL 1778756 (W.D.La. Jun 26, 2006).

 

In a suit involving a boat sinking accident, the court heard expert testimony that the standard industry practice is to hire pilots who have their radar endorsement. Complaint of Cameron Boat Rentals, Inc., 683 F.Supp. 577 (W.D.La. Apr 08, 1988).

 

In a civil rights action against a deputy sheriff, the court permitted expert testimony on the standard of police policies and procedures on hiring and training officers. Brown v. Bryan County, OK, 219 F.3d 450 (5th Cir. 2000).

The Plaintiff also proposed  that our expert did not give a methodology for his findings. Yet our expert  produced an expert report, in which he was not required to provide extensive details regarding the methodology that the used to arrive at his opinions. There is no requirement that expert witness reports submitted in compliance with Code of Civil Procedure must include, "all opinions to be expressed and the basis and reasons therefor and the data or other information considered by the witness in forming the opinions." To base any decision as to the reliability of an expert's methodology solely on his expert report, would falsely assume that his expert report was required to include the entirety of his methodology.

Plaintiffs misapplied the Daubert standard. The specific Daubert factors, are most applicable to scientific expert testimony whereby an expert’s methodology would typically be subjected to peer review and tested for reliability. Although Daubert’s general holding applies to non-scientific expert testimony as well, its factors are intended to be flexible. The court is free to add or omit factors that are not applicable to the expert’s particular field.

In this particular case, Sievers was  an expert in safety and risk management policies and procedures in the trucking industry, especially with regard to the hiring of employees. His area of expertise was in the trucking industry standards of care. He did  not propose to apply science.

In the context of the trucking industry, federal courts have held that, an expert may base an opinion on personal knowledge when the testimony is used to establish an industry standard. Garrett v. Albright, 2008 U.S. Dist. LEXIS 18615, (W.D. Mo. 3/11/08) (citing Knous v. ConAgra Foods, Inc. 2006 U.S. Dist. LEXIS 78632 (W.D. Ky. 10/27/06). See also, C.C. v. Roadrunner Trucking, Inc., 823 F.Supp. 913, 923 (D. Utah 1993) where the plaintiffs introduced expert testimony regarding the hiring practices of a trucking company.

In response to the Plaintiff’s claim of negligent hiring, Sievers evaluated  policies and procedures for hiring sales representatives to determine the effectiveness of its policy and determine whether they met recognized and accepted standards in the trucking industry.

In order to prevail on negligent hiring, the plaintiff had to prove that the trucking company failed to meet the industry standard in hiring the employee. In light of the specialized trucking industry practices and regulations regarding the hiring of drivers and the expert's  extensive training and experience in this specialized area, he was  qualified under the Daubert analysis to offer helpful testimony to the jury regarding what that industry standard is. He was  also qualified to explain the tools and mechanisms for performing background investigations, such as contacting prior employers, state motor vehicle records searches, criminal background searches, and USIS/DAC Services background investigations.

So we would have prevailed in the admissibility of industry standards. What about you, have you had any struggles in this area of the law?

Go Ahead: Just Try and Do Something Stupid...

Over and over and over, we see cases in which a car attempts to win the lane against an 18-wheeler. Sure, you may get the lane, but you may lose your life.

It's been said many times, a fully-loaded tractor/trailer cannot stop quickly so DON'T dart into the path of 18-wheeler. It really annoys me to defend a case caused by a driver who made a sudden lane change and then the driver of the tractor/trailer is accused of following too closely. Often a lazy investigation by the police will make that assumption too.

What about the sudden emergency created by a preceding driver who hits something in the road and doesn't get off the road and then an 18-wheeler hits them from behind. It's not always because the driver of tractor was following too closely?

Don't assume that every "rear-end" collision is the fault of the following driver. Look for the evidence of roadway debris, yaw marks, skid marks, damage to the vehicles. Also, if you are aware of  the accident early enough, look for video surveillance or traffic camera evidence. Remember, that traffic camera footage is not preserved for very long, sometimes only for 30 or 60 days, at most.

Those of us in the profession of defending trucking companies and professional drivers know what to look for when there is a accident. Unfortunately, we are not always called on to assist until a lawsuit occurs. It's wise to retain counsel immediately because the investigation is protected under the attorney's work product and privilege.

On final note to those folks driving around 18-wheelers, please stay in front or behind the 18 wheeler. Don't drive to his side if you can avoid it. There are blind spots.

Also, when driving behind a any vehicle, including a tractor/trailer, DON'T use the old method of following distance of "one car length per every ten miles." Instead, the minimum safe following distance, on a dry, clean road surface is three seconds ("One-thousand-one, one-thousand-two, one-thousand-three") .

In three seconds at 60 m.p.h. a vehicle will cover 264 feet. If you use the "car lengths" technique,  and we assume that an average car is 17 feet long, 6 x 17' = 102 feet. Obviously, you would hit the vehicle in front of you pretty quickly.

The correct "3 seconds" approach gives you over 2.5 times more space and time in which to react safely if something bad happens with the vehicle you are following (whatever type of vehicle it is). The safest following distance requires at least three seconds on a dry road, and...

Eddie Wren, President, Advanced Drivers of America, Inc.

"this must be increased on any wet road, up to the point where you have doubled it to at least six seconds for a very wet road (i.e. a heavy downpour)."

Following this simple rule and you will not have a bad day, like this person is about to have.

Foul Odor from the Cargo: What's a Driver's Duty?

Another odd case: An employee of a chemical company claimed to have developed respiratory airway disease syndrome from exposure to distillate of solvent  delivered by two separate trucking companies from the same shipper to the same consignee.

The first shipment contained 88 barrels of the distillate that were stored in the same trailer from the point of origin to the point of destination. When the cargo was received, a very strong odor emanated from the trailer, but there was no evidence of the cargo being damaged and the consignee accepted the cargo without exception.  Nevertheless, two employees claimed to have suffered an injury from exposure.

A few days later, about 30 barrels of the distillate were delivered by my client, who hauled less-than-truckload. There was no indication along the route of any problems with the cargo in question, nor with any other cargo with it in transit.

On the day of delivery, our driver noticed a strong odor coming from the trailer when he was making other deliveries.  Several times, he looked to see if there was any damage to the cargo in question. There was no evidence of damage and no leaks in the cargo that was packaged and shrink-wrapped by the shipper. Even though the consignee was aware of the complaints about the previous shipment, it received this second shipment without exception.

Almost a week later, while both shipments were stored in an unventilated warehouse, one person claimed to have been overcome by the fumes and odors coming from the drums. At that point a small dampness was noted near the lower chimes of a few barrels.

Subsequently, the shipper, receiver (the employer of the injured party), the barrel manufacturer and both trucking companies were sued for various negligent acts.

Ultimately, our client was successful, but not before extensive work in the defense of this claim because the details of the cargo in route had to be evaluated very closely. Because the cargo was transported by several drivers and stored in route, we had to ensure that there was no damage in route and no contamination of other cargo in transit with the barrels of distillate.

Fortunately, my client is very detailed. We were able to locate the original bills of lading and the receipts for each piece of cargo that was in the same trailer as the cargo in question. None of the receipts reported contamination or exceptions. We were able to identify each driver, dockworker and warehouseman handling the cargo. Of course, no one had any particular recall of the cargo because there was nothing exceptional about it.

Throughout the process, I continued to argue that there was no DUTY for a driver to do anything more specific than check to see if the cargo was damaged if he smelled an unusual odor. However, one of the other defendants tried to make the age old argument "He who smelt it, dealt it." Sorry to be crude, but it was funny!

Now back to the serious mode.

According to 49 CFR 177.854(c)(2), packages of hazardous materials that are damaged or found leaking during transportation, and hazardous materials that have spilled or leaked during transportation, may be forwarded to destination or returned to the shipper in a salvage drum in accordance with the requirements of §§173.3(c) of this subchapter. §§173.3(c) basically outlines the over packing guidelines and what type of container can be used.

OSHA rule 1910.119 dictates that the employer must create the safety protocol and procedures for when an employee is handling highly hazardous chemicals.

The Department of Transportation guidelines and found nothing over the CFR rules. The DOT Pipeline and Hazardous Materials Safety Administration has a Hazardous Materials Information Center that can be used to interpret the CFR. Their hotline is 1-800-HMR-4922. They also have a mailing address: Mr. Edward T. Mazzullo, Director of Hazardous Materials Standards, U.S. DOT/PHMSA (PHH-10), 1200 New Jersey Avenue SE East Building, 2^nd floor, Washington, DC 20590.

Most of the cases relating to chemical related to dumping. Others pertained to injuries of the truck driver after being exposed and were primarily Worker’s Comp issues. There were one or two that included, in the facts of the case, that the driver reported the smell to the unloading employee but nothing more substantial than that.

From my investigation there is not a single case that addressed  the specific duties or responsibilities when a driver smells an odor. According to the Code of Federal Regulations, the driver could either continue to his destination or return to the shipper of the chemicals.

The driver who smelled the odor coming from his trailer did not neglect any duty. The CFR says that the driver can over pack the damaged drums in an appropriately sized and labeled container, but does not mandate over packing. It hardly seems likely that a sole truck driver would have the skills or equipment necessary to over pack 55-gallon drums en route and it is unlikely that the CFR would require such measures.

The handbook to obtain a commercial driver's license does not require a driver to stop the delivery and call the Department of Environmental Quality or Department of Transportation unless there is an actual release/spill of the substance.

The plaintiff's attorney tried to argue that an odor is a "release",  but we found no evidence to support such a definition. Also, there are no video training materials that require a driver to do anything more than investigate to determine if there is damage or release. Nothing in training manuals or hazmat training require more than the investigation of damage or leak.

Cases that are based on nebulous issues are the most difficult to defend. Essentially, we had to prove a negative (ie that there was no evidence/duty).

We did a good job, but not without much time and resources devoted to the case.

What about any of you? Have you had to address this issue?

I would be interested in your approach/defenses. Care to share?

Depositions in a Foreign Country (such as Canada or Mexico)

Like it or not, globalization is here. With globalization of the economy comes the interaction of foreign nationals as witnesses, plaintiffs  and defendants. At one time, interstate travel by foreign companies was more regulated. Not so much any more.


Because we defend companies traveling in interstate commerce, it is not uncommon to deal with foreign nationals, particularly as defendants. However, foreigners from Mexico driving throughout the United States is quite common, and even if they are here illegally, they may file a petition for damages.


I have defended cases in which plaintiffs were from Mexico (illegally in the United States) and cases in which defendant drivers (here legally) were from Canada. Even though our firm is small, it is apparent that we must address international concerns. This may be common to attorneys directly bordering Mexico or Canada, but it is becoming more and more routine for attorneys who don't border a foreign country.


Handling a case in which some witnesses and physical evidence are located abroad, counsel must consider carefully all the available options for obtaining the evidence necessary for the disposition of a case.


If a party to the action is domiciled abroad (and the party is unwilling to travel to the United States) or if the transactions at issue occurred in a foreign country, seeking evidence abroad may be unavoidable. ,

Once it is determined that taking depositions abroad is essential, counsel should first determine if the foreign nation in which the witness is located is a member of the Hague Convention on Taking Evidence Abroad on Civil or Commercial Matters, on notice and commission before consuls and court-appointed commissioners and streamlines procedures for compulsion of evidence when the witness refuses to appear. If the foreign nation is a signatory, counsel has the option of using one of the methods provided by the Hague Evidence Convention or other permissible methods.

Member nations include Australia, France, Germany, Israel, Mexico, the United Kingdom, and the United States. Even though Mexico is a member of the Hague, I have run into problems with getting court reporters; therefore, you may need to have the court report go with you or have the court reporter participate by phone.



The remainder of this blog will refer to taking depositions in Canada, but you could probaly apply the same rules to other nations who are members of the Hague (except for China and Mexico).

American counsel is able to conduct depositions of willing witnesses by * stipulation of the parties, without involvement of a U. S. Consular officer, if the foreign country permits deposition under such circumstances. Since Canada does permit it, we are able to take the deposition of Mr. Multani as a willing witness, as long as we execute a stipulation with him denoting the time, place and manner of the deposition.

* If you would like a copy of the proposed stipulation, please contact my office at 318-222-2426 or via e-mail at perkins@perkinsfirm.com and we will forward a form to you.

Parties in a private civil case in the U.S. may arrange to depose a willing witness in Canada without prior consultation with or permission from Canadian federal or provincial authorities.

If you want to have the witness sworn by the Consulate prior to the deposition, or you otherwise want the deposition to take place before a U.S. Consular (or court-appointed commissioner), then you  must make an appointment to have such take place at the U.S. Embassy or Consulate office.

If the witness  is not a willing witness, then federal and Canadian law denote the following procedure:

Draft letters rogatory/letter of request from the court before which this matter is pending to the Canadian court in the jurisdiction where the witness resides;

Execute the letters rogatory/letter of request pursuant to the Canada Evidence Act and/or the provincial Evidence Act in civil matters (for example, the Evidence Act of Ontario), if there is one;

The letters should constitute a formal request from a U.S. Court to a Canadian Court;

Discovery must not violate the laws of civil procedure of the Canadian Court;

U.S. Court must have the power under its enabling statutes and rules to direct the taking of evidence abroad;

Witnesses must reside in the Canadian court’s jurisdiction;

The order sought must be necessary in the interests of justice;

Compliance with the order must not place the witness in a position of having to commit an offense;

The documents in support of such application must be under seal of the issuing court or judge

The witness must not be required to undergo a broader form of inquiry than he would if the litigation were conducted locally;

The evidence sought cannot be secured except by the intervention of the Canadian court.

Obtain the services of a Canadian lawyer to make application under the appropriate Evidence Act to the competent court to allow establishment of the proceedings requested in the letters rogatory/letter of request;

The Canadian counsel or a separate third party will be appointed as commissioner to handle the proceedings and issue the order. The commissioner may enforce his orders in the same manner as those of the court or judge who authorizes the taking of evidence.

　
Service on  an Unwilling Witness:


Proper service of the initial subpoena (and Order for Letters Rogatory, if necessary) may be made in any one of the following ways:



(1) Forwarding duplicate sets of the documents in English (and a French translation in Quebec) to the sheriff in the judicial district wherethe witness resides

(2) Licensed process server and, if necessary, private tracing service;                                        (3) International registered mail;



(4) Service pursuant to the Hague Convention of 1965 (cost of $50.00 Canadian), which requires:

(A) Submit a request to the designated Central Authority for the witness's jurisdiction on Form USM-94, Request for Service Abroad of Judicial and Extra-Judicial Documents;

(B) Submit duplicates of form and documents to be served to Central Authority for jurisdiction or Federal Central Authority (who will transmit them to proper jurisdictional authority);

(C) Central Authority transmits request and documents to competent authorities who serve the documents;

(D) After effecting service, the authorities complete the Certificate of Service that appears on the reverse side of the USM-94 form and return it with one copy of the served documents to the requester;

(E) Requester also has the option to have Central Authority to effect service by certified mail in Alberta and New Brunswick, and by any form of mail in Ontario.

(5) Service of letters rogatory may also be made by diplomatic channels, by submitting the letters rogatory and accompanying documents to the Office of American Citizen Services in Washington, D.C. or to the U.S. Embassy in Canada ($650.00 fee to the Consular applies, and additional foreign authority fees may also apply). There are multiple fees for multiple requests.I hope this gives you some practical insight on how to depose a witness (willing or unwilling) in a foreign country, particularly in Mexico or Canada.


If you have some practical ideas, please share your thoughts.

Although China is a member of the Hague Evidence Convention, it does not recognize the right of persons to take depositions. I have learned that any effort to do so could result in the arrest or detention of American participants. Allthough requests to compel the testimony may be made to the Chinese Central Authority with a letter rogatory or letter of request, such requests have not been very successful.