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.
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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?
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