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Rapid Response Article Ftd December 2011


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Rapid Response Article Ftd December 2011

  1. 1. Trucking L awRapid Response Teams Investigation of CatastrophicBy Durward D. Casteel Accidentsand Aaron J. MesserPieces of evidence, each by itself insuf- Time is of the essence when investigating a catastrophicficient, may together constitute a sig-nificant whole, and justify by their trucking accident since key evidence, such as a favorablecombined effect a conclusion. —Lord Wright witness, a faint tire mark, or accident debris, disappearsPhysical evidence cannot be wrong, it quickly from a scene. For this reason, trucking companiescannot perjure itself, it cannot be whollyabsent. Only human failure to find it, and their third-party administrators or ness statements better, including that ofstudy and understand it, can diminish insurers use small groups of profession- the trucking company’s driver. Third, rap-its value. als known as “rapid response,” “go,” or idly and thoroughly investigating an acci- —Paul L. Kirk “CAT” teams to assess and investigate acci- dent better positions a trucking company dents quickly. This article offers a primer to influence investigations by governmen- on the makeup and activities of a success- tal agencies because the company’s team ful trucking accident rapid response team. can then provide evidence when appropri- The article also addresses the application ate to an investigating authority or to a dis- of the attorney-­ lient privilege, the work-­ c trict attorney. Finally, an investigation will product doctrine, and spoliation to the assess an accident’s causes early and accu- team’s efforts and findings. rately. This early assessment will increase the chance of achieving a timely settlement, Benefits of a Rapid and when appropriate, by providing the infor- Thorough Investigation mation necessary to set a proper reserve. A thorough investigation has many bene- fits. First, it will increase the chance that a Importance of Arriving at the trucking company will have the evidence Accident Scene Quickly necessary to defend no-fault accidents, or Team members must arrive on the scene to prove comparative fault on the part of of a catastrophic accident as soon as pos- other drivers or third parties such as high- sible so that key evidence can be preserved way construction companies or state trans- or documented. A rapid response has the portation departments. Second, collecting advantages of and documenting physical evidence will • Identifying all potential witnesses, in- allow a trucking company to evaluate wit- cluding law enforcement, fire depart- ■  Durward D. Casteel and Aaron J. Messer are trial attorneys at Casteel & Associates in Baton Rouge, Lou- isiana. They practice primarily in the areas of trucking and insurance defense. Both are active members of DRI and its Trucking Law Committee. The authors thank Cline Young for his assistance regarding the acci- dent reconstructionist’s role in responding to a catastrophic accident, and the engineers at Delta [V] Foren- sic Engineering for their input into the electronic data section of this article.50    For The Defense    December 2011 ■ ■ © 2011 DRI. All rights reserved.
  2. 2. ment, and emergency medical services of any witnesses, (8) obtaining license plate Using an inexperienced adjuster has seri- (EMS) personnel; numbers of all vehicles involved, (9) taking ous risks. In one instance an adjuster was• Documenting the scene before the debris photographs of the vehicles and roadway in called to the scene of a late-night tractor-­ field has been cleared; as much detail as possible, and (10) docu- trailer accident in which a car clipped the• Identifying damage to stationary objects menting all admissions of responsibility. back of a trailer and rolled several times. or landmarks; If, on the other hand, the accident occurs The adjuster somehow concluded that the• Documenting tire marks and evidence on I-78 in New Jersey, the police and an driver of the car was in fair condition at of paint transfer, liquids, and stains; adjuster should arrive within minutes, and the hospital and told the trucking company• Preserving electronic data; those professionals will be able to perform that it could release the driver and truck to• Obtaining accurate weather data; several of those initial duties. Nonetheless,• Documenting construction zones or a company should prepare a driver to col- highway signage in real time; lect as much information as possible.• Obtaining the road surface’s coefficient The best way to find a of friction close to the time of the acci- Field Adjuster or Investigator dent; and A field adjuster or investigator will, in most competent adjuster is to• Testing a company’s driver for drug and cases, be the second team member on the alcohol use on a timely basis. scene. This field adjuster should have exten- consult those experiencedThe team will have only one chance to pre- sive experience with catastrophic truckserve, collect, and document much of the accidents and should be accessible any- in the field, includingevidence. time. The adjuster must know the U.S. Department of Transportation (DOT) reg- trucking attorneys orTeam Members ulations regarding post-­ ccident drug and aEvery trucking accident rapid response alcohol testing and the trucking company’s other risk should include the truck driver, an post-­ ccident testing protocol, which may aaccident reconstructionist, preferably be stricter than the DOT mandatory test-one with an engineering degree, a field ing requirements. The adjuster must have continue on their trip. Although the otheradjuster or investigator, a company repre- the skills and knowledge to obtain witness driver died shortly after reaching the hos-sentative, and an attorney. Other potential statements, for example, knowing which pital, the trucking company did not findteam members include electronic control interviews to record, to take photographs out about his death until after the eight-module (ECM) specialists, biomechan- at accident scenes, and to identify debris hour alcohol-­esting window required by tical engineers, “hazmat spill” response and other physical evidence important to 49 C.F.R. §382.303 had closed.companies, videographers, aerial pho- reconstructing an accident. The adjustertographers, cargo-­ oss adjusters, crimi- l should also have a good rapport with state Accident Reconstructionistnal defense attorneys, and engineers with and local law enforcement. The team’s accident reconstructionistexpertise in highway safety, traffic flow, or The field adjuster’s tasks will depend on should have an engineering degree andconstruction-­ one safety. z which other team members can quickly should have extensive experience with com- arrive on the scene. Typically, the team’s mercial vehicle accidents. Ideally, he or sheDriver attorney will ask the adjuster to learn the should live within driving distance of theA driver who is physically able should ini- location of vehicles already towed from accident scene. His or her role is to be thetiate the investigation by documenting the the scene, to identify which company did technician—the on-the-scene expert—whoaccident scene and by preserving evidence. the towing, and to secure records from the determines how the accident happened andIn some cases, such as, an early-­ orning m tractor’s cab, including paper logs, inspec- who documents, photographs, and mea-accident in blizzard conditions on US 191 tion reports, and registration and service sures the scene and the vehicles northern Montana, getting help from records. The reconstructionist’s investigationany other team member may take sev- A trucking company should identify a generally follows this path: (1) talking witheral hours. A trucking company should, field adjuster well before a catastrophic ac- the police if they are still present, (2) walk-therefore, prepare a driver beforehand to cident. The best way to find a competent ad- ing the scene starting at the vehicles andtake a number of steps on his own. These juster is to consult those experienced in the tracing backward to the origin of each vehi-actions include, among others (1) ensuring field, including trucking attorneys or other cle’s tire marks, (3) placing chalk marks onhis own safety, (2) contacting 911, (3) tak- risk managers. It’s not wise to only look in the roadway using a roll-a-tape so that theing steps to prevent secondary collisions, the directory of a national adjusting com- measured distances can be photographed,(4) checking on the occupants of the other pany or rely on a contract that a trucking (4) documenting evidence in the order invehicles, (5)  contacting the company dis- company may have with a national adjust- which it will disappear, and (5)  gather-patcher, (6)  removing the key from the ing company. Most areas should have “go- ing evidence using the things listed in thetractor’s ignition, (7) obtaining names and to” adjusters with the training and skills to “Tools of the Trade” section below.addresses of the individuals involved and investigate a catastrophic accident properly. Because taking photographs is the most For The Defense    December 2011    51 ■ ■
  3. 3. Trucking L awimportant way to document physical evi- model, and VIN number, as well as the en- reconstructionist carry out the tasks fordence at an accident scene, good recon- gine’s manufacturer, model, and build date. which each has responsibility;structionists are good photographers by A visual inspection will confirm the truck’s 4. Arranging for private air travel for teamnecessity. The reconstructionist will typi- and the engine’s specifications. members if required by the size of thecally photograph a scene from the outside There are three methods to download state or the remoteness of the accidentedges of the scene inward to the vehicles’ and extract data from an EDR: incident scene;final resting points. His or her photographs truck, surrogate truck, and bench-top. 5. Ensuring that the vehicle, data, andwill document, for example, the begin- The preferred method is to use the engine other evidence are properly preserved;nings of tire marks, points of impact, vehi- manufacturer’s hardware and software 6. Interviewing the driver and taking to extract the data while the EDR is still detailed notes when necessary; attached to the vehicle, referred to as the 7. Determining whether a criminal defense “incident truck” method. The second attorney should represent the driver;The accident method involves removing the EDR from 8. Ensuring that the driver is drug and the truck, storing it until the download can alcohol tested if required by the DOTreconstructionist will have be performed, and then placing the EDR regulations or by company policy; and module on a surrogate truck that is identi- 9. Conducting an early evaluation of log-more difficulty collecting EDR cal to the incident truck for the extraction. book compliance. This method is referred to as the “surro- It is the attorney’s responsibility to makedata from the other vehicles gate truck” method. The bench-top method sure that the investigation is initiated as involves plugging the EDR directly into a rapidly as possible and that no stone is leftinvolved in the accident laptop using the manufacturer’s software. unturned. This method can cause the loss of data suchthan collecting it from the as trouble codes or fault codes. Company Representative The accident reconstructionist will have The company representative—whether atrucking company’s vehicle. more difficulty collecting EDR data from claims professional, a risk manager, or an the other vehicles involved in the accident in-house attorney—ultimately will make than collecting it from the trucking com- the calls on the extent of the accident inves-cle damage, and damage to inert objects pany’s vehicle. First, a reconstructionist tigation and the size and components ofsuch as road signs. normally cannot control whether someone the team. The company representative will The accident reconstructionist will col- operates the other vehicles or engages their deploy the team by selecting the team’slect—or have collected—the electronic data engines after an accident. Second, most attorney and often selecting the team’s fieldfrom the truck, and, if possible, other vehi- states have enacted legislation protecting adjuster and accident reconstructionist.cles involved in the accident. See Michael the privacy of the owners of the other vehi- The representative will also ensure that theW. Halvorson, “Black Box” Technology and cles. Some states require a trucking com- driver knows that he or she can only makeIts Use in Litigation, For The Defense, Janu- pany to obtain written permission from a statement to the attorney, provides theary 2009 (thoroughly discussing event data the owners of the other vehicles before exact location of the accident to the team,recorder data, its usefulness in investigat- the company can use electronic data from and provides everyone’s contact informa-ing accidents involving commercial vehi- those vehicles. tion to other team members.cles, and its value in defending lawsuitsthat arise from those accidents). The great- Attorney Criminal Defense Attorneyest challenge the reconstructionist will While a trucking company representa- A trucking company’s driver should receivehave is preserving data from the vehicles tive is the general manager of the rapid representation by a criminal defense attor-until the data can be extracted. This is par- response team, the attorney on the team ney anytime the driver is subject to anticularly true of the data stored in the vehi- operates as the coach or the field general. ongoing criminal investigation or has beencle’s event data recorder (EDR). The attorney has a number of tasks that arrested after an accident. Because of possi- The accident reconstructionist should need to be carried out from the scene or ble conflicts of interest between the drivertake several steps to preserve the data from from the attorney’s office, including and the trucking company, the criminalthe commercial vehicle’s EDR. If possible, the 1. Providing updates to and consulting defense attorney should not work for thedata should be extracted on the scene. This with the company representative about same law firm as the attorney who willis the safest way to preserve last-stop data. If the team’s investigation; direct the “go” team’s investigation. Thisthe data cannot be extracted on scene, the ve- 2. Overseeing the flow of information ensures that the attorney will not violatehicle should be towed and its keys secured, between the driver, law enforcement, any ethical rules and will provide unfet-because the last stop data will be overwritten the media, the adjuster, the reconstruc- tered counsel to the soon as the vehicle is operated or the en- tionist, and any other technical mem- A trucking company should, in mostgine is engaged. Finally, the reconstructionist bers of the team; cases, pay for a driver’s defense. First, it isshould determine the truck’s manufacturer, 3. Ensuring that the adjuster and the simply the right thing to do and will sig-52    For The Defense    December 2011 ■ ■
  4. 4. nal to the company’s other drivers that the • Chalk and marking paint; The American Society for Testing andcompany will stand behind them in difficult • Roll-a-tapes, measuring tapes, and range Materials (ASTM) has at least two publica-times. Second, a guilty plea—and in some poles; tions, Standard Practice for Collection andjurisdictions a conviction—would likely be- • Biohazard suits; Preservation of Information and Physicalcome admissible in a subsequent civil trial. • Hard hats; Items by a Technical Investigator, E1188- • General tools, including a carpenter’s 05, and Standard Practice for Examin-Post-accident Testing level, a hammer, wire cutters, screwdriv- ing and Preparing Items That Are or MayThe Code of Federal Regulations speci- ers, vise grips, and surveyor’s nails; and Become Involved in Criminal or Civil Litiga-fies when a driver must submit to post-­ • The items included in an attorney’s tion, E860-07, dealing with collecting andaccident drug and alcohol testing. 49 C.F.R. accident-­response kit. preserving evidence. A team’s technical§382.303. Generally speaking, it says that a experts should understand the importancedriver must have a test when (1) a fatality Spoliation and Preservation of properly preserving evidence, and it mayoccurs, (2) the driver receives a citation for of Evidence be wise to avoid doing business with—ata moving violation and anyone involved in Properly preserving evidence—both phys- least in catastrophic cases—experts whothe accident immediately receives emer- ical evidence from the scene of an accident are not familiar with the ASTM standards.gency room treatment, or (3)  the driver and “stored” evidence such as the driver’sreceives a citation for a moving violation qualification file and logs—is essential to Spoliation of Evidenceand any vehicle needs towing because of the proper defense of a claim arising from a Spoliation is defined as the negligent or will-crash damage. If an accident meets any of catastrophic accident. There are two related ful destruction of evidence by a party to lit-these criteria, a driver must have an alco- but distinct reasons for taking pains to pre- igation. Such a loss of evidence has veryhol screen within eight hours of the acci- serve all potentially relevant evidence. The serious consequences, consequences thatdent and a drug screen with 32 hours. first reason is to ensure that not only is the almost always outweigh any negative ram-Every member of a rapid response team evidence available at trial, if necessary, but ifications associated with admission of thatshould ensure that mandatory testing be also to establish a proper foundation for evidence. Assume that a driver falsified hisconducted within the time allowed by this its admissibility. The second reason is to log book seven days before an accident. Aregulation. avoid the potentially devastating allegation trucking company may be inclined to strictly that someone or some party intentionally follow the six-month retention period man-Tools of the Trade destroyed evidence. dated by 49 C.F.R. §395(k), especially if aEach law firm should maintain an accident-­ claimant’s attorney hasn’t requested that theresponse kit. These kits are especially use- Building a Proper Foundation company preserve the evidence. In this sit-ful when the attorney arrives on the scene One of the fundamental principles underly- uation, the trucking company could face abefore the accident reconstructionist. The ing evidence law is that the evidence that a number of negative consequences.kit should include things such as a digital party seeks to admit is indeed what the party In some jurisdictions spoliation of evi-camera, a 100-foot tape measure, a measur- claims it is. Collecting evidence without tak- dence can create a separate cause of actioning wheel, safety cones, safety vests, flash- ing care to guarantee its authenticity may that results in a separate judgment, includinglights, gloves, rain gear, bug repellent, and render the evidence inadmissible at trial. perhaps punitive damages. Other conse-water. A good field adjuster will also rou- This becomes particularly important quences include the “adverse presumption”tinely have several of these items. when dealing with evidence collected from in which a court instructs a jury that the ev- The accident reconstructionist should an accident scene. An accident reconstruc- idence lost or destroyed must have been det-typically arrive on the scene in an SUV tionist or field adjuster must label, tag, log, rimental to the party that lost it. This allowsloaded with the equipment needed to inves- and store all of the collected evidence. After a jury to speculate wildly about the evils thattigate any type of accident, including the materials have been collected, chain of the evidence must have contained. Think of• Robotic laser and GPS surveying custody documents should be generated that the 18 minutes missing from the Watergate equipment; document when and to whom the evidence tapes. A finding of spoliation could also re-• High-­ uality cameras and equipment, was transferred each time it was moved. If q sult in the exclusion of favorable evidence including specialty lens for photograph- evidence hasn’t been properly handled and that an offending party wishes to admit. An ing minute objects such as light bulb stored, the opposing party can argue that equally harmful consequence is the potential filaments; there is no way to know whether the evi- loss of credibility with the jury that comes• Tools for measuring brakes, including dence is authentic. Consider the half-filled from a destruction of evidence. Many cases a portable air pressure decay test whiskey bottle that an adjuster finds on the hinge on how a jury perceives the trustwor- apparatus; floor of a claimant’s car. If the adjuster pho- thiness of the parties, and evidence spoli-• Equipment, both hardware and soft- tographs the bottle in place at the scene, and ation may make it appear that a trucking ware, for imaging EDR data from com- labels, logs, and stores it in a secure place, company has a guilty conscience. The conse- mercial diesel engine control modules the team’s attorney should have no problems quences of a judge finding or a jury believing and from passenger vehicle airbags, roll- with its authenticity in a trial. Failing to take that spoliation has occurred are several or- over, and power-­ ontrol modules; c those steps will have the opposite effect. ders of magnitude worse than evidence that For The Defense    December 2011    53 ■ ■
  5. 5. Trucking L awa driver had a single hours-­ f-­ ervice viola- o s ing company, and any communication tion if litigation was not anticipated? Thistion seven days before an accident. between the driver and the attorney will re- argument becomes weaker if an in-house Since a rapid response team’s responsi- ceive attorney-­ lient protection. Protecting c attorney who routinely conducts accidentbilities include collecting and preserving a driver’s statement can prove critical in the investigations conducts the investigation.evidence on the scene, the attorney respon- immediate aftermath of an accident. For ex- But while involvement of an attorney issible for the “go” team should also make it ample, a driver distraught over a horrific ac- a highly relevant factor to a court makingclear to the rest of the team that they need cident may accept more responsibility just an anticipation-­of-­l itigation determina-to avoid even the appearance that evi- after the accident than he might when he tion, it is not dispositive. If a trucking de-dence was destroyed or mishandled. Any later learns, for instance, that the driver of fendant immediately retained an attorney another vehicle involved was legally drunk. to investigate every accident, then a plain- It is also important that the lawyer serve astiff’s attorney might successfully argue that the conduit between the other team members the investigation was undertaken in theThe consequences of and the trucking company. While statements ordinary course of business. A defendant made by team members won’t have attorney-­ can maneuver around this argument bya judge finding or a jury client protection, funneling communications showing that only accidents involving seri- through the lawyer will strengthen the argu- ous injuries trigger an attorney-­ed inves- lbelieving that spoliation ment that the team’s efforts were undertaken tigation, while other catastrophic accidents in anticipation of litigation. in which no one is injured do not warranthas occurred are several an attorney-­ed rapid response team. That l Work-Product Doctrine would support the notion that an outsideorders of magnitude worse The work-product doctrine protects from counsel only leads an accident investiga- discovery documents and other tangible tion for that company when the companythan evidence that a driver things prepared by a party, or representative anticipates litigation rather than routinely of a party, in anticipation of litigation. This to determine the underlying cause. It ishad a single hours-­ f-­ o doctrine does not protect materials assem- important that motor carriers and their bled in the ordinary course of business, or attorneys understand and prepare to artic-service violation seven for non-­itigation purposes. So the thresh- ulate in each instance why an investigation l old determination that a court will make was conducted in anticipation of litigationdays before an accident. when deciding whether to protect the fruits rather than as routine company processes. of a team’s efforts is whether an investiga- Even when a company can establish that tion was conducted in anticipation of litiga- an investigation was conducted in antici-costs or aggravation associated with sav- tion or in the ordinary course of business. pation of litigation, a court may determineing evidence—even harmful evidence— To make that determination a court will that an opposing party may still discoverare far less than the costs associated with ask if a trucking company would have cre- the results of an investigation if the partyan adverse court finding on spoliation. ated a document regardless of whether liti- seeking discovery has substantial need of gation was expected to ensue. For example, them to prepare its case and that partyProtecting the Fruits of a report prepared by a dispatcher when a cannot obtain the substantial equivalentthe Team’s Labor driver calls in an accident, or a report pre- by other means without undue hardship.As the material gathered by a rapid pared by a company’s safety department In other words, if an opposing party needsresponse team is relevant to post-­ ccident a describing an accident and its causes, will something and can’t get it, a court wouldlitigation, it is subject to discovery unless likely be discoverable because a trucking more likely view it as discoverable irrespec-shielded by the attorney-­ lient privilege or c company typically prepares these after tive of whether or not something is workthe work-­product doctrine. every accident and not just those that a product. And while the burden of proving company anticipates will lead to litigation. that the material was prepared in anticipa-Attorney-Client Privilege In determining the primary motivation tion of litigation lies with the party seekingThe attorney-client privilege protects from for creating a document a court will con- protection, the party seeking productiondiscovery communications between a cli- sider various factors, including whether has the burden of proving that the partyent and counsel made in the course of le- a company retained counsel and whether needs the material and cannot obtain itgal representation. This concept has critical the attorney was involved in generating without undue hardship.application to a rapid response team’s in- the document. With respect to an attorney-­ In trucking accident cases, witnessvestigation. First, and most importantly, a led investigation conducted after a serious statements most often trigger this analy-driver involved in an accident must make accident, a trucking defendant would have sis. Often a witness will die or disappearall statements to the team’s attorney, not a powerful argument that the investigation after making an initial statement. In thatto a company representative or a field ad- was conducted in anticipation of litigation. instance the analysis is not very tricky,juster. In most cases a driver ultimately will After all, why would a trucking company and a company will probably have to makebe named a codefendant with the truck- retain an attorney to conduct an investiga- Rapid Response, continued on page 8654    For The Defense    December 2011 ■ ■
  6. 6. Rapid Response, from page 54 the scene of an accident, in many jurisdic- by evidentiary privileges. Keep in mind,a statement available to the opposition. tions a company will have to produce it. however, that a trucking company wouldOpponents can still discover witness state- This makes it even more important that an probably have to produce any portion ofments, though, even when a witness is still interviewer exercise caution in determin- an investigative report that contains factsavailable. This can occur when the witness ing whether to record a witness’s statement. only, without analysis, such as skid-markstatement that a party seeks was made very data or photographs.shortly after an accident, when the wit- Practical Applicationness’s recollection was still fresh. Many While the company’s initial contact with Conclusioncourts have held that statements made the team’s attorney will almost certainly be Catastrophic trucking accidents leaveclose to the time of an accident are unique by telephone, the trucking company’s rep- behind troves of evidence that might bein that they provide immediate, and pre- resentative should send a follow-­ p e-mail u critical to defending a trucking companysumably better, impressions of the facts. In asking the attorney to conduct an inves- and its driver. But just as quickly as the evi-other words, a witness statement provided tigation to evaluate the causes of the acci- dence appears, it starts to disappear: vehi-shortly after witnessing an event cannot be dent and the trucking company’s potential cles are moved, debris and glass are sweptduplicated later, even when an opponent exposure. The representative could later ask up, tire marks begin to fade, and witnessescan depose the witness. This is particu- the attorney to prepare a report, which the filter away. A qualified rapid response teamlarly relevant in the context of a “go” team’s attorney could title, for instance, “Anal- can not only gather this evidence, but it caninvestigation, as one of the primary goals is ysis of Accident Occurring on Interstate take the steps necessary to make sure thatto identify and take statements from wit- 10 in Baton Rouge, Louisiana, on January the evidence collected is ultimately admis-nesses as soon as possible. If a field adjuster 1, 2011.” Such a title would increase the sible in a trial.or investigator takes a recorded statement probability that the report, or at least thefrom a non-­ river witness while still on d majority of the report, would be protected86    For The Defense    December 2011 ■ ■