BSCR Firm News/Blogs Feed

Medical Causation Opinion Excluded in Toxic Exposure FELA Case

14 Sep 2023

ABSTRACT: The Eighth Circuit Court of Appeals, applying Federal Rule 702 and Daubert, affirmed the U.S. District Court’s exclusion of a medical causation expert’s testimony, which claimed to apply differential diagnosis, but did so in a faulty manner.

Plaintiff Lancaster brought suit in the United States District Court for the District of Nebraska claiming that her husband’s lung cancer was caused by his exposure to diesel exhaust, silica and asbestos during his 33-year career with BNSF Railway Company (“BNSF”). BNSF moved for summary judgment arguing that Plaintiff’s experts failed to base their opinions on sufficient and admissible evidence to establish causation. Plaintiff retained two experts, Dr. Zimmerman, a Ph.D. who provided an industrial hygiene opinion, and Dr. Chiodo, an M.D. who provided a “medical causation opinion.”

Mr. Lancaster was a trackman and foreman from 1974 through 2007. He worked in the office a few hours a week as a section foreman, which had the potential to expose him to asbestos according to Zimmerman. Zimmerman was unable to quantitatively determine Mr. Lancaster’s exposures to diesel exhaust or asbestos due to the lack of air monitoring but based on the testimony regarding Lancaster’s work around silica dust from dumping and tamping of ballast stone, he concluded that Lancaster was exposed to silica in levels that exceeded safe levels and at times were dangerously high.

Dr. Chiodo’s opinion was predicated on Zimmerman’s exposure opinions. Unfortunately, Dr. Chiodo’s recitation of Zimmerman’s exposure opinions was inaccurate and flawed. Dr. Chiodo believed Zimmerman opined that “Lancaster was exposed to silica, asbestos and diesel exhaust above and beyond what the average person would be exposed.”

The Federal Employers’ Liability Act requires a plaintiff to plead and prove the common law elements of negligence. Typically, in order to establish the connection between the injury and alleged exposure, expert evidence is required. A medical expert’s proper role is not only to prove that the alleged exposure is capable of causing an injury, but that it caused the particular injury alleged by plaintiff.

Under the Federal Rules of Evidence, Rule 702 an expert’s testimony is admissible if (1) it is based on sufficient facts or data, (2) it is a product of reliable principles and methods and (3) the application of the principles and methods has been completed reliably. A court under Rule 702 may conclude that there is “simply too great an analytical gap between the data and the opinion proffered.”

Although BNSF argued that both Zimmerman’s and Chiodo’s opinions were insufficient under Rule 702, the District Court admitted Zimmerman’s opinion, concluding that it was based on reliable and sufficient data and that he accurately applied reliable methods to the facts. As typical in a Rule 702 analysis, the trial court observed that any alleged deficiencies in an expert’s techniques would be addressed at trial through cross-examination, as these issues go towards weight and not admissibility.

Dr. Chiodo’s opinion, however, was found to be deficient. According to Dr. Chiodo, Lancaster was exposed to cigarettes, asbestos, diesel combustion fumes and silica and anyone could have caused his cancer. Dr. Chiodo simply opined that Lancaster was exposed to all four carcinogens, in some unknown amount, and each could have caused his cancer. The District Court concluded that Dr. Chiodo’s opinion was connected to the data solely by the “ipse dixit” of the expert.

Although Dr. Chiodo claimed he performed a differential diagnosis analysis, he cited four separate potential causes, failed to support his determination with any evidence, and significantly, failed to rule out any of the potential causes of Mr. Lancaster’s lung cancer. He also failed to rule out Lancaster’s smoking as a non-occupational potential cause of his lung cancer, which the District Court pointed out undermined Dr. Chiodo’s differential etiology. The District Court therefore held that Dr. Chiodo’s opinions and testimony did not “bridge the gap between general and specific causation.”

The United States Court of Appeals for the Eighth Circuit agreed with District Court and affirmed its granting of summary judgment in BNSF’s favor. Specifically, the Eighth Circuit pointed out that there was no direct evidence that Lancaster was exposed to asbestos or diesel combustion fumes and more importantly there was no evidence of the level of exposure. Since there was no evidence for the factfinder to conclude that Lancaster was exposed to levels known to cause the injury claimed by him, Dr. Chiodo’s opinions were speculative. Dr. Chiodo’s opinions lacked sufficient foundation which directly impacted his methodology. The Eighth Circuit found that Dr. Chiodo was unable to support causation and that was enough by itself to grant summary judgment in favor of BNSF. Id.

Because Dr. Chiodo is an oft-utilized plaintiff expert in FELA toxic exposure cases, the Eighth Circuit’s decision may be beneficial to defendants seeking to exclude Dr. Chiodo’s opinions in the future.

Brokers Take the Lead – Seventh Circuit Joins the Eleventh Circuit in Finding Preemption for Brokers

23 Aug 2023

ABSTRACT: On July 18, 2023, the Seventh Circuit Court of Appeals upheld a District Court’s granting of summary judgment finding that negligent hiring claims against brokers are preempted. Now two Circuits (the Seventh and the Eleventh) find negligent hiring claims against brokers are barred by preemption. The Ninth Circuit found that these claims against brokers are not preempted. But has the tide turned?

The Seventh Circuit Court of Appeals affirmed a District Court’s judgment that the Federal Aviation Administration Authorization Act’s express preemption provision in 49 U.S.C. § 14501(c)(1) barred the plaintiff’s claim and that the Act’s safety exception in § 14501(c)(2)(A) did not save the claim. Ye v GlobalTranz Enters., No. 22-1805, 2023 U.S. App. LEXIS 18137; ___ F.4^th ___ (July 18, 2023).

In Ye, a broker, GlobalTranz, contacted to provide broker services for goods to be transported from Illinois to Texas. GlobalTranz hired a motor carrier, Global Sunrise, Inc. to provide the shipping service. Global Sunrise provided the driver and vehicle to complete the shipping. While the truck was enroute, being driven by a Global Sunrise employee, it collided with the plaintiff’s husband, who, two weeks later, died. The plaintiff brought two tort claims against GlobalTranz, claiming: 1) negligent hiring of the motor carrier and 2) vicarious liability.

The District Court entered summary judgment on the claim of vicarious liability. That judgment was not appealed. The issue on appeal was the District Court’s entry of summary judgment for the broker on the negligent hiring claim. 49 U.S.C. § 14501(c) provides that a State:

may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier, broker, or freight forwarder with respect to the transportation of property.

The court, interpreting this provision, held:

“…Ye’s negligent hiring claim has much more than a tenuous, remote or peripheral relationship with broker services. The relationship is direct, and subjecting a broker’s hiring decision to common-law negligence standard would have significant economic effects. So Ye’s claim is expressly preempted by § 14501(c)(1).” Id at 10-11.

On this point, all three Circuits agree. All three do not agree, however, that the safety exception applies.

The Ye Court held that the “safety exception” provided no exception. Under this exception the express preemption provision in 14501(c)(1):

“…shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a Sate to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization.”

The Court focused on the requirement that a common law negligence claim enforced against a broker is not a law that is “with respect to motor vehicles.” It determined the context in which Congress specifically identified “brokers” was important. The Court opined:

“We must decide whether Ye’s negligent hiring claim is one ‘with respect to motor vehicles.’ We conclude it is not because, in our view, the exception requires a direct link between a state’s law and motor vehicle safety. And we see no such direct link between negligent hiring claims against brokers and motor vehicle safety.” Id at 11.

The Court held:

“We thus conclude that Ye’s negligent hiring claim against GlobalTranz does not fall within the scope of § 14501(c)(s)’s safety exception. The claim is preempted and therefore properly dismissed by the district court.” Id at 22.

The Seventh and Eleventh Circuits opinions are the “law of the land” in Illinois, Indiana, Wisconsin, Georgia, Florida and Alabama. The Ninth Circuit, which is where a preemption defense was denied, contains California, Oregon, Washington, Arizona, Nevada, Idaho, Montana, Alaska and Hawaii. One would think with a split in the Circuits the U.S. Supreme Court will grant certiorari to decide what is truly the law of the land.

The 11th Circuit Has Ruled in Favor of Preemption for A Broker's Role. Will the Supreme Court Grant Certiorari?

25 Apr 2023

ABSTRACT: Last summer the U.S. Supreme Court denied, without explanation, an invitation to review a 9^th Circuit opinion[1] that affirmed the denial of preemption for brokers. On April 13, 2023, the 11^th Circuit, in Aspen American Insurance Company v Landstar Ranger, Inc. 2023 U.S. App. Lexis 8845 ___ F. 4^th ___, 2023 WL 2920451, affirmed the district court’s application of preemption, barring a claim against a broker. Will these opinions be reconciled before the U.S. Supreme Court?

Tessco Technologies Inc. (Tessco) hired Landstar Ranger Inc, (Landstar) as a broker to transport a load. Landstar mistakenly turned the load over to a thief posing as a Landstar qualified motor carrier. The thief stole the load. Tessco’s insurer Aspen American Insurance Company, (Aspen) sued Landstar, claiming Landstar was negligent under Florida law in its selection of the carrier.

The district court dismissed Aspen’s state-law negligence claims against Landstar, concluding Aspen’s negligence claims were expressly preempted by the FAAAA. See 49 U.S.C. § 14501 (c) (1)-(2).

The 11^th Circuit Court’s opinion guides its reader through the maze of the preemption rationale, first finding the claims were related to “a price, route, or service of …[a] motor carrier… broker or freight forwarder with respect to the transportation of property.” (Id at § 14501 (c) (1). The court also found the “safety exception” at § 14501 (c) (2) was not applicable.

The “safety exception” determination seems to be the issue that most often foils a broker’s preemption argument. The 11^th Circuit determined that for the claim of Aspen to fall within the “safety exception”, (1) the negligence standard must constitute an exercise of Florida’s “safety regulatory authority”[2] and (2) that authority must have been exercised “with respect to motor vehicles”. (22-10740 p 12.) The Court held that although Aspen’s claims satisfy the first requirement, they do not satisfy the second.

The court interpreted the “respect to motor vehicles” portion to require a “direct relationship” between the state law and motor vehicles. The court determined that a broker’s actions do not involve the direct operation of a motor vehicle. The motor carrier has the “direct connection.”

There appears to be a split in the Circuits. Will the United States Supreme Court decide the preemption issue? Does Aspen, an insurer, have an incentive to challenge an opinion that is good for the insurance and trucking industries? Stay tuned.

[1] C.H. Robinson Worldwide, Inc. v. Miller, 2022 U.S. Lexis 3136, 142 S. Ct. 2866 (U.S. 2022)

[2] Interestingly, the Court rejected Landstar’s apparent concession that safety regulation applies to personal injury actions, not property damage actions.

Brokers lose preemption battle (for now) in the war of broker liability.

28 Jun 2022

ABSTRACT: On June 27th, the United States Supreme Court did not grant certiorari in Miller v. CH Robinson Worldwide, Inc., allowing causes of action against brokers to continue.

As part of a movement toward deregulation of several industries, Congress, via the Motor Carrier Act of 1980, partially preempted state regulatory authority over trucking. Congress found that States’ regulation of intrastate transportation of property imposed an unreasonable burden on interstate commerce, impeded the free flow of transportation of interstate commerce and placed an unreasonable cost on the American consumer.

Congress expressly prohibited States from enacting and or enforcing laws, regulations or other provisions having the force and effect of law related to a price, route or service of any motor carrier…broker or freight forwarder. However, preemption was not to restrict the safety regulatory authority of a state with respect to motor vehicles. This part of the law is known as the “safety regulatory exception”. Almost all courts find that brokers generally have preemption protection, but many find the safety regulatory exception applies, which means causes of action for personal injury are not preempted.

The issue: Is a personal injury tort claim part of a State’s safety regulatory authority with respect to motor vehicles? If so, actions against brokers continue, “un-preempted”. If not, common law tort causes of action against brokers are preempted and not actionable.

It doesn’t appear that personal injury judgments and verdicts rise to the level of States’ safety regulatory authority concerning motor vehicles. Personal injury judgments are isolated and do not affect safety regulation. From a practitioner’s standpoint it appears that perceived inadequacy of insurance limits of liability for motor carriers is the driving force in arguing the causes of action are not preempted.

The issue has been decided by several district courts (within the Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits) and there is no consensus of opinion.

There has been only one United States Court of Appeals decision (Miller v. CH Robinson Worldwide, Inc.) which held that the actions against brokers were not preempted because the “safety exception” applied. C.H. Robinson, the broker in that instance petitioned the United States Supreme Court to decide the issue.

C.H. Robinson, and Amicus Curiae briefs filed by the National Association of Manufacturers, the National Retail Federation, the Chamber of Commerce of the United States of America, the Transportation Intermediaries Association, Inc., the Leading Industry Freight Brokers, DRI-The Voice of the Defense Bar, Interested Freight Carriers argued, persuasively, that the Ninth Circuit erred when it held that a common law negligence claim is an exercise of the “safety regulatory authority of a State,” and that holding a negligence claim against a freight broker operates “with respect to motor vehicles.”

The Amicus brief filed by the United States asserted that the Ninth Circuit was correct, arguing that common law tort claims are what Congress intended to leave to the States to decide with the safety regulatory exception.

The United States also pointed out that there is no inconsistency of rulings among the Circuits. C.H. Robinson argued the inconsistency among the District Courts is a sufficient reason for the U.S. Supreme Court to decide the issue. Also, recently a favorable opinion for a broker in Georgia (Gauthier v Hard to Stop LLC,) was appealed to Eleventh Circuit Court of Appeals.

On June 27, the Supreme Court declined to review the case. This is unfortunate. Perhaps if the Eleventh Circuit affirms and there is a conflict between the Circuits, the Supreme Court will review. However, for now, the war continues.

Admitting agency no longer bars direct negligence theories in Illinois.

05 May 2022

ABSTRACT: In McQueen v. Green, the Illinois Supreme Court holds that admitting vicarious liability does not bar theories of negligent retention, hiring, training and direction against the principal.

An effective tool in attempting to limit recovery and the scope of discovery in Illinois may be gone. In McQueen v. Green, a tractor-trailer accident case involving personal injuries, the Illinois Supreme Court overruled Illinois’ application of Missouri’s “McHaffie Rule” (McHaffie v Bunch, 891 S.W.2d 822 (Mo. banc 1995)) which bars theories of “direct” negligence against a principal if the principal admits it is vicariously liable for the acts or omissions of its agent. The rationale of the Missouri Supreme Court in McHaffie is that once vicarious liability is admitted, additional liability theories are extraneous. The practical effect of this rule is that it limits the scope of relevant evidence. It also eliminates the potential of duplicative awards of damages, that is, a jury awarding damages for a theory based on negligent operation of a truck and a theory based upon a principal’s failure to train for which damages are indivisible.

Unfortunately, the McQueen opinion will probably ensure most lawsuits arising out of tractor-trailer accidents will include not only vicarious liability theories against motor carriers, but also claims of negligent hiring, retention and entrustment, even though the carriers fully complied with FMCSA regulations.

Supreme Court Declines to Provide Clarity on Responding to Sexual Harassment in Trucking Industry

27 Apr 2022

ABSTRACT: The Supreme Court recently declined review of a case that could have provided greater certainty for trucking companies' duties in responding to sexual harassment. However, the case provides guidance on best practices for employers in order to avoid liability.

Driving on I-70 heading west from East St. Louis, Illinois, one crosses the Mississippi River into Missouri, and about 250 miles later, crosses the Kansas River into Kansas City, Kansas. Over the course of about four hours, a driver employed by a trucking company will be working in not only three different states, but three different federal court of appeals circuits. Following a recent Supreme Court decision not to review a ruling from the Eighth Circuit, that driver’s employer potentially remains subject to three different standards for responding to sexual harassment.

The case is Sellars v. CRST Expedited, Inc., which presented the issue of how employers must respond to reports of sexual harassment between co-workers to avoid liability under Title VII. The plaintiffs originally filed suit in 2015, asserting several claims against CRST based on alleged co-worker sexual harassment. According to the Eighth Circuit opinion, the case “team drivers” (a system where long-haul truck drivers worked in two-person crews) so that one driver can sleep while the other continues driving. This is done in the confined space of a tractor. CRST did not assign the driving pairs, but would approve teams who had mutually agreed to drive together. A team would not be approved where one of the drivers was tagged by HR as being “male only,” meaning that driver was not approved to pair with a female driver. The “male only” tag was applied to drivers who had previously been the subject of sexual harassment complaints.

The Eighth Circuit opinion recounted numerous alleged instances of inappropriate sexual comments, sexual harassment, assaults, and threats of violence against female employees. The plaintiffs claimed the harassment created a hostile work environment, and the employer was negligent in responding to and failing to prevent harassment. The plaintiffs also asserted that the employer’s policy (since rescinded) of removing the victim from the truck and forcing her to wait, unpaid, at a terminal until she could be placed on another truck, was per se retaliation for complaining about sexual harassment.

Two questions were presented to the Supreme Court. First: “Where an employee complains to her employer about sexual harassment, does the employer fully satisfy its legal obligation under Title VII if it stops the harassment of that employee by the particular harasser complained of (the rule in the Eighth Circuit), or must the employer also take action to deter future harassment by other potential harassers (the standard in the Ninth and Tenth Circuits)?” The second was whether CRST’s policies, which would tend to result in a reduction in pay and, would tend to cause a reasonable employee to “expect that complaining of sexual harassment would directly lead to a net decrease in pay” was a per se violation of Title VII (which is the rule in the Seventh Circuit).

Rather than take up these questions and provide clarity for employers regarding their obligations to respond to complaints of sexual harassment, the Court denied review with no explanation (as is the usual practice). However, the brief submitted by the petitioners has highlighted the circuit-split for savvy plaintiff’s attorneys. Employers should likewise take notice, because in a lawsuit, they may not have much control over which standard will apply.

That is because Title VII plaintiffs have multiple options in deciding where to file their complaints. A plaintiff may file in a judicial district in which 1) an unlawful employment practice was alleged to be committed; 2) the judicial district in which the employment records relevant to the claim are maintained and administered; 3) in the judicial district in which the plaintiff worked; or 4) if the employer cannot be “found” in one of the first three districts, then in the district of the employer’s principal place of business. Under the first option, the unlawful employment practice may be the harassment itself (which may span several states), the location of a manager or HR representative who takes an adverse employment action (in retaliation cases) or fails or refuses to conduct an investigation. For example, a plaintiff living in Des Moines, Iowa, working for a company headquartered in Chicago, who is harassed on a trip from Indianapolis to Denver, may file suit in as many as six different states. However, if an unlawful act occurs in Colorado, she may file suit there to fall within the more demanding Tenth Circuit standard for preventing harassment, and take advantage of a venue that is perceived as more plaintiff-friendly.

Because over-the-road trucking necessarily spans multiple states, and multiple federal circuits, an employer is well-served by trying to comply with the most restrictive circuit in which it operates.

Impact of the Great Resignation

For the fifth year in a row, the “driver shortage” topped the list of industry concerns. Additionally, the trucking industry and those companies in the supply chain are among those hardest hit by “the Great Resignation,” although it may be more accurately labeled “the Great Reshuffle.” Studies show that truck drivers are not leaving the trucking industry, but pursuing more attractive employment opportunities elsewhere within the industry. This rapid movement of employees poses great challenges and risks to employers.

There is obvious tension between the pressure to attract and retain experienced employees and strictly dealing with those accused of harassment. Employers may be reluctant to terminate harassers when it is so difficult to find qualified replacements. It may also be difficult to reject a qualified applicant with a history of harassment accusations. Conversely, it may be difficult to expand the talent pool to attract women, young people, and others in an industry that relies so much on word-of-mouth in hiring.

The deciding factor for employers may then be legal liability, which is why the Supreme Court’s decision to deny review is problematic. But, Title VII is not the only possible source of exposure for employers. Missouri, Kansas, and Illinois all recognize a cause of action for negligence in hiring or retaining an accused harasser. Although there are variations in how each state’s courts have interpreted the claims, the basic elements are: 1) the employer hired or retained an employee when the employer knew or should have known of the employee’s dangerous propensities; and 2) the employee injured a co-employee in manner consistent with those dangerous propensities. Employers may also be liable for other common law torts such as battery, assault, and infliction of emotional distress. For these claims, merely shuffling employees around may not effectively shield employers from liability.

Key Takeaways and Best Practices

Consider how actions to curb sexual harassment may have unintended negative consequences for female employees. In the Sellars case, female employees received a net decrease in pay due to being separated from their harassers. And there are other instances where female employees may be denied important benefits and opportunities, such as training, mentorship, and advancement opportunities. Similarly, if an employee has to be kept separated from a co-worker because of behavior, that person should probably not be a part of the organization.
Although the Sellars case involved male-on-female harassment, keep in mind that sexual harassment may occur between members of the same sex, and LGBT+ employees are among the most at risk for sexual harassment.
Forces in the labor market have made hiring new employees more difficult than ever. The push to hire new workers should not cause employers to let their defenses down. Retaining bad actors may be a short-term solution with long-term negative consequences.
Although an employer may avoid liability under Title VII for co-worker harassment, keeping harassers around keeps the door open for common law tort claims, which unlike Title VII, may or may not be subject to damages caps.

In 2021, a Record Setting $1 Billion Dollar Verdict was Rendered Against a Trucking Company - Demonstrating that Nuclear Verdicts in Trucking Cases Continue to Rise

11 Jan 2022

ABSTRACT: This year-end Transportation Law Blog post focuses on the rise in "nuclear verdicts" experienced by the trucking industry since 2011, including a landmark $1B verdict in 2021, while also acknowledging that good defense outcomes in trucking cases are still obtainable.

The trucking industry has experienced a continuous rise in “nuclear verdicts” since 2011. The American Transportation Research Institute (“ATRI”) defines a “nuclear verdict” as a verdict in excess of $10 million dollars.

In 2011, a $40 million dollar verdict was awarded to victims of a trucking accident in Georgia, where a semi-truck driver failed to stop, striking a passenger vehicle, killing two people and severely injuring a third. In 2012, a $281.6 million dollar verdict was initially handed down (reduced to $105.2 million), in a case where a drive shaft off a commercial truck went through the windshield of a passenger vehicle, killing the driver. The Court determined that the semi-truck driver was not negligent, but that the company was.

In 2014, a $90 million dollar verdict was awarded in Texas, where a semi-truck was driving under the speed limit in inclement weather conditions, and a passenger vehicle traveling in the opposite direction lost control and veered into the truck’s path. The trucking company denied all fault, arguing that the cause of the accident was the pickup truck that had lost control, nonetheless, the jury found the trucking company liable for the crash. The collision resulted in the death of a 7-year-old, and a paralyzed 12-year-old. In 2016, a semi-truck driver in Georgia fell asleep at the wheel, crossed over the centerline of a two-lane highway, causing a crash that killed five individuals including two young children, resulting in a $280 million verdict.

The 2021 Landmark $1 Billion Dollar Verdict

In 2021, a Florida jury awarded a landmark $1 billion dollar verdict in a wrongful death trucking case. The jury placed blame on two trucking companies, Kahkashan Transportation Inc. (“Kahkashan”) and AJD Business Services Inc. (“AJD”), for the death of the 18-year-old decedent, and awarded $100 million to the parents for the decedent’s pain and suffering, and $900 million in punitive damages for negligent hiring and retention of the AJD semi-truck driver.

The driver for AJD, was on his cell phone, driving over the legal limit of hours, and without a Commercial Driver’s License, when he caused an accident, flipping his semi-truck, and creating a massive back up on the interstate. An hour later a driver for Kahkashan was traveling the speed limit on cruise control, and collided into the line of stopped traffic killing the decedent. Further, his truck’s data recorder showed he did not attempt to break until one second before the impact.

The $100 million dollar verdict to the parents was split by the jury, 90% against Kahkashan and its driver, and 10% against AJD and its driver. The $900 million in punitive damages verdict was solely awarded against AJD. However, AJD is no longer in existence, and had not participated in the court proceedings for the previous 2 years. Additionally, AJD’s insurance was canceled in 2019.

Even if no money is collected from AJD, this case still has a great deal of impact on the trucking industry. It shows that juries believe these high awards are acceptable, and warranted in certain cases. Further, verdicts like this continue to tarnish the public image of trucking companies, and their safety procedures and policies. Nuclear verdicts like the ones mentioned above, have resulted in skyrocketing insurance premiums, which in some instances have put trucking companies out of business. Additionally, these nuclear verdicts motivate Plaintiff’s lawyers to take on trucking cases, and seek punitive damages against trucking companies.

What Factors Impact the Size of Jury Awarded Verdicts in Trucking Cases?

The ATRI analyzed data obtained from 600 cases to determine the variables that impacted verdicts in the trucking industry. See Dan Murray, “Understanding the Impact of Nuclear Verdicts on the Trucking Industry,” American Transportation Research Institute. Some of the variables include unfortunate outcomes that are outside of a trucking company’s control. For example, research showed that an increase in overall verdict amounts was witnessed in cases involving the death of a minor, spinal injuries, and roll-over accidents.

However, the research also shows that there are numerous factors which increase the value of verdicts that are within a trucking company’s control, either in the way company is run, or the manner in which the case is litigated.

Cases involving the following factors yielded verdicts in favor of the Plaintiff 100% of the time: a semi-truck driver being over hours of service or having logbook violations, lacking a clean driving history, driving under the influence of controlled substances, a semi-truck fleeing the scene of a crash, and/or an accident being caused by a driver’s health-related issues. In cases that involved cell phone use, only one case yielded a defense verdict, which was the result of Plaintiff being unable prove that the phone was actually in use at the time of the crash.

The ATRI’s research showed that successful implementation of post-crash and pre-trial tasks such as case evaluation, mediation, and pre-trial preparation played a critical role in successful litigation results.

During the stages of an accident investigation, and case evaluation, it is critical that attorneys and insurance professionals work together to determine the verifiable facts, and assess the potential problems in the case. A thorough examination must be conducted as it relates to factors that may have contributed to the incident.

Next, assessing the reasonableness of an early settlement, based on the facts known at the time, generally helps promote a more reasonable settlement. Finally, pre-trial preparation is paramount. Having an attorney who is experienced, and familiar with the trucking industry will ensure that the necessary actions are being taken to combat arguments Plaintiff attorneys will raise, especially reptilian theory arguments, which lead to nuclear verdicts in trucking cases.

Despite Nuclear Verdicts Being on the Rise, Great Outcomes in Trucking Cases are Obtainable

In 2021 Baker Sterchi member, James R. Jarrow, secured a defense verdict in a week-long wrongful death trucking case that was tried in Missouri state court. Plaintiff alleged that the driver could have avoided the interstate accident, which resulted in the death of her husband. After significant pre-trial motion practice, and multiple experts testifying on both sides, the Plaintiff asked the jury for $3 million dollars in damages. But the jury agreed with the defense’s position, and rendered a verdict in favor of the trucking company.

Additionally, Baker Sterchi member, Joseph Swift also received a favorable outcome in 2021 in a challenging jury tried trucking case where liability was admitted, and the case was tried solely on the extent of damages. This case was initially filed in Cook County, Illinois state court, but was successfully removed to the federal District Court for the Southern District of Illinois. The truck’s dash camera (capturing both inward and outward views) showed 9 seconds of driver inattention, and a violent crash. Plaintiff sought to recover over $1.65 million in general and special damages. However, the jury awarded $145,000 in overall damages for cervical and lumbar surgeries, a very favorable verdict given the circumstances of the case.

Conclusion

Despite the upward trend of nuclear verdicts in the trucking industry, 2021 has proven that when cases are properly investigated, prepared, and tried, trucking companies can still obtain favorable jury verdicts.

Federal Aviation Administration Certifies UPS to Become First-ever Drone Airline.

07 Nov 2019

ABSTRACT: FAA waives multiple restrictions permitting UPS to fly unlimited number of remote unmanned aircraft 24 hours a day by the most expansive Part 135 Certificate of Waiver ever issued.

The Federal Aviation Administration (FAA) issued the first-of-its-kind Part 135 certification to UPS subsidiary, UPS Flight Forward, Inc. (UPS).

The Part 135 certificate declares two core matters: (1) UPS is exempt from certain federal rules and regulations governing flight operations, and (2) UPS is explicitly authorized to perform certain flight operations otherwise prohibited by the FAA.

Specifically, the Part 135 certificate issued to the UPS subsidiary waives the following federal regulations:

14 CFR § 107.31, Visual line of sight aircraft operation, is waived to allow operation of the small unmanned aircraft (sUA) beyond the direct visual line of sight of the remote pilot in command (PIC) and any visual observer (VO) who is participating in the operation.

14 CFR § 107.33(b) and (c)(2), Visual observer, is waived to the extent necessary to allow operation of the small unmanned aircraft (sUA) when any VO who is participating in the operation may not be able see the unmanned aircraft in the manner specified in §107.31.

14 CFR § 107.39, Operations over people, is waived to allow sUA operations over people who are not direct participants, necessary for the safe operation of the small unmanned aircraft.

The certificate provides as authorized operations:

Small unmanned aircraft system (sUAS) operations for the purpose of 135 certification, beyond the visual line of sight of the remote pilot in command (PIC) and Visual Observer (VO), in lieu of visual line of sight (VLOS) and sUAS operations over human beings.

Notably, Amazon Air and Uber Eats have yet to secure Part 135 certification status. Until now, one or all of the above UPS exemptions limited Part 135 operators, including Google’s Wing Aviation LLC, which received only a waiver for a single pilot.

While Part 135 certifications were already used for drone deliveries, UPS is using its certificate to go one step further to build out the first drone airline thanks to the far-reaching parameters of the waiver. UPS’s Part 135 certificate removes limits on the size and scope of the company’s potential drone operations. The company is now also exempt from the FAA rule that mandates that drones fly within the sight of the drone operator. In other words, the certificate allows UPS to fly an unlimited number of drones with an unlimited number of remote operators. The certificate also lifts previous restrictions on drone flights, permitting a drone and its cargo to exceed 55 pounds and to fly at night. This allows the company to develop new technology to create and use different drones.

In recent press statements, UPS CEO David Abney stated UPS worked closely with the Department of Transportation and the FAA to achieve this goal. Mr. Abney stated the certification will be used to accomplish multiple unmanned aircraft deliveries to multiple locations. UPS’s first focus will be a strategic healthcare initiative to expand its drone delivery service to further support hospital campuses throughout the United States. Abney stated the company has contemplated numerous campus-like settings for drone delivery and he believes the drone expansion will serve 20 or more locations during the rollout phase of the newly authorized drone deliveries. When regulations are complete, Abney expects expansion to residential delivery.

In anticipation of Part 135 approval, but before receipt of the certificate, UPS began to develop a ground-based fleet of drones that help detect and avoid technology. UPS has also already begun to organize and develop technologies to create a consolidated control center that will allow the company to dispatch and operate drones from one consolidated area, thereby minimizing costs associated with infrastructure.

The immediate concern of economists is that of American jobs while yet another industry inches closer towards automated functionality. The certificate and control center allow the company to facilitate its drone program with a fraction of the number of drone operators otherwise required by the FAA, and to avoid a need for jobs that would support additional drone operation locations. Economists speculate that as drone deliveries increase, reliance on UPS truck deliveries will decrease thereby eliminating at least some of the need for UPS drivers.

As with all developments in this ever-evolving field, only time will tell what and how the legal and regulatory environment mesh with the actual uses that UPS finds for its drones.

It's not a bird or a plane... So what do we do with it? Concerns and regulations increase as drone usage skyrockets.

20 Dec 2017

ABSTRACT: This month, President Trump signed the 2018 National Defense Authorization Act into law, which extends certain requirements to those using model UASs. Although previously exempted from the registration requirement of Part 107, drone hobbyists will be required to provide their name and contact information to the FAA, as well as pay a small fee, to be legally compliant when operating their drones.

Reports of incidents involving unmanned aircraft systems (UASs), or drones, are on the rise. In October, for example, a drone crashed into a small passenger airplane as it was approaching the runway at the Jean Lesage International Airport in Quebec City, Canada. Although the airplane was landed safely and there were no reported injuries, the post-collision aircraft inspection revealed damage to one of the plane’s wings. This is the first time a drone has collided with a commercial aircraft in Canada, though pilot sightings of UASs has increased dramatically, at home and abroad, in the recent years.

Drone popularity has risen steeply as commercial users, not only individuals, are finding new and creative ways to incorporate drone usage into their business models. Drones are now used to provide video footage for major news stories. They hover over football players during NFL games. They’re used to film promotional videos for luxury resorts and hotels. They may, someday, be used to ensure same-day delivery of online orders.

The Federal Aviation Administration (FAA), through authority conferred by 49 U.S.C. § 106, implemented regulations known as Part 107 to apply specifically to small unmanned aircraft systems used for purposes other than solely hobby or recreational. These regulations, effective in 2016, provide relevant definitions (small UASs are those weighing less than 55 lbs) and guidelines for operation of UASs. For example, 14 C.F.R. Part 107 requires registration of UASs with the FAA and calls for voluntary reporting of accidents or damage caused by a drone. Similarly, Part 107 requires commercial “flyers” to obtain FAA certificates and prohibits drone usage in certain airspace (e.g., around airports) without the permission of Air Traffic Controllers.

This month, President Trump signed the 2018 National Defense Authorization Act into law, which extends certain requirements to those using model UASs. Although previously exempted from the registration requirement of Part 107, drone hobbyists (those that purchase and use drones for personal, non-commercial use) will be required to provide their name and contact information to the FAA, as well as pay a small fee, to be legally compliant when operating their drones.

While drones offer many benefits across multiple industries, there are still numerous issues to be addressed. There are safety considerations (as evidenced by the airfield collision in Canada), legal considerations (e.g., inability to identify owners of drones involved in accidents or collisions), as well as privacy considerations (e.g., drones used for unknown surveillance of an individual), to name a few. Additionally, the nature and scope of insurance related to drones remains in its early phase.

As drone usage continues to increase, it’s only a matter of time before the common law will develop to address some of these lingering concerns. Insurance coverage, terms and conditions also will impact the nature and extent of protection for those using drones.

The ultimate impact drones will have on our national airspace, and those involved in its regulation, is unknown. We’ll keep our eyes to the sky and provide relevant updates when they become available.

Careful with those gifts, Santa. The FAA is coming to town!

29 Aug 2016

ABSTRACT: Small Unmanned Aircraft Systems Rule, Part 107, takes effect Monday, August 29, 2016.

The Holidays will be here before we know it. Santa may have to team up with the FAA when gifting to “big kids” if their wish list includes something more substantial than a model airplane. In all seriousness, however, Part 107 is the FAA’s continued effort to maintain the safety of the National Airspace System and must be strictly adhered to.

The new Small Unmanned Aircraft Systems (UAS) Rule, Part 107, takes effect today. The Rule governs unmanned aircraft weighing less than 55 pounds and does not apply to UAS’s flown strictly for hobby or recreational purposes, so long as they are flown in accordance with the Special Rule for Model Aircraft.

The newly-titled “Remote Pilot in Command” must hold either a Remote Pilot Airman Certificate with a Small UAS rating or be under the direct supervision of one who holds such a Certificate. To qualify, the Certificate candidate must (1) demonstrate aeronautical knowledge by either passing an aeronautical test at one of the FAA-approved knowledge testing centers; or hold a Part-61 Pilot Certificate, have completed a flight review within the last 24 months, and complete a small UAS online FAA training course; (2) be vetted by the Transportation Security Administration; and (3) be at least 16 years old. An FAA airworthiness certification is not required, but the Remote Pilot in Command must complete a preflight check of the small UAS to ensure that it is in a condition safe for operation.

Among other things, Part 107 dictates that the Remote Pilot in Command not operate the Small UAS during daylight and civil twilight (30 minutes before official sunrise and 30 minutes after official sunset, local time) and that the Small UAS be operated with appropriate anti-collision lighting. The Small UAS may not operate over any persons not directly participating in its operation, and may not be operated under a covered structure, nor inside a stationary vehicle. Other requirements include yielding the right of way to other aircraft and not exceeding the maximum groundspeed of 100 mph (87 knots) or maximum altitude of 400 feet. The Rule permits a Small UAS to carry an external load so long as it does not adversely affect the aircraft’s characteristics or controllability. Most of the operational restrictions are waivable if the Remote Pilot in Command demonstrates that the proposed operation can be conducted safely under the waiver.

Click here for the complete text of the Small UAS Rule.