Welcome back to another edition of The Blame Game! Previously, in our March 2018 edition, we looked at various construction verdicts in an effort to test our skills at assessing verdict exposure in those cases. In this installment, we take a look at verdicts in trucking cases.
Those of us who have handled trucking claims and the resultant litigation have a healthy fear of big-wheelers on the road. We know too well that in an accident with tons of steel hurtling down the freeway, there are no winners. (Minor accidents with tractor-trailers are rare.) As a result, when we are assessing exposure in trucking cases, we are usually dealing with very severe injuries or fatalities, which means that these can be some of the highest exposure cases we handle.
Professionals in this field are also acutely aware that truckers are often held to a very high standard of care and can be targets even when they are seemingly in the right. Plaintiff’s attorneys go to great lengths to find fault with every aspect of a trucker’s actions when an accident results in injuries, even if the trucker was rear-ended or was stopped on the side of the freeway.
With that in mind, let’s discuss three trucking verdicts from across the country and test your ability to evaluate exposure in high-value trucking litigation. Keep in mind that we will provide as much detail as could be obtained from jury verdicts and news reports concerning liability and damages. As each case is reviewed, consider the probable outcomes. Should the case end in a plaintiff or defense verdict? If you expect a plaintiff verdict, then take a guess about the dollar value. Was there any comparative fault? If so, how much? Assisting in the analysis is claims professional extraordinaire Bert Dizon, who will share his assessment of the outcome of each case before the actual verdict is revealed. Are you ready to play The Blame Game: Trucking Edition?
Trucking Case #1
The first case was tried in Maricopa County in Phoenix, Arizona. A 57-year old CEO of a commercial waste company was driving his Chevy Suburban with his 13-year-old son and 16-year-old nephew. At the same time, a trucker for a national trucking company headquartered in Phoenix was hauling 40,000 pounds of product in his tractor-trailer. The accident happened at an intersection of a state road and a U.S. highway in rural Kansas. The tractor-trailer was driving at about 65 miles per hour, passed over three sets of rumble strips, ran a stop sign, and crashed into the Suburban.
The tractor-trailer’s driver was alleged to be fatigued and driving more hours than allowed. Plaintiffs obtained an adverse inference instruction for spoliation based on the trucking company’s failure to produce most of the driver’s logs that the company was required to keep under federal regulations (driver’s logs for four of the past eight days prior to the accident, and the prior six months of driver’s logs). The trucking company admitted negligence.
The Suburban driver was killed on impact, leaving behind a wife and eight children. His son had open-reduction with internal fixation surgery on complex compound fractures in both of his legs and left arm, and underwent six additional external fixation adjustment procedures. After two months in a wheelchair, he relearned how to walk. He made an almost full recovery within one year post-accident, and continued periodic visits with physicians. His medical expenses totalled $182,000. The nephew was immobilized with a fracture in the thoracic area and a left fractured clavicle. He also sustained a concussion and a fractured toe and finger, was diagnosed with post-traumatic stress disorder, and underwent psychological treatment at the hospital. The nephew’s medical expenses were $67,000.
Dizon Says: “This is a tough case given you have the fatality of a CEO who was only 57 years old and very severe injuries to two minors. Considering the venue where the case was brought, the injuries sustained by the nephew would have yielded a verdict of roughly $500,000. The verdict for the son was probably in the range of $1 million. The verdict for the wrongful death of the CEO, who had a good number of years left in his career and a very large family, would likely be in the range of $10 million to $15 million, likely bringing the entire verdict on this case to between $11.5 million to $16.5 million.”
The Verdict: After a three-week trial and just 7.5 hours of deliberation, the jury awarded the plaintiffs $23.7 million, which included $1 million to each of the CEO’s eight surviving children, about $10 million to the widow, $3.6 million to the son, and $2.2 million to the nephew. Since the accident occurred in Kansas but was tried in Arizona, the defendants argued that medical damages should be subject to the Kansas state cap. The court agreed, and the son’s personal injuries and medical costs award was reduced to $317,000, while the nephew’s award was reduced to $43,000. The jury also awarded $13.9 million in punitive damages, likely related to the spoliation of evidence charges. The jury found zero comparative negligence.
Trucking Case #2
Our second case comes from the Bronx, New York. A 37-year-old investigator was riding as a passenger in a vehicle when the driver of the car attempted to navigate around a double-parked box truck, colliding with the front end of a tractor-trailer for a small trucking company.
The plaintiff alleged that the box-truck driver was negligent in the operation of the truck and initiated the collision, since he did not exercise due care and was illegally parked. The defendants argued that, per the New York City traffic rules, a commercial vehicle may be double-parked during hours in which parking, standing, and stopping are permitted, and if there is not another space within a hundred feet. The defendants also argued the tractor-trailer was stopped in a line of cars that were waiting for a green light, and that the driver of the car should have waited until it was safe to change lanes.
The plaintiff was taken by ambulance to the hospital and underwent minor treatment; he claimed to have suffered a herniated C2-C3 intervertebral disc, aggravations of pre-existing herniations of the C3-C4, C4-C5, and L5-S1 discs, and also suffered a concussion. He underwent surgery, which was followed by physical therapy. The plaintiff was deemed disabled by the Social Security Administration, and stated that he could not perform any type of work or any meaningful physical activities. The defense argued that the plaintiff’s injuries were not a result of the accident, and that the plaintiff had been involved in another car accident in 2005 in which he suffered a protrusion of the C3-C4, C4-C5, and L5-S1 discs.
The plaintiff sought $2.7 million for future medical costs, $741,608 for his loss of pension benefits, and $361,727 for his loss of health insurance..
Dizon Says: “In an ideal situation, the defense would prevail based on the New York City traffic rules and the failure to exercise due care on the part of the driver of the passenger car. Based on experience with the Bronx, however, it’s difficult to imagine that a jury would render a defense verdict for an alleged illegally parked vehicle. Considering the venue and how a jury would likely feel about these large vehicles double-parked on the narrow streets of New York, a very minimal verdict against the box-truck company could be expected, in the neighborhood of $200,000. A defense verdict seems to be the most just outcome in this case, however.”
The Verdict: Even in the Bronx, notorious for large verdicts, defense verdicts are possible. The jury found the truck driver was not responsible for the accident and returned a defense verdict.
Trucking Case #3
Our third case comes from Lake County in Indiana. During a snowstorm, a tractor-trailer operated by the defendant trucking company lost control and spun into the median. The truck driver did not turn on the truck’s emergency hazard lights and did not put out reflective triangles. Instead, the truck driver turned off all of the vehicle’s lights.
An hour later, the plaintiff—a 31-year-old registered nurse—was asleep in a car being driven by her fiancé. While the snowstorm ensued, the fiancé lost control of the car and collided with the tractor-trailer. The plaintiff alleged that the car’s driver had been speeding at the time of the accident, but that the trucker and the trucking company were largely responsible for plaintiff’s injuries.
The plaintiff alleged that the truck should not have been driving in the bad weather, and that it was a violation of the Indiana Commercial Driver’s License Manual and the trucking company’s internal safety policies to fail to turn on flashing lights or use reflective triangles as a warning to other drivers. Defendants argued that the truck was off the road and therefore did not need reflective signals, and that the driver of the passenger car had been driving 70 miles per hour.
The plaintiff was in a coma for a month. She had brain bleeding and swelling and underwent four craniotomies to relieve pressure. She also had right-arm and leg spasms, which required ongoing Botox injections. As a result of her injuries, the plaintiff suffered from short-term and long-term memory loss, is wheelchair bound, and requires ongoing care from her mother and sister. She also is unable to care for her six-year-old daughter. Apparently, the plaintiff did not put her prior medical expenses into evidence (potentially because they were relatively low, so that the jury would not anchor to them), but did claim between $11.2 million to $14.2 million in future medical expenses. Counsel for the plaintiff requested a total award exceeding $50 million
Dizon says: “Considering the fact that the injured party was a passenger and asleep in the passenger vehicle, the passenger clearly has no fault. Arguably, the fiancé had a greater duty of care during the snowstorm to maneuver carefully, and he appears to have been driving at a speed that was unsafe. The jury would be expected to place the bulk of the negligence on the part of the fiancé and a minimal amount of negligence on the part of the truck driver. A verdict of around $20 million would not be surprising.”
The Verdict: The jury deliberated for just 2.5 hours, and the verdict was unanimous. The truck company was held 60 percent liable and the fiancé was found 40 percent liable. The plaintiff was awarded $32.5 million in damages.
How did you do? The first verdict demonstrated a “Kansas effect,” which significantly drove down the verdict. The Kansas caps on damages had a major impact, saving the defense more than $4 million. The second verdict proves that defense verdicts are still possible—even in the Bronx! And our third verdict reminds us that despite our best efforts, juries are apt to hold truckers to higher standards than drivers of personal cars.