When transportation claims go nuclear
By Jim Foster
CLM’s Transportation Committee regularly gathers together industry experts in the transportation community to discuss litigation trends in the industry. In this edition, moderator Jim Foster leads a discussion with two defense experts about exploding monetary verdicts and what the industry can do about it.
Jim Foster: Welcome panel! There have been a number of nuclear jury verdicts returned in trucking cases in the past few years, even in cases where the defense has significant liability defenses. How does the quality of the plaintiff’s attorney, the permanency of plaintiff’s injuries, and venue play a part in this trend?
Clay Porter: First, to clarify, I consider nuclear verdicts to be those awards that are far beyond any rational application of the given law to the admitted evidence, and which are far beyond generally accepted ranges for similar claims. Although awards may be irrationally low, the reference to nuclear verdicts is always in reference to excessively high awards.
Disproportionately large awards in trucking cases with true strong liability defenses can result from many factors, including the enormity of the damages; the quality of the respective case presentations by the plaintiff and defense teams; evidence of systemic safety failure; aggravated conduct by the truck driver; hostility or lack of cooperation from key witnesses; a predisposed jury pool; a biased or weak judge; and state laws that provide for joint and several liability of recovery despite overwhelming contributory fault. Several of these forces are venue specific, which means venue alone may suggest exposure to excessiveness. Large economic damages, typically derived from permanent injury, pave the way both to the award and to holding on to it on appeal.
The quality of the respective lawyers has been one of the most significant factors in the rise of nuclear verdicts against motor carriers—it is a complex factor. If by “quality” you mean those professional, skilled, charismatic, and exceedingly well-prepared lawyers, then yes they absolutely have the potential to drive large verdicts as plaintiffs, and produce low awards for the defense. If “quality” refers to connected lawyers with significant influence over the jury pool, local witnesses, and judges, then those lawyers also tend to produce large or minimal awards depending on the representation. This sort of influence can be appropriate to the extent that it derives from reputation and a thorough understanding of the community and the court. It can also rise to an inappropriate level where the lawyer holds some level of control over juries, witnesses, or judges.
Jeff Stupp: They all play a huge part. The credibility of the plaintiff’s case starts with the plaintiff, but it ends with the quality of the lawyer presenting the case and the substance of their alleged damages. The more credible and skilled the plaintiff’s attorneys are, the more the jury is willing to listen to their opinions regarding how much the case is worth. Venue continues to play a huge role in how willing a jury is to render a big verdict, and unfortunately there is a growing number of venues to be concerned with. If you look for common themes across the nuclear verdicts, you will never see one in a conservative venue won by a mediocre plaintiff’s attorney.
Foster: Has there been an attack by plaintiffs on trucking companies’ designated corporate representatives, including safety directors, through the mechanism of an extensive 30(b)(6) (or person most knowledgeable) depositions, sometimes including 30-50 separate topics for inquiry?
Porter: Anyone involved in the defense of motor carrier cases is accustomed to seeing everything-but-the-kitchen-sink style of 30(b)(6) deposition notices. The appropriate response is to object to those items that are too broad and beyond the scope of the litigation.
Part of the problem is that the complaint invariably asserts negligent hiring, training, retention, and entrustment even where there is no hint of evidence supporting those claims. There are better mechanisms for dealing with this in federal court than in most state courts. Courts that refuse to exercise some degree of restraint on the breadth and scope of these notices are improperly allowing them to be used to abuse and disrupt the business of motor carriers. Ironically, this disruption almost always occurs in those departments engaged in safety management.
Stupp: I have not seen this, specifically. Part of the reason is that we have been pretty successful in shielding our corporate representatives from being deposed in the first place. This is especially so in a case in which we admit liability.
Foster: Is it crucial to spend the time and effort to identify and then prepare corporate representatives at the beginning of the case? If so, why?
Porter: I recommend involving the safety personnel who are likely to be called upon to testify in significant cases from the outset. Invariably, these witnesses help identify and elucidate the safety-related issues and data interpretation, and ensure proper record preservation and responsiveness to written discovery. These individuals become better prepared to serve as witnesses. Outside of the particular case, there is a benefit to overall safety management for these individuals to be a part of the safety introspection that occurs in large-case litigation.
Stupp: I think so, if for no other reason than you need to identify the strengths and weaknesses of your case early on. Part of that process is analyzing how effective your corporate representative will be as a witness, and I think that analysis is dependent on the specific facts of each case. I will identify potential issues and review them with the corporate rep, gauging how comfortable they are in defending a certain position or argument. The less comfortable they are, the worse off they will be as a witness, so that has to be part of the calculation when you analyze a case.
Foster: Would you recommend a mock trial or focus group on a case that has nuclear-type exposure? What have been your experiences?
Porter: Mock trials and focus group studies can be invaluable tools for the evaluation of issues and jury pool predispositions. Just as important, they are unparalleled for preparing the defense team. On major cases, I recommend them early and often. Care needs to be taken not to contaminate, or appear to contaminate, the actual jury pool.
Stupp: Absolutely, and I would conduct a mock jury a minimum of two times. It has been my experience that there is something that surprises me every time about the way the mock jury perceives a witness or a piece of evidence. It is obviously preferable to be surprised during a mock jury trial than during the trial itself. Moreover, conducting a mock jury trial at least twice gives you an opportunity to identify certain themes, and, if their verdicts are reasonably comparable, it gives me the ammunition I need with my executives to move forward with trial or increase our reserve to settle the case, whatever the case may be.
Foster: What tactics or strategies have you seen or used that have successfully reduced the likelihood that a jury would return a nuclear-type verdict?
Porter: The primary premise for a successful defense—or claim presentation, for that matter—is trust. The award goes up if the evidence and argument lead the jury to distrust the motor carrier and its lawyer. Everything the defense lawyer and the motor carrier do in handling the case from the start needs to take into account whether it is draining or maintaining credibility. It is the overarching factor, but it becomes most critical when the defense lawyer stands up to talk to the jurors in closing argument after the plaintiff’s lawyer has implored them to think in terms of the highest-paid professional baseball player. At that moment, is the jury glaring at the defense with a closed mind, or is it listening and perhaps even hoping to hear a meaningful response?
Stupp: One tactic I like to use is what I call “strategically distancing the company from the driver,” especially in liability cases. While not abandoning the driver or throwing him under the proverbial bus, the company can demonstrate in the trial that the driver was trained well and was expected to operate the truck in accordance with the company’s policies and training, but in this isolated incident involving the accident, the driver made the independent decision to act contrary to such policies and training. In other words, the company should not be punished (i.e., it would make no sense for the jury to deliver a punitive message) for the independent decision made by the driver that is contrary to what the company expected of him. The comparison is made to parents with their children: Parents teach their kids right from wrong, but sometimes the kids stray from those lessons in the real world. It is a relatable message that gives the jury proper context to find that this was just a tragic accident.
Meet the Panel
James A. Foster is a partner at Chicago-based Cassiday Schade LLP. He leads an emergency response team for catastrophic transportation accidents and serves as co-chair of CLM’s Transportation Committee. He is also on the faculty and executive council of CLM Claim College’s School of Transportation.
Clay Porter has been devoted to the defense of motor carriers for over 40 years. He is a member of several trucking defense organizations and served as the chairman of the American College of Transportation Attorneys. He is a primary author of “Motor Carrier Liability” published by CCH Inc. He is based in Minnesota and is a partner in the firm of Porter, Rennie, Woodard, Kendall LLP out of Cincinnati, Ohio. His practice includes representation of motor carriers throughout the U.S. in their most challenging cases. As part of his practice, he currently serves as outside national counsel for Schneider National Carriers.
Jeffrey Stupp is the vice president and general counsel for Cardinal Logistics Management Corporation, one of the largest dedicated motor carriers in the U.S. At Cardinal, he manages the company’s litigation across the country; oversees the claims, workers compensation, and risk management departments; negotiates contracts; serves as legal counsel to the company’s executives; and functions as the corporate secretary for the company’s board of directors. Prior to joining Cardinal, he was a litigator with the Cleveland-based defense law firm Gallagher Sharp, where over half of his practice was devoted to the trucking industry. He is also currently serving a three-year term on the board of directors for TIDA.