For The Defense, December 2011 - DRI Today

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On The RecORd
“May I Be Heard?”
DRI Is Listening
By John E. Cuttino, DRI Board of Directors
We all share a basic human desire to be heard—to have
others listen to us. Is that not among the highest compliments—to
have someone interested and willing to listen
to what we have to say? Those of us in the legal profession
have a particularly strong need to be heard and to convey
our opinions or knowledge through the written or
spoken word. How often have you pleaded, “Your honor,
may I be heard?” Do you find it hard to resist filing just
one more reply brief? I confess, it was nearly impossible
for me to hold this column to a respectable length. Perhaps
this need in us is a function of our personalities; we
tend to consider ourselves smart, creative, and almost
always in possession of something that the world needs
to hear. Perhaps it is related to our legal education, which
trains us to analyze mountains of information and to
achieve some result that we must report. Or perhaps it
stems from our professional lives and the steady stream
of amazing facts, unique personalities, and quirks in the
law that keep us entertained and provide “war stories”
that we want to tell. Others notice this need in us also.
In fact, my favorite layman’s quote about the legal profession
is this: “Attorneys mistake talk for action.” There
is uncomfortable truth in that statement. Too often we
think that if we can make ourselves heard on an issue
long enough, if we can make just one more point, we have
conquered it. Problem solved! Would our clients agree?
My late father was an interesting and interested man.
He was a seminary- educated theologian and minister, a
college professor, and a wise and witty observer of human
nature. His professional life included thousands of
hours of speaking to classes, congregations, and countless
other gatherings of varying sizes and seriousness.
But he never missed an opportunity to remind me that
he had learned far more by listening than by speaking. In
his words, “You don’t learn much when you’re talking.”
But listening is a vanishing art, apparently so close to
extinction that we can take courses on “active listening”
designed to “increase our productivity” and “improve
our personal relationships.” In Henry IV, part 2, Shakespeare
lamented “the disease of not listening,” a condition
I believe has become considerably worse over the
400 or so years since the “Bard of Avon” diagnosed it.
Twenty-four-hour news cycles, cell phones, i- whatevers,
and on- demand information make it mighty hard to listen
to your friends, family, and colleagues, even when
you want to. The fact is that real listening doesn’t just
happen; it requires effort. And as difficult as it is for us
as individuals to listen, it is even more difficult for an
entire organization to listen. So when an organization
does listen, it is noteworthy.
Membership in DRI provides many advantages. Perhaps
the greatest is belonging to a professional organization
that considers listening vital to its mission.
Listening has long been second nature in the culture of
DRI. We began as the “Defense Research Institute” in
1960, dedicated to acquiring information to use to educate,
promote, and improve the civil defense bar. Our
magnificent organization continues to listen today in
ways large and small. In fact, listening is what DRI is
designed to do. Consider these examples:
DRI members listen to each other. This occurs in
countless ways throughout DRI every day. DRI’s success
depends on the meaningful participation of its volunteer
membership. DRI members generate the ideas for educational
seminar topics and speakers, articles and publications
of interest to the profession, and research work
on matters of current relevance, such as judicial independence,
climate change, and tort reform. Through
its structure of 29 substantive law committees and the
Law Institute, DRI promotes free exchanges of thought.
The DRI Board of Directors’ work is characterized by
open discussion and, on a personal note, has afforded
me the opportunity to share thoughts and ideas with
some of the brightest folks that our profession has to
offer, each of whom always listened with interest and
open- mindedness. The success of the DRI 2011 national
membership initiative is largely owing to the multitude
of good ideas offered not only by the Membership Committee,
but by many other members interested in growing
the organization. DRI is likewise vitally interested in
unique perspectives, as evidenced by the Diversity, the
Women in the Law, and the Young Lawyers Committees,
as well as DRI International. DRI and its individual
members win when we listen to each other.
DRI listens to the SLDOs. With its national reach,
perspective, and vast educational resources, DRI stands
as a valuable asset to the nation’s individual state and
local defense organizations (SLDOs). The DRI State Representatives
keep DRI advised about legal trends and
challenges arising in the states. These days in particular,
DRI and the state-based defense organizations are “better
together,” working to support each other and the civil
defense bar. To that end, DRI always seeks input on how
On The Record

DRI—The Voice
of the Defense Bar
Vol. 53, No. 12 December 2011
President Henry M. Sneath
Pittsburgh, Pennsylvania
Immediate Past President R. Matthew Cairns
Concord, New Hampshire
President-Elect Mary Massaron Ross
Detroit, Michigan
1st Vice President J. Michael Weston
Cedar Rapids, Iowa
2nd Vice President John Parker Sweeney
Baltimore, Maryland
Secretary-Treasurer Laura E. Proctor
Nashville, Tennessee
Executive Director John R. Kouris
Deputy Executive Director Tyler Howes
Director of Publications Jay Ludlam
Editor Michelle Parrini
Production Manager Julia Bergerud
Contributing Editor Marge Motluck
Advertising
Representative Laurie P. Mokry
For The Defense, December 2011, Vol. 53, No. 12 (ISSN
0015-6884). Copyright ©2011, DRI. All rights reserved.
Published monthly by DRI, 55 West Monroe Street ~
Suite 2000, Chicago, Illinois 60603. Telephone: (312)
795-1101. Fax: (312) 795-0747.
Periodicals postage paid at Chicago, Illinois, and at
additional mailing offices. Subscription price is $65.00
per year, and, for DRI members, is included in the membership
dues. Individual copies are $7.00 for DRI members
and $12.00 for non-members, plus postage and
handling.
POSTMASTER: Send address changes to For The
Defense, DRI, 55 West Monroe Street ~ Suite 2000, Chicago,
Illinois 60603.
Correspondence and manuscripts should be sent to
the Editor.
All views, opinions and conclusions expressed in this
magazine are those of the authors, and do not necessarily
reflect the opinion and/or policy of DRI and its
leadership.
2 ■ For The Defense ■ December 2011
In ThIs Issue
1 On The Record
“May I Be Heard?” DRI Is Listening By John E. Cuttino, DRI Board of Directors
4 DRI News
Members on the Move • DRI Calendar
6 2011 Annual Meeting
DRI Today—The Next 50 Years
ProducT LIabILITy
26 Past Is Prologue
Still No Service for Cell
Phone Radiation Litigation
By Lawrence G. Cetrulo,
Michael J. Cahalane
and Robert J.L. Moore
ProfessIonaL LIabILITy
34 The Times They Are A-Changin’
Lawyers’ Professional Liability Insurance
By Stephen S. van Wert
drug and MedIcaL devIce
40 FDA Regulation
Off-Label Promotion and the First Amendment
By Michael A. Walsh
TruckIng Law
48 From the Chair
One New Idea—One New Friend
By Kurt M. Rozelsky
50 Rapid Response Teams
Investigation of Catastrophic Accidents
By Durward D. Casteel and Aaron J. Messer
55 To Cooperate or Not…That Is the Question!
Postaccident Police Investigations
By Brian Del Gatto and Julia Paridis
59 An Essential Element of Risk Management
Battling Bias Against Truckers
By Stockard R. Hickey III and Paula J. Gabier, Ph.D.
31 One Size Doesn’t Fit All
Analyzing Punitive Damages
Reprehensibility
By Diane Flannery
and Jason Burnette
78 Writers’ Corner
Social Proof: Why Precedents Are Persuasive By Linda Morkan
80 Think Globally
10 Tips: Obtaining Evidence Successfully in Canada to Use in a Foreign Proceeding
By Richard McCluskey and Lisa Parliament
88 Advocates and New Members
63 Welcome to the United States
Mexico as a Partner Under
the 2011 Trucking MOU
By Jenifer L. Kienle and William B. Springer
66 Wake-Up Call for Carrier and Driver
Falling Asleep Can Result
in Punitive Damages
By Marshal M. Pitchford
and Christopher E. Cotter
71 FMSCA Safety Evaluation
CSA—The Final Version?
By Philip M. Gulisano and Thomas J. Lang

© 2011 Thomson Reuters L-367045/11-11
Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters.
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DRI Services
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Phone (312) 795-1101
Fax (312) 795-0747
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DRI Staff Contacts (direct-dial
numbers in area code 312).
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and Dismembermemt
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e-Mail: membership@dri.org
Cheryl Palombizio, 698-6207
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■ DRI Committees
e-Mail: committees@dri.org
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e-Mail: thevoice@dri.org
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e-Mail: legislation@dri.org
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dRI news
4 ■ For The Defense ■ December 2011
Members on the Move West agreed to provide attendees with relevant sec-
Daniel T. Rabbitt, Jr., of St. Louis, a fellow of the
American College of Trial Lawyers and listed in the
Best Lawyers in America under the Personal Injury
Defense Category for the last 23 years, started the
Rabbitt Law Firm LLC earlier this year and recently
moved to permanent space.
Duane Morris partner Demetrious C. (Jim) Batsides
will be installed as the new president of the Trial
Attorneys of New Jersey at the organization’s 44th
Annual Trial Bar Banquet. Mr. Batsides is a trial attorney
in Duane Morris’s Newark, New Jersey, and
New York City offices. His practice focuses on the defense
and counseling of health care companies; clinical
and genetics laboratories; pharmaceutical and
medical device manufacturers; medical and laboratory
professionals; and product distributors, retailers,
and manufacturers. He has extensive experience
in cases involving complex liability and medical causation
issues and has represented clients in cases involving
claims for significant personal injuries and
economic damages from catastrophic neurological
injury wrongful death, wrongful birth, loss of fertility,
toxic exposure, and failure to diagnose cancer.
Mr. Batsides also routinely counsels health care clients
and products manufacturers on risk management
best practices and regulatory compliance issues.
Marie Milie Jones has been awarded the St. Thomas
More Award, the highest honor given by the St. Thomas
More Society for Catholic lawyers. Following the annual
Red Mass on October 11, 2011, Ms. Jones was
presented this honor at a dinner held at Duquesne University.
This award coincides annually with the Red
Mass, wherein guidance and blessings are sought for
the bench and bar. Ms. Jones currently serves as chair
of the board of directors of Duquesne University and is
a member of the board of regents of St. Vincent Seminary.
She practices law in the recently formed boutique
litigation firm of JonesPassodelis, P.L.L.C.
On Friday, October 21, 2011, Dennis Wall of Winter
Springs and Orlando, Florida, co- presented a West
Legal Education Webinar, “Disasters in Insurance.”
tions from one of Mr. Wall’s book, CATClaims: Insurance
Coverage for Natural and Man-Made Disasters,
as well as PowerPoint slides drafted especially for
the webinar.
Robert J. Sniffen and Michael P. Spellman, the
two principals of Sniffen & Spellman, P.A., have
again been selected by their peers for inclusion in the
2012 edition of Best Lawyers in America in the practice
areas of employment law management, labor law
management and litigation labor and employment.
Selection to Best Lawyers is based on an exhaustive
and rigorous peer- review survey (comprising more
that 3.9 million confidential evaluations by fellow
top attorneys).
Williams Venker & Sanders has been included
in U.S. News & World Report’s 2011 Best Law Firms
listing for the St. Louis metropolitan area. The firm
was given the highest ranking of “Tier 1” for its work
in medical malpractice defense, personal injury
defense, and product liability defense. This is the second
consecutive year that Williams Venker & Sanders
has received the Tier 1 ranking in these three
practice areas. Williams Venker & Sanders partners
and DRI members Theodore J. Williams, Jr., and
Paul N. Venker have been included in the Best Lawyers
in America rankings for many years.
Reminger Co. LPA is proud to announce that two
of their partners, Kenneth P. Abbarno and Mario
C. Ciano have been honored as 2012 Best Lawyers
in America “Lawyers of the Year” for Cleveland.
Mr. Abbarno received the recognition in the area of
transportation law, and Mr. Ciano in personal injury
litigation defense. Honorees are selected by conducting
peer- review surveys in which thousands of
leading lawyers confidentially evaluate their peers.
The lawyers honored as “Lawyers of the Year” have
received particularly high ratings in these surveys by
earning a high level of respect among their peers for
their professionalism, ability, and integrity.
Marge Motluck
Diversity and Inclusion in DRI: A Statement of Principle
DRI is the largest international membership organization of attorneys defending the interests
of business and individuals in civil litigation.
Diversity is a core value at DRI. Indeed, diversity is fundamental to the success of the
organization, and we seek out and embrace the innumerable benefits and contributions that the perspectives,
backgrounds, cultures, and life experiences a diverse membership provides.
Inclusiveness is the chief means to increase the diversity of DRI’s membership and leadership positions. DRI’s
members and potential leaders are often also members and leaders of other defense organizations. Accordingly,
DRI encourages all national, state, and local defense organizations to promote diversity and inclusion in their
membership and leadership.

Calendar
Upcoming events
of interest to
DRI members and
other defense lawyers
For more information
about any of these
events, call DRI
Customer Service at
(312) 795-1101,
or visit our website at
www.dri.org.
DRi Calend

DRI ToDay—
The NexT
50 yeaRs
2011 annuaL MeeTIng
DRI was proud to bring this year’s Annual Meeting—DRI’s 16th—back to Washington,
D.C., where our nation’s capital played host to attendees of the defense bar’s
signature event from October 26–30. The Annual Meeting, now recognized as a
world-class program and a must- attend event for defense bar leaders, defense lawyers,
and corporate counsel, set new highs in terms of blockbuster speakers and also
delivered the top-notch continuing legal education events, important committee
and state and local defense organizations (SLDO) meetings, and endless networking
opportunities that have come to be expected.
More than 1,500 attendees heard from President Bill Clinton, Founder of the William
J. Clinton Foundation and 42nd President of the United States, on how to embrace
our common humanity. Associate Justice of the U.S. Supreme Court Antonin Scalia and
Bryan A. Garner, Founder and President of LawProse, Inc., presented excerpts from
their recent collaboration, Making Your Case: The Art of Persuading Judges, and shared
insights on the principles of persuasion, legal reasoning, brief writing and oral argument.
Nora O’Donnell, chief White House correspondent for CBS, addressed the SLDO
Leadership Breakfast attendees, providing a detailed sense of the complex issues in the
news today and insights on the key Washington power players. Attendees of the Thursday
Awards Luncheon were treated to a presentation by political columnist, TV personality,
and radio host Tony Blankley, who presented on The Politics of Change in a Crucial
American Moment. John S. Pistole, Administrator of
the TSA, gave attendees valuable insights in to our
nation’s transportation and security system in his presentation
on Transportation Security—Its Evolution
and Future. Trial advocacy experts Thomas A. Mauet
and Dominic J. Gianna provided the final substantive
portion of the meeting with an interactive three-hour
blockbuster that focused on dynamic ways to view the
arts of advocacy and persuasion. Overall, more than
90 speakers presented during three days of programs.
Mark Your Calendars! The 17th DRI Annual Meeting will be
held on October 24–28, 2012, at the New Orleans Marriott in New
Orleans, Louisiana. Information regarding early registration and
quality education will be available in the coming months.
6 ■ For The Defense ■ December 2011
From left: Matt Cairns, Toyja Kelley,
Karen Glickstein, Cary Hiltgen (partially
hidden), John Kuppens, Laura Proctor,
John Kouris (partially hidden), Mike
Weston (partially hidden), Lise
Spacapan, Mary Massaron Ross, John
Parker Sweeney, Henry Sneath
The Annual Meeting means the
election of new DRI leadership, and the organization
is honored to announce its new
president, Henry M. Sneath of Picadio Sneath
Miller & Norton PC in Pittsburgh. Continuing
to serve the organization as an officer is
R. Matthew Cairns of Gallagher, Callahan
& Gartrell PC in Concord, New Hampshire,
who is now immediate past president.
Mary Massaron Ross of Plunkett Cooney
PC in Detroit is now DRI’s president- elect,
and J. Michael Weston of Lederer Weston
Craig PLC in Cedar Rapids, Iowa, rises to
first vice president. Each year, by election of
the DRI Board of Directors, two new officers
are also chosen at the Annual Meeting.
DRI congratulates John Parker Sweeney of
Womble Carlyle Sandridge & Rice PLLC
in Baltimore for his election to the office
of second vice president. Mr. Sweeney will
become the DRI President in 2014. Laura E.
Proctor of LP Building Products in Nashville,
Tennessee, was again elected as the
organization’s secretary- treasurer.
National directors were also elected to
serve on DRI’s board: Karen R. Glickstein of
Polsinelli Shughart PC in Kansas City, Missouri;
Toyja E. Kelley of Tydings & Rosenberg
LLP in Baltimore; John F. Kuppens of
Nelson Mullins Riley & Scarborough LLP
in Columbia, South Carolina; and Lise T.
Spacapan of Jenner & Block LLP in Chicago.
They join DRI’s new regional directors who
were selected this summer: R. Bruce Barze,
Jr., of Balch & Bingham in Birmingham, Alabama;
John J. Burke of Hall Farley Oberrecht
in Boise, Idaho; Stephen R. Crislip of
Jackson Kelly in Charleston, West Virginia;
and Glenn M. Zakaib of Cassels Brock &
Blackwell in Toronto, Ontario.

A young guest gets hands-on reporting
experience at the Newseum.
As always, the Annual Meeting
featured evening entertainment,
beginning on Wednesday
with the First-Time Attendees
and DRI New Member Reception
in the Exhibit Showcase, which
was followed by the never- to-
be- missed Welcome Reception—
D.C. Style! Thursday highlights
included the very popular Diversity
Reception and the off-site
networking reception at the Newseum,
the world’s most interactive
museum, where attendees
were treated to live music and
great food in a place where five
centuries of news history meets
up- to- the- second technology.
Never to be outdone, the Young Lawyers
Committee once again hosted a terrific
networking reception on Friday evening.
The meeting concluded on Saturday
evening with the annual President’s
Gala—an evening devoted to excellent
food, wine, and stimulating conversation.
Along with the announcement of the new
DRI leadership, this year’s gala featured
the conclusion of DRI’s silent auction, and
the drawing of raffle winners. Both the
auction and the raffle raised money for
this year’s beneficiary, the National Foundation
for Judicial Excellence. Heartfelt
thanks to all of the raffle participants, auction
winners and bidders, and especially
to the auction item donors, as the auction
raised $35,000 and the raffle $4,500!
The Thursday evening reception’s setting in the Newseum.
The Newseum houses a broadcast antenna that stood
atop the World Trade Center’s North Tower.
Attendees meet at the Newseum’s historic
section of the Berlin Wall.
Attendees browse the
selections available
at the Silent Auction.
Images of American presidents, including
John F. Kennedy, set the mood at
Wednesday evening’s
Welcome
Reception—
D.C. Style!
For The Defense ■ December 2011 ■ 7

Embracing Our
Common Humanity—
President Clinton
Headlines 2011 DRI
Annual Meeting
“We have something very, very
special for everybody,” announced then
DRI President- Elect Henry M. Sneath to
a packed ballroom, as he introduced this
year’s featured Annual Meeting speaker.
He was right. DRI was honored to welcome
Bill Clinton, 42nd president of the
United States, to the blockbuster stage,
where he delivered a sobering yet hopeful
message to Annual Meeting attendees
and their guests on “Embracing Our
Common Humanity.”
In opening his address, President Clinton
said that people often ask him about
the nation’s potential long-term decline
and whether we have started to see the
beginning of the end of America. “A lot
of people are betting against us,” he said,
“but I wouldn’t do it if I were you.” The
president went on to explain why he felt
that way and discussed, in the context of
the world today, several of the important
problems faced by the country.
8 ■ For The Defense ■ December 2011
First, however, President Clinton
offered the audience some positives. The
president said that scientific research
represents one example of how the world
cooperates in some remarkable ways.
He pointed to recent discoveries such as
planets outside of our solar system, new
information about our hominid ancestors,
and recent developments in particle
physics that may, in our lifetimes, upend
everything that we think that we know
about space and time. He said that cooperation
is also what we need to achieve
the goals of solving economic problems
and ameliorating bad social conditions.
“In the world we live in,” said President
Clinton, “we’ve learned one thing:
that the most important characteristic
of the twenty-first century is our interdependence.”
Interdependence, he said,
can be good or bad, and the president
told attendees that he organizes his life
around a principle that involves build-
ing up the positive, while reducing the
negative, forces of our interdependence.
In discussing the massive problems
facing our country and the world today,
President Clinton devoted significant
time to the issue of inequality, which he
said is far too pervasive to hold societies
together and keep people working cooperatively.
He talked about how social
challenges—whether stemming from
economic strife, education shortcomings,
climate change-driven disasters, or
disease—present themselves very differently
in poor countries than in wealthy
countries. Poor countries lack systems,
the kind of systems that provide many of
the things that we in this country probably
take for granted. For example, the
reason that Haiti experienced a cholera
outbreak was that it lacked a sanitation
system. Inadequate health care
systems in poor countries have fueled
the spread of AIDS. Poor countries are

in need of improved education systems,
honest governance systems, and systems
designed to attract investments and
improve infrastructure.
While poor countries suffer from
these systems voids, in wealthy countries,
the systems in place can become
problematic, according to President Clinton.
In wealthy countries, systems now
function primarily to preserve the systems,
and the people running the systems
are more interested in holding on to
what they have than working to advance
the purposes for which the systems were
originally designed. This, he believes,
is evident in the tensions surrounding
income disparity, the lack of a good,
vibrant debate on role of government,
and regular attempts to disenfranchise
the American voters. That is why building
and reforming systems, by working
with governments and the private sector,
is a primary focus of the work that
he does with his foundation.
“We’re going to be fine,” said President
Clinton, “but we need to have the right
debate. And in the world, we need to keep
in mind that the choices will be more
Your membership
in DRI is as
unique as you are
Use the new (private) Member
Dashboard on the DRI
website—a one of a kind tool
that enables you to view and
track activites tied to your
DRI membership. You can
securely access the following
information:
■ DRI CLE Materials
(brochures, course
materials and rosters)
■ DRI Activities
■ DRI Membership Details
■ DRI Advocates
inequality or a future of shared prosperity;
more instability or a future of shared
responsibility; and a sense of our common
humanity, which will lead us to do
the right thing to save the planet for our
children and grandchildren.”
After concluding his speech, President
Clinton fielded several questions
from Mr. Sneath. When Mr. Sneath asked
the president about his view on the current
negative political discourse, especially
as presented by the media, the
president said that the debate we’re having
right now is not a real debate, and
that he pleads that we actually get down
to a discussion of what our real choices
are. Asked to evaluate the relationship
between terrorism and the economy,
Mr. Clinton recalled a recent address
Secretary of State Hillary Clinton gave
in which she emphasized that economic
strength cannot be divorced from
national security. According to the president,
if people in the United States do
not feel secure enough in their own economic
fortunes, they are not going to
support the investment needed to build
more partnerships around the world and
reduce the threat of terrorism. When Mr.
Sneath asked how we can rebuild confidence
in the financial markets without
creating inequities, President Clinton
emphasized the importance of addressing
mortgage debt and updating infrastructure
if we want to see a return to the
growth of the 1990s. Finally, when asked
to identify the accomplishment from
his presidency that makes him the most
proud, President Clinton gave Mr. Sneath
a specific answer and a general one. Specifically,
he pointed to the 22.7 million
jobs created during his administration,
92 percent of which were in the private
sector, as well the 7.7 million people who
moved from poverty to the middle class
during those eight years, which was 100
times as many as during President Ronald
Reagan’s two terms. He also said that
he was generally proud of the fact that
when he left office, it was understood that
the government, the private sector, and
individuals had to cooperate to achieve
progress. People had confidence in government
and expected to solve problems
together.
The new Member Dashboard and
enhanced MyDRI Profile oer you a
unique and compelling opportunity
to demonstrate your expertise to
your clients and are great ways to
maximize your membership in DRI.
■ ENGAGE ■ CONNECT ■ GROW ■ LEARN ■ The DRI Community
Login today at
www.dri.org
For The Defense ■ December 2011 ■ 9

Scalia and Garner: Making Your Case—
The Art of Persuading Judges
Bryan A. Garner (left) and
Justice Antonin Scalia
The 2011 Annual Meeting blockbuster
line up of speakers kicked off on
Thursday morning with United States
Supreme Court Justice Antonin Scalia
and award- winning author and leading
legal editor Bryan A. Garner, who joined
forces to write a book to address the ageold
question: How do effective advocates
persuade courts to decide cases in
favor of their clients? Teaching from several
sections of their book, Making Your
Case: The Art of Persuading Judges, the
two offered advice, with a healthy dose of
humor, to a full ballroom on how lawyers
can achieve best results in brief writing
and oral argument, along with warnings
on practices to avoid.
For example, recalling their book’s
section on never overstating your case,
Mr. Garner said that the advocate should
ask him- or herself if he or she can understate
the case and still have it work. If, in
your argument, you are “having to rely
on words like ‘clearly’ and ‘obviously’
and that sort of thing to carry your way,
it’s not a good argument,” he said. On the
book’s section on why you should lead
with your strongest point, Mr. Garner
10 ■ For The Defense ■ December 2011
japed that it’s “because judges are most
awake at the beginning of the argument.”
He also said “first impressions last,” that
“if you begin with a strong argument, the
judge will think you have a strong case,”
and that “in some contexts, such as oral
argument, you may never get off your
first point.”
Justice Scalia then addressed the question
of whether you should still lead with
your best argument if you are second to
argue, or if it is better to first refute the
arguments that your opponent has just
made. On that point, he said that he and
Mr. Garner agreed with Aristotle’s philosophy
that a previous argument must
first be refuted, especially if it was well
received. “You have to make space,” said
Justice Scalia, drawing on his experience
from the bench, “you have to knock down
this powerful argument…, then I can listen
to you.”
Scalia and Garner also talked about
the importance of making sure that
the arguments upon which you rely are
responsible and defensible, while at the
same time having the sense to yield the
indefensible points in your case. “Yield
ostentatiously!” Justice Scalia recommended,
“Show the court how reasonable
you are.”
In presenting any brief or oral argument,
Justice Scalia underscored how
important it is to “get the issue out front.”
He remarked that he is surprised at the
number of briefs he reads (not from his
Court) that start with a recitation of the
facts, which only leaves him wondering
what he is supposed to be looking for—
what’s important? He also underscored
the importance of knowing your audience.
“You should scope out the judges
you’re appearing for profoundly before
you write your brief or before you stand
up,” Justice Scalia said.
Mr. Garner spoke about the nuts and
bolts of composing briefs, touching on
the importance of effective point headings.
He also addressed some points
of oral argument strategy, reminding
attendees that during oral argument,
questions go one way. You should never
ask a judge what he or she would have
done in certain circumstances or even
if you’ve answered a judge’s question to
his or her satisfaction. On the subject of
questions, Justice Scalia said that good
advocates should welcome not only questions,
but also hypotheticals from the
bench. He admonished attendees to avoid
a practice that vexes him, which is when
a lawyer responds to a hypothetical presented
by the court by saying that it’s “not
this case.” He knows it’s not this case, it’s
a hypothetical! As an appellate judge, his
main concern is not necessarily with the
result of the case before him—he is in
charge of creating a rule. “If it produces
a happy result in this case, that’s wonderful,”
said Justice Scalia, “but my main
concern is [whether] this rule will produce
justice in the vast majority of cases
to which it will be applied in the future.”
Justice Scalia and Mr. Garner were
kind enough to remain long after the
conclusion of their presentation for a
book signing, of which several hundred
Annual Meeting attendees and their
guests were pleased to take advantage.

Tony Blankley—The Politics of Change
in a Crucial American Moment
A special feature during this
year’s DRI Annual Meeting Awards Luncheon
was the presentation by columnist,
TV personality, and radio host,
Tony Blankley, who provided a clear
and witty view of American politics in
real time. Calling on his years as a pundit,
commentator, and party strategist,
he unscrambled the complexities of the
political puzzle and positioned them in
a precise and nuanced way. Mr. Blankley
discussed the current political dynamic
in Washington, D.C., and the forces that
we can expect to drive policy changes in
the foreseeable future.
Mr. Blankley said that he has “a global
sense about what might be happening”
and believes that we’re moving—not only
in the United States, but in Western European
democracies—into a new era of politics.
Since World War II, incumbents
have had the best positions to achieve
election, he explained. With the exception
of President Jimmy Carter’s one
term in the wake of the Watergate scandal,
“we have not had a single time when
one party or the other took control of
the White House and didn’t hold it for
at least eight years.” He said that now, as
he observes not only President Obama’s
approval ratings, but also those of many
European leaders, incumbents will have
difficulty holding voter confidence, given
the state of the world economy. “As long
as these conditions are not satisfactory to
the average, middle- class, Western voter,
it’s not going to be a happy task to be an
incumbent.” He pointed to the dramatic
number of national congressional seats
that have changed parties in recent elections,
and said that this force may drive
the country’s future for a while.
Mr. Blankley said that in recent
years he has dubbed Washington, D.C.,
“the most dangerous city in the world”
because just a handful of people could
make decisions that could shape the
planet. Now, he thinks that Washington
remains “the most dangerous city
in America, because they can’t do anything.
We can’t scratch our noses to save
our lives,” he quipped. “This town is
completely paralyzed and frozen in this
gridlock and struggle of two parties who
are raging at each other.” Mr. Blankley
said that this political climate has
shaken people’s confidence in government
and pointed to startlingly low polling
numbers on consumer confidence as
evidence.
Although current approval numbers
would not seem likely to instill much
optimism in the Obama camp, when
discussing the president’s reelection
chances, Mr. Blankley cautioned that
we cannot know the future, and President
Obama does have some things
on his side—for instance, the Republican
slate. He said that it reminded him
of the old Henny Youngman one liner:
when asked, “How’s your wife?,” Mr.
Youngman would respond, “Compared
to what?” Mr. Blankley said that he looks
at the president and sees this admirable,
highly intelligent, articulate man—
and then he looks at the other side. Of
the Republican candidates, he believes
that Mr. Romney is in a “pretty strong
position,” but he stopped short of calling
him a frontrunner. The fact that the
Republican primary season usually experiences
a strong turnout from the more
conservative side of the party hinders
Mr. Romney, as does that the last time
around when the GOP nominated Senator
McCain, viewed as the “moderate”
choice, it didn’t turn out so well for the
GOP in the general election.
Answering audience questions, Mr.
Blankley said that he didn’t think that
President Obama’s foreign policy successes
would factor into the result
come election time. He also said that
while both parties understand that the
“Occupy” protests could become a factor
in the 2012 elections, neither party knows
where it will go yet, so they remain cautious
of attaching themselves to one side
or the other.
For The Defense ■ December 2011 ■ 11

Transportation Security—
Its Evolution and Future
Friday afternoon’s blockbuster speaker was John S. Pistole, who became administrator
of the federal Transportation Security Administration (TSA) in July 2010.
Mr. Pistole oversees management of the security operations of more than 450 federalized
airports throughout the United States, the Federal Air Marshal Service, and the
security for highways, railroads, ports, mass transit systems, and pipelines. During
this interactive session, which featured audience questions and answers, Mr. Pistole
talked about the origins of the TSA and the context in which it operates. He discussed
the threats that the TSA works to combat, including those that existed before, on, and
since 9/11, and compared and contrasted how the TSA has dealt with threats pre- and
post-9/11. Mr. Pistole also addressed some of the legal issues involved in the important
work that Congress has charged the TSA with executing.
WikiLeaks, the Sequel—Preparing and Defending
American Corporations Against Wholesale
Disclosure of Confidential Information
Moderator Kenneth G. Gormley, Dean and Professor, Duquesne University, School of Law Pittsburgh and (from left) panelists George Freeman, Vice
President and Assistant General Counsel, The New York Times Company; Douglas R. Edwards, Assistant General Counsel, Litigation and Workout
Division, Wells Fargo & Co.; and Randy S. Chartash, Assistant United States Attorney, U.S. Attorney’s Office, Northern District of Georgia, address Annual
Meeting attendees at a Friday afternoon education session. This cutting- edge program included a perfect combination of experts who discussed how
corporations and their in-house and outside counsel can prepare for, react to, and defend WikiLeaks’ corporate sequel. They also addressed the new
privacy conundrums that are lurking around the corner.
12 ■ For The Defense ■ December 2011

Advocacy for the Generations—
Days of Future… Past
Dominic J. Gianna
Talk about ending on a high note. As is
customary, Saturday morning witnessed the final blockbuster
presentation of the DRI Annual Meeting in the
form of a fast-paced, high-tech, one-of-a-kind session
from two internationally recognized masters of the art of
persuasion: Thomas A. Mauet and Dominic J. Gianna. Mr.
Mauet and Mr. Gianna used their unique blend of knowledge,
educational expertise, and humor to lead their audience
through centuries of advocacy, from Cicero to social
media, from the past to the future and beyond.
Using classic and popular film clips and live demonstrations,
Mr. Mauet and Mr. Gianna illustrated how
modern jurors think and why they act, explained communication
differences among generations, and explored
how to persuade jurors best once you understand those
generational differences. In short, they illuminated how
to “crack the jury code.” Describing what modern juries
want from defense lawyers, they also offered some the
fundamental mistakes to avoid. Interweaving Cicero’s
seven maxims for the persuasive orator, Mr. Mauet and
Mr. Gianna discussed the best ways, through visceral and
visual communication, to frame your case with universal
truths that will create in jurors the will to care about
your position.
The Distracted Nation—How
Heavy Use of Technology Alters
Our Behavior and Brains and
Killed Two Rocket Scientists
Pulitzer Prize- winning New
York Times journalist Matthew
D. Richtel speaks to Annual
Meeting attendees on Friday
morning in an education
session that was moderated
by Kurt M. Rozelsky of
Smith Moore Leatherwood
LLP and presented by the
Insurance Law and Trucking
Law Committees. Mr. Richtel
provided attendees with a
method for using technology
to enhance productivity and
personal interaction, yet avoid
having it undermine our lives.
Thomas A. Mauet
For The Defense ■ December 2011 ■ 13

The Awards
This year during the DRI Annual
Meeting, DRI honored individuals and
institutions with 11 awards that recognized
their contributions to important
areas of the law, the profession, and the
defense bar.
■ The Louis B. Potter Lifetime Professional
Service Award recognizes lifetime
contributions to the profession. The recipient
of this award serves the best interests
of clients and the public and exemplifies
professionalism and professional service
beyond observing the legal profession’s
ethical rules. His or her conduct demonstrates
respect for the law, upholds the decorum
and integrity of all aspects of the
judicial process, and preserves and enhances
the public image of the legal profession.
This year’s recipient was James W.
Morris III. Mr. Morris is chair of Morris &
Morris PC in Richmond, Virginia, where
he practices civil litigation. He has written
and spoken extensively on legal topics
before a variety of organizations and
has lectured on trial practice at the law
schools of the University of Virginia and
the University of Richmond. He has been
included in the publication The Best Lawyers
in America from its inception. Based
on a poll of his peers, he is regularly identified
as one of the “elite” trial lawyers in
Virginia in Virginia Business Magazine.
Louis B. Potter Lifetime Professional Service Award recipient James W. Morris III with R. Matthew Cairns, DRI
President 2010–11.
14 ■ For The Defense ■ December 2011
He is named one of the “Top Ten Super-
Lawyers” in Virginia by Richmond Magazine
and the SuperLawyers of America.
He has tried over 500 cases to jury verdict
in his career.
Mr. Morris is a past president of DRI
(1988). He is a past recipient of the Award
for Excellence in Civil Litigation by the
Virginia Association of Defense Attorneys.
He has also been presented with
the Hunter W. Martin Professionalism
Award by the Bar Association of the City
of Richmond.
■ To honor a DRI member involved in
community or public service activities
that demonstrate active and outstanding
commitment to improving the social
or cultural well being of the general public
through programs that have a positive
impact on a community segment or
the general public, DRI bestows the Community
Service Award. Joseph M. Hanna,
a partner of Goldberg Segalla in Buffalo,
New York, received the award for 2011.
Mr. Hanna is the founder and president
of the nonprofit organization Bunkers
in Baghdad, whose mission is to
collect and supply new and used golf
equipment to U.S. soldiers in combat
zones and to Wounded Warriors programs
across the country. It provides
much-needed recreational outlet to our
The Community Service Award is presented to
Joseph M. Hanna.
troops and is a rehabilitation aid to our
soldiers recovering from injuries. More
than two million golf balls and 50,000
clubs have been distributed to active
military members and veterans in all 50
states and 11 countries.
■ DRI conferred the Richard H. Krochock
Award to Anne M. Talcott, a shareholder
Schwabe, Williamson & Wyatt in
Portland, Oregon. This award recognizes
a DRI member who has provided exemplary
leadership to the DRI Young Lawyers
Committee through sponsorship or
participation in its programs and activities,
education, guidance, support, and
mentoring and who has otherwise exhibited
those qualities, enhancing the image
of the civil defense trial lawyer. Ms. Talcott’s
practice focuses on complex business
and product liability litigation. She
defends a broad range of clients in business
disputes, class actions, mass torts,
and automotive, pharmaceutical, and
medical device product liability litigation.
Ms. Talcott was selected as an Oregon
Super Lawyer Rising Star in 2008,
an honor bestowed on no more than two
percent of eligible lawyers. She is chair
of her firm’s Diversity Committee, where
she was instrumental in implementing
the firm’s First Year Law Student Diversity
Scholarship Program.
Ms. Talcott joined DRI as a young
lawyer and became active in the Young
Lawyers Committee, holding several leadership
roles, including committee chair.
She is an active member of several DRI

Anne M. Talcott is the recipient of the Richard H.
Krochock Award.
committees and was the chair of the 2011
DRI Annual Meeting. Even with her busy
practice and DRI work, Ms. Tal cott continues
to serve as a resource to the Young
Lawyers Committee and its members.
■ The Davis Carr Outstanding Committee
Chair Award was presented to
Vickie L. Henry, a senior staff attorney
at the Gay & Lesbian Advocates &
Defenders (GLAD) office in Boston. This
award honors a current or immediate
past DRI committee chair under whom
the committee has achieved its goals, has
increased membership, has motivated
member participation, including among
minorities, has created and implemented
new projects, and has filled all required
committee leadership positions.
Ms. Henry is a skilled litigator who
came to GLAD from the law firm Foley
Hoag LLP, where she worked for 15 years,
becoming a partner in 2002. She focused
her career on intellectual property and
commercial litigation disputes. Ms.
Henry is the recipient of many honors
and awards. She received the Massachusetts
LGBTQ Bar Association Pioneering
Spirit Award in 2008. Ms. Henry has
been named a Massachusetts Super Lawyer
since 2004.
Ms. Henry is the immediate past chair
of DRI’s Commercial Litigation Committee.
She has held several leadership
roles within the committee and has continued
the work of past committee leaders.
The committee has thrived under her
leadership.
The Davis Carr Outstanding Committee Chair Award is
presented to Vickie L. Henry.
■ Asim K. Desai received the Albert
H. Parnell Outstanding Program Chair
Award. This award recognizes an individual
who created a dynamic educational
program enhancing DRI’s image and
who has effectively led educational program
planning, marketing, and presentation,
displaying leadership, dedication,
and creativity in seminar development
and meeting organizational expectations
for a seminar.
Mr. Desai was the program chair for
DRI’s Insurance Bad Faith and Extra-
Contractual Liability Seminar in the
summer of 2011. He effectively led the
seminar programming committee from
the early planning stages through the
marketing phase. He kept the program
on schedule and was thoroughly engaging
as an on-site chair. Attendance and
sponsorships exceeded the projections
for the seminar. His dedication as program
chair was remarkable and contributed
to the program’s success.
Mr. Desai is the managing partner of
Carlson, Calladine & Peterson LLP’s Los
Angeles office, where he specializes in
high stakes complex litigation including
insurance bad faith, corporate fraud,
commercial litigation, product liability,
and catastrophic personal injuries.
■ DRI bestowed the Outstanding State
Representative Award on Thomas J. Maroney,
a founding member of Maroney
O’Connor LLP in New York City. This
award is presented to a current or immediate
past DRI State Representative
who has made significant contributions
toward promoting
DRI membership within his
or her state. This recipient has
also been instrumental in implementing
a significant, unique
program to foster the relationship
between DRI and his or her
SLDO, enhancing DRI’s stature
or the public’s view of the role
of the defense lawyer in society.
Mr. Maroney has given generously
of his time and talents
as the DRI New York State Representative.
His leadership skills
have been beneficial in recruiting
and retaining members for
DRI and the Defense Association
of New York (DANY). Mr.
Maroney is a past- president of DANY,
and now acts as an outstanding liaison
between DRI and the DANY.
Mr. Maroney has spent the last 29
years dedicating his practice to high
exposure, complex, and multi- party civil
defense litigation. He serves as chair of
the executive committee of the New York
State Bar Association’s Torts, Insurance
and Compensation Law Section.
■ The SLDO Diversity Award is presented
to a state or local defense organization
that has achieved significant
success in demonstrating a commitment
to diversity within and outside the organization.
The organization must also
demonstrate a commitment to diversity
as evidenced by a formal diversity
The Albert H. Parnell Outstanding Program Chair Award is
accepted by Anthony R. Zelle on behalf of Asim K. Desai.
For The Defense ■ December 2011 ■ 15

plan committed to achievement, sensitivity,
and receptivity of diversity issues,
including promotion of its minority and
women lawyers or volunteers. The 2011
recipient of the award was the Ohio Association
of Civil Trial Attorneys (OACTA).
OACTA is an organization of attorneys,
corporate executives, and managers
who devote a substantial portion of their
time to the defense of civil lawsuits and
the management of claims against individuals,
corporations, and governmental
entities. The mission of OACTA is to provide
a forum where members can work
together and with others on common
problems and promote and improve the
administration of justice in Ohio.
OACTA believes that a diverse membership
makes a stronger organization,
encourages diversity in all aspects of its
activities, and is committed to nurturing
a culture that supports and promotes
diversity. During the past year, OACTA
announced its new annual Law Student
Diversity Scholarship program, which is
open to incoming second and third-year
African American, Hispanic, Asian, Pan
Asian, and Native American students enrolled
at Ohio law schools. Incoming second
and third-year female law students
enrolled at Ohio law schools are also eligible
regardless of race or ethnicity.
■ The Law Firm Diversity Award recipient
is a DRI member firm that has
achieved significant success in the area
of law office management, while also
16 ■ For The Defense ■ December 2011
demonstrating commitment to
increase diversity within and outside
the firm as evidenced by a
diversity plan sensitive and receptive
to diversity and commitment
to achieve it, as well as to promoting
its minority and women
lawyers. The 2011 recipient was
Venable LLP. 2011 marks the 10th
anniversary of Venable’s diversity
program. Their diversity program
does not have a formal structure.
Rather, it consists of innovative
and ongoing programs and initiatives
that have the purposes of
education, communication, retention,
promotion, celebration,
and more. The diversity program
is managed by the firm’s Diversity
Committee. The Diversity
Committee is committed to ensuring that
Venable’s commitment to attracting, retaining,
and enhancing a diverse professional
work force is realized through
recruitment, education, mentoring, and
professional development. The committee
leads the diversity progress in the firm,
monitors progress through retention and
promotion, and regularly reports back to
the managing partner, executive committee,
and board.
Diversity is recognized as a core value
in Venable’s strategic plan, and diversity
and inclusion are primary objectives
of the plan. The strategic plan is carried
out by the firm’s leaders and, at the firm,
The Law Firm Diversity Award is accepted on behalf of
Venable LLP by Craig A. Thompson, the firm’s Diversity
Team Leader.
Above left: The Outstanding State Representative Award is presented to Thomas J. Maroney of New York. Above right: The SLDO
Diversity Award is accepted on behalf of Ohio Association of Civil Trial Attorneys (OACTA) by Gary L. Grubler, OACTA President (left) and
Hilary S. Taylor, OACTA Diversity Committee Chair.
commitment to diversity starts at the
top. In addition to the managing partner,
women and minorities serve as heads of
important practice groups.
■ Bonnie Refinski- Knight, an attorney
at Harris, Creech, Ward & Backerby
PA in New Bern, North Carolina, received
the Fred H. Sievert Award Outstanding Defense
Bar Leader Award. The award recognizes
an individual who has exercised
strong leadership to make a significant
contribution toward achieving the goals
and objectives of the organized defense
bar as a current or immediate past president
of a state or local defense organization
and through innovative projects
that bettered the organization.
Ms. Refinski-
Knight concentrates her
practice in the defense of
liability claims against
physicians, nurses, and
hospitals. She also represents
clients in general
civil litigation
including automobile
liability, breach of contract
claims, warranty
claims, construction liability,
and general liability
insurance claims.
As president of the
North Carolina Association
of Defense
Attorneys (NCADA),
Ms. Refinski- Knight

Above left: The Fred H. Sievert Outstanding Defense Bar Leader Award goes to Bonnie Refinski- Knight, president of the North Carolina Association of Defense Attorneys.
Above right: Accepting the Rudolph A. Janata Outstanding Defense Bar Association Award are (from left) David Cole, Executive Director of Pennsylvania Defense
Institute (PDI); Craig Murphy, Immediate Past President of PDI, Matt Cairns and Patrick J. Sweeney, President-Elect of PDI and past member of the DRI Board of Directors.
encouraged and actively worked to
increase the profile and relevance of the
organization, both internally and externally.
She initiated a long range planning
program. The NCADA proactively
worked with the North Carolina Chamber
and other business groups on tort
reform recommendations for the legislative
session. Under her leadership, the
NCADA was more active in this legislative
session than ever before, and is now
recognized as a valuable resource to the
business community.
■ DRI honored the Pennsylvania
Defense Institute (PDI) with the Rudolph
A. Janata Outstanding Defense Bar Asso­
Proudly displaying the G. Duffield Smith Outstanding Publication Award
are this year’s recipients Daniel J. Cooper (from left), Loren H. Brown, and
Christopher Campbell.
ciation Award. The recipient of this award
is a state or local defense organization
that has undertaken an innovative or
unique program contributing to the goals
and objectives of the organized defense
bar. PDI was organized in December
1969 and now boasts an impressive membership
of approximately 1,000 lawyers,
executives of insurance companies, self-
insurers, and independent adjusters from
across the state.
PDI was a leader in the fight for tort
reform this year that resulted in passage
of the Fair Share Act as part of a coalition
of business and insurance industry
organizations committed to tort reform
in Pennsylvania.
Many PDI members
contributed
their time and
efforts to accomplishing
this
important legislative
reform. PDI
published a “white
paper” on the proposed
legislation
that served as the
formal position of
the coalition and
was well received
by the legislature.
Several PDI members
testified at
legislative hearings
on the legislation.
■ Finally, the G. Duffield Smith Outstanding
Publication Award was presented
to Loren H. Brown, co-chair of
DLA Piper’s product liability practice
and a partner in the firm’s New York City
office, Daniel J. Cooper, president of Lit-
Strat Inc., a jury research and litigation
consulting firm based in New York City,
and Christopher G. Campbell, a partner
in DLA Piper’s Atlanta office. The award
honors the author or authors of a feature
article published in For The Defense or
In-House Defense Quarterly of current
relevance to the practice interests of DRI
members. The winning article should
contain fresh, imaginative ideas that are
well researched and presented in a lively
writing style. Their article, “Sacking the
Monday Morning Quarterback: Tackling
Hindsight Bias in Failure- to- Warn
Cases,” was published in the October
2010 issue of For The Defense.
This article, published as a part of the
Drug and Medical Device Committee’s
annual FTD collection, served two purposes:
first, to examine hindsight bias
in pharmaceutical failure- to- warn cases
and other legal contexts; and second to
offer practical tips to mitigate the effects
of hindsight bias. It underscored how
crucial it is for defense lawyers to recognize
hindsight bias from the start, and to
formulate a strategy that places a company’s
decisions and actions in the appropriate
historical context to mitigate the
bias as much as possible.
For The Defense ■ December 2011 ■ 17

National Conclave of State and
Local Defense Organizations
Breaking News with
Norah O’Donnell
Emmy Award winning journalist Norah O’Donnell addresses
attendees of the SLDO Leadership Breakfast. As Chief White
House Correspondent for CBS News, principal substitute
anchor for Face the Nation, and contributor for the awardwinning
60 Minutes, Ms. O’Donnell is a trusted voice who has
covered the major political stories of our time. At the SLDO
Leadership Breakfast, Ms. O’Donnell went beyond today’s
headlines to give attendees a more detailed sense of the
complex issues in the news today. She offered insights on
the key Washington power players and how the Obama
administration works.
Raising the
Profile of Your
Organization
James D. Holland of Page
Kruger & Holland PA in Jackson,
Mississippi, Chair of the DRI SLDO
Relationship Committee and
DRI Southern Regional Director,
speaks during a Thursday
afternoon conclave session.
A favorite topic among SLDO
members and leaders is how to
make your organization more
effective and influential, and
this group discussion, led by
Mr. Holland, sought to answer that question, as participants exchanged ideas for
raising the profile of SLDOs.
18 ■ For The Defense ■ December 2011
As always, the DRI Annual Meeting
featured the National Conclave of State
and Local Defense Organizations, which is
comprised of programs specifically dedicated
to today’s SLDOs. All state representatives,
SLDO officers, and executive
directors were strongly encouraged to
attend this year’s terrific line up of speakers
and networking events, which was highlighted
by Norah O’Donnell, who spoke
at the Thursday SLDO Leadership Breakfast.
Substantive sessions included presentations
on legal audits, effective leadership
communication, raising SLDO profiles,
creating and maintaining judicial selection
committees, member recruitment and
retention, and more. Breakout sessions specific
to executive directors, state representatives,
and regional meeting planning
were also held.
Membership
Recruitment
and Retention—
Strategies for
Keeping and
Growing Your
Membership
Robert M. Skelton, American
Society of Association Executives
(ASAE) Chief Administrative
Officer, reviews the findings of
two landmark research studies
during a Friday afternoon
conclave presentation. He
discussed how the findings from
the ASAE studies—The Decision to Join and The Decision to Volunteer—can help
SLDOs better serve their members.

The 21st
Century Juror
Jennifer Haltom Doan of Haltom & Doan (at
podium) moderates panelists Caren Myers
Morrison, Assistant Professor, Georgia State
University College of Law, and Hon. Dennis M.
Sweeney, Howard County Circuit Court, Maryland,
during the Thursday afternoon program
presented by the Jury Preservation Task Force
and the Technology and Trial Tactics Committees.
The panel considered the ways in which current
technology is changing jury trials in the twenty-
first century, particularly in terms of jury selection,
unauthorized juror research and commentary, and
trial presentation.
AlTeRnATIve DIspuTe ResoluTIon
Mediating Employment Law Cases—Unique Cases
Call for Creative Solutions
In one of the ADR Committee’s Thursday afternoon
presentations, Patricia L. Holland of Jackson Lewis
LLP reviews several employment law mediation
nuances, including joint-session tips, handling of
emotions, settlement considerations other than
money, release issues, tax consequences, and
other points of interest in the swirl of federal and
state statutory and common employment law
claims. The committee also presented a session on
“In-House and Outside Counsel Collaboration for
Mediation Success,” by Erika J. Gardner of Home
Depot USA Inc. and Robert D. Lang of D’Amato & Lynch LLP.
Supreme Court Cases in 2011
and DRI’s Amicus Efforts as the
Voice of the Defense Bar
Moderator Mary Massaron Ross of Plunkett Cooney PC (at podium), along with speakers (from left)
Gregory G. Garre of Latham & Watkins LLP, Kannon K. Shanmugam of Williams & Connolly LLP, and Paul
D. Clement of Bancroft PLLC, at the Thursday morning CLE session presented by the Appellate Advocacy
Committee. The presentation included an overview of the recent Supreme Court term and cases of
importance to those defending businesses and individuals in civil litigation. As part of this program,
attendees learned why and how DRI is raising its amicus profile in the Supreme Court of the United
States and other courts.
AppellATe ADvoCACy
What Judges Like and What They Don’t
Hon. Douglas H. Ginsburg, U.S.
Court of Appeals for the D.C.
Circuit, provides attendees
of Friday morning’s Appellate
Advocacy Committee meeting
with practical suggestions for
improving appellate arguments.
Committee Chair Scott Burnett
Smith of Bradley Arant Boult
Cummings LLP also spoke about
this year’s blockbuster decisions
in Wal-Mart v. Dukes, AT&T
Mobility v. Concepcion, and Smith v. Bayer Corp.
CoMMeRCIAl lITIgATIon
Six Hot Litigation Picks for 2012
Hope T. Cannon of Bradley Arant Boult Cummings LLP (left) and Michelle Thurber
Czapski of Bodman PLC are among the six experts who looked into their crystal balls
and described the six “lead-pipe cinch” hot litigation issues in commercial litigation
for 2012. Subjects covered during this session, presented by the Commercial Litigation
Committee on Thursday afternoon, included include business torts, intellectual
property, class actions, sports law, antitrust, and UCC/contracts. Other speakers
included Cynthia P. Arends of Nilan Johnson Lewis PA, James M. Burns of Williams
Mullen, Joseph M. Hanna of Goldberg Segalla LLP, and Christopher T. Sheean of
Swanson Martin & Bell LLP.
For The Defense ■ December 2011 ■ For The Defense 19
■ December 2011 ■ 19

Over Criminalization of Business Conduct—The
Policies, Practices and Potential Remedies for the
Government’s Latest Enforcement Actions
Panelists for the Thursday morning presentation by the Drug and
Medical Device and Government Enforcement and Corporate Compliance
Committees discuss the latest enforcement actions of the U.S. Food and Drug
Administration and the U.S. Securities and Exchange Commission and the
effect such scrutiny is having on a broad range of industries. They also shared
some best practices for managing these risks in the current environment.
The panel included (from left) Howard Sklamberg, Director of the Office of
ConsTRuCTIon lAW
Defending Building Products in
a Complex
Construction
Defect Claim
Alan R. Levy of Buckly Zinober
& Curtis PA discusses strategic
considerations and other keys
to defending claims against
building product clients in a
construction defect matter at the
Friday morning meeting of the
Trucking Law Committee. David
V. Wilson of Hays McConn Rice &
Pickering PC also spoke.
20 ■ For The Defense ■ December 2011
Enforcement, U.S. Food and Drug Administration; Elpidio “PD” Villarreal,
Senior Vice President–Global Litigation, GlaxoSmithKline PLC; Deborah Connor,
Assistant United States Attorney Chief, Fraud and Public Corruption Section,
United States Attorney’s Office; Stephen T. Gannon, Executive Vice President
and Deputy General Counsel, Capital One Financial Corporation; and Peter S.
Spivack of Hogan Lovells US LLP. Jonathan N. Rosen of Shook Hardy & Bacon
LLP served as moderator.
CoRpoRATe Counsel
The Responsible Corporate Officer Doctrine—No
Knowledge Is No Defense
Douglas Stearn, Deputy Director for Policy and
Analysis in the U.S. Food and Drug Administration
Office of Compliance, provides his insight on
current FDA enforcement trends, including the
reemergence of the responsible corporate officer
doctrine, during the Corporate Counsel Committee’s
“in-house only” session on Wednesday afternoon.
This program provided in-house attorneys with
an understanding as to how the doctrine could
be used to hold a corporate officer personally
responsible for the conduct of his or her
subordinates, even though the officer may not have knowledge of the alleged conduct.
DIveRsITy
Diversity at the Crossroads—Choosing a Path to Reverse the Attrition Rate Among
Diverse Partners and Associates
Then-Committee Chair Toyja E. Kelley (at podium) of
Tydings & Rosenberg LLP, introduces speakers Taren N.
Stanton of Thompson Hine LLP and William A. Sherman
II of Dinsmore Shohl LLP to attendees of the Diversity
Committee’s Friday afternoon CLE and business meeting.
The panelists led a discussion that identified the unique
problems that cause attrition among minority lawyers
and provided concrete suggestions to reverse the flow of
minority lawyers leaving law firms and the profession.

The “Miranda Warning” of Genetic Mapping—
This Information Can Be Used Against You
DRI InTeRnATIonAl
Managing Cross-Border Litigation and Class Actions
Speakers John L. Meltzer of Hogan Lovells LLP (from left),
Timothy Pinos of Cassels Brock & Blackwell LLP, and Gordon
McKee of Blake Cassels & Graydon LLP, provide helpful tips
and suggestions for navigating international litigation in
this Thursday session presented by DRI International. The
panel discussed the need to coordinate efforts, strategies,
and resources in an environment where international
clients are increasingly faced with copy-cat actions arising
from litigation that originated in the United States. Complex
privacy issues, parallel regulatory proceedings, and the
production of documents and information that originated
in countries other than the United States but are sought by
plaintiffs in U.S.-based litigation were also discussed.
DRug AnD MeDICAl DevICe
The Legal and the Practical—Updates
on Issues Related
to Preemption and
Sales Representatives
as Witnesses in
Pharmaceutical Cases
Joseph D. Cohen of Porter Hedges LLP
talks to attendees of Thursday afternoon’s
Drug and Medical Device Committee
business meeting and CLE about recent
grants of certiorari by the U.S. Supreme
Court to consider preemption issues
concerning generic manufacturers.
The state of the law in this area and the potential ramifications for all
manufacturers were discussed, as well as practical issues related to the role
of sales representatives in pharmaceutical litigation and how to address
plaintiffs’ attempts to portray these individuals and their jobs unfairly.
John M. Conley of Robinson Bradshaw & Hinson
PA speaks during a panel discussion that included
(from left) Bernard Taylor, Sr., of Alston & Bird LLP
(moderator); Misha Angrist, Assistant Professor,
Institute for Genome Sciences and Policy, Duke
University; and Gary E. Marchant, Lincoln Professor
of Emerging Technologies, Law and Ethics,
Sandra Day O’Connor College of Law, Arizona
State University. During this Friday afternoon CLE
presented by the Toxic Torts and Environmental
Law Committee, these leading experts offered
their insights on the potential application of the
genetic revolution and explored the myriad of legal
implications and issues that promise to follow.
eleCTRonIC DIsCoveRy
Backstopping E-Discovery—Drafting
Effective Records Management Policies
Phillip J. Duffy
of Gibbons PC
(seated) and John
J. Jablonski of
Goldberg Segalla
LLP present the
CLE portion of
the Electronic
Discovery
Committee’s
Thursday
afternoon
meeting. During
the program the
two underscored the importance of good records management, the benefits
of having a defensible policy, and some of the key provisions that go into a
well crafted records-management policy.
For The Defense ■ December 2011 ■ 21

22 ■ For The Defense ■ December 2011
Conquering the
Generational Divide—
What Makes the
Generations Tick and
What Ticks Them Off!
Anna Liotta, President and CEO of Resultance Inc., reveals the
distinct generational differences that impact the practice of
law during a CLE session sponsored by the Diversity, Women
in the Law, and Young Lawyers Committees. During the Friday
morning program, Ms. Liotta offered suggestions for conquering
this great divide to improve communications and attract, retain,
and grow loyal clients and top talent from every generation.
Douglas K. Burrell of Drew Eckl & Farnham LLP served as the
program’s moderator.
goveRnMenTAl lIAbIlITy
The Perfect Storm—The True Story of How Inexcusable
Mistakes and Failures at All Levels of City Government
Led to the Payment of a Meritless Claim
Casey C. Stansbury of Fowler Measle & Bell PLLC spoke to attendees of the Friday Governmental Liability Committee
meeting about his experience defending a case involving whistleblower retaliation and ADEA violations and
how he was able to control damages, defend under a reservation of rights, negotiate a settlement less than the
plaintiff’s demand, and work with the city manager to put the city on a compliance path.
InsuRAnCe lAW
The History of Insurance Regulation—Applying a Century of
Knowledge to Emerging
Coverage Issues
J. Stephen Zielezienski, Senior Vice President
and General Counsel for the American
Insurance Association (left) and Craig A.
Berrington discuss the history of liability
coverage, including the McCarran-Ferguson
Act’s balance of regulatory and antitrust
policy, the Dodd-Frank Act and its impact on
state insurance regulation, and the current
arguments for and against federal regulation
of insurance, during the Friday meeting of the
Insurance Law Committee.
lAWyeRs’ pRoFessIonAlIsM AnD eThICs
Professionalism and Ethics from the
In-House Counsel Perspective
During the CLE portion of Friday morning’s meeting of the Lawyers’ Professionalism and Ethics Committee,
Victoria H. Roberts, Vice President and Corporate Counsel for Meadowbrook Insurance Group, and Clinton W. Thute,
Regional Claims Manager for IFG Companies, led a discussion of the ethics issues that have become increasingly
important to in-house counsel. Topics included the development of modern electronic technology, such as email,
texting, Facebook, cloud computing, and multijurisdictional practice, and the implications of these developments
on legal privileges, confidentiality, and conflicts of interest.
eMployMenT
AnD lAboR lAW
The ADA
Amendments
Act of 2008—
You Can Still
Win Your
Case Before
It Starts
Sidney R. Steinberg of Post &
Schell PC spoke during the CLE
portion of the Friday morning
meeting of the Employment
and Labor Law Committee.
His presentation addressed
how to continue to defend
disability claims successfully in
light of the 2008 amendments
to the ADA.
goveRnMenT
enFoRCeMenT
AnD CoRpoRATe
CoMplIAnCe
Health Care
Fraud and the
False Claims
Act in 2011
The Government Enforcement
and Corporate Compliance
Committee hosted a panel at
its Friday morning meeting
to discuss trends in health
care fraud prosecutions
under the False Claims Act,
including notable judgments
and settlements in 2011,
federal policies regarding both
criminal prosecutions and
civil enforcement, and tactics
that have proved successful in
defending and even avoiding
these claims. Moderated by
Jason L. Drori of K & L Gates
LLP, the panel included David
L. Douglass of Shook Hardy
& Bacon LLP, James W. Kraus
of Pietragallo Gordon Alfano
Bosick & Raspanti LLP, José P.
Sierra of Fish & Richardson PC,
and J. Kennedy Turner III of
Butler Snow O’Mara Stevens &
Cannada PLLC.

Without Fear or Favor—The Expanding
Threats to Judicial Independence
Hon. Alison L. Asti, Circuit Court for Anne Arundel County, Maryland; Hon. Mark D. Martin, Supreme Court of North Carolina; Hon. Paul J. De Muniz, Oregon
Supreme Court; and moderator J. Michael Weston of Lederer Weston Craig PLC address attendees of the Friday afternoon CLE session presented by the Judicial
Task Force and the Lawyers’ Professionalism and Ethics Committee. The panel engaged in a discussion designed to educate the private bar about threats to
judicial independence, and to provoke a meaningful conversation about the tripartite system of government and its impact on achieving justice for our clients.
lIFe, heAlTh AnD DIsAbIlITy
Life Insurance Update—
Rescissions and Stranger
Originated Life Insurance
Jason A. Walters of Bradley Arant Boult Cummings LLP
summarizes recent STOLI case law, placing particular emphasis
on the issue of insurable interest, during Friday’s Life, Health
and Disability Committee meeting. Sarah J. Delaney of
Goldberg Segalla LLP and Michael P. Cunningham of Funk &
Bolton PA also gave presentations during the CLE session on
“Social Media in Life, Health and Disability Claim Matters” and
“2011 Hot Topics in Life, Health and Disability Law,” respectively.
MeDICAl lIAbIlITy AnD heAlTh CARe lAW
Health Care Associated Infections and Their Effect on
Litigation
Trish M. Perl, MD, and
M. Lauree Barreca, RN,
both of the John Hopkins
Health System, discuss
health care-associated
infections that can
become the subject of
litigation and can also
be relevant to defending
medical malpractice
cases and other types
of personal injury
matters in the Thursday afternoon session presented by the Medical Liability and Health Care Law
Committee. Attendees learned about the underlying science as well as defenses to these claims.
pRoDuCT lIAbIlITy
“Cause” for Alarm—Enforcing
the Causation Requirement
in the Defense of Aggregate
Consumer Fraud Claims
Jeffrey A. Holmstrand of Flaherty Sensabaugh Bonasso
PLLC (left) and Jessica Davidson Miller of Skadden
Arps Slate Meagher & Flom LLP consider the types of
consumer fraud suits defendants can expect to see in
the coming years during their presentation at the Friday
morning Product Liability Committee meeting. The
speakers discussed how defendants facing statutory
consumer fraud claims can most effectively defend
against plaintiffs’ allegations, focusing on the developing
jurisprudence regarding “causation,” particularly in
various forms of aggregate litigation.
For The Defense ■ December 2011 ■ 23

pRoFessIonAl lIAbIlITy
Sidestepping the Fraudulent Concealment
Landmine
Shana A. O’Grady of Mulherin Rehfeldt
& Varchetto PC addresses claims of
fraudulent concealment asserted against
professionals as a means to avoid statutes
of limitation defenses during the Thursday
afternoon Professional Liability Committee
meeting. Ms. O’Grady discussed the
available defenses to such claims, as well
as the policy debate regarding common
law rules that subsume fraudulent
concealment tolling provisions.
ReTAIl AnD hospITAlITy
Managing and Responding to a Crisis
During the Retail and Hospitality Committee’s business meeting and CLE,
Paul E. White of Sugarman Rogers Barshak & Cohen PC (left) and Jennifer
Anderson Hoffman of Marlow Connell Abrams Adler Newman & Lewis
PA draw on some real-life examples and a vivid hypothetical scenario to
illustrate some of the key strategies that need to be employed to manage a
crisis quickly, responsibly and effectively.
TeChnology
Technology Killed the Dinosaur—
How to Defeat the Plaintiffs’
Bar’s Latest Reptile Strategy
The newest trend among the plaintiffs’ bar involves triggering the
“reptilian brain” in jurors. The book, Reptile: The 2009 Manual of the
Plaintiff’s Revolution, suggests that jurors should be perceived as
having reptilian-type brains that respond to survival instincts. During
the Technology Committee’s business meeting and CLE on Thursday
afternoon, Matthew G. Moffett of Gray Rust St. Amand Moffett & Brieske
LLP taught attendees how to counter this “reptile” strategy using
technological savvy and creative lawyering skills.
24 ■ For The Defense ■ December 2011
ToxIC ToRTs AnD envIRonMenTAl lAW
How the Restatement (Third) Confused
Risk and Causation and
Wound Up Restating
Precautionary Principle
David A. Oliver of Vorys Sater Seymour
and Pease LLP shares his concerns about
the potential effect of the Restatement
(Third) on the future of toxic tort claims
on Friday morning, when he was one
of three presenters at the Toxic Torts
and Environmental Law Committee’s
business and CLE meeting. In addition,
Keith B. Hall of Stone Pigman Walther
Wittmann LLC presented “Hydraulic Fracturing and the Environment—Drink
Up!,” Jill M. Hutchison of Jenner & Block LLP spoke on “Taking the Sting out of
Stigma Damages—Combating Claims for Lost Property Value,” and Martha C.
Gaythwaite of Friedman Gaythwaite Wolf & Leavitt LLP shared “War Stories
from a Manufactured Gas Plant Trial.”
TRIAl TACTICs
Is the Collateral Source Rule Dead, Dying or
Poised for a Comeback?
John C.S. Pierce of Butler Pappas
Weihmuller Katz Craig LLP talks during
the Trial Tactics Committee’s Thursday
meeting about the debate across the
country about whether the collateral
source rule protects the right of plaintiffs
to collect the “billed” amount of medical
services, as opposed to the amount “paid”
for those services. Mr. Judge identified
the different approaches used around the
country, discussed emerging trends, and
suggested arguments to help nudge a court in the right direction. Christopher
A. Bottcher of Sirote & Permutt PC also spoke at the committee meeting on
“Defending Lenders, Servicers and Nominees in Mortgage Litigation.”
TRuCkIng lAW
E-Discovery Issues Unique to Trucking
Litigation
Stacy Erin Rowell, Manager of Accident
Claims/Legal, Southeastern Freight Lines
brings her experienced perspective to
describe the types of E-Info available
through Engine Control Modules, on-board
communications and satellite tracking
systems, to name a few, at the Trucking
Law Committee’s Thursday business
meeting and CLE. Philip M. Gulisano
of Burden Gulisano & Hickey LLC also
presented at the meeting on “Federal
Compliance, Safety and Accountability Initiative Safety Management Systems.”

WoMen In The lAW
Defining and Promoting
Your Personal Market Niche
Theda C. Snyder
of Ringler
Associates,
business
development
expert and
author of
Women
Rainmakers’
Best Marketing
Tips, speaks to
attendees of
Friday morning’s Women in the Law Committee
meeting. Ms. Snyder discussed how women lawyers
can become successful rainmakers and explained
that developing a personalized and targeted
marketing plan is the key.
Abundant Networking
Opportunities
Below, a young lawyer-to-be dances at Friday evening’s perennial
favorite, the Young Lawyers Networking Reception.
WoRkeRs’ CoMpensATIon
Workers’ Compensation
Premium Fraud
Michael R. McCann
of Michael R.
McCann PA speaks
to attendees of
the Workers’
Compensation
Committee
meeting about
the importance
of recognizing
and addressing
premium fraud,
especially as it has become more prevalent in a
tight economy. Scott Ethan Brown, MD, of Sinai
Rehabilitation Center also spoke at the Thursday
afternoon meeting on “The Chronic Pain Syndrome
and Narcotics—A Medical Black Hole.”
young lAWyeRs
Don’t Be That Guy (or
Gal)—Avoiding Common
Ethical Pitfalls
Anthony J.
Novak of
Larson King
LLP reviews
common
ethical
dilemmas
facing young
lawyers by
examining
real-life
examples of
situations in which lawyers, either unknowingly
or brazenly, ran afoul of the ethical rules. This
Thursday afternoon session was presented by the
Young Lawyers Committee.
Above left, Evelyn Fletcher Davis, then-chair of the Women in the Law Committee and above
right, Heidi B. Goldstein, the committee’s Program Chair, address attendees at Friday’s
Women’s Networking Luncheon.
Members of Womble Carlyle Sandridge & Rice PLLC,
sponsor of the Thursday evening Diversity Reception.
For The Defense ■ December 2011 ■ 25

PROducT LIabILITy
Past Is Prologue
By Lawrence G. Cetrulo,
Michael J. Cahalane
and Robert J.L. Moore
Prospective defendants
should still be advised
to prepare for litigation,
although actual liability
is unlikely to result.
26 ■ For The Defense ■ December 2011
Still No Service
for Cell Phone
Radiation
Litigation
In May 2011, the International Agency for Research on
Cancer (IARC), a research branch of the World Health
Organization (WHO), released a press statement indicating
that the IARC had classified the radiofrequency elec-
■ Lawrence G. Cetrulo is a founding partner
and Michael J. Cahalane and Robert J.L.
Moore are associates in the Boston office
of Cetrulo & Capone LLP. Mr. Cetrulo chairs
the firm’s Toxic Tort Practice Group and
has more than 35 years of litigation experience.
Mr. Cahalane is a member of the firm’s
Toxic Tort Practice Group where he focuses
on multi- jurisdictional, multi- plaintiff
complex litigation. Mr. Moore practices
primarily in the areas of toxic
torts, product liability, personal injury,
and complex litigation. The authors
specially thank Ryan Hanofee for his
contributions to this article.
tromagnetic fields emitted by cellular
phones as “possibly” carcinogenic to humans.
Press Release No. 208, IARC Classifies
Radiofrequency Electromagnetic Fields
as Possibly Carcinogenic to Humans, May
31, 2011, http://www.iarc.fr/en/media- centre/
pr/2011/pdfs/pr208_E.pdf. The IARC’s press release
triggered waves of reports in the media
that “[r]adiation from cell phones can
possibly cause cancer[.]” Danielle Delloroto,
WHO: Cell Phone Use Can Increase Possible
Cancer Risk, CNN Online (May 31, 2011).
Given the IARC classification and the
headlines that followed, the public will
understandably feel alarm. News reports
could turn the 10-year trickle of litiga-

tion over radiofrequency electromagnetic
fields into a torrent. See, e.g., Deborah Kotz
& Carolyn Johnson, Cell Phones Are Added
to List of Potential Risks for Cancer, Boston
Globe Online (June 1, 2011).
In this regard, the past may well be prologue.
In the 1990s, media reports insinuated
a link between various forms of cancer
and electromagnetic fields from, among
others, power lines. See, e.g., Paul Brodeur,
The Cancer at Slater School, The New
Yorker (Dec. 7, 1992). Litigation soon followed.
The “science” behind the litigation
proved meritless, but litigating these claims
nonetheless cost defendants a great deal.
Today’s headlines may be a harbinger
of claims alleging a link between radiofrequency
electromagnetic field exposure and
adverse health effects. For at least three reasons
history is apt to repeat itself, by which
we mean that lawsuits stemming from
the IARC classification are apt to prove
unavailing.
First, the chances are remote that plain-
tiffs’ attorneys can establish a causal
relationship between cell phone radiofrequency
electromagnetic field exposure and
adverse health effects, regardless of the
IARC’s alarming classification. Courts previously
evaluated the science underlying
claims of personal injury caused by electromagnetic
fields and found it wanting.
See, e.g., San Diego Gas & Elec. Co. v. Superior
Court, 920 P.2d 669 (Cal. 1996). The
science on the supposed danger associated
with electromagnetic fields has not materially
advanced since the 1990s, and only
limited evidence supports the IARC’s finding,
which ranked radiofrequency electromagnetic
fields emitted from cell phones in
the same cancer- risk classification group as
pickles, coffee, and insecticides.
Second, even if a particular plaintiff
could establish specific causation—a
Daubert- proof causal link between radiation
from radiofrequency electromagnetic
fields and his or her particular disease—
science has not linked radiofrequency electromagnetic
field exposure to a “signature
disease,” such as asbestosis for asbestos
exposure or silicosis for silica exposure.
Without a “signature disease,” plaintiffs’
attorneys, even the most experienced advocates,
will find the burden of proof and
expense of establishing specific causation
between an exposure and a disease exceptionally
daunting.
Third, as most of the appellate courts to
address the matter have held, federal law
probably preempts lawsuits of this kind.
The Federal Communications Commission
(FCC) has set standards, including standards
for radiofrequency electromagnetic
field emissions, to which all cell phones
must conform, and federal law establishing
these standards likely trumps contrary
state law.
Thus, while the recent reporting on the
alleged hazards of cell phone radiation will
likely lead to litigation, and while prospective
defendants should take steps to prepare
themselves for this scenario, this litigation
is unlikely to result in much actual liability.
Cellular Phones and Radiofrequency
Electromagnetic Fields
Electromagnetic fields are a type of radiation
emitted from all electric currents,
natural or manmade. Radiofrequency electromagnetic
fields are a particular category
of electromagnetic fields, specifically those
occupying the radio portion of the electromagnetic
spectrum.
All cell phones emit radiofrequency
electromagnetic fields. Cell phones operate
by transmitting information between a low
powered radio transmitter in a phone and
a base station, usually a tower with a large
antenna. When a cell phone is charged, it
Science has not
determined whether
nonionizing radiation…
can directly affect genetic
material, and radiofrequency
electromagnetic field
emission litigation
will likely address this
question in the future.
emits a low level of nonionizing radiation,
radiofrequency electromagnetic fields. Ionizing
radiation, such as x-rays and gamma
rays, can strip electrons from atoms and
molecules, changing cellular makeup and
causing, at times, tumors. On the other
hand, science has not determined whether
nonionizing radiation, particularly in the
levels emitted by cell phones, can directly
affect genetic material, and radiofrequency
electromagnetic field emission litigation
will likely address this question in the
future.
Since 1934, the FCC has regulated
radiofrequency emissions. See Pub. L. No.
73-415, 48 Stat. 1064, 47 U.S.C. 151, et seq.
The National Environmental Policy Act
of 1969, 42 U.S.C. 4321, et seq., charged
the FCC and all other federal agencies
with evaluating the impact of “major” regulatory
actions “significantly affecting
the quality of the human environment.”
42 U.S.C. 4332(2)(C). The FCC first promulgated
standards for radiofrequency
exposure in 1985, regulating exposure in
For The Defense ■ December 2011 ■ 27

Product LiabiLity
specific facilities that it licensed. See 100
FCC 2d 543 (1985). Excluded from this regulation
were “relatively low- powered communications
systems” such as cell phones.
2 FCC Rcd. 2064, 2065 14 (1987). In 1993,
prompted by the adoption of guidelines
that set limits on these exposures by industry
consortia, the FCC began the rulemaking
process to set federal standards for
Plaintiffs had a difficult
time proving causation,
as the science underlying
their claims never
established a causal link
between exposure and
adverse health effect.
radiation from cell phones. 8 FCC Rcd.
2849 (1993).
While the FCC proceeded with rulemaking,
Congress enacted the Telecommunications
Act of 1996, which directed
the FCC to complete federal standards
within six months and to “make effective
rules regarding the environmental effects
of radiofrequency emissions[.]” Pub. L. No.
104-104, §704(b), 110 Stat. 56, 152 (1996);
see 47 U.S.C. §332(c). The goals of this directive,
according to the House Commerce
Committee, which drafted this portion of
the Telecommunications Act, were twofold:
(1) to safeguard cell phone users from
potential hazards; and (2) to ensure that a
hodgepodge of conflicting state standards
did not retard the development of a nationwide
wireless communications network.
See H.R. Rep. No. 204, 104th Cong., 1st
Sess. Pt. 1, at 94–95 (1995). As the committee
report noted, “[a] high quality national
wireless telecommunications network cannot
exist if each of its component[s] must
meet different [radiofrequency] standards
in each community[.]” Id.
In August 1996, the FCC completed the
rulemaking and issued an order setting
the maximum radiofrequency electromag-
28 ■ For The Defense ■ December 2011
netic field that a cell phone could emit. See
11 FCC Rcd. 15123, 15127 9 (1996). All
phones sold in the United States fall under
that limit, though some popular phones
come close. Additionally, under these
standards, the FCC must authorize the
sale of cell phones, and the manufacturer
of a phone must certify that the equipment
will not expose humans to levels of radiofrequency
radiation in excess of the established
limits. See Murray v. Motorola, Inc.,
982 A.2d 764, 775–776 (D.C. 2009).
Previous Electromagnetic
Field Radiation Litigation Led
to Insignificant Liability
Commentators began to express concern
about a link between electromagnetic field
exposure and adverse health effects in the
late 1980s, and it reached a peak in the
1990s. After widespread publicity about
these potential hazards, plaintiffs initiated
a number of lawsuits, a large majority of
which courts dismissed.
As mentioned, Paul Brodeur, a wellknown
investigative reporter and author,
published several articles in The New
Yorker magazine in 1989 regarding potential
hazards of electromagnetic field exposure.
See, e.g., Paul Brodeur, The Hazards
of Electromagnetic Fields I—Power Lines,
The New Yorker (June 12, 1989). Brodeur’s
previous articles on environmental hazards
and health risks, including asbestos,
had set off media frenzies that led to
entire industries of litigation, and his writing
on the hazards of electromagnetic fields
drew the attention of many, including some
plaintiffs’ attorneys.
According to the 1989 articles, the previous
decades saw a marked increase in
the number of electric power lines across
the country, and these power lines emitted
radiation in the form of electromagnetic
fields. Citing epidemiological studies, the
articles indicated that exposure to these
electromagnetic fields was associated with
adverse health effects, such as cancer and
birth defects. Brodeur further suggested
that various levels of government conspired
with the utility industry to cover up
and discredit evidence of an association
between electromagnetic field exposure
and adverse health effects.
Follow-up pieces by others in the media
resulted in what one commentator called
an “atmosphere of suspicion” concerning
electromagnetic field exposure. Harold R.
Piety, What We Don’t Know About EMF,
128 Pub. Util. Fort. 14, 16 (Nov. 15, 1991).
That Brodeur did not have a motive to disclose
the potential dangers of electromagnetic
field exposure lent credibility to his
arguments in the eyes of many commentators
and readers. In contrast, the utility
industry employed most of those who
offered different views of the science at the
time, a fact that led some to discount statements
that proof of adverse health effects
did not exist.
As the media continued to publish articles
on the hazards of electromagnetic field
exposure and the almost limitless number
of exposed persons, massive numbers of
lawsuits seemed inevitable. Some prognosticators
proclaimed that electromagnetic
field radiation would become the “next
asbestos.” Patsy W. Thomley, EMF at Home:
The National Research Council Report on
the Health Effects of Electric and Magnetic
Fields, 13 J. Land Use & Envtl. L. 309, 319
(1998). One legal scholar in the early 1990s
predicted that “the omnipresence of EMF
[electromagnetic fields] in our lives suggests
that EMF litigation could dwarf the
‘legal abyss’ created by asbestos.” Roy W.
Krieger, On the Line, 80 A.B.A. J. 40, 41
(Jan. 1994).
At one point in the early 1990s, it appeared
that these predictions would prove
correct, as plaintiffs’ attorneys filed lawsuits
arising from electromagnetic field exposure
as frequently as once a month. However,
plaintiffs did not win verdicts in any
of these lawsuits. In fact, courts dismissed
nearly all the claims before trials. Plaintiffs
had a difficult time proving causation, as the
science underlying their claims never established
a causal link between exposure and
adverse health effect. See, e.g., San Diego
Gas & Elec. Co. v. Superior Court, 920 P.2d
669 (Cal. 1996). But see Zuidema v. San Diego
Gas & Elec. Co., No. 638222 (Cal. Super.
Ct. Apr. 30, 1993) (rendering a defense verdict
in the first electromagnetic field case
tried). Over time, the number of lawsuits
alleging injury from electromagnetic field
exposure from electric utilities diminished.
In the late 1990s, research into the hazards
of electromagnetic field exposure shifted to
the study of electromagnetic fields from the
soon- ubiquitous cell phones.

Neither the IARC Report nor Its
Cited Studies Prove Causation
Plaintiffs alleging that they have suffered
adverse health due to cell phone radiation
will have difficulty proving causation. As
discussed above, previous electromagnetic
field- related litigation failed largely because
the science available at the time did not establish
credible general causation paradigms
between exposure to electromagnetic
fields and adverse health effects. While the
May 31, 2011, IARC press statement classifying
radiofrequency electromagnetic fields
emitted by cellular phones as “possibly” carcinogenic
to humans grabbed headlines, the
report released shortly afterward describing
the work on which that classification
rested neither proffered nor relied on new
science establishing such carcinogenicity.
Robert Baan, et al., Carcinogenicity of Radiofrequency
Electromagnetic Fields, 12 The
Lancet Oncology 624–626 (July 2011). Consequently,
regardless of the uproar caused
by the press release and the report, cell
phone litigation plaintiffs probably will not
succeed relying on the report or the studies
that it cites.
In May 2011, an IARC working group
consisting of 30 scientists from 14 countries
met to assess the carcinogenicity of
radiation from radiofrequency electromagnetic
fields. While the IARC working
group most extensively considered exposure
through cell phones, radiofrequency
electromagnetic fields also emanate from
occupational sources such as industrial
equipment, broadcast antennas, and medical
devices. However, as the IARC working
group acknowledged, most human
exposure to radiofrequency electromagnetic
fields stems from devices, such as cell
phones, held close to someone’s body. Baan,
supra, at 624.
The IARC had asked the working group
members to classify various particles,
materials, and radiation into categories
that corresponded to the agents’ carcinogenicity
to humans and the quantum of
evidence indicating that degree of carcinogenicity.
The classifications range from
“carcinogenic to humans” to “probably not
carcinogenic to humans.” Press Release No.
208, IARC Classifies, supra, at 4–6 (defining
the possible classifications).
In performing the assessment, the IARC
working group reviewed hundreds of past
scientific articles but did not independently
conduct testing or experiments.
Ultimately, the IARC working group’s conclusion
rested upon six human studies that
it deemed most credible and about 40 animal
studies assessing the carcinogenicity
of radiofrequency electromagnetic field
exposure to rodents. Id. at 624–25. Several
of the human studies found an increased
risk of glioma, a type of tumor, in mobile
phone users. Id. Another study in Japan
found some evidence of heightened risk of
acoustic neuroma, another type of tumor,
within the human study population. Id. at
625. Though the animal studies appeared
to show some increased cancer incidence,
the predictive value of those studies for
human cancer is unknown, as the IARC
working group acknowledged. Id.
Consequently, the IARC working group
classified radiofrequency electromagnetic
field exposure as belonging in the Group
2B, “possibly carcinogenic to humans,” in
view of the “limited evidence” of carcinogenicity
in humans and animals. According
to the IARC, the category is reserved
for agents for which there is limited evidence
of carcinogenicity in humans and
insufficient evidence in animals, or when
there is inadequate evidence of carcinogenicity
in humans but sufficient evidence in
of carcinogenicity animals. Press Release
No. 208, IARC Classifies, supra, at 5 (defining
Group 2B). The Group 2B category contains
267 agents, including coffee, pickled
vegetables, exposure to dry cleaning and
firefighting. David Spiegelhalter, a professor
of the University of Cambridge in England,
commented that “[the] report is clear
that any risk appears to be so small that it
is very hard to detect—even in the masses
of people now using mobile phones.” Ben
Hirschler, Evidence “Increasingly Against”
Phone Cancer Risk, Reuters Online (July
1, 2011). Spiegelhalter’s characterization
highlights how statistically weak the existing
epidemiological evidence is to support
a causative connection between cell phone
use and cancer.
The IARC working group finding that
“limited evidence” indicates that radiofrequency
electromagnetic fields are carcinogenic
to humans is misleading. The
carcinogenicity evidence is actually decidedly
mixed. For every study that the IARC
working group identified that found a
causal or even correlative link between cell
phone radiation and cancer, another study
reached the opposite conclusion. To wit,
according to the National Cancer Institute,
the incidence of brain cancer actually has
“changed little in the past decade,” while
cell phone use has drastically increased to
over five billion users. See National Cancer
Institute, Cell Phones and Cancer Risk,
Fact Sheet, http://www.cancer.gov/cancertopics/
factsheet/Risk/cellphones. The IARC working
group itself added nothing to this mélange
of contradictory studies. It did not perform
any new studies itself. Rather, it simply
selected certain studies without articulating
the methodology underlying the
selections and deemed them reliable and
supportive of the position that it took.
The IARC working group ipse dixit pronouncement
of these studies’ reliability,
however, is just one of the methodological
flaws in its selections. The IARC working
group report failed to quantify the possible
risk for glioma and acoustic neuroma,
For The Defense ■ December 2011 ■ 29

Product LiabiLity
the two types of cancer allegedly associated
with cell phone use. Baan, supra, at
625; Press Release No. 208, IARC Classifies,
supra, at 2.
Further, each study selected by the IARC
working group had flaws. One study had
a case- control participant bias; another
relied on suspect data on cell phone usage.
Multiple members of the IARC working
With only contradictory,
flawed studies on which
plaintiffs can rely, plaintiffs’
attorneys probably could
not defeat defense motions
for summary judgment.
group noted these flaws and inconsistencies
between studies in declining to
endorse the group’s overall finding.
For these reasons, neither the IARC
working group report nor the studies cited
in the report will likely assist plaintiffs to
prove causation if they allege that they suffer
from the effects of cell phone radiation.
With only contradictory, flawed studies on
which plaintiffs can rely, plaintiffs’ attorneys
probably could not defeat defense
motions for summary judgment.
Scientists Have Not Identified a Cell
Phone Radiation Signature Disease
Another factor weighing against cell phone
radiation becoming cottage litigation similar
to asbestos is that it is not associated
with a “signature disease.” A “signature
disease” is a specific adverse health effect
associated with exposure to a particular
toxin and few, if any, other potential causes.
Many experts consider pleural mesothelioma,
for example, a signature asbestos-
related disease. The two cancers most
commonly associated with radiofrequency
electromagnetic field exposure, glioma and
acoustic neuroma, fall well short of meeting
the standard for “signature diseases,” as
evidenced by the fact that the IARC working
group report did not list those condi-
30 ■ For The Defense ■ December 2011
tions specifically as among the diseases
that may be linked to radiofrequency electromagnetic
field exposure, and the press
release simply stated that the evidence of an
association between the two diseases and
cell phone use was “limited.” Press Release
No. 208, IARC Classifies, supra, at 2.
The lack of a signature disease will likely
prove an impediment to cell phone radiation
litigation. Once a toxin is associated
with a signature disease, plaintiffs’
attorneys can conduct screenings for that
disease to find new clients more easily.
Plaintiffs’ counsel also can invest heavily
in developing the science of causation for
just a single disease, rather than many, and
could encounter difficulty finding appropriate
experts to establish causation for the
particular disease at issue in a case. Without
a signature disease, plaintiffs’ attorneys
will have difficulty identifying potential
clients suitable for pursuing cell phone
radiation claims. These attorneys will also
need to find and demonstrate that experts
qualify as experts to establish causation
for whatever diseases plaintiffs allege that
they developed in their cases, which will
increase the attorneys’ expenses. These
impediments promise to reduce the number
of cell phone radiation- related lawsuits.
FCC Standards Probably Preempt
Cell Phone Radiation Litigation
Under federal law, the FCC is charged with,
among other things, promulgating standards
for emissions from cell phones. Most,
but not all, courts addressing the issue have
ruled that this federal law conflicts with
lawsuits that seek to impose liability for
emissions from cell phones in compliance
with all applicable FCC standards, and the
federal law preempts such lawsuits. Courts
adjudicating cell phone radiation claims
henceforth likely will adopt this position
as well.
Cell phone radiation lawsuits to date
have not alleged that the cell phones at issue
failed to comply with FCC standards for
radiation, but, rather, that such standards
are inadequate. See Farina v. Nokia, Inc., 625
F.3d. 97, 122 (3d Cir 2010); Murray v. Motorola,
Inc., 982 A.2d 764, 775 (D.C. 2009).
The circuits have split, therefore, on whether
federal law preempts these lawsuits.
The Farina case illustrates the view that
federal law preempts cell phone radiation
litigation. There, a putative class consisting
of Pennsylvania cell phone purchasers
and lessees alleged that cell phones
expose users to unsafe levels of radiofrequency
electromagnetic fields when they
hold their phones to their heads and that
phones should not have been sold or leased
without headsets. The putative class further
alleged that this fact rendered untrue
statements that cell phone manufacturers
and others in the mobile phone industry
made in advertisements, and, in that
respect, those advertisements were deceptive.
The U.S. District Court for the Eastern
District of Pennsylvania ruled that federal
law preempted the plaintiffs’ claims. On
appeal, the United States Court of Appeals
for the Third Circuit affirmed. The plaintiffs’
claims would “erect an obstacle to the
accomplishment of the objectives of Congress[,]”
specifically “protecting the health
and safety of the public, [and] ensuring
the rapid development of an efficient and
uniform network, one that provides effective
and widely accessible service at a reasonable
cost.” Farina, 625 F.3d. at 105–107,
124–127; accord Bennett v. T- Mobile USA,
Inc., 597 F. Supp. 2d 1050, 1053 (C.D. Cal.
2008) (“a jury verdict finding cell phones
unsafe because of the [radiofrequency electromagnetic
fields that] they emit would
“unquestionably trample upon the FCC’s
authority to determine the maximum
standard for RF emissions[.]”). The plaintiffs
have petitioned the Supreme Court
of the United States for a writ of certiorari.
The Court, however, seems unlikely
to grant the writ, judging by the fact that
it requested the view of the United States
on the writ petition, and the United States
opposes granting the writ.
Those courts that ruled that federal law
did not preempt cell phone radiation litigation
would likely reach a different outcome
today. In Pinney v. Nokia, Inc., the
Fourth Circuit held that a conflict did not
exist between this litigation and federal
law, and the litigation, therefore, was not
preempted. See Pinney v. Nokia, Inc., 402
F.3d 430 (4th Cir. 2005). This opinion, and
the others that reached that conclusion,
predated public FCC statements that such
litigation conflicts with FCC regulations. A
2009 amicus curiae brief submitted jointly
by the FCC and the United States in a cell
Cell Phone, continued on page 81

Product LiabiLity
One Size Doesn’t Fit All
By Diane Flannery
and Jason Burnette
in search of a better way
to resolve the mismatch
between the factors that
the Supreme Court has
identified for assessing
reprehensibility in
economic tort cases with
the typical facts at issue
in product liability cases.
Analyzing
Punitive Damages
Reprehensibility
In a pair of decisions, BMW of North America v. Gore, 517
U.S. 559 (1996), and State Farm Mutual Auto. Ins. Co. v.
Campbell, 538 U.S. 408 (2003), the Supreme Court held
that due process forbids imposing “excessive” punitive
damages, and that courts and juries should
determine excessiveness by comparing
a punitive damages award’s ratio to the
amount of compensatory damages, comparing
the available civil penalties to the
available criminal penalties, and applying
so-called “reprehensibility” factors. As
the Court noted in State Farm, reprehensibility
is “the most important indicium”
in assessing a punitive damages award’s
excessiveness.
The Court identified five factors to
guide lower courts and juries assessing
the reprehensibility of defendants’ conduct:
(1) whether the harm caused was
physical, as opposed to merely economic;
(2) whether the conduct showed an indifference
to or reckless disregard for the health
or safety of others; (3) whether the target
of the conduct was financially vulnerable;
(4) whether the conduct was repetitive or
was an isolated incident; and (5) whether
the harm resulted from a defendant’s intentional
misconduct. State Farm, 538 U.S. at
419. The Court set forth these five factors,
however, in the context of cases involv-
ing economic torts. As a group, the factors
provide a relatively poor framework for
assisting juries and courts with assessing
reprehensibility in product liability cases
because these factors are typically found in
many product liability actions and consequently
fail to distinguish between degrees
of reprehensibility. Indeed, depending on
how you define the terms, three of the five
State Farm factors are inherent in every
product liability case, thus they don’t assess
relative reprehensibility. See Table 1 on
page 32.
First, product liability cases almost
always involve physical injuries rather than
economic harm. Second, some courts have
interpreted financial vulnerability not as
Gore indicated, as meaning a defendant
targeted a financially vulnerable plaintiff,
but instead as meaning that the defendant
had a greater net worth than the
injured plaintiff or that the plaintiff’s injuries
left him or her in a financially vulnerable
position. See, e.g., Century Surety Co.
v. Polisso, 139 Cal. App. 4th 922, 965 n.21
(Cal. Ct. App. 2006). Under this expan-
■ Diane Flannery is a partner and Jason Burnette is an associate in the Atlanta office of Jones Day. Ms.
Flannery specializes in product liability litigation, and is a member of DRI. Mr. Burnette is part of the issues
and appeal team at Jones Day.
For The Defense ■ December 2011 ■ 31

Product LiabiLity
sive, albeit incorrect definition, a court or
jury will find this factor present in nearly
every product liability case because individual
consumers almost always have a
smaller net worth than product manufacturers.
Third, to the extent that courts
construe repetitive conduct to refer to continuing
to sell a product rather than to discrete,
repeated acts in designing or failing
At no point has the
Supreme Court ever held
that the five State Farm
factors are the definitive
five factors that juries and
courts must always apply
to assess reprehensibility
for any and all purposes
and in all cases.
to redesign a product, this factor will be
present in almost every product liability
case because nearly all goods are mass-
produced and mass- marketed.
Instructing a jury on these factors, at
least as some of the courts have interpreted
them, can amount to a finding that three of
the five State Farm reprehensibility factors
automatically support an award of punitive
damages. What is called for instead are factors
that meaningfully aid juries and courts
to situate—in product liability actions—
32 ■ For The Defense ■ December 2011
a particular defendant’s conduct along a
spectrum from the least to the most reprehensible.
Because the State Farm factors
do not assist a jury or a court to determine
whether a defendant in a product liability
case is “more blameworthy than others,” it
is, therefore, appropriate and necessary to
develop a list of factors that do.
Meaningfully Assessing
Reprehensibility—Place Conduct
Along a Behavior Continuum
A jury may assess punitive damages only
after awarding compensatory damages.
Whether punitive damages are appropriate
or constitutional depends on whether
imposing them in addition to the compensatory
damages that already make a plaintiff
whole is necessary either to punish that
defendant or to deter conduct in the future.
State Farm, 538 U.S. at 419 (“It should be
presumed that a plaintiff has been made
whole for his injury by compensatory damages,
so punitive damages should only be
awarded if the defendant’s culpability, after
having paid compensatory damages, is so
reprehensible as to warrant the imposition
of further sanctions to achieve punishment
or deterrence.”). This hinges primarily
on how reprehensibly a defendant has
acted. The more reprehensible a defendant’s
conduct, the more necessary a substantial
financial penalty becomes to punishing
and deterring that conduct, while the less
reprehensible a defendant’s conduct, the
less necessary it becomes. “Some wrongs,”
the Supreme Court has explained, “are
more blameworthy than others.” Gore, 517
U.S. at 575. Reprehensibility is not a black
and white proposition to which a court or a
jury can simply say “yes” or “no,” but rather
a matter of degree. See, e.g., id. at 568 (noting
a need for “flexibility in determining
Table 1. Reprehensibility Factors in Punitive Damages Assessments
from BMW of North America v. Gore, 517 U.S. 559 (1996), and State
Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003)
Inherent in
Product Liability
Factor
Actions
Varies by
Facts
Conduct caused physical, not economic harm √
Conduct showed indifference to the safety of others √
Plaintiff was financially vulnerable √
Defendant engaged in similar conduct on other occasions √
Defendant acted intentionally √
the level of punitive damages”). The factors
that a jury or a court uses must function
as tools to help place a defendant’s
conduct along a spectrum of reprehensible
behavior.
These factors need not be—and should
not be—static across all torts. For what
may be a helpful factor in assessing reprehensibility
in an intentional or economic
tort may be common to all product liability
torts and thus of no value in assessing the
degree of a product liability defendant’s
reprehensibility. Relying solely on the State
Farm factors will deny juries and courts
access to several helpful yardsticks for evaluating
reprehensibility that the case did not
mention. In other words, a “one-size-fitsall”
approach to evaluating reprehensibility
has a substantial downside, and so the
law has a real need to fashion factors useful
to assessing degrees of reprehensibility in
product liability actions. Importantly, at no
point has the Supreme Court ever held that
the five State Farm factors are the definitive
five factors that juries and courts must
always apply to assess reprehensibility for
any and all purposes and in all cases. To the
contrary, the Court in Gore observed that it
is entirely legitimate for “the level of punitive
damages” to vary for “different classes
of cases.” Id.
Assessing Reprehensibility by
Considering a Typical Product
Liability Defendant’s Conduct
The logical place to start to pinpoint the
most useful factors to evaluate the reprehensibility
of a defendant’s conduct in a
product liability case is to identify factors
that would evaluate a typical manufacturer’s
conduct during a typical sequence
of events. Usually, such a defendant has
designed a product, which has subsequently
injured others, including the plaintiff.
Thus, two general categories of conduct-
related factors emerge from this sequence:
(1) factors relevant to a defendant’s conduct
when it initially designs a product, and
(2) factors relevant to the defendant’s conduct
when it discovers an injury- causing
or potentially injury- causing defect after
manufacturing and selling a product.
Product-Design Conduct Factors
When designing a product, the following
factors can help a court or a jury evaluate

a defendant’s conduct as more or less reprehensible
by degree depending on the circumstances
and facts:
1. Whether the defendant, in designing
the product, attempted to comply
with applicable government or industry
safety standards
2. Whether the defendant engaged in
safety testing
3. Whether the defendant took steps to
warn consumers about possible injury
4. Whether the defendant affirmatively
concealed its knowledge of defects
known to cause injury.
See Table 2 below.
Complying with Industry and
Government Safety Standards
A defendant that takes the time to consult
relevant safety protocols—whether governmental
or industry standards—and then
incorporates them into its product design
acts in a responsible and blameless fashion
that does not warrant punishment or
deterrent measures. Nor is there a compelling
basis for punitive damages when a defendant
has designed the product to meet
the most closely analogous standards available
after developing a novel or a cutting-
edge product for which government or
industry has yet to develop safety standards.
In these scenarios, a defendant has
not acted reprehensibly. And a defendant’s
behavior is the very antithesis of punitive-
damages- worthy conduct if it took the
additional step of trying to develop safety
standards for a new type of product. What
is more reprehensible is when a defendant
elects to ignore clearly applicable standards
entirely. As one would expect, the law mirrors
this logic. In many states, compliance
with applicable standards is a complete
defense to punitive damages or minimizes
a finding of liability. See, e.g., Ohio
Rev. Stat. Ann. §2307.80(D)(1) (establishing
a complete defense); DiCarlo v. Keller
Ladders, Inc., 211 F.3d 465, 468 (8th Cir.
2000) (referring to complying with industry
safety standards as relevant to design
defect claims). Even if it doesn’t completely
bar liability, compliance or attempted
compliance with industry or government
standards is at a minimum almost universally
viewed as weighing against punitive
damages. See, e.g., Richards v. Michelin Tire
Corp., 21 F.3d 1048, 1317 (11th Cir. 1994).
Safety Testing
A defendant that engages in product safety
testing acts cautiously, not reprehensibly.
What matters in this regard is the quantity
and quality of the safety testing, the
resources devoted to it, and whether the
testing was reasonable. Awards conferred
to a product manufacturer for product
safety and use of a product by persons or
entities charged with public safety are, by
their very nature, pertinent to demonstrate
the reasonableness and blamelessness of a
defendant’s testing protocols. Conversely,
when a defendant “rush[es] into production”
without pertinent testing or fails to
test at all, the conduct may warrant a punitive
damages award to punish or deter.
Smith v. Ingersoll- Rand Co., 214 F.3d 1235,
1253–54 (10th Cir. 2000).
Warning Consumers
Compared to a defendant that knows that
its product may injure consumers but
doesn’t warn them or attempt to correct
the product, a defendant that knows that
its product may injure acts less reprehensibly
when it warns consumers about the
danger. Most products are not designed
to be completely injury proof, and trying
to make them so would often be unreasonable
because it would rob them of their
intended functionality and utility. A knife
is a knife only if it has a sharp blade, and
a bicycle is a bicycle despite its tendency to
tip over when someone rides it. With such
products, it is entirely reasonable for a defendant
to choose to warn against a risk
rather than to ameliorate the so-called
“defect” that causes an injury, and choosing
to warn a consumer certainly is not a
basis for punitive damages. Defendants
that make this choice act responsibly—
not reprehensibly. See, e.g., Toole v. Baxter
Healthcare Corp., 235 F.3d 1307, 1317 (11th
Cir. 2000) (“[W]e have repeatedly held that
the issue of punitive damages should not
go to the jury when a manufacturer takes
steps to warn the plaintiff of the potential
danger that injured him; such acts bar a
finding of wantonness.”).
Affirmatively Concealing
Injury-Causing Defects
A defendant that, in designing a product,
learns that the product has defects that
may cause injury and, instead of remedying
the defect or warning consumers
about the risk, decides instead to conceal
the defect to make the product more marketable
engages in far more reprehensible
conduct than a defendant that is “up front”
with consumers by taking corrective measures.
To be sure, a defendant does not need
to disclose every design and testing process
step or every conclusion that it draws
along the way. But defendants that learn of
Reprehensibility

Professional liability
The Times They
Are A-Changin’
By Stephen S. van Wert
If you take a long-term
view of the insurance
market, you can make
good decisions now to
position yourself well for
the long-term trend.
■ Stephen S. van Wert is the program manager for the LawyerGuard program. After practicing corporate law in New York and
Atlanta in the 1990s, he entered the lawyers’ professional liability insurance industry. For over 20 years, DRI has sponsored
LawyerGuard for lawyers’ professional liability insurance for its membership. Catlin Insurance Company, Inc., has been the carrier
for the LawyerGuard program since 2009. Additional information can be found at www.lawyerguard.com.
34 ■ For The Defense ■ December 2011
Lawyers’
Professional
Liability Insurance
In 1964, Bob Dylan released his third album, The Times
They Are A- Changin’ (Columbia Records). Now, 47 years
later, the title song seems to describe our world today aptly.
Already in 2011 we have witnessed an enormous earth-
quake and tsunami in Japan resulting in
widespread nuclear contamination, the citizens
of several Middle Eastern countries
forcefully replaced their governments in
the “Arab Spring,” America continued to
battle worldwide terrorism, several European
countries have teetered on the edge of
bankruptcy, and Standard & Poor’s downgraded
the debt of the United States for the
first time in history largely due to partisan
politics in Washington, D.C.
What, you say, does this have to do with
lawyers’ professional liability (LPL) insurance?
The answer is “a lot!” But as Bob

Dylan warned so long ago, you don’t want
to “get hurt” because you have not positioned
your law firm well to navigate these
challenging times.
The Current Market for LPL Insurance
In the insurance world, either the market
is deemed “hard,” meaning that premiums
are high and coverage is limited, or “soft,”
meaning that premiums are low and insurers
offer coverage freely. Since 2003,
the LPL insurance market has been softening.
Over this time, the average cost of
LPL insurance has decreased steadily, and
sellers have added new coverage enhancements.
Many industry commentators have
predicted over the past several years that a
hard market loomed “just around the corner,”
but that has not materialized yet. Why?
In general, three variables affect the
“hardness” or “softness” of the LPL market.
First and most obviously, claims affect the
market’s character. If clients assert more
claims against lawyers (referred to as frequency),
or if insurance carriers have to
pay claims of higher amounts on average
(referred to as severity), then the cost of
LPL insurance will rise. But another often
overlooked element contributes to the cost
of claims. It is called “claims inflation,”
which always operates in the background.
“Claims inflation” is the increase in the cost
of defending a claim asserted against an
attorney or law firm.
I would imagine that your law firm has
raised hourly rates over the past seven
years. The same increase in costs that you
have been able to charge your clients also
has been felt by your LPL insurance carrier.
So even if the frequency and severity
of claims had remained constant over
time, we would expect premiums to rise
each year, at least in the low single digits,
simply due to claims inflation.
The second variable affecting the LPL
insurance market is interest rates. In insurance
jargon, LPL insurance has a “long
tail,” which means that usually a carrier
doesn’t actually pay a claim until several
years after the carrier collects an insurance
premium from a firm. (For comparison,
a property insurance policy has a “short
tail” because an insurer knows at the end
of the policy period whether the building
that it has insured has burned down). During
this “tail period,” sometimes called the
“float,” an insurance company invests the
premium that it has received, primarily in
debt investments. If interest rates are low,
then the income generated from the float
is likewise low. In those circumstances, an
insurance carrier has to rely on its underwriting
activities to make a profit. In other
words, carriers typically make up for poor
interest- investment income by raising premium
rates, decreasing coverage, or both.
The third variable that affects the LPL
insurance market is the amount of surplus
capital in the overall insurance market. Surplus
capital increases as insurance carriers
generate positive income and choose to keep
it in their companies as retained earnings
instead of paying dividends to their stockholders
or policyholders, as the case may be.
In general, the more surplus capital that an
insurance carrier has, the more the insurer
can “put that surplus capital to work” by
writing more policies. Otherwise, the surplus
capital just sits in an insurer’s investment
accounts earning very little interest.
Over the past several years, the first two
variables, claims with higher frequency/
severity and lower interest rates, have
steadily built pressure that has worked to
increase rates in the LPL insurance market.
The third variable, though, has worked to
Unfortunately, when the
economy goes bad, claims
against lawyers rise.
decrease rates because more surplus capital
has been chasing a relatively stagnant number
of insureds. During the past several
years, this pressure from the surplus side
of the equation won, as seen in LPL insurance
premium levels, which remained low.
However, this is no longer the case.
So What Has Changed?
As we have moved into the second half of
2011, I have noticed a definite firming in
the LPL insurance market. One LPL insurance
carrier is lowering limits in California
and pushing rate increases nationwide
in the 10 percent range. Another is completely
remaking its book of business by
not renewing policies with certain firms,
lowering limits, and raising rates. I have
seen another LPL insurance carrier even
decide not to renew with a good law firm,
presumably only because it could not raise
rates fast enough due to state limitations on
the allowable size of annual price increases.
Several other LPL insurance carriers are
raising rates on most of their law firm clients
in the 2 to 10 percent range. One actuary
that I spoke with recently said, “If
anyone tells you they are making money
insuring lawyers, they are either fooling
themselves or just lying.”
So what has changed? Unfortunately,
when the economy goes bad, claims against
lawyers rise. Since the last recession that
began in 2008, law firms that practiced
in real estate and general business transactions
have had more claims asserted
against them, and the corresponding sever-
For The Defense ■ December 2011 ■ 35

Professional liability
ity of those claims has gone up as well. This
has exerted more pressure on LPL insurance
carriers to raise rates.
The last hard market resulted from
similar circumstances. The stock market
dropped precipitously in 2001 when
the “dot.com” bubble burst. The Federal
Reserve lowered interest rates to stimulate
the economy. Both events had the effect of
The good news for
defense lawyers is that
defense firms are still
viewed very favorably by
the LPL insurance industry
reducing insurance carriers’ investment
income. Economic growth at that time also
slowed down, and unsurprisingly, claims
against lawyers increased, especially in
the securities, corporate, and wills/probate
areas of practice. However, it was not
until the tragedy of 9/11 that the hard market
really kicked into gear. The 9/11 attacks
resulted in some of the largest insurance
losses in history, and as a consequence, a
huge amount of surplus capital was used
to pay these claims. The result? In 2002,
many law firms saw their premiums rise
10 to 50 percent in a single year, and many
law firms even had trouble finding the coverage
that they desired.
History Repeats Itself
Could this happen again? Of course, no
one can predict future events with perfect
certainty, but we can take note that the
first half of 2011 generated record property
losses from a large earthquake in
New Zealand, from a very active tornado
season in the midwestern United States,
from riots in England, and from significant
flooding due to Hurricane Irene hitting
the eastern United States. And literally
at the moment of writing this paragraph, I
received a text message from a colleague
saying that an earthquake just hit the eastern
United States, fortunately, causing very
little damage.
36 ■ For The Defense ■ December 2011
Perhaps now you can see why an apparently
irrelevant event such as a large earthquake
in Japan can have an effect on LPL
insurance rates in the United States. To the
extent that such catastrophic losses serve
to decrease the worldwide amount of surplus
capital, they will decrease the pressure
to deploy that capital in the form of
underwriting more policies. And as that
pressure decreases, the countervailing pressure
from increasing claims and decreasing
investment income begins to win out.
Believe it or not, many of the same carriers
that provide your law firm with professional
liability insurance also have exposure
to earthquakes in Japan, either directly or
indirectly through reinsurance agreements.
This is very purposeful on the part of insurance
companies, to “spread their risk”
across many classes of business all around
the world. This diversification strategy is encouraged
by rating agencies because it helps
prevent one catastrophic event from bringing
an insurer into bankruptcy.
Is There Any Good News?
Fortunately, there is good news. In some
cases, carriers offering LPL insurance seem
to be taking a “surgical approach” to their
underwriting actions. By that I mean that
they seem to have sought rate increases
only from those classes of law firms that
have generated the most losses recently.
For example, one large LPL carrier just
filed for a 19 percent overall rate increase
in a certain state that it would achieve primarily
through price increases targeting
law firms in the real estate practice area.
This is unsurprising because the real estate
sector of the economy most acutely experienced
the most recent recession. When
times were good, mistakes that lawyers
made on real estate deals did not result in
claims because “everyone made money” on
those deals. But when times are bad, clients
may allege that those same mistakes
caused the clients to experience losses. Sad
to say, but when people are desperate, they
look for the closest “deep pocket” to help
cover their losses even when no one committed
malpractice.
The good news for defense lawyers is
that defense firms are still viewed very
favorably by the LPL insurance industry.
This is not to say that defense firms will
not see some carriers attempting to raise
rates in the coming year in the low, single
digit range. However, on a relative basis,
defense lawyers should fare much better
than their colleagues in transactional areas
of practice.
The plain truth is that defense lawyers
just are not sued as often as lawyers working
in other areas of practice. They also are
relatively more insulated from claims emanating
from poor economic conditions.
They should by all counts continue to enjoy
premium rates that are sometimes half as
much as in other areas of practice. They
also should not have much problem securing
higher limits and favorable deductible
options. All bets would be off, though,
even for defense firms, if we experienced
another enormous insurance loss such as
that experienced after 9/11. Therefore, do
not let the fact that your firm is a defense
firm lull you into complacency. While some
LPL insurance carriers seem to have taken
the surgical approach described above, at
least as many seem to have raised rates
across their entire books of business.
Prepare for the Storm
If we see the storm clouds coming, that
means that we have time to prepare for
the storm. In LPL insurance, you can take
several actions now to weather a potential
storm in the best way possible.
Start Easy
The easiest and often most overlooked
way to improve your risk profile with LPL
underwriters is to prepare a good application.
In many ways, applying for LPL
insurance is analogous to applying for a
job. You would make sure that your resume
was perfect and communicated everything
that was good about you. Unfortunately,
many LPL applications that I read
appear as if they have been just “thrown
together” by law firms. That generates an
unfavorable first impression in the eyes
of an LPL underwriter, even if the content
of the application is otherwise acceptable.
Remember that LPL underwriters have the
power to apply discretionary credits to your
account. These credits are based on a carrier’s
subjective evaluation of the quality
of your firm. Therefore, it makes sense to
present your law firm in the best light possible.
Answer every question on an application.
Leaving questions blank indicates

either that (1) you wish to hide something,
or (2) you just take a sloppy approach to
your work. Also, do not feel limited to the
space allotted to you on the application
form itself. Feel free to add additional pages
to amplify your responses and to put your
best foot forward. By doing this you communicate
that you care about risk management
and wish for an underwriter to
evaluate your firm in the most favorable
light possible. It should go without saying
that anything that you put on an application
must be true, as an insurance carrier
can use misrepresentations on an insurance
application as the basis to deny coverage
for a future claim.
Be Honest But Assertive
About Past Claims
Be sure to explain any incidents or claims
on your application carefully. Resist the
temptation just to attach the court documents
themselves. First, an LPL underwriter
will not wade through all of that
paperwork. Second, the court documents
themselves allow an LPL underwriter to
read a plaintiff’s assertions about how negligent,
ignorant, incompetent, and sometimes
malicious your firm has been in
handling a claimant’s legal matter. Rather,
it is much more preferable to summarize a
claim using an insurance carrier’s supplemental
claims application.
In the minds of LPL underwriters, law
firms with prior claims are much more
likely to have claims asserted against them
in the future. Therefore, it is critical that
you supplement your description of a claim
with tangible reasons why it should not
happen again. LPL underwriters will read
a claims summary carefully, and it provides
a chance for you to put your best foot
forward even when discussing a negative
aspect of your law firm’s insurance history.
Some LPL underwriters even believe
that a law firm is a better risk if has suffered
a large LPL loss because it has focused the
attention of the law firm on risk management
issues. However, focusing attention
on risk management is one thing. Actually
doing something about it is another,
and you should document all actions taken
in this regard. The foregoing also applies
to any prior complaints or disciplinary
actions taken against any of the attorneys
in your firm.
Your Website Is Read by Everyone—
Including the Underwriter
You periodically should review your law
firm’s website to make sure that it contains
the most current information about your
firm. Most LPL underwriters now review
a firm’s website in tandem with its insurance
application. If there are discrepancies
between the two, then an underwriter will
want to know why you portray your firm
one way to the general public and another
way on your insurance application. Most
times when an underwriter spots a discrepancy,
it is because a firm simply failed to
update the content of its website. Yet, once
again, that is not a good message to send to
an underwriter.
Law firms often portray themselves as
very sophisticated on their websites, stating
emphatically that they handle all kinds
of areas of practice. Yet, when it comes to
those reported on their insurance applications,
law firms just report those areas
of practice in which they in fact render
services.
I recognize that in the same way that
insurers have diversified their books of
business insuring many different classes
of risk around the globe, many law firms
have chosen to engage in a broad array of
practice areas to better serve their clients
and diversify their revenue base. However,
to the extent that your law firm has exposure
to the following areas of practice or clients,
you may experience greater difficulty
in obtaining the price and coverage that
you desire during your next LPL renewal:
• Banking and financial institution clients,
especially if a client is under financial
duress
• High value plaintiff personal injury
cases
• Collections, especially since there have
been many class action claims made
against lawyers for violations of Fair
Debt Collection Practices Act
• Domestic relations with high values
• Entertainment law with high-profile
clients
• Oil and gas
• Probate, wills, and estates with high
values
• Real estate law
• Securities law
It would be wise to analyze whether your
law firm’s exposure to these higher risk
areas of practice or clients are worth it in
light of the additional revenue that the firm
realizes. Many LPL underwriters bypass
quoting the entire law firm simply because
one attorney in the firm performs services
in a difficult area of practice. The reason is
that the limits of an LPL policy apply to all
areas of practice, not just those in which
the majority of the attorneys perform. For
example, if your firm has one attorney
practicing securities law, many carriers
will simply decline to offer terms, no matter
how great your firm is otherwise. And if
they do offer terms, they will charge you a
much higher price than they would otherwise.
Thus, you should at least ask yourself
whether certain boutique areas of practice
in your firm may be causing problems
in your firm finding LPL coverage at the
best price possible. Certainly, if the market
hardens, this aspect of your firm’s risk
management profile will cause you difficulties
at your next renewal.
Ownership Interest in Clients—
Treasure or Trap?
When I was practicing law, I noticed that
the richest partners in the firm were not the
ones who billed the most hours, but rather
they were those who had taken an early
ownership stake in clients that eventually
went public. Now I admit that this scenario
does not happen very often, but attorneys
often seem to believe that this could happen
to them, too.
You should know that ownership interest
in clients among individual lawyers is a
“red flag” for LPL insurance underwriters.
If a client in which an attorney has a financial
interest has asserted a claim against the
firm, an underwriter will wonder whether
the attorney acted in the capacity of an
attorney or as a company shareholder. The
extent of this potential conflict of interest
increases as the percentage ownership of an
attorney increases. When a client asserts
this kind of claim, the claimant’s attorney
will try to make this potential conflict
as meaningful as possible to prove that an
attorney did not provide his or client with
unbiased advice. Although not dispositive,
ownership issues tend to make claims more
complicated, and thus, more expensive to
defend. As a result, the settlement value of
a claim goes up.
In addition, almost all LPL insurance
For The Defense ■ December 2011 ■ 37

Professional liability
policies exclude coverage for claims asserted
by a client of the firm where the insured’s
attorneys, either individually or
collectively, own more than a certain percentage
of the client, typically anywhere
from 5 to 25 percent. In other words, right
now you may not have LPL insurance coverage
for a sizable portion of your firm’s legal
work. If you have not checked your current
If a hard market comes,
those firms that do not sue
their clients for fees will
survive the storm much
better than those that do.
policy for this provision, you should do so
immediately, after polling all of your attorneys
to determine the extent of their ownership
in clients of the firm.
Know Your Rights
It seems that everyone nowadays is quick to
assert their rights whenever they feel that
they have been wronged. Unfortunately,
when it comes to insurance, most insureds
do not know their rights under the insurance
laws of their states. As a result, sometimes
law firms find themselves in difficult
situations that they could otherwise have
avoided. As the market hardens, and as
LPL insurance carriers start to charge
higher premiums or even decide not to
renew firms’ policies, having a good working
knowledge of these laws will become
essential to protecting your firm.
For example, in most states, an insurance
carrier must notify you well in
advance of price increases for renewal
above a certain threshold. If a carrier does
not notify you in a timely manner, then
it cannot legally enforce the higher pricing
until it has satisfied the legally mandated
notification period. The purpose of
these laws is to allow an insured to have
time to shop around for coverage from
another insurance carrier before the price
increase becomes effective. Although each
state is different, many states require at
38 ■ For The Defense ■ December 2011
least 60 days advance written notice before
an excessive price increase can take effect.
In addition, if an insurance carrier desires
to take away coverage, then typically
the carrier can do it only if it provides a “reduction
of coverage” notice to you well in
advance of your renewal date. Say, for example,
that your firm has a “loss only” or “first-
dollar defense” deductible under which you
do not pay a deductible for the costs of defending
a claim, but rather, you pay the
costs only if your insurance carrier makes
an actual indemnity payment to a claimant.
Many times clients assert meritless claims
against lawyers, yet the carriers have a duty
to defend insureds for such claims even if
they are groundless, false, or fraudulent. If
an insured has this type of “loss only” deductible,
then the insuring carrier has to
pay for the cost of the defending the insured
against meritless claims from the “first dollar.”
In hard markets, though, insurance
carriers may attempt to remove this type
of deductible when next renewing policies.
In such a case, an insurance carrier needs
to provide your firm with a “reduction in
coverage notice,” usually sometime before
60 days before your policy expires. Again,
these laws are in place to provide you with
adequate time to secure the coverage that
you desire from another insurance carrier.
If the market becomes very hard, then
some law firms may not have their coverage
renewed. If an insurance carrier decides
not to renew your policy, you should take
it very seriously because future carriers
will ask you if the firm’s insurance history
has involved this scenario. If so, an
LPL underwriter will want to know the
reason why another insurance carrier did
not renew your firm’s previously held policy.
An LPL underwriter knows that in
most circumstances an insurance carrier
does not decide to non- renew a firm’s policy
unless the carrier experienced trouble
with the firm, such as problems with the
firm’s claims, difficulty dealing with the
firm during the claims adjustment process,
or failure by the firm to pay a deductible,
among other things. As such, insurance
underwriters generally consider a decision
by a previous carrier to non- renew a LPL
insurance policy as a “black mark” on your
firm’s insurance history.
In most states, not only does an insurance
carrier need to give your firm signif-
icant advance written notice that it does
not intend to renew your LPL policy, but
usually it must state the reason or reasons
why. The wording explaining why a carrier
didn’t renew a policy is very important as
it will provide written proof to future carriers
about why your firm did not have its
policy renewed. Sometimes a carrier simply
withdraws from a state or decides it will
no longer insure a certain class of business
(real estate attorneys, for instance). If this
is the case, then that does not necessarily
reflect adversely on the merits of your particular
law firm. However, without this explanation,
an LPL insurance underwriter
justifiably will view an insurance carrier’s
decision not to renew your firm’s LPL policy
as suspect because an underwriter knows
that a carrier does not rid itself of business
purposefully without good reason.
Don’t Sue Your Clients
In tough economic times, clients often fail
to pay their legal bills. It is tempting for a
law firm simply to sue a client in such circumstances.
However, it is a well-known
fact that law firms that sue their clients
often are countersued for legal malpractice.
And once a client alleges legal malpractice,
the allegation triggers an insurance carrier’s
defense obligation under your LPL
policy.
In general, it is a big “red flag” for any
law firm to sue a client. It means that
something has gone terribly wrong in the
relationship between the law firm and its
client. The expectations of either or both
of the parties have been so disappointed
that they have turned to the court system
to resolve their dispute. Just because law
firms have easy access to the court system
should not mean that they should resort
to such means of dispute resolution easily.
To an LPL insurance underwriter, a
fee- related lawsuit means that a law firm’s
client- intake process has failed somehow,
or the firm has failed to manage client
expectations. In either case, proper risk
management means that a law firm will
do everything essentially possible to manage
clients’ expectations. Some law firms
understand this dynamic so well that they
have instituted a policy of not suing their
clients for fees, period! The partner in
charge of a matter must write off the entire
amount against his or her allocable reve-

nues. That focuses the partner’s attention
on managing the expectations and collections
process with clients, which, in turn,
benefits the economic health of the firm
overall.
If a hard market comes, those firms that
do not sue their clients for fees will survive
the storm much better than those that do.
Usually, insurance carriers only ask about
fee lawsuits that have occurred over the
past one to three years, as opposed to those
reaching back five to seven years. If you
institute better policies now in your firm,
then you can report truthfully that you
have not sued your clients for fees on future
insurance applications during the time
period that an insurance carrier will query.
Some Final Thoughts
As we move into 2012, it will be interesting
to see how the insurance market reacts
to world events. Even though I detect the
beginning of a hard market, I am not sure
when it will occur. In many ways, predict-
ing the insurance market is akin to trying
to predict the stock market: when you
think you got it right, you find out that you
don’t.
However, as with the stock market, if
you take a long-term view, you can make
good decisions now to position yourself
well for the long-term trend. The actions
that you can take presented in this article
represent just a sample of what you can do
to prepare yourself better. Your insurance
broker can offer you more in-depth recommendations
suited to the particular needs
of your firm.
However, if you have considered buying
higher limits for your firm, you should
seriously consider doing so now instead of
waiting another year. Not only is pricing
relatively cheap now, but you risk a significant
chance that it will cost more or even
not be available in the future. You should
expect that an underwriter will ask you the
reasons why you want higher limits, and
the underwriter may also increase the size
of your deductible if you want to increase
your limits.
It is important to remember that much
of the increase in LPL claims frequency
and severity has been tied to the poor
economy. Defense firms have been largely
immune from an increase in these types
of claims. Therefore, a claims-free defense
firm should not tolerate an attempt by a
carrier to raise its rates significantly simply
because the carrier wants to subsidize its
losses emanating from other law firms in
its book of business that practiced in other
areas of law that generated claims from the
poor economy. Again, your insurance broker
can lead you through this process.
As Bob Dylan sang so long ago, the one
who has stalled is the one who will get
hurt. By perceiving the long-term trend
and being proactive now, you can position
yourself in the best way possible because it
is dangerous to presume that the favorable
conditions of the current soft insurance
market will last forever.
For The Defense ■ December 2011 ■ 39

dRug and MedIcaL devIce
FDA Regulation
By Michael A. Walsh
Recent First Amendment
rulings usher in a fresh
look at the rules governing
off-label communications.
■ Michael A. Walsh is a partner in the Dallas office of Strasburger & Price and leads the firm’s Drug and Device Industry Team.
He devotes most of his practice to representing clients in FDA regulated industries on issues related to labeling, and is a member
of the DRI Drug and Device Committee and the Laws and Regulations Committee of the Association of Food and Drug Officials.
40 ■ For The Defense ■ December 2011
Off-Label Promotion
and the First
Amendment
Warning: The reader is forewarned that [off-label promotion]
is like a swamp laced with land mines; do not venture
into this new claims- dissemination process without very
great caution and attention to detail.

James T. O’Reilly, Food and Drug Administration
§15:46 (Thompson Reuters/West,
3rd ed. 2009).
The Food and Drug Administration’s
efforts regarding off- label use of medical
products have resulted in a patchwork of
regulations, guidance documents, statements,
prosecutions, letters, and consent
decrees that significantly restrict manufacturers
from communicating concerning
off- label uses. The restrictions hold true
even when the “off- label” use constitutes
the standard of care in practicing medicine
and is based on truthful, sound science.
The data show that doctors widely prescribe
medical products for off- label use
and that they need more, not less, information.
While it is recognized that manufacturers
of medical products are most
knowledgeable about their products and
best situated to participate in a dialogue
with physicians regarding off- label use,
they do so in a murky regulatory world in
which the penalty for missteps is state or
federal criminal proceedings and potentially
crippling fines. We are in a unique
time when the regulatory framework
is intersecting with resurgence in First
Amendment jurisprudence, which very
well may result in courts taking a fresh
look at the regulatory scheme governing
off- label communications.
Congress established the Food and Drug
Administration (FDA) and set its mission
to promote the public health and to ensure
that drugs and devices are safe and effective.
21 U.S.C. §393. And as explained in the
1970s, “the major objective of the drug provisions
of the Federal Food, Drug, and Cosmetic
Act is to assure that drugs will be safe
and effective for use under the conditions
of use prescribed, recommended, or suggested
in the labeling thereof.” Legal Status
of Approved Labeling for Prescription
Drugs, 37 Fed. Reg. 16,503 (Aug. 15, 1972).
Off-Label Use and New Use
“Off-label use” is when, in exercising professional
judgment in the practice of medicine,
a physician uses a product for an
indication, dosage or duration not in the
FDA approved labeling. “New use” and
“new drug or device” are terms that the
FDA uses when a manufacturer communicates
concerning an “off- label use.” The
FDA views disseminating information
relating to a “new use” for a drug or device
that it has not approved as “labeling,” and
evidence of a new “intended use” that renders
the drug or device adulterated or misbranded.
21 C.F.R. §99.405.
Misbranding
A product is “misbranded” if the “labeling”
includes a statement that is “false or
misleading in any particular.” 28 U.S.C.
§352(a); see also 28 U.S.C. §321(n) (statements
and omissions may make a state-
ment false or misleading). A product also is
considered misbranded if the labeling lacks
“adequate directions for use.” 28 U.S.C.
§352(f)(1). In prosecuting off- label promotion,
the government has taken the position
that any “suggest[ion] that [a] drug is safe
and effective” for an off- label use is “false
or misleading,” irrespective of the scientific
support for the suggestion. U.S. v. Warner-
The medical profession
recognizes off- label use
as appropriate in the
practice of medicine.
Lambert Co, LLC, No. 04-10150 RGS, at 8–9
(D. Mass. June 2, 2004) (Warner- Lambert
Sentencing Memo); 21 U.S.C. §352(a).
To determine misbranding, the FDA
inquires whether product labeling possesses
adequate information “for the purposes
for which [the product] is intended,
including all purposes for which it is advertised
or represented.” 21 U.S.C. §352(f)(1).
The FDA defines a drug’s “intended uses”
to include FDA- approved on- label uses and
any use “objective[ly] inten[ded]” by the
manufacturer. 21 C.F.R. §201.128. A manufacturer
may show its “objective intent”
by an expression in labeling, an advertisement,
or other “oral or written statements.”
Id. If, with the knowledge of the
manufacturer, the drug is “offered and
used for a purpose for which it is neither
labeled nor advertised,” that constitutes
“objective intent” as well. Id. If a manufacturer
“knows, or has knowledge of facts
that would give notice” that its drug “is to
be used” off- label, it “is required to provide
adequate labeling for such a drug
which accords with [those] uses.” 21 C.F.R.
§201.128 (emphasis added).
The FDA and the Practice of Medicine
Congress elected not to permit the FDA to
interfere with the discretion or decision-
making of physicians caring for and treating
patients: “Nothing in [the Federal Food,
Drug & Cosmetic Act] shall be construed
to limit or interfere with the authority of
For The Defense ■ December 2011 ■ 41

Drug anD MeDical Device
a health care practitioner to prescribe or
administer any legally marketed device to a
patient for any condition or disease within
a legitimate health care practitioner- patient
relationship.” 21 U.S.C. §396.
The FDA has spoken on off- label use
by physicians and has stated that if physicians
use a product for an indication not
in the approved labeling, “they have the
Four in 10 doctors queried
about 22 medications
believed that at least one
of the drugs was FDAapproved
for a specific
indication when it was
not labeled as such
and when scientific
evidence did not back the
prescribing decision.
responsibility to be well informed about
the product, to base its use on firm scientific
rationale and on sound medical
evidence, and to maintain records of the
product’s use and effects.” See U.S. Food
& Drug Admin., “Off- Label” and Investigational
Use of Marketed Drugs, Biologics,
and Medical Devices—Information
Sheet, Guidance for Institutional Review
Boards and Clinical Investigators, http://
www.fda.gov/RegulatoryInformation/Guidances/
ucm126486.htm.
The medical profession recognizes off-
label use as appropriate in the practice of
medicine: “Clinically appropriate medical
practice at times requires the use of pharmaceuticals
for ‘off- label’ indications.” Am.
Med. Ass’n House of Delegates, Off Label
Use of Pharmaceuticals, Resolution 820,
(Sept. 21, 2005), available at http://tinyurl.
com/yfpwmyo; see also Sigma Tau Pharmaceuticals,
Inc. v. Schwetz, 288 F.3d 141
(4th Cir. 2002); Huntman v. Danek Medi-
42 ■ For The Defense ■ December 2011
cal, Inc., 1998 U.S. Dist. Lexis 13431 (S.D.
Cal. 1998) (citing In re Orthopedic Bone
Screw Products Liability Litigation, MDL
1014, 1997 WL 305257, at *4–5); Washington
Legal Found. v. Kessler, 880 F. Supp. 26,
28 (D.D.C. 1995). Scott Gottlieb of the FDA
put it this way: “Efforts to limit prescription
and scientific exchange to indications
only specified on a label could retard the
most important advances in 21st century
medicine…. Yet policy forces are tugging
in exactly the opposite direction by placing
restrictions on the exchange of some
of the most pertinent information.” Scott
Gottlieb, Deputy Comm’r, Med. & Scientific
Affairs, U.S. Food & Drug Admin.,
Windhover’s FDA/CMS Summit, Prepared
Remarks (Dec. 5, 2006), http://www.fda.gov/
NewsEvents/Speeches/ucm051792.htm (last
accessed Nov. 1, 2011).
How Often Do Physicians
Inappropriately Prescribe Off-Label?
A survey in the August 21, 2009, Pharmacoepidemiology
and Drug Safety found
that four in 10 doctors queried about 22
medications believed that at least one of
the drugs was FDA- approved for a specific
indication when it was not labeled as such
and when scientific evidence did not back
the prescribing decision. D.T. Chen, M.K.
Wynia, R.M. Moloney, & G.C. Alexander,
U.S. Physician Knowledge of the FDA-
Approved Indications and Evidence Base
for Commonly Prescribed Drugs: Results of
a National Survey, 18 Pharmacoepidemiology
and Drug Safety 1094–1100 (2009).
A national survey of nearly 500 randomly
sampled primary- care physicians and psychiatrists
found that 55 percent of the time
doctors correctly identified the FDA- label
status of drugs for particular indications.
See Kevin B. O’Reilly, Physicians Know
FDA-OK’d Uses for Drugs Half the Time,
amednews.com, Sept. 14, 2009, http://www.
ama-assn.org/amednews/2009/09/07/prsc0907.
htm (last accessed Nov. 2, 2011).
According to one source, “[i]n 2001,
there were an estimated 150 million off-
label prescriptions (21 percent of overall
use) of the sampled medications…. Most
off- label drug medicines (73 percent) had
little or no scientific support.” David C.
Radley et al., Off- Label Prescribing Among
Office- Based Physicians, 166 Archives of
Internal Med. 1021–66 (May 8, 2006).
Why Do Doctors Write So Many
Prescriptions for Off-Label Use
Without Scientific Support?
According to Jerome L. Avorn, chief of
the division of pharmacoepidemiology
and pharmacoeconomics at Brigham and
Women’s Hospital in Massachusetts, the
reason why doctors write so many prescriptions
for off- label use without scientific
support is that “[i]t is terribly, terribly
hard for an individual practitioner to keep
abreast of all the thousands of indications….
All this information about indications
can overwhelm physicians.” Kevin B.
O’Reilly, Physicians Know FDA-OK’d Uses
for Drugs Half the Time, amednews.com,
Sept. 7, 2009, http://www.ama-assn.org/amednews/2009/09/07/prsc0907.htm
(last accessed
Nov. 2, 2011).
According to the New England Journal
of Medicine,
[i]t is unrealistic to expect each physician
to have the time and expertise to
subject [off- label] claims to the same
kind of scrutiny that the FDA exercises
when it reviews a drug application
or a request for a new indication.
The complexity of the assessment that is
required, along with the high stakes of
getting it wrong, provided the rationale
for having a formal drug- approval process
in the first place.
Aaron S. Kesselheim & Jerry Avorn, Pharmaceutical
Promotion to Physicians and
First Amendment Rights, 358 New England
J. of Med. 1727, 1730–31 (Apr. 17, 2008).
Some commentators attribute the gap in
knowledge to the approval process itself:
“Much critical information that the Food
and Drug Administration (FDA) has at the
time of approval may fail to make its way
into the drug label and relevant journal articles.”
Lisa M. Schwartz & Steven Woloshin,
Lost in Transmission—FDA Drug Information
that Never Reaches Clinicians, 361 New
England J. of Med. 1717 (Oct. 29, 2009). Despite
this knowledge gap, “[e]x perts agree
that additional efforts—many of them currently
undefined—will be needed to increase
access to appropriate off- label drugs
for patients with rare and other diseases
while safeguarding against illegal marketing
and potentially dangerous prescribing.”
Tracy Hampton, Experts Weigh in on Promotion,
Prescription of Off- label Drugs, 297
JAMA 683–84 (Feb. 21, 2007).

What Does the Public Think
of Off-Label Use?
According to a 2006 Wall Street Journal/
Harris Interactive Poll, consumers have
mixed views on whether doctors should
have the leeway to prescribe drugs for uses
for which the FDA hasn’t approved: “Forty-
five percent of those surveyed [said] doctors
‘should be allowed to decide which
prescription drug treatments to use with
their patients regardless of what diseases
they have or have not been approved for
by the FDA,’ compared with 46 percent
who said this shouldn’t be allowed.” Becky
Bright, Adults Are Divided on Off- Label
Use of Prescription Drugs, Wall. St. J. Online,
Nov. 23, 2006, http://online.wsj.com/article/SB116422408807730936.html
(last accessed
Nov. 2, 2011). Further, 69 percent believed
that pharmaceutical companies should not
be allowed to “encourage” doctors to use a
drug for a disease for which it had not been
approved. Id. The Wall Street Journal interpreted
the poll as indicating that “many
Americans don’t want to hamper innovation,
but would be supportive of greater
limitations on off- label drug use.” Id. But
a recent Internet- based, randomized, controlled
trial assessed the U.S. public understanding
of the “meaning” of FDA drug
approval. The study concluded that “[a] substantial
proportion of the public mistakenly
believes that the FDA approves only
extremely effective drugs and drugs lacking
serious side effects.” Lisa M. Schwartz
& Steven Woloshin, Communicating Uncertainties
About Prescription Drugs, 171 Archives
of Internal Med. 1463 (Sept. 12, 2011).
Why Does the FDA Regulate What
Manufacturers Say About Off-Label Uses?
According to the FDA, it regulates what
manufacturers say about off-label drug
use because
[B]ased on its experience, FDA has found
that the promotion of unapproved uses
by manufacturers of the promoted products
can subject patients to unnecessary
and dangerous risks…. Promotion
of unapproved uses can encourage physicians
and patients to make decisions
based on statements or claims that are,
in many cases, supported by little or no
data. Thus FDA’s position is that the promotion
of unapproved uses, either by
companies or other parties that bene-
fit by the promotion, can place physicians
and patients in positions where
they cannot make an informed, unbiased
decision.
FDA Notice and Request for Comments
re Citizen Petition Regarding FDA’s Policy
on Promotion of Unapproved Uses of
Approved Drugs and Devices, 59 Fed. Reg.
59,820, 59,821–22 (Nov. 18, 1994).
The Safe Harbor
Congress recognized that the standard of
care for a physician can constitute criminal
conduct for a manufacturer and thus
created a safe harbor—section 401 of the
Food and Drug Administration Modernization
Act (FDAMA)—which outlined
certain conditions under which a manufacturer
could disseminate information
on unapproved or new medical product
uses. If a manufacturer submitted a supplemental
new drug application (SNDA)
and complied with section 401 regulations,
dissemination of certain materials concerning
“new uses” would not be used as
evidence of intent to promote the product
off-label. Section 401 expired in 2006, and
the FDA promulgated “final rules” implementing
section 401 in 2009, Dissemination
of Information on Unapproved/New
Uses for Marketed Drugs, Biologics and
Devices. 21 C.F.R. §99, available at http://
www.accessdata.fda.gov/scripts/cdrh/cfdocs/
cfCFR/CFRSearch.cfm?CFRPart=99. See also,
Guidance for Industry, Good Reprint Practices
for the Distribution of Medical Journal
Articles and Medical or Scientific Reference
Publications on Unapproved New Uses of
Approved Drugs and Approved or Cleared
Medical Devices.” http://www.fda.gov/oc/op/
goodreprint.html.
The “safe harbor” applies to information
about uses not included in FDA- approved
labeling disseminated to a health-care
practitioner, pharmacy benefits manager,
health insurance issuer, group health plan,
or government agency.
However, the “safe harbor” does not apply
to information provided in response to a
practitioner’s “unsolicited request.” The FDA
has stated that a manufacturer’s response to
an “unsolicited request” does not constitute
“labeling” because it is a “personal communication
between the requester and [manufacturer].”
See Div. of Drug Advertising and
Labeling Position on the Concept of Solicited
and Unsolicited Requests (April 22, 1982).
But this FDA “concept” is imprecise and so
those communications could still be considered
“promotional.”
A manufacturer may disseminate “new
use” information that concerns an approved
drug or device as long as it isn’t disseminated
with promotional material, is
not false or misleading, and does not present
favorable information only, in which
case the FDA may consider the information
misleading, meaning “misbranded.”
The information may take form as an “unabridged
reprint[,] … a copy of a peer-
reviewed and published clinical study,” 21
C.F.R. §99.101(a)(2)(i), or a “reference publication”
including information about a clinical
investigation, 21 C.F.R. §99.101(a)(2)(ii),
as long as it is “considered… scientifically
sound.” 21 C.F.R. §99.101(a)(2)(i), (a)(2)(ii).
The FDA defines a reference publication as
something that the disseminating manufacturer
did not write, edit, or “influence,” that
is generally available, and does not focus on
products of the manufacturer distributing
the publication. 21 C.F.R. §99.13(i). Further,
the FDA will not permit a manufacturer to
ground information in a letter to the editor,
abstracts, or studies involving four or
fewer subjects. 21 C.F.R. §99.101(b). Nor can
the information derive from another manufacturer’s
publication unless the distributing
manufacturer has that manufacturer’s
permission to disseminate it.
To obtain FDA approval to disseminate
information regarding a “new use,” 60 days
before disseminating it a manufacturer
must submit the following to the FDA:
• A copy of the information;
• All information that the manufacturer
has, including clinical trial information
and the method used for selecting any
bibliography;
• A supplemental application for a “new
use” or the equivalent; and
• If the manufacturer has no additional
information, a statement that it has no
additional information relating to the
“New Use.”
21 C.F.R. §99.201(a)(2).
If a manufacturer has not submitted a
supplemental application
• If studies have been completed, a manufacturer
must submit a copy of the protocols
and a certification stating that
studies have been completed and that
For The Defense ■ December 2011 ■ 43

Drug anD MeDical Device
the manufacturer will submit a supplemental
application within six months;
• If studies have not been completed, a
manufacturer must submit proposed
protocols and a schedule of when the researchers
will conduct the studies and a
certification that the manufacturer will
use due diligence and will submit a supplemental
application within 36 months.
Irrespective of the stakes,
a new day is dawning on the
First Amendment, and the
FDA’s old arguments may
not endure the scrutiny.
• If the manufacturer seeks exemption
from the supplemental application
requirements, the manufacturer must
submit an application for exemption
(economic feasibility, unethical to conduct
a study) from the supplemental
application requirements.
See 21 C.F.R. §99.205.
If the dissemination parameters fail to
meet these requirements, including “failing
to exercise due diligence,” the failure
may render any disseminated information
“labeling [and] evidence of a new intended
use, adulteration, or misbranding of the
drug or device.” 21 C.F.R. §99.405.
Mandatory Statements
The information disseminated “shall”
include a disclosure permanently affixed
and “prominently displayed” on the front
of the information to be disseminated
stating “This information has not been
approved [or cleared if a device] by the
Food and Drug Administration.” 21 C.F.R.
§99.103. This mandatory statement must
disclose whether the information is disseminated
at the expense of the manufacturer
and identify the authors of the
publication who received compensation
from the manufacturer as well as identify
approved, or cleared, treatments for the
product, as well as the information’s funding
source. Id.
44 ■ For The Defense ■ December 2011
The manufacturer must also include in
the mandatory statement: (1) the approved
labeling; (2) a bibliography listing materials
that do not support the new use; and
(3) additional information that the FDA
deems “necessary to provide objectivity
and balance.” 21 C.F.R. §99.103.
Industry Supported Activities
The FDA’s approach to educational events
during which “off- label” uses are discussed
is contained in “Industry Guidance on
Industry- Supported Scientific and Educational
Activities.” 62 Fed. Reg. 64,074,
64,093 (Dec. 3, 1997), available at http://
www.fda.gov/RegulatoryInformation/Guidances/
ucm122044.htm. According to the FDA,
“truly independent and nonpromotional
industry- supported activities have not been
subject to FDA regulation.” 62 Fed. Reg.
64,094 (Dec. 3, 1997).
Twelve Factors to Determine
Independence
Noting that “[d]emarcating the line
between activities that are performed by
or on behalf of the company, and thus,
subject to regulation, and activities that
are essentially independent of their influence
has become more difficult due to
the increasing role industry has played
in supporting postgraduate and continuing
education for health care professionals,”
the FDA identified factors to evaluate
industry- supported scientific and educational
activities to determine whether a
company supporting an activity “is in a
position to influence the presentation of
information related to its products” or to
“transform an ostensibly independent program
into a promotional vehicle.” Industry
Guidance on Industry Supported Scientific
and Educational Activities, 62 Fed. Reg.
64,095, 64,099 (Dec. 3, 1997). The factors
only apply to “company- supported activities
that relate to the supporting company’s
products or to competing products” and are
intended to clarify the difference between
promotional and non- promotional activities
for activity designers. 62 Fed. Reg.
64,096. The factors are
1. Did the program provider rather than
the supporting company control content
and select presenters and moderators?
2. Did the program meaningfully disclose
relationships?
3. What was the program’s focus; for
instance, did it focus on a product?
4. Did the relationship between the provider
and the company permit the company
to exert control over the provider?
5. Did the provider have a history of failing
to meet independence standards?
6. Is the provider involved in the company’s
sales or marketing?
7. Did the agenda include multiple presentations
of the same program?
8. Did audience selection reflect marketing
goals, or did the company’s
marketing department influence its
selection?
9. Did the program offer opportunity for
discussion?
10. Did the program provider or the supporting
company disseminate additional
product information after the
program?
11. Did the program include ancillary
marketing efforts?
12. Did anyone complain that the supporting
company attempted “to influence
content.”
Industry Guidance on Industry Supported
Scientific and Educational Activities, 62
Fed. Reg. 64,097–64,099.
The FDA also takes into account a category
of catch-all “additional considerations,”
such as whether the written
agreement between a supporting company
and the program provider reflected that the
later would design and direct the program.
Id. at 64,099.
Promotion of FDA- Regulated
Medical Products Using the
Internet and Social Media Tools
In November 2009, the FDA held two days
of meetings on promoting FDA- regulated
products with social media attended by
a variety of stakeholders many of whom
presented written materials and addressed
the issue. The industry has long awaited
guidance from the FDA on this topic. An
archived webcast of the meeting is available
at http://www.capitolconnection.net/ capcon/
fda/111209/FDAarchive.htm (last accessed Nov.
2, 2011).
Government Accountability
Office Study
In July 2008, the U.S Government Accountability
Office (GAO) reviewed the FDA’s

oversight of off- label promotion and produced
a report to Congress detailing the
regulatory framework, how the FDA oversees
off- label promotion, and its actions
regarding off- label promotion. U.S. Gov’t
Accountability Office, GAO-08-835, Prescription
Drugs: FDA’s Oversight of the
Promotion of Drugs for Off- Label Uses
(2008), available at http://www.gao.gov/new.
items/d08835.pdf (last accessed Nov. 2, 2011).
July 15, 2011, Citizen’s Petition
Regarding Safe Harbor
On July 15, 2011, seven major manufacturers
of marketed drugs and devices filed a
citizen’s petition seeking a clearly defined
free speech safe harbor for information that
enables a scientific exchange of extra- label,
truthful and non- misleading information.
This petition presents as clear an explanation
of the Byzantine rules governing off-
label communications as may be possible and
represents a significant attempt to bring clarity
to this murky regulatory environment.
Commercial Speech and
the First Amendment
First Amendment concerns have hounded
the FDA as it reeled in who could speak,
what they could say, and when and where
they could say it. In the past, with a notable
exception or two, discussed below, the FDA
prevailed on First Amendment challenges,
perhaps because what is at stake is the
entire regulatory scheme itself. Irrespective
of the stakes, a new day is dawning on
the First Amendment, and the FDA’s old
arguments may not endure the scrutiny. As
explained by the Seventh Circuit,
Defendants’ lead argument is that the
Food, Drug, and Cosmetic Act violates
the First Amendment by restricting promotional
materials to those that the FDA
has approved. The argument starts from
the premise that federal law allows customers
of any approved medical device
or drug to put it to any use that the customer
sees fit. These “off- label uses”
being lawful, the argument goes, it must
be lawful to tell customers about them.
Until the last 30 years, such an argument
would have been laughed out of court.
U.S. v. Caputo, 517 F.3d 935, 937 (7th Cir.
2008).
Well, the laughter has stopped, and courts
are taking a fresh look at this First Amend-
ment issue. The FDA originally took two
positions respecting the relationship between
the First Amendment and off- label
or new use:
• The FDA off-label restrictions regulated
conduct not speech.
• And if the Court does find the dissemination
of information did constitute speech,
it constituted commercial speech; as such,
in regulating it the FDA restrictions satisfied
the Central Hudson test.
See Summary on Final Guidance on Industry
Supported Scientific and Educational
Activities, 62, Fed. Reg. 64,074, 64,082; 62
C.F.R, 64,074, 64,082.
The Notable Exception
In Washington Legal Foundation v. Friedman,
Judge Lamberth of the District of
Columbia held that through the FDAMA
provisions on off- label dissemination the
FDA regulated speech and not conduct,
and as such the provisions fell within the
purview of intermediate First Amendment
scrutiny. 13 F. Supp. 2d 51, 59 (D.D.C. 1998).
Judge Lamberth entered a permanent injunction
prohibiting the FDA from enforcing
“any regulation, guidance, policy, order
or other official action” to “prohibit, restrict,
sanction, or otherwise seek to limit any
pharmaceutical or medical device manufacturer
or any other person from” particular
speech. Id. at 74. The speech is
• Disseminating reprints of materials
from “bona fide peer- reviewed professional
journals,”
• Disseminating textbooks or portions of
textbooks, and
• Suggesting content or speakers to an
independent program provider.
Id.
Judge Lamberth found that the FDA regulation
overstepped the boundary necessary
to serve the government’s interests in
regulating off- label communications and
less restrictive alternatives existed. Washington
Legal Foundation v. Friedman, 13 F.
Supp. 2d 51, 74 (D.D.C. 1998).
On appeal, the Fourth Circuit noted that
“as a result of the government’s clarification
at oral argument, the dispute between
the parties has disappeared before our
eyes.” 202 F.3d 331, 334 (D.C Cir. 2000). The
Fourth Circuit dismissed the appeal and
vacated the trial court injunction. When
the parties later asked Judge Lamberth to
enforce whatever remained of the injunction,
the court stated:
This year, the Court of Appeals was
poised to finally galvanize a rule of law
in this area. Yet, for whatever reason, the
opportunity was spent debating not the
U.S. Constitution’s First Amendment, but
its Article III case or controversy requirement.
In fact, after the Court of Appeals’
opinion, we have even less First Amendment
law than before; this is because the
Court vacated all of this Court’s previous
constitutional rulings on the matter.
As for this Court’s part in the controversy,
the Court is confident that it has
done its best…. It has decided the underlying
[constitutional] issue at least twice,
and senses it will be called on to do so
again before the controversy is concluded.
For now, however, the issue must
be given a temporary rest.
128 F. Supp. 2d 11, 15 (D.D.C. 2000).
Sorrell v. IMS Health Inc.
131 S. Ct. 2653 (2011)
Sorrell is not an off- label promotion case
but it offers a major pronouncement of
the Supreme Court reasoning on the
First Amendment in the context of FDA-
approved products. 131 S. Ct. 2653 (2011).
Pharmacies collect prescribing information
(PI), including a prescriber’s name and
address; the name, dosage, and quantity of
the drug; the date and location where the
prescription was filled; and the patient’s
age and gender. Manufacturers purchase PI
to focus their marketing messages to individual
prescribers and rely on sales representatives,
referred to as “detailers,” to visit
individual physicians to provide information
to the physicians on their products.
In 2007, Vermont enacted a “Prescription
Confidentiality Law” that prohibited
pharmacies from selling PI for marketing
purposes and barred manufacturers from
using PI for marketing purposes.
The district court found in favor of Vermont,
but the Second Circuit reversed,
finding that the statute violated the First
Amendment to the U.S. Constitution by
burdening the speech of pharmaceutical
marketers and data miners without adequate
justification. A nearly identical statute
was considered by the First Circuit
and, because the First Circuit viewed the
prescribing information as a commodity,
For The Defense ■ December 2011 ■ 45

Drug anD MeDical Device
“mere beef jerky,” IMS Health Inc. v Ayotte,
550 F.3d 42, 53 (CA1 2008), and the Second
Circuit viewed it as speech akin to a “cookbook,
laboratory result or train schedule,”
the Supreme Court granted certiorari.
The Supreme Court analysis began by
stating that “[s]peech in aid of pharmaceutical
marketing, however, is a form of expression
protected by the Free Speech Clause of
Sorrell… plainly paves the
way for courts to review the
First Amendment implications
of the patchwork regulatory
scheme governing offlabel
communications.
the First Amendment.” 131 S. Ct. at 2659.
The Court found that the law warranted
heightened scrutiny because Vermont
“designed [the law] to impose a specific,
content- based burden on protected expression.”
Id. at 2664. The Court wrote that
“[t]he First Amendment requires heightened
scrutiny whenever the government
creates a ‘regulation of speech because of
disagreement with the message it conveys.’”
Id. Vermont argued, as does the FDA about
manufacturer off- label speech, that heightened
scrutiny was not warranted because
the law was “a mere commercial regulation.”
The Supreme Court disagreed, stating
that (1) the “law does not simply have
an effect on speech, but is impermissibly
directed at certain content and is aimed at
particular speakers,” and (2) distinct from
previous cases that considered limiting access
to using governmental information,
the law in Sorrell “implicated” commercially
available information and restricted
“[a]n individual’s right to speak… when information
he or she possesses is subjected
to ‘restraint on the way in which the information
might be used or disseminated.’”
Id. at 2665 (internal citation omitted). In
addressing the conflict between the First
Circuit and the Second Circuit, the Court
stated that “[f]acts, after all, are the begin-
46 ■ For The Defense ■ December 2011
ning point for much of the speech that is
most essential to advance human knowledge
and to conduct human affairs. There
is thus a strong argument that prescriber-
identifying information is speech for First
Amendment purposes.” Id. at 2667.
According to the Supreme Court,
Those who seek to censor or burden free
expression often assert that disfavored
speech has adverse effects. But the “fear
that people would make bad decisions if
given truthful information cannot justify
content- based burdens on speech.”
The First Amendment directs us to be
especially skeptical of regulations that
seek to keep people in the dark for what
the government perceives to be their
own good. These precepts apply with
full force when the audience, in this
case prescribing physicians, consists of
“sophisticated and experienced consumers.”…That
the State finds expression too
persuasive does not permit it to quiet the
speech or to burden its messengers.
131 S. Ct. 2670.
The Court quoted one Vermont physician:
“We have a saying in medicine, information
is power. And the more you know,
or anyone knows, the better decisions can
be made.” Id. at 2671.
Sorrell is not an off- label case, but it
plainly paves the way for courts to review
the First Amendment implications of the
patchwork regulatory scheme governing
off- label communications. Significantly,
the Second Circuit will review another
First Amendment case, this time squarely
addressing the First Amendment in the
context of off- label marketing.
U.S. v. Caronia, 576 F. Supp.
2d 385 (E.D.N.Y. 2008)
Orphan Medical manufactured and marketed
a sleep- inducing depressant, Zyrem.
A government informant contacted Mr.
Caronia, a sales representative, asking for
information on off- label use and for a presentation
by a medical liaison. Mr. Caronia
arranged the presentation, and the sting
operation resulted in prosecution. Unfortunately
for Mr. Caronia, his employer
admitted to a conspiracy to misbrand and
paid a hefty penalty. In addition, a former
manager testified that he had personally
instructed the medical liaison to misbrand
the product on prior occasions.
In denying Mr. Caronia’s motion to dismiss,
the trial court presciently stated:
Reduced to its essence, Caronia’s argument
is that the government cannot
restrict truthful, non- misleading promotion
by a pharmaceutical manufacturer
(or its employees) to a physician
of the off- label uses of an FDA- approved
drug… squarely, Caronia’s constitutional
attack calls into questions America’s
regulatory regime for the approval
and marketing of prescription drugs.
The court went on to state: “The Constitutional
issues raised in Caronia’s motion are
very much unsettled, not only in the circuit
but nationwide.” The court ruled that “[i]t
is clear to the Court that the promotion of
off- label uses of an FDA- approved prescription
drug is speech not conduct.” The court
found the facts supported three of the four
Central Hudson factors and stated: “With
that the overture ends and the play begins.
Enter on stage the essential question—can
government satisfy the fourth prong of Central
Hudson?” In answering that question,
the Caronia trial court stated that
here, the FDA’s maintaining through the
FDCA’s misbranding provisions some
control over the off- label promotion of
manufacturers does appear essential to
maintaining the integrity of the FDA’s
new drug approval process…this Court
is unable to identify non- speech restrictions
that would likely constrain in any
effective way manufacturers from circumventing
that approval process.
The case was tried to a verdict against
Mr. Caronia, and the jury convicted him
on one count of “conspiracy to introduce
or deliver for introduction into interstate
commerce a drug, Xyrem, that was misbranded.”
The jury imposed a $25 fine and
community service as a sentence.
With the tide rising on the First Amendment,
Mr. Caronia has been joined by amici
that have been battling this issue since the
days when it was “laughed out of court.”
Only now no one is laughing. Caronia is
up before the Second Circuit, and supplemental
briefing was filed in August 2011,
addressing the First Amendment issues
raised by the Supreme Court in Sorrell.
While it is not clear how the Second
Circuit will rule in Caronia, in Sorrell the
Second Circuit found that the Vermont
statute violated the First Amendment, stat-

ing that “[t]he statute is therefore clearly
aimed at influencing the supply of information,
a core First Amendment concern….
[T]he First Amendment teaches that courts
should assume that truthful commercial
information ‘is not in itself harmful.’” 630
F.3d 263, 272 (2d Cir. 2010) (internal citation
omitted). The Second Circuit concluded
that the state could achieve its goals
with less restrictive means:
In other words the statute seeks to alter
the marketplace of ideas by taking out
some truthful information that the state
thinks could be used too effectively. The
state’s approach to regulating the interaction
between detailers and doctors is
premised on limiting the information
available to physicians as a means of
impacting their conduct. This approach
is antithetical to a long line of Supreme
Court cases stressing that courts must
be very skeptical of government efforts
to prevent the dissemination of information
in order to affect conduct.
Id. at 277–78.
From “Notable Exception”
to Developing Trend?
On October 14, 2011, Par Pharmaceuticals
filed a declaratory judgment action
in the U.S. District Court of the District of
Columbia seeking a preliminary injunction
preventing the federal government
from criminalizing truthful speech that
is not misleading to health care providers
concerning its FDA- regulated products.
At issue in Par is the drug Magace, a
drug to treat weight loss or wasting in AIDS
patients, which doctors use off- label more
frequently with other populations such as
geriatric and cancer patients. Par may pick
up where Washington Legal Foundation v.
Friedman left off, as a party has again asked
that court to issue an injunction barring
the FDA from prohibiting truthful speech
that doesn’t mislead concerning regulated
products. Perhaps this iteration of First
Amendment challenges in that court will
not “disappear before our eyes” as it did in
Washington Legal Foundation v. Friedman.
Conclusion
The boundary between permissible and
impermissible speech regarding off- label or
new uses is vague, and the civil and criminal
penalties for a real or imagined misstep
are severe. Yet the data show that physicians
and the consuming public require
more, not less, truthful scientific information
regarding the uses to which they put
medical products. The current compliance
and enforcement regime may not only fail
to satisfy the mounting First Amendment
challenges, but it may also fail the underlying
interest of the improving public health,
which it is designed to serve.
For The Defense ■ December 2011 ■ 47

TRuckIng Law
From the Chair
By Kurt M. Rozelsky
Our ambitious 2012
schedule makes it the
perfect time to get
involved in the Trucking
Law Committee.
■ Kurt M. Rozelsky is an attorney in the Greenville, South Carolina, office of Smith Moore Leatherwood LLP. Kurt focuses his
practice on the defense of transportation matters, product liability claims, and other technical and expert driven litigation. In
addition to chairing DRI’s Trucking Law Committee, he is a vice chair of the FDCC’s Transportation Section and is a member of
ABOTA, TIDA, and Transportation Lawyers Association. He has 72 friends (14 pending).
48 ■ For The Defense ■ December 2011
One New Idea—
One New Friend

Whenever I go to a conference, reception, or similar event,
I set a simple goal: learn one new idea and meet one new
friend. Sounds simple, right? As lawyers, we are all busy.
In fact, we pride ourselves on being busy. When you ask
someone how they are doing, the common
response is “I’m really busy,” to which we
generally reply by telling them how busy
we are as well. It is as if the busiest person
wins. Well, 2012 is the perfect time for you
to slow down and focus on learning one
new idea and making one new friend in the
Trucking Law Committee.
Speaking of new ideas, the Trucking Law
Committee has been hard at work planning
the 2012 Trucking Law Seminar: Road
Warriors 2012—Reshaping Trucking Litigation,
to take place February 16–17 at the
fabulous Westin Kierland Resort in Scottsdale,
Arizona. M.J. Dobbs, Program Chair,
and Brett Ross, Program Vice Chair, and
their steering committee have put together
an incredible, not-to-be-missed program.
The 2012 seminar features a keynote
speech by David Osiecki of the American
Trucking Associations about the upcoming
legislative and regulatory agenda affecting
the trucking industry. In addition, there
are practical segments on voir dire in a
trucking case, handling the nontraditional
trucking case, handling damages after stipulating
to liability, and defending the driver’s
history. There are breakout sessions
for new- to- trucking attorneys on medical
issues and advanced sessions on loading/
unloading, trucking employment issues,
and the ever- evolving CSA. Finally, the
seminar will introduce two live features: a
driving simulation and a live independent
medical exam (IME). This is truly a seminar
where you will learn much more than
just one new idea.
On the “meet one new person” goal,
the 2012 seminar offers numerous opportunities
to network with trucking attorneys
from around the country at breakfast
gatherings, cocktail receptions, and the
ever- popular dine-arounds. The last seminar
hosted nearly 650 attendees, including
numerous industry representatives, and
the up- coming seminar expects to be even
grander. If you cannot meet one new per-
son in this venue, you are not trying very
hard.
The Trucking Law Committee offers
many more opportunities to learn new
ideas from our quarterly newsletter, In
Transit, and this issue of For The Defense.
Thanks to Publications Chair Stephen
Pesarchick and Publications Vice Chair
John Lomax Anderson for their efforts in
putting these materials together. The committee
publications offer an excellent way
to get involved in the committee and share
your knowledge and experiences. If you
have an article or an idea, let us know and
we will work to get you published.
Combining new ideas and new friends,
2012 will continue the development of
the Trucking Law Specialized Litigation
Groups (SLGs). These subgroups include
Biomechanics/Accident Reconstruction,
Cargo Claims, Insurance Coverage,
Logistics, New Trucking Attorney/Young
Lawyers, and Regulatory/Governmental
Affairs. SLG Chair Pat Sweeney and
SLG Vice Chair Sara Turner are recruiting
members to each of these groups to
get more people involved in the committee
and we hope you will join one or more of
the SLGs. The more people get involved the
more productive these groups will become,
leading to more new ideas and more new
friends.
As you read through the following pages
of excellent articles, written by experienced
trucking practitioners, strive to learn one
new idea that you can put into your practice
today. And as you prepare for 2012,
strive to make the one new friend in the
Trucking Law Committee. In the end, you
will find that the new idea/new friend idea
is a way to grow your practice professionally
and personally. Good luck, and I look
forward to making many new friends at the
2012 seminar in Scottsdale.
For The Defense ■ December 2011 ■ 49

Trucking Law
Rapid Response Teams
By Durward D. Casteel
and Aaron J. Messer
Pieces of evidence, each by itself insufficient,
may together constitute a significant
whole, and justify by their
combined effect a conclusion.
—Lord Wright
Physical evidence cannot be wrong, it
cannot perjure itself, it cannot be wholly
absent. Only human failure to find it,
study and understand it, can diminish
its value.
—Paul L. Kirk
50 ■ For The Defense ■ December 2011
Investigation
of Catastrophic
Accidents
Time is of the essence when investigating a catastrophic
trucking accident since key evidence, such as a favorable
witness, a faint tire mark, or accident debris, disappears
quickly from a scene. For this reason, trucking companies
and their third-party administrators or
insurers use small groups of professionals
known as “rapid response,” “go,” or
“CAT” teams to assess and investigate accidents
quickly. This article offers a primer
on the makeup and activities of a successful
trucking accident rapid response team.
The article also addresses the application
of the attorney- client privilege, the work-
product doctrine, and spoliation to the
team’s efforts and findings.
Benefits of a Rapid and
Thorough Investigation
A thorough investigation has many benefits.
First, it will increase the chance that a
trucking company will have the evidence
necessary to defend no-fault accidents, or
to prove comparative fault on the part of
other drivers or third parties such as highway
construction companies or state transportation
departments. Second, collecting
and documenting physical evidence will
allow a trucking company to evaluate wit-
ness statements better, including that of
the trucking company’s driver. Third, rapidly
and thoroughly investigating an accident
better positions a trucking company
to influence investigations by governmental
agencies because the company’s team
can then provide evidence when appropriate
to an investigating authority or to a district
attorney. Finally, an investigation will
assess an accident’s causes early and accurately.
This early assessment will increase
the chance of achieving a timely settlement,
when appropriate, by providing the information
necessary to set a proper reserve.
Importance of Arriving at the
Accident Scene Quickly
Team members must arrive on the scene
of a catastrophic accident as soon as possible
so that key evidence can be preserved
or documented. A rapid response has the
advantages of
• Identifying all potential witnesses, including
law enforcement, fire depart-
■ Durward D. Casteel and Aaron J. Messer are trial attorneys at Casteel & Associates in Baton Rouge, Louisiana.
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 accident
reconstructionist’s role in responding to a catastrophic accident, and the engineers at Delta [V] Forensic
Engineering for their input into the electronic data section of this article.

ment, and emergency medical services
(EMS) personnel;
• Documenting the scene before the debris
field has been cleared;
• Identifying damage to stationary objects
or landmarks;
• Documenting tire marks and evidence
of paint transfer, liquids, and stains;
• Preserving electronic data;
• Obtaining accurate weather data;
• Documenting construction zones or
highway signage in real time;
• Obtaining the road surface’s coefficient
of friction close to the time of the accident;
and
• Testing a company’s driver for drug and
alcohol use on a timely basis.
The team will have only one chance to preserve,
collect, and document much of the
evidence.
Team Members
Every trucking accident rapid response
team should include the truck driver, an
accident reconstructionist, preferably
one with an engineering degree, a field
adjuster or investigator, a company representative,
and an attorney. Other potential
team members include electronic control
module (ECM) specialists, biomechanical
engineers, “hazmat spill” response
companies, videographers, aerial photographers,
cargo- loss adjusters, criminal
defense attorneys, and engineers with
expertise in highway safety, traffic flow, or
construction- zone safety.
Driver
A driver who is physically able should initiate
the investigation by documenting the
accident scene and by preserving evidence.
In some cases, such as, an early- morning
accident in blizzard conditions on US 191
in northern Montana, getting help from
any other team member may take several
hours. A trucking company should,
therefore, prepare a driver beforehand to
take a number of steps on his own. These
actions include, among others (1) ensuring
his own safety, (2) contacting 911, (3) taking
steps to prevent secondary collisions,
(4) checking on the occupants of the other
vehicles, (5) contacting the company dispatcher,
(6) removing the key from the
tractor’s ignition, (7) obtaining names and
addresses of the individuals involved and
of any witnesses, (8) obtaining license plate
numbers of all vehicles involved, (9) taking
photographs of the vehicles and roadway in
as much detail as possible, and (10) documenting
all admissions of responsibility.
If, on the other hand, the accident occurs
on I-78 in New Jersey, the police and an
adjuster should arrive within minutes, and
those professionals will be able to perform
several of those initial duties. Nonetheless,
a company should prepare a driver to collect
as much information as possible.
Field Adjuster or Investigator
A field adjuster or investigator will, in most
cases, be the second team member on the
scene. This field adjuster should have extensive
experience with catastrophic truck
accidents and should be accessible anytime.
The adjuster must know the U.S.
Department of Transportation (DOT) regulations
regarding post- accident drug and
alcohol testing and the trucking company’s
post- accident testing protocol, which may
be stricter than the DOT mandatory testing
requirements. The adjuster must have
the skills and knowledge to obtain witness
statements, for example, knowing which
interviews to record, to take photographs
at accident scenes, and to identify debris
and other physical evidence important to
reconstructing an accident. The adjuster
should also have a good rapport with state
and local law enforcement.
The field adjuster’s tasks will depend on
which other team members can quickly
arrive on the scene. Typically, the team’s
attorney will ask the adjuster to learn the
location of vehicles already towed from
the scene, to identify which company did
the towing, and to secure records from the
tractor’s cab, including paper logs, inspection
reports, and registration and service
records.
A trucking company should identify a
field adjuster well before a catastrophic accident.
The best way to find a competent adjuster
is to consult those experienced in the
field, including trucking attorneys or other
risk managers. It’s not wise to only look in
the directory of a national adjusting company
or rely on a contract that a trucking
company may have with a national adjusting
company. Most areas should have “goto”
adjusters with the training and skills to
investigate a catastrophic accident properly.
Using an inexperienced adjuster has serious
risks. In one instance an adjuster was
called to the scene of a late-night tractor-
trailer accident in which a car clipped the
back of a trailer and rolled several times.
The adjuster somehow concluded that the
driver of the car was in fair condition at
the hospital and told the trucking company
that it could release the driver and truck to
The best way to find a
competent adjuster is to
consult those experienced
in the field, including
trucking attorneys or
other risk managers.
continue on their trip. Although the other
driver died shortly after reaching the hospital,
the trucking company did not find
out about his death until after the eighthour
alcohol- testing window required by
49 C.F.R. §382.303 had closed.
Accident Reconstructionist
The team’s accident reconstructionist
should have an engineering degree and
should have extensive experience with commercial
vehicle accidents. Ideally, he or she
should live within driving distance of the
accident scene. His or her role is to be the
technician—the on-the-scene expert—who
determines how the accident happened and
who documents, photographs, and measures
the scene and the vehicles involved.
The reconstructionist’s investigation
generally follows this path: (1) talking with
the police if they are still present, (2) walking
the scene starting at the vehicles and
tracing backward to the origin of each vehicle’s
tire marks, (3) placing chalk marks on
the roadway using a roll-a-tape so that the
measured distances can be photographed,
(4) documenting evidence in the order in
which it will disappear, and (5) gathering
evidence using the things listed in the
“Tools of the Trade” section below.
Because taking photographs is the most
For The Defense ■ December 2011 ■ 51

Trucking Law
important way to document physical evidence
at an accident scene, good reconstructionists
are good photographers by
necessity. The reconstructionist will typically
photograph a scene from the outside
edges of the scene inward to the vehicles’
final resting points. His or her photographs
will document, for example, the beginnings
of tire marks, points of impact, vehi-
The accident
reconstructionist will have
more difficulty collecting EDR
data from the other vehicles
involved in the accident
than collecting it from the
trucking company’s vehicle.
cle damage, and damage to inert objects
such as road signs.
The accident reconstructionist will collect—or
have collected—the electronic data
from the truck, and, if possible, other vehicles
involved in the accident. See Michael
W. Halvorson, “Black Box” Technology and
Its Use in Litigation, For The Defense, January
2009 (thoroughly discussing event data
recorder data, its usefulness in investigating
accidents involving commercial vehicles,
and its value in defending lawsuits
that arise from those accidents). The greatest
challenge the reconstructionist will
have is preserving data from the vehicles
until the data can be extracted. This is particularly
true of the data stored in the vehicle’s
event data recorder (EDR).
The accident reconstructionist should
take several steps to preserve the data from
the commercial vehicle’s EDR. If possible, the
data should be extracted on the scene. This
is the safest way to preserve last-stop data. If
the data cannot be extracted on scene, the vehicle
should be towed and its keys secured,
because the last stop data will be overwritten
as soon as the vehicle is operated or the engine
is engaged. Finally, the reconstructionist
should determine the truck’s manufacturer,
52 ■ For The Defense ■ December 2011
model, and VIN number, as well as the engine’s
manufacturer, model, and build date.
A visual inspection will confirm the truck’s
and the engine’s specifications.
There are three methods to download
and extract data from an EDR: incident
truck, surrogate truck, and bench-top.
The preferred method is to use the engine
manufacturer’s hardware and software
to extract the data while the EDR is still
attached to the vehicle, referred to as the
“incident truck” method. The second
method involves removing the EDR from
the truck, storing it until the download can
be performed, and then placing the EDR
module on a surrogate truck that is identical
to the incident truck for the extraction.
This method is referred to as the “surrogate
truck” method. The bench-top method
involves plugging the EDR directly into a
laptop using the manufacturer’s software.
This method can cause the loss of data such
as trouble codes or fault codes.
The accident reconstructionist will have
more difficulty collecting EDR data from
the other vehicles involved in the accident
than collecting it from the trucking company’s
vehicle. First, a reconstructionist
normally cannot control whether someone
operates the other vehicles or engages their
engines after an accident. Second, most
states have enacted legislation protecting
the privacy of the owners of the other vehicles.
Some states require a trucking company
to obtain written permission from
the owners of the other vehicles before
the company can use electronic data from
those vehicles.
Attorney
While a trucking company representative
is the general manager of the rapid
response team, the attorney on the team
operates as the coach or the field general.
The attorney has a number of tasks that
need to be carried out from the scene or
from the attorney’s office, including
1. Providing updates to and consulting
with the company representative about
the team’s investigation;
2. Overseeing the flow of information
between the driver, law enforcement,
the media, the adjuster, the reconstructionist,
and any other technical members
of the team;
3. Ensuring that the adjuster and the
reconstructionist carry out the tasks for
which each has responsibility;
4. Arranging for private air travel for team
members if required by the size of the
state or the remoteness of the accident
scene;
5. Ensuring that the vehicle, data, and
other evidence are properly preserved;
6. Interviewing the driver and taking
detailed notes when necessary;
7. Determining whether a criminal defense
attorney should represent the driver;
8. Ensuring that the driver is drug and
alcohol tested if required by the DOT
regulations or by company policy; and
9. Conducting an early evaluation of logbook
compliance.
It is the attorney’s responsibility to make
sure that the investigation is initiated as
rapidly as possible and that no stone is left
unturned.
Company Representative
The company representative—whether a
claims professional, a risk manager, or an
in-house attorney—ultimately will make
the calls on the extent of the accident investigation
and the size and components of
the team. The company representative will
deploy the team by selecting the team’s
attorney and often selecting the team’s field
adjuster and accident reconstructionist.
The representative will also ensure that the
driver knows that he or she can only make
a statement to the attorney, provides the
exact location of the accident to the team,
and provides everyone’s contact information
to other team members.
Criminal Defense Attorney
A trucking company’s driver should receive
representation by a criminal defense attorney
anytime the driver is subject to an
ongoing criminal investigation or has been
arrested after an accident. Because of possible
conflicts of interest between the driver
and the trucking company, the criminal
defense attorney should not work for the
same law firm as the attorney who will
direct the “go” team’s investigation. This
ensures that the attorney will not violate
any ethical rules and will provide unfettered
counsel to the driver.
A trucking company should, in most
cases, pay for a driver’s defense. First, it is
simply the right thing to do and will sig-

nal to the company’s other drivers that the
company will stand behind them in difficult
times. Second, a guilty plea—and in some
jurisdictions a conviction—would likely become
admissible in a subsequent civil trial.
Post-accident Testing
The Code of Federal Regulations specifies
when a driver must submit to post-
accident drug and alcohol testing. 49 C.F.R.
§382.303. Generally speaking, it says that a
driver must have a test when (1) a fatality
occurs, (2) the driver receives a citation for
a moving violation and anyone involved in
the accident immediately receives emergency
room treatment, or (3) the driver
receives a citation for a moving violation
and any vehicle needs towing because of
crash damage. If an accident meets any of
these criteria, a driver must have an alcohol
screen within eight hours of the accident
and a drug screen with 32 hours.
Every member of a rapid response team
should ensure that mandatory testing be
conducted within the time allowed by this
regulation.
Tools of the Trade
Each law firm should maintain an accident-
response kit. These kits are especially useful
when the attorney arrives on the scene
before the accident reconstructionist. The
kit should include things such as a digital
camera, a 100-foot tape measure, a measuring
wheel, safety cones, safety vests, flashlights,
gloves, rain gear, bug repellent, and
water. A good field adjuster will also routinely
have several of these items.
The accident reconstructionist should
typically arrive on the scene in an SUV
loaded with the equipment needed to investigate
any type of accident, including
• Robotic laser and GPS surveying
equipment;
• High-quality cameras and equipment,
including specialty lens for photographing
minute objects such as light bulb
filaments;
• Tools for measuring brakes, including
a portable air pressure decay test
apparatus;
• Equipment, both hardware and software,
for imaging EDR data from commercial
diesel engine control modules
and from passenger vehicle airbags, rollover,
and power- control modules;
• Chalk and marking paint;
• Roll-a-tapes, measuring tapes, and range
poles;
• Biohazard suits;
• Hard hats;
• General tools, including a carpenter’s
level, a hammer, wire cutters, screwdrivers,
vise grips, and surveyor’s nails; and
• The items included in an attorney’s
accident- response kit.
Spoliation and Preservation
of Evidence
Properly preserving evidence—both physical
evidence from the scene of an accident
and “stored” evidence such as the driver’s
qualification file and logs—is essential to
the proper defense of a claim arising from a
catastrophic accident. There are two related
but distinct reasons for taking pains to preserve
all potentially relevant evidence. The
first reason is to ensure that not only is the
evidence available at trial, if necessary, but
also to establish a proper foundation for
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Environmental / Toxic Torts
its admissibility. The second reason is to
avoid the potentially devastating allegation
that someone or some party intentionally
destroyed evidence.
Building a Proper Foundation
One of the fundamental principles underlying
evidence law is that the evidence that
a party seeks to admit is indeed what the
party claims it is. Collecting evidence without
taking care to guarantee its authenticity
may render the evidence inadmissible
at trial.
This becomes particularly important
when dealing with evidence collected from
an accident scene. An accident reconstructionist
or field adjuster must label, tag, log,
and store all of the collected evidence. After
the materials have been collected, chain of
custody documents should be generated that
document when and to whom the evidence
was transferred each time it was moved. If
evidence hasn’t been properly handled and
stored, the opposing party can argue that
Fire / Explosion
Human Factors
HVAC / Plumbing
Occupational Health / Safety
Oil & Gas Drilling
Product Liability
Sports and Recreation
Structural Engineering
Toxicology
Vehicle Engineering
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For The Defense ■ December 2011 ■ 53

Trucking Law
there is no way to know whether the evidence
is authentic. Consider the half-filled
whiskey bottle that an adjuster finds on the
floor of a claimant’s car. If the adjuster photographs
the bottle in place at the scene, and
labels, logs, and stores it in a secure place,
the team’s attorney should have no problems
with its authenticity in a trial. Failing to take
those steps will have the opposite effect.
The consequences of
a judge finding or a jury
believing that spoliation
has occurred are several
orders of magnitude worse
than evidence that a driver
had a single hours- of-
service violation seven
days before an accident.
The American Society for Testing and
Materials (ASTM) has at least two publications,
Standard Practice for Collection and
Preservation of Information and Physical
Items by a Technical Investigator, E1188-
05, and Standard Practice for Examining
and Preparing Items That Are or May
Become Involved in Criminal or Civil Litigation,
E860-07, dealing with collecting and
preserving evidence. A team’s technical
experts should understand the importance
of properly preserving evidence, and it may
be wise to avoid doing business with—at
least in catastrophic cases—experts who
are not familiar with the ASTM standards.
Spoliation of Evidence
Spoliation is defined as the negligent or willful
destruction of evidence by a party to litigation.
Such a loss of evidence has very
serious consequences, consequences that
almost always outweigh any negative ramifications
associated with admission of that
evidence. Assume that a driver falsified his
log book seven days before an accident. A
54 ■ For The Defense ■ December 2011
trucking company may be inclined to strictly
follow the six-month retention period mandated
by 49 C.F.R. §395(k), especially if a
claimant’s attorney hasn’t requested that the
company preserve the evidence. In this situation,
the trucking company could face a
number of negative consequences.
In some jurisdictions spoliation of evidence
can create a separate cause of action
that results in a separate judgment, including
perhaps punitive damages. Other consequences
include the “adverse presumption”
in which a court instructs a jury that the evidence
lost or destroyed must have been detrimental
to the party that lost it. This allows
a jury to speculate wildly about the evils that
the evidence must have contained. Think of
the 18 minutes missing from the Watergate
tapes. A finding of spoliation could also result
in the exclusion of favorable evidence
that an offending party wishes to admit. An
equally harmful consequence is the potential
loss of credibility with the jury that comes
from a destruction of evidence. Many cases
hinge on how a jury perceives the trustworthiness
of the parties, and evidence spoliation
may make it appear that a trucking
company has a guilty conscience. The consequences
of a judge finding or a jury believing
that spoliation has occurred are several orders
of magnitude worse than evidence that
a driver had a single hours- of- service violation
seven days before an accident.
Since a rapid response team’s responsibilities
include collecting and preserving
evidence on the scene, the attorney responsible
for the “go” team should also make it
clear to the rest of the team that they need
to avoid even the appearance that evidence
was destroyed or mishandled. Any
costs or aggravation associated with saving
evidence—even harmful evidence—
are far less than the costs associated with
an adverse court finding on spoliation.
Protecting the Fruits of
the Team’s Labor
As the material gathered by a rapid
response team is relevant to post- accident
litigation, it is subject to discovery unless
shielded by the attorney- client privilege or
the work- product doctrine.
Attorney-Client Privilege
The attorney-client privilege protects from
discovery communications between a cli-
ent and counsel made in the course of legal
representation. This concept has critical
application to a rapid response team’s investigation.
First, and most importantly, a
driver involved in an accident must make
all statements to the team’s attorney, not
to a company representative or a field adjuster.
In most cases a driver ultimately will
be named a codefendant with the trucking
company, and any communication
between the driver and the attorney will receive
attorney- client protection. Protecting
a driver’s statement can prove critical in the
immediate aftermath of an accident. For example,
a driver distraught over a horrific accident
may accept more responsibility just
after the accident than he might when he
later learns, for instance, that the driver of
another vehicle involved was legally drunk.
It is also important that the lawyer serve as
the conduit between the other team members
and the trucking company. While statements
made by team members won’t have attorney-
client protection, funneling communications
through the lawyer will strengthen the argument
that the team’s efforts were undertaken
in anticipation of litigation.
Work-Product Doctrine
The work-product doctrine protects from
discovery documents and other tangible
things prepared by a party, or representative
of a party, in anticipation of litigation. This
doctrine does not protect materials assembled
in the ordinary course of business, or
for non- litigation purposes. So the threshold
determination that a court will make
when deciding whether to protect the fruits
of a team’s efforts is whether an investigation
was conducted in anticipation of litigation
or in the ordinary course of business.
To make that determination a court will
ask if a trucking company would have created
a document regardless of whether litigation
was expected to ensue. For example,
a report prepared by a dispatcher when a
driver calls in an accident, or a report prepared
by a company’s safety department
describing an accident and its causes, will
likely be discoverable because a trucking
company typically prepares these after
every accident and not just those that a
company anticipates will lead to litigation.
In determining the primary motivation
for creating a document a court will con-
Rapid

Trucking Law
To Cooperate or Not…
That Is the Question!
By Brian Del Gatto
and Julia Paridis
Use of response teams,
as well as driver training,
can limit potentially
damaging statements.
Postaccident
Police
Investigations
Consider the following hypothetical scenario. A driver
for your motor carrier client is headed to a rest stop for a
much-needed break. Before moving into the exit-only lane,
he or she checks his or her rear- and side-view mirrors and
doesn’t notice any cars in the lane to his or
her right. As the driver signals to change
lanes and moves right into the exit lane,
the driver’s phone rings, and he or she looks
down for a second to determine who it is.
The driver then looks up just as the rightfront
passenger side of the tractor collides
with the left-back driver side of a four-door
sedan.
The motor carrier’s driver pulls over and
is confronted by someone yelling, “You hit
me!” The person complains of neck and
back pain and calls 911. The ambulance
arrives and places the sedan driver on a
stretcher while he or she lists the various
injuries that he or she has suffered, none
serious or life threatening. When an officer
arrives, he or she takes the sedan driver’s
statement first. The sedan driver claims that
he or she saw the driver of the truck looking
down at something immediately before the
truck veered into the sedan’s lane and hit
the car, and the truck driver never used the
truck’s turn signal. The officer approaches
the motor carrier’s driver for a statement.
The next few minutes are crucial and will
have a profound impact on the ultimate outcome
of this matter for the driver, the motor
carrier, and the insurers of each.
Postaccident Investigations
The policeman on the beat or in the
patrol car makes more decisions and
exercises broader discretion affecting
the daily lives of people every day and
to a greater extent, in many respects,
than a judge will ordinarily exercise in
a week.
—Warren E. Burger, Standards Relating
to the Urban Police Function, American
Bar Association: Advisory Committee
on the Police Function (1972)
People sometimes don’t report minor collisions.
The parties simply exchange insurance
information; however, most collisions
that result in property damage or physical
injuries are reported. And the officer who
arrives on the scene of an accident has a
duty to investigate the circumstances and
to prepare a report. When an officer per-
■ Brian Del Gatto is the managing partner of Wilson Elser’s Stamford, Connecticut, office and a member of
the firm’s executive committee. He practices in both Connecticut and New York, handling cases in both jurisdictions.
He is the practice team leader of the firm’s Transportation & Logistics Practice. Julia Paridis is an associate
in Wilson Elser’s Stamford office and a member of the firm’s Transportation & Logistics Practice.
For The Defense ■ December 2011 ■ 55

Trucking Law
sonally witnesses an accident, his or her
first-hand observations become the basis
for a report. If, however, as is the case with
most collisions, a law enforcement officer
arrives on the scene after an accident has
occurred, he or she must rely on evidence
or information, if any, and the statements
of the parties and witnesses to the collision
in preparing a report.
While motor carriers
should never encourage
drivers to lie to investigating
officers, they should
not voluntarily provide
information that may
imply liability.
Investigating officers use statements
made by the parties during a postaccident
investigation to prepare an accident report
and, in some circumstances, issue citations
to the parties that they’ve deduced are at
fault. In extreme cases, they will arrest a
party to an accident. See Brian Del Gatto
& Michaelle Jean-Pierre, Admissions of
‘Guilt.’ The Boomerang Effect of Traffic Citations,
For The Defense 18 (February 2010)
(discussing the effect of traffic citations in
civil litigation for personal injury in detail).
When police question them, truck drivers
often feel compelled to make a statement
or to volunteer information that is not required.
Generally, motor carriers should
encourage drivers to cooperate in investigations
and to relate their versions of the
events. A police officer will consider all parties’
statements in preparing a report, and if
one driver fails or refuses to provide his or
her side of the story, the officer will not have
a reason to question the other party’s version
of the events or assignment of blame. While
motor carriers should never encourage drivers
to lie to investigating officers, they should
not voluntarily provide information that
may imply liability belongs with them or
their employers. Most states have statutes
56 ■ For The Defense ■ December 2011
that require a party involved in a collision
to cooperate in its investigation, but a driver
should understand the level of cooperation
and the amount of information that the law
requires a driver to provide.
Liability and Police Reports
A fair suspicion may be well worthy of
further investigation, and it may well be
worth the expense and trouble of examining
witnesses to see whether it is well
founded.
—Jessel, M.R., In re Gold Co. (1879),
L. R. 12 C. D. 84
While typically inadmissible as evidence to
establish the cause of an accident, a police
report can set the foundation for a civil
negligence action. When someone initiates
civil litigation, the insurance carrier of the
party allegedly at fault will often begin to
investigate by reviewing the police report;
the plaintiff’s counsel will do the same.
The insurance carrier reviews the police
report to determine whether liability is
questionable and whether it will defend a
claim against its own insured. The plaintiff’s
counsel will use the police report to
formulate arguments and to prepare a litigation
strategy in the prosecution of the
plaintiff’s case. If liability or fault is referenced
in the police report, the case will
escalate into witness interviews and depositions
seeking affirmation of that liability.
The police report will influence the questions
that attorneys ask during the depositions
and later during a trial in large part.
Even when one party to an accident
does not initiate a civil negligence action
against another party, an insurance carrier
will analyze a police report to determine
whether it will seek subrogation from the
carrier of the other party for the payments
made to its insured for damages resulting
from the accident.
Admissibility of Police
Reports in Civil Actions
The admissibility of a police report in a civil
action varies throughout the states and is
governed by the rules of evidence of each
state. In most states, a police accident report
generally is inadmissible on the basis
that the report violates the hearsay rule. Under
Federal Rule of Evidence 801(c) hearsay
is defined as “a statement, other than one
made by the declarant while testifying at
the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Federal
Rule of Evidence 801(d)(2) specifies that
certain statements made against a party to a
particular action are not hearsay and, therefore,
admissible. These statements include
those made by the party, those of which the
party “has manifested an adoption or belief
in their truth, and those made by the party’s
agent concerning a matter within the
scope of his or her agency or employment.
All other statements defined as hearsay
are admissible only when they fall under
one of the enumerated exceptions of Federal
Rules of Evidence 803 and 804. Federal
Rule of Evidence 804 provides hearsay
exceptions if a declarant is not available,
and Federal Rule of Evidence 803 enumerates
exceptions for situations in which a
declarant’s availability is immaterial. The
Federal Rule of Evidence 803 exceptions
include, among others, business records
prepared in the regular course of business
and public records setting forth matters
observed under a duty to report.
In Alabama, for example, a statute expressly
makes police reports inadmissible:
they “shall not be used as evidence in
any trial, civil or criminal, arising out of
an accident.” Alabama courts have found,
however, that this is not an absolute inadmissibility,
and while police accident reports
are deemed inadmissible because they
are hearsay, they can gain admission if they
fall within an applicable hearsay exception.
See Stevens v. Stanford, 766 So. 2d 849, 852
(Ala. Civ. App. 1999).
For instance, a police report can gain
admissibility under the business records
exception when the report consists of the
reporting officer’s personal observations
made while carrying out official police
duties. Holliday v. Hudson Armored Car
& Courier Serv., 301 A.D.2d 392, 396 (N.Y.
App. Div. 2003). However, when information
in a police report is based on statements
or observations of witnesses under
no business duty to make such statements,
the report is generally inadmissible. Id. See
also Yeargans v. Yeargans, 24 A.D.2d 280
(N.Y. App. Div. 1965); Kratz v. Exxon Corp.,
890 S.W.2d 899, 905 (Tex. App. 1994).
Drivers’ Postaccident Duties—
Reporting Statutes
Many states’ reporting statutes require

motorists as well as other persons involved
in accidents to report the accidents to the
police. The information required by such
reporting statutes typically includes identifying
information such as the driver’s
name, address, and driver’s license number,
and the vehicle’s insurance and registration
cards.
For instance, under N.Y. Vehicle and
Traffic Law, §600
any person operating a motor vehicle
who, knowing or having cause to know
that personal injury has been caused
to another person, due to an incident
involving the motor vehicle operated
by such person shall, before leaving the
place where the said personal injury
occurred, stop, exhibit his or her license
and insurance identification card for
such vehicle… and give his or her name,
residence, including street and street
number, insurance carrier and insurance
identification information including
but not limited to the number
and effective dates of said individual’s
insurance policy and license number, to
the injured party, if practical, and also
to a police officer, or in the event that
no police officer is in the vicinity of the
place of said injury, then, he or she shall
report said incident as soon as physically
able to the nearest police station or judicial
officer.
See also VA Code Ann. §46.2-89; Conn.
Gen. Stat. §14-217; Fla. Stat. §316.062.
Under N.Y. Vehicle & Traffic Law §605,
in the event of an accident in which anyone
is killed or injured, or in which property
damage exceeds $1,000, individuals have a
duty to report the accident to the commissioner
in writing within 10 days of the accident.
New York’s motor vehicle accident
form MV-104 requests specific information
regarding the accident, as required by the
commissioner, mainly standard identifying
information, such as the driver’s license
number and the insurance policy number
and vehicle registration number, as well
as information pertaining to the accident,
such as a description of the accident, the
location, the estimated cost and damages
sustained by the vehicles, and the injuries
sustained by all the involved parties.
Form MV-104 also requests information
pertaining to the traffic, weather, and
roadway conditions and, more notably, pre-
accident vehicle action. This section offers
20 choices for selection, including “making
right turn on red” or “making left turn on
red,” two selections that imply a statutory
infraction. Interestingly, the options also
include “making right turn” and “making
left turn,” which carry no such implication.
These reports typically are inadmissible
in a civil action to prove the truth of
the matter asserted; courts may, nonetheless
admit them into evidence for impeachment
purposes. Motor carrier companies
should encourage drivers, therefore, to
prepare these reports cautiously to avoid
selecting options or making statements
that someone may later use against them
in civil actions.
State reporting statutes only uncommonly
require a driver to make a statement
or answer questions regarding causation;
the driver simply is required to identify
him- or herself in the manner mandated
by law. Short of providing the identifying
information required by statute, a driver
normally does not have an obligation to
answer the questions of an investigating
officer or to make a statement regarding
an accident. See State v. Avnayim, 185 A.
2d 295, 298 (Conn. Cir. Ct. 1962).
Obstruction of Justice
When does a driver’s refusal to cooperate
with an investigation amount to an
obstruction of justice? Typically, during an
accident investigation a driver must provide
the investigating officer with identifying
information, but nothing more. An
investigating officer is free to investigate
evidence and to draw conclusions based on
his or her own observations; however, no
one is required to admit culpable conduct,
although simply identifying oneself in certain
accidents may become enough to infer
culpability. Failing to provide or delaying
an investigation by withholding such
information can amount to an obstruction
of justice.
The North Carolina Court of Appeals
has held that investigating an automobile
accident was a duty of a highway patrolman,
and the refusal of a driver to respond
to a trooper’s repeated inquires pertaining
to the accident was sufficient evidence
to allow a jury to find that the driver
obstructed and delayed the trooper in the
performance of his duties. State v. Grav-
eran, 2008 N.C. App. Lexis 15 (N.C. Ct.
App. Jan. 15, 2008). The driver in Graveran
failed to produce his driver’s license and
speak with the officer regarding the accident
despite the officer’s several requests.
The Supreme Court of Washington has
held that a driver’s refusal to produce his
driver’s license during an accident investigation
was sufficient grounds for an arrest
State reporting statutes
only uncommonly require a
driver to make a statement
or answer questions
regarding causation.
for obstructing a law enforcement officer.
Sunnyside v. Wendt, 755 P.2d 847, 852
(Wash. Ct. App. 1988). The court emphasized
that the applicable ordinance did not
require someone to make a statement when
an officer requested one. Insofar as a police
officer’s duty to prepare an accident report
is reasonably aided by production of a driver’s
license, the court reasoned that failure
to produce the license could amount to an
obstruction of a public servant’s discharge
of his or her official duties.
In Avnayim, the Superior Court in Connecticut
reviewed the constitutionality of a
statute proscribing disorderly conduct. 185
A.2d 295, 298 (Conn. Cir. Ct. 1962). The defendant
in Avnayim was involved in an accident,
and during the police investigation
was described as “belligerent and boisterous,
was sarcastic and evasive in his answer,
kept shouting ‘None of your business;
you are here only to take down numbers; I
can say what I want.’” The court held that
although the defendant was not obliged to
answer the questions asked by the police
and the police legally could not arrest the
defendant for refusing to do so, his belligerent
and boisterous conduct, apart from
his right to refuse to answer questions and
apart from his right to protest his innocence,
“create[d] a commotion or disturbance
and thus render[ed] him liable to
arrest for disorderly conduct.” Id. at 298.
For The Defense ■ December 2011 ■ 57

Trucking Law
A driver’s refusal to provide identifying
information required by a statute is actionable;
the driver’s refusal to provide a statement
or answer questions usually is not.
The Fifth Amendment—
Criminal Versus Civil Liability
If an accident has criminal implications,
the tone of the investigation will change
When an accident
threatens criminal
prosecution, the case
will invoke constitutional
protections, such as the
U.S. Constitution’s Fifth
Amendment privilege
against self- incrimination.
accordingly. Cases involving fatalities or
intoxicated drivers, for example, typically
will lead to criminal charges and arrests.
The investigation of such accidents will
become more involved. For example, under
N.Y. Vehicle & Traffic Law §603-a, when
an accident results in a serious physical
injury or death to a person, the police officer’s
investigation must cover the following:
(1) the facts and circumstances of the
accident; (2) the type or types of vehicles
involved; (3) whether pedestrians were
involved; (4) the contributing factor or factors;
(5) whether the investigating officer
can determine if a violation or violations
occurred, and, if so, the specific provisions
that were violated and by whom; and
(6) the cause of the accident, if the investigator
can determine the cause.
Furthermore, when an accident threatens
criminal prosecution, the case will
invoke constitutional protections, such as
the U.S. Constitution’s Fifth Amendment
privilege against self- incrimination. An
officer is required under the Fifth Amendment
to give the warnings required by
Miranda v. Arizona, 384 U.S. 436 (1966), to
58 ■ For The Defense ■ December 2011
a suspect before the officer asks questions
that may elicit an incriminating response.
In Miranda, the Supreme Court held that
the Fifth Amendment privilege against self-
incrimination prohibits admitting into evidence
statements made by a suspect during
“custodial interrogation” without first
warning someone of the right against self-
incrimination, now commonly referred to
as the “Miranda warning.” Custodial interrogation
is defined as questioning “initiated
by law enforcement officers after a
person was been taken into custody.” Id.
at 444. And “custody” can take place anywhere,
including on a roadway.
The Miranda warning was meant to preserve
the privilege during “incommunicado
interrogation of individuals in a police-
dominated atmosphere,” said to generate
“inherently compelling pressures which
work to undermine the individual’s will to
resist and to compel him to speak where he
would not otherwise do so freely.” Id. at 445
& 467. The Fifth Amendment is not intended
to be a refuge for those facing civil liability,
according to People v. Kroncke, 70 Cal. App.
4th 1535, 1557 (Cal. Ct. App. 1999).
In California v. Byers, 402 U.S. 424, 427
(U.S. 1971), the United States Supreme
Court reviewed California’s “hit-and-run”
statute to determine whether it infringed
on the constitutional privilege against
compulsory self- incrimination. Similar
to many states, California’s reporting statute
requires a motorist involved in an accident
to stop at the scene of the accident and
give his or her name and address to the
other motorists. The respondent in Byers
was charged with passing another vehicle
without maintaining a safe distance
and with failing to stop and identify himself
as required by California law. Focusing
on the “[t]en sion between the State’s
demand for disclosure and the protection
of the right against self- incrimination”
and “balancing the public need on the one
hand, and the individual claim to constitutional
protections on the other,” the U.S.
Supreme Court found there was no conflict
between the hit-and-run statute and
the self- incrimination privilege. Id. at 427.
The Court further stated that the California
statute was “directed at the public at large”
and the group subject to the statute was
neither “highly selective” nor “inherently
suspect of criminal activities.” Id. 429.
In New York, it is a misdemeanor to fail
to comply with N.Y. Vehicle & Traffic Law
§600, which requires “every motor vehicle
operator, whether culpable or not, involved
in an accident causing property damage or
personal injury, to remain at the scene of
the accident, exhibit his license, and identify
himself to the party sustaining damage
and, in the case of personal injury, to a
police officer.” People v. Samuel, 29 N.Y.2d
252, 258 (N.Y. 1971). Following the logic in
Byers, the court in Samuel concluded that
“the incidental and limited risk of inculpation
by identification and report of motor
vehicle operators whose conduct involves,
or is likely to involve, criminal accusations
is insufficient to inhibit the regulatory
power by the interposition of the privilege
against self[-]incrimination.” Id. at 257.
Conclusion
Weighest thy words before thou givest
them breath.
—Othello, act 3, scene 3,
William Shakespeare
While a police report and any citations
issued as a result of an investigation typically
are typically inadmissible in a civil
negligence action to establish culpability,
attorneys may offer them as evidence in
certain situations. Even when a court does
not admit a police report into evidence in
trials, the statements made by the parties
immediately following the accident can
have a profound impact on the outcome of
a case. It would, therefore, benefit motor
carriers to conduct seminars to train their
drivers regarding postaccident investigation
requirements. Drivers should know
what information generally they must produce
under the reporting statutes of the
states in which they travel. As demonstrated
above, this information typically
includes identifying information such as
the driver’s license and the vehicle’s insurance
and registration cards. Motor carriers
should also encourage drivers to provide
their version of the events; however, they
should be advised to use discretion when
making such statements.
While it is true that drivers have the statutory
duty to provide information to law
enforcement officers, emphasize to drivers
that it is uncommon for a reporting statute
to require a party to make a statement or
Postaccid

Trucking Law
An Essential Element
of Risk Management
By Stockard R. Hickey III
and Paula J. Gabier, Ph.D.
Sensationalized reports
of accidents and reckless
behavior have led to a
public perception that
the industry is far less
safe than it really is.
Battling Bias
Against
Truckers
Trucks are ubiquitous. Yet nothing else in the United
States so integral to everyday life is so directly inaccessible
to the general public. Although every American benefits
from the world’s best system for transporting goods via
highway, relatively few people actively interact
with that system in any way except when
they become stuck in traffic behind a tractor-
trailer. Most Americans base their opinions
of the trucking industry on sensationalized
news reports of horrendous and tragic
crashes. In popularity polls, truckers do rank
ahead of politicians, used car salesmen, and
lawyers, but they still appear way down on
the list. Of course, this is unfair and just plain
wrong. The trucking business is populated by
smart, honest, hard- working people who deserve
to be held in the highest regard.
Claims managers and defense attorneys
should examine and attempt to minimize
the effect of bias against the trucking business
in four ways:
1. Take bias into account when evaluating
a claim for settlement purposes.
2. Proactively undertake a post-accident
company plan of action.
3. Craft your trial preparation and defense
story to counter the bias.
4. Work to educate the public and attenuate
the bias at every opportunity.
The Effect of Bias on Settlement Value
Because the vast majority of liability claims
are resolved via settlement, accurately evaluating
claims is critically important. Experienced
claims people and attorneys know
there are no magic formulas or shortcuts
that will determine the correct dollar
value on a claim. Every claim is unique
and its own facts and circumstances drive
its value. Those facts and circumstances
include the characteristics of the venue,
the specifics of the accident, the characteristics
of your clients, and the characteristics
of the claimant.
Know the Venue
Research into the demographics, lifestyles,
recent events, and economic state of the
county or district from which your jurors
are drawn may offer you an idea of
■ Stockard R. Hickey III is a member of the law firm Gwin, Steinmetz and Baird PLLC in Louisville, Kentucky.
He represents trucking companies, insurers, third-party administrators and individuals in defense of
a variety of claims. Paula J. Gabier, Ph.D., of Gabier Consulting in New Bern, North Carolina, teaches effective
ways to educate jurors and assists attorneys and corporations in developing successful, research- based
trial themes. She has studied and learned from thousands of actual and surrogate jurors nationwide and has
assisted clients in hundreds of cases, large and small.
For The Defense ■ December 2011 ■ 59

Trucking Law
the likely attitudes of your jurors. High
unemployment, economic hardship, and
excessive reliance on government subsidies
all spell trouble for civil defendants
in general and trucking industry defendants
especially. While of course, there are
exceptions, individuals who have recently
suffered significant health issues, economic
setbacks, or feel little control over their
It is no coincidence that
some of the worst venues
for trucking liability claims
have nothing in common
except for having highvolume
crossroads and
a lot of truck traffic.
lives generally would be more inclined to
favor an injured plaintiff as opposed to a
truck driver employed with a trucking corporation.
Our message of hard- working
people who perform an essential service
to society plays much better to jurors who
value personal productivity versus those
who don’t.
If the claim’s exposure justifies the cost
of hiring a litigation consultant, in-depth
telephonic polling will identify how much
bias exists against the trucking industry in
your venue and can also ascertain which
specific juror attitudes are related to verdict
preference in your case. Such findings
will help you identify which jurors to
strike peremptorily should you take the
case to trial.
Research into past jury verdicts in a
venue will tell you not only whether damages
awards tend to be conservative or liberal,
but it may also differentiate between
truck accidents and other motor vehicle
accidents. If the sample size is large
enough, a pattern of bias or of impartiality
may appear.
Look at a map. If major interstate highways
crisscross a venue or if it is a manufacturing
hub, the high volume of truck
60 ■ For The Defense ■ December 2011
traffic more likely than not will affect the
attitudes of your jurors. It is no coincidence
that some of the worst venues for trucking
liability claims have nothing in common
except for having high- volume crossroads
and a lot of truck traffic.
Consider the Circumstances
of Your Accident
When an accident happens between a
driver of a Toyota Camry and a driver of
a Ford Taurus, it does not create a perception
of unfairness or illicit irrational
fears. Jurors probably would not identify
with either driver to an extent that would
prejudice the other. In contrast, a collision
between a Chevrolet Malibu and a Freightliner
Cascadia just doesn’t seem fair to the
unfortunate occupants of the Chevy. Jurors
are more likely to identify and sympathize
with the people in the car than with
the driver of the truck.
Some motor vehicle accidents occur
regardless of the size of the vehicles
involved. However, in some accidents, the
relative size of the vehicles may appear to
be a causative factor. For example, with
a lane-change accident in which the rear
trailer tandems struck a small car, the fact
that the truck driver him- or herself was
about 60 feet away from the area of contact
may have affected the accident. Similarly, a
3,000-pound car can maneuver much better
than a 78,000-pound tanker and a judge
and jury will probably hold the truck driver
to a higher standard than the car driver.
If admissible evidence suggests that your
truck driver was not in compliance with
hours of service regulations, he or she had
not attended mandatory safety and training
sessions, the trucking company had
inadequate safety records or safety programs,
or the truck’s brakes were out of
adjustment, the door to unfair bias against
your trucking company stands wide open.
Consider the Characteristics of
Your Company and Driver
Companies such as UPS or FedEx have a
distinct advantage in litigation over companies
that don’t have a direct and positive
impact on the public. As a general
rule, everyone looks forward to receiving a
package, whether it is a gift or something
ordered online. The companies that deliver
those packages have developed images that
invoke positive feelings in jury pools. Those
positive feelings are likely to carry over into
a courtroom. In contrast, a waste hauler
or an oil company is not likely to invoke
such positive feelings in potential jurors,
regardless of its actual value to society or
safety record. All else being equal, a company
with a good reputation for safety,
responsible management, and credible
corporate representatives will probably
fare better than a company without those
characteristics.
Truck drivers are, at least for the present,
human beings. Each has his or her own
unique set of characteristics. Some characteristics
are more appealing than others.
It is critically important to meet with
your driver face-to-face early. Is he or she
likeable? Defensive? What are his or her
strengths and weaknesses as a party to
a lawsuit? Can you significantly improve
the driver’s testimony and demeanor with
preparation?
Consider the Characteristics
of Your Claimant
It is not uncommon for jurors in close
cases to make a decision based on liking
one party more than the other or viewing
one party as much more deserving than the
other. If a plaintiff makes a good appearance
and seems credible, or if he or she
is an “eggshell plaintiff,” jurors are more
likely to identify or sympathize with him
or her, and you must take that into account
when evaluating a case. If a plaintiff lacks
credibility, or if jurors could perceive him
or her as undeserving of a significant damages
award, you should adjust your evaluation
of his or her claim accordingly.
Be Proactive with a Post-accident
Company Plan of Action
Most trucking companies and insurers have
well- established procedures for responding
to major accidents. The primary goals of
those procedures are to obtain evaluation
information and to preserve the evidence
necessary to defend a claim. An immediate
accident response also presents an opportunity
to minimize the negative bias associated
with the trucking industry in general
and the company in particular. An effective
post- accident response plan should include
sensitive, personal contact with those affected
by the accident. The response should

demonstrate the trucking company’s moral
principles and compassion for all injured
parties, and, if appropriate, to bystanders,
law enforcement, media, and the public.
In conjunction with the investigative
aspect of an accident response plan, a
trucking company should train one or
more corporate representatives to respond
to the needs of potential claimants. When
an accident meets certain pre- defined criteria,
a representative should arrive at the
accident site as soon as possible to offer
assistance, with no strings attached, to
those affected by an accident. A trucking
company should help with immediate
needs such as transportation, food, clothing,
hotel, funeral costs, and grief counseling,
among other needs. Regardless of a
company’s liability, a compassionate accident
response shows injured parties and
their families that the company cares about
their well- being. This can have a very positive
effect on settlement negotiations, and
it may even head off a claim entirely. Often,
you can help a company avoid the anger
that triggers litigation. Even if an accident
later turns into a lawsuit and reaches the
trial stage, jurors will see a company with
a human face and compassion.
Dealing with Bias During Trial
Our system of justice relies on fairness
and impartiality to protect the rights of
our citizens. For the past two centuries, we
have frequently given lip service to reducing
the effects of prejudice and ensuring
that the people who appear in our
courts are judged solely by their actions.
We have made strides to eliminate race,
gender, religion, politics, and wealth as factors
in courtroom decisions. However, neither
trucking companies nor truck drivers
qualify as a “suspect class,” and nothing in
the Bill of Rights prevents judges or jurors
from openly or even worse, secretly, judging
them with hostility.
Armed with awareness that bias does
exist and that your trucking company
likely will encounter it, you can take a
number of steps to mitigate or attenuate
unwarranted prejudice in a civil trial.
Use Pretrial Motions
Depending on local rules of practice and
evidence, pretrial motions can sometimes
effectively nullify bias by asking a court to
prohibit any reference to irrelevant information
such as which company a truck
driver worked for at the time of an accident
and which company will indemnify
the driver for damages assessed against
him or her. Usually, a trucking company’s
vicarious liability is not in dispute and is
not relevant to liability or damages issues.
In a fair world, a lawsuit would involve Person
vs. Person, with the vicarious liability
to be fixed as a matter of law.
Use motions in limine to ask the court
to prohibit references to facts that have
nothing to do with the issues of liability or
damages in that particular case. Whether
a truck driver had a DUI twelve years ago
and whether a trucking company had a
higher than average out of service rate
three years ago are no more relevant to liability
than the fact that crashes more frequently
involve red cars than blue cars.
One of the basic rules of evidence in every
jurisdiction is that irrelevant evidence is
not admissible.
Know Your Audience by
Doing Jury Research
If you have the financial resources to conduct
research with juror eligible surrogates,
you can use the findings to fine-tune your
trial themes and to craft your best trial
“story.” Jurors come to a courthouse with
attitudes regarding trucking companies
and truck drivers, and jury research, when
done properly, will identify those attitudes.
It will also identify which arguments work
and which don’t and which values, such as
justice, hard work, and fairness, are most
important to jurors. With the benefit of
research, counsel for the defense can create
a compelling trial story that takes into
consideration jurors’ preexisting attitudes
and incorporates the values most important
to them.
In addition, if your goal is to settle a case,
ask your trial consultant to put together a
mediation report of the jury research findings.
During mediation or direct negotiation,
you can use that report to make
better arguments about the strengths,
weaknesses, and the relative value of a
case with a claimant and his or her lawyer.
Select Your Trial Representative Wisely
Post-trial juror interviews have established
a strong correlation between ratings of a
corporate representative and verdict preference.
Jurors who have positive impressions
of a corporate witness are usually
pro- defense in their verdict preference.
Those with negative reactions to a corporate
representative often find in favor of
the plaintiff(s). While we cannot establish
that in all cases a corporate representative
caused a juror to vote one way or another,
certainly a corporate representative can
make or break your case.
Jurors expect a trucking company representative
to be very knowledgeable about
the company’s hiring practices, safety
records, ongoing safety programs, and its
drivers’ history on and off the road. Jurors
also expect corporate witnesses to be likeable
and to deliver direct answers without
being evasive or defensive. In determining
your trial representative, ensure you have
someone who is willing to do the homework
to learn about the company’s history
and its practices inside- and- out. Also
ensure you have someone who, at least
with preparation, can retain a consistent
and appropriate demeanor even during the
most difficult cross- examination.
Use Voir Dire to Identify and Mitigate Bias
In most courts, the trial lawyer’s only
opportunity to speak directly with jurors
comes during jury selection. In any trial,
the most important goals of voir dire are
to learn about the prospective jurors and
to determine which jurors are least able
to judge the case objectively. In a trucking
case, questions should focus on identifying
jurors who hold strong negative
attitudes toward truck drivers, trucking
companies, and corporations in general.
Questions should also identify individuals
who strongly oppose caps on damages
in lawsuits or who are excessively sympathetic
toward injured people. Although you
want to encourage jurors to respond freely
with their opinions to all voir dire questions,
because attitude questions have an
implied “right” or “wrong” answer, you
must even more importantly create an
environment in which jurors feel at ease
to tell you how they really feel when you
question them about their attitudes. The
best way to do this is by asking your questions
in a way that presumes bias exists and
by remembering that simple word choices
often do make a huge difference in encour-
For The Defense ■ December 2011 ■ 61

Trucking Law
aging juror responsiveness. Let’s take attitudes
toward corporations as an example.
Suppose you ask, “Does anyone here have a
negative view of corporations?” Jurors who
have negative views may be less likely to
raise their hands since the question implies
someone only rarely would have such an
opinion. What about the following question:
“By a show of hands, how many of
Jurors are more
likely to identify and
sympathize with the people
in the car than with the
driver of the truck.
you have a negative view of corporations?”
Here, the question suggests to prospective
jurors that people commonly have these
negative views, and you, the juror, don’t
have to feel shy telling us that you do, too.
Here are some additional questions you
should consider asking in a trucking case:
• I represent Mr. [driver] and [trucking
company], and I recognize that many
people have negative opinions of truck
drivers or trucking companies because
of the experiences they have had or
because of what they have seen in media
reports.
• How many of you have ever been
intimidated or scared by a truck on
the road?
• How many of you, by a show of hands,
have ever witnessed or been involved
in an accident with a truck?
• In an accident lawsuit involving an individual
and a truck driver, how many of
you would start out in favor of the individual,
even slightly, before hearing the
evidence in the case? It is okay if you feel
this way, but I just need to know. By a
show of hands, how many of you would
be inclined to start a bit in favor of the
individual driver?
• This case involves an individual who is
alleging that he or she suffered injury in
a vehicular accident with a truck driver.
Some people believe truck drivers are
62 ■ For The Defense ■ December 2011
professional drivers and because they
are professionals, they should be held
to higher driving standards than a regular
driver. Others believe truck drivers
are only human and should be held to
the same standards as regular automobile
drivers. What I would like to know
is how many of you feel the first way—
that truck drivers are professionals and
therefore should be held to higher driving
standards? And how many of you
feel strongly about that?
After you have the information necessary
to exercise your peremptory strikes
effectively, and to make a strong case for
challenges for cause, you can also inculcate
your jurors against bias and obtain their
public commitment not to reach conclusions
about your case until they hear all the
evidence. You should also encourage jurors
to call attention to bias in the deliberation
room when other jurors discuss their own
negative experiences with truckers or make
generalizations about trucking companies.
The following comments and questions are
examples of ways to indoctrinate jurors
against bias during voir dire. Please note
that some courts may preclude these questions,
which are rhetorical in nature and
are not designed to elicit candid responses
from the jurors.
• [Trucking company] is a company that
is responsible for delivering freight to
stores, manufacturing plants and anyone
else who needs something transported
from one place to another.
• Will any of you hold your experiences
with other trucks on other days
against my clients in this case today?
• Mr. [driver] is a professional truck
driver who was driving a truck to make
a pickup on [date].
• Mr. [driver] lives in [place]. Does anyone
here know him?
• Trucking companies like [trucking company]
are made up of people, and they
deserve the same justice that we would
give to an individual. In fact, the law
will instruct you that you must treat
individuals and corporations the same.
Will everyone here be able to do that—
to treat [trucking company] the same
as you would an individual, such as
[plaintiff]?
• In the jury deliberation room, your fellow
jurors may bring up their own expe-
riences with big trucks or truck drivers
they have encountered on the road. Will
you be able to say to your fellow jurors
“we are only supposed to be basing our
decision on the evidence in this case—
not our personal experiences?”
Educating the Public to Reduce Bias
The trucking industry and its advocates
have taken steps to spread the word on
how important trucks are to our country
and how professional truckers are the
safest group of drivers on our roads. The
American Trucking Association’s “Good
Things: Trucks Bring It” program is a great
start, but much more is needed. Drivers
who reach safety milestones should be
lauded publicly, not just internally. Anecdotal
evidence of trucking’s positive contributions
to society is abundant but poorly
reported. Everyone in the trucking industry,
as well as everyone closely associated
with the trucking industry, should actively
seek opportunities to talk and write about
trucking’s overall safety record and the
high standards to which commercial drivers
are held.
If those of us who depend on the trucking
industry to feed our families don’t
advocate for its continued vitality and survival,
then no one else will.
Conclusion
Trucking companies and truck drivers are
pariahs in the courtroom. The general public
perceives the industry as far less safe
than it really is. The media sensationalizes
reports of catastrophic accidents while
ignoring countless everyday acts of courtesy
and safety. Stories of truck drivers’
rude and reckless behavior are much more
likely to be repeated than stories of their
kindness and courtesy. This emboldens
people who interact with trucks to assert
liability claims against trucking companies
and truck drivers, who start with
two strikes against them in defending liability
claims. Those who manage, defend,
and resolve those claims must be properly
prepared and equipped to evaluate and
counteract bias against truckers. How the
trucking industry and its lawyers deal with
bias, both in the short term and in the long
term, is an essential element of successful
liability risk management.

Trucking Law
Welcome to the
United States
By Jenifer L. Kienle
and William B. Springer
Time will only tell
how many Mexican
companies will have the
resources to participate
and whether those that
do will demonstrate
more than simply being
“fit, willing, and able.”
Mexico as a Partner
Under the 2011
Trucking MOU
On March 3, 2011, the White House declared the end of
an impasse between Mexico and the United States about
Mexican trucking activities in the United States. After a
meeting between Mexican President Felipe Calderon and
U.S. President Barack Obama in Washington,
D.C., the White House announced that
the United States would lift the decades-
long ban prohibiting Mexican trucking
companies from operating within the
United States on the condition that Mexico
dropped tariffs on $2.4 billion worth of U.S.
pork, cheese, corn, and fruit imports. See
Mark Drajem & Jens Erik Gould, Obama,
Calderon Lift U.S. Ban on Mexican Trucks,
Retaliatory Quotas, Bloomberg (Mar. 3,
2011), http://www.bloomberg.com/news/2011-
03-03/mexico-u-s-are-said-to-reach-agreementon-end-to-border-trucking-dispute.html.
The
dispute between the two countries had
been active for over 15 years, waxing and
waning in intensity due to various political
and economic developments but always
present. The dispute had been particularly
rankling to Mexico, which felt that the dispute
represented a blatant refusal on the
part of the United States to honor parts
of the North American Free Trade Agreement
(NAFTA), as evidenced by the sever-
ity of the retaliatory tariffs. The end of the
impasse, however, may signify the conclusion
of over 15 years of often bitter interactions
with our southern neighbors and
heated political wrangling at home related
to cross- border trucking.
After the announcement in March, a subsequent
agreement became final on July 6,
2011, when the Department of Transportation
and the Secretaria de Comunicaciones
y Transportes of the United Mexican States
released a Memorandum of Understanding
(MOU) regarding cross- border trucking
services, which will allow Mexican trucking
companies to engage in cross- border shipping.
While this may not have the appearance
of a momentous development to those
not well versed in the contentious history
leading up to the 2011 MOU, the realization
of relatively unfettered although closely regulated
cross- border trucking between the
United States and Mexico would indeed represent
a significant change in United States-
Mexico border policy.
■ Jenifer L. Kienle is a partner in the Orange County, California, office of Lewis Brisbois Bisgaard & Smith, a
national firm with offices in 17 cities. Ms. Kienle defends personal injury and property damage cases related
to transportation and construction and is an OSHA appeal specialist who is active in DRI, TIDA, and the
Associated Builders and Contractors. William B. Springer is an associate in Ms. Kienle’s Transportation and
General Liability group and is experienced in litigating complex cases.
For The Defense ■ December 2011 ■ 63

Trucking Law
Cross-border trucking has been a long
time coming. NAFTA contemplated such
provisions at its inception, which stalled
due to various political and economic considerations.
The historical dialogue and
economic and political pressures that led
to the 2011 MOU extended over three U.S.
presidential administrations and, as discussed
below, until recently the United
The threat of terrorism
weighed heavily on many
Americans’ minds when it
came to border security…
and rushing to open the
border in any respect
became less of a priority.
States had avoided dealing with them
despite tariffs, litigation, and intense international
pressure.
How NAFTA Derailed
President George H.W. Bush spearheaded
NAFTA, a trilateral free-trade agreement
between the United States, Canada, and
Mexico. Discussions in the early 1990s
among the participating countries about
eliminating tariffs on products traded
between them ultimately led to NAFTA,
which the presidents of the countries
signed on December 17, 1992. The ambitious
agreement took effect on January 1,
1994, and it scheduled full implementation
for January 1, 2008. The combined gross
domestic product of the three treaty signatories
made the area it governed the largest
free-trade area in the world.
Since its inception, NAFTA has had
a real and incontrovertible effect on the
member nations’ economies. From 1993
to 2007, trade among the NAFTA nations
more than tripled, from $297 billion to
$930 billion. Additionally, business investment
in the United States rose by 117 percent
in that same period, compared with a
45 percent increase between 1979 and 1993.
64 ■ For The Defense ■ December 2011
And U.S. output manufacturing rose by 58
percent between 1993 and 2006 compared
with 42 percent between 1980 and 1993.
Manufacturing exports reached an all-time
high in 2007 with a value of $982 billion.
See Office of the U.S. Trade Representative,
Exec. Office of the President, NAFTA
Facts, NAFTA—Myth vs. Fact (Mar. 29,
2008), http://www.ustr.gov/sites/default/files/
NAFTA-Myth-versus-Fact.pdf.
NAFTA was contemplated at a time
when the United States’ policy toward
Mexican trucking was in flux. The Motor
Carrier Act of 1980 was among the first legislative
acts to open the door to Mexican
trucking companies, offering a relatively
pain-free process for gaining permission
to engage in cross- border trucking. Under
the Motor Carrier Act of 1980, trucking
companies, including Mexican carriers,
were permitted to engage in cross- border
trucking as long as they were “fit, willing,
and able to provide the transportation.” See
Motor Carrier Act of 1935, 49 U.S.C. §10101.
In 1982, however, the United States
closed the brief window of opportunity
created by the Motor Carrier Act of 1980 for
enterprising Mexican trucking companies
to engage in cross- border trucking. The
United States placed a moratorium on new
licenses and permits to Mexican trucking
companies as part of the Bus Regulatory
Reform Act (BRRA) of 1982. While the
BRRA did not single out Mexican trucking
companies specifically, it may as well have
because it placed a moratorium on issuing
permits or certificates to motor carriers
domiciled in, or owned or controlled by,
a contiguous foreign country, encompassing
both Canada and Mexico. The president,
however, had the authority to lift
the moratorium in whole or in part for
any country. See Mem. on Bus Regulatory
Reform Act of 1982, Public Papers of Ronald
Regan (Sept. 20, 1982), http://www. reagan.
utexas.edu/archives/speeches/1982/92082c.htm.
After signing the BRRA into law, on September
20, 1982, President Ronald Reagan
lifted the moratorium against Canada.
Id. Mexico had no such luck, and the moratorium
persisted. The BRRA colored the
United States- Mexico trade environment,
and ultimately the NAFTA discussions that
began in earnest in the early 1990s.
Upon its implementation on January 1,
1994, NAFTA had sweeping effects on the
tariffs applicable to Mexican imports and
exports. NAFTA effectively eliminated tariffs
on more than one-half of U.S. imports
from Mexico and more than one-third of
U.S. exports to Mexico, and it set a timetable
of 10 years for the full implementation
of the agreement and 15 years for
certain U.S. agricultural exports. See http://
en.wikipedia.org/wiki/Nafta#Provisions.
Limited Cross-Border Trucking Stalls
NAFTA also included express cross- border
trucking provisions intended to allow each
participating nation eventually to ship
products across the respective borders of
the other participating nations. The agreement
adopted the following guidelines to
prevent signatories from favoring domestic
providers:
Article 1202: National Treatment
1. Each Party shall accord to service
providers of another Party treatment
no less favorable than that it
accords, in like circumstances, to its
own service providers. North American
Free Trade Agreement Arbitral
Panel, In the Matter of Cross- Border
Trucking Services, Secretariat File
No. USA-MEX-98-2008-01, Final
Report of Panel, at 64 (Feb. 6, 2001),
http://www.worldtradelaw.net/nafta20/
truckingservices.pdf.
Article 1203: Most-Favored Nation
Treatment
Each party shall accord to service
providers of another Party treatment
no less favorable than it accords, in
like circumstances, to service providers
of any other Party or of a non-
Party. Id.
Article 1104: Standard of Treatment
Each Party shall accord to investors
of another Party… the better of the
treatment required by Articles 1202
and 1203. Id. at 75.
December 18, 1995, was targeted as the
date when the U.S. border would officially
open to allow Mexican carriers to conduct
limited shipping into California, Arizona,
New Mexico, and Texas. Phase two,
to begin on January 1, 2000, was intended
to abolish state-based restrictions and open
the border to Mexican carriers to engage
in cross- border trucking anywhere in the
United States. See North American Free
Trade Agreement, Annex I: Reservations

for Existing Measures and Liberalization
Commitments, Schedule of the United
States.
As these NAFTA deadlines loomed, the
United States relied on border security and
public safety concerns to support the decision
to extend the moratorium under the
BRRA, thus delaying implementing agreed
upon commitments to liberalize cross-
border trucking markets.
The United States Violates NAFTA
As the first date for border opening under
NAFTA approached in 1995, President Bill
Clinton extended the BRRA moratorium,
which prohibited Mexican truckers from
traveling more than 20 miles into U.S.
territory. In 1998, in response, Mexico
formally requested that a NAFTA arbitration
panel investigate and opine on the
impact of the U.S. failure to lift its moratorium
on the processing of applications by
Mexican- owned trucking firms for authority
to operate within the United States. On
February 6, 2001, the North American Free
Trade Agreement Arbitral Panel established
under Chapter Twenty of NAFTA
issued a final order, finding that the U.S.
had breached Article 1202 and 1203, as well
as the liberalization guidelines in Annex
I of NAFTA. North American Free Trade
Agreement Arbitral Panel, supra, at 81.
In addition, the panel specifically rejected
the United States’ assertion that Mexico’s
inadequate trucking regulations warranted
withholding permits. Id.
Although the ruling opened the door
for Mexico to impose new tariffs against
the United States, Mexico opted to continue
informal and diplomatic discussions
with the Bush administration, and
it did not take retaliatory actions. Later
that year, September 11, 2001, shook the
United States to its core, and the United
States tightened border security, making
liberalizing granting cross- border trucking
permits politically undesirable to pursue
given the increased focus on securing
borders. For years to come, the threat of
terrorism weighed heavily on many Americans’
minds when it came to border security,
and indeed, it continues to do so today
for many, and rushing to open the border in
any respect became less of a priority.
Mexico remained subject to the moratorium
until September 2008, when a
pilot program led to as many as 100 Mexican
trucking companies hauling cargo
across the U.S. border. Following the historic
political tug of war that comes part
and parcel with cross- border trucking,
the United States again quickly shut Mexico’s
window when in 2009, a spending
bill passed in Congress that cancelled the
program. This time, Mexico responded
with the retaliatory tariffs that became a
focus of the recent talks between President
Obama and President Calderon, culminating
in the 2011 MOU. See Drajem &
Gould, supra. Specifically, Mexico imposed
retaliatory tariffs on 89 categories of U.S.
exports totaling approximately $2.4 billion
in exports from 40 states. Organization
of American States, State’s Foreign Trade
Information System, Mexico, http://www.
sice.oas.org/ctyindex/USA/USTR_Reports/2011/
NTE/MEX_e.pdf. Against the backdrop of all
of this history the United States and Mexico
once again came to the bargaining
table to try to reach some common ground
regarding cross- border trucking. Perhaps
realizing that such an agreement could be
mutually beneficial, the two countries soon
executed the 2011 MOU, and the United
States renewed its commitment to cross-
border shipping.
Picking Up Where NAFTA Left Off
The inefficiency created by the 1982 moratorium
on licensing Mexican trucking
companies extended by President Clinton
drove the 2011 MOU negotiations. Due to
the licensing moratorium a Mexican carrier
transported goods to the U.S. border
by a Mexican carrier, delivered them to
a temporary short-haul provider to cross
the border, and then an American trucking
company picked them up to haul them
to a final destination. Such inefficiency and
expense drove the Mexican government to
press diplomatically for a new understanding,
while U.S. safety concerns ultimately
prevailed in the new pilot program created
under the 2011 MOU.
The 1994 MOU, as drafted by the U.S./
Mexico Joint Working Committee on
Transportation Planning, was intended
to address many of the most contentious
issues facing Mexico- United States cross-
border trucking. As stated in Article I of
the 1994 MOU, “The Parties intend to cooperate
on land transportation planning and
to establish methods and procedures to
analyze current and future transportation
infrastructure needs to facilitate efficient,
safe and economical cross- border transportation
movements.” See U.S./Mexico
Joint Working Comm. on Transp. Planning
1994 Mem. of Understanding, Article
1, http://www.borderplanning.fhwa.dot.gov/
mou1994.asp.
The 2011 MOU establishes
a pilot program… which
would allow Mexican
trucking companies to
engage in cross- border
shipping, provided that
they met the stringent
requirements of the MOU.
Generally, however, the 2011 MOU establishes
a pilot program of up to three years,
as determined by agreement of the United
States and Mexico, which would allow
Mexican trucking companies to engage
in cross- border shipping, provided that
they met the stringent requirements of the
MOU. See Mem. of Understanding Between
the U.S. Dep’t of Transp. & the Secretaria
de Comunicaciones y Transportes of the
United Mexican States on Int’l Freight
Cross Border Trucking Services, at Article
2, “Scope,” (July 6, 2011), http://www.fmcsa.
dot.gov/documents/Mexican_MOU_Eng.pdf.
Annex 1 of the 2011 MOU outlines the
requirements that a Mexican trucking
company must meet to qualify for a permit
to engage in cross- border shipping:
1. All Mexican- domiciled motor carriers
that wish to participate in
international freight cross- border
trucking services in the U.S. are to
complete the application OP-1 MX.
The application, and accompanying
application fee, is to be submitted to
FMCSA. Motor carriers who partic-
Mexico, continued on page 84
For The Defense ■ December 2011 ■ 65

Trucking Law
Wake-Up Call for
Carrier and Driver
By Marshal M. Pitchford
and Christopher E. Cotter
even when proven the
legal cause of an accident,
fatigued driving may
not go beyond mere
negligent conduct to
the more egregious
culpable conduct.
66 ■ For The Defense ■ December 2011
Falling Asleep
Can Result in
Punitive Damages
Driver fatigue continues to be a significant problem for
motor carriers and their drivers. A 2007 study reported
that 13 percent of commercial drivers were considered to
have been fatigued at the time of their crash. U.S. Dep’t of
Transp. Fed. Motor Carrier Safety Admin.,
The Large Truck Crash Causation Study,
http://www.fmcsa.dot.gov/facts-research/
research-technology/analysis/FMCSA-RRA-07-017.
htm (2007). Certainly, there are instances
in which tired driving has led to accidents.
However, whether such conduct rises
to a level of culpability in which courts
should levy punitive or exemplary damages
against the driver and the carrier is another
matter. Numerous courts have considered
the issue and the results may surprise you.
This article provides an in-depth analysis
of the cases that have tackled whether to permit
punitive damages awards in accidents
involving driver fatigue. Although the punitive
damages standard varies from state to
state, and the outcomes hinge on the particular
facts of each case, the cases do provide
guidance about whether a defense attorney
can successfully convince a court to dismiss
a punitive damages claim at the summary
judgment stage or whether a jury will have
the opportunity to consider such an award.
Standards for Awarding
Punitive Damages
Although punitive damages have been
awarded in this country since Colonial
times, for most of this nation’s history
they were available only in the traditional,
intentional tort context. That is, only if
a jury found that a defendant acted with
a specific intent to cause harm could it
award punitive damages. Before the 1960s,
punitive damage awards were rare. Visible
punitive awards against manufacturers
came with the 1960s product liability
revolution. See Daniel W. Morton- Bentley,
Law, Economics, and Politics: The Untold
History of the Due Process Limitation
on Punitive Damages 17, ExpressO (Mar.
2011) (unpublished manuscript), available
at http://works.bepress.com/daniel_morton-
bentley/1. At that time, American courts
and legislatures began to expand rapidly
the situations in which punitive damages
were awarded. A number of states adopted
a “reckless disregard” standard for puni-
■ Marshal M. Pitchford and Christopher E. Cotter are attorneys with Roetzel & Andress LPA in Akron, Ohio.
They have extensive experience with transportation litigation, including personal injury claims, cargo claims,
freight charges collection and transactions, government relations and commercial litigation. As members of
the firm’s emergency response team, they have also coordinated numerous emergency responses on behalf
of their transportation and logistics clients.

tive damages liability. Other states adopted
a three-pronged “willful, wanton or gross
misconduct” standard, giving plaintiffs
three separate paths to obtain punitive
damages. Both of these standards require
a mental state that is something less than a
specific intention to harm someone.
Today, most states use these two standards
in some form or another. For instance,
many states use the term “gross negligence,”
which is typically defined as a
“wanton or reckless disregard for the safety
of others.” Crouch v. Teledyne Continental
Motors, Inc., 2011 WL 1539854 (S.D. Ala.
Apr. 21, 2011); see also Durham v. County
of Maui, 692 F. Supp. 2d 1256, 1262 (D.
Haw. 2010) (“gross negligence… is the
entire want of care [raising] the presumption
of indifference to consequences”); In
re Fosamax Products Liability Litigation,
647 F.Supp.2d 265, 283 (S.D.N.Y. 2009)
(“‘Gross negligence’ means that the defendant’s
conduct was so reckless or wanting
in care that it constituted a conscious disregard
or indifference to the life, safety,
or rights of persons exposed to such conduct”).
Another common standard today
is a “conscious disregard for the rights and
safety of other persons that has a great
probability of causing substantial harm.”
See Preston v. Murty, 32 Ohio St. 3d 334,
335 (Ohio 1987).
Yet, in other states, the bar remains high.
For instance, under Arizona law, a plaintiff
must prove that a tortfeasor’s “evil hand
was guided by an evil mind.” Bachrach v.
Covenant Trans. Inc., 2011 WL 1211767, at
*1 (D. Ariz. Mar. 31, 2011). In New York,
punitive damages are permitted when a
defendant’s wrongdoing “is not simply
intentional but evince[s] a high degree of
moral turpitude and demonstrate[s] such
wanton dishonesty as to imply a criminal
indifference to civil obligations.” Washington
v. Kellwood Co., 2009 WL 855652, at *11
(S.D.N.Y. Mar. 24, 2009).
Although state courts and legislatures
have adopted a variety of standards for
awarding punitive damages, most if not all
courts would agree with the Ohio Supreme
Court that “something more than mere
negligence is always required.” Leichtamer
v. Am. Motors Corp., 67 Ohio St. 2d 456,
472, (Ohio 1981); see also Hutchinson v.
Penske Truck Leasing Co., 876 A.2d 978,
983–84 (Pa. Super. Ct. 2005), aff’d, 922
A.2d 890 (Pa. 2007) (“Ordinary negligence,
involving inadvertence, mistake or error
of judgment will not support an award of
punitive damages.”). Yet, conduct associated
with something less than a specific
intent to drive a semi into another
vehicle can fall within the punitive damages
standard. A commercial driver who
makes a conscious decision to forego sleep
to spend more time on the road and subsequently
causes an accident due to fatigue
tests where courts will draw that line.
The Purpose of Punitive Damages
The same two objectives generally underlie
the various standards for awarding
punitive damages: punishment and deterrence.
The United States Supreme Court
has recently explained that “[r]e gard less
of the alternative rationales over the years,
the consensus today is that punitives are
aimed not at compensation but principally
at retribution and deterring harmful conduct.”
Exxon Shipping Co. v. Baker, 554 U.S.
471, 492–93 (2008). In most modern American
jurisdictions, juries are customarily
instructed on these twin goals of punitive
damage awards.
Because of the deterrent goal of punitive
damages, some level of mental awareness
or knowledge on the part of a tortfeasor is
an indispensable feature of any punitive
damages standard. In the trucking context,
what a driver knew before an accident and
whether the driver made conscious decisions
based on that knowledge are the key
issues. For a motor carrier, its knowledge
of previous unresolved problems affecting
a driver’s ability to drive safely, or a failure
to properly monitor a driver for such problems,
are often the key considerations.
Certainly, any situation in which money
or profit takes precedence over safety
quickly raises a red flag for courts considering
whether to permit juries to consider
awarding punitive damages. As aptly
described by an Illinois federal court,
“[m]oney [taking] precedent over safety
is virtually the definition of the kind of
corporate behavior warranting an award
of punitive damages.” Trotter v. B & W
Cartage Co., Inc., 2006 WL 1004882, at *7
(S.D. Ill. Apr. 13, 2006) (internal quotations
omitted). Motor carriers often find themselves
the target of these kinds of attacks,
regardless of their plausibility. See, e.g.,
McAchran v. Knight Trans., Inc., 2009 WL
888539, at *1–2 (Ariz. App. Apr. 2, 2009)
(involving assertions by the plaintiffs that
the carrier’s policy of paying by the mile
encouraged and in fact resulted in falsification
of travel logs to the financial benefit
of both the carrier and its drivers). Punishment
and deterrence are not overtly discussed
in many of the driver fatigue cases,
Punishment and
deterrence are not overtly
discussed in many of
the driver fatigue cases,
but these two underlying
goals surely play a role in
determining their outcome.
but these two underlying goals surely play
a role in determining their outcome.
Higher Burden of Proof
Plaintiffs seeking punitive damages not
only must establish a greater degree of culpability
than mere negligence, they also
carry a greater burden of proof. In a majority
of jurisdictions, a plaintiff is required
to establish conduct warranting punitive
sanction by “clear and convincing evidence,”
which is typically defined as “evidence
that will produce in the mind of the
trier of fact a firm belief or conviction as
to the facts sought to be established.” See,
e.g., Wood v. Neuman, 979 A.2d 64, 73
(D.C. 2009); Cross v. Ledford, 161 Ohio St.
469, paragraph three of the syllabus (Ohio
1954); State v. Addington, 588 S.W.2d 569,
570 (Tex. 1979); Black’s Law Dictionary 227
(5th ed. 1979).
This standard takes a middle ground
between the burden of proof standard
ordinarily used in civil cases, proof by
a “preponderance of the evidence,” and
the criminal law standard, proof “beyond
a reasonable doubt.” The United States
Supreme Court has specifically endorsed
the “clear and convincing evidence” bur-
For The Defense ■ December 2011 ■ 67

Trucking Law
den of proof standard for punitive damages
in civil cases. Humana Inc. v. Forsyth, 525
U.S. 299, 301 (1999).
Levying Punitive Damages
Against a Motor Carrier
A plaintiff injured in a trucking accident
often will sue both the commercial driver
and the motor carrier. Under the doctrine
A plaintiff must prove
that a motor carrier’s
conduct with respect
to its driver exceeded
mere negligence and
reached a gross level
of culpable conduct.
of respondeat superior a trier of fact may
hold an employer liable for compensatory
damages resulting from the negligent
acts of its employees committed within
the scope of their employment. However,
when a plaintiff seeks punitive damages
from an employer based on the culpable
conduct of its employees, a different analysis
may apply.
The Restatements of Torts and Agency
both support holding an employer liable for
punitive damages only when the employer
or one of its managerial agents authorizes,
contributes to, or ratifies the employee’s
wrongful conduct. Restatement (Second) of
Torts Section 909(d); Restatement (Second)
of Agency Section 217(C)(d). For instance,
if a trucking company actively permits or
encourages its drivers to violate the hours
of service regulations and to sleep inadequately
between runs, a jury could find that
the carrier authorized the driver’s fatigued
driving.
Several courts have adopted the Restatements’
approach. See, e.g., Ducharme ex rel.
Rogers v. Board of County Com’rs of Butler
County, Kan., 2011 WL 2173684, at *10 (D.
Kan. June 2, 2011); Mercury Motors Express,
Inc. v. Smith, 393 So. 2d 545 (Fla. 1981); Cal.
68 ■ For The Defense ■ December 2011
Civ. Code §3294(b); Lehmann v. Toys R Us,
Inc., 132 N.J. 587, 592 (N.J. 1993).
Other courts take a firmer approach,
holding an employer liable for punitive
damages any time an employee’s wrongful
acts occurred within the scope of employment.
See, e.g., Laidlaw Transit, Inc. v.
Crouse ex rel. Crouse, 53 P.3d 1093, 1097–98
(Ala. 2002); Stroud v. Denny’s Restaurant,
Inc., 271 Or. 430, 532 P.2d 790 (Ore. 1975).
This is no different from the respondeat
superior doctrine for negligence claims.
Pennsylvania has adopted its own
standard. There, a jury may award punitive
damages when an employee’s conduct
was clearly outrageous, committed within
the scope of employment, and carried out
with the intent to further the employer’s
interests. Achey v. Crete Carrier Corp., 2009
U.S. Dist. Lexis 44353, at *7–8 (E.D. Penn.
Mar. 30, 2009).
Yet even in jurisdictions that require
employer authorization or ratification, this
additional hurdle for a plaintiff does not
exist when the plaintiff asserts a direct
claim against a trucking company. For
claims such as negligent hiring, negligent
supervision, negligent retention, or negligent
entrustment of a vehicle, a plaintiff
must prove that a motor carrier’s conduct
with respect to its driver exceeded
mere negligence and reached a gross level
of culpable conduct. See, e.g., Dalworth
v. Bulen, 924 S.W.2d 728, 732 (Tex. App.
Apr. 24, 1996) (finding that for the jury to
award punitive damages against the carrier
requires finding that “someone employed
by [the motor carrier] and who was acting
in the scope of that managerial capacity
was grossly negligent”). Because a motor
carrier’s own conduct is at issue, whether
it ratified or approved the driver’s conduct
that led to the specific accident is not
germane.
Methods of Proving Driver Fatigue
Although the central question of this article
is whether a commercial driver’s fatigue
rises to the level of culpable conduct, the
question involves an antecedent question.
A plaintiff must first establish that fatigue,
in fact, played a role in causing the accident.
Unless a driver readily admits that
he or she slept at the wheel, a plaintiff must
present evidence, often circumstantial, that
the driver slept or that fatigue otherwise
contributed to an accident. Plaintiffs have
attempted to present evidence of fatigued
driving in a variety of ways.
Hours-of Service-Violations
By far the most commonly presented evidence
of driver fatigue is violation of the
federal hours of service (HOS) regulations.
Although the HOS regulations do
not explicitly declare their purpose, the
tie between restrictive driving hours and
fatigue is clear. Preventing driver fatigue is
undoubtedly one of the key purposes of the
limitations on hours of service in part 395
of the FMCSR. See 49 C.F.R. §§395.3, 395.8.
Courts disagree about whether punitive
damages are warranted when a driver
violates the HOS regulations. For example,
one court has explained that HOS violations
“are merely evidence that [the driver]
drove beyond the ten-hour limit earlier in
the week and, therefore, may have been
tired when he hit [plaintiff’s] car.” Purnick
v. C.R. England, Inc., 269 F.3d 851, 853 (7th
Cir. 2001). They “do not show [the driver’s]
knowledge that an accident would probably
occur, however.” Id.
Another court acknowledged that “a reasonable
man in [the truck driver’s] position,
after reading the ten hour rule, may
have realized the risk the regulation was
designed to avoid.” Burke v. Maassen, 904
F.2d 178, 183 (3rd Cir. 1990). However, the
court was quick to add that the plaintiffs
didn’t present evidence that the defendant
driver “himself appreciated this risk.” Id.;
see also Osborne Truck Lines, Inc. v. Langston,
454 So. 2d 1317, 1326 (Ala. 1984) (“the
mere violation of these [HOS] regulations
would not support a claim of wantonness”).
These cases recognize that a driver does not
automatically become tired the minute he
or she exceeds the time limits imposed by
the HOS regulations. A driver in violation
of the HOS regulations is not necessarily a
fatigued driver.
Yet other courts have found a connection
between a driver’s HOS violations and
culpability at least potentially reaching the
punitive damages level. For instance, in
Smith v. Printup, the driver testified during
his deposition that he knew what the law
required regarding accurate logs and limited
work hours, but nevertheless he drove
17 or 18 consecutive hours leading up to the
collision. 866 P.2d 985, 1013 (Kan. 1993).

The court concluded that “[t]o the extent
that such disregard may be interpreted as
related to the cause of the accident, it supports
the claim that he acted wantonly.” Id.
Also, in Torres v. North Am. Van Lines,
Inc., the driver failed to log any of his time
on Line 4 (On Duty Not Driving) of his log
in the three months preceding the accident.
658 P.2d 835, 838 (Ariz. App. 1983).
The court, interpreting this oversight as the
driver’s attempt to avoid the 70-hour rule,
concluded that a jury “could logically conclude
that this manifested a wanton disregard
for the safety of others, that is, gross
negligence.” Id. at 839.
A carrier’s best response to evidence of
a driver’s HOS violations is direct evidence
that the driver was not in fact fatigued
at the time of an accident. For instance,
in Purnick, there was evidence that the
commercial driver had driven beyond the
10-hour limit several times during the
week preceding the crash and had falsified
his logs. 269 F.3d at 853. However, the
driver’s Qualcomm showed that he did
not drive for the 17 hours before the trip
that ended in the crash, which “tend[ed]
to show that [the driver] likely thought he
was rested.” Id. As such, the court granted a
summary judgment in favor of the defense
on the punitive damages claim. Id. at 854;
Tew v. Jones, 417 So. 2d 146, 147 (Ala. 1982)
(affirming a directed verdict in favor of the
defendants on the punitive damages claim
and involving a driver who had driven all
day but had taken breaks for breakfast and
an afternoon soft drink). In general, direct
evidence demonstrating the driver’s alertness
and rest will likely trump circumstantial
evidence of fatigue.
Other Circumstantial Evidence
Another common method for proving
driver fatigue is offering evidence of the
driver’s activity in the days or hours leading
up to an accident. For instance, in Cummings
v. Conglobal Indus., Inc., the driver
had slept only five and a half hours in the
three days before the accident. 2008 WL
4613817, at *1 (N.D. Okla. Oct. 14, 2008).
The court determined that the driver was
“sleep deprived” at the time of the accident
and denied the trucking company’s motion
for a summary judgment on that basis. Id.
at *2. When a driver had not had sleep for
more than 40 hours at the time of an acci-
dent and habitually used amphetamines, a
court permitted the jury to consider punitive
damages against the driver and motor
carrier. Sakamoto v. N.A.B. Trucking Co.,
Inc., 717 F.2d 1000, 1002–1003 (6th Cir.
1983); see also DeMatteo v. Simon, 812 P.2d
361, 364 (N.M. App. 1991) (upholding a
punitive damages award when a driver only
had five hours of sleep and then drove for
20 hours immediately preceding the accident);
Osborne, 454 So. 2d at 1326 (finding
a jury properly awarded punitive damages
when the driver had been on the road over
16 hours and “with knowledge of that fact
continued to drive”).
Certainly, when a plaintiff’s attorney has
evidence that a driver took amphetamines
or caffeine pills, achieving a summary
judgment for the defense can become difficult.
See Briner v. Hyslop, 337 N.W.2d 858,
867 (Iowa 1983) (remanding the case for a
jury to consider punitive damages when
the driver had not slept for 30 hours and
had in his possession amphetamine and
caffeine pills that he admitted taking at
various times during his trip).
Plaintiffs’ attorneys have also supported
a driver fatigue theory with evidence of
unusual activity of a semi immediately preceding
an accident as reported by eyewitnesses.
Although evidence that a truck was
weaving in and out of its lane, or drifted
into an adjacent or oncoming lane might
suggest that the driver was fatigued, such
circumstantial evidence alone would not
likely support a punitive damages claim
in most courts. See, e.g., Batts v. Crete Carrier
Corp., 2009 WL 6842545, at *3 (N.D.
Ga. Dec. 14, 2009) (finding insufficient evidence
to support a punitive damages claim
when the driver never slowed down, never
braked, and rear-ended the plaintiff’s vehicle);
but see Briner, 337 N.W.2d at 867 (finding
a jury entitled to decide whether the
conduct warranted a punitive damages
award when the driver had recently consumed
several double scotches and drifted
over the center line and collided with the
oncoming vehicle).
When a commercial driver has a medical
history that includes sleep apnea, plaintiffs’
attorneys have cited the sleep disorder as
circumstantial evidence of driver fatigue.
However, as with HOS violations, plaintiffs
must make the connection between the
disorder and the cause of the accident. For
instance, in Achey, the plaintiff contended
that the driver knew that he had sleep
apnea but continued to drive his tractor-
trailer. Achey, 2009 U.S. Dist. Lexis 44353,
at *8. The defense effectively overcame
this assertion, as the court concluded that
“there does not appear to be a link between
[the driver’s] alleged sleep apnea condition
and the fatigue [he] experienced prior to
In general, direct evidence
demonstrating the driver’s
alertness and rest will
likely trump circumstantial
evidence of fatigue.
the accident, as [his] primary sleep apnea
symptom was snoring, not drowsiness.” Id.
at 16 of 25. Whether a driver was actually
in a tired state at the time of an accident is
the key inquiry and not all circumstantial
evidence can adequately establish fatigue,
despite the hunches of plaintiffs and their
counsel.
Direct Evidence
The most common direct evidence of
fatigue is the driver’s own admission that
he or she was tired at the time of an accident,
or shortly beforehand. In one case,
the commercial driver testified that she
knew that she was having problems staying
awake while operating her automobile
and, in fact, had stopped her vehicle twice
before the accident and attempted to wake
herself up. Claypoole v. Miller, 43 Pa. D. &
C.4th 526, 528 (Penn. Comm. Pleas 1999).
The court permitted the plaintiffs to amend
their complaint to add a claim for punitive
damages. Id.
In another case, the driver told the
responding police officer after the crash
that “I was tired and thought as soon as I
got into New Jersey I would stop and nap.
I dozed for a second, when I looked traffic
was at a dead stop. I hit the brakes and
turned the wheels, but couldn’t stop; the
[decedents’] car got jammed underneath.”
Achey, 2009 U.S. Dist. Lexis 44353, at *4.
For The Defense ■ December 2011 ■ 69

Trucking Law
The court concluded that a jury could reasonably
conclude that the driver “acted
outrageously in continuing to drive while
knowing the risks of doing so in a state
of fatigue.” Id. at *34; see also Gunnells v.
Dethrage, 366 So. 2d 1104, 1106 (Ala. 1979)
(finding a jury had properly considered
punitive damages when the driver testified
that he “might have had a little bit of
Whether a driver was
actually in a tired state at
the time of an accident is
the key inquiry and not all
circumstantial evidence can
adequately establish fatigue,
despite the hunches of
plaintiffs and their counsel.
drowsiness” and that the car had drifted
over the center line and back just before
the accident).
However, direct evidence of driver
fatigue does not automatically mean that
a defense attorney cannot achieve a summary
judgment. In one case, the driver testified
that he was sleepy but not asleep at
the time of the accident. Turner v. Werner
Enterprises, Inc., 442 F.Supp.2d 384, 385
(E.D. Ky. 2006). Specifically, he testified
that “obviously when you’re tired, you’re
kind of like in an… in and out state.” Id.
Yet even in light of this testimony, the court
granted a summary judgment in favor of
the trucking company and its driver on
the punitive damages claim. Id. at 387.
Because the driver was “within the speed
limit, apparently within the proper lane,
and without any suggestion of intoxication,”
mere fatigued driving did not rise to
the level of culpable conduct warranting
punitive damages. Id. at 386.
Common Threads
After reviewing the numerous cases that
have tackled whether a punitive damages
70 ■ For The Defense ■ December 2011
award is appropriate when an accident is
caused by driver fatigue, it can be a challenge
to synthesize the holdings to extract
a distinct bright line that, once crossed,
would completely foreclose a summary
judgment in favor of a defendant and making
punitive damages a real possibility.
Because the punitive damage standard varies
from state to state, and because the outcomes
hinge largely on the specific facts of
each case, unsurprisingly we have found
inconsistencies and contradictions among
the courts that have examined this issue.
Yet some common threads have emerged.
Punitive Damages Against
the Commercial Driver
Simply put, if a driver was aware of his or
her fatigue before an accident and made a
conscious decision to continue driving, a defendant’s
attorney will not likely achieve a
summary judgment on the punitive damages
claim. Such knowledge and subsequent
conduct appears to make the difference with
driver fatigue between negligent and culpable
conduct warranting punitive damages.
Several courts have stated that “just falling
asleep at the wheel does not support an
award of punitive damages.” Batts, 2009
WL 6842545, at *2; see also Briner, 337
N.W.2d at 868 (“The act of falling asleep
generally would not constitute conduct that
would allow punitive damages.”); George,
708 S.E.2d at 207 (“inadvertent driver error
caused by falling asleep behind the wheel
by itself does not support an award of punitive
damages”).
Yet, in many of those same cases, the
courts permitted the juries to consider
punitive damages because the drivers had
some awareness of their fatigue and continued
to drive. For instance, in Briner, the
commercial driver “knew of his [fatigued]
condition and persisted in driving despite
the danger.” Briner, 337 N.W.2d at 868
(emphasis added). In Claypoole, the driver
“knew she was physically exhausted,” since
she had stopped her vehicle twice before
the accident and attempted to wake herself
up. Claypoole, 43 Pa. D. & C.4th at 528
(emphasis added). In McAchran, the driver
“was aware of the substantial risks involved
in continuing to operate his truck while
fatigued but acted to serve his own interests
having reason to know and consciously
disregarding the substantial risk of harm
to others.” 2009 WL 888539, at *1 (emphasis
added). In Osborne, the driver had been
driving over 16 hours at the time of the
accident and “with knowledge of that fact
continued to drive.” Osborne, 454 So. 2d at
1326. In all of these cases the courts permitted
the juries to consider whether punitive
damages were warranted.
Conversely, a court granted a summary
judgment in favor of the driver and carrier
because the court found “no evidence
[that the driver] consciously ignored the
risk of fatigue.” Batts, 2009 WL 6842545,
at *2 (emphasis added). The Burke court,
discussing the punitive damages claim,
did not find evidence that the driver “consciously
appreciated the risk of prolonged
driving” beyond the 10-hour rule. Burke,
904 F.2d at 183 (emphasis added).
Given the twin goals of punitive damages—punishment
and deterrence—it
makes sense that courts home in on a driver’s
awareness of fatigue and whether he or
she made a decision to continue driving. It
is difficult to deter accidental conduct. For
the same reason, it would not make sense to
punish that behavior. The case law reflects
these underlying principles.
Levying Punitive Damages
Against a Motor Carrier
When juries consider whether to levy punitive
damages against a motor carrier, the
focus shifts from the driver’s conduct to
the knowledge and acts or omissions of the
carrier management. On examining the
cases in which courts permitted juries to
consider levying punitive damages against
motor carriers, several patterns emerged.
Regardless of whether a plaintiff seeks
punitive damages based on respondeat
superior or direct claims against a carrier,
the most common reason courts permit
juries to award punitive damages is that a
carrier failed to monitor a driver’s compliance
with the HOS regulations.
For instance, in Torres, the court found
that the carrier had received notice several
times that its drivers were not complying
with the HOS regulations. Torres,
658 P.2d at 839. The problem had existed
for a number of years, and the carrier
did not attempt to take corrective measures.
Id. The court explained that the carrier
“should have known that its failure to
Falling asleep, continued on page 81

Trucking Law
FMSCA Safety
Evaluation
By Philip M. Gulisano
and Thomas J. Lang
More data available to the
public and to plaintiffs’
attorneys means motor
carriers must proactively
monitor safety status,
investigate violations and
crashes immediately, and
take corrective action.
CSA—
The Final
Version?
We have been talking for some time about “CSA 2010,”
the program created by the Federal Motor Carrier Safety
Administration (FMCSA) to focus attention on the specific
behaviors of drivers and motor carriers that lead to
crashes. The program, now just called
“CSA,” which stands for “compliance,
safety, and accountability,” was first rolled
out by the Administration in 2008 for a trial
run in four states: Colorado, Georgia, Missouri,
and New Jersey. In 2009, the FMCSA
added Delaware, Minnesota, Maryland,
Montana, and Kansas. Currently, a portion
of the CSA, the safety measurement
system, is fully active in all 50 states and
warning letters are being received by carriers
in each state. However, all interventions
are not fully implemented in each state due
to the need for additional training of enforcement
staff. The FMCSA expects that
all interventions will be fully implemented
shortly. Additionally, the safety fitness determination
prong of CSA must still undergo
federal rulemaking, which we expect
will be released by the FMCSA before publication
of this article. Once all of these steps
are completed, the entirety of the CSA program
should be fully implemented throughout
the entire United States.
The CSA program takes a new approach
to the way that information regarding
motor carrier performance such as roadside
inspection data, driver logs, and crash
history is collected and used to attempt to
determine compliance with federal rules
and potential safety issues. This article
presents an overview of the CSA program,
the methodology that it uses to measure
safety compliance and make intervention
decisions, and some potential issues that
all motor carriers and the attorneys advising
them need to understand, not only
to maintain and to reinforce safe driving
practices, but also to take proactive
approaches to litigation.
Patti Gillette, Director of Safety for
the Colorado Motor Carrier Association,
was active on the forefront of the initial
CSA program testing in Colorado and has
extensive experience with the program. Dr.
Gillette travels around the country educating
motor carriers and drivers on the particulars
of the CSA program and agreed to
■ Philip M. Gulisano is a founding member of, and Thomas J. Lang is an associate at, Burden, Gulisano
& Hickey, LLC in Buffalo, New York. Mr. Gulisano has over a decade of experience representing trucking
industry clients in the defense of catastrophic personal injury, cargo and loss transfer claims. He serves as
the webcast chair for the DRI Trucking Law Committee. Mr. Lang also focuses his practice on representing
trucking industry clients in defense of personal injury and loss transfer claims.
For The Defense ■ December 2011 ■ 71

Trucking Law
share some of her knowledge and insight
regarding the CSA program for this article.
CSA—Brief Overview
The CSA program has three components.
The first component is the Safety Measurement
System (SMS). The CSA program
feeds data from other motor carrier- related
databases into this database, the SMS, and
applies a new methodology to that data to
quantify safety and compliance for each
motor carrier. The second component is the
“safety fitness determination,” the actual
safety rating assigned to each motor carrier
based on the collected data as analyzed
by the SMS methodology. The third component
is intervention, which represents the
type of enforcement that the FMCSA will
impose on each carrier depending on its
overall safety rating.
The overwhelming majority of the data
that the CSA program will use in the SMS
comes from two major databases: the Motor
Carrier Management Information System
(MCMIS) and the Commercial Driver’s License
Information System (CDLIS). The MC-
MIS stores information received from form
MCS-150, motor carrier identification data;
SAFETYNET, state inspection and accident
reports; and federal inspection and accident
reports, among others. The CDLIS contains
CSA Operational Model
72 ■ For The Defense ■ December 2011
“driver records,” which states must create
under 49 C.F.R. §384.225, providing information
regarding violations and convictions
committed by a driver, as well as the driver’s
medical certification, among other information.
The CSA program will constantly retrieve
data from these databases and feed it
into the SMS. The federal government, individual
motor carriers themselves, and the
public will have access to this data.
At its core, the CSA program will not
change anything operationally for carriers.
Carriers will still be subject to inspections.
The major change is that the CSA program
will collect and measure the retrieved data
differently than the SafeStat program and
eventually use it to assign a constantly updated
“rating” to each carrier. According
to Dr. Gillette, the CSA program will benefit
motor carriers because they can use the
methodology to acquire better data to identify
potential safety concerns much more
quickly than they could under SafeStat, and
they can use that data not only to improve internal
safety programs but also to make better
hiring, training, and retention decisions.
The CSA Operational Model and
SMS Methodology—How Motor
Carrier Data Is Evaluated
The CSA operational model diagram be-
low shows how the CSA program will identify
and address motor carrier safety issues.
CSA, Fed. Motor Traffic Safety Admin., U.S.
Dep’t Transp., The New Operational Model,
http://csa.fmcsa.dot.gov/about/csa_how.aspx.
The process begins with collecting safety
data and feeding it into the SMS, sorting it
into seven behavioral analysis and safety
improvement categories. The methodology
evaluates the sorted data in each behavioral
analysis and safety improvement category
(BASIC), and each motor carrier receives
a percentile score between 0 and 100 and
is placed in a corresponding peer group or
“safety event group” for each BASIC. The
methodology doesn’t rate individual drivers,
but it collects data on them for use by
law enforcement personnel. Depending on
a carrier’s overall percentile score within
the peer group, referred to in CSA parlance
as the safety event group, the FMCSA
may subject the carrier to an intervention,
which can range from a warning letter to a
suspension of authority to operate.
As mentioned, the SMS methodology
measures the on-road safety performance
of each motor carrier in seven behavioral
categories, the BASICs. Each BASIC consists
of a group of actions or inactions by
a motor carrier assembled from roadside
inspection data and assigned numerical
measures. Weighting schemes apply to the
data that take many factors into account,
such as the severity of a violation and how
recently a violation occurred. The SMS
methodology also applies a “utilization
factor,” which accounts for the fact that
certain carriers will have far more vehicles
or use those vehicles more often than
other carriers, which increases crash risk
and inspection exposure, which, in turn,
can increase the number of violations that
inspections uncover. Violations associated
with a higher risk of causing crashes
receive higher scores because they receive
greater weights, and the more recently the
violations occurred, the more heavily the
methodology weights them.
For example, assume that a motor carrier’s
most recent roadside inspection
discovered a driver driving with a suspended
license. This violation has a severity
weight of 10. The carrier will have 30 points
attached to its “driver fitness” BASIC score
for six months after the violation. Thus,
the more recently a violation occurs, or the

more severe the violation, the higher the
sum of a carrier’s violations for this BASIC,
at least temporarily.
Additionally, a motor carrier’s overall
total sum of time- and severity- weighted
violations in the “driver fitness” BASIC
will be divided by the total time weight of
relevant inspections, meaning all inspections
conducted by a Motor Carrier Safety
Assistance Program (MCSAP) agency and
reported to the MCMIS, with or without
violations, and any other inspection resulting
in “driver fitness” violations. Therefore,
a carrier inspected more often than
others that has more violations will have
those violations count against it less in the
“driver fitness” BASIC compared with a
carrier with fewer vehicles on the road and
subject to fewer inspections.
Once the score for each motor carrier
is calculated in a BASIC, if the SMS has
sufficient data, discussed more below, the
carrier is placed into a safety event group
with motor carriers supposedly operating
at similar levels in that behavioral category.
Then an individual motor carrier’s
BASIC score is compared with the other
motor carriers in that safety event group,
which will constantly change, and if that
score is above a certain percentile of its
peers, the FMCSA will subject that carrier
to an intervention. The type of intervention
for each carrier will vary depending
on the violation severity and history, but it
ranges from a warning letter to a full compliance
review.
The Seven BASICs
The first BASIC is “unsafe driving,” which
is intended to measure or to quantify the
on-road operation of commercial motor
vehicles in dangerous or careless manners.
The violations grouped into this BASIC
include speeding, reckless driving, and
unsafe lane changing. FMCSR parts 392
& 397. The violations are weighted based
on the crash risk associated with each,
from 1 to 10 with 10 assigned to the most
severe. Additionally, the calculations apply
a weighting scheme to the points in time of
violations: 0–6 months × 3; 6–12 months ×
2; and 12–24 months × 1. For more detailed
information about the complicated equations
used to measure the BASICs, see Fed.
Motor Carrier Safety Admin, U.S. Dep’t
Transp., Safety Measurement System (SMS)
Methodology, Version 2.1 (Dec. 2010) (explaining
the SMS methodology and each
calculation), http://csa.fmcsa.dot.gov/resources.
aspx (select “SMS Methodology” in left navigation
bar, then scroll to download the
publication).
Table 1 explains the utilization factor
computation for straight trucks. The CSA
program methodology tries to compare
like- vehicles with like- vehicles in some
ways, breaking them into two categories
for some data scoring, straight trucks and
combination tractor- trailers.
Table 1. Unsafe Driving BASIC:
Straight Segment
Utilization Rate
(VMT/Avg. PU) Utilization Factor
200,000 1
No recent VMT data 1
The sum of the violations weighted for
time and severity in this BASIC is divided
by the average number of power units (PUs)
that a carrier has on the road, then multiplied
by a utilization factor that increases
up to a value of three between 20,000 and
200,000 miles traveled by that carrier for
carriers that operate straight trucks, and
up to a value of 1.6 between 80,000 and
160,000 miles for carriers that operate
combination tractor- trailers. Table 1 only
illustrates the utilization factor computation
for straight trucks.
The second BASIC is the “fatigued
driving (hours- of- service)” BASIC. Data
about drivers who are found ill or fatigued
and have hours- of- service violations are
grouped into this BASIC. FMCSR parts
392 & 395. Violation- severity weighting
in this category is based on crash risk and
ranges from 1 to 10, with an out- of- serviceviolation
adding 2. Also, violations are time
weighted according to this scheme: 0–6
months × 3; 6–12 months × 2; and 12–24
months × 1. See Fed. Motor Carrier Safety
Admin, U.S. Dep’t Transp., Safety Measurement
System (SMS) Methodology, supra
(explaining the SMS methodology and each
calculation).
To calculate the “fatigued driving”
BASIC, the sum of time- and severity-
weighted violations is divided by the total
time weight of relevant inspections, which
is composed of all inspections conducted
by a Motor Carrier Safety Assistance Program
(MCSAP) agency and reported to
the MCMIS, regardless of finding violations,
and any other inspection resulting
in fatigued driving violations.
According to Dr. Gillette, the name of
this BASIC, “fatigued driving,” is misleading
since the conduct grouped into this
category mainly is hours- of- service violations,
not “fatigued driving.” There is only
one violation that the methodology groups
into this BASIC that has anything to do
with fatigued driving and that is “driving
while ill or fatigued.” The remaining behaviors
sorted into this BASIC are log-book
violations. An example given by Dr. Gillette
is that if a carrier has a fatigued driving
BASIC score of 80 percent, all the public
might see when reviewing that information
online, explained later, is that the company
has 29 fatigued driving violations, but in
actuality, the carrier’s drivers could have
forgotten to fill out log books correctly in
28 of the violations, and the company could
have violated the allowable hours of service
for the last, none of which have anything to
do with fatigue.
Four other BASICS are “driver fitness,”
the category for violations relating to failure
to have a valid commercial driver’s
license or medical certification, FMCSR
parts 383 & 391; “controlled substances/
alcohol,” the category for violations for
on-road operation of a commercial motor
vehicle while impaired by alcohol or drugs,
FMCSR parts 382 & 392; “vehicle maintenance,”
the category for violations for
operation of a commercial vehicle without
properly maintained brakes or lights,
violations for other mechanical issues, and
violations for failure to make required
repairs, FMCSR parts 382 & 392; and
“cargo- related measure,” the category for
violations for improperly securing a load,
retaining cargo, and handling hazardous
material, FMCSR parts 392, 393, & 397 and
hazardous material violations. The severity
weighting that violations receive again
is based on crash risk and range from 1 to
10, with an out- of- service violation adding
a weight of +2. Violations also are time
weighted using the same formula as the
“fatigued driving” BASIC time- weighting
For The Defense ■ December 2011 ■ 73

Trucking Law
formula and are also normalized by the
time weight of relevant inspections. See
Fed. Motor Carrier Safety Admin, U.S.
Dep’t Transp., Safety Measurement System
(SMS) Methodology, supra (explaining the
SMS methodology and each calculation).
The seventh and last BASIC differs from
the other six, and technically, it is not a
BASIC at all. The “crash indicator” measure
is designed to track crash histories
and high-crash patterns as identified in
state- reported crash records. Each crash
is weighted in severity from 1 to 3, with
crashes involving injuries, fatalities, and
hazardous material releases having greater
weights. Crashes also are time weighted.
Additionally, final scores for the “crash
indicator” measure take a utilization factor
into account, the same utilization factor
applied to the “unsafe driving” BASIC.
See Fed. Motor Carrier Safety Admin, U.S.
Dep’t Transp., Safety Measurement System
(SMS) Methodology, supra (explaining the
SMS methodology and each calculation).
To calculate the “crash indicator” measure,
the total time- and severity- weighted
applicable crashes are divided by a carrier’s
average power units multiplied by a utilization
factor.
Safety Event Groups
Once a carrier’s score for each BASIC is
computed, the motor carrier is placed in a
safety event group and assigned a percentile
based on how it compares with other
carriers in that safety event group. So a carrier
belongs to seven safety event groups,
each corresponding to one of the seven
BASICs. The FMCSA may subject a motor
carrier to an intervention based on the carrier’s
percentile if it exceeds an applicable
threshold. Table 2 presents the applicable
percentile thresholds at which the FMCSA
may intervene due to BASIC rankings.
However, the SMS methodology applies
certain “data sufficiency standards” before
assigning a percentile rank to a motor carrier.
In other words, a motor carrier won’t
receive a percentile rank in a BASIC until
74 ■ For The Defense ■ December 2011
the SMS has sufficient data for the carrier
in that BASIC. The “data sufficiency standards”
differ for each BASIC but essentially
require a minimum number of inspections
within the previous two years. For
the “crash indicator” measure, for example,
a motor carrier must have been involved in
two Department of Transportation (DOT)
reportable crashes before it will receive a
percentile in that BASIC under the methodology.
In the remaining BASICs, a motor
carrier must have undergone a specific
number of inspections that resulted in
applicable violations for that specific BASIC
before the methodology will calculate and
assign a percentile.
For example, in the “fatigued driving”
and “unsafe driving” categories, a motor
carrier must have three inspections resulting
in applicable violations before it will
receive a percentile rank in those BASICs.
In the “driver fitness,” the “vehicle maintenance,”
and the “cargo- related” BASICs,
a motor carrier must have five inspections
finding applicable violations. Lastly, in the
“controlled substances/alcohol” BASIC, the
percentile ranking methodology requires
only one inspection finding an applicable
violation before a motor carrier will
receive a rank.
The specific, final percentile that a motor
carrier receives varies by the BASIC and the
number of applicable violations found for
the carrier within the BASIC. The SMS assigns
a motor carrier to a safety event group
for a BASIC according to the number of violations
recorded in the SMS in that BASIC
for the motor carrier. In other words, motor
carriers assigned to a safety event group all
have BASIC violations numbering within a
particular range for that BASIC.
In the “unsafe driving” BASIC, the number
of inspections with unsafe driving violations
depends on whether a motor carrier
operates straight trucks or combination
tractor- trailers. As mentioned, the methodology
tries to compare like- vehicles with
like- vehicles in some ways. The methodology
similarly differentiates between the
Table 2.
Basic General Haz M Passenger
Unsafe Driving, Fatigued Driving (HOS), Crash Indicator 65% 60% 50%
Driver Fitness, Drugs/Alcohol, Vehicle Maintenance,
Cargo-Related
80% 75% 65%
two vehicle types for the “crash indicator”
measure. The safety event group to
which the SMS assigns a motor carrier for
the “crash indicator” measure obviously is
determined by the number of DOT reportable
crashes in which a carrier has been
involved. Tables 3 and 4 list the safety event
groupings, based on violation numbers, for
motor carriers operating straight trucks in
two categories, “unsafe driving” and “crash
indicator.”
Table 3. Unsafe Driving BASIC:
Straight Segment
Number of Inspections
Safety Event with Unsafe Driving
Group
Violations
Straight 1 3–4
Straight 2 5–8
Straight 3 9–18
Straight 4 19–49
Straight 5 50+
Table 4. Crash Indicator: Straight Segment
Safety Event
Group Number of Crashes
Straight 1 2
Straight 2 3–4
Straight 3 5–8
Straight 4 9–26
Straight 5 26
In the “controlled substances/alcohol”
BASIC, again the SMS methodology calculates
percentiles after organizing carriers
into safety event groups according to
the number of on-road inspections finding
controlled substances/alcohol violations, as
specified in Table 5.
Table 5. Controlled Substances/Alcohol
BASIC Safety Event Groupings
Number of Inspections
with Controlled
Safety Event Substances/Alcohol
Group
Violations
1 1
2 2
3 3
4 4+
Table 6 explains the safety event groupings
for the remaining BASICS, “fatigued
driving,” “driver fitness,” “vehicle maintenance,”
and “cargo- related,” again organiz-

ing motor carriers into groups according
to the number of inspections with applicable
violations found for a carrier in each of
these categories.
Table 6. Fatigued Driving, Driver Fitness,
Vehicle Maintenance, Carglo-Related
BASICS Safety Event Groupings
Number of Inspections
Safety Event with Applicable
Group
Violations
1 3–10 (Fatigued Driving)
5–10 (all others)
2 11–20
3 21–100
4 101–500
5 501+
The FMCSA may identify interventions
for motor carriers when they exceed
the applicable thresholds for the specific
BASICS within their assigned safety event
groups.
The SMS
In addition to performing all these calculations
and housing data for motor carriers,
the SMS makes data for each motor carrier
available to the public through the FMCSA
website, displaying it in the format illustrated
below.
The display lists each BASIC individually
with a corresponding on-road performance
percentile score. If a motor carrier
had some violations in a BASIC, the SMS
will “flag” it with a golden triangle with
an exclamation point inside, display in the
“BASIC status” column for that BASIC. The
flagging symbol will appear if a motor carrier
exceeds the threshold or a motor carrier
had a serious violation in that BASIC
within 12 months of the calculation. Then
FMCSA may subject that carrier to more
monitoring or an intervention. The public
cannot view the “cargo- related” BASIC and
“crash indicator” measure, but the motor
carrier to which the information refers and
law enforcement can view those categories.
Interventions and
Safety Determinations
Interventions under the CSA program can
range from something as minor as a warning
letter to a suspension of a motor carrier’s
authority to operate. Other potential
interventions include a targeted roadside
inspection, a focused compliance review, a
comprehensive onsite compliance review,
and potentially, an out- of- service order.
As mentioned, motor carriers with
scores exceeding the thresholds outlined
in this article will have a yellow triangle
with an exclamation point inside as part of
that BASIC record. The CSA refers to this
as “flagging.” The motor carrier will then
automatically receive a warning letter outlining
the carrier’s score, what it means,
and how the carrier can correct the identified
problems.
However, the method by which the
FMCSA will determine each motor carrier’s
safety fitness rating must go through
the federal rulemaking process. Currently,
motor carriers receive BASIC scores as
described in the previous pages. Next, they
will receive safety fitness ratings. We do
not know yet how the FMCSA will determine
those ratings, nor do we know what
level of enforcement, if any, the FMCSA will
assign to rating classifications. Currently,
the FMCSA website and the CSA operational
model diagram in this article use
the terms “marginal” and “unfit” in relation
to safety evaluations, from which we
may infer that those terms could become
safety fitness determination terms. After
the FMCSA moves through the federal
rulemaking process, if it decides to use
those terms in safety fitness determination
labels for motor carriers, you can bet
that the plaintiffs’ bar will waste no time or
effort exploiting those terms against motor
carriers in litigation.
For The Defense ■ December 2011 ■ 75

Trucking Law
Intervention and “Notice”
With every “intervention” the plaintiffs’
bar can argue that a motor carrier received
a level of “notice” regarding a potential
safety issue. For example, if a motor carrier
receives a warning letter as a result of
its “vehicle maintenance” BASIC percentile
rank, and if a plaintiff later sues the carrier
over a motor vehicle accident alleging
that a defective brake caused the accident,
the plaintiff can allege that the motor carrier
received notice of vehicle maintenance
problems before the accident but did not
take corrective action.
Also, because time will lapse under the
CSA operational model between collecting
and analyzing data and finally issuing a
warning letter, by the time that the FMCSA
determines that a motor carrier should
receive an intervention, that motor carrier
may have already corrected a problem to
comply fully with standards, perhaps even
before it received a warning letter.
Litigation Concerns
Aspects of the CSA program have some
troubling consequences for motor carriers
in litigation. In particular, the safety event
groups, the crash report data collected in
the SMS, and cargo- related interventions
can have some troublesome consequences.
Revolving Safety Event Groups
The safety event groups are designed to
change on a rolling basis. This means that a
motor carrier’s percentile score in a specific
BASIC will change based on the actions of
other carriers in that same group.
According to Dr. Gillette, for example, if
your trucking company safety event group
for a BASIC has 100 companies, each company
will receive a number between 1
and 100. If your trucking company scores
49 in that BASIC, and if another trucking
company in your group that scores 83
decides to fire its safety director and to
hire a new one, over the next six months,
its BASIC score may fall from 83 to 30. As
a result, your score could increase from 49
to 50 or 55. Once placed in a safety event
group for a specific BASIC, each motor
carrier’s score for that BASIC changes constantly
as the SMS receives more data from
additional inspections, or as time passes
and corresponding time weights for violations
decrease. If inspecting another motor
76 ■ For The Defense ■ December 2011
carrier in your safety event group for a
BASIC reveals a violation, its score for that
BASIC will increase. Another motor carrier
with a higher score than your score may
have its score suddenly drop below yours
just because six months passed and time
weights on some of the other company’s
violations decreased.
If your company transfers into a different
safety event groups next month because
it adds 50 new trucks, even though the
company has not done anything differently,
your score could skyrocket or plummet
depending on what other companies
in your safety event group do. More than
your own internal company operations will
affect your company’s scores in the BASICs:
what your neighbors and your competition
do will impact your scores. The scores of
the other motor carriers within your safety
event group may drop and push your score
over a permissible threshold, potentially
subjecting you to an intervention. Dr. Gillette
stated that in her opinion, the rolling
safety event groups are “as close to a fatal
flaw as CSA has.”
Additionally, if a motor carrier transfers
into another safety event group, for whatever
reason, depending on how it ranks
compared with the other motor carriers,
the change alone could subject the carrier
to an immediate intervention, and simply
purchasing more trucks or undergoing
additional inspections can precipitate
a transfer to another safety event group.
If one motor carrier with a score above
the applicable threshold has its score drop
below the threshold, that will push another
motor carrier over the threshold, potentially
subjecting that other carrier to intervention,
and not necessarily because the
carrier receiving the intervention failed to
comply with safety standards.
To prepare to handle potential litigation
due to these rolling safety event groups,
motor carriers and their attorneys must
first understand why the FMCSA subjects
a carrier to an intervention. For instance,
did a score change because another motor
carrier’s score changed? Next, a motor carrier
should take preventive action every
time it experiences an applicable violation
that will end up in the SMS in a BASIC. A
motor carrier and its attorney should plan
to respond to any level of FMCSA intervention,
even a warning letter, regardless
of why the FMCSA intervened, even if that
carrier experienced a percentile ranking
change precipitated through no fault of
the company. Promptly investigating and
attending to an intervention initiated by
the FMCSA, regardless of the level or the
precipitating circumstances, will go a long
way to curb litigation that may arise from
a motor vehicle accident.
Further, motor carriers and their attorneys
need to understand that interventions
caused by a rolling safety event group have
some troubling implications for punitive
damages. When a plaintiff is injured in a
motor vehicle accident involving a tractor-
trailer, his or her attorney almost invariably
demands to see at least six months
worth of the driver’s log books. If the plaintiff’s
attorney finds many violations, those
violations can support a claim for punitive
damages.
As the Supreme Court stated,
The most important indicium of the
reasonableness of a punitive damages
award is the degree of reprehensibility
of the defendant’s conduct. We have
instructed courts to determine the reprehensibility
of a defendant by considering
whether:… the conduct involved
repeated actions or was an isolated incident;…
punitive damages should only be
awarded if the defendant’s culpability,
after having paid compensatory damages,
is so reprehensible as to warrant
the imposition of further sanctions to
achieve punishment or deterrence.
State Farm Mutual Automobile Ins. Co. v.
Campbell, 538 U.S. 408, 419 (2003) (citing
BMW of N. Am. v. Gore, 517 U.S. 559, 575
(1996)) (emphasis added).
The more instances of conduct that
a plaintiff’s attorney can point to, the
stronger the plaintiff’s claim for punitive
damages becomes. The CSA data collection
system will make greater amounts of motor
carrier data more easily available to plaintiffs’
attorneys than in the past, so motor
carriers’ attorneys must prepare to defend
clients against plaintiffs asserting punitive
damage claims.
The Federal Circuit Courts have not spoken
decisively on whether driver violations
of FMCSA rules, such as hours- of- service
rules, warrant awarding punitive damages
to plaintiffs. However, if a motor carrier has
several hours- of- service violations, a plain-

tiff’s attorney can allege that the violations
support a claim that a carrier knew or encouraged
drivers to operate beyond the allowable
hours of service, or that the carrier
did not have an effective procedure to monitor
drivers’ hours- of- service compliance.
Similarly, a plaintiff’s attorney can use violations
found in a “vehicle maintenance”
BASIC to support an allegation that a motor
carrier either did not exercise due care in
repairing and maintaining its fleet or altogether
did not have an effective procedure to
monitor its vehicles’ mechanical conditions.
Imagine a motor carrier with multiple
log-book violations recorded in the SMS in
the “fatigued driving (hours- of- service)”
BASIC. Even if the carrier complies fully after
the fact, that carrier’s percentile in that
BASIC may increase if other carriers improve
in that category, and the carrier could
receive a warning letter. Then, if a driver
for the motor carrier has an accident and
a plaintiff sues the motor carrier alleging
fatigued driving as a cause, the plaintiff’s
attorney will not only have access to “evidence”
demonstrating previous instances of
“fatigued driving,” but also a warning letter
received by the carrier to support a claim for
punitive damages, even though the carrier’s
fatigued driving violations didn’t bring
on the warning letter. In this scenario, the
“allegedly repetitive conduct” could defeat
a motion for a summary judgment on the
claim for punitive damages, and at the very
least, could compromise a motor carrier’s
settlement position.
Reportable Crashes
Another major concern raised by the
SMS methodology has to do with “crash
accountability.” The SMS collects all reportable
state and local DOT crash reports for
the “crash indicator” category, all of which
count against that particular motor carrier’s
score regardless of the carrier’s actual
fault. Thus, many crash scenarios may
occur that do not even involve the conduct
of a motor carrier’s driver that will increase
the motor carrier’s BASIC score. For example,
under this methodology, a truck driver
stopped at a stop light who is rear-ended
will be held accountable for a crash that
he or she had nothing to do with. Or, if a
truck driver is headed down a highway
and another vehicle on the other side of an
interstate kicks a tire over into the truck
driver’s lane that hits the driver’s trailer,
the truck driver, and therefore, the motor
carrier, could have a reportable crash in
their records. Dr. Gillette and others agree
that the CSA should not use these types of
crashes to judge a motor carrier, and they,
along with individuals from the FMCSA,
agree that the agency needs to find a way
to expunge these types of crashes from a
motor carrier’s record.
Again, having additional “crashes” in
motor carriers’ SMS records opens the door
for the plaintiffs’ bar to question carrier
safety procedures in front of a jury. Moreover,
the more “crashes” in a motor carrier’s
SMS record, the greater their potential
exposure to punitive damages.
Motor carriers and their attorneys must
adopt systems to investigate and document
all reportable crashes in the carriers’
SMS records and to take necessary
corrective actions immediately. If a crash
occurs that uncovers a violation relating
to the driver’s log book, a motor carrier
AREAS OF EXPERTISE
• Construction Defect Evaluations
• Construction Disputes
• Moisture Intrusion Analysis
• Roof Damage Evaluations
• Construction Accidents
• Vibration Damage Evaluations
TO SUBMIT AN ASSIGNMENT:
should investigate and consider adopting
a policy of spot- checking driver log books
for FMCSA compliance. Even if a “crash”
occurs because a tire flies across an interstate
and strikes a truck, the motor carrier
should investigate, and if the motor carrier
determines that nothing could have helped
prevent the accident or corrective action
is not necessary, then the motor carrier
should document that conclusion. Keeping
a proper paper trail will be the best way
to combat the wealth of data concerning a
motor carrier’s on-the-road performance
that the FMCSA will make available to the
public and to plaintiffs’ attorneys.
Cargo-Related Problems
A third major litigation concern for motor
carriers is that the SMS methodology
potentially will subject carriers to interventions
for alleged violations relating
to load securement and cargo. In many
cases, a contract charges a shipper with
FMSCA Evaluation

Writers’ Corner
Social Proof
Why Precedents Are Persuasive
By Linda Morkan
How is a legal brief like canned laughter? You know
canned laughter: that annoying group laugh used on
sit-coms and late-night talk shows, hinting to the home
audience that something funny has occurred. Indeed,
something absolutely hilarious, as proven by the fact
that the studio audience is laughing and hinting that you
should be, too. Come, laugh with the others! It’s funny,
or else the others wouldn’t be laughing, right?
In the social sciences, this is referred to as “social
proof,” the phenomenon of looking at what other people
think is correct to determine what is correct. In other
words, we believe that when a lot of people do something,
it must be the right thing to do. We find this a handy
shortcut because following someone else’s lead requires
less independent thought and judgment.
Most of us know the laugh-track trick and, if we really
thought about it, we could resist the subliminal message.
After all, we like to judge for ourselves whether something
is humorous, to be the arbiter of our own reactions.
But, other times, we let our defenses down, and we succumb
to the temptation to just go along. If everyone else
is laughing, it must be funny.
So by now you must be asking, “What in tarnation
does the laugh-track trick have to do with great legal
brief writing?” Think about our use of precedents as a
persuasive tool and the answer is clear. We (as persuaders)
dangle in front of our readers (the “persuadees”)
the idea that they should do “x” because others have
done “x.” We are using social proof as a tool of legal persuasion.
“X” is correct because others also think “x” is
correct. Voilà! Of course, because we engage in a more
sophisticated type of persuasion, directed at experienced
“persuadees,” it is usually not enough for us to simply
point to other cases and walk away victorious. We expect
to analyze the precedents that we rely on, pulling them
apart and drawing out the similarities between a representative
case and the case under consideration. The
more similarities that we can show, the more persuasive
the precedent will become. It is as if we are saying,
“Look!” [waving case] “This case is just like the one you
have to decide, and the judge in this case did just what
we think you should do here.” The more you can support
■ Linda Morkan is the chair of the appellate practice group in the Hartford, Connecticut,
office of Robinson & Cole LLP. A longtime member of DRI’s Appellate Advocacy
Committee, Ms. Morkan is also a member of the American Academy of Appellate
Lawyers and was recently named Hartford’s “Appellate Lawyer of the Year.”
78 ■ For The Defense ■ December 2011
your premise that the two cases are “just alike,” the more
likely you are to succeed.
There is no gainsaying how important precedents
are in legal writing. Indeed, even in cases which involve
statutory interpretation—when the text of a statute
should be the primary area of focus—you will instead
see briefs begin with a discussion of cases which have
already interpreted that particular statutory provision.
It is almost as if lawyers think that the most important
information to impart to a judge is: “This has been done
before, and this is how it was done.”
This leads to a second observation about the importance
of precedents. Whereas the theory of social proof
explains why judges find precedents persuasive—both
local and foreign—we all know that judges find cases
decided in their home jurisdictions the most persuasive.
Again, social science has an answer to explain this: We
each have an innate desire to be consistent.
The human desire for consistency is a powerful tool
of influence. Once we have committed to a position, we
have an almost overwhelming urge to portray that action
as the “right” choice. People will go to great lengths
to keep their thoughts consistent with what they have
already decided. On a micro-level, this means that individuals
have a deep-seated desire to take the same position
that they have taken before. On a macro-level, this
means that a court is impelled to the same conclusion
that it has reached before. So, whether you knew it or
not, you have been playing to a judge’s innate bias when
you use precedents from his or her own home jurisdiction
or, even better, from his or her own pen.
Needless to say, attorneys can abuse these forms of
subliminal persuasion. Using a precedent to lead a court
to a conclusion that is not really justified by that precedent
can lead to a less than ideal result, just as blind
conformity can lead societies to commit or accept atrocities.
What makes social proof so useful—its ease of reference—is
also its Achilles’ heel.
So it is most fortunate that, in most of our advocacy,
we have attorneys on both sides of a dispute. If one lawyer
tries to stretch a precedent beyond its natural elasticity,
his or her opponent can warn a judge and keep that
judge from too quickly succumbing to social proof. We
also have experienced jurists, some might even say suspicious
or cynical jurists, who are not easy marks and
know that sometimes canned laughter is just masking a
joke that isn’t really very funny.

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ThInk gLObaLLy
10 Tips
Obtaining Evidence Successfully in
Canada to Use in a Foreign Proceeding
By Richard McCluskey and Lisa Parliament
With an increasing number of cross- border transac- the interests of justice. To the extent possible, a letter of
tions occurring in today’s marketplace, evidence rele- request should make it clear that justice cannot be served
vant to a dispute in one jurisdiction can be located on the between the parties without the Canadian evidence. It
other side of a border. When relevant documents or wit- should also explicitly state that the requester needs the
nesses find themselves within Canada, foreign litigants evidence for pending rather than anticipated litigation.
will need to initiate the two-step process for obtaining 3. Identify the evidence sought with reasonable
evidence abroad through a mechanism known as a “let- specificity. A Canadian court may not enforce a letter
of request.” First, a party seeking to compel Canadian ter of request if the information seeker does not clearly
evidence must bring an interlocutory motion or applica- identify the information. Canadian courts have consistion
before the court in which the litigation is pending to tently refused requests that amount to fishing expedi-
have that court issue a letter of request. Second, the party tions. However, Canadian courts may enforce overbroad
must bring an application before a court in the Cana- requests in part, and they may enforce more restricted
dian jurisdiction where the evidence is located seeking forms of requests outlined in the letters. To increase the
an order enforcing the letter of request.
odds that you will achieve successful enforcement, a let-
While Canadian courts have discretion regarding ter should list the documents sought by class or cate-
enforcing letters of request, they are usually inclined to gory, at a minimum.
show deference to a foreign court’s request in the inter- 4. Explain why the evidence is not otherwise
ests of promoting comity. That said, Canadian courts obtainable. If the information sought is available in the
have also made it clear that when they have applica- foreign jurisdiction, by which here we mean someplace
tions for orders enforcing letter of requests before them, other than Canada, the Canadian court probably won’t
they will not rubber- stamp them, and Canadian courts enforce a letter of request. Similarly, a requesting party
should not enforce letters of request routinely.
should first attempt to obtain the documents voluntarily.
Below we offer 10 practical tips for foreign litigants And Canadian courts will require more than bare asser-
to make obtaining evidence in Canada as smooth a protions that evidence is otherwise unavailable.
cess as possible.
5. Ensure that a request does not contravene
1. Establish with sufficient detail that the evi- Canadian public policy. Courts will not enforce letdence
sought is relevant. Canadian courts will only ters that are manifestly unjust or immoral. A Canadian
enforce letters of request when the evidence sought is court asked to enforce a letter of request will also weigh
obviously relevant to the foreign litigation. Canadian whether the evidence is necessary against the proposed
courts interpret relevance narrowly, and potential rel- order’s impact on Canadian sovereignty. Courts are speevance
is insufficient. A Canadian court will consider cifically loath to enforce requests that amount to extra-
whether the requested evidence is squarely related to the territorial applications of foreign policy objectives.
allegations set out in the foreign pleadings.
6. Ensure that a request is not unduly burden-
2. Demonstrate that the evidence is necessary for some. Take steps to minimize inconveniencing the per-
pretrial discovery purposes or for a trial. A Canadian son or entity from which you seek evidence. A Canadian
court will consider whether the evidence is necessary to court will evaluate the burden placed on a non-party witness
and compare it with the probative value of the evi-
■ Richard McCluskey is an associate in the Litigation and Dispute Resolution dence. The more onerous the request, the less likely a
Group at McMillan LLP in Toronto. He maintains a broad civil and commercial lit- court would grant it.
igation practice and is developing expertise in cross- border litigation. Lisa Par- 7. Consider whether you are making a documenliament
is a partner in McMillan’s Litigation and Dispute Resolution Group, with tary request or a request to examine a witness. In
expertise in product liability and class action defense. She regularly advises lead- general, a Canadian court will consider the same factors
ing companies on multi- jurisdictional coordination and cross- border issues, risk whether enforcing a documentary request or a request to
assessment and management, and litigation management. Think Globally

Cell Phone, from page 30 field exposure as it develops, to stay on the
phone radiation case stated that “state-law
claims would upset the balance” of safety
and efficiency struck by the FCC standards.
Amicus Curiae Br. of United States & Fed.
Comm. Comm’m, Murray v. Motorola, Inc.,
982 A.2d 764 (D.C. 2009). In the future,
courts likely will defer to this agency determination
of conflict with state laws. See
Williamson v. Mazda Motor of Am., Inc.,
131 S. Ct. 1131, 1139 (2011).
Conclusion
Though cell phone radiation litigation probably
will not succeed, attorneys representing
defendants and potential defendants
can and should nonetheless recommend
the following two measures to reduce
exposure.
First, recommend that potential defendants
continue to follow the science on the
hazards of radiofrequency electromagnetic
Falling asleep, from page 70
enforce the 70-hour rule could result in
sloppy logging of on-duty time with the
concomitant risk of exceeding the time
limitation, thus causing fatigue.” Id. This
was enough for the court to send the punitive
damages decision to the jury. Id.; see
also Came v. Micou, 2005 WL 1500978, at
*5 (M.D. Penn. Jun. 23, 2005) (“failure to
conduct any investigation into [the driver’s]
hours of service… constitutes reckless
indifference to the rights of others”); McAchran,
2009 WL 888539, at *6 (reversing a
summary judgment on the punitive damages
claim in favor of the defendant and
remanding the case for trial on punitive
damages in part because the carrier “failed
to take any actions to ensure specifically
that [the driver] did not violate the federal
regulations regarding maximum allowable
hours of service”); Innovative Container
Company, LLC v. Son Light Trucking, Inc.,
2006 WL 895021, at *8 (D.S.C. Apr. 3, 2006)
(finding the motor carrier “exhibited a conscious
indifference to the consequences of
exceeding the hours- of- service requirements
by putting a tired driver on the road
and destroy[ing] the logbooks to prevent
uncovering this information”).
Courts view a motor carrier’s failure to
monitor HOS compliance as “send[ing] a
message to drivers that hours of service
cutting edge of consumer safety. And recommend
that potential defendants also
document their consumer safety efforts informed
by the science. While this science
now does not appear to establish a link between
radiofrequency electromagnetic field
exposure and adverse health effects, conceivably
the prevailing scientific view could
change. In that event, defendants that could
point to a record of inquiry into and adherence
to state-of-the-art safety standards
would have a potent defense during trials.
Second, when representing defendants
in state courts, defense attorneys should
consider removal. Some states have more
lenient standards for the admission of
expert testimony, raising the possibility
that a court could admit as evidence the
questionable science cited in the IARC
report. The IARC does plan to release a longer
version of the report, although it prob-
violations were acceptable conduct.” Trotter,
2006 WL 1004882, at *7. Clearly, the
goals of deterrence and punishment underpin
these decisions.
A related but separate reason courts
permit juries to consider levying punitive
damages against a motor carrier is that
the carrier provided incentives to its drivers
to work long hours or forego adequate
rest. For instance, in Briner, the court criticized
the livestock carrier’s payment system,
which paid its drivers a percentage of
the gross truck revenue. Briner, 337 N.W.2d
at 868. The greater the number of truckloads,
the more the drivers earned. Id. If
a driver could not make it to a loading site
early in the morning, then loading the livestock
would be put off until another day. Id.
Thus, a driver had “great incentive to arrive
by early morning.” Id. Because the court
found that the carrier was “fully aware of
the habits of [its] drivers,” it overturned the
motion for a summary judgment in favor
of the defense and remanded the case for a
jury trial on punitive damages. Id.
As mentioned briefly above, if the case
facts suggest that profits may trump safety
for a carrier, a court will likely permit a
jury to consider awarding punitive damages.
Trotter offers one striking example:
the carrier’s director of safety explained
during his deposition that “my own gut
ably will not include anything that would
make the IARC cell phone findings more
credible evidence. See Press Release 208,
IARC Classifies, supra, at 1; Baan, et al.,
supra, at 624.
Also, federal courts tend to rule on
issues of preemption more frequently that
state courts. Given federal courts’ relative
familiarity with preemption doctrine, it is
more probable that they will rule that federal
law preempts a radiofrequency electromagnetic
field lawsuit.
In sum, although it appears unlikely at
this point that those involved in mobile
telephony will incur significant liability for
personal injuries caused by radiofrequency
electromagnetic field emissions, defense
attorneys advising those parties would do
well by those clients by preparing them to
defend themselves on the general causation
front, given the potential number of claimants.
reaction, if you will, was that money took
precedent over safety” for the carrier. 2006
WL 1004882, at *7. The court explained
that “‘[m]oney [taking] precedent over
safety’ is virtually the definition of the
kind of corporate behavior warranting an
award of punitive damages.” Id.
A less common reason courts will permit
juries to consider awarding punitive
damages is that a carrier had knowledge of
a driver’s history of a fatigue problem and
failed to address it adequately. For instance,
in Matthews, the bus driver was involved in
a previous, fatigue- related accident while
employed by the company, and the company
didn’t complete the background check
on the driver, failing to get a report concerning
the driver’s previous employment
that it had requested but didn’t receive,
which would have revealed that the driver
had two other fatigue- related accidents.
882 F. Supp. at 149. This was sufficient to
defeat a summary judgment motion on
the punitive damages claim. Id. In Came,
the fact that the carrier knew about one
of the driver’s previous accidents involving
fatigue, and should have known about
two other previous accidents involving
fatigue, contributed to the court’s decision
to deny a summary judgment request on
the punitive damages claim. Came, 2005
WL 1500978, at *5.
For The Defense ■ December 2011 ■ 81

Attorneys defending motor carriers in
lawsuits will want to note that if a court
finds that a driver’s conduct did not rise
to the level of culpable conduct warranting
punitive damages, it will likely find
the same for the carrier as well, even if
a plaintiff asserts direct claims against
the carrier. See, e.g., George, 708 S.E.2d at
208 (“because we conclude that [plaintiff]
offered an insufficient forecast of evidence
that [the driver] engaged in willful or wanton
conduct, we likewise conclude that
there was an insufficient forecast of evidence
that Greyhound participated in or
condoned [the driver’s conduct]”); Burke,
904 F.2d at 184 (“Since the evidence is
insufficient to allow an award of punitive
damage against [the driver], it follows that
no punitive damages can be awarded vicariously
against [the carrier].”).
Think Globally

Q:
Wal-Mart v. Dukes
Who takes a stand on the cases that
matter most to you, your firm and
the defense bar?
“Allowing hundreds of thousands (and now over a million) of
individuals to file a singular, overly generalized claim clearly
disregards the requirement of individualized proof. While we hope
justice is served for anyone who faces discrimination, this enormous
aggregation of truly disparate claims could not result in any kind of
just and fair ruling.”
—R. Matthew Cairns, Immediate Past President of DRI
AAAAAmmerican American Electric El Power Company v.
State Stat of Connecticut
“Singling out these five utility companies is legally dubious and
an ill-suited avenue for tackling global warming issues. The
Supreme Court’s review of this case should reinforce and clarify
existing precedent on the appropriate roles for the courts,
legislature, and regulatory bodies in climate change issues.”
—John Parker Sweeney, Second Vice President of DRI and
Ocer Liaison to the Climate Change Litigation
Task Force
A: DRI—taking
on the
issues that matter.
■ American Electric Power
Company v. State of
Connecticut
■ AT&T Mobility v. Concepcion
■ E.P.J. Fund v. Halliburton
■ Greenwood v. CompuCredit
■ Harvey and Mowdy v. KAG
West and Kennan Advantage
Group Inc.
■ Matrixx Initiatives v. Siracusano
■ Minneci v. Pollard
■ Philip Morris USA Inc. v. Jackson
■ Wal-Mart v. Dukes
■ White and Case v. United States
of America
www.dri.org

FMSCa evaluation, from page 77 Smith v. N. Dewatering, Inc., 2004 U.S. Dist. tions, motor carriers must proactively seek
loading and sealing the cargo, especially Lexis 2648, at *6 (D. Minn. Feb. 19, 2004). the ability to inspect, verify, and potentially
when a motor carrier will haul a hazard- However, despite this, in many cases a even load the cargo that they will ship.
ous material. Also, contracts often prohibit shipper is the entity that loads and secures
a motor carrier’s employees and drivers the cargo, leaving the motor carrier to take Conclusion
from breaking the cargo seal. However, the the majority of blame for any related negli- In conclusion, the CSA program involves
CSA methodology still holds the motor cargence. Law enforcement may break a cargo comprehensive data gathering and measurrier
accountable for load securement viola- seal to inspect it, and if an officer finds ing methodology to evaluate and rate each
tions or anything else that the shipper did violations, a motor carrier’s BASIC score individual motor carrier based on its per-
incorrectly.
may increase due to the shipper’s failure. formance in many different fields of safety
Federal regulations “place the burden of And in cases involving hazardous material compared with relevant peers. However, it
load securement upon the carrier. See 49 releases, the potential for punitive damages will make more data available to the public
C.F.R. §§390–393 (2002). These regulations may be high.
and to plaintiffs’ attorneys than in the past,
require carriers to inspect whether cargo Dr. Gillette believes that in the future so motor carriers must proactively monitor
is properly distributed and adequately many motor carriers may seek contractual their own safety status, immediately inves-
secured both before driving a truck and requirements permitting their drivers to tigating violations and crashes and taking
during transport. (See 49 C.F.R. §392.9(b); physically inspect cargo before agreeing to corrective action. Properly investigating
Smart v. Am. Welding & Tank Co., 149 N.H. transport loads, or they many seek adden- and responding to safety concerns, will
536, 826 A.2d 570, 573–74 (N.H. 2003)). dums to contracts to protect themselves. permit motor carriers to combat attempts
Thus, under federal law, responsibility for Since federal law holds motor carriers to use the tools and conclusion of the CSA
improper loading generally rests with the responsible for load- securement shipper against them in litigation.
carrier, even if the shipper loads the cargo.” negligence and other cargo- related viola-
Mexico, from page 65
ipated in the 2007–2009 Demonstration
Project are to be exempt from
payment of the application fee.
2. All Mexican- domiciled motor carriers
that wish to participate in
international freight cross- border
trucking services in the U.S. are to
undergo a Pre- Authorization Safety
Audit (PASA) performed by FMCSA,
in accordance with Title 49 of the
U.S. Code of Federal Regulations
(CFR), Part 365, as may be amended.
The PASA will include the following,
in addition to any other requirements
set out in the Federal Motor
Carrier Safety Regulations (FMC-
SRs): …
Id. at Annex 1.
Annex 1 continues in some depth, establishing
driver national security and criminal
background checks, exclusion criteria
set forth by the U.S. Customs and Border
Protection of the U.S. Department
of Homeland Security, communication
between the parties’ security agencies,
record inspection and review regarding
performance data and safety management
programs, alcohol testing, compliance with
hours- of- service rules, and other regulations
that U.S. trucking companies must
abide by.
84 ■ For The Defense ■ December 2011
On its face the 2011 MOU appears to regulate
Mexican truck drivers and companies
using safety and reporting obligations recognized
by the U.S. Department of Transportation.
See id.
The Impact of the 2011 MOU
on Safety and Small
Trucking Businesses
As the borders become easier for Mexican
trucking companies to cross, so too
will it become easier to overcome the hurdles
that have hindered efficiently transporting
and shipping Mexican products
to the United States. Trucking analysts
on all sides have expressed opinions on
the effect that the 2011 MOU will have
on small trucking companies. Not surprisingly,
perhaps the loudest argument
against cross- border trucking has foreseen
danger to the American worker and small
business owner, using the oft-raised specter
of cheaper Mexican labor undercutting
its American counterpart. They argue
that this will result in, among other things,
American workers losing jobs to Mexican
trucking, or lowering wages for American
workers. The AFL-CIO, the largest federation
of unions in the United States, for
example, views it as unfair to U.S. workers
and corporations unless the pilot program
added provisions that would require signa-
tory countries to adjust wages upwards and
raise labor and environmental standards.
Does that argument hold water? Supporters
of NAFTA and cross- border trucking
will say no, even though U.S. employment
rose from 110.8 million people in 1993 to
137.6 million in 2007, which roughly covers
the period during which NAFTA took effect
and its originally scheduled full implementation,
an increase of 24 percent. But the average
unemployment rate was 5.1 percent
from 1994–2007, compared to 7.1 percent
from 1980–1993. Additionally, U.S. business
sector real hourly compensation rose
by 1.5 percent each year between 1993 and
2007, for a total of 23.6 percent over the full
period. During 1979–1993, the annual rate
of real hourly compensation rose by only .7
percent each year, or 11 percent over the full
14-year period. See NAFTA Facts, NAFTA—
Myth vs. Fact, supra.
Another common argument against
Mexican cross- border trucking is that
Mexican safety standards do not match
those of domestic carriers, thereby making
them unsafe, or at the very least, less safe
than American trucks. Opponents argue
that Mexican trucking companies have
lower safety standards, employ “more dangerous”
drivers, do not have proper insurance
policies, and could become a source
of increased congestion and accidents on

American roadways. A simple Internet
search of “Mexican Trucking Safety” brings
up countless websites decrying the opening
of the border as the end of days.
The evidence, however, may not bear this
out. Mexico has 1,309 trucking companies
that the United States exempted from the
1982 moratorium. Of the exempted companies,
859 actively crossed the U.S. border
from 2003 to 2006, and United States subjected
their drivers and trucks to inspections
for violations that would put them
out of service until corrected. The “out- of-
service” rates for long-haul Mexican trucks
Reprehensibility

may decide that failing to take this action
constitutes more reprehensible conduct—
particularly if a defendant knew that the
product was, in fact, defective, and did not
try to make the product safer.
Conclusion
The U.S. Supreme Court’s project of establishing
constitutional rules for punitive
damages awards is not yet complete. The
law particularly needs to resolve the mis-
86 ■ For The Defense ■ December 2011
match between the factors that the Court
has identified for assessing reprehensibility
in economic tort cases with the typical facts
at issue in product liability cases. The work
must begin in the lower courts. In states
where juries have the first-line responsibility
to ensure that reasonable punitive damages
verdicts prevail, trial courts should
take the first step of providing suitable
instructions that recast the reprehensibility
factors along the lines outlined above. If
juries return verdicts that include punitive
damages awards, both trial courts and appellate
courts should review those verdicts,
taking manufacturers’ design and post-
design conduct into account. And counsel
must attempt to convince these courts
that they should not reflexively use a set of
factors that the U.S. Supreme Court never
intended as exclusive and applicable to all
cases, and which, in product liability cases,
at least, are a poor fit.
Rapid

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Pennsylvania
Bonnie S. Stein, Morrisville
Maria L. Panichelli,
Philadelphia
Terence M. Pitt, Philadelphia
Adam S. Ennis, Pittsburgh
Edward A. Smallwood,
Pittsburgh
Puerto Rico
Edna M. Tejeda, Hato Rey
Rhode Island
Kevin J. Gallagher,
Providence
Andrew J. Murray,
Providence
South Carolina
J. Bennett Crites III,
Charleston
R. Daniel Addison, Columbia
Curtis Dowling, Columbia
Joseph A. Rhodes, Jr.,
Greenville
South Dakota
Brooke Swier Schloss,
Avon
Heather Lammers Bogard,
Rapid City
Meghann Joyce, Sioux Falls
Tennessee
Robert Scott Durham,
Knoxville
Matthew G. White, Memphis
Texas
Jacquelyn V. Clark, Dallas
Abigail A. Mathews, Dallas
Sarah L. Rogers, Dallas
Josh N. Bowlin, Houston
Joshua W. Mermis, Houston
Utah
Matthew C. Ballard,
Salt Lake City
Stewart O. Peay,
Salt Lake City
Vermont
Jon T. Alexander, Burlington
Nicole Andreson, Burlington
Sean M. Toohey, Burlington
Virginia
Angela B. Axselle,
Glen Allen
M. Andrew Boran, Norfolk
Virginia
J. David Crain, Norfolk
Washington
Meredith E. Dishaw, Seattle
Aimee N. Maurer, Spokane
West Virginia
Joseph T. Cramer, Charleston
Suleiman O. Oko-ogua,
Charleston
Shannon Smith, Morgantown
Justin M. Hershberger,
Wheeling
Wisconsin
Laura M. Lyons, Madison
Spencer E. Davczyk, Wausau
australia
Queensland
Mark V. Victorsen,
Brisbane
Canad

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