For The Defense, December 2011 - DRI Today

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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 Engineers, Architects, Scientists & Fire Investigators Admiralty / Maritime Architecture / Premises Safety Aviation Biomechanical Engineering Construction Claims / Injuries Crash Reconstruction Dram Shop / Liquor Liability Education / Supervision Electrical Engineering 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 With 175 experts at one firm, Robson Forensic provides expertise in more than 75 unique disciplines. Visit us online for expert bios and CVs. www.robsonforensic.com | 800.813.6736 For The Defense ■ December 2011 ■ 53
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Page 91 and 92: Pennsylvania Bonnie S. Stein, Morri
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