The Cost of Risk: Don’t be sunk by junk

During a trial over a major accident, the plaintiff’s attorney declares that the Federal Motor Carrier Safety Administration assigned your company a conditional safety rating. You wince as you imagine the jurors mentally adding zeros to their upcoming judgment.

But the jury never should have heard this information. Your safety rating is altogether irrelevant as to whether your driver was at fault in a specific accident, notes Michael Langford, a partner with Scopelitis, Garvin, Light & Hansen who specializes in motor carrier defense. Except possibly in a negligent hiring case, a conditional or unsatisfactory safety rating constitutes inadmissible “character evidence” under Federal Rules of Evidence, Langford said in a presentation last month to the 17th annual CCJ Spring Symposium in Tuscaloosa, Ala.

Accident litigation, Langford said, should revolve around just three questions: Who was at fault? Were there injuries or damages? What are the damages based on the injuries sustained? “Sometimes, plaintiffs don’t like the answer to those questions. What do you do if you don’t like those answers? You try to bring in a lot of other stuff that will be dressed up as relevant. That’s junk evidence.” It shows up not just in jury trials but in settlement discussions, mediation and arbitration. Typically junk evidence involves information involving the carrier or driver or provided by an unqualified expert.

One sign that plaintiffs are planning to introduce junk evidence is when they seek discovery of the motor carrier’s size, earning capacity, revenues, profits or wealth, Langford said. Unless punitive damages are pending, that information is irrelevant.

Negligent hiring, training, qualification, entrustment or supervision also are fertile areas for junk evidence. Most jurisdictions presume that the company generally is liable for the actions of its drivers, so a negligent hiring claim is irrelevant, Langford said. But if a driver is so unqualified that he doesn’t meet Department of Transportation minimum standards, the carrier might be subject to punitive damages in some jurisdictions.

Other examples of junk evidence related to motor carriers is use of SafeStat data, which FMCSA itself deems to be unreliable without additional analysis; and the existence of past accidents, unless they occurred under “substantially similar circumstances.”

Junk evidence involving drivers often stems from convictions against or guilty pleas by the driver being brought into the civil lawsuit against the motor carrier for the same accident, Langford said. Specific jurisdiction may differ, but the majority rules are that in the case of felonies, both convictions and pleas are admissible. “No contest” pleas generally are not.

In the case of misdemeanors or traffic offenses, however, a conviction generally is not admissible, while a plea is admissible but not conclusive, Langford said. That may put the interests of the driver and carrier in conflict. “It’s better for you if he fights – win or lose. But it may be better for him to cop a plea.”

Several problems arise when plaintiffs try to introduce expert testimony. For example, opinions about how truck drivers would or should perceive a given situation call for a “human factors” analysis that requires expertise in that field, Langford said. Or a retired bureaucrat might try to comment on whether a party violated safety regulations or had a legal duty to do something. But case law makes it clear that the meaning of federal regulations is a question of law to be resolved by courts, and experts can’t offer testimony on imposition of legal duties, he said.

Perhaps surprisingly, the opinions of law enforcement personnel about causation often are inadmissible unless the officer witnessed the crime or had specific training or experience in accident reconstruction, Langford said.

What do you do if you confront or anticipate junk evidence? You can file motions and appeals. And don’t give up on blocking evidence that is unfavorable but not necessarily junk. You can strike a quid pro quo deal with the plaintiff to withhold unflattering information against him in exchange for the same consideration. You can even pay the plaintiff not to offer damaging information into evidence.
Sean Kelley contributed to this article.