For The Defense, December 2012 - DRI Today

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On The RecORd 

DRI—A Supportive, Encouraging Environment 

Einstein, My Mother, and Balance 

By Amy L. Miletich, Chair, DRI Employment and Labor Law Committee 

I lost my mother a few months ago. We all have—or 

will—experience such loss. It is one of the sad inevitabilities 

in one’s existence where you are compelled to 

come to grips with what your life is all about—a point 

where you assess where you have been and where you are 

going—and how this all-too-short span of being must be 

treasured. For all of us in this extraordinarily busy profession, 

we are pulled in different directions as our time 

is carefully allocated between family, friends, and career. 

Einstein once said, “Life is like riding a bicycle. To keep 

your balance you must keep moving.” The challenge each 

of us faces each day—as we attend to the needs of our 

families, clients, and practices—is to attempt to achieve 

the unattainable perfect balance. So as you read this column, 

I appreciate that you have chosen to do so with the 

variety of other precious demands on your time. 

As we all know, we have very challenging jobs as legal 

service providers. The highs are very much so, and the 

depths of certain lows sometimes seem insurmountable. 

Relationships with the like-minded and the similarly situated 

can enhance the joys of your practice and provide 

guidance and support during times of uncertainty. DRI 

is only one of a host of professional organizations that we 

attorneys can join. I would strongly argue, however, that 

it is one that truly stands apart from the rest. 

I have been a member of DRI for many years. An 

outstanding legal education seminar is what first drew 

my attention to the organization. Upon attending, I 

observed the relationships, friendships, and support 

among the committee members. When I expressed an 

interest in becoming involved, several committee members 

took me under their wings and granted my wish. I 

have recently been given the honor of being appointed 

the chair of the Employment and Labor Law Committee 

for this next year. It is my hope and goal to continue 

the great work of my predecessors and to contribute to 

the maintenance of a supportive environment for all our 

committee members. 

In addition to its excellent substantive law committees, 

DRI should be commended for its efforts at promoting diversity. 

During the time I have been a member, DRI has 

launched a Diversity Committee, as well as the Women 

in the Law Committee. Of the 22,000-plus attorney membership 

of DRI, over 6,000 members are women. DRI’s 

new president is the wonderful Mary Massaron Ross. My 

mother would have relished the opportunities that such 

an organization now provides to its members. 

I have been blessed with a 13-year-old daughter and 

an 11-year-old son. With respect to my daughter, my husband 

says she possesses “an old soul”—but one trapped 

at present in a teenager’s body. I appreciate that my life 

during this particular year will thus be devoid of boredom 

and full of surprises. My daughter motivates me 

to aspire to a higher purpose. I know that her world is 

and will be different than the one I was raised in—and 

it is part of my mission to ensure that it is one where her 

innate abilities will be not just recognized, but embraced 

and cherished. As a parent, we want to provide lessons 

to our children. I hope that by observing my commitment 

to my practice and to DRI, my children will learn 

the benefits of a profession and membership in a professional 

community, particularly one that encourages its 

members to step up and contribute their best efforts to 

advance the organization’s goals. DRI provides me with 

a concrete example of how one can make achievements 

through cooperative effort. 

This is not to say we will always agree or that spirited 

discussions will not occur. As attorneys, however, 

we should reconsider how we assess different points of 

view and attempt to view disagreement as a natural and 

constructive force, rather than just an obstacle in our 

path—reminding ourselves that “a kite rises against, not 

with the wind” and that “all polishing is done by friction.” 

As Joseph Joubert (1754–1824) once stated, “The 

aim of argument, or of discussion, should not be victory, 

but progress.” 

I used to call my mother daily. Her gentle wisdom 

and encouragement was a source of comfort to me that 

seemed to transcend all the difficulties that I encountered. 

I so miss her advice—often delivered through 

pregnant pauses of silence. I have learned that what she 

failed to express was at times more instructive than the 

advice she offered. But now—as I only have her memory 

and silence to guide me—I so wish I had access to 

her frank insights. She helped me maintain my balance. 

DRI is worth your time. It has been my experience 

that the time that you devote will return a multitude of 

benefits from both a professional and personal perspective. 

You will gain friendships and professional acquaintances 

that will advance your career and will make you 

appreciate the many aspects of this wonderful profession, 

despite its tremendous demands. Your membership 

will assist you in achieving the balance we all seek. 

For The Defense ■ December 2012 ■ 1

DRI—The Voice 

of the Defense Bar 

Vol. 54, No. 12 December 2012 

President Mary Massaron Ross 

Bloomfield Hills, Michigan 

Immediate Past President Henry M. Sneath 

Pittsburgh, Pennsylvania 

President-Elect J. Michael Weston 

Cedar Rapids, Iowa 

1st Vice President John Parker Sweeney 

Baltimore, Maryland 

2nd Vice President Laura E. Proctor 

Nashville, Tennessee 

Secretary-Treasurer John E. Cuttino 

Columbia, South Carolina 

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 2012, Vol. 54, No. 12 (ISSN 

0015-6884). Copyright ©2012, 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 2012 

In ThIs Issue 

1 On The Record 

DRI—A Supportive, Encouraging Environment: Einstein, My Mother, and Balance 

By Amy L. Miletich, Chair, DRI Employment and Labor Law Committee 

4 DRI News 

Members on the Move • DRI Calendar 

6 2012 Annual Meeting 

The 21st Century Lawyer 

dRug and MedIcal devIce 

16 Removal Tactics 

Make a Federal Case Out of It 

By Paul E. Wojcicki and Joseph F. Kampherstein III 

gOveRnMenTal lIabIlITy 

22 From the Chair 

Quality Service Means 

Lofty Goals Will Be Met 

By Phillip E. Friduss 

24 Doing Hard Time 

Defending Against Prisoners’ and 

Disabled Prisoners’ Claims 

By John B. Mullahy and Christopher U. Warren 

30 Old-School Analysis of New-School Technology 

Supreme Court Prohibits 

Warrantless GPS Tracking 

By David E. Schrock 

TRuckIng law 

50 From the Chair 

Don’t Be a Wallflower 

By Tamara B. Goorevitz 

52 Prepare to Comply 

The Industry’s Role in Our 

Nation’s Food Safety 

By Kathleen A. Hardee 

59 The Carmack Amendment 

Limiting Common Carrier 

Liability for Lost or 

Damaged Cargo 

By Lauren Fajoni Bartlett 

64 Workers’ Compensation 

Unique Issues for Overthe-Road 

Drivers 

By Sasha L. Monthei and Kent M. Smith 

35 Horse of a Different Color 

The Law Enforcement Client 

By Christopher Boyle 

40 From Both Ends… 

Fostering, Promoting Outside 

Counsel Relationships 

By Hina Sherwani 

44 Beyond the Political Rhetoric 

The Basics of Voter 

Identification Laws 

By Sun S. Choy and Peter L. Munk 

69 For Better or for Worse 

The Future of Electronic On-Board Recorders 

By Kenneth P. Abbarno and David A. Valent 

73 I Want My Truck Back—Now! 

Spoliation in Serious Commercial 

Motor Vehicle Cases 

By Jay R. Starrett and Thomas Gonzalez 

77 Aging Drivers and the Plaintiff 

Lawyers Who Love Them 

Strengthen Your Defense and 

Protect Your Client’s Privacy 

By Matthew P. Stone and Shawn Kalfus 

82 No Simple Calculation 

Why Courts Should Not Admit 

CSA Scores as Evidence 

By John R. Crawford and Benjamin A. Johnson 

86 Writers’ Corner 

The Use of the Passive Voice: How to Confuse Your Reader Effectively 

By Kimberly J. Kanoff and Ilana Lazarus 

87 Think Globally 

Código de Defesa do Consumidor: An Overview of Product Liability in Brazil 

By Rosângela Delgado Barreto 

88 Defense Ethics and Professionalism 

Concurrent Representations: Curing Government Client Conflicts through Consent 

By Douglas R. Richmond 

92 Advocates and New Members

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dRI news 


Members on the Move Michael Marick, a name partner in the Chicago- 

Lewis Wagner is pleased to announce that Edward 

Fujawa has joined the INDYCOG board of directors. 

INDYCOG is a nonprofit organization dedicated to 

promoting bicycling as a safe and viable means of 

transportation and recreation in Indianapolis. The 

organization’s collaborations with local businesses, 

nonprofit organizations, and local government create 

a network of bicycle infrastructure that is safe, convenient, 

and enjoyable for the whole community. An 

avid cyclist, Mr. Fujawa is an associate in Lewis Wagner’s 

medical malpractice group. Prior to joining the 

firm, he acted as in-house counsel at the Indiana Department 

of Insurance, defending the Patients’ Compensation 

Fund against medical malpractice claims. 

Kyle Sweet of Sweet Law Firm announced recently 

the addition of three new partners of the firm, Oklahoma 

City-based Vanessa A. Hicks and Curt Dewberry, 

and Tulsa-based W. Joseph Pickard, who 

will manage the new Tulsa/Eastern Oklahoma practice. 

The Tulsa office will allow the firm to continue 

to expand client services at a cost saving. In addition 

to having fully staffed offices in Oklahoma City 

and Tulsa, the firm will also harness technology to 

bring to bear the attorney and support functions of 

its national practice. 

Picadio Sneath Miller & Norton is pleased to announce 

that Alan S. Miller has been elected chair of 

the Board of Allegheny Land Trust (ALT), the preeminent 

land trust organization for Allegheny Country, 

Pennsylvania, and its environs. Mr. Miller has served 

on the board of ALT for the past eight years, and is 

honored to lead the board of directors of this important 

land trust nonprofit organization and to work 

closely with ALT’s new executive director, Chris Beichner. 

Mr. Miller’s service as board member and now 

chair continues the Picadio Sneath Miller & Norton’s 

long connection with ALT. Anthony P. Picadio was one 

of the founding members of the ALT, having guided 

the inception and early growth of the organization. 

based firm of Meckler Bulger Tilson Marick & Pearson 

LLP, has been elected to membership in the 

American Law Institute. Mr. Marick is among 68 

newly elected members nationwide, including other 

leading lawyers, judges and law professors. He is a 

founding member of Meckler Bulger Tilson Marick 

& Pearson, a 100- attorney firm widely known for its 

nationwide insurance coverage and bad faith practice. 

For more than 30 years, Mr. Marick has represented 

insurers across the country in high exposure 

disputes over liability coverage at the claim stage, in 

trial courts, and on appeal. He has represented insurers 

in a broad range of coverage and bad faith matters, 

including toxic torts, environmental matters, professional 

liabilities, and many other types of losses. 

Kevin Birkenmeier has joined HeplerBroom 

LLP in the Edwardsville, Illinois, office as an associate 

attorney. Mr. Birkenmeier graduated from Saint 

Louis University School of Law, cum laude in 2012. 

While in law school he was on the Law Trial Advocacy 

Team. He has a B.S. in Business Administration, 

summa cum laude from the University of Missouri. 

He is licensed to practice law in Illinois and the 

United States District Court for the Southern District 

of Illinois. HeplerBroom LLC traces its history 

to 1894 and has 88 attorneys in its offices located in 

Edwardsville, Chicago, and Springfield, Illinois, and 

St. Louis, Missouri. 

Christian & Small LLP is pleased to announce 

the firm has earned a First-Tier ranking in the 2013 

edition of the U.S. News “Best Lawyers Best Law 

Firms” rankings. Christian & Small represents a 

diverse clientele throughout Alabama, the Southeast, 

and the nation with clients ranging from individuals 

and closely held businesses to Fortune 500 

corporations. 

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. 

2013 

January 8 Professional Liability 101: Insurance Producer Liability Webcast 

January 24–25 Fire Science and Litigation Seminar Scottsdale, AZ 

January 31– 

February 1 

Civil Rights and Governmental Tort Liability Seminar Phoenix 

February 5 Professional Liability 101: Insurance Coverage Webcast 

February 28– Toxic Torts and Environmental Law Seminar New Orleans 

DRi Calendar 

March 1 

Investigative Technologies Inc. 

AreAs of expertise: 

• Biomechanical 

• Civil/structural 

• Construction 

• Consumer products 

• Disaster 

March 13–15 Women in the Law Seminar Miami Beach 

March 20–22 Trial Tactics Seminar Las Vegas 

March 21–22 Medical Liability and Health Care Law Seminar Miami Beach 

April 3–5 Product Liability Conference National Harbor, MD 

April 10–12 Insurance Coverage and Claims Institute Chicago 

April 24–26 Life, Health, Disability and ERISA Claims Seminar Boston 

May 1–3 Employment and Labor Law Seminar Phoenix 

May 3 Fidelity and Surety Roundtable Chicago 

May 9–10 Business Litigation Seminar Chicago 

May 9–10 Intellectual Property Seminar Chicago 

May 16–17 Drug and Medical Device Seminar New York City 

May 16–17 Retail and Hospitality Litigation and Claims Management Seminar Chicago 

May 30–31 Diversity for Success Seminar Chicago 

June 6–7 Insurance Bad Faith and Extra-Contractual Liability Seminar Boston 

June 6–7 Trucking Law Primer Chicago 

TM 

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Chicago 


2012 ANNuAL MEETING 



2012 Annual Meeting: The 21st Century Lawyer 

Newly elected leadership. 

New Orleans, renowned for sweet music and divine 

food, had all of the history, culture, mystery, and 

sensuality that visitors expect on display for attendees 

of DRI’s 2012 Annual Meeting. 

This year’s Annual Meeting keynote presentations 

included a blockbuster on Thursday morning 

by Karen Hughes and Dee Dee Myers who—having 

worked for President George W. Bush and 

President Bill Clinton, respectively—engaged in a 

lively and timely point/counterpoint discussion of 

the political landscape in the weeks leading up to 

the presidential election. Friday’s keynote speaker 

was internationally acclaimed author Niall Ferguson, 

one of the world’s leading historians of the 

global economy, who riveted attendees on Friday 

with a program that spanned the ambitious themes 

of economic globalization, the interface between 

finance and politics, and the shifting face of global 

power from West to East. Other notable main stage 

speakers throughout the meeting included Terri 

Morrison, author of Kiss, Bow or Shake Hands; 

Paul Sullivan, author of Clutch; and Shankar Vedantam, 

author of The Hidden Brain. Adding depth 

and texture to the CLE offerings was the plethora 

of high- quality presentations throughout the week 

from the DRI substantive law and practice area 

committees. 

As always, Annual Meeting attendees and 

their families and guests gathered for evening entertainment, 

beginning on Wednesday with the 

never- to- be- missed Welcome Reception—New 

Orleans Style! Thursday evening was spent at the 

Mercedes- Benz Superdome, where attendees 

were able to participate in on-field football skills 

competitions, including passing, receiving, field 

goal kicking, and punt catching. The amazing surroundings 

were matched by the good food, drink, 

and music. Friday evening’s Diversity Networking 

Reception was the perfect place to meet friends 

prior to enjoying an evening on the town, and the 

President’s Gala again wrapped up the meeting on 

Saturday night with gourmet food and wine, and the 

end of the DRI Silent Auction, which again raised 

tens of thousands of dollars to benefit the National 

Foundation for Judicial Excellence. A heartfelt thank 

you to all of the auction item donors and bidders, to 

the volunteer leaders who gave countless hours to 

plan the meeting, to our exhibitors and sponsors, 

and to the attendees who came to the Crescent 

City to absorb all of the stellar education and outstanding 

networking events that have become synonymous 

with the DRI Annual Meeting.

2012 AnnuAl Meeting the 21st Century lawyer 

DRI VeteRans GatheR 

For the first time, DRI military veterans gathered as a group at the Annual 

Meeting. On Friday, under the leadership of director Ed Perdue and organized 

by Cheryl Palombizio, DRI Director of Member Services, 25 veterans came 

together for a luncheon. Predictably, it was an emotional and powerful event 

of a shared experience that transcended age as veterans ranging from their 

late 20s through their early 90s shared their experience and companionship. 

That legendary atmosphere of “this band of brothers and sisters” pervaded. 

Known as the DRI Veterans Initiative, the group’s first project was to gather 

necessary comfort items and toiletries for a Marine unit in Helmond province 

in Afghanistan. Five boxes of goods were gathered and shipped from DRI. 

Book ReVIew 

New to the Annual Meeting was this year’s DRI Book Review, where the featured 

novel was Dancing on Glass by Pamela Binnings Ewen. On Thursday 

afternoon, Ms. Ewen joined a discussion led by Joseph J. DeSalvo, Jr., owner 

and operator of Faulkner House Books and his wife, Rosemary James, a noted 

author herself and former television journalist. 

seRVIce PRoject 

Special thanks to the Young Lawyers Committee for partnering with Dress 

for Success New Orleans and Ozanam Inn to host an on-site drop-off station, 

where Annual Meeting attendees were able to donate professional attire and 

accessories to help disadvantaged women and men become self- sufficient 

and successful in their careers. 

Attendees participate in football skills competitions Thursday evening at the Mercedes- Benz Superdome. 



Karen Hughes Dee Dee Myers 

Hughes and Myers: A Point/Counterpoint 

on the Political Landscape 

Thursday morning’s keynote speakers included 

Karen Hughes, a senior strategist 

with Burson- Marsteller, a former counselor 

to President George W. Bush from 2001 to 

2002, leading the Offices of Communications, 

Press Secretary, Media Affairs, and 

Speechwriting, and a U.S. Department of 

State Under Secretary of State for Public 

Diplomacy from 2005 to 2008, and Dee 

Dee Myers, a contributing editor to Vanity 

Fair magazine, a frequent political commentator, 

and the first woman and one of 

the youngest people ever to serve as White 

House Press Secretary during the first part 

of the Clinton administration. Focusing 

their discussion on the upcoming election, 

Ms. Myers expected that after a “late 

night” President Obama would win reelection, 

defying historical precedent to 

become the first president to achieve reelection 

despite a bad economy. She attributed 

this forecasted win to several factors. 

First, voters wanted a president who they 

felt understood them, which had become a 

great presidential race outcome predictor. 

A voter asks, “Will this person making decisions 

act in my interest?,” and unlike the 

president, people perceived Mitt Romney 

as more upper than middle class. Second, 

the electoral map favored President Obama, 


she said. Demographics have changed to 

give the Democrats an edge. People of color, 

young people, and single women accounted 

for this edge. Third, the Obama campaign 

mounted a voter turnout effort that would 

change the way that candidates win campaigns, 

focusing during the Republican Primary 

on urging occasional voters to vote 

early and then attending to regular voters 

later in the campaign. And 2–1, early voters 

had favored the president. Ms. Meyer also 

predicted that the Democrats would hold 

the Senate while the Republicans would 

hold the House. Ms. Hughes also evaluated 

how campaigns have changed. In her 

view, the presidential debate became more 

influential during this campaign than previously 

in her lifetime. Before the first debate, 

voters “didn’t know there was a viable 

option,” although they had become dissatisfied 

with the president, she believed. Noting 

that it’s very difficult to beat an incumbent, 

“The first debate fundamentally altered the 

campaign,” she said. And, as a whole, the 

debates revealed the philosophical differences 

between the two candidates, reflecting 

“a deep divide across the country.” The 

2008 Obama campaign “was about growth 

and change.” But after winning the election, 

the president’s “actions undercut these two 

themes,” Ms. Hughes believed, and the debate 

undercut the themes further. The two 

speakers agreed that the election revolved 

around jobs and the economy, but they 

differed on the extent to which the candidates 

could address those issues. When 

asked how they would have handled the 

attack on the U.S. diplomatic mission in 

Benghazi as press secretary, both speakers 

commented that sifting through competing 

facts to provide accurate information 

poses big challenges as situations unfold 

and in the immediate aftermath. And Ms. 

Myers remarked, “If you slow down information 

giving, it looks like you’re not transparent.” 

“You’re getting all kinds of reports,” 

Ms. Hughes said, mentioning that on 9/11 

the White House remained silent for four 

hours while attempting to sort them out. 

“The press values speed over accuracy,” she 

remarked, adding that she believed that it 

did not help to politicize an international 

political situation, generating enthusiastic 

applause. When asked about Washington 

gridlock, the keynote speakers also agreed 

that the country was sick of it. In concluding, 

Ms. Myers said, “Here’s how we can 

fix it: put all the women leaders in a room, 

close the door, and get it done,” which also 

generated enthusiastic applause.

2012 AnnuAL MeeTing 


Niall Ferguson: The Great Degeneration— 

Putting the Election in Historical Perspective 

On Friday, Niall Ferguson, one of the 

world’s leading historians of the global 

economy, prolific author, and the Lawrence 

A. Tisch Professor of History at Harvard 

University and William Ziegler Professor of 

Business Administration at Harvard Business 

School, delivered a keynote titled, “The 

Great Degeneration: Putting the Election in 

Historical Perspective.” Commenting that 

it was easy to miss the stakes in election 

campaigns, he offered some context for the 

big policy questions as they related to the 

stakes in the upcoming presidential election. 

He maintained that the United States 

was currently experiencing institutional 

changes, “and not for the better.” 

First, he described how the country 

fared today in key areas and would fare 

in the future. “The economy isn’t the biggest 

issue,” he said, explaining that International 

Monetary Fund (IMF) predictions 

seemed “pretty optimistic” about continued 

slow growth through 2017 compared 

with other Western countries. Employment 

surged higher in the United States 

than other comparable countries beginning 

with the 2008 economic downturn, 

but again, the IMF did not view future 

U.S. unemployment rates as “dire.” On the 

national debt, comparatively, the figures 

indicated that “the United States doesn’t 

have the biggest, second, or third biggest 

debt,” and the U.S. debt nowhere nearly 

rivals the situation in Spain and Portugal. 

On income inequality, although the 

United States had returned to the inequality 

existing in the 1920s before the Stock 

Market crash, all English- speaking countries 

had experienced similar trends, and 

many European countries had as well. So 

“this was not a uniquely American story.” 

As “the story of the decade,” Mr. Ferguson 

identified that “China overtook the United 

States in economic terms.” “We are living 

through a great reconvergence, the single 

most important thing to happen in our lifetime,” 

he remarked. The global economic 

center had moved globally back East; economic 

competitiveness would continue 

to shift from the West to the East; educational 

achievement of 15-year-olds around 

the world showed that Eastern education 

surpassed that of the United States; and in 

technological innovation, “Japan overtook 

the United States a long time ago, South 

Korea moved to third place in the last eight 

to nine years.” 

Drawing from Adam Smith’s The Wealth 

of Nations (1776), Mr. Ferguson suggested 

that the United States had degenerated 

from a “dynamic state,” to a “stationary 

state” and—as Smith theorized—posited 

that the state and its institutions bore 

responsibility for this stationary state. People 

mistakenly assume that once a country 

has good institutions, they will remain that 

way, Mr. Ferguson explained. Conversely, 

however, he clarified that we are “currently 

witnessing four forms of Western institutional 

degeneration,” and everything that 

the candidates talked about in the debates 

were “just symptoms of these four problems.” 

He singled out “the breakdown of 

the contract between the generations” as 

the first form of institutional degeneration, 

“excessive complexity of regulation” as the 

second, “the rule of lawyers rather than the 

rule of law” as the third, and “the decline of 

civil society” as the fourth. 

Mr. Ferguson views the generational 

imbalance as the implicit problem with the 

national debt. “The real social contract,” in 

his view, “is between the generations, not 

between the one percent and the 99 percent, 

or any of the percents batted about 

in the debates. It’s not about redistribution 

in the present but across generations.” 

On regulation, although commentators 

have widely “believed that the financial 

crisis came from deregulation, the evidence 

points in the other direction,” Mr. 

Ferguson argued. To support this position 

he compared how many employees 

have worked in government financial regulatory 

agencies at various times, arguing 

that because the numbers had increased 

since the 1980s, the United States had regulated 

the financial industry more heavily 

since then: “Banks were not unregulated.” 

Further, he believes that “the problem with 

complex systems is that they are prone to 

crack. We made a complex financial system 

even more complex. Complexity in regulation 

is a disaster.” Critiquing well- accepted 

beliefs about the rule of law, Mr. Ferguson 

noted that while “we imagine that the 

rule of law is healthy in the United States, 

that is not so.” Comparing 15 World Economic 

Forum rule of law measures, such 

as property rights protection, political ethics, 

independence of the judiciary, and efficiency 

of law in disputes, Hong Kong beat 

the United States in all 15 categories. The 

United States ranked five in only one area, 

investor protection, and it did not rank 

first in any. 

“We should not take it for granted that 

everything is fine with the ways that this 

country’s institutions work,” Mr. Ferguson 

cautioned. Elaborating, he mentioned 

a recent Harvard Business School 

alumni survey of U.S. competitiveness that 

partly surveyed some individuals involved 

in decision making about situating new 

plants as potentially explaining why businesses 

worry about choosing the United 

States for sites. See Michael E. Porter & Jan 

W. Rivkin, Prosperity at Risk: Findings of 

Harvard Business School’s Survey on U.S. 

Competitiveness (Jan. 2012). Respondents 



indicated that they believed that relative 

U.S. performance was “falling behind” in 

key areas such as efficiency of legal framework, 

regulation, the K–12 education system, 

tax code complexity, and political 

system effectiveness. 

Finally, although in the United States 

people are still more likely to belong to 

A special feature during the Thursday Awards Luncheon was a presentation 

by Southern humorist Roy Blount, Jr. 


religious organizations than in Western 

Europe, participating in other voluntary 

associations—an American characteristic 

historically highly admired elsewhere— 

has declined substantially. To conclude, 

he reiterated this theme: while the United 

States suffers institutional degeneration, 

institutions improve in the Eastern world. 

Alluding to something that we often forget, 

which is that Imperial China was a strong 

power in its own right 500 years ago, most 

certainly overshadowing North America, 

he reminded us that “the big story of our 

time is the great reconvergence,” meaning 

the East’s reemergence after 500 years to 

overtake the West. 

Malcolm Kushner highlighted the Thursday SLDO Leadership Breakfast with 

his talk on humor in the presidency. 

Leveraging Differences in an 

Increasingly Borderless World. 

Diversity Committee CLE and 

Business Meeting. Mark E. (Rick) 

Richardson III, Vice President and 

Associate General Counsel, Glaxo- 

SmithKline PLC; Fred J. Keeton, 

Vice President of Finance, External 

Affairs and Chief Diversity Officer, 

Caesars Entertainment; Dominique 

Bright-Wheeler, Director/Vice President, 

Capital One Financial Corporation; 

and moderator Pamela W. 

Carter, Carter Law Group LLC. Not 

pictured: Jacqueline Vines, Senior 

Vice President and General Manager, 

Cox Communications.

The Twenty-First Century 

Lawyer—Communicating 

Effectively to an Increasingly 

Diverse Audience. 

Presented by the Diversity Committee 

and DRI International. At right, 

from left: Terri Morrison, Author, Kiss, 

Bow, or Shake Hands; Miko A. Brown, 

Wheeler Trigg O’Donnell LLP; and Wadi 

Muhaisen, Muhaisen & Muhaisen LLC. 



Acceptable Activity? Or Alert Your Malpractice Carrier? Navigating the Tripartite Relationship in the Twenty-First Century. Presented by the Insurance 

Law and Professional Liability Committees. Above, from left: Moderator Douglas R. Richmond, Senior Vice President, Aon Risk Services; speakers Nancy 

J. Marshall, Deutsch Kerrigan & Stiles LLP; Suzanne Raudenbush, National Claims Manager, The Beazley Group; and Leo P. Martinez, Albert Abramson Professor 

of Law, University of California Hastings College of Law. 

Are Mortgages Really the Same as Toasters? Is a Credit Card Akin to an Anti-Depressant? A Deep Dive into Defending Industries Subject to Federal 

Regulations. Presented by the Commercial Litigation, Drug and Medical Device, and Product Liability Committees. Above, from left: Mark A. Rowe, General 

Counsel and Chief Compliance Officer, Techtronic Industries North America Inc.; Ava E. Lias-Booker, McGuireWoods LLP; John F. Kuppens, Nelson Mullins 

Riley & Scarborough LLP; Professor Todd J. Zywicki, George Mason University School of Law; and moderator Michelle M. Fujimoto, Shook, Hardy & Bacon LLP. 



When the Players Are All In—Successfully Resolving High Stakes Litigation in the Twenty-First Century. Presented by the Alternative Dispute Resolution, 

Employment and Labor Law, Medical Liability and Health Care Law, and Toxic Torts and Environmental Law Committees. Above, from left: Moderator 

J. Michael Weston, Lederer Weston Craig PLC; Thomas J. Olsen, Senior Vice President, Mass Tort, Chartis Insurance; Barbara E. Daniele, Senior Vice President 

and General Counsel, General Electric Capital Americas USA; Kathryn Bucher, Wiley Rein LLP; and John M. Johnson, Lightfoot Franklin & White LLC. 

S A V E T H E D A T E 

2013 

DRI Annual Meeting 

October 16–20 

Sheraton Chicago Hotel & Towers 

Chicago, IL 


Marvelous Mobility—Using Technology to Represent Your Clients Efficiently, Effectively, and 

Ethically—No Matter Where You Are. Presented by the Technology and Young Lawyers Committees. 

From left: Brett Burney, Burney Consultants LLC; and David L. Campbell, Bowman and Brooke LLP.



Twenty-First Century Leadership—Perspectives from a New Generation of General Counsels from Fortune 500 Companies. Presented by the 

Corporate Counsel and Women in the Law Committees. Above, from left: Moderator Sheryl J. Willert, Williams Kastner; Gloria Santona, Executive Vice President, 

General Counsel, and Secretary, McDonald’s Corporation; Teri Plummer McClure, Senior Vice President of Legal, Compliance, Audit and Public Affairs, 

General Counsel and Corporate Secretary, UPS; Michele Coleman Mayes, Vice President, General Counsel and Secretary, New York Public Library; and Kara 

Baysinger, SNR Denton. 

Supreme Court Review—The 2011 Term: Your Clients and Your Practice. Presented 

by the Appellate Advocacy Committee. Above, clockwise from upper left: Moderator 

Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law, 

George Washington University Law School; Charles Fried, Beneficial Professor of Law, 

Harvard Law School, Solicitor General Under President Ronald Reagan (1985–1989); 

William M. Jay, Goodwin Procter LLP, Assistant to the Solicitor General (2007–2012); 

and Neal K. Katyal, Hogan Lovells US LLP, Acting Solicitor General Under President 

Barack Obama (2010–2011). 

The ”Hidden Brain” and How It Can Make You a “Clutch” Player. 

Presented by the Trial Tactics Committee. Shankar Vedantam, Author, 

The Hidden Brain; Paul Sullivan, Author, Clutch. Moderator: Lynn M. 

Roberson, Swift Currie McGhee & Hiers LLP (not pictured). 


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. 

Louis B. Potter Lifetime 

Professional Service Award 

Recipient: Chrys A. Martin, Davis Wright 

Tremaine LLP, Portland, Oregon, with President 

Henry M. Sneath. 

Davis Carr Outstanding 

Committee Chair Award 

Recipient: Mark A. Fahleson, Rembolt Ludtke 

LLP, Lincoln, Nebraska (Employment and Labor 

Law Committee). 


DRI Lifetime Community Service Award 

Recipient: Alison Y. Ashe-Card, Womble 

Carlyle Sandridge & Rice LLP, Winston-Salem, 

North Carolina. 

Albert H. Parnell Outstanding 

Program Chair Award 

Recipient: Heidi B. Goldstein, Thompson 

Hine LLP, Cleveland, Ohio (Women in the 

Law Seminar). 

Richard H. Krochock Award (for exemplary 

leadership to the DRI Young Lawyers Committee) 

Recipient: Todd Presnell, Bradley Arant Boult 

Cummings LLP, Nashville, Tennessee. 

Outstanding State Representative Award 

Recipient: Mark J. Neal, Neal Law Firm, 

Monroe, Louisiana.


SLDO Diversity Award 

Recipient: North Carolina Association of Defense Attorneys (received by DRI North Carolina State 

Representative Brian O. Beverly and NCADA President Christopher G. Smith). 

Fred H. Sievert Outstanding 

Defense Bar Leader Award 

Recipient: Keith B. O’Connell, O’Connell & 

Avery LLP, San Antonio, Texas. 

G. Duffield Smith 

Outstanding 

Publication Award 

Recipient: Shana A. 

O’Grady, Mulherin 

Rehfeldt & Varchetto 

PC, Wheaton, Illinois. 


Law Firm Diversity Award 

Recipient: Hinshaw & Culbertson LLP (received 

by Leslie Richards-Yellen). 

Rudolph A. Janata Outstanding Defense Bar Association Award 

Recipient: Georgia Defense Lawyers Association (received by GDLA Immediate Past President W. 

Melvin Haas III and GDLA Executive Director Jennifer M. Davis). 


dRug and MedIcal devIce 

Removal Tactics 

By Paul E. Wojcicki 

and Joseph F. 

Kampherstein III 

Requesting that courts 

sever and remand claims 

against unnecessary 

and dispensable parties 

under Federal Rule 21 

warrants increased 

consideration in favorable 

federal jurisdictions. 


Make a Federal Case 

A product liability plaintiff can foreclose removal of a 

case from a state to a federal court simply by including a 

viable claim against a nondiverse party defendant, right? 

Not so fast. 

Under the Federal Rules of Civil Procedure, 

the federal courts at all levels have the 

power to sever or drop a party at any point 

in the litigation, including after the court 

■ Paul E. Wojcicki (Chicago) is a Segal McCambridge Singer & Mahoney Ltd. shareholder. Joseph F. Kampherstein, 

III (Philadelphia) is a senior associate with the firm. Both DRI members, the authors represent and 

counsel medical device and other product manufacturers in products liability actions across the county. Mr. 

Wojcicki is also the secretary of the Global Warranty and Service Contract Association. Mr. Kampherstein is 

member of DRI’s Drug and Medical Device and Product Liability Committees.

Out of It 

clerk enters the judgment. A federal court 

may exercise its power to sever a claim or 

drop a party when that party is neither a 

“necessary” party, now referred to as a “required” 

party, nor an “indispensable” party. 

That is, a court may drop a nondiverse party 

when a just and fair adjudication of the 

claims may be achieved without that party. 

This means that when a product liability 

case involves a nondiverse party, removing 

the case from a state to a federal court may 

be an option for a defendant manufacturer. 

Drug, medical device, and other manufacturers 

and the attorneys who represent 

them know well the plethora of potential 

benefits associated with litigating product 

liability claims in a federal rather than 

a state court. It is equally true that plaintiffs’ 

attorneys who handle drug or medical 

device litigation will do almost anything 

to avoid litigating and trying their cases in 

a federal court. This is because, generally 

speaking, legal standards are more rigorous 

and defendants more likely to have a 

receptive hearing in a federal forum. But 

the reported decisional law shows that 

product liability defendants rarely seek to 

invoke a federal court’s power to sever a 

claim or drop a party, a power that permits 

the federal judiciary to hear a substantially 

greater number of product liability actions 

when the courts invoke it, which can dramatically 

improve the likelihood of positive 

outcomes and almost certainly reduce 

defendants’ financial exposure should they 

lose, in the right cases. This article explains 

how companies may avail themselves of 

this ostensibly underused procedural tactic 

and how to identify the occasional case 

for which a state court makes more sense. 

How Diversity Jurisdiction and 

Removal Generally Work 

Where a party invokes the federal court’s 

diversity of citizenship jurisdiction under 

28 U.S.C. §1332(a), “each plaintiff must be 

diverse from each defendant to have what 

is known as complete diversity.” Ravenswood 

Inv. Co., L.P. v. Avalon Corr. Services, 

651 F.3d 1219, 1223 (10th Cir. 2011) (citing 

Newman- Green, Inc. v. Alfonzo- Larrain, 

490 U.S. 826, 829 & n.1 (1989)). Generally, 

a federal court determines whether it 

has jurisdiction based on the facts as they 

existed at the point at which the complaint 

was filed. Id. (citing Smith v. Sperling, 354 

U.S. 91, 93 n. 1, 77 S. Ct. 1112, 1 L. Ed. 2d 

1205 (1957)). With removed actions the federal 

courts have disagreed about the point 

at which they should determine if diversity 

jurisdiction exists. 13E Fed. Prac. & Proc. 

Juris. §3608 (3d ed.). While most courts 

hold that complete diversity must exist 

when the notice of removal is filed, some 

require that it exist when the action is filed 

in the state court. 13E Fed. Prac. & Proc. 

Juris. §3608 n.15 (3d ed.) (collecting cases). 

Importantly in Caterpillar, Inc. v. Lewis, 

519 U.S. 61 (1996), the Supreme Court held 

that a lower court’s erroneous finding that 

diversity jurisdiction existed at the time 

of removal did not require reversing or 

vacating the subsequent judgment because 

by that time the diversity- destroying defendant 

had been dismissed. 

As noted in the preceding paragraph, 

most courts follow the time- of- filing rule. 

This rule, however, does have one well- 

established exception that arises under 

Federal Rule of Civil Procedure 21. Under 

Federal Rule 21, a district court may “dismiss 

a dispensable nondiverse party… to 

cure a jurisdictional defect at any point 

in the litigation, including after judgment 

has entered.” Grupo Dataflux v. 

Atlas Global Grp., L.P., 541 U.S. 567, 572 

(2004); Newman- Green, Inc., 490 U.S. at 

832; United States ex rel. Gen. Rock & Sand 

Corp. v. Chuska Dev. Corp., 55 F.3d 1491, 

1495 (10th Cir. 1995). 

How Federal Rule of Civil Procedure 

21 Confers Power to Courts 

Federal Rule of Civil Procedure 21 provides 

that a district court “[o]n motion 

or on its own,… may at any time, on just 

terms, add or drop a party… [or] sever 

any claim against a party.” Fed. R. Civ. P. 

21. The Supreme Court has interpreted the 

rule’s provisions broadly, observing that 

“it is well settled that Rule 21 invests District 

Courts with authority to allow a dispensable 

nondiverse party to be dropped 

at any time, even after judgment has been 

rendered.” Newman- Green, 490 U.S. at 832. 

In actions founded on diversity of citizenship 

jurisdiction, this unusually clear and 

simply worded provision has been held to 

provide the district courts with great latitude 

and discretion in deciding when and 

how to use their power to sever a claim or 

drop a party to cure jurisdictional deficiencies 

arising from claims against a nondiverse 

defendant. The courts have not used 

the rule to cure jurisdictional deficiencies 

in actions brought under the courts’ federal 

question jurisdiction. 

A couple of additional general points 

about Federal Rule of Civil Procedure 21 

are worth noting. First, under the rule, dismissing 

an entire case is not warranted for 

misjoinder of claims or parties, but rather 

the proper procedure is to add or drop a 

party or sever the misjoined claims. E.g., 

Acevedo v. Allsup’s Convenience Stores, 

Inc., 600 F.3d 516, 520 (5th Cir. 2010) (citing 

DirecTV, Inc. v. Leto, 467 F.3d 842, 

845 (3d Cir. 2006). In Direct TV, the court 

observed that “[t]o remedy misjoinder… a 


Drug anD MeDical Device 

court may not simply dismiss a suit altogether. 

Instead, the court has two remedial 

options: (1) misjoined parties may 

be dropped ‘on such terms as are just’; or 

(2) any claims against misjoined parties 

‘may be severed and proceeded with separately.’” 

Id. at 845. Second, a party does 

not need to raise the issue of misjoinder 

for a court to act: the rule expressly gives a 

A necessary party is 

one in whose absence 

“the court cannot accord 

complete relief among 

existing parties.” 

court the discretion to act of its own accord 

to sever misjoined claims or parties. E.g., 

Bhatla v. U.S. Capital Corp., 990 F.2d 780, 

786 (3d Cir. 1993). 

How Rule 21 Can Preserve 

Jurisdiction 

In light of the power conferred upon the 

federal courts by Federal Rule of Civil 

Procedure 21, a defense attorney called 

upon to represent a drug or medical device 

manufacturer in a product liability action 

involving claims brought against both 

diverse and nondiverse defendants should 

not immediately assume that removal 

based on diversity of citizenship jurisdiction 

is unavailable. Courts in various circuits 

have used the broad discretionary 

power to drop a party or sever a claim conferred 

upon them by Federal Rule 21 to perfect 

their diversity jurisdiction and permit 

removed actions to remain before them. 

And the power conferred under Federal 

Rule of Civil Procedure 21 is not limited 

to the district courts; it may be exercised 

by the Supreme Court and circuit courts of 

appeals as well. Id. (citing Newman- Green, 

Inc. v. Alfonzo- Larrain, 490 U.S. 826, 837 

(1989)). 

One example of a case in which a district 

court relied on Federal Rule of Civil 

Procedure 21 to preserve diversity jurisdiction 

is Safeco Ins. Co. v. City of White 


House, 36 F.3d 540 (6th Cir. 1994). There, 

the court was presented with a declaratory 

judgment action in which Safeco Insurance 

Company, the issuer of a performance 

bond, sought a determination of its 

liability to the City of White House, Tennessee, 

after the bonded contractor, Eatherly 

Construction, withdrew its bid and the 

city demanded payment under the bond 

for anticipatory breach. Safeco brought its 

action in the federal court because it was a 

corporate resident of the state of Washington 

while the city and Eatherly, the contractor, 

were both citizens of Tennessee. 

The city counter- claimed against Safeco for 

payment and cross- claimed against Eatherly 

for breach of contract. Eatherly moved 

to realign the parties because its interests 

and Safeco’s interests were aligned against 

the city. The district court, recognizing that 

this realignment would destroy diversity, 

dismissed Eatherly from the federal court 

action to retain jurisdiction. In doing so, it 

found that Federal Rule of Civil Procedure 

21 provided it with the discretion to drop a 

dispensable, nondiverse party to maintain 

diversity and that Eatherly was a dispensable 

party to the city’s claims. Safeco Ins. 

Co., 36 F.3d at 545. 

Following Safeco and several similar 

decisions, the court in Joseph v. Baxter 

Int’l Inc., 614 F. Supp. 2d 868, 872–74 (N.D. 

Ohio 2009), severed medical malpractice 

claims against nondiverse medical provider 

defendants from product liability 

claims against the diverse pharmaceutical 

manufacturer to retain jurisdiction. 

The court found that the presence of the 

medical provider defendants was not necessary 

to resolve the claims against the 

manufacturer of allegedly tainted heparin. 

The claims for improper administration 

of a drug, lack of informed consent, 

and lack of procedures to safeguard against 

improper administration of a drug differed 

materially from and required different 

proofs than would claims in strict 

liability against the manufacturer for the 

design, manufacture, labeling, and failure 

to recall a drug. Moreover, the court also 

found that the plaintiff would still have a 

remedy in the state court against the medical 

provider defendants and would not be 

prejudiced unduly by having to pursue her 

different claims in two courts. Accordingly, 

the Joseph court severed and dismissed 

the claims against the medical providers 

to retain jurisdiction over the plaintiff’s 

claims against the manufacturer. Joseph, 

614 F. Supp. 2d at 874. 

Likewise, in Cooke-Bates v. Bayer Corporation, 

2010 WL 3984830 (E.D. Va.), the district 

court relied upon Federal Rule of Civil 

Procedure 21 in severing medical malpractice 

and negligence claims against a physician 

defendant while retaining jurisdiction 

over the product liability claims that the 

plaintiff brought against the manufacturer 

for the allegedly defective design, manufacture, 

and advertisement of a prescription 

drug. In the holding the district court 

found the defendant physician dispensable 

because the claims against the physician 

for medical negligence had no bearing on 

the strict liability claims brought against 

the defendant drug manufacturer. Further, 

the district court found that while requiring 

the plaintiff to pursue two separate lawsuits 

might present an inconvenience, it did 

not prejudice the plaintiff at all. 

On the appellate level, in Bhatla, the 

Third Circuit sua sponte invoked Federal 

Rule of Civil Procedure 21 to dismiss one 

of two consolidated cases involved in the 

appeal and brought against nondiverse dispensable 

parties to perfect its jurisdiction 

and permit the remainder of the appeal to 

continue. Bhatla, 990 F.2d at 786. 

It must be stressed that a court may 

properly apply Federal Rule of Civil Procedure 

21 to sever and remand claims 

against a nondiverse defendant only when 

the nondiverse defendant is not indispensable 

to the action. For example, in Soberay 

Mach. & Equip. Co. v. MFR Ltd, Inc., 181 

F.3d 759 (6th Cir. 1999), the Sixth Circuit 

Court of Appeals was presented with a 

case arising from an alleged breach of contract 

between a plaintiff buyer of a product 

and the defendants, the foreign manufacturer 

and the nondiverse distributor agent. 

After the distributor, against which the 

plaintiff had originally instituted the lawsuit, 

had filed for bankruptcy, the plaintiff 

filed an amended complaint dropping the 

bankrupt distributor and pursued claims 

against the foreign manufacturer only. The 

plaintiff appealed a verdict rendered for the 

foreign defendant; the foreign defendant 

cross- appealed the trial court’s failure to 

dismiss the case for the plaintiff’s failure 

to join the distributor as an indispensable

party. The appellate court, as required, first 

analyzed the basis for jurisdiction before 

proceeding to the merits of the appeal. The 

court recognized that it may be “appropriate 

to drop a nondiverse and dispensable 

party from litigation in order to achieve 

diversity.” However, the Sixth Circuit went 

on to find that the nondiverse distributor 

defendant was a real party in interest and 

an indispensable party to the action, foreclosing 

use of Federal Rule of Civil Procedure 

21 to retain jurisdiction. As the 

original defendant distributor was indispensable, 

the Sixth Circuit also reversed 

the trial court’s “failure to consider and 

implicit denial” of the foreign defendant’s 

motion to dismiss under Federal Rule of 

Civil Procedure 19. Id. at 770. 

The point to take away from these and 

other related cases is that Federal Rule 

of Civil Procedure 19 requires courts to 

examine, analyze, and compare closely 

the claims against diverse and nondiverse 

parties when determining whether a basis 

exists for severance and remand of claims. 

How to Identify Required 

and Dispensable Parties 

Federal Rules of Civil Procedure 19(a) and 

19(b) set out the factors that courts must 

consider when determining whether a 

party is necessary or required and indispensable. 

A necessary party is one in whose 

absence “the court cannot accord complete 

relief among existing parties.” Fed. R. Civ. 

P. 19(a)(1)(A). 

When a court finds that a party is not 

necessary, then that party cannot be indispensable 

“because indispensable parties 

are a subset of necessary parties.” DeGidio 

v. Centocor, Inc., No. 3:09-CV-721, 2009 

WL 1867676, at *3–4 (N.D. Ohio 2009). 

Additionally, a plaintiff’s ability to pursue 

claims against a defendant in a state 

court that is, that the plaintiff has another 

viable remedy—should preclude a finding 

that the defendant is indispensable. Sugar 

v. Abbott Labs., 2007 WL 1560284, at *4 

(N.D. Ohio 2007). 

In conjunction with Federal Rule of Civil 

Procedure 21, Federal Rule 19, therefore, 

provides defense counsel with a particularly 

useful tool when seeking to remove a 

case to or keep an action in a federal court. 

Whether a nondiverse defendant is not a 

necessary or indispensable party and there- 

fore a court can sever the defendant and 

remand the case arises frequently in prescription 

drug and medical device cases. 

Whenever possible, a plaintiff’s attorney 

invariably will include a nondiverse drug- 

or medical deviceprescribing medical provider 

as a defendant in such an action to try 

to defeat diversity jurisdiction. 

However, many courts believe that under 

Federal Rule of Civil Procedure 19(a), a 

treating surgeon is not a necessary party to 

a product liability action against a medical 

device’s manufacturer. E.g., Temple v. Synthes 

Corp., 498 U.S. 5, 7, 111 S. Ct. 315, 112 

L. Ed. 2d 263 (1990); Joseph, 614 F. Supp. 

2d at 872 (expressly relying on Temple v. 

Synthes Corp., 498 U.S. 5, 7 (1990), as precedent). 

In Temple, the district court dismissed 

a product liability action brought 

against a medical device manufacturer 

based on the plaintiff’s refusal to add the 

implanting surgeon and hospital as defendants. 

The Fifth Circuit affirmed the 

dismissal, but the Supreme Court reversed. 

Observing that “[i]t has long been the rule 

that it is not necessary for all joint tortfeasors 

to be named as defendants in a single 

lawsuit,” the Court held that “[a]s potential 

joint tortfeasors… [the surgeon] and the 

hospital were merely permissive parties.” 

Temple, 498 U.S. at 8 (citations omitted). 

Also, several courts have found that a 

prescribing physician or implanting surgeon 

does not qualify as a necessary party 

because resolving the claim against the 

doctor would not necessarily resolve the 

product liability claims against the defendant 

manufacturer. E.g., Joseph, 614 F. 

Supp. 2d at 872; DeGidio, 2009 WL 1867676, 

at *3. For example, under Ohio law, a medical 

malpractice plaintiff “must establish the 

following three elements: (1) the standard 

of care within the medical community; 

(2) the defendant’s breach of that standard 

of care; and (3) proximate cause between 

the breach and the plaintiff’s injuries.” Korreckt 

v. Ohio Health, 2011 WL 2519198, at 

*3 (Ohio Ct. App. 2011). Under Ohio law, 

for example, 

to establish medical malpractice, a preponderance 

of evidence must show that 

the injury (1) ‘was caused by the doing 

of some particular thing or things that 

a physician or surgeon of ordinary skill, 

care and diligence would not have done 

under like or similar conditions or cir- 

cumstances, or by the failure or omission 

to do some particular thing or 

things that such a physician or surgeon 

would have done under like or similar 

conditions and circumstances,’ and 

(2) that the injury ‘was the direct and 

proximate result of such doing or failing 

to do some one or more of such particular 

things.’ 

Whenever possible, a 

plaintiff’s attorney invariably 

will include a nondiverse 

drug- or medical deviceprescribing 

medical provider 

as a defendant in such 

an action to try to defeat 

diversity jurisdiction. 

Korreckt, 2011 WL 2519198, at *3 (quoting 

Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 

N.E.2d 673 (Ohio 1976)). 

So while a plaintiff’s malpractice claim 

focuses on the treating physician’s conduct 

according to the applicable professional 

standard of care, a plaintiff’s product liability 

claims focus on the condition of the 

drug or device and the actions or conduct 

surrounding its design, manufacture, distribution, 

and sale, and whether the drug 

or device complied with the federal and 

state regulations governing them. 

In the Joseph and Cooke-Bates cases 

discussed above, both courts severed and 

remanded claims for medical negligence 

against the prescribing physicians while 

maintaining jurisdiction over the claims 

against the defendant drug manufacturers 

for defective design, manufacture, and 

advertising of their products. Likewise, in 

Phillips v. Knoll Pharm. Co., No. 03-8044, 

slip op. at 2–3 (N.D. Ohio Sept. 4, 2003), the 

district court dropped physician defendants 

in a product liability action against a 

drug maker to retain diversity jurisdiction. 

In Todd by Todd v. Merrell Dow Pharms., 


Drug anD MeDical Device 

Inc., 942 F.2d 1173, 1176 (7th Cir. 1991), the 

Seventh Circuit found that a physician who 

ordered the injection of a drug that allegedly 

harmed a plaintiff was not an indispensable 

party to a product liability case 

against the manufacturer of the drug. 

Defense counsel should know that not 

all jurisdictions look upon claims against 

a treating physician or implanting sur- 

Procedural rules 

governing discovery and 

how those rules are applied 

also merit consideration 

when deciding whether 

to pursue removal to 

a federal court. 

geon for medical negligence as unrelated 

to product liability claims against a drug 

or medical device manufacturer, and they 

have found medical providers to be indispensable 

parties or otherwise declined to 

sever the claims against them. For example, 

in Echols v. OMNI Medical Group, Inc., 

751 F. Supp. 2d 1214, 1216–17 (N.D. Okla. 

2010), the district court found that the 

prejudice to the plaintiff presented by the 

need to prosecute separate cases against a 

pharmaceutical manufacturer and a prescribing 

physician precluded severing the 

product liability claims from the medical 

malpractice claims. Similarly, in Selman 

v. Pfizer, Inc., 2011 WL 6655354, at 

*12 (D. Or. 2011), and Robinson v. Swedish 

Health Servs., 2010 WL 816818, at *2 (W.D. 

Wash. 2010), the district courts refused to 

sever claims against drug prescribers from 

claims against the drug manufacturers. In 

the holdings, the district court in each case 

found that the plaintiff had not misjoined 

the claims because they involved common 

issues of law and fact. 

While drug and medical device litigation 

frequently includes unrelated claims 

against nondiverse defendants, these claims 

also arise in other types of cases. Courts 


have applied Federal Rule of Civil Procedure 

in a variety of cases to sever and remand 

claims against nondiverse parties to 

preserve diversity. In Crockett v. R.J. Reynolds 

Tobacco Co., 436 F.3d 529, 533 (5th Cir. 

2006), the court severed negligence claims 

against medical providers from those 

claims against nonmedical product manufacturers 

in a wrongful death case. The 

Eleventh Circuit, in Ingram v. CSX Transp., 

Inc., 146 F.3d 858, 862–63 (11th Cir. 1998), 

a personal injury case against a railroad 

company, exercised the authority set forth 

by the U.S. Supreme Court in Newman- 

Green to drop a nondiverse, dispensable 

defendant municipality under Federal Rule 

21 of Civil Procedure to preserve diversity 

jurisdiction, postjudgment, on the appeal. 

The Second Circuit Court severed and dismissed 

claims on the appeal in a breach of 

contract action in Highland Capital Mgmt., 

LP v. Schneider, 198 F. App’x 41, 45 (2d Cir. 

2006), against nondiverse, joint tortfeasors 

to maintain diversity. In Archway Ins. Services, 

LLC v. Harris, 2011 WL 2415168 (E.D. 

Pa. 2011), the district court severed claims 

against bank defendants from claims for 

fraud against insurance broker defendants 

to perfect its diversity jurisdiction. And in 

Davis v. Cassidy, 2011 WL 6180054 (E.D. La. 

2011), the district court severed personal injury 

claims arising from an automobile accident 

from claims arising from a separate, 

unrelated vehicular accident, finding that 

different issues of liability were involved in 

each, despite the plaintiff’s claims of aggravation 

of injuries. 

How to Decide to Remove 

or Not to Remove 

While the means exist to move a case with 

a nondiverse defendant from a state court 

into a federal court, an astute defense attorney 

must also analyze whether to take advantage 

of these tools. In most instances, 

the decision to remove is a proverbial “no 

brainer.” Most product liability defense 

attorneys and company general counsel 

would agree that, by and large, a federal 

forum is the preferred forum in which to 

litigate and try a product liability case. But 

in some regions, the state court venue may 

be the better choice for any number of reasons. 

For example, the state court judges in 

an area may be perceived as more legally 

conservative than their federal counter- 

parts. Likewise, the makeup of the potential 

jury pool is a factor to consider. Because 

a state court judicial district often draws 

potential jurors from a single county or a 

smaller geographic area than the federal 

district in which it is located, a jury in the 

state court may be more apt not to find liability, 

or to award less in a damages award 

than a jury in the federal court. Additionally, 

a defendant company’s ties to a community 

may make a state court venue more 

attractive. When a company is well-known 

and well regarded by the members of the 

jury pool, they may be less likely to find that 

the company engaged in willful and wanton 

misconduct or other actions that warrant 

imposing punitive or exemplary damages. 

Procedural rules governing discovery 

and how those rules are applied also merit 

consideration when deciding whether to 

pursue removal to a federal court. Questions 

to ask in this area include: How does 

the state court approach discovery? Does 

the state court provide a product liability 

plaintiff with more or less latitude in the 

breadth and scope of permissible discovery? 

Does the state court have rules in place 

permitting and regulating e- discovery? If 

so, how do those rules compare with the 

federal e- discovery rules? Are the state 

rules as broad and encompassing as the 

federal rules? Are the state court judges 

more or less likely to impose sanctions 

for discovery violations? Are the sanctions 

doled out in the state court more or 

less severe than those imposed in the federal 

court? What is the state’s position on 

involving “C-level” executives in the discovery 

process in terms of depositions or 

other things? Does the state distinguish 

between a “discovery deposition” and an 

“evidence deposition”? Illinois, for example, 

makes this distinction and places limits 

on the purposes for which a plaintiff 

may use a discovery deposition. Does the 

state court impose limits on expert discovery 

that the Federal Rules of Civil Procedure 

do not? In Pennsylvania state courts 

do not routinely permit discovery depositions 

of expert witnesses. 

The state and federal tribunal also may 

conduct trials differently. Most, if not all, 

federal courts frequently empanel a jury 

trial of less than 12 persons to hear a civil 

case. Many states permit a defendant to 

Federal Case , continued on page 89

Forensic 

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gOveRnMenTal lIabIlITy 

From the Chair 

By Phillip E. Friduss 

Past leadership 

has established the 

foundation, and our 

committee is now poised 

to grow significantly. Join 

the effort. Join the fun! 

■ Phillip E. Friduss is one of the founding partners of Landrum, Friduss & Ash. From the firm’s Woodstock, Georgia, office, Mr. 

Friduss’s practice is primarily devoted to the defense of high exposure cases in the areas of governmental liability, medical malpractice, 

correctional health care, labor and employment, complex litigation matters, appellate advocacy, and wrongful death. 


Quality Service 

Means Lofty 

Goals Will 

Be Met 

2013 will be a launching pad year for our committee, emanating 

from a now solidly in-place infrastructure designed 

by the leadership teams of the immediate past. On behalf 

of our entire committee, a big thank you to (and thank

God for) Dana Maine, for her captainship, 

vision, and desperately needed follow- up 

skills. Also, a heartfelt thank you to all 

those members of our steering committee 

who have so willingly and graciously 

rolled up their sleeves and dug in over the 

past couple of years. 

With this rock solid foundation, we are 

poised to ratchet up the level of services we 

offer to our individual committee members, 

and our industry as a whole. This 

begins with our flagship offering, the 26th 

annual Civil Rights and Governmental 

Tort Liability Seminar, January 31–February 

1, 2013, in Phoenix. Program Chair 

Dave McMain and his crew have crafted 

yet another Gold Standard program, chock 

full of the nation’s top constitutional scholars, 

practitioners and judges; leaders from 

the insurance industry; and even a presentation 

by Taser International. Year after 

year this seminar is regarded as the best 

in our substantive area, and our committee 

vows to build from that history, continuously 

looking for ways to better serve our 

audience. 

Here’s a quick look at what else is in store 

for our committee. 

Social Media: Lip 

Service = No Service 

Over the past two to three years, our listserv 

has come out of hibernation to become 

DRI’s second most active (after Employment 

and Labor Law). But, it is not enough. 

It remains difficult for many of us 

to imagine precisely just how Twitter, 

LinkedIn, and other social media help in 

our everyday practices. Rest assured, five 

more years of being on the outside looking 

in and we will find ourselves hopelessly 

and helplessly behind the proverbial eight 

ball. Committee Vice Chair Jeff Lowe and 

Social Media Chair Scott Kelly will spearhead 

implementation of a two-year plan 

designed to bring efficient use of focused 

social media into the everyday lives of our 

members. Our job is to ensure that our 

members have all the tools necessary to 

make their professional lives easier and, 

more importantly, better. 

Partnering with Industry: 

Beyond Seminars 

Combing the attendee rolls of past years’ 

seminars, we see a steady rise in the number 

of insurance professionals and those 

serving public entities in-house (state attorney 

general offices, city and county law 

departments). This past year we had several 

members from the insurance industry 

serve on our program steering committee, 

hopefully ensuring that—at least insofar 

as our seminars go—we are providing the 

industry with the top quality programming 

and networking it requires. 

Our partnering with industry goals go 

beyond the seminar. Ric Saraf is our com- 

mittee’s liaison to the industry, charged 

initially with creating a platform designed 

around how we can better serve the industry 

on a day to day basis as true partners. 

Ensuring clean, clear, and open communications 

with the industry as a whole is 

paramount. Once this structure is in place, 

we can go about the loftier goals of how to 

make our partnered lives better. And, there 

was much rejoicing…. 

Nuts and Bolts: The Art of 

the Steering Committee 

Over the years our steering committee and 

program steering committee had more or 

less morphed into a single de facto group, 

almost entirely devoted to our seminar. 

Receiving a significant boost from our 

inaugural fly-in meeting this past year, we 

are now set on a path that should significantly 

increase the quality of services we 

offer our membership and the industry. 

Learning to walk before we run, and 

as elementary as it may sound, we will be 

implementing monthly steering committee 

conference calls for basic brainstorming, 

and overseeing of all aspects of committee 

business. This is movement in the right 

direction. 

The Value of DRI Membership 

Hopefully not sounding like a political candidate, 

it is clear that the future of our committee 

is our young lawyers. Those with 

growing firms likewise know the value of 

their younger talent. We intend to grow our 

membership in large part by focusing on 

those already in the family. Using the committee 

experiences of younger lawyers like 

Casey Stansbury and Lisa Whalin (next 

year’s program chair and vice chair, respectively), 

we hope to better communicate the 

value of DRI membership to both those in 

firm management and those trying to figure 

out whether joining is for them. 

Parting Thoughts 

We will meet and exceed these worthy 

goals. The quality of those giving service 

toward these goals ensure this will be so. 

We have a goodly number of leadership 

roles to fill in the coming months, and are 

looking for fresh new talent to step up and 

grow the value of their committee membership. 

This is going to be fun. 


Governmental liability 

Doing Hard Time 

By John B. Mullahy 

and Christopher U. Warren 

Prisons should 

reasonably alter their 

conditions and seek 

to accommodate their 

disabled prisoners to 

ensure that they are 

not deprived of basic 

human needs. 


Defending 

Against Prisoners’ 

and Disabled 

Prisoners’ Claims 

When suing prisons, prisoners have claimed violations 

of their Eighth Amendment rights based on inadequate 

medical care, excessive force, deficient prison conditions, 

and failure to prevent inmate altercations. And disabled 

prisoners have claimed violations of the 

Americans with Disabilities Act and the 

Rehabilitation Act based on discriminatory 

treatment, and their exclusion from prison 

services, programs, or activities. 

Those managing, insuring, and defending 

prisons should know the procedural 

requirements, factual predicates, and substantive 

law for these claims. They should 

raise applicable defenses to them, including 

exhaustion of administrative remedies 

under the Prison Litigation Reform 

Act, and qualified immunity. This article 

provides a sampling of these claims and 

defenses in cases before the district courts, 

the Second, Third, and Ninth Circuits, and 

the U.S. Supreme Court. 

Identify Possible Civil Rights 

Violations and Seek to Avoid Them 

The Federal Civil Rights Act prohibits a 

person acting under the color of state law 

from depriving another of a federal right. 

See 42 U.S.C. §1983. There is a distinction 

between personal and official capacity lawsuits, 

however, because a state is not considered 

a “person” under §1983, and lawsuits 

against state officials in their official capacities 

are treated as lawsuits against the states. 

See Hafer v. Melo, 502 U.S. 21, 25–27 (1991). 

In an official capacity case, the real party 

in interest is the governmental entity. The 

named official and the entity could be liable 

when a governmental “policy” or “custom” 

causes a constitutional violation, or when 

the entity turns a blind eye to an obviously 

inadequate practice likely to result in a constitutional 

violation. See Monell v. N.Y. City 

Dep’t of Soc. Servs., 436 U.S. 658, 691–95 

(1978). A personal capacity lawsuit seeks to 

impose personal liability for actions taken 

under color of state law: “[I]t is enough to 

show that the official, acting under color of 

state law, caused the deprivation of a federal 

right.” Kentucky v. Graham, 473 U.S. 

159, 165 (1985). 

■ John B. Mullahy is a partner and Christopher U. Warren is an associate in the Parsippany, New Jersey, 

office of Kaufman Borgeest & Ryan LLP. Mr. Mullahy’s practice includes the defense of claims brought by 

prisoners; claims against medical, mental health, legal, and insurance professionals; and claims concerning 

employment, insurance coverage and cyber- liability. Mr. Warren’s practice includes the defense of claims 

brought by prisoners; claims against medical health professionals and facilities; and claims concerning 

employment practices and commercial litigation.

Prisoners’ federal civil rights claims fall 

generally under the Eighth Amendment’s 

prohibition of cruel and unusual punishment; 

they include inadequate medical 

care, excessive force, deficient prison conditions, 

and failure to prevent foreseeable 

inmate altercations. But the claims could 

also fall under the Americans with Disabilities 

Act or the Rehabilitation Act, and be 

based on either discrimination or exclusion 

because of a disability. 

Provide Adequate Medical 

Care to Address Prisoners’ 

Serious Medical Needs 

The Eighth Amendment bars “deliberate indifference 

to serious medical needs of prisoners.” 

Estelle v. Gamble, 429 U.S. 97, 104 

(1976). Prison officials and employees act 

with deliberate indifference by disregarding 

excessive risks to prisoners’ health, causing 

unnecessary and wanton infliction of pain. 

See Farmer v. Brennan, 511 U.S. 825, 837 

(1994). Those officials and employees’ medical 

malpractice alone, however, would not 

sufficiently prove an Eighth Amendment 

violation. See Estelle, 429 U.S. at 107–08. 

In Estelle, an inmate brought a §1983 action 

against the state corrections department, 

the prison’s medical director, and 

two correctional officials. He claimed that 

the prison subjected him to cruel and unusual 

punishment by inadequately treating 

a back injury that he suffered while performing 

prison work. In affirming the dismissal 

of the complaint, the Supreme Court 

noted that the prison doctor diagnosed a 

lower back strain and also prescribed bed 

rest, muscle relaxants, and pain relievers. 

The Court suggested that the facts might 

support a medical malpractice claim but 

disagreed that the treatment was constitutionally 

inadequate. Id. at 97, 107–08. 

Applying the Estelle standards, the Third 

Circuit affirmed the dismissal of a prisoner’s 

§1983 complaint. See Afdahl v. Cancellieri, 

463 F. App’x 104 (3d Cir. 2012). In Afdahl, 

an inmate claimed a prison dentist, his assistant, 

the director of dental service at the 

prison, the prison’s hospital service administrator, 

and the Correctional Medical Services 

violated her Eighth Amendment rights 

by delaying a root canal procedure, despite 

knowing of her suffering. 

The inmate developed a toothache on 

August 27, 2008, and on August 29, a prison 

dentist saw her and recommended that she 

have a root canal. The root canal began on 

September 16, continued on October 15 and 

30, and finished on November 26. In the 

interim, the prison’s medical staff treated 

her with pain killers and antibiotics. See 

id. at 105–06. 

The Third Circuit ruled that any delays 

in dental treatment amounted to medical 

malpractice, at best. The Court noted that 

the inmate received periodic care from 

when she reported the toothache until the 

root canal’s completion. In affirming the 

dismissal of the complaint, the Court reasoned 

that “where a prisoner has received 

some medical attention and the dispute is 

over the adequacy of the treatment, federal 

courts are generally reluctant to second 

guess medical judgments and to constitutionalize 

claims which sound in state tort 

law.” Id. at 107. 

Under the Estelle test, a medical need 

is “serious” if a doctor has required treatment 

for it, if a lay person would “easily 

recognize the necessity for a doctor’s attention” 

to it, or if the denial of treatment for it 

“would result in the unnecessary and wanton 

infliction of pain.” Monmouth County 

Corr. Inst. v. Lanzaro, 834 F.2d 326, 347 

(3d Cir. 1987). See Atkinson v. Taylor, 316 

F.3d 257, 272–73 (3d Cir. 2003). In addition, 

proving deliberate indifference requires 

more than a prisoner’s subjective dissatisfaction 

with the medical care. See Brown 

v. Borough of Chambersburg, 903 F.2d 274, 

278 (3d Cir. 1990). 

The Ninth Circuit found deliberate indifference 

when prison correction officers 

failed to provide pain medication and pillows 

to an inmate after his hand surgery, 

contrary to the treating doctor’s orders. 

See Prewitt v. Roos, 160 F. App’x 609 (9th 

Cir. 2005). And the Third Circuit found 

deliberate indifference when a prisoner’s 

complaints of abdominal pain and bleeding 

from his penis were ignored. See Pearson 

v. Prison Health Serv., 348 F. App’x 722 

(3d Cir. 2009). 

The Pearson court found support for 

a constitutional violation because (1) the 

initial nurses did not examine or treat the 

prisoner, (2) officers denied his follow- up 

request to go to the medical unit, (3) other 

nurses forced him to crawl into a wheel 

chair, (4) he remained in a holding cell in 

excruciating pain for the rest of the night, 

(5) a doctor said that his condition was 

normal without examining him, and (6) 

officers disposed of blood to hide his true 

condition. See id. at 725. 

In addition, the Second Circuit found 

deliberate indifference when prison 

employees deprived a deaf inmate of his 

hearing aids. See Wheeler v. Butler, 209 F. 

App’x 14 (2d Cir. 2006). The hearing aids 

Courts consider the 

need for the force, the 

amount of force used, 

and the injury inflicted. 

were confiscated when the prisoner was 

transferred to the prison’s special housing 

unit. The Second Circuit noted that the 

prisoner had a severe hearing impairment 

and was not fully functional without the 

aids. See id. at 15–16. 

Avoid Using Excessive Force 

on Prisoners, and Justify 

When It Is Necessary 

When prisoners claim an Eighth Amendment 

violation based on a prison’s excessive 

use of force, the inquiry is “whether the 

measure taken inflicted unnecessary and 

wanton pain and suffering,” and it turns on 

“whether [the] force was applied in a good 

faith effort to maintain [and] restore discipline, 

or maliciously and sadistically for 

the very purpose of causing harm.” Whitley 

v. Albers, 475 U.S. 312, 320–21 (1986). 

Courts consider the need for the force, 

the amount of force used, and the injury 

inflicted. See id. 

The Whitley case concerned a prison riot 

in which an officer was taken hostage on the 

second floor of a cellblock. Prison officials 

ordered the guards to shoot low at prisoners 

as they ascended the stairs to reach an area 

where the officer was held. The plaintiff- 

prisoner was not involved in the riot but 

was shot as he ascended the stairs. 

The Court considered that some inmates 

were armed and dangerous and that a 

guard fired a warning shot before shooting 

the plaintiff. And it noted that conduct 



prohibited by the cruel and unusual punishment 

clause is not mere inadvertence or 

error in judgment but “obduracy and wantonness.” 

It ruled that the shooting did not 

rise to that level but was merely a “goodfaith 

effort” to restore prison security. See 

id. at 319, 322–23. 

The Supreme Court reaffirmed Whitley’s 

“excessive force” standard in Hudson v. Mc- 

Prisoners must show 

that the conditions were 

“deliberately indifferent” 

to their health or safety, 

creating a “substantial risk 

of harm” and amounting to 

cruel and unusual treatment. 

Millian, 503 U.S. 1 (1992). In Hudson, a prisoner 

claimed that two corrections officers 

violated his constitutional rights by beating 

him while he was handcuffed and shackled 

after he argued with one of them. He alleged 

that he suffered minor bruises, facial swelling, 

loosened teeth, and a cracked dental 

plate. He also claimed that the supervisor on 

duty watched the beating and told the officers 

“not to have too much fun.” See id. at 4. 

The trial court found that the prisoner’s 

rights had been violated because the 

officers used force when there was no need 

for it. The court of appeals reversed, ruling 

that the prisoner failed to prove that 

he suffered a “significant injury.” And 

the Supreme Court granted certiorari to 

determine whether the “significant injury” 

requirement applied by the court of appeals 

“accords with the Constitution’s dictate 

that cruel and unusual punishment shall 

not be inflicted.” See id. at 4–5. 

Referencing its ruling in Whitley, the 

Supreme Court reminded that the issue is 

whether the force is applied in “good faith” 

to maintain or restore discipline, or “maliciously 

and sadistically” to cause harm. The 

Court then refused to require the prisoner 

to show significant injury, focused on the 


intent of the officers’ conduct, concluded 

that the officers’ actions constituted a violation 

of the prisoner’s Eighth Amendment 

rights, and reinstated the §1983 complaint. 

See id. at 6, 7–10. 

Maintain Conditions That Do Not Pose a 

Substantial Risk of Harm to Prisoners 

Prisoners claiming that their conditions of 

confinement violate their Eighth Amendment 

rights must show “extreme deprivations.” 

This is because “routine discomfort 

is ‘part of the penalty that criminal offenders 

pay for their offenses to society,’ and 

‘only those deprivations denying “the minimal 

civilized measure of life’s necessities” 

are sufficiently grave to form the basis of 

an Eighth Amendment violation.’” Hudson, 

503 U.S. at 9 (quoting Rhodes v. Chapman, 

452 U.S. 337, 346 (1981)). 

Prisoners must show that the conditions 

were “deliberately indifferent” to 

their health or safety, creating a “substantial 

risk of harm” and amounting to 

cruel and unusual treatment. In Trammel 

v. Keane, 338 F.3d 155 (2d Cir. 2003), a 

prisoner alleged that various deprivations 

of his daily needs violated his constitutional 

rights. He had an extensive history 

of behavioral problems, which earned him 

a lengthy disciplinary record. The prison 

deputy superintendent imposed the discipline 

in question after the prisoner spit 

or threw a liquid substance at a correction 

officer. See id. at 156–57. 

The deputy superintendent deprived 

the prisoner of recreation, showers, a cell 

bucket, and all state and personal property 

in his cell except one pair of shorts. He 

also deprived the prisoner of a mattress and 

bedding for 14 days and clothing and toiletries 

for 17 days, and he left the prisoner 

with an inadequate supply of toilet paper 

for a week. He determined that the prisoner 

was a threat to the safety of staff, inmates, 

and state property. See id. at 158–59. 

The district court dismissed the complaint, 

and the Second Circuit affirmed. 

The Second Circuit reasoned that the discipline, 

while harsh, (1) was reasonably 

calculated to correct the prisoner’s behavior, 

and (2) enabled him to regain his lost 

privileges with good behavior. The Second 

Circuit also found that the prisoner 

was regularly monitored to ensure that 

his health was not jeopardized during the 

deprivation period. Noting the deprivation 

of toilet paper was inadvertent at worst and 

negligent at best, the Second Circuit confirmed 

that negligence does not satisfy the 

scienter requirement necessary to support 

a claim for “cruel and unusual punishment.” 

See id. at 164–65. 

The Trammel standard is also considered 

when prisoners allege civil rights violations 

because of prison overcrowding. In North v. 

White, 152 F. App’x 111 (3d Cir. 2005), inmates 

claimed that the prison violated their 

civil rights by engaging in triple bunking in 

the Special Housing Unit. They claimed that 

triple bunking resulted in increased tension 

and hostility among inmates, reduced medical 

attention, decreased safety and security 

caused by limitations in staffing, and 

reduced services such as education, recreation, 

and vocational training. The prison 

claimed that it instituted the program in 

response to an increase of inmate population. 

See id. at 111. 

In dismissing the inmates’ complaint, 

the district court noted that prison- 

condition claims rise to an Eighth Amendment 

violation only when the conditions 

“seriously deprive inmates of basic human 

needs such as food, clothing, shelter, medical 

care, and safety.” In affirming that dismissal, 

the Third Circuit found that double 

or triple bunking alone is not per se unconstitutional. 

It explained that the staff was 

sufficient to handle the triple bunking, the 

environmental conditions were very good, 

the physical plant was very well maintained, 

and the ventilation and lighting 

met applicable standards. See id. at 113–14. 

The Supreme Court addressed a prison- 

condition issue over 30 years ago in Hutto 

v. Finney, 437 U.S. 678 (1978). It found a 

prison’s discipline by “punitive isolation” 

cruel and unusual when four to 10 prisoners 

were forced into windowless, 8’ x 10’ 

cells with only a source of water and a toilet 

that had to be flushed outside the cell. The 

prisoners received mattresses to spread on 

the floor, and although some prisoners suffered 

from infectious diseases, all the mattresses 

were stored together in the morning 

and returned to the cells randomly at night. 

Meals included 4-inch squares of grue, a 

substance created by mashing meat, potatoes, 

oleo syrup, vegetables, eggs, and seasoning 

into a paste and baking the mixture 

in a pan. See id. at 682–87.

Prevent Foreseeable Inmate Altercations 

Prisons have been sued for failing to prevent 

inmate altercations that led to injuries. 

See Farmer, supra, 511 U.S. at 829–31. 

In Farmer, the prisoner- plaintiff was a 

transsexual male who claimed another 

inmate assaulted and raped him after he 

was placed among the prison’s general population. 

The prisoner projected feminine 

characteristics and alleged that the prison 

staff knew that he would be particularly 

vulnerable to sexual attacks from other 

inmates because the prison had a history of 

violent attacks and assaults. See id. 

The trial court dismissed the complaint, 

finding that the prison lacked actual knowledge 

of a potential danger because the 

prisoner never expressed a concern for his 

safety. And the court of appeals affirmed 

the dismissal without writing an opinion. 

Vacating the dismissal and remanding the 

case to the trial court, the Supreme Court 

ruled that an Eighth Amendment violation 

arises when a prison is “aware of the facts 

from which the inference could be drawn 

that a substantial risk of serious harm 

exists.” Id. at 837. See id. at 831. 

The Court referenced the prison official’s 

admission that the prisoner was a non- 

violent transsexual who—because of youth 

and feminine appearance—was likely to 

experience a great deal of sexual pressure 

in prison. And it noted the warden’s statement 

that there was a “high probability” 

that the prisoner could not safely function 

at the prison. The Court concluded 

that the prison knew that a serious risk of 

harm existed for the prisoner, disregarded 

that risk, and failed to act on it. See id. at 

848–49. 

Thus, courts will likely find deliberate 

indifference when a prison fails to respond 

to known threats of violence against a 

prisoner. In Hearns v. Terhune, 413 F.3d 

1036 (9th Cir. 2005), a Muslim prisoner 

alleged that the prison violated his civil 

rights by allowing him to be attacked by 

a group of Muslim inmates. During his 

incarceration, there was violence among 

Muslim groups fighting for control of the 

population. The ruling group targeted the 

prisoner- plaintiff because he helped other 

Muslims obtain prayer oil without sharing 

it with the group. See id. at 1038–39. 

In vacating the district court’s dismissal 

of the prisoner’s complaint, the 

Ninth Circuit noted that there were a series 

of planned attacks by the ruling Muslim 

group, and that religion- related violence at 

the prison was “longstanding, pervasive, 

and well- documented.” Such evidence was 

sufficient to permit a jury to find that the 

prison had actual knowledge of the risk 

to the prisoner, and the allegations sufficiently 

showed that the prison may have 

acted with deliberate indifference. See id. 

at 1041–42. 

Courts will likely not find deliberate 

indifference, however, when there is no 

evidence that a prison should have reasonably 

anticipated an attack on a prisoner. In 

Brown v. Saj, 2007 WL 1063011 (W.D.N.Y. 

Apr. 5, 2007), the prisoner claimed that she 

was standing in line at the mess hall when 

another inmate approached her, their conversation 

became heated, and an altercation 

ensued. Prison staff broke up the fight, 

but not before the prisoner was stabbed in 

the left ear with a pen. The district court 

found that the prisoner could not prove the 

fight was foreseeable. See id. at *2. 

Be Mindful of Disabled Prisoners’ 

Right to Participate in Services, 

Programs, and Activities 

The Americans with Disabilities Act (ADA) 

and the Rehabilitation Act (RA) protect the 

rights of disabled persons. The ADA provides 

that “no qualified individual with a 

disability shall, by reason of such disability, 

be excluded from participation in or 

be denied the benefits of the services, programs, 

or activities of a public entity, or be 

subjected to discrimination by any such 

entity.” See 42 U.S.C. §12132. And §504 of 

the RA provides that “no otherwise qualified 

individual with a disability in the 

United States… shall, solely by reason of 

her or his disability, be excluded from the 

participation in, be denied the benefits of, 

or be subjected to discrimination under 

any program or activity receiving Federal 

financial assistance….” See 29 U.S.C. §794. 

A prison is considered a “public entity.” 

See Pennsylvania Dep’t of Corr. v. Yeskey, 

524 U.S. 206, 210 (1998). And a prisoner 

may sue under the ADA and the RA. To 

state a claim under either act, a prisoner 

must (1) have a qualifying disability, (2) 

have been excluded from participating in a 

prison’s services or programs, or otherwise 

been discriminated against by the prison, 

and (3) show that such exclusion or discrimination 

was due to his or her disability. 

See Hargrave v. Vermont, 340 F.3d 27, 

34–35 (2d Cir. 2003). 

A prison must “make reasonable modifications 

in policies, practices, or procedures 

when… necessary to avoid discrimination 

on the basis of disability, unless [it] 

can demonstrate that making the modifications 

would fundamentally alter the 

nature of the service, program or activity,” 

28 C.F.R. §35.130(b)(7), or would produce 

undue financial or administrative burdens. 

See 28 C.F.R. §35.150(a)(3). The modifications 

must provide a disabled prisoner 

“meaningful access” to the services, programs, 

or activities at issue. See Alexander 

v. Choate, 469 U.S. 287, 301 (1985). See also 

Pierce v. County of Orange, 526 F.3d 1190, 

1217 (9th Cir. 2008). 

In Pierce, pretrial detainees filed a 

class action lawsuit against the County 

of Orange and its agent and sheriff. The 

inmates claimed that the jail was violating 

various constitutional and federal rights, 

including the ADA, by failing and refusing 

to address structural barriers and by making 

the jail’s facilities such as bathrooms 

and showers inaccessible to its disabled 

inmates. The inmates also alleged that the 

jail prohibited its disabled inmates from 

accessing various programs offered to nondisabled 

inmates. See id. at 1195–97. 

The district court granted a summary 

judgment to the county on the ADA claim. 

It reasoned that the disabled detainees were 

required to show that they were treated 

differently from other similarly situated 

prisoners, which they failed to do. See id. 

at 1198–99. The Second Circuit reversed, 

reminding that public entities must make 

reasonable accommodations for the disabled 

unless the entities can show that the 

accommodations would result in a fundamental 

alteration in the nature of the 

service, program, or activity, or undue 

financial or administrative burdens. See id. 

The Second Circuit found that the jail 

failed to accommodate its disabled inmates 

because toilets, sinks, showers, hot water 

dispensers, telephones, and water fountains 

were inaccessible to the disabled 

inmates. The county proffered no legitimate 

rationale for this, and the Second Circuit 

rejected the county’s suggestion that 

some accommodations might be costly. 



See id. at 1217–20. The Second Circuit also 

found that the county denied the disabled 

inmates access to social programs and 

services, and it recommended on remand 

that the trial court examine the feasibility 

of offering these programs and services 

to the disabled to rectify the violation. See 

id. at 1221. 

Deliberately refusing to accommodate 

A prison’s grievance 

process is important. 

Prisoners should be aware 

of it, and they should 

not be threatened if they 

choose to proceed with it. 

disabled prisoners’ fundamental needs will 

constitute a claim under the ADA or the 

RA. In United States v. Georgia, 546 U.S. 

151 (2006), a paraplegic inmate claimed 

that he could not use the toilet and showers 

without help, had to sit in his own feces 

and urine while staff refused to help clean 

the waste, and was denied treatment and 

access to prison programs and services. See 

id. at 153, 155. The Supreme Court ruled 

that the prison acted unconstitutionally in 

refusing to address those disability- related 

needs. See id. at 157. 

The U.S. District Court for the Southern 

District of New York found similarly that a 

prison violated the ADA when it failed to 

provide a deaf prisoner with a hearing aid 

and working batteries. See Degrafinreid v. 

Ricks, 417 F. Supp. 2d 403 (S.D.N.Y. 2006). 

And the U.S. District Court for the District 

of New Jersey found that a prison violated 

the ADA when it transferred an inmate with 

a prosthetic leg from a first-floor cell with 

handicapped accessibilities to a second- 

floor cell without them, despite the inmate’s 

protests. See Muhammad v. Dep’t of Corr., 

645 F. Supp. 2d 299 (D.N.J. 2008). 

Courts have not found that prisons violated 

the ADA, however, when prisoners 

failed to show that their disability affected 

their activities. In Andino v. Fischer, 698 F. 


Supp. 2d. 362 (S.D.N.Y. 2010), a prisoner 

with post- traumatic- stress disorder (PTSD) 

claimed that the prison denied his request 

to be in the feed-in program. He said that 

he was incapable of eating meals in the 

public mess hall because of his anxiety 

and depression. See id. at 379. The U.S. District 

Court for the Southern District of New 

York adopted the magistrate judge’s recommended 

dismissal of the complaint, reasoning 

that the prisoner failed to explain 

how his PTSD hindered his ability to eat 

with the general population and to show 

that he was denied access to the program 

because of his PTSD. See id. at 378, 380. 

Raise Necessary Defenses 

to Prisoner Claims 

Prisons should be mindful of the elements 

of the prisoners’ civil rights claims 

and the factual predicates for them, and 

they should almost always seek to plead 

both exhaustion of administrative remedies 

under the Prison Litigation Reform 

Act (PLRA) and qualified immunity as 

defenses to them. Prisons will likely have 

other applicable defenses to the claims; 

these two defenses, however, could lead to 

an early dismissal of a complaint. 

Ensure That Prisoner-Plaintiffs 

Have Exhausted 

Administrative Remedies 

A frequently used defense in prison litigation 

is exhaustion of administrative 

remedies, under the PLRA. The PLRA precludes 

prisoners from suing “with respect 

to prison conditions under section 1983 of 

this title, or any other Federal law” unless 

and until they exhaust “such administrative 

remedies as are available” at that 

prison. See 42 U.S.C. §1997e. See also Porter 

v. Nussle, 534 U.S. 516, 532 (2002). Prisons 

must plead this defense affirmatively, 

or a court will consider it waived. See Jones 

v. Bock, 549 U.S. 199, 216 (2007). 

The exhaustion requirement “applies to 

all inmate suits about prison life, whether, 

they involve general circumstances or particular 

episodes, and whether they allege 

excessive force or some other wrong.” Porter, 

534 U.S. at 532. In Porter, an inmate, 

without first filing a grievance, sued correction 

officers who allegedly subjected 

him to a pattern of harassment and intimidation 

in violation of his Eighth Amend- 

ment rights. The district court dismissed 

his complaint for failure to exhaust administrative 

remedies. And the Second Circuit 

reversed, holding that exhaustion is not 

required for claims of assault or excessive 

force under §1983. See id. at 521–22. 

The Supreme Court reversed, ruling 

that the PLRA applied to all inmate lawsuits 

about prison life. It reviewed the statutory 

language and ruled that exhaustion 

is required for all “action[s]… brought 

with respect to prison conditions, whether 

under §1983 or any other Federal law.” It 

reasoned that the term “prison conditions” 

encompasses the universe of prisoner lawsuits 

and dismissed the prisoner’s complaint 

for not complying with the Act. See 

id. at 527–28, 532. 

In Jones, the Court addressed the 

exhaustion of administrative remedies 

defense further. It ruled that prisoners are 

not required to plead or show exhaustion in 

their complaints, exhaustion is not per se 

inadequate under the PLRA when a person 

later sued was not named in the grievance, 

and the PLRA does not require a court to 

dismiss the entire complaint when a prisoner 

fails to exhaust some of the claims in 

the complaint administratively. See Jones, 

549 U.S. at 200–01. 

The district court in Jones dismissed 

the prisoners’ complaints believing that 

because they failed to identify defendants 

during the grievance process, they failed 

to exhaust administrative remedies. And 

the court of appeals affirmed, ruling that a 

prisoner must “file a grievance against the 

person he ultimately seeks to sue.” See id. 

at 206–11. 

The Supreme Court reversed, reasoning 

that nothing in the PLRA or the prison’s 

grievance process required prisoners to 

identify all the defendants during the grievance 

process. See id. at 217–19. The Court 

also noted how courts should address complaints 

when prisoners fail to exhaust only 

some administrative remedies: “If a complaint 

contains both good and bad claims, 

the court proceeds with the good and leaves 

the bad.” Id. at 221. It ruled that failure to 

exhaust remedies for one claim does not 

bar claims that are properly exhausted. See 

id. at 222–24. 

A prison’s grievance process is important. 

Prisoners should be aware of it, and 

they should not be threatened if they

choose to proceed with it. The Third Circuit 

refused to allow the exhaustion defense 

when a prison’s employees refused to provide 

a prisoner with the forms needed to 

begin the grievance process. See Mitchell 

v. Horn, 318 F.3d 523 (3d Cir. 2003). And 

the Second Circuit denied an exhaustion 

defense when prison employees threatened 

to use force or retaliation should the 

prisoner file any grievances against them. 

See Hemphill v. New York, 380 F.3d 680 (2d 

Cir. 2004). 

Seek Qualified Immunity for 

Disciplining Prisoners 

The qualified immunity defense can be 

used when prison officials provide sufficient 

justification for violating prisoners’ 

constitutional rights. The analysis includes 

whether prison officials violated a prisoner’s 

constitutional rights, and whether 

those rights were “clearly established” in 

a “particularized sense.” See Anderson v. 

Creighton, 483 U.S. 635, 640 (1987). 

Courts have reasoned that maintaining 

security and preserving order may justify 

violating prisoners’ constitutional rights. 

See Bell v. Wolfish, 441 U.S. 520, 546–47 

(1979). And courts have allowed qualified 

immunity when “reasonable officials in the 

defendants’ position at the relevant time 

could have believed, in light of what was 

in the decided case law, that their conduct 

would be lawful.” Good v. Dauphin County 

Soc. Servs. for Children & Youth, 891 F.2d 

1087, 1092, (3d Cir. 1989). See Doe v. Delie, 

257 F.3d 309 (3d Cir. 2001). 

In Doe, an HIV- positive inmate was 

told that his medical condition would 

be kept confidential. But when the prisoner 

presented for sick call appointments, 

staff disclosed his condition to the escorting 

officers. Also, during physician visits, 

staff kept the door to clinic open, allowing 

others to see and hear the prisoner and 

the doctor. And nurses giving medication 

to the prisoner announced his condition 

loudly enough for others to hear. The prisoner 

sued under §1983 claiming that his 

right to medical privacy under the Fourteenth 

Amendment and state law had been 

violated. And the prison defendants moved 

to dismiss under qualified immunity. See 

Doe, 257 F.3d at 311–12. 

The district court dismissed the §1983 

claims based on qualified immunity, 

denied jurisdiction over the state claims, 

and dismissed the complaint. The Third 

Circuit agreed that the defendants were 

entitled to qualified immunity but disagreed 

with the district court’s reasoning. 

The Third Circuit ruled that the Fourteenth 

Amendment protects a prisoner’s right 

to medical privacy, “subject to legitimate 

penological interests,” but affirmed the dismissal 

of the complaint “because this right 

was not clearly established at the time of 

defendants’ conduct.” Id. at 311, 323. 

Courts have also allowed qualified 

immunity when an officer shot a prisoner 

in the leg, believing that it would stop an 

assault and restore order. See Marquez v. 

Gutierrez, 322 F.3d 689 (9th Cir. 2003). In 

Marquez, a disturbance broke out in the 

prison yard at the California State Prison- 

Sacramento. The plaintiff- prisoner claimed 

that he was attacked by a group of unarmed 

inmates but did not act violently himself. 

But a correction officer said that he saw 

the prisoner and an accomplice kicking 

another inmate in the head, and that he 

yelled “Get down!” to both of them. When 

the prisoner ignored this demand, the officer 

shot him in the leg, fracturing his 

femur. See id. at 691. 

The prisoner sued, claiming that the officer 

used excessive force in violation of the 

Eighth Amendment. And the officer moved 

for summary judgment based on qualified 

immunity. The district court denied the 

motion, finding issues of fact regarding 

the officer’s intent. And the Ninth Circuit 

reversed, finding that a reasonable officer 

could believe that shooting one inmate in 

the leg to stop the assault was a good-faith 

effort to restore order and thus lawful. The 

Ninth Circuit considered that a similarly 

situated official could perceive that the 

prisoner and his accomplice were threatening 

the other inmate’s life with serious 

injury or death. See id. at 693. 

Courts have rejected qualified immunity, 

however, when an officer aimed a 

loaded rifle at a prisoner without provocation 

or necessity. See Thomas v. Gomez, 

143 F.3d 1246 (9th Cir. 1998). In Thomas, 

the prisoner entered a shower and found a 

bug inside. He complained to an officer and 

refused to take a shower believing that it 

was unsanitary. After the officer inspected 

the shower and deemed it usable, he told 

the prisoner to use the shower or return to 

his cell. The prisoner told the officer that 

he would rather wait for the next available 

shower stall. See id. at 1247. 

The officer allegedly became irate 

toward the prisoner, who asked to speak 

to a supervisor. The officer then ordered 

another officer to “lay the dayroom down.” 

The prisoner claimed that this officer then 

chambered a live round and aimed his 

rifle at him. And the officers claimed that 

although the rifle was loaded, it was not 

aimed at the prisoner. After the “dayroom 

down” order, the prisoner was handcuffed 

and returned to his cell. See id. 

The prisoner filed a civil rights complaint 

against both officers, alleging that 

they violated his Eighth Amendment rights 

by aiming a loaded rifle at him for no reason. 

The officers moved for summary judgment 

based on qualified immunity. The 

district court denied their motions, finding 

material issues of fact on whether they 

acted unconstitutionally. And the Ninth 

Circuit agreed, rejecting the officers’ argument 

that they did not intend to inflict 

pain on the prisoner unnecessarily or maliciously. 

See id. at 1247–49. 

Conclusion 

Those managing, insuring, and defending 

prisons should understand the possible 

bases for prisoners’ claims and should 

avoid or be prepared to defend against 

them. Courts focus on whether prison officials 

and employees acted with deliberate 

indifference when considering claims of 

inadequate medical care, excessive force, 

and failure to prevent inmate altercations. 

Prison officials and employees should act 

reasonably in having prisoners examined 

and treated, should justify the force used 

against prisoners, and should prevent foreseeable 

inmate attacks. 

Claims based on prison conditions 

and disability discrimination depend on 

whether prisoners are deprived of basic 

human needs. Prisons should reasonably 

alter their conditions and should seek to 

accommodate their disabled prisoners. In 

addition, prisons could benefit from the 

exhaustion of administrative remedies and 

qualified immunity defenses by providing 

access to their grievance process to prisoners 

and by justifying violations of their 

prisoners’ rights. 



Old-School Analysis of 

Supreme 

New-School Technology 

Court Prohibits 

Warrantless 

By David E. Schrock 

GPS Tracking 

in United States v. Jones, 

the Court concludes that 

GPS tracking is a Fourth 

Amendment search. 

■ David E. Schrock is a member attorney of the Cedar Rapids, Iowa, law firm of Scheldrup, Blades, Schrock, Smith, Aranza, P.C. 

He chairs the firm’s civil litigation and municipal law practice groups, and his practice is primarily devoted to governmental and 

municipal liability law and insurance defense, and nursing home and assisted living facility litigation. He is a member of DRI and 

its Government Liability and Medical Liability and Health Care Law Committees, the Iowa Municipal Attorneys Association, and 

the Iowa Defense Counsel Association. 


As use of advanced technology has become more commonplace 

throughout business and industry, law enforcement 

has kept pace. Law enforcement agencies across the 

country have incorporated new and improved 

methodologies in law enforcement, including 

surveillance and tracking technologies. 

However, in recent years, the 

Supreme Court has been largely silent concerning 

the implications of emerging technology 

and its impact on the protections 

afforded by the Fourth Amendment. In 

United States v. Jones (decided January 23, 

2012), the Court reexamined these issues 

as it considered the question of whether 

attaching a GPS device to a suspect’s vehicle 

constitutes a search as defined under 

the Fourth Amendment. United States v. 

Jones, 132 S. Ct. 945 (2012). The Court, 

with Justice Scalia providing the opinion, 

concluded that attaching a GPS device to 

a suspect’s vehicle, and subsequently using 

information gained from the GPS to monitor 

the suspect’s movements on public 

streets, is a search within the meaning of 

the Fourth Amendment. The Court’s conclusion 

on the constitutional issue was 

somewhat surprising not for its result but 

for the unusual approach taken by the five 

members of the court who determined that 

the issue turned upon principles of common 

law trespass. 

Background Facts and Proceedings 

The backdrop to the Jones case involved 

District of Columbia narcotics agents who 

were monitoring the activities of a suspected 

narcotics distributor. Id. at 948. 

Following investigation and surveillance 

of the suspect by other means, the government 

applied to the United States District 

Court for the District of Columbia for a 

warrant authorizing electronic tracking of 

a vehicle registered to Jones’s wife but used 

by him. Id. A warrant was issued authorizing 

installation of the device in the District 

of Columbia and within ten days. Id. However, 

it was not until the eleventh day after 

the warrant was issued, and not within the 

District of Columbia but in Maryland, that 

agents installed the GPS device. Id. The 

government subsequently tracked Jones’s 

movements for the next 28 days with the

device, eventually obtaining over 2,000 

pages of data within a four-week period. 

Id. Based in part on information obtained 

through GPS tracking, the government 

ultimately brought a multiple- count indictment 

charging Jones various drug related 

offenses. Id. 

Jones filed a motion to suppress all evidence 

obtained through the GPS device. 

Id. The district court granted the motion 

to suppress only in part, holding that the 

majority of the data obtained from the 

GPS device was admissible. Id. The district 

court concluded that an individual 

has no reasonable expectation of privacy 

in an automobile traveling on a public 

thoroughfare. Id. Jones’s first trial ended 

in a hung jury on the narcotics- related 

charges. Id. Upon retrial, with the government 

again relying in part upon some of 

the GPS- derived data, the jury returned a 

guilty verdict, and the district court sentenced 

Jones to life in prison. Id. at 949. 

The U.S. Court of Appeals for the D.C. Circuit 

reversed the conviction, finding that 

the use of the GPS- related data violated 

the Fourth Amendment. Id. The Supreme 

Court granted certiorari to examine the 

Fourth Amendment implications of the 

government’s use of the GPS data. 

“Physical Intrusion” upon 

a Protected Area 

Justice Scalia, writing the opinion, 

acknowledged that Fourth Amendment 

jurisprudence has for the past many years 

largely followed the “reasonable expectation 

of privacy” approach set forth by 

the Court in Katz v. United States, 389 

U.S. 347 (1967). In Katz, the Court examined 

constitutional issues implicated by 

the attachment of an electronic eavesdropping 

device to a public telephone booth, 

a location not among the specific areas 

(“persons, houses, papers, and effects,”) 

that the Fourth Amendment protects from 

unreasonable searches. Id. at 353. Katz, and 

other cases that followed, such as Rakas v. 

Illinois, 439 U.S. 128 (1978), represented 

a departure from prior Fourth Amendment 

interpretation. Well into the twentieth 

century, the preivous interpretation 

was tied to common law trespass principles. 

In Katz, the Court moved away from 

reliance upon these principles, and adopted 

a test best summarized by Justice Harlan’s 

concurrence, stating that a Fourth Amendment 

search occurs when the government 

violates a subjective expectation of privacy 

that society recognizes as reasonable. Katz, 

389 U.S. at 361. The Court largely has followed 

this “reasonable expectation of privacy” 

test since that time. This approach 

would seem to have afforded the Jones 

court a familiar standard for determining 

whether use of GPS technology, which 

is becoming ever more commonplace, violates 

a reasonable expectation of privacy in 

public places. 

Somewhat surprisingly, however, the 

Court declined to apply the Katz test to the 

facts presented by the Jones case. Instead, 

the Court concluded that the Fourth 

Amendment question turned on the common 

law principles of trespass, which the 

Court had seemingly moved away from 

in recent decades. Jones, 132 S. Ct. at 949. 

While the opinion was careful to state that 

it was not repudiating Katz, the Court 

explained that it need not apply the Katz 

expectation of privacy analysis because it 

found the government’s attachment of a 

GPS device to have been a clear “physical 

intrusion” of a protected area under the 

language of the Fourth Amendment. Id. at 

950. Noting that a vehicle is indisputably 

an “effect” as that term is defined by the 

Fourth Amendment, the Court found that 

the government had impermissibly physically 

occupied private property when it 

attached the GPS device to the vehicle. Id. 

at 949. The Court, therefore, held that this 

trespass, coupled with the government’s 

use of the information it yielded, amounted 

to an unlawful search under the Fourth 

Amendment. Id. It explained that no analysis 

under Katz was necessary, as the 

physical intrusion upon a constitutionally 

protected area had long been held inviolable 

under English common law principles 

long in existence when the Fourth 

Amendment was adopted. Id. The sanctity 

of a person’s home and possessions, the 

Court observed, has long predated modern 

Fourth Amendment jurisprudence: 

[O]ur law holds the property of every 

man so sacred, that no man can set his 

foot upon his neighbour’s close without 

his leave; if he does he is a trespasser, 

though he does not damage at all; if he 

will tread upon his neighbour’s ground, 

he must justify it by law. 

Entick v. Carrington, 95 Eng. Rep. 807, 

817 (C.P. 1765). Jones, 132 S. Ct. at 949. 

The Court observed that even its Fourth 

Amendment cases following Katz had carefully 

preserved the enhanced status of 

expectations of privacy within the home. 

Id. at 950–51. (citing Alderman v. United 

States, 394 U.S. 165, 180 (1969) (“Katz… 

[did not] withdraw any of the protec- 

The sanctity of a person’s 

home and possessions, the 

Court observed, has long 

predated modern Fourth 

Amendment jurisprudence. 

tion which the Amendment extends to 

the home….”). “At bottom,” concluded the 

Court in Jones, “we must assur[e] preservation 

of that degree of privacy that 

existed when the Fourth Amendment was 

adopted.” Jones, 132 S. Ct. at 950. 

Justice Alito, joined by Justices Ginsburg, 

Breyer, and Kagan, concurring in 

the judgment only, was sharply critical 

of relying upon concepts of property law 

to rule on the Fourth Amendment issue. 

Justice Alito, joined by Justices Ginsburg, 

Breyer, and Kagan, viewed it as ironic to 

resort to “18th- Century tort law” to grapple 

with Fourth Amendment protection of 

twenty- first century technology. Id. at 957. 

Criticizing this analysis as having “little 

if any support in current Fourth Amendment 

case law,” and referring to it as a 

“highly artificial” approach, the concurrence 

argued that the ruling strained the 

Fourth Amendment to create an unwieldy 

result. Id. at 958 and 961. Justice Alito 

observed that the Court’s opinion made 

very little effort to explain how such a 

trivial and fleeting intrusion with a small 

GPS device could amount to any meaningful 

interference with an individual’s 

possessory interest in his or her property. 

Id. at 958. He pointed out that the Court 

had previously moved away from such a 

trespass- based rule because it was excessively 

technical and impractical. Id. at 959. 



Noting that when the Court followed such 

a trespass- based analysis in early decisions 

involving wiretapping and electronic 

eavesdropping, it had found the rule to be 

impractical, and the approach was repeatedly 

criticized for leading to inconsistent 

results. Id. Katz finally swept away what 

remained of the old approach, holding that 

a trespass was not required for a Fourth 

The Jones decision 

suggests that the Court still 

seems uneasy grappling 

with balancing advances in 

technology against privacy 

issues, and the law in this 

arena remains unsettled. 

Amendment violation. Id. The reasonable 

expectation of privacy test had established 

that the reach of the Fourth Amendment 

does not turn on a “physical intrusion” 

or its absence, and subsequent cases confirmed 

that an actual trespass was neither 

necessary nor sufficient to establish a constitutional 

violation. Katz, 389 U.S. at 353. 

See also Rakas v. Illinois, 439 U.S. 128 143 

(1978); United States v. Karo, 468 U.S. 705 

713 (1984). 

The concurrence was also critical of the 

Court’s opinion because it disregarded the 

important prospects of GPS technology for 

law enforcement and instead attached great 

significance to a “relatively minor” trespass 

upon property—the attachment of the GPS 

device to the vehicle. Jones, 132 S. Ct. at 

961. Justice Alito and the three concurring 

justices observed that this technical “trespass” 

was so trivial that it would not likely 

create a basis for recovery under modern 

tort law. Id. They also suggested that 

the Court’s approach may lead to incongruous 

and unpredictable results: If the 

police attached a GPS device to a car for 

a brief time only, under the Court’s theory, 

the Fourth Amendment would apply; 

but if the police followed the same car for a 


much longer period, using unmarked cars 

and aerial assistance, the Fourth Amendment 

would not constrain the tracking. Id. 

Additionally, the concurrence observed 

that “coverage of the Fourth Amendment 

may vary from state to state” because individual 

state laws may affect who the state 

law considers a vehicle’s owner for Fourth 

Amendment purposes. Id. 

The Katz expectation of privacy test, 

declared the concurring justices, avoids 

all of these problems and complications. It 

permits courts to impose a uniform test for 

determining whether an unlawful Fourth 

Amendment search has occurred without 

resting the determination upon the means 

by which law enforcement carried out surveillance, 

whether by some noninvasive 

electronic means or by “actual physical 

contact with the item to be tracked.” Id. at 

962. The concurrence did, however, allow 

that the Katz test has its own difficulties. Id. 

It has often been criticized as circular, and 

hence subjective and unpredictable, and 

Justice Scalia, among others, has criticized 

it in previous rulings. See Kyllo v. United 

States, 533 U.S. 27, 34 (2001); Minnesota 

v. Carter, 525 U.S. 83, 97 (1998). Additionally, 

the concurrence acknowledged that in 

the ever- changing technological landscape, 

popular expectations are in flux and may 

ultimately change attitudes about privacy 

expectations in significant ways. Jones, 132 

S. Ct. at 962. 

In response to the criticisms raised by 

the concurrence, Justice Scalia responded 

that Jones’s Fourth Amendment rights 

did not rise or fall with the Katz formulation. 

Id. at 950. Katz, he explained, did not 

repudiate the Fourth Amendment’s long- 

standing concern for government trespass 

upon the specific areas that it enumerates, 

meaning “persons, houses, papers, and 

effects.” Id. Rather, he observed that the 

Court simply need not resort to the reasonable 

expectation of privacy test when, 

as here, the government’s physical intrusion 

into a home is so evident. Justice Scalia 

dismissed the criticisms lodged by Justice 

Alito, particularly concerning those “vexing 

problems” in cases that do not involve 

physical contact, such as those that involve 

the transmission of electronic signals. Id. at 

953. The Court opinion, therefore, declined 

Justice Alito’s invitation to adopt a constitutional 

standard that fits all fact pat- 

terns and search methodologies and went 

only as far as it needed to find the trespass 

issue dispositive. The Court opinion added 

that situations without physical trespass 

that merely involved transmitting electronic 

signals the Katz formulation would 

remain the reasonable expectation of privacy 

analysis. 

Significance of Jones on 

Fourth Amendment Law 

If nothing else, the Jones decision suggests 

that the Court still seems uneasy grappling 

with balancing advances in technology 

against privacy issues, and the law in this 

arena remains unsettled. Before the Court’s 

ruling in Jones, previous case examinations 

involving electronic eavesdropping or 

monitoring revealed a similar uncertainty. 

In United States v. Knotts, the Court considered 

the Fourth Amendment’s breadth 

in a case in which an electronic beeper had 

been placed in a container of chemicals, 

and the container was ultimately transferred 

to the plaintiff’s possession in connection 

with a drug investigation. United 

States v. Knotts, 460 U.S. 276 (1983). After 

the container had been loaded onto a vehicle, 

the government’s surveillance consisted 

primarily of following the signal 

from the beeper in the automobile on public 

streets. Id. at 281. In Knotts, the Court 

applied the Katz reasonable expectation of 

privacy test and concluded that monitoring 

the signal from the beeper in this fashion 

did not invade any legitimate expectations 

of privacy and did not constitute an unlawful 

search under the Fourth Amendment. 

Id. at 282. 

In the Knotts opinion, the Court 

appeared less concerned about the privacy 

expectations in an automobile than in 

Jones, commenting that “[o]ne has a lesser 

expectation of privacy in a motor vehicle 

because… [a] car has little capacity for 

escaping public scrutiny.” Id. at 281. The 

Court concluded that a person traveling in 

an automobile on a public highway does 

not, therefore, have a reasonable expectation 

of privacy in his or her movements 

from one place to another. Id. However, 

in light of the Court’s opinion in Jones, it 

appears that such a determination now will 

depend upon whether government officials 

physically have intruded upon any part 

of an automobile, however minimally, so

long as the surveillance target has a property 

interest in the vehicle. Justice Brennan 

noted in his opinion concurring in the 

judgment in Knotts that the decision would 

have been much more difficult had the 

respondent challenged not merely the monitoring 

of the beeper signal but its original 

installation, too. Id. at 286. When the government 

does engage in a physical intrusion 

of an automobile, he observed, this 

conduct may amount to a Fourth Amendment 

violation, commenting also that Katz 

had not eroded this principle. Id. 

Another case in which the Court examined 

using advanced technology to monitor 

suspect activities involved using noninvasive 

thermal imaging to measure heat 

emanating from a suspect’s home. In Kyllo 

v. United States, 533 U.S. 27 (2001), agents 

used a thermal imaging device to scan the 

suspect’s residence to determine whether 

the amount of heat emanating from it was 

consistent with high- intensity lamps typically 

associated with indoor marijuana 

growth. Id. at 29–30. The thermal imaging 

device used by the government in Kyllo was 

a nonintrusive device that provided a crude 

visual image of the heat emanating from 

the house but did not depict any people or 

activity within the walls of the structure. 

Id. at 30. In a 5–4 decision, the majority, 

in an opinion authored by Justice Scalia, 

held that the use of sense- enhancing technology 

to gather information regarding the 

interior of a home, which could not otherwise 

have been obtained without physical 

intrusion into a constitutionally protected 

area, constitutes an impermissible search. 

Id. at 34. 

In Kyllo, the Court acknowledged the 

challenges presented by scrutinizing 

advances in technology, stating that “[i]t 

would be foolish to contend that the degree 

of privacy secured to citizens by the Fourth 

Amendment has been entirely unaffected 

by the advance of technology.” Id. at 33–34. 

While the majority acknowledged that 

the Court had moved away from Fourth 

Amendment analysis based upon notions 

of trespass, the Court also appeared wary of 

criticisms of limitations of the Katz expectation 

of privacy test, namely that it was 

circular and unpredictable. Id. at 32, 34. 

The Court appeared reluctant in Kyllo to 

reach a decision entirely based upon the 

Katz formulation. The majority noted the 

difficulty of defining reasonable societal 

expectations of privacy in areas such as 

telephone booths, automobiles, and even 

in semi- private areas near homes. Id. at 

34. The Court ultimately evaded the issue 

by noting that the thermal imaging search 

while noninvasive in nature revealed information 

emanating from the interior of a 

home. The majority, therefore, concluded 

that using even noninvasive technology to 

obtain information from the interior of the 

home that could not otherwise have been 

obtained without physical intrusion, constituted 

an impermissible search, at least 

when the technology is not “in general public 

use.” Id. Any other approach, reasoned 

the majority, “would leave the homeowner 

at the mercy of advancing technology—including 

imaging technology that could discern 

all human activity in the home.” Id. at 

35–36. Foreshadowing the Court’s “physical 

intrusion” approach in Jones, the Court 

observed in the Kyllo ruling that any physical 

invasion of the home “by even a fraction 

of an inch” was too much. Id. at 37 

(citing Silverman v. United States, 365 U.S. 

505, 512 (1961)). 

The Court’s approach in Jones, along 

with its decision in Kyllo, signifies that 

in cases involving surveillance of constitutionally 

protected areas, regardless of 

whether the sensory technology is minimally 

invasive or even not physically intrusive, 

several members of the Court seem 

reluctant to erode a certain long- existing 

quantum of privacy. In Kyllo, the majority 

dismissed the government’s argument, 

embraced by the four dissenting justices, 

that the intrusion into the home was only 

minimal because the thermal imaging 

device yielded only heat signature information 

radiating from the home’s exterior. 

Kyllo, 533 U.S. at 35. The majority flatly 

rejected this view, stating that in our homes 

“all details are intimate details….”Id. at 37 

(emphasis original). 

The Court’s decision in Jones also narrows 

the scope of its previous ruling in 

Knotts. In Knotts, the Court found that 

placing the beeper in a container of chemicals 

that was then transported to the 

owner’s residence did not invade any legitimate 

expectations of privacy. While Knotts 

seemed to minimize expectations of privacy 

in a person’s own automobile, the 

Jones decision suggests a higher standard 

of scrutiny of the government’s surveillance 

of automobiles. Under Jones, clearly 

any intrusion into a protected area, however 

slight, and any placement of an electronic 

device, however small, affixed to 

an automobile, coupled with the use of 

data derived from such technology, constitutes 

an unlawful search under the Fourth 

Amendment. Read together, the Court’s 

In cases involving 

surveillance of 

constitutionally protected 

areas, regardless of whether 

the sensory technology is 

minimally invasive or even 

not physically intrusive, 

several members of the 

Court seem reluctant to 

erode a certain long- existing 

quantum of privacy. 

decisions in Jones and Kyllo suggest that 

even if the government monitored a vehicle’s 

movement by noninvasive means, and 

the noninvasive monitoring revealed information 

about the vehicle’s contents, this 

may amount to an impermissible search. 

While the Jones decision establishes that 

installing and using technology such as a 

GPS device is a search for Fourth Amendment 

purposes, the decision does not 

explain whether or when prolonged surveillance 

may become a search. The Court’s 

silence on this issue implies that even after 

Jones comprehensive visual surveillance 

of a subject in public remains broadly 

permissible. See Elkins v. Elenz, 2012 WL 

2952435 (M.D. Fla. 2012). While the Court 

did not appear interested in addressing 

these questions in Jones, the four justices 

concurring in the judgment, along with 

Justice Sotomayor who wrote separately, 



did comment on the constitutionality of 

short-term versus long-term monitoring. 

Justice Alito, writing on behalf of the four 

justices concurring in the judgment, provides 

some insight into how the Court may 

have addressed the issue of long-term surveillance, 

had the case been decided under 

the Katz expectation of privacy analysis. 

Because GPS use has become more preva- 

The decision does not 

explain whether or when 

prolonged surveillance 

may become a search. 

lent, the justices concluded that relatively 

short-term, monitoring of a person’s activities 

by GPS accords with expectations of 

privacy that society currently recognizes 

as reasonable. Jones, 132 S. Ct. at 964. However, 

the concurrence concluded that longer-term 

GPS monitoring in investigations 

of most offenses likely impinges unreasonably 

on expectations of privacy. Id. While 

the concurrence declined to define the line 

between short-term and long-term monitoring, 

the justices observed that the line 

was “surely crossed before the four-week 

mark” in Jones. Id. 

Justice Sotomayor, concurring separately, 

joined the Court’s opinion that the 

attachment of the GPS device to the vehicle 

was an impermissible physical intrusion 

into a constitutionally protected area. Id. at 

954. However, she expressed that in cases of 

electronic or other novel modes of surveillance, 

the Court’s trespass test may provide 

little guidance. Justice Sotomayor clearly 

had concerns about the use of the GPS 

as a cheap and easy tool for law enforcement 

surveillance, observing that surveillance 

by GPS is ripe for abuse and evades 

the customary checks that constrain other 

abusive law enforcement practices. Id. at 

955–56. She aligned with Justice Alito and 

the other concurring justices in expressing 

the opinion that at the very least, longerterm 

GPS monitoring and investigations 

of most offenses impinges on reasonable 

expectations of privacy. Id. at 955. However, 


Justice Sotomayor suggested that she would 

go further, stating that in her view even 

short-term monitoring of subjects using 

enhanced surveillance techniques may violate 

the Fourth Amendment. Id. 

Implications for Defense Counsel 

and Law Enforcement 

For a limited period of time at least, because 

the Jones decision prohibiting warrantless 

GPS searches was a case of first impression, 

the qualified immunity defense may 

provide a defense in some cases involving 

law enforcement activity involving GPS 

monitoring of vehicles. The Supreme Court 

had not yet addressed qualified immunity 

in this context, and the various circuits 

had not previously reached consensus on 

whether or to what extent GPS monitoring 

violated the Fourth Amendment. Therefore 

law enforcement activity involving GPS 

monitoring of vehicles occurring before 

Jones likely did not violate clearly established 

statutory or constitutional rights of 

which a reasonable law enforcement officer 

should have been aware. See Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982). Government 

officials who relied upon GPS surveillance 

as being presumably permissible 

before Jones may thus be entitled to qualified 

immunity as government officials 

are not responsible for bad guesses in gray 

areas but only may be held liable for transgressing 

bright lines. Maciariello v. Sunner, 

973 F.2d 295, 298 (4th Cir. 1992). 

The implications of Jones, and the viability 

of the Katz “reasonable expectation 

of privacy” test in the defense of law 

enforcement officials, are less clear. However, 

attorneys can make some reasonable 

assumptions from Jones and the Alito concurrence, 

along with the Court’s previous 

rulings in Knotts, Kyllo, and other cases in 

which the Court has struggled to balance 

law enforcement and Fourth Amendment 

privacy issues: 

• The reach of the Court’s ruling in Jones 

may be somewhat limited except in 

cases involving actual physical intrusion 

by the government into protected areas 

enumerated by the Fourth Amendment 

as discussed in Jones, or in cases even 

involving nonintrusive surveillance that 

reveals activities within the home as discussed 

in Kyllo, and the Court will likely 

default to the Katz formulation. 

• The Jones ruling qualified Knotts in two 

respects. First, even short-term monitoring 

of a suspect’s activities through electronic 

surveillance is likely a “search” if 

it involves trespass or a physical intrusion 

into a constitutionally protected 

area; and second, long-term monitoring 

through electronic surveillance is presumably 

questionable under Katz even 

without a physical intrusion. 

• Jones is essentially silent on the legality 

of short-term monitoring of a suspect’s 

activities through electronic means that 

do not involve trespass, at least outside 

the home. 

• Concerning electronic surveillance of 

vehicles using GPS, the Jones opinion 

leaves the law enforcement window at 

least slightly open in that someone likely 

must have a property interest or at least 

a substantial possessory interest in the 

vehicle that the government monitors to 

trigger the Jones trespass- based review. 

While warrantless GPS tracking of vehicles 

owned or rented by a subject may 

be impermissible, GPS tracking of borrowed 

vehicles or automobiles with a 

less substantial privacy interest may be 

permissible. 

• Finally, as noted above, the Court’s 

opinions do not appear to have 

restricted in any way the permissibility 

of comprehensive, long-term visual 

surveillance by nonelectronic means in 

public areas. 

Concluding Thoughts 

Having wrestled with the difficult issues 

presented by emerging surveillance technologies, 

which has resulted in a divided 

opinion in Jones regarding the proper constitutional 

standard, it appears unlikely 

that the Court will address similar issues 

again anytime soon. It seems foreseeable 

that in a few years the Court may need 

to address these constitutional standards 

again—perhaps as they apply to data 

derived from GPS- enabled smart phones, 

or the use of technological data available 

from factory- installed vehicle tracking systems. 

With this in mind, it would seem 

likely that the ever- increasing speed of 

advancing technology will determine the 

pace at which the Court revisits these difficult 

questions.


Horse of a 

Different Color 

By Christopher Boyle 

Called upon to defend 

such a client, a wise 

defense attorney will 

learn the basics of law 

enforcement, participate 

in and encourage 

training, communicate 

with his or her client like 

no other, and provide the 

best defense possible. 

The Law 

Enforcement 

Client 

While the profession we have chosen allows, if not 

demands, that we develop the ability to converse with a 

wide variety of demographics, across educational, professional 

and socio- economic lines, at times, we are faced 

with the “horse of a different color,” a client 

so different in experience and responsibility, 

that we share little in common and 

face an uphill battle from the start. The 

law enforcement client is the quintessential 

horse of a different color, but given their 

frequent encounters with the U.S. Constitution, 

one with whom you may have frequent 

contact as a defense attorney, or as 

a criminal or a plaintiff’s attorney for that 

matter. You may find that the author of this 

article is himself a horse of a different color, 

perhaps choosing one end of the horse over 

the other in describing his presentation of 

the content. Unfortunately, in his 16-year 

law enforcement career before joining a 

defense litigation firm, he has been called 

a lot worse. That said, his perspective as a 

sued police officer and representing similarly 

situated officers as an attorney does 

provide the benefit of firsthand experience. 

There is a certain predictability that comes 

from law enforcement officers, a predictability 

that can be used for their benefit, 

and yours. While law enforcement officers 

are trained to deal with the “likes of us” in 

the legal profession, recognizing the distinction 

between fact and fiction of what 

makes them different from your other clients, 

what they demand as clients and what 

you can do to improve the attorney- client 

relationship, can go a long way. 

Fact and Fiction: What Makes 

Law Enforcement Different? 

A hundred years ago, when I pushed a 

patrol car around the streets of Philadelphia, 

I had a very wise police commissioner 

who said, “Law enforcement is the only job 

in the world where, on any given day, you 

could be asked to save a life, take a life, or 

give your life. You could say that this makes 

it unique.” Indeed, you could. The business 

of law enforcement is truly one of life and 

death. While other professionals believe 

that the same holds true, taking our friends 

in the medical field as a perfect example, it 

is slightly different when it is your own life 

■ Christopher Boyle is an associate in the King of Prussia, Pennsylvania, office of Philadelphia- based Marshall, Dennehey, Warner, 

Coleman & Goggin, a defense litigation firm of 450+ attorneys in six states. Mr. Boyle practices in the firm’s Public Sector 

and Civil Rights Practice Group. He also reviews practices and policies for police departments, and conducts pre- lawsuit evaluations 

of claims involving law enforcement. He is a 16-year veteran of the Philadelphia Police Department who retired with the 

rank of lieutenant in 2005, the year that he joined Marshall Dennehey. 



or death that you are dealing with. To use 

a different example, it’s like the chicken 

and the sow who are both asked to put 

something toward breakfast. The chicken 

contributes eggs, and the sow contributes 

bacon and has made a sacrifice. This is 

the fundamental difference between your 

law enforcement clients and those in other 

fields, but it certainly isn’t the only one. 

Understanding and not 

judging why a police officer 

develops a hardened 

shell when it comes to 

certain matters that the 

rest of the world sheds a 

justifiable tear about will 

help you represent one. 

I tried in the past to explain why police 

officers are the way that they are. Then I 

had a client who put it in perhaps the best 

way that I have ever heard. In an issue completely 

unrelated to the underlying claims, 

a plaintiff’s attorney took umbrage to my 

client, who had referred to the attorney in 

a rather unflattering way during a deposition. 

The attorney sought to use at trial my 

client’s reference to counsel’s similarity to 

the opening of the digestive track at the 

opposite end of the one that he was using 

to speak. When asked during the second 

day of his deposition if he had referred to 

plaintiff’s counsel in this manner, my client 

answered quite honestly that he wasn’t 

certain but that it was certainly possible. 

When asked why, he replied with words 

to the effect, “I used to speak in a perfect 

Christian manner, then the boss put 

me into a cesspool of drug dealers, rapists, 

and killers, and my vernacular paid 

the price.” Understanding and not judging 

why a police officer develops a hardened 

shell when it comes to certain matters that 

the rest of the world sheds a justifiable tear 

about will help you represent one. This is 


a defense mechanism that develops over 

years of dealing with the worst in human 

beings. Few people meet a police officer 

on his or her best day, and the officer has 

to deal with a steady diet of murder and 

mayhem. If officers succumb to the steady 

diet, Fourth Amendment claims of excessive 

force would far outnumber the lawyers 

able to handle them. Understand that your 

officer’s gallows humor is a necessary tool 

of the profession, and be ready for its natural 

corollary: the need to test your limits. 

Most officers will want to know how much 

you know, and the fastest way to establish 

this is often to test your knowledge with a 

simple question, or, if this isn’t an officer’s 

first lawsuit, a little white lie. An officer 

may ask you point blank for your experience, 

or say something that is completely 

inconsistent with his or her training. For 

instance, police officers will often refer to 

rubber nightsticks, felt-lined handcuffs, or 

rubber bullets. None are tools of contemporary 

law enforcement, which is something 

that you should know going in. 

Now, as for the fiction of law enforcement, 

neither the “blue wall of silence” 

nor the “officer’s code of corruption” exist. 

Law enforcement officers hate child molesters 

and abusers the most, followed by drug 

dealers and dirty cops. As a group, police 

officers will not cover for the illegal acts 

of other police officers, and any internal 

affairs investigator will tell you that if it 

were not for honest officers reporting dishonest 

ones, many dishonest acts would 

never come to light. That said, law enforcement 

is an insular culture of necessity, and 

officers will not go out of their way to report 

honest mistakes made in good faith any 

more than teachers, plumbers, or lawyers. 

What’s the difference? The difference is that 

an officer’s honest mistake may result in 

real harm to an innocent person and will 

certainly receive years more scrutiny than 

that of a plumber. While a contractor may 

not have a problem assigning blame to a 

subcontractor, a police officer will be loath 

to assign blame to another police officer. 

He or she will expect that other officer to 

accept blame, but he or she won’t want to 

be the one to demand it. 

Law enforcement officers’ endeavors face 

constant scrutiny. They live under a microscope 

of political, media, and criminal 

oversight, and an action taken in a split sec- 

ond can result in years of litigation. You, 

the civil defense attorney, believe coming 

into this situation, that you can be an 

officer’s savior, his or her knight in shining 

armor. What you have to realize, however, 

is that you represent one more layer 

of scrutiny and, until you prove yourself 

worthy of the task, just another “suit” with 

a load of questions, and perhaps precious 

little insight into how law enforcement 

works, how officers are trained, and what 

law enforcement officers demand. 

What Do Law Enforcement 

Officers Demand? 

Law enforcement officers demand honesty. 

They will tolerate a small measure of 

ignorance of their training or procedures, 

but dishonesty, they cannot abide. If you 

identify a problem, let an officer know, and 

don’t sugar coat it. An officer would rather 

hear it from you directly than learn about 

it later in an adverse ruling. 

Law enforcement officers demand a face 

to face meeting. It is perhaps the smallest 

of efforts that you can put forth but the one 

that has the highest payoff in starting the 

attorney- client relationship off on the right 

foot. One of my favorite lines to say when I 

meet a new client is to say that I want him 

or her to be “able to pick me out of a lineup.” 

Officers deserve at least that. 

Law enforcement officers demand the 

best defense available. They want to know 

what is going on, and why, so communication 

is of paramount importance. They 

work 24-hours a day, seven days a week and 

have missed more kids’ birthdays and holidays 

than they can count. You can guess 

that they probably don’t need to hear that 

the lawn guy got grass in your pool, or that 

your Mercedes is in the shop. They will give 

you their best if you do the same. 

What Can I Do To Improve 

the Relationship? 

You can learn, train, communicate, and 

whenever possible, win. 

Learn 

Learn what your officer learns. Read the 

things that he or she reads, and watch the 

things that he or she watches. He or she 

doesn’t read crime novels, though he or she 

will sometimes write one. He or she doesn’t 

watch “cop shows” unless they are really,

and I mean really, true to life—think NYPD 

Blue or Hill Street Blues. His or her training 

is of paramount importance to him or 

her, and he or she will expect that you know 

what it entails. This doesn’t mean that you 

have to go through the Police Academy, but 

it certainly does mean that you should familiarize 

yourself with the state- mandated 

training. Know what topics the training 

covers so that you can get a copy if you 

need it. It wouldn’t hurt to make a friend 

in the state office responsible for training. 

You may need to sit on a curriculum committee, 

or do a two-hour presentation down 

the line, but that will both cement the relationship 

and add to your resume. 

There are certain things about law 

enforcement training that you think you 

know, perhaps from a healthy dose of television. 

Please allow me to dispel just a few 

myths that will help you and your client get 

along better. 

• The Crime Scene Unit does not respond 

to missing pets, a slashed tire, or tree 

limbs that hang over your property. 

All of these tasks fall within the capabilities 

of a trained police officer. Officers 

do not call for a police boat until 

they have reason to think that something 

is in the water, and they don’t seek 

DNA when dealing with a stolen houseplant. 

They could, but that would be an 

incredible waste of resources. Having 

such resources available does not create 

a higher burden to use them. 

• Police officers do not shoot armed people 

in the hands to knock the guns out. 

Clint Eastwood might do it, but Officer 

Boyle was trained to shoot “center mass,” 

meaning the largest part of the offender 

visible, usually the center of the chest. 

• Police officers are trained not to use Tasers 

on people armed with guns. An individual 

armed with a gun is a “deadly 

force threat.” An officer is trained to 

respond to deadly force with deadly 

force. A Taser is “less than deadly force” 

and would, therefore, not be appropriate. 

• Your officer is not Bruce Lee, Jet Li, 

Jean-Claude van Damme, or the Terminator. 

He or she is trained to fight 

to overcome resistance and to take an 

offender into custody. He or she cannot 

jump seven feet in the air and knock 

out a bad guy with a single kick to the 

face. He or she has the added problem 

that when he or she arrived, he or she 

brought a gun along, meaning that the 

fight now involves a gun, and that’s a 

dangerous thing. If the gun gets loose, 

he or she could be killed with it because 

the gun does not care who fires it. There 

is no such thing as a fair fight, and 

your client’s only objective should be to 

win. If he or she has chosen this force 

option over another, he or she isn’t stuck 

A DEEPER 

KNOWLEDGE 

OF YOUR 

PRACTICE 

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We Know Your Business. 



with the decision and can (and must) 

use greater or lesser force based on the 

circumstances. 

• People are missing from the moment 

they are reported missing; the “24-hour 

requirement” is a myth. People have the 

common misconception that an individual 

has to be gone for that 24-hour 

period before police can investigate. 

Let the officer know that 

you work for him or her, not 

the other way around. It will 

be a breath of fresh air, and 

it may take the officer a 

little while to get used to it. 

• A police officer does not have to read 

everyone that he or she arrests a Miranda 

warning. Miranda is only applicable if 

an officer will question the individual. It 

never ceases to amaze how many plaintiffs’ 

attorneys bring a Fourth Amendment 

claim for a failure to Mirandize 

when an officer did not take a statement. 

In the vast majority of arrests that 

I made, I never took a statement from an 

offender, owing in large part to the fact 

that I also had the benefit of a detective 

bureau that did take such statements 

on my arrests. The same will probably 

be true of the law enforcement officers 

whom you represent. 

Take the time to read a plaintiff’s complaint, 

and for goodness sake, don’t assume 

that your adversary is up to speed on the 

law. If he or she was, we could eliminate 

Federal Rule of Civil Procedure 12 in federal 

civil rights practice. One thing that 

I have found that police officers appreciate 

is to have attorneys explain the claims 

made against them and a plaintiff’s burdens 

of proof. Know what these are before 

you meet your client and be prepared to tell 

your client before he or she has to ask. Your 

client will want to know that everything 

in the complaint must be accepted as true 

for purposes of the motion to dismiss, and 


you should be the one to tell him or her. 

Your officer can be expected to throw you a 

curveball from time to time on an obscure 

legal concept, or a case that he or she read 

about with which you aren’t immediately 

familiar, especially in the area of criminal 

law. Burdens of proof and steps in litigation 

are not curveballs. They are fastballs down 

the center of the plate, and you should 

know the answers. 

Finally, become familiar with the 

department’s policies and the officer’s personnel 

and training folders, and find out 

something about the department itself. In 

most lawsuits against an officer, you will 

be defending the individual officer or officers 

present, the supervision and command 

of the department, and the municipality 

itself. To evaluate a case for settlement or 

trial purposes, there are certain things that 

you will need to glean from this review. 

• Will the department withstand review 

under Monell v. Dept. of Social Services, 

436 U.S. 658, 694 (1978), discussed 

below? While a department is not 

expected to have a policy on every possible 

situation that an officer could confront, 

it must have certain policies at a 

minimum, and those policies must be 

up to date. While not exhaustive, that 

list should include use of force and force 

reporting policies, a vehicular pursuit 

policy, a citizen complaint procedure, 

and a disciplinary code. You should also 

be aware of policies that a department 

may need particular to the jurisdiction. 

For instance, in the Third Circuit, case 

law suggests that a police department 

needs a foot pursuit policy. See Pelzer v 

City of Philadelphia, 656 F. Supp. 2d 517 

(E.D. Pa., Jan. 11, 2011. 

• Has the officer been subject to a previous 

lawsuit, especially for similar alleged 

conduct? Patterns of similar constitutional 

violations are admissible against 

a department both for named officers 

and officers without direct connection 

to a lawsuit. 

• Is the officer’s training up to date under 

the state law and accepted police practices? 

While a state often mandates certain 

training, Monell and its progeny 

also stand for the proposition that when 

the need for more or different training is 

so obvious and its lack so likely to lead to 

a constitutional violation, a department 

could be found to be “deliberately indifferent” 

to the need and liable. 

• What is going on in the department? 

While the average, rank and file officer 

in the LAPD may not have any idea what 

is happening in the office of the chief of 

police, the same is not always true for 

smaller departments, which make up 

the majority of law enforcement entities 

in the country. It may well be the case 

that today’s officer is yesterday’s chief, 

or vice versa. It will be important to have 

some idea of where your client stands in 

such a situation without becoming part 

of it. Similarly, even a quick “Google” of 

a department may reveal a recent problem 

that sheds light on your case, such 

as if a seemingly routine car stop has 

resulted in a riot. Knowing that there 

was a police shooting on the block two 

weeks earlier involved in your case is 

something that you should know before 

you meet your client, and something 

that you can easily find out beforehand. 

Train 

You may have heard the saying, “all press 

is good press.” While that certainly isn’t 

the case when representing law enforcement 

officers, a pair of similar maxims will 

serve you well: “All training is good training,” 

and “Free is for me.” 

A fair amount of time and money goes 

into defending Monell claims against law 

enforcement clients. Success on a claim 

for failure to train is rare, but it is also in 

direct proportion to the amount of training 

that an officer receives, hence, maxim 

number one: “All training is good training.” 

A police department, specifically 

its chief, has a limited amount of financial 

resources, and training can prove a 

costly undertaking. Hence, maxim number 

two: “Free is for me.” An understanding 

of Monell is, of course, a necessity for a 

department’s defense and to explaining to 

a chief of police how training that you can 

provide to the department, will decrease 

its exposure, as well as to what the chief of 

police will need to explain to those he or 

she answers to. 

A municipality can be held liable under 

§1983 only if a plaintiff shows that actions 

violating his or her civil rights implemented 

a policy, ordinance, or custom of the local 

government or an official high enough in

government committed the actions so that 

they can fairly be said to represent a government 

decision. Monell v. Dept. of Social 

Services, 436 U.S. 658, 694 (1978). A plaintiff 

must provide evidence that the government 

unit itself supported the violation of 

the plaintiff’s constitutional rights. Monell 

at 695. 

The United States Supreme Court in 

Monell, held that a civil rights complaint 

against a municipality or its agency must 

allege (1) the existence of a custom or a policy 

of the municipality that is of such long 

standing that it has the force of law; and 

(2) the municipality’s employees violated a 

plaintiff’s civil rights while acting in accordance 

with this custom or policy. Id. 

Municipalities do not cause constitutional 

deprivations merely by hiring alleged 

tortfeasors. Rather, the complained- of 

injury must be causally linked to a custom 

or a policy of a municipality under which 

an employee acted. Beck v. City of Pittsburgh, 

89 F.3d 966, 972 (3d. Cir. 1996). 

A municipality or its agency may be 

held liable for acts that it has ordered. Penbauer 

v. City of Cincinnati, 475 U.S. 469, 

480 (1986). It also may be liable by virtue 

of action taken by its own officials when 

those officials have “the final authority to 

establish a municipal policy with respect 

to the action ordered.” City of St. Louis v. 

Paprotnik, 45 U.S. 112 (1988). 

A plaintiff must also show a causal link 

between the alleged custom or policy the 

alleged §1983 violation, and concomitant 

harm. In short, “a municipality may be liable 

under 1983 only where its policies are 

the ‘moving force behind the violation’.” 

City of Canton v. Harris, 489 U.S. 379, 386 

(1989) (quoting Monell, 436 U.S. at 694). 

Inadequacy of police training may serve 

as a basis for §1983 liability only “where the 

failure to train amounts to deliberate indifference 

to the rights of a person with whom 

the police come into contact.” Canton v. 

Harris, 489 U.S. 378, 389 (1989). Elaborating, 

the Supreme Court explained, “[o]nly 

where a municipality’s failure to train its 

employees in relevant respects evidences 

a deliberate indifference to the rights of 

its inhabitants may such a shortcoming 

be properly thought of as a policy or custom 

that is actionable under §1983.” Id. 

The Supreme Court continued, “deliberate 

indifference can be shown where the need 

for more or different training is so obvious, 

and the inadequacy is so likely to result in 

a violation of constitutional rights, that the 

policy maker can reasonably be said to have 

been deliberately indifferent to the need.” 

City of Canton, 489 U.S. at 390. 

In 2007, I sat on the curriculum committee 

of Pennsylvania’s Municipal Police Officer 

Education and Training Commission 

and wrote the search and seizure lesson 

plan taught to all of the state’s officers that 

year. While it was a sizeable commitment 

in the dreaded “non- billable hours,” it has 

paid off tenfold in the credibility that it provides 

to me in speaking on training matters, 

especially to the chief executives in the 

police departments that I represent. Similarly, 

delivering a yearly presentation to the 

Pennsylvania Chiefs of Police provides the 

opportunity to stay current in the minds 

of law enforcement throughout the state, 

while delivering another to our largest client 

in the region, keeps us visible in the 

area where we do the bulk of our representation 

of law enforcement clients. Dare I say 

it to the chagrin of associates everywhere? I 

do: assign the task to an associate to learn 

what law enforcement wants in the area of 

training, and provide it. If you charge a reasonable 

fee for the presentation, encourage 

the chief to invite the region’s officers. You 

should be willing to present to five or 500 at 

the same cost. Presenting a regional seminar 

will be a feather in a chief’s cap, while 

exposing you to a wider law enforcement 

audience. It is a win-win. 

Communicate 

This is the number one area where you 

can improve your relationship with law 

enforcement clients: communicate. The 

officer whom you represent lives in a world 

where communication is often one-way, 

chief down the line to officer. If a client 

has been sued before, chances are that he 

or she either never met the attorney representing 

him or her, or viewed the attorney 

as another level of command and not the 

individual responsible for carrying out his 

or her direction as the client. Let the officer 

know that you work for him or her, not 

the other way around. It will be a breath of 

fresh air, and it may take the officer a little 

while to get used to it. When an officer 

e-mails you, respond, even if to say that 

you have nothing new to tell him or her. A 

word of caution here: to a police officer who 

works a steady midnight tour, 3:00 a.m. is 

just three hours into the officer’s workday, 

not the middle of the night as you may 

see it. You can expect those calls, at those 

hours. Let your client know that he or she 

can expect a call back first thing in the 

morning, and let him or her know ahead 

of time. Police officers are accustomed to 

people getting back to them at a civilian’s 

hours as long as it is understood ahead of 

time. Copy your client on every correspondence. 

Again, this is something that an 

officer will not necessarily be accustomed 

to, but something that he or she will truly 

appreciate. Better still, if the chief is not a 

named defendant, make the chief your “cc,” 

and the officer, your recipient. Police work 

is a quasi- military endeavor that respects 

the chain of command. That said, when it is 

the officer’s name after the “v.,” he or she is 

entitled to the direct correspondence, and 

the chief will understand. 

You should be prepared to explain the 

steps in civil litigation to an officer, and 

how long it generally takes in your particular 

jurisdiction. A police officer doesn’t 

like waiting three years to get through a 

trial, but he or she will take it much better 

if you tell him or her that up front. 

Without such an explanation, he or she 

will apply the familiar to the situation and 

expect that civil litigation takes about the 

same amount of time as a criminal prosecution. 

Imagine the disappointment when 

that speedy trial date comes and goes and 

you are not yet through discovery. You may 

expect that a veteran law enforcement officer 

would be familiar with the process. You 

would be wrong. While each situation presents 

its own unique circumstances, I try to 

communicate the following to every law 

enforcement client, up front, before he or 

she has to ask. 

• You are the client. An insurance company 

may be paying the bills, but I 

answer to you. 

• You have a right to be kept informed, 

and you will be copied on everything. 

• If you have a question, contact me by 

phone or e-mail. You are not an inconvenience. 

You are my client. 

• If I have a question, I will contact you 

and expect you to get back to me at your 

earliest convenience. Prompt response 

Horse , continued on page 90 



From Both Ends… 

By Hina Sherwani 

ensuring that both sides 

continue to believe that 

your expertise and fine 

judgment are exactly 

what the municipality 

needs will help secure 

your relationship with 

your municipal client. 

■ Hina Sherwani serves as the first assistant corporation counsel to the City of Mount Vernon, New York, under Corporation 

Counsel Nichelle A. Johnson, where she has been a city attorney for 11 years. Before joining the city’s law department, she was 

an associate with Kornfeld, Rew, Newman and Ellsworth in Suffern, New York. She is admitted to practice before the Supreme 

Court of the United States, the Second Circuit Court of Appeals, and New York state courts. 


Fostering, 

Promoting 

Outside Counsel 

Relationships 

Municipalities retain outside counsel for a wide variety of 

reasons. Retention may be required by a code or charter, 

by an inherent conflict, or simply due to the complexity or 

overwhelming nature of the litigation. Municipal law 

departments are usually small and overstretched. 

They are charged with representing 

a city in prosecuting building code 

violations in the city court and defending 

state and federal litigation amid many 

other duties and charges. They provide 

legal advice and counsel not just for executive 

departments and boards but to legislators 

as well. 

From time to time, the municipal law 

department that I work for gets bombarded 

from all directions. Zoning and planning 

issues surface during the same week that 

a major trial is scheduled to start. In that 

same week, of course, the regularly scheduled 

board meetings and calendared court 

conferences and hearings continue as well. 

During those times, we pick up the phone 

and say to outside counsel, can you help us 

out? The one constant in our decision making 

is that we want the best for our city even 

in these tough economic times. When we 

outsource a case or file, those expectations 

continue. As in-house attorneys, we work 

around the clock at the beck and call of the 

executive and legislative branches of local 

government. When we need support, we 

turn to those attorneys who we know will 

work just as diligently as we do and represent 

our city proudly. 

A former corporation counsel appeared 

in court on a case when one of the cases 

being handled by outside counsel was on 

the calendar as well. He decided to stay to 

“catch up” with the attorney whom he had 

not seen for a while. Much to his surprise, 

the firm to which he had outsourced the 

case did not appear but instead used a perdiem 

attorney to make the appearance that 

morning. Needless to say, when the corporation 

counsel returned to the office, the file 

was immediately summoned back and that 

attorney never received another file again. 

There is a tremendous amount of trust 

placed in outside counsel when a file is assigned 

to their office and they are charged 

with defending the municipality. Not to be 

too dramatic, but the truth is that a city’s 

law department is held accountable not just 

by the mayor but by the city council and the

comptroller’s office, and ultimately even 

by each taxpayer. The corporation counsel, 

upon hearing the per diem attorney tell the 

judge that he was just covering the conference 

and did not know about the specific 

issue that the plaintiff’s counsel was referring 

to, was embarrassed that the firm that 

he had retained for the city passed the case 

off and held it to be of no importance even 

before a supreme court judge. A matter before 

any tribunal deserves thorough time 

and attention, and if your firm is not capable 

of providing that representation, it should 

figure out a way to provide it or return the 

file to the municipality. Additionally, a municipality 

retains a firm through legislation 

that specifically allows a certain firm to perform 

services and represent the municipality. 

That firm cannot retain another firm 

without amending the legislation. 

Municipalities do prefer to use the same 

firm on various matters for a variety of reasons. 

Familiarity with the firm’s partners 

and trust in their judgment and expertise 

are some basic reasons. Each time a firm 

is retained, legislation has to be passed, 

and city attorneys have to explain not just 

to the mayor but to the legislature why the 

city attorney needs help or is not qualified 

to handle the matter, and why it deserves 

to be handled by a firm that is charging 

$250 an hour as opposed to the in-house 

attorney they were just convinced to hire 

for $40 an hour. 

Unfortunately, in today’s tough economic 

climate, most municipalities conduct 

a cost- benefit analysis of all outside 

services. This article focuses on strategies 

that allow you and your firm to become 

a “go to” firm so that when a municipality 

corporation counsel deems the office 

unable to handle a certain matter in-house, 

the first phone call that the attorney makes. 

The most important piece of advice that I 

can humbly offer if you already represent a 

municipality is that you do not take its business 

for granted. Instead, you must proactively 

develop a relationship, or rather, 

develop, foster, and nurture relationships 

with different players in the municipality 

so that if administrations change, people 

will remain who firmly believe that you 

are invaluable to the municipality’s needs. 

In today’s tough economic times, it may 

make fiscal sense for municipalities to hire 

job- seeking law school graduates who are 

eager to learn and work for significantly 

cheaper rates compared with the rates that 

law firms charge for associates’ work. Here 

are ways to help secure your relationship 

with your municipal client. 

Communication—Pick up the Phone 

If the only communication you had with 

your municipal client over the last three 

months was a cover letter with your 

monthly or quarterly bill, you do not have 

a good relationship with that client. If you 

are a municipal attorney whose only interaction 

with your outside counsel was simply 

to pay the outside counsel’s last bill, this 

is not a good sign either. 

All relationships improve with communication. 

Sometimes when my phone rings 

and it is an attorney working on a case for 

a trial or preparing a motion, he or she 

simply says, “You know, I have never seen 

this type of case before, but here are my 

thoughts….What do you think?” or “I am 

appearing before Judge so and so in your 

neck of the woods. What kind of a judge 

is she?” These phone conversations only 

last five minutes, but they go a long way 

in fostering good, solid relationships. Five 

minutes from someone who has already 

experienced the circumstances that you are 

about to experience are invaluable. 

Dedicating 10 minutes during the week, 

perhaps right after lunch or before the end 

of the day to call a client or colleague about 

a recent case development or upcoming argument 

helps develop the camaraderie necessary 

for that attorney to remember you 

when he or she needs to turn to someone. 

The phone call gives me a break from the 

clutter on my desk and allows me to feel 

automatically productive in helping out a 

colleague. The nature of our work does not 

naturally allow for team collaboration. We 

individually read, research, and prepare a 

file. However, brainstorming, a technique 

that we learned in the third grade, helps 

make a gargantuan task manageable. 

In today’s e-mail and texting- focused 

world, we quickly forget how important 

human contact is, and if distance doesn’t 

allow us to have lunch or meet up for coffee, 

a phone call is certainly an easy way to 

keep in touch. 

If picking up the phone isn’t your style, arrive 

in court a few minutes early and meet up 

with colleagues in the hallways the good old- 

fashioned way. It is not just the handshake 

but the report back to the office that an attorney 

makes at lunch time, “Oh you know 

who I saw in court today,” that will help you 

by reminding others that you are still going 

strong and actively involved in the practice. 

Being continuously busy forces us to forget 

that relationships must be nurtured. 

Aside from communication being necessary 

to nurture and foster your relationship, 

the bottom line is that communication 

is an ethical duty, at the very least, as outlined 

by Model Rules of Professional Conduct 

Rule 1.4. Even though not all states 

have adopted the Model Rules, states have 

similar rules, courts rely on these rules 

when conflicts arise, and it is important to 

be familiar with these client- lawyer relationship 

ethical obligations. 

Rule 1.4 Communication 

(a) A lawyer shall: 

(1) promptly inform the client of 

any decision or circumstance 

with respect to which the client’s 

informed consent,… is required 

by these Rules; 

(2) reasonably consult with the client 

about the means by which 

the client’s objectives are to be 

accomplished; 

(3) keep the client reasonably informed 

about the status of the 

matter; 

(4) promptly comply with reasonable 

requests for information; 

and 

(5) consult with the client about any 

relevant limitation on the lawyer’s 

conduct when the lawyer 

knows that the client expects 

assistance not permitted by the 

Rules of Professional Conduct 

or other law. 

(b) A lawyer shall explain a matter 

to the extent reasonably necessary 

to permit the client to make 

informed decisions regarding the 

representation. 

The New York Code, for example, does 

not have a direct counterpart to Model Rule 

1.4(b). However, New York Ethical Canon 

7-8 provides that a lawyer shall consult 

with a client so that the client can make 

informed decisions. The obligation is also 

encompassed in the lawyer’s duty to handle 

the client’s matters competently and 



not neglect them as referenced in New York 

Disciplinary Rule NY DR 6-101. New York 

Ethical Canon 9-2 specifically urges a lawyer 

to “fully and promptly inform [the] client 

of material developments in the matters 

being handled for the client.” 

Keep Current 

A letter summarizing a recent win or 

There is absolutely no 

excuse not to know your 

client and his or her ordeals 

in today’s information age. 

attaching a favorable decision to a client 

goes a long way in building your credibility. 

If you’re heading up to the appellate circuit 

or department for an oral argument, 

invite a client or two to attend. If the matter 

on appeal or motion may peripherally 

involve or affect another client, reach out to 

that other client and explain what is going 

on in the other case. A decade ago, we all 

shared the dilemma of dealing with cell 

towers. Our experiences are more shared 

than we believe. Even if you are a small firm 

and don’t have the financial means of mass 

mailing a color newsletter, a municipal client 

will find just a simple letter highlighting 

your latest accomplishment on your 

letterhead impressive enough. 

Indeed, sometimes just a phone call 

providing a conference update can be very 

effective in relationship building. Phone 

calls after the secretarial staff has left or 

on a late Friday afternoon are most conducive 

to small talk as most attorneys are 

wrapping up their week and you can also 

‘chitchat’ about weekend plans. I am not 

one to toot my own horn. However, I find 

that when I start a conversation about me, 

my colleagues open up about themselves 

and their experiences or accomplishments. 

In fact, more often than not, we spend 

more time talking about him or her than 

I had about me. This exchange and dialogue 

allows a true trusting relationship to 

develop and allows each of us to help one 

another. 


There is absolutely no excuse not to 

know your client and his or her ordeals 

in today’s information age. In a matter 

of minutes, you can learn the latest and 

greatest happenings and become familiar 

with whom the political foes and allies 

are. Websites, newspapers, local bogs, and 

community newsletters allow a searcher 

to become intimate not just with current 

events in the municipality but with past 

history as well. Every municipality will 

have its share of infighting and mudslinging, 

especially during election time. However, 

knowing the details will allow you to 

be guarded around certain individuals and 

gather information from certain others. 

Professional websites such as LinkedIn 

are great networking sites that allow you 

to know your client personally. Partaking 

in legal services’ organizational fundraisers 

or performing pro bono work solidifies 

your standing in the community. The more 

respect a client has for you, the more likely 

the client is to hold on to you as a trusted 

counselor and advisor. 

After what I have seen and experienced 

over the last 11 years, there is nothing 

that would surprise me about my city or 

any other city for that matter. As the cast 

of characters is usually small and intimate, 

individual personalities become 

caricature- like. Not knowing the players 

and struggles involved could get you stuck 

in a place where no lawyer ever wants 

to be: unpaid. If there is a political war 

between city officials, you could be used as 

a pawn, and the payment of your bills may 

be delayed. These are all risks that you need 

to be aware of and weigh before sending out 

a retention agreement. 

Support the Community 

Outside counsel would do well to participate 

in community events or donate to 

local food pantries or causes. Municipalities, 

similar to individuals and corporations, 

have their own favorite charities 

that they do work with and sharing some 

of that passion will go a long way. If there 

is an event, make your firm a part of that 

event. If you cannot make the event, make 

sure that you make the next event. 

Providing local scholarships, even if in 

a small amounts, go a long way to foster 

good will in a community. Lawyers have to 

overcome a lot of stigma and an easy way 

of doing it is creating positive press amid 

the community. Good deeds go a long way. 

Know the Municipal Code or Chapter 

Will the corporation counsel or comptroller’s 

office audit your bills? Municipalities 

are statutorily constructed entities and 

familiarity with the city’s code or charter 

is vital. It is similar to being familiar with 

a corporation’s by-laws when representing 

a corporation. Familiarity with a corporation’s 

by-laws or a municipality’s code 

allows you to know the basic framework of 

the entity and to learn who is in charge of 

the decision making and how. In our city, 

the corporation counsel is the legal advisor 

to all departments, and outside counsel can 

only be retained with her approval. 

Before a power struggle ensues, be sure 

to know what the code or charter states. 

That code or charter is the law that a court 

will interpret plainly. If, according to 

the code or charter, your client is plainly 

wrong, it behooves everyone to understand 

that and then to strategize. Consulting 

the code or charter first, most especially 

about procedural requirements, is not only 

necessary but vital to proper municipal 

functioning. 

Diversify Your Firm and Your Practice 

Diversity among your partners and associates 

will set you apart from most firms. 

It will also make it easier for your client 

to develop a good working relationship 

with you if your client contact belongs to a 

minority group. When you hire a new associate, 

be sure that some of his or her experience 

is in a different area of law. 

Developing a certain niche goes a long 

way in representing municipalities, and 

when in-house lawyers are usually jacks 

of all trades, masters of none, your expertise 

is what they will rely on to tackle the 

issues. If each of your associates develops a 

specialty, a municipality can come to you 

on a variety of issues. 

Be Seen! 

Take the time to be an officer in your local 

bar association, or at the very least, serve 

on a committee for a bar association or for 

DRI! Speaking at a continuing legal education 

seminar is basically free advertising 

for your firm. We have retained our 

best outside counsel firms after hearing

someone from a firm speak at these seminars. 

These firms are often those that have 

already represented other municipalities 

and are already well versed in the problems 

that we face or are about to face. Similarly, 

seek out opportunities to publish. Even if 

it is summarizing a recent case that has 

haunted your life for years, others may benefit 

from your learning experiences. 

Make the Motion 

If you litigate on behalf of municipalities, 

make the motion if it will allow a plaintiff’s 

complaint or parts of the complaint to 

be dismissed. Upon learning that an attorney 

that we had retained for section 1983 

cases did not “believe” in summary judgment 

motions, we stopped using him. We 

found that he held on to cases for three or 

four years when eight of 10 of them would 

have been disposed by a Federal Rule of 

Civil Procedure 12(b)(6) motion to dismiss 

or a summary judgment motion. 

Motions force your adversary to show a 

court that the case that the adversary has 

commenced is viable and that the wrong 

that the adversary alleges is indeed deserving 

of a remedy. Firms that bill fairly and 

aren’t afraid to make a killer summary 

judgment motion are the firms that we 

remember to turn to again. 

Lower Your Bills 

Show municipal officials that you give them 

a discounted rate, and show them that you 

do certain items at no charge. Certainly 

do not attempt to collect full attorney or 

partner rates for travel time or block bill a 

municipality. Third-party administrators 

often review outside counsel bills, and they 

have a checklist of charges that they view as 

unfair or unreasonable. There is ample case 

law that delineates reasonable attorneys’ 

costs and fees. You certainly don’t want to 

be seen as the unreasonable or greedy firm 

that attempts to rip off its client. Foregoing 

a few thousand dollars in the short term 

will lead to hundreds of thousands of dollars 

in the long term. 

In cases involving disputes between 

attorneys and clients over legal fees, as 

a matter of public policy, attorneys have 

the burden of establishing that their compensation 

was fair and reasonable. Jeffrey 

L. Rosenberg & Associates, LLC v. Candid 

Litho Printing, Ltd., 76 A.D.3d 510, 904 

N.Y.S.2d 909, 910, 2010 N.Y. Slip Op. 06293 

(N.Y. App. Div. 2010). Courts are authorized 

“to supervise the charging of fees 

for legal services under the courts’ inherent 

statutory power to regulate the practice 

of law.” Matter of First Natl. Bank of 

East Islip v. Brower, 42 N.Y.2d 471, 474, 368 

N.E.2d 1240, 398 N.Y.S.2d 875 (N.Y. App. 

Div. 1977). 

If you are the in-house attorney, be 

warned that the constant nitpicking over 

outside counsel bills and billing practices is 

hard on the associate and the partner especially 

when those individuals are really being 

directed by a billing partner and don’t 

have much say or influence in the billing. 

Perhaps meeting with the billing partner 

directly to explain the reasoning or rationale 

of the billing dispute and why the 

bill appears to be unreasonable is a good 

idea. Model Rules of Professional Conduct 

Rule 1.5 mandates that an attorney charge 

a reasonable fee. The Code of Professional 

Responsibility specifically and similarly 

mandates, without exception, that an attorney 

“shall not enter into an agreement 

for, charge, or collect an illegal or excessive 

fee.” Model Code of Prof’l Responsibility 

DR 2–106[A]. And upon withdrawal 

from employment an attorney “shall refund 

promptly any part of a fee paid in advance 

that has not been earned.” Model Code of 

Prof’l Responsibility DR 2–110[A][3]. 

Mutually Beneficial Relationships 

By retaining effective outside counsel, all 

benefit. A municipality benefits from the 

experiences and expertise of the outside 

counsel firm, and the firm benefits not just 

from the fees but the experience it gains 

and the relationships it forms, which lead 

to other relationships. You have to be able 

to convince your client that by retaining 

your firm the client is actually saving costs. 

As long as both sides continue to believe 

that outside counsel’s expertise and fine 

judgment are exactly what the municipality 

needs, your relationship will thrive. 



Beyond the Political 

Rhetoric 

By Sun S. Choy 

and Peter L. Munk 

With more attention 

likely in coming years, 

a better understanding 

of the common legal 

challenges under the 

Voting Rights Act of 1965 

and the Constitution 

will be important in this 

evolving area of law. 


The Basics of 

Voter Identification 

Laws 

To be sure, voter identification laws have been a hot political 

football over the past few election cycles. Depending 

on your point of view, voter identification laws are either 

the latest attempt by Republicans to disenfranchise key 

voting blocs for Democrats, or prudent 

pieces of legislation passed to ensure the 

integrity of our elections. The purpose of 

this article is not to wade into the partisan 

morass, but to highlight for the casual 

observer an area of litigation that has 

exploded in recent years. Since 2000, 46 

states have considered bills related to voter 

identification, and 33 have passed some 

form of a voter identification law. Not surprisingly, 

many of these statutes have been 

challenged. This article will explain the 

basics of voter identification laws while 

providing an overview of the common 

legal challenges made to these laws under 

the Voting Rights Act of 1965 and the U.S. 

Constitution. 

Historical Background 

A basic understanding of the right to vote 

in America, the origins of voter identification 

(ID) laws, and an overview of voter ID 

laws among the states can aid in discussing 

the legal standards that apply to voter identification 

(ID) laws. 

The Right to Vote 

The right to vote is fundamental to a democratic 

society. The United States Supreme 

Court has observed: “No right is more precious 

in a free country than that of having 

a voice in the election of those who make 

the laws under which… we must live. Other 

rights… are illusory if the right to vote is 

undermined.” Wesberry v. Sanders, 376 

U.S. 1, 17 (1964). 

The right to vote has evolved considerably 

over our nation’s history. The founding 

fathers envisioned a limited franchise 

to prevent men with “base, degenerate, servile 

temper of mind” from infecting the 

workings of government. Gordon S. Wood, 

The Creation of the American Republic 

1776–1787, 168 (Univ. of N.C. Press 

1998). Reflecting this attitude, most states 

restricted the right to vote to citizens with 

a proper “attachment to the community.” 

Id. at 169. This usually meant ownership of 

land or payment of taxes. Id. 

Suffrage has expanded considerably 

since that time. Today, the only remaining 

■ Sun S. Choy is a partner and Peter L. Munk is an associate in the government law, business liability, and 

insurance law sections in the Atlanta office of Freeman Mathis & Gary LLP. Mr. Choy focuses his practice on 

defending local governments and law enforcement officers in Section 1983 litigation and is an active member 

of DRI’s Governmental Liability Committee.

factors restricting voting in national elections 

are age, citizenship, and criminal record. 

A piecemeal process of constitutional 

amendment and legislation has accomplished 

this. The Constitution now includes 

five amendments dealing with the right 

to vote, and the Voting Rights Act of 1965 

has become an important tool in enforcing 

the rights found in those amendments and 

combating discriminatory voting practices. 

Although overt voter discrimination is 

largely a thing of the past, Americans of all 

races and political persuasions are aware 

of America’s struggle for universal adult 

suffrage, and they remain on guard over 

threats to their right to vote. Thus, the current 

debate over voter ID laws is viscerally 

important to most Americans—those interested 

in ensuring access to the polls and 

those concerned about the integrity of our 

electoral system—and serves as a backdrop 

for the intense debate that exists today. 

The Origins of the Debate over 

Voter Identification Laws 

The 2000 presidential election and the controversial 

“Florida recount” brought election 

law into the public spotlight. Daniel P. 

Tokaji, The New Vote Denial: Where Election 

Reform Meets the Voting Rights Act, 

57 S.C. L. Rev. 689, 693 (2006). The election—in 

which the deciding state of Florida 

was decided by just 537 votes out of nearly 

six million cast—exposed the vulnerabilities 

of our electoral system and offered a 

sneak-peek into the possible consequences 

of a compromised election. Many believed 

that the disputed margin of victory, monthlong 

recount, and Supreme Court review 

had tarnished the legitimacy of our political 

system. Id. Understandably, citizens 

and elected officials alike looked for ways 

to prevent a similar election debacle from 

happening again. Referring to life after the 

recount, the Supreme Court anticipated a 

national discussion about our electoral system, 

stating that “[a]fter the current counting, 

it is likely legislative bodies nationwide 

will examine ways to improve the mechanisms 

and machinery for voting.” Bush v. 

Gore, 521 U.S. 98, 104 (2000). 

The Court was right. The 2000 presidential 

election touched off a national 

debate over election reform and led Congress 

to take action on the matter. Tokaji, 

supra, at 693. In 2002, Congress passed 

the Help America Vote Act (HAVA), which 

attempted to modernize the election process 

throughout the country. 42 U.S.C. 

§§15301–15545 (2012). The purpose was 

to prevent a county in a so-called “swing 

state” from compromising the legitimacy 

of a future presidential election. 

HAVA aimed to modernize voting technology 

by incentivizing states to eliminate 

outdated punch-card and lever-based voting 

machines. HAVA also created an Election 

Assistance Commission to assist in 

the administration of federal elections and 

established minimum election administration 

standards. 

These provisions were not terribly controversial. 

Legislators on both sides of the 

aisle recognized that something needed to 

be done, and modernizing election equipment 

was clearly a good place to start after 

the 2000 recount debacle. However, partisan 

fissures began to surface when Republican 

lawmakers insisted that the bill include 

a voter ID provision. Tokaji, supra, at 695. To 

save the bill, Democrats acquiesced to this 

demand, and the final version of HAVA included 

a voter ID component that required 

a voter who registered by mail and had not 

previously voted in a federal election to verify 

his or her identity by showing a photo ID 

or a copy of a document that included the 

name and address of the voter. Id. 

Congress’s inclusion of a voter ID requirement 

in HAVA is important for two 

reasons. First, it lent credibility to the government 

interest in requiring voters to show 

ID to vote. The Supreme Court has referred 

to HAVA as an “indication that Congress 

believes that photo ID is one method of establishing 

a voter’s qualification to vote….” 

Crawford v. Marion Cnty. Election Bd., 553 

U.S. 181,193 (2008). Second, HAVA left 

much of the details for implementation of 

the legislation in the hands of the individual 

states. This emboldened the states to pursue 

their own voter ID initiatives. 

State Voter ID Laws 

Voter ID laws existed before 2000. Since 

that time, however, a staggering 46 states 

have introduced voter ID- related bills. 

Voter Identification Requirements, Nat’l 

Conf. of State Legislatures (updated Sept. 5, 

2012), http://www.ncsl.org/legislatures- elections/ 

elections/voter-id.aspx (last visited Oct. 16, 

2012). Between 2003 and 2012, 24 states 

passed major voter ID legislation. These 

states include Alabama, Colorado, Montana, 

North Dakota, and South Dakota in 

2003; Indiana, New Mexico, and Washington 

in 2005; Ohio in 2006; Utah in 2009; 

Idaho in 2010; Kansas, Mississippi, Rhode 

Island, and Wisconsin in 2011; Minnesota, 

New Hampshire, Pennsylvania, and 

Virginia in 2012; and five more states in 

The current debate 

over voter ID laws is 

viscerally important to 

most Americans. 

which the governors vetoed the laws. Id. 

This brings the total of states to pass voter 

ID requirements to 33, although some of 

these laws, such as those passed in Texas, 

South Carolina, Mississippi, Pennsylvania, 

and Wisconsin, await implementation 

pending litigation or preapproval from the 

U.S. Department of Justice. Id. 

Voter ID laws vary among states, but 

they all include the basic requirement that 

voters show some form of identification to 

vote. Some of these requirements are fairly 

lenient, such as in Michigan where an individual 

must either show a photo ID or sign 

an affidavit attesting that he or she is not 

in possession of a photo ID. Mich. Comp. 

Laws. Ann. §168.523 (West 2012). 

Other state laws are stricter. In Georgia, 

voters must present one of six forms 

of government- issued ID to vote. Ga. Code 

Ann. §21-2-417 (West 2012). If a voter does 

not have a proper form of ID, the voter 

may vote a provisional ballot which will be 

counted if the voter presents proper ID to 

the county registrar’s office within three 

days after the election. Id. 

Not surprisingly, more stringent voter 

ID laws such as Georgia’s have been challenged 

in court. 

Legal Challenges to Voter ID Laws 

Most lawsuits challenging voter ID laws 

are brought by nonprofit advocacy groups 

such as the American Civil Liberties Union 

(ACLU) or the National Association for the 



Advancement of Colored People (NAACP) 

on their own behalf, or on behalf of allegedly 

disenfranchised citizens. The claims 

asserted in these lawsuits usually include 

voter denial under section 2 of the Voting 

Rights Act of 1965, violation of equal protection 

under the Fourteenth Amendment, 

a claim that the ID requirement constitutes 

a poll tax under the Fourteenth and 

Twenty- fourth Amendments, or a combination 

of these. 

Who Challenges Voter ID 

Laws in the Courts? 

Litigants in these cases are typically nonprofit 

organizations representing racial minorities, 

the elderly, the homeless, or any 

other citizen lacking access to the identification 

required to vote. These organizations 

can also sue on their own behalf if the voter 

ID law requires them to expend the organization’s 

resources to counteract the law. 

Standing is not typically an obstacle in 

cases challenging voter ID laws. In Common 

Cause/Georgia v. Billups, for example, 

the parties disputed whether the NAACP, 

suing on its own behalf, and various individual 

voters had standing to challenge 

Georgia’s voter ID law. 554 F.3d 1340, 1350 

(11th Cir. 2009). The Eleventh Circuit stated 

that “an organization has standing to sue 

on its own behalf if the defendant’s illegal 

acts impair its ability to engage in its 

projects by forcing the organization to 

divert resources to counteract those illegal 

acts.” Id. (quoting Fla. State. Conference of 

NAACP v. Browning, 522 F.3d 1153, 1165 

(11th Cir. 2008)). In the case of the NAACP, 

the court found that the organization was 

involved in voting activities and the voter 

ID law would require the organization to 

“divert resources from its regular activities” 

to inform and educate voters on compliance 

with the statute. Id. 

As to the individual voters, they were 

found to have standing because they were 

registered voters not in possession of photo 

ID and would therefore be required to 

make a trip to the county registrar’s office 

that individuals with photo IDs would 

not be required to make. Id. The Eleventh 

Circuit found that “the slightness of 

their burden… is not dispositive,” noting 

that “an identifiable trifle” is sufficient to 

confer standing. Id. (quoting U.S. v. Students 

Challenging Regulatory Agency Pro- 


cedures (SCRAP), 412 U.S. 669, 689 n.14 

(1973)). Even if the individual plaintiffs 

had obtained the required forms of identification, 

they would still have standing 

if they were required to present identification 

to vote because “[a] plaintiff need not 

have the franchise wholly denied to suffer 

injury.” Charles H. Wesley Educ. Found., 

Inc. v. Cox, 408 F.3d 1349, 1352 (11th Cir. 

2005). According to the Eleventh Circuit, 

“[r]e quiring a registered voter to produce 

photo identification to vote… is an injury 

sufficient for standing.” Common Cause/ 

Georgia, 554 F.3d at 1351–52. 

It is not difficult for parties to have 

standing to challenge a voter ID law. Of 

course, standing is a very different issue 

from success on the merits. 

Voting Rights Act 

The Voting Rights Act of 1965 was a landmark 

piece of legislation that enforced the 

Fifteenth Amendment right to vote for 

millions of minority voters in America. 42 

U.S.C. §§1973–1973aa-6 (2012). The Voting 

Rights Act of 1965 ended the century- long 

legacy of Jim Crow law voter suppression 

by suspending literacy tests in section 4 

and deploying federal officials to register 

African- American voters in sections 6 

through 8. These measures had the effect 

of increasing African- American voter registration 

from 29.3 percent to 52.1 percent 

between 1965–67. Tokaji, supra, at 703. 

Sections 2 and 5 of the Voting Rights Act 

of 1965 are the primary vehicles used to 

prevent the states from enacting discriminatory 

election laws. 

Section 2 Challenges 

Congress enacted section 2 to effectuate 

the Fifteenth Amendment’s guarantee that 

no citizen would be refused the right to 

vote due to the color of his or her skin. 

See Voinovich v. Quilter, 507 U.S. 146, 152 

(1993). Section 2 reads in part: “No voting 

qualification or prerequisite to voting… 

shall be imposed or applied by any State… 

in a manner which results in a denial or 

abridgement of the right of any citizen of 

the United States to vote on account of race 

or color….” 42 U.S.C. §1973(a). Section 2 

continues by providing a “totality of the 

circumstances” standard for establishing 

a violation. Id. at §1973(b). In practice, this 

means that courts will look at the history 

and current circumstances of a state when 

evaluating the effect of an election law on 

minority voters. 

There are two types of claims that arise 

from section 2: voter dilution claims and 

voter denial claims. See Tokaji, supra, at 

691. A voter dilution claim may be brought 

to challenge a qualification or prerequisite 

for voting, such as gerrymandered 

districts, at-large elections, anti- single- 

shot laws, majority- vote requirements, 

and replacement of elected officials with 

appointed officials. See Tokaji, supra, at 

703. Voter denial claims are those tactics 

which deny eligible voters access to the 

ballot. These include literacy tests, grandfather 

clauses, poll taxes, and most important 

for our purposes, voter ID laws. See id. 

at 691. When voter ID laws are challenged, 

they are challenged as voter denial claims. 

Most courts analyze denial claims under 

essentially the same standard as dilution 

claims. See, e.g., Thornburg v. Gingles, 478 

U.S. 30, 45 n.10 (1986) (“Section 2 prohibits 

all forms of voter discrimination, not just 

vote dilution.”); Smith v. Salt River Project 

Agr. Imp. and Power Dist., 109 F.3d 586, 596 

n.8 (9th Cir. 1997)). But see Tokaji, supra, at 

709 (arguing that voter dilution claims and 

voter denial claims should be assessed under 

different standards). This standard assesses 

the “totality of the circumstances” 

under a nonexhaustive list of nine factors 

adopted by the Supreme Court in Thornburg 

v. Gingles, 478 U.S. at 36. The Gingles factors—also 

known as the Senate Factors— 

are designed to “assess the impact of the 

contested structure or practice on minority 

electoral opportunities….” Id. at 44. This involves 

assessing the state’s history and culture 

of racial discrimination, the extent to 

which racial minorities have been discriminated 

against in voting, the presence of racial 

components in campaigns, clear racial 

disparities in voting patterns, and so forth. 

Id. Plaintiffs do not need to prove intent to 

discriminate to prevail on a section 2 claim. 

Id. Plaintiffs will prevail by showing that the 

law at issue results in diminished access to 

the polls by racial minorities. Id. 

In Common Cause/GA v. Billups, the 

NAACP and individual plaintiffs challenged 

the Georgia General Assembly House Bill 

244, which required voters to show photo ID 

to vote. 406 F. Supp. 2d 1326, 1331 (N.D. Ga. 

2005). The plaintiffs argued that House Bill

244 violated section 2 of the Voting Rights 

Act of 1965. The court applied the nine Gingles 

factors to determine whether under a 

“totality of the circumstances,” the law resulted 

in discrimination at the polls for racial 

minorities. Id. at 1373. 

To support their claim that it did, the 

plaintiffs presented census data showing 

that African Americans in Georgia were 

poorer and less well educated than their 

white counterparts. Id. 1374–75. The plaintiffs 

argued that this evidence was sufficient 

to show that minorities were less 

active in the political process and that a 

voter ID law would only make it harder 

for them to participate. Id. at 1375. Despite 

this evidence, the district court ruled that 

the plaintiffs had not shown a likelihood 

of success on the merits of their section 

2 claim, and their request for preliminary 

injunction was denied. Id. The Eleventh 

Circuit affirmed the district court. See 

Common Cause/Georgia v. Billups, 554 F.3d 

1340, 1357 (11th Cir. 2009). 

The Ninth Circuit also used Gingles’ 

totality of circumstances factors when it 

reviewed Arizona’s voter ID law. See Gonzalez 

v. Arizona, 624 F.3d 1162, 1192 (9th 

2010). The case involved a challenge to Ariz. 

Rev. Stat. §16-579, which required voters to 

show proof of identity before voting at the 

polls. Id. The Ninth Circuit held that a section 

2 violation would exist if “based on 

the totality of the circumstances, the challenged 

voting practice resulted in discrimination 

on the basis of race.” Id. (quoting 

Farrakhan v. Washington, 338 F.3d 1009, 

1015 (9th Cir. 2003)). 

To test the totality of the circumstances, 

the Ninth Circuit then applied the “nonexhaustive 

list of nine factors” found in 

Gingles. Id. Reviewing the district court’s 

finding for clear error, the Ninth Circuit 

agreed that although there was a history 

and culture of discrimination in Arizona, 

the voter ID law did not cause the disenfranchisement 

of Hispanic voters. Id. at 

1194. The court noted: “To prevail under 

§2, a plaintiff must prove ‘a causal connection 

between the challenged voting practice 

and a prohibited discriminatory result.’ [A] 

bare statistical showing of disproportionate 

impact on a racial minority does not satisfy 

the §2 ‘results’ inquiry.” Id. at 1193. An en 

banc panel of the Ninth Circuit affirmed 

the district court again in April 2012, hold- 

ing that “[t]o prove a §2 violation, Gonzalez 

had to establish that [the voter ID law], as 

applied to Latinos, caused a prohibited discriminatory 

result.” Gonzalez v. Arizona, 

677 F.3d 383, 407 (9th Cir. 2012). 

In summary, courts reviewing section 

2 challenges to voter ID laws will evaluate 

the totality of the circumstances to determine 

whether the law at issue was the cause 

of a discriminatory result to minority voters. 

To find a voter ID law unconstitutional, 

a court must, however, find a causal connection 

between the voter ID law and the 

disenfranchisement. 

Section 5 Preclearance Requirement 

Section 5 of the Voting Rights Act of 1965 

requires any political subdivision located 

in a covered jurisdiction to receive “preclearance” 

for any change to its voting laws 

that were in existence before a statutorily 

prescribed date. 42 U.S.C. §1793(c). If a covered 

jurisdiction seeks to enact a new voting 

law, it must seek permission from the 

attorney general of the United States or the 

United States Court of Appeals for the District 

of Columbia. Id. 

The preclearance requirement in section 

5 applies to Alabama, Alaska, Arizona, 

Georgia, Louisiana, Mississippi, South Carolina, 

Texas, and Virginia. See Section 5 

Covered Jurisdictions, U.S. Dep’t of Justice, 

http://www.justice.gov/crt/about/vot/sec_5/ 

covered.php (last visited Oct. 16, 2012). In 

addition, multiple counties in California, 

Florida, New York, North Carolina, and 

South Dakota are covered, as well as various 

cities and townships in Michigan and 

New Hampshire. Id. These states, towns, 

and cities were deemed covered by section 

5 by a formula found in section 4 of the 

Voting Rights Act of 1965, which looked 

at, among other things, states that had 

restrictions on the right to vote or to register 

as of November 1, 1964. See Section 5 

of the Voting Rights Act, U.S. Dep’t of Justice, 

http://www.justice.gov/crt/about/vot/sec_5/ 

about.php (last visited Oct. 16, 2012). Section 

5 was originally meant to remain in 

effect for five years, but Congress has reauthorized 

it four times, including for an 

additional 25 years in 2006. See Nw. Austin 

Mun. Util. Dist. No. One v. Holder, 557 

U.S. 193, 200 (2009). But see Shelby Cnty v. 

Holder, Doc. No. 12-96, cert. granted Nov. 

9, 2012 (granting certiorari to determine 

whether Congress’ 2006 reauthorization of 

section 5 exceeded its authority under the 

Fourteenth and Fifteenth Amendments 

and therefore violated the Tenth Amendment 

and Article IV of the Constitution); 

Ilya Shapiro, Online VRA Symposium: 

The Court Should Reconsider the Constitutionality 

of the VRA’s Outmoded and 

Unworkable Section 5, SCOTUSblog (Sep. 

11, 2012, 12:35 PM), http://www.scotusblog. 

com/2012/09/online-vra-symposium-the-courtshould-reconsider-the-constitutionality-of-thevras-outmoded-and-unworkable-section-5/ 

(last 

visited Nov. 9, 2012). 

As noted, section 5 constitutes an additional 

step for covered states wishing to 

change their election laws. Unlike section 

2 claims, a covered state must proactively 

obtain “preclearance.” Rather than pass a 

law and wait for plaintiffs to file a lawsuit, a 

state covered by section 5 must seek declaratory 

judgment that its law does not violate 

the Voting Rights Act of 1965. 

In Texas v. U.S., Texas asked the D.C. Circuit 

for declaratory judgment to find that 

its redistricting plans had neither the purpose 

nor the effect of violating the Voting 

Rights Act of 1965. 831 F. Supp. 2d 244, 246 

(D.C. Cir. 2011). The court noted that the 

“purpose of [section] 5 has always been to 

insure that no voting- procedure changes 

would be made that would lead to a retrogression 

in the position of racial minorities 

with respect to their effective exercise 

of the electoral franchise.” Id. at 250. Under 

this rubric, courts must compare the current 

voting system with the proposed system 

and not permit anything that would 

diminish the ability of racial minorities to 

vote. Id. If a proposed law does not increase 

the degree of discrimination against minority 

voters, it is entitled to preclearance even 

though the law does not necessarily ameliorate 

existing discrimination. Id. 

Texas v. U.S. dealt with redistricting, but 

Texas recently filed another declaratory 

judgment action against the United States 

requesting preclearance for its voter ID law, 

Senate Bill 14. In Texas v. Holder, the D.C. 

Circuit used essentially the same standard 

used in the redistricting case to deny declaratory 

judgment and find that SB 14 was 

likely to have a retrogressive effect on racial 

minorities. Texas v. Holder, No. 12-CV-128, 

2012 WL 3743676, at *1 (D.C. Cir. Aug. 30, 

2012). Attorney General Eric Holder issued a 



statement in support of this decision, saying 

that the U.S. Department of Justice opposed 

preclearance because the law would require 

a disproportionate number of minorities to 

“travel great distances” to obtain the necessary 

identification, “and some would have 

to pay for the documents.” Press Release, 

U.S. Dep’t of Justice, Statement of Attorney 

General Eric Holder on Decision in Texas v. 

To find a voter ID law 

unconstitutional, a court 

must… find a causal 

connection between 

the voter ID law and the 

disenfranchisement. 

Holder (Aug. 30, 2012), http://www.justice.gov/ 

opa/pr/2012/August/12-ag-1066.html (last visited 

Oct. 16, 2012). 

Constitutional Challenges 

Statutes alone do not safeguard voting 

rights. Courts will also entertain constitutional 

challenges to election laws. Groups 

and individuals typically assert constitutional 

claims under the Equal Protection 

Clause of the Fourteenth Amendment and 

under the Twenty- fourth Amendment. 

Fourteenth Amendment 

The Equal Protection Clause of the Fourteenth 

Amendment protects the right to 

vote. See Kramer v. Union Free School Dist., 

395 U.S. 621, 626 (1969). Because states can 

only fix voter qualifications, in cases that 

involve a restriction that is irrelevant to 

qualification—such as a property requirement 

or a poll tax—a court will subject the 

restriction to strict scrutiny. See Harper v. 

Virginia State Bd. of Elections, 383 U.S. 663, 

667 (1966). 

However, the Supreme Court has differentiated 

between these restrictions 

that require strict scrutiny and the “evenhanded 

restrictions that protect the integrity 

and reliability of the electoral process 

itself” that do not. Anderson v. Celebrezze, 


460 U.S. 780, 788 n.9 (1983). Specifically, 

the Court has determined that voter ID 

laws constitute an “evenhanded restriction” 

rather than an invidious and arbitrary 

deprivation of voting rights. This 

distinction is important not only because 

states can more easily overcome the less 

strict standard, but also because it places 

the burden of persuasion on the plaintiff 

or plaintiffs. See Crawford v. Marion Cnty. 

Election Bd., 553 U.S. 181, 200 (2008) (stating 

that petitioners “bear a heavy burden 

of persuasion” for their constitutional challenge 

to a voter ID law). 

In Crawford v. Marion Cnty. Election Bd., 

the plaintiffs challenged Indiana’s voter ID 

law, alleging that it violated the Fourteenth 

Amendment. 553 U.S. at 187. Quoting the 

above language from Anderson, 460 U.S. 

at 788 n.9, the Court declined to scrutinize 

the law strictly, reasoning that it could not 

“neatly separate valid from invalid restrictions” 

but would instead balance the interests 

of the state against the burden imposed 

by the rule. Id. at 190. 

Indiana argued that it had three state 

interests that sufficiently justified the law. 

Id. at 191–97. The first of these was election 

modernization. Id. at 191–94. The Court 

reasoned that the HAVA voter ID requirement 

for voters who registered by mail 

justified Indiana’s plans for election modernization. 

Id. at 192–94. The Court interpreted 

the HAVA voter ID requirement as 

an indication that the tactic was an effective 

means of establishing reliable voter 

registration lists. Id. at 193. 

The second state interest was combating 

voter fraud. Id. at 194–97. The Court 

acknowledged that the state had not presented 

evidence that fraud actually had 

occurred in Indiana, but it essentially 

found that this justification sufficiently 

justified the law because voter fraud could 

happen. See id. The Court concluded that 

“[t]here is no question about the legitimacy 

or importance of the State’s interests 

in counting only the votes of eligible voters.” 

Id. at 196. This consideration tied in 

with the state’s third interest, safeguarding 

voter confidence in the electoral process. 

See id. at 197. 

To prevail on their Fourteenth Amendment 

challenge to the law, the plaintiffs in 

Crawford had the burden to show that these 

state interests outweighed the significant 

burden that the law would place on voters. 

Id. at 200. The plaintiffs failed to meet their 

burden because the record did not sufficiently 

show how the law would affect any 

class of voters in Indiana. Id. at 201. The 

record merely showed that the law would 

inconvenience some voters in Indiana, not 

that the “statute impose[d] ‘excessively burdensome 

requirements’ on any class of voters.” 

Id. at 202. Finally, the Court rejected 

the plaintiffs’ challenge to the law that all 

Republicans in the General Assembly had 

voted for the law and all Democrats had 

voted against it, which made it politically 

motivated. Id. at 203. The Court recognized 

that partisan considerations may have been 

at play but held that this would only have 

relevance if partisanship alone motivated 

legislators to pass the law. Id. at 203. 

Crawford established a difficult standard 

for challengers of voter ID laws to overcome. 

Based on Crawford and other cases 

in which the Court discusses voter integrity, 

it appears that the judiciary is willing 

to defer to state legislatures partially 

in determining the necessity of voter ID 

laws. See Purcell v. Gonzalez, 549 U.S. 1, 4 

(2008) (“‘A State indisputably has a compelling 

interest in preserving the integrity 

of its election process.’ Confidence in the 

integrity of our electoral processes is essential 

to the functioning of our participatory 

democracy.”) (citation omitted). 

Crawford also shows the importance 

of developing a record in the trial court. 

Whether a court applies a balancing test 

in an equal protection claim or the Gingles 

factors in a section 2 claim, reviewing 

a voter ID law’s constitutionality is 

extremely fact intensive. See Gonzalez, 677 

F.3d at 406 (“Because a §2 analysis requires 

the district court to engage in a ‘searching 

practical evaluation of the past and present 

reality,’ a district court’s examination 

in such a case is ‘intensely fact-based and 

localized.’ We therefore ‘[d]efer[] to the district 

court’s superior fact- finding capabilities….’”) 

(citations omitted). That record, 

after all, is what courts will rely on in all 

appeals barring a finding of clear error for 

a finding of fact. 

This principle is on full display in Crawford. 

The Crawford trial judge arguably 

played as much a role in deciding that 

case as any of the advocates or Supreme 

Court justices. In Crawford, the district

court judge made controversial findings of 

“undisputed” facts that subsequent courts 

reviewing the case only reviewed for clear 

error. See Joshua A. Douglas, The Procedure 

of Election Law in Federal Courts, 2011 

Utah L. Rev. 433, 448–49 (2011) (discussing 

Crawford, 553 U.S. 181, 200 (2008)). The 

Supreme Court relied heavily on these factual 

findings, including the district court’s 

finding that the plaintiffs had failed to present 

sufficient evidence to show that the 

photo ID requirement infringed the rights 

of voters. Id. at 449. Commentaries have 

noted that a judge of a different ideological 

persuasion may have produced a different 

finding of fact more favorable to the plaintiffs 

on an appeal. Id. at 452. 

Twenty-fourth Amendment 

The Twenty- fourth Amendment, passed 

just before the Voting Rights Act of 1965 

in 1964, specifically prohibited poll taxes 

as a condition to voting in a federal election. 

The Fourteenth Amendment Equal 

Protection Clause also prohibits poll taxes. 

Harper, 383 U.S. 663. 

Twenty- fourth Amendment challenges 

have had mixed results. In Gonzalez v. 

Arizona, for example, plaintiffs argued 

that Arizona’s voter ID law imposed an 

unconstitutional poll tax in violation of the 

Twenty- fourth Amendment because some 

voters would be required to spend money 

for the form of ID necessary to vote under 

the law. Id. The court disagreed: “This analysis 

is incorrect. Although obtaining ID 

required under Arizona’s statute may have 

a cost, it is neither a poll tax itself (it is not 

a fee imposed on voters as a prerequisite to 

voting), nor is it a burden imposed on voters 

who refuse to pay a poll tax.” Id. at 1195. 

The district court in Common Cause/ 

Georgia came to a different conclusion in 

finding that the plaintiffs had a substantial 

likelihood of success on the merits of 

their Twenty- fourth Amendment claim. 

See 406 F. Supp. 2d at 1367. In that case, 

the Georgia General Assembly had passed 

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a statute that doubled the price of the very 

government- issued IDs that voters had to 

present to comply with its latest voter ID 

law. Id. at 1366–67. In granting the preliminary 

injunction, the court reasoned 

that “[a]fter the enactment of the photo ID 

requirement, voters who do not have other 

acceptable forms of Photo ID must obtain 

Photo ID cards to be able to vote….” Id. at 

1368. The district court determined that 

this “effectively places a cost on the right 

to vote,” which “runs afoul of the Twenty- 

fourth Amendment….” Id. at 1369. 

Conclusion 

Challenges to voter ID laws under the Voting 

Rights Act of 1965 and the Constitution 

is an evolving area of law that will likely 

receive significant attention in coming 

years. Hopefully, this article has provided 

a casual observer with a good foundation to 

understand better the common legal challenges 

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TRuckIng law 

From the Chair 

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Make the most of 

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■ A principal of Franklin & Prokopik in Baltimore, Tamara B. Goorevitz focuses her practice on civil and commercial litigation including 

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and commercial disputes, general liability defense, and labor and employment. Ms. Goorevitz handles litigation for numerous 

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Don’t Be a 

Wallflower

As I begin my tenure as the chair of the Trucking Law Committee, 

on behalf of the committee, I want to first thank Kurt Rozelsky, 

our immediate past chair, for his exceptional and hard work over 

the past two years. Some of the highlights of Kurt’s leadership 

include a very well attended and educational 

program in Phoenix this past February, and the 

committee’s first venture into social media, including 

the creation of the committee’s LinkedIn 

page, which now contains over 200 members. 

Even as Kurt’s tenure as chair was coming to 

a close, he was instrumental in spearheading 

our first ever Young Lawyers/New to Trucking 

Primer, to be held June 6, 2013, in Chicago. It is 

clear that I have big shoes to fill! 

As we begin 2013, there are many opportunities 

to become more involved in the committee. 

Don’t be a wallflower! Whether you are interested 

in simply contributing an article for our quarterly 

newsletter, In Transit, submitting a blog post to 

DRI Today on a timely topic of interest, contributing 

a post to our LinkedIn page, attending the 

Primer in June 2013, joining one of the committee’s 

specialized litigation groups (SLGs), or participating 

on one of our many subcommittees, 

there are many opportunities to become more 

involved. The time is now! Please contact me or 

Vice Chair June Essis if you are interested in any 

of these opportunities. 

We are very excited to have our first Primer 

on June 6, 2013. Clint Cox of Fee, Smith, Sharp & 

Vitullo, L.L.P., in Dallas is the chair of the Primer 

and is developing what promises to be an outstanding 

program. The one-day Primer is geared 

towards educating younger lawyers and lawyers 

who are new to trucking law. We are incorporating 

a workshop into the program and some of the 

committee’s most experienced trucking attorneys 

will be in attendance to lead the discussions 

and workshops. Attendees will leave with 

valuable knowledge from some of the best attorneys 

in the field. 

The committee continues to energize our 

SLGs: Biomechanics/Accident Reconstruction, 

Cargo Claims, Insurance Coverage, Logistics, 

New Trucking Attorney/Young Lawyer, and Reg- 

ulatory/Governmental Affairs. New SLG Coordinator 

MJ Dobbs will be working to recruit new 

members to these groups. If you have specialized 

knowledge or an interest in one of these areas, 

please visit DRI’s website to sign up to be a member 

of the group. Similarly, if you are interested 

in chairing one of these groups, please contact 

Ms. Dobbs. The success of these groups depends 

on the participation of our committee members. 

Several years ago, the committee held a very 

successful three-part webinar series entitled The 

Anatomy of a Trucking Case. Webcast Chair Phil 

Gulisano of Burden Gulisano & Hickey LLC in 

Buffalo, New York, is in the process of revitalizing 

and updating the webinar, which will be held 

in early 2013. The webinar will discuss the anatomy 

of a trucking case from emergency response 

through trial and we will have new speakers and 

updated content. If you are interested in assisting 

Phil or presenting one of the topics, please 

contact him. 

Publications Chair Steve Pesarchick of Sugarman 

Law Firm in Syracuse, New York, and 

Publications Vice Chair Blair Jones of Germani, 

Martemucci, Riggle & Hill in Portland, Maine, 

have coordinated an excellent collection of articles 

for this segment of For The Defense. A special 

thanks to both Steve and Blair for their hard 

work. Thanks also to the authors of each of the 

following articles for sharing your knowledge 

and expertise on these interesting topics. 

For those of you who are still not convinced, I 

want to remind you of Kurt’s call to action to all 

committee members in his article in Trucking 

Law’s last issue of For The Defense in 2011. Kurt 

encouraged committee members to learn one 

new idea and meet one new friend. If you heeded 

his sage advice, now is the time to be more ambitious 

and to become more active in the committee. 

We are waiting to hear from you! Remember, 

don’t be a wallflower! 


Trucking Law 

Prepare to Comply 

By Kathleen A. Hardee 

as the regulations 

required by the FSMA 

are implemented, 

the ultimate liability 

standards in negligence 

cases may turn at least in 

part upon a company’s 

efforts to prevent harm 

to the food supply. 

■ Kathleen A. Hardee is a shareholder in the Kansas City, Missouri, office of Polsinelli Shughart PC. She has over 25 years of 

experience representing clients in the food industry, toxic and mass torts, product liability, business disputes, transportation, and 

investment disputes. Ms. Hardee has first-chaired dozens of cases throughout the country; several drew significant media attention. 

A trained mediator, she also works with clients in an attempt to reduce litigation exposure. Ms. Hardee wishes to thank 

Brisa Izaguirre for her research assistance on this article. 


The Industry’s Role 

in Our Nation’s 

Food Safety 

The Food Safety Modernization Act (FSMA), the most 

comprehensive reform in food-safety laws in more than 70 

years, shifts the federal government’s focus from responding 

to food contamination to preventing it. Although the 

U.S. Food and Drug Administration (FDA) 

has yet to issue the sweeping regulations 

required by the FSMA, those regulations 

will affect every link in the food- supply 

chain from production to the consumer’s 

table and including food transportation. 

Trucking companies must begin evaluating 

their current risk prevention policies 

even though the FDA has not completed the 

regulations and prepare to comply with the 

upcoming changes. 

Background 

The American trucking industry has a long 

and proud history of both self- regulation 

and governmental cooperation at both state 

and federal levels. Even before Congress 

passed the Motor Carrier Act in 1935, the 

American Highway Freight Association 

and the Federation Trucking Associations 

of America met in the spring of 1933 to 

form the American Trucking Association 

(ATA). Since that formation, the ATA has 

worked both independently and hand-in- 

hand with governmental entities to promote 

public safety and fair competition 

within the industry. 

Throughout the last 75 years, the governmental 

agencies that have had influence or 

control over various parts of the trucking 

industry have grown in a haphazard way, 

at times without cross- agency coordination 

or common purpose. Most agencies deem 

their purpose either to relate to rate competition, 

such as the Interstate Commerce 

Commission, the Federal Maritime Commission, 

or a state public utilities commission, 

or to safety, similar to U.S. Customs 

and Border Protection, the U.S. Department 

of Transportation, or a state department 

of motor vehicles. The industry has recognized 

through the years its duty to implement 

safeguards. Its safety initiatives have 

been designed not only to protect its drivers, 

but also to protect the public at large. 

New Concerns Emerge 

Media headlines are regularly fraught with

news of outbreaks of foodborne illnesses. 

According to the Centers for Disease Control 

and Prevention, approximately 48 

million people, or one in six Americans, 

become sick each year from foodborne diseases. 

Of that number, about 128,000 people 

are hospitalized, and 3,000 people die. 

See Centers for Disease Control and Prevention, 

CDC 2011 Estimates: Findings, http:// 

www.cdc.gov/foodborneburden/2011-foodborneestimates.html 

(last visited Oct. 23, 2012). 

These estimates are particularly troubling 

because a significant portion of this public 

health crisis is preventable. In response, 

various industries, consumer groups, 

and governmental agencies have initiated 

efforts to protect the public. As is often the 

case, the initial efforts lacked coordination 

among groups and often lacked the funds 

or authority needed for enforcement. 

The Federal Government’s 

Initial Response 

As the trucking industry has grown in 

scope, the makeup of its cargo has changed. 

According to the U.S. secretaries of agriculture 

and transportation, by 2007 agriculture 

was the single largest cargo for 

freight transportation in the United States, 

constituting 31 percent of all ton-miles 

transported. See Transportation Research 

Board, Trucking 101, An Industry Primer, 

at 24, (Dec. 2010). Trucks move over 90 

percent of the nation’s fresh fruits and vegetables 

(by market share) and 95 percent 

of livestock. Id. From 1976 through 2011, 

at least 15 FDA regulations and guidelines 

were passed addressing the transportation 

of food products. In 1995, the Agricultural 

and Food Transporters Conference (AFTC) 

was founded to represent motor carriers 

and allied members of the ATA on critical 

issues affecting agricultural commodities 

and food transportation. 

The role of inspecting food safety during 

transportation was first given to the 

U.S. Department of Transportation (DOT) 

under the Sanitary Food Transportation 

Act of 1990 (SFTA), 21 U.S.C. §305. However, 

because food inspection fell outside 

the DOT’s area of expertise, Congress 

revised the SFTA in 2005 and amended 

it by transferring regulatory responsibility 

to the FDA. Under the SFTA, the FDA 

set standards to ensure that food was not 

transported under conditions that would 

render it unsanitary or adulterated. The 

SFTA also heightened record- keeping 

requirements so that in the event of a food 

emergency, such as a necessary recall, food 

could be traced both back to its origin 

and forward to its destination. Each participant 

in the food chain had the obligation 

to document where it obtained the 

food cargo and where it delivered it. This 

requirement was known in the industry 

as the “one-up/one-down” rule. Unfortunately, 

a report issued in March of 2009 by 

the Office of the Inspector General, under 

the U.S. Department of Health and Human 

Services, entitled “Traceability in the Food 

Supply Chain” found that many participants 

in the food chain largely did not 

heed the SFTA’s directives. Of the 118 food 

facilities studied, 59 percent failed to meet 

the FDA requirements to maintain records 

about their sources, recipients, and transporters. 

Twenty- five percent did not even 

know about the FDA records requirements. 

Not to be dissuaded, in April 2010 the 

FDA issued yet another guidance through 

an advance notice of proposed rulemaking 

(ANPRM). There, the FDA stated that “[t]his 

guidance differs from the prior regulations 

and guidance in that it provides all sectors 

of the food industry with broadly applicable 

recommendations.” The April 2010 

guidance was quite specific, leaving little 

room for ambiguity. However, the guidance 

lacked in enforcement power what it gained 

in detail. Again, this was guidance, not an 

FDA rule, so the FDA had no way to enforce 

it. Although the April 2010 guidance was a 

significant step toward creating new regulations 

to govern sanitary transportation 

practices, the guidance was never finalized 

into regulations and weaknesses remained. 

Safety Concerns 

Food transportation raises multiple health 

and safety concerns. Abuse in the handling 

or storing of food can render a product 

unfit or unsafe for human consumption. 

See Larry Keener, Transportation: The 

Squeaky Wheel of the Food Safety System, 

Food Safety Magazine (Oct./Nov. 2003). 

Abuse can take the form of (1) sabotage 

or tampering, (2) temperature abuse, or 

(3) cross- contamination. Sabotage or tampering 

is largely addressed with tamper- 

resistant locks and seals. Temperature 

abuse and cross- contamination are more 

prevalent dangers and are generally result 

from a lack of knowledge or lack of training 

of transporters. 

During transportation and storage, one 

serious challenge is to maintain proper 

refrigeration temperatures. According to 

the International Food Distribution Association 

(IFDA), a trade organization of 

foodservice distributors, “maintenance of 

Trucking company 

staff, drivers, and others 

involved in the delivery 

chain are not always trained 

to understand the risk of 

cross- contamination. 

the cold chain is an essential part of ensuring 

not only compliance with Good Manufacturing 

Practices under 21 C.F.R. §110.93, 

but product quality and cost containment 

as well.” See Temp- Controlled Food Tranport: 

Safe Travels, Inbound Logistics (Aug. 

2011). Good manufacturing practices 

(GMP) regulations specify that storage and 

transportation of food is maintained at levels 

that protect against physical, chemical, 

and microbial contamination. 

In addition to temperature control, 

cross- contamination is the second leading 

biological abuse of food during transportation. 

According to Nick Erdman, 

business development manager for Transport 

Security, “LTL [less than truckload] 

is really the most vulnerable link in a supply 

chain.” See Larry Keener, Transportation: 

The Squeaky Wheel of the Food Safety 

System, Food Safety Magazine (Oct./Nov. 

2003). Less than truckload or “LTL” loads 

can include literally dozens of shipments 

from various sources, including multiple 

food and nonfood shipments. Products 

from the following three classes are 

absolutely incompatible with each other in 

terms of food safety: fresh produce, fresh 

raw meat, and assorted chemicals. Id. However, 

trucking company staff, drivers, and 

others involved in the delivery chain are 


Trucking Law 

not always trained to understand the risk of 

cross- contamination. Even in subsequent 

loads, measures must be undertaken to 

sanitize any bacterial or chemical residues 

that might remain in the vehicle from previous 

food loads. Id. 

A Unified Response 

On March 14, 2009, President Barack Obama 

For the first time in 

history, the FSMA brings 

every participant in the 

food chain together under 

one legal mandate with 

a specified purpose. 

created a Food Safety Working Group to 

study and provide recommendations for 

the creation of a coordinated system of federal 

laws that would protect the integrity 

of the nation’s food supply. The working 

group was chaired by Secretary of Health 

and Human Services Kathleen Sebelius 

and Secretary of Agriculture Tom Vilsack. 

Participating agencies included the FDA, 

the Food Safety and Inspection Service 

(FSIS), the Centers for Disease Control and 

Prevention (CDC), the U.S. Department of 

Homeland Security, the U.S. Department 

of Commerce, the U.S. Environmental Protection 

Agency (EPA), and several offices of 

the White House. The working group held 

several “listening days” during which they 

received input from states, localities, food 

industry representatives, consumer advocates, 

and other experts. 

The findings of the working group 

reflected exactly what those who had played 

various roles in the food industry had 

known for years: “At least a dozen Federal 

agencies, implementing at least 30 different 

laws, have roles in overseeing the safety 

of the nation’s food supply.” See President’s 

Food Safety Working Group, Food Safety 

Working Group: Key Findings 2, http://www. 

foodsafetyworkinggroup.gov/FSWG_Key_Findings. 

pdf (last visited Oct. 23, 2012). The work- 


ing group concluded, “Effective organization 

is essential to the performance of the 

food safety system. To build a more effective 

safety system, federal agencies need to 

improve management of their food safety 

responsibilities and coordinate more effectively 

with each other.” Id. at 5. Then the 

working group went on to emphasize prevention, 

specifically finding that all participants 

in the food chain shared prevention 

responsibility. Id. at 3. The working group 

proposed an offensive rather than defensive 

approach to food safety, which spanned 

every link in the chain from farm to table. 

After a year and a half of wrangling, Congress 

passed the Food Safety Modernization 

Act in December 2010, and President 

Obama signed it into law on January 4, 

2011. See Food Safety Modernization Act 

§101, et seq., Pub. L. No. 111-353 (2011). 

The Food Safety Modernization Act 

(FSMA) is described as the most comprehensive 

reform of U.S. food-safety laws in 

more than 70 years. The passage of this act 

established the critical foundation for a 

prevention- based food-safety system. This 

massive food-safety reform bill requires 

over a dozen separate rules and guidance 

documents. The FSMA is designed 

to ensure that the U.S. food supply is safe 

by shifting the focus of food-safety regulation 

to prevention. The FSMA is also comprehensive 

in conferring unprecedented 

cohesive enforcement authority to the FDA. 

Under the FSMA, the FDA will, for the first 

time, have a legislative mandate to require 

comprehensive, scientifically based preventive 

controls across the food supply. 

For the first time in history, the FSMA 

brings every participant in the food chain 

together under one legal mandate with 

a specified purpose. The FSMA places 

responsibilities on every individual and 

entity that manufactures, processes, packs, 

transports, distributes, receives, or holds 

articles of food. The new law requires comprehensive, 

scientific- based, preventative 

controls across the food chain. The FSMA 

addresses not only the national food chain 

but global sources of imported food as well. 

Despite its reach, the FSMA is surprisingly 

minimalistic. It outlined rough overarching 

themes but left it to the regulators 

to work out the most controversial details, 

which has resulted in implementation 

delays that continue. Beyond merely out- 

lining concepts, the FSMA does little more 

than provide deadlines for rule making. 

Some of the key concepts in the FSMA 

include establishing 

• Broader, more in-depth, and more rapid 

records inspection, 

• Hazard analysis and risk-based preventive 

controls 

• Regulation to further the sanitary transportation 

of food 

• A tracking and tracing methodology 

for food to “prevent or mitigate” an outbreak 

of foodborne illness or intentional 

contamination 

• Mandatory recall authority 

• Heightened controls over imported foods 

• Whistle-blower protections. 

Food Safety Modernization Act §101, et 

seq., Pub. L. No. 111-353 (2011). 

The FSMA includes a plan to hire 2,000 

new FDA inspectors over the next five years 

at a cost of $1.4 billion. See Rob Moseley, 

The Food Safety Modernization Act, SML 

Perspectives (Mar. 14, 2011), http://smlperspectives.com/transportation/the-food-safetymodernization-act/ 


Where that money and the funds to pay 

for the other costs of the act will come from 

is unclear. Some speculate that the FDA 

will for the first time receive the authority 

to impose registration fees upon food 

facilities. See David Acheson, Leavitt Partners, 

Presentation, Food Safety Modernization 

Act, for Food Seminars International 

(Aug. 29, 2012). 

The FSMA and the Trucking Industry 

The transportation industry generally, 

and the trucking industry specifically, are 

integral parts of the food- supply chain. 

However, whether warranted or not, the 

transportation industry has been viewed 

as a “weak link” in the chain in terms of 

safety. See, e.g., Lisa Lupo, Is Transportation 

the Weak Link?, Quality Assurance & 

Food Safety, (Aug. 10, 2011), http://www.qualityassurancemag.com/qa0811-supply-chain-safetytransportation.aspx 


David Acheson, managing director of food 

and import safety practice with Leavitt 

Partners and a former FDA associate commissioner 

for foods, has stated that in the 

transportation of food “[t]here is guidance 

but nobody is really regulating it.” Id. Acheson 

went on to say, “I’m not sure if it is the 

weakest link, but it is a weakness that cer-

tainly needs looking at; it is a weakness that 

poses risk.” Id. Before the act passed, much 

of the regulation and tracking of food products 

focused on the processing stages. Fritz 

Buss, technical director for Nelson Jameson, 

has said, “What happens to it in between 

seems to be kind of an afterthought. There 

should be a strict chain of custody with seals 

and logs tracking it all the way through.” Id. 

Several sections of the new FSMA are 

directed toward the transportation industry, 

either individually or in conjunction 

with other food handlers. Section 111 of 

the FSMA is specifically entitled “Sanitary 

Transportation of Food.” See Food Safety 

Modernization Act §111, Pub. L. No. 111- 

353 (2011). Additionally, provisions pertaining 

to records and food tracking and 

traceability will significantly affect how 

trucking companies do business. Food 

Safety Modernization Act §101, Pub. L. 111- 

353 (2011) (records) and §204 (food tracking 

and traceability). Understanding the 

purposes of these key sections is critical to 

preparing for a seamless transition to compliance 

with the new law. 

Sanitary Transportation 

The FSMA states, “Not later than 18 months 

after the date of enactment of this act, 

the Secretary shall promulgate regulations 

described in section 416(b) of the federal 

Food, Drug, and Cosmetic Act (21 U.S.C. 

350e(b)).” Food Safety Modernization Act 

§111, Pub. L. 111-353 (2011). Section 416(b) 

of the federal Food, Drug, and Cosmetic 

Act requires the FDA to promulgate regulations 

that require “shippers, carriers by 

motor vehicle or rail vehicle, receivers, and 

other persons engaged in the transportation 

of food to use sanitary transportation 

practices prescribed by the Secretary to 

ensure that food is not transported under 

conditions that may render the food adulterated.” 

21 U.S.C. §350e(b). The FSMA 

requires that the FDA sanitary transportation 

program to establish scientifically 

based minimum standards. 

Section 111 is the only section of the 

FSMA directed specifically to the transportation 

industry. And despite the belief 

by some that transportation is the weakest 

link in the food-safety chain, the FDA 

has not yet commented or acted on this 

section. The July 4, 2012, deadline under 

section 111 of the FSMA for the implemen- 

tation of a sanitary transportation program 

came and went without any new regulatory 

mandates. The delay of creation of regulations 

for the transportation industry seems 

to indicate that transportation is a lower 

priority and has done a good job of self- 

regulating to date. 

Records Accessibility 

Under the FSMA, the FDA has greater ac- 

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Trucking Law 

cess to company records than previously existed. 

The scope of previous inquiries was 

limited to records related to articles of food 

that the FDA believed to be adulterated. The 

FDA may now demand records of the food 

believed to be affected and also records of 

any other article of food that it reasonably 

believes is “likely to be affected in a similar 

manner.” Food Safety Modernization Act 

The FSMA calls for 

heightened science- based 

record- keeping requirements 

for foods deemed to be 

“high-risk,” although it 

does not define high risk. 

§101, Pub. L. No. 111-353 (2011). Although 

not yet final, the FDA issued an interim final 

rule, draft guidance, and Q & A on February 

23, 2012. There, the FDA found that §101 

of the FSMA “provides FDA additional access 

to records relating to articles of food for 

which FDA believes that there is a reasonable 

probability that the use of or exposure 

to the article of food, and any other article 

of food that FDA reasonably believes is 

likely to be affected in a similar manner, will 

cause serious adverse health consequences 

or death to humans or animals.” Establishment, 

Maintenance, and Availability of Records: 

Amendments to Records Availability 

Requirements,77 Fed. Reg. 10,658-01 (Feb. 

23, 2012). Records requested by the FDA 

must be provided as soon as is reasonably 

possible, but in no event later than 24 hours 

from the time of the request. 

The expansion of this authority may have 

unintentional consequences. A plaintiff in 

private litigation would normally be entitled 

to obtain discovery relating to the food 

products that caused his or her injury only. 

But because of this broader FDA authority, 

plaintiffs will have access under the Freedom 

of Information Act to any documents 

obtained by the FDA, meaning other food 

that the FDA reasonably believed might be 

similarly affected at that time. See Gary 


Wolensky, et al., The Food Safety Modernization 

Act: Another Law of Unintended 

Consequences?, Mass Torts Litigation Newsletter, 

Vol. 10, No. 1 (Fall 2011 ABA). Greater 

access to information about contaminated 

foods increases litigation and punitive damage 

risks for food producers, and possibly 

for transportation companies. 

Tracking and Traceability 

Section 204 of the FSMA mandates the creation 

of a tracking and tracing methodology 

to “prevent or mitigate” an outbreak of foodborne 

illness or intentional contamination 

of food. See Food Safety Modernization Act 

§204, Pub. L. No. 111-353 (2011). This provision 

arose from recent high- profile food contaminations 

and necessary recalls: “Public 

and private sector officials often lack information 

about the sources of foods or ingredients, 

making the traceback process more 

cumbersome and leading to less- accurately 

targeted recalls. In addition, multiple Federal, 

State, and local agencies all play essential 

roles in managing outbreaks but lack a 

unified structure or adequate provisions for 

sharing data in an emergency.” See President’s 

Food Safety Working Group, Key 

Findings, supra. In recent disease outbreaks 

resulting from contaminated food discovering 

the source of the contamination has 

been difficult. See Perry A. Trunick, Temp- 

Controlled Food Transport: Safe Travels, 

Inbound Logistics (Aug. 2011), http://www. 

inboundlogistics.com/cms/article/temp-controlledfood-transport-safe-travels/ 

(last visited Oct. 

23, 2012). A more detailed tracking system 

will allow faster and more accurate tracing 

of adulterated food both back to sources and 

forward to markets. 

Tracking and traceability efforts have 

two components. First, the FSMA requires 

the FDA to conduct pilot projects to evaluate 

methods and technologies. Food Safety 

Modernization Act §204(a), Pub. L. 111-353 

(2011). The FDA also is to analyze the costs, 

benefits, and feasibilities of those potential 

methods and technologies and ultimately 

to implement the conclusions. Id. at 

§204 (b). Secondly, the FDA is to establish 

heightened record- keeping requirements 

for foods deemed to be “high-risk foods” 

for purposes of potential contamination 

outbreaks. Id. §204. 

The FDA has made progress with the 

pilot projects. On September 7, 2011, the 

FDA announced that the Institute of Food 

Technologists (IFT) would conduct pilot 

projects to explore methods for rapid and 

effective tracking and tracing of food, “including 

types of data that are useful for 

tracing, ways to connect the various points 

in the supply chain and how quickly data 

can be made available to the FDA.” See 

Food, Product Tracing: Pilot Projects for 

Improving Product Tracing along the 

Food Supply System, U.S. Food and Drug 

Admin., http://www.fda.gov/Food/FoodSafety/ 

FSMA/ucm270851.htm (last visited Oct. 23, 

2012). The food products for the pilots were 

tomatoes, for the produce selection, frozen 

Kung Pao-style dinners, for the frozen 

or ready to eat food selection, jarred peanut 

butter, and dry, packaged peanut/spice. 

The pilots were completed on schedule 

in June 2012. The IFT final report on 

tracking and tracing was submitted to the 

FDA in July 2012. Once it receives approval 

from the FDA, the IFT intends to make the 

report public. Then the food industry will 

have a better indication of the parameters 

of the tracking and tracing requirements. 

It is fair to assume that responsibilities will 

far surpass the current one-up/one-down 

obligations. 

After considering the IFT’s report, the 

FDA will publish the first proposed FSMA 

rules. A comment period will follow with 

the agency holding at least three public 

meetings in various geographic areas. After 

receiving input from the public, the FDA 

will issue final rules. Based on the current 

status of the process, the final rules probably 

will come to pass in late 2013. After the 

FDA issues final rules an affected industry 

commonly enjoys a period of “enforcement 

discretion” during which the FDA issues 

guidance on how the industry can comply 

with the new regulations. The author expects 

that the trucking industry will enjoy 

an FSMA enforcement discretion period. 

Although the FDA has not yet released 

the full pilot results to the public, comments 

published in other sources by pilot 

participants provide some clues about what 

the final requirements might include. Tejas 

Bhatt, the IFT lead scientist for the pilot 

projects has indicated that traceability will 

require that all participants in the supply 

chain use a common language to communicate 

with one another and with governmental 

agencies. See Dorothy Noble, Traceability

and Produce Safety: Are you ready for the 

future?, Growing Magazine (Mar. 2012), 

http://www.growingmagazine.com/article-7909. 

aspx (last visited Oct. 23, 2012). Early reports 

indicated that the IFT favored using 

a system- wide electronic tracking system. 

Ultimately, concern over the cost for smaller 

participants dissuaded the FDA against the 

idea. Id. The FDA will not recommend specific 

software, systems or technologies. Instead 

the entire tracking and tracing system 

will focus on the elements of the system. Id. 

Further, the FDA likely will phase in the system 

over some period of time. Id. 

As of the writing of this article, the FDA 

has not finalized the second phase of its 

tracking and tracing efforts, the record- 

keeping requirements. The FSMA calls for 

heightened science- based record- keeping 

requirements for foods deemed to be “highrisk,” 

although it does not define high risk. 

The FDA has stated that it “must consider 

such factors as the known safety risks of a 

food based on foodborne illness data and 

the likelihood that a particular food has 

a high potential risk for contamination.” 

Id. Although it plans to release the record- 

keeping requirements by January 2012, the 

FDA has stated that it plans to wait until after 

completion of the product tracing pilots 

to turn its attention to the requirements. Id. 

Perhaps the most surprising indication 

of what is to come for the tracking and tracing 

program can be found in the FDA comments 

in its January 20, 2012, abstract. The 

FDA stated that “the proposed rule will 

be based on prevention- oriented public 

health principles and incorporate what we 

have learned in the past decade since the 

agency issued general good agricultural 

practice guidelines entitled, “Guide to Minimize 

Microbial Food Safety Hazards for 

Fresh Fruits and Vegetables,” sometimes 

referred to as the “good agricultural practices 

guide” or the “GAPS guide.” U.S. Food 

and Drug Admin., (1998). The proposed 

rule also will reflect comments received on 

the agency’s 1998 update of the guide and 

the July 2009 draft commodity specific 

guidance for tomatoes, leafy greens, and 

melons. Although the FDA will base the 

proposed rule on recommendations that 

are included in the guide, it does not intend 

to make the entire guidance mandatory. In 

the past the FDA’s food-safety actions have 

often been issued through guidance rather 

than regulation. As discussed below, that 

distinction has sometimes led to deadly 

results. Whether the portions of the tracking 

and tracing program that apply to the 

transportation industry will become mandatory 

or guidance remains to be seen. 

Status of the FSMA Regulations 

Deadlines set by Congress for the implementation 

of the various provisions of the 

FSMA and related regulations continue to 

come and go. Although Congress intended 

the FDA to issue the sanitary transportation 

regulations required under §111 of 

the FSMA within 18 months of enactment, 

they have not been published as of the date 

of the writing of this article. 

Commentators have speculated about 

the reasons for the delay. The FDA completed 

several provisions in a timely manner 

and submitted them to the Office of 

Management and Budget (OMB), yet they 

still languish there. Some have suggested 

that election- year politics or uncertainty 

on the cost- and- benefit analysis of the rules 

account for the delays. See Tom Karst, 

What’s Holding up Food Safety Regulations?, 

The Packer (July 11, 2012), http://www. 

thepacker.com/fruit-vegetable-news/--Whats- 

holding-up-food-safety-regulations-162114145. 

html (last visited Oct. 23, 2012). 

Despite the passage of nearly two years 

since the enactment of the FSMA, the 

trucking industry still has few specifics 

about what its obligations will look like 

under the new law. Further, if the FDA’s 

comments bear true and some of the FSMA 

regulations are ultimately guidelines, not 

enforceable regulations, trucking companies 

will be left wondering about the 

nature and extent of their legal obligations 

in transporting the food supply. 

Polls indicate that 93 percent of Americans 

believe that food suppliers should be 

held legally responsible in cases of foodborne 

illness. See James Andrews, Food 

Makers Eye Tech, Safety Innovations at Forum, 

Food Safety News (May 23, 2011), 

http://www.foodsafetynews.com/2011/05/a-lookat-2011-food-tech-innovation-and-safety/ 

(last 

visited Oct. 23, 2012). Transportation carriers 

in the past have not frequently been 

considered by plaintiffs as “food suppliers.” 

But with the passage of the FSMA, federal 

law has made it clear that every participant 

in the chain, including transportation car- 

riers, has responsibility for preventing unsanitary 

conditions that may lead to disease. 

Without the completion of any relevant regulations, 

those responsibilities are ambiguous 

and as of yet have no real definition. 

Plaintiffs may argue that FDA “guidelines” 

and newly marketed technologies delineate 

best practices or the state of the art. 

As has always been the case, plaintiffs 

Whether the portions 

of the tracking and tracing 

program that apply to the 

transportation industry 

will become mandatory or 

guidance remains to be seen. 

may allege that defendant trucking companies 

acted negligently when they have not 

adhered to industry standards. All risk prevention 

policies should mandate constant 

monitoring and adherence to the most 

current industry best practices, whether 

or not binding law. Whether “guidelines” 

or directives, all regulations issued by 

the FDA under the FSMA for the trucking 

industry should be followed. Trucking 

companies for now should adhere to other 

previously approved rules and guidelines 

such as the “good manufacturing practices” 

(GMP) contained in Title 21 of the 

Code of Federal Regulations, the Guide to 

Minimize Microbial Food Safety Hazards 

for Fresh Fruits and Vegetables, referred to 

as the GAPS guide, and advance notices of 

proposed rulemaking. Trucking companies 

also must adhere to industry standards. 

Further, participation in certification programs 

such as Safe Quality Foods Program 

(SQF) and the Global Food Safety Initiative 

(GFSI) may help to show initiative to comply 

with industry standards. See CERT ID, 

GFSI Benchmarked and Farm to Fork Food 

Safety, http://www.cert-id.com/Certification- 

Programs/SQF-Certification.aspx (last visited 

Oct. 23, 2012). The FDA already recommends 

that all links in the food chain, and 

those agencies charged with monitoring 


Trucking Law 

them, prepare vulnerability assessments, 

such as the FDA vulnerability assessment, 

which uses the “Carver + Shock methodology.” 

See U.S. Food and Drug Admin., Vulnerability 

Assessment, http://www.fda.gov/ 

Food/FoodDefense/ToolsResources/ucm295900. 

htm (last visited Oct. 23, 2012). 

Up to this point, some in the food industry 

have adopted the attitude that FDA 

In response to the 

tracking and tracing 

concerns contained in the 

FSMA, new technologies 

are being released in 

rapid succession. 

“guidances” are not law, and therefore, the 

food industry does not need to follow them. 

See OIG Report, Traceability in the Food 

Supply Chain (Mar. 2009). In the recent 

cantaloupe listeria outbreak a third-party 

auditor had discovered unsanitary conditions 

at Jensen Farms but failed to report 

the problems because they only violated 

FDA guidance not regulations. See David 

Acheson, Investigation of Cantaloupe Listeria 

Outbreak Has Congress Asking Serious 

Questions Around Third Party Audits, 

Leavitt Partners blog (Jan. 10, 2012), http:// 

leavittpartnersblog.com/2012/01/investigation-ofcantaloupe-listeria-outbreak-has-congress-askingserious-questions-around-third-party-audits/ 

(last 

visited Oct. 23, 2012). However, such attitudes 

are not consistent with industry best 

practices and are an open invitation to civil 

liability. 

In alleging negligence against trucking 

companies, plaintiffs will also point to 

a company’s failure to use available “state 

of the art” technology and equipment. In 

response to the tracking and tracing concerns 

contained in the FSMA, new technologies 

are being released in rapid succession. 

Global Positioning System (GPS) devices 

placed on pallets can track the location of a 

shipment and transmit readings from sensors 

that monitor the temperature of pro- 


duce in transit in real time. These systems 

track where a load is delivered and where it 

came from. Some trackers can provide data 

even months after delivery. See Trunick, 

supra. These devices can work in conjunction 

with the onboard recorders that register 

vehicle duty cycles and driver records 

to add data collection from temperature 

sensors monitoring a load. See Gretchen 

Goetz, FSMA Means Updates for Trucking 

Industry, Food Safety News (Jan. 30, 2012), 

http://www.foodsafetynews.com/2012/01/fsmameans-updates-for-trucking-industry/ 

(last visited 

Oct. 23, 2012) 

While trucking companies should 

adhere to all FDA regulations and industry 

best practices, they should approach 

large investments in new technologies with 

more caution. Understanding the technologies 

commonly used in the industry 

should be a consideration of any trucking 

company. But when the IFT completes the 

tracking and tracing pilot programs and 

the FDA issues rules within the next year, 

waiting to make a major capital investment 

in technology seems appropriate to ensure 

that the technology will comply with the 

requirements of the new law. Although the 

FDA does not have the authority under the 

FSMA to dictate that trucking companies 

use particular software or technology, the 

regulations could require that a company’s 

tracking and tracing efforts are compatible 

with the efforts of the other participants in 

the food chain. See Noble, supra. 

One thing must be kept in mind throughout 

the development of the FSMA and its attendant 

regulations. The FSMA expressly 

provides preemption of state law for “food 

production.” And respecting transportation, 

the FSMA states that there is no preemption 

for “fresh fruit and vegetables.” 

Other than that the FSMA does not address 

preemption. Without further clarification, 

preemption of state law is unclear. 

Currently, trucking carriers are subject to 

federal and state regulatory entities in every 

state in which they travel. In each state they 

are answerable to the state’s public utilities 

commission regulating intrastate trucking, 

permits, rates, and record keeping and its 

department of motor vehicles registration 

and licensing of drivers. Thus, carriers of 

food must continue to be mindful of liability 

under state laws while complying under the 

FSMA. This concern was highlighted in July 

2012 when the Indiana legislature, at the 

urging of the Indiana State Department of 

Health, passed legislation making it a class 

A infraction to transport food that is more 

than two degrees above the acceptable temperature 

that shows outward signs of contamination 

or spoilage or that is loaded in 

a way that risks cross- contamination. Megan 

Banta, Overheated Food Trucks Raise 

Red Flags in Indiana, Insurance Journal 

(Aug. 9, 2012), http://www.insurancejournal.com/ 

news/midwest/2012/08/09/258888.htm (last visited 

Oct. 23, 2012). 

Because the Indiana State Department 

of Health did not have the authority to stop 

trucks traveling through the state, Indiana 

state troopers instituted an initiative to 

conduct spot inspections. Troopers stopped 

random trucks, inspected loads with temperature 

sensors, and if they found that 

the carriers violated the Indiana law, they 

contacted the Indiana State Department of 

Health, which helped destroy the dangerous 

loads. 

Conclusion 

Now isn’t too soon to begin trying to anticipate 

and prepare for the new requirements 

that the FSMA will place on trucking companies. 

Begin by evaluating current record- 

keeping policies and procedures. Also, look 

at the ability and degree to which tracking 

and tracing is feasible. Once the federal 

government implements the FSMA, all 

trucking companies should create compliance 

committees and checklists outlining 

their compliance with the FSMA regulations. 

They should update vulnerability 

studies based on the new standards and 

perform good agricultural practices (GAP) 

compliance assessments. And those entities 

without in-house legal counsel should 

identify potential outside counsel to evaluate 

their compliance with the new regulations, 

their potential exposure to liability 

under the regulations and any guidance 

provided by the FDA. 

Remember, the overarching theme of 

the Food Safety Modernization Act is prevention. 

The FSMA regulations and the 

enforcement of those rules will likely occur 

with that goal in mind. Similarly, the ultimate 

liability standards in civil negligence 

cases may turn at least in part upon a company’s 

efforts to prevent harm to the food 

supply.

Trucking Law 

The Carmack 

Amendment 

By Lauren Fajoni Bartlett 

a nutshell history of 

commercial regulation 

in America. 

Limiting Common 

Carrier Liability 

for Lost or 

Damaged Cargo 

Article I, section 8 of the United States Constitution, commonly 

referred to as the Commerce Clause, states that 

Congress shall have the power “to regulate Commerce 

with foreign Nations, and among the several States, and 

with Indian Tribes.” But the limits on the 

federal government’s regulatory powers 

remain a moving target. The inclusion of 

the Commerce Clause within the Constitution 

undoubtedly was designed to end 

the autocratic regulatory schemes that 

existed in the colonies at that time and to 

bring continuity to commerce and trade 

practices among the several states, which 

previously had been lacking under the 

Articles of Confederation. Of course, as 

with other provisions in the United States 

Constitution, the limits on Congress’ regulatory 

powers is not spelled out and has 

largely been left up to the courts. As commercial 

trade practices have made significant 

strides over the course of the past 225 

years, so too has Congress’ ability to exert 

its control over matters affecting interstate 

commerce. 

During the first 100 years after the states 

adopted the Constitution, commercial 

regulations embedded in the laws of the 

individual states remained largely unchal- 

lenged. With the expansion of the railway 

system, interstate commerce grew exponentially 

so that state- specific commercial 

regulation quickly became a central focus 

of the courts, and Congress soon followed. 

Enter Wabash and the Interstate Commerce 

Act of 1887. 

Wabash, St. Louis & Pac. Ry. v. Ill., 118 

U.S. 557, 7 S. Ct. 4, 30 L. Ed. 244 (U.S. 1886), 

involved an Illinois statute that prohibited 

railroad companies from charging different 

rates for the same class of cargo. The 

Illinois state courts, including the state 

Supreme Court, found that the Wabash, 

St. Louis, and Pacific Railway Company 

was guilty of unjust rate discrimination 

because it charged different fares for the 

same class of cargo. In rendering its decision, 

the U.S. Supreme Court, although 

respectful of certain states’ rights when 

they only “incidentally” affected interstate 

commerce, concluded that “[w]e must… 

hold that it is not, and never has been, 

the deliberate opinion of a majority of 

■ Lauren Fajoni Bartlett is a partner at Leake & Andersson LLP with a general litigation defense practice particularly in the areas 

of drug and medical device litigation, product liability, contract disputes, commercial litigation, and insurance defense. She is 

admitted to practice law in Florida and Louisiana. Ms. Bartlett is an active member in good standing in all state and federal 

courts in Florida and Louisiana. She is also an active member of the Louisiana Association of Defense Counsel, the New Orleans 

Bar Association, the New Orleans Association of Defense Counsel, and DRI. 


Trucking Law 

this court that a statute of a State which 

attempts to regulate the fares and charges 

by railroad companies within its limits, for 

a transportation which constitutes a part 

of commerce among the States, is a valid 

law.” Id. at 575. 

This case brought to a head the growing 

frustration among merchants over the fact 

that the railroad companies engaged in fare 

The test for determining 

whether a claim is covered 

under the Carmack 

Amendment, and therefore 

removable to federal 

court, is not the same 

in all jurisdictions. 

discrimination by offering more favorable 

rates to certain wealthier merchants while 

charging local producers higher fares for 

the same class of cargo. Following this decision, 

Congress faced mounting pressure 

to level the playing field and put an end to 

these discriminatory practices by passing 

legislation to regulate shipment rates. One 

year after Wabash, Congress passed the Interstate 

Commerce Act of 1887, which required 

railroad rates to be “reasonable and 

just.” Congress did not set specific rates that 

railroads could charge because this would 

have a chilling effect on free- market competition; 

it opted instead to create a “zone 

of reasonableness” that railroad companies 

had to apply without discriminating among 

merchants. See Farmers Union Cent. Exchange, 

Inc. v. Federal Energy Regulatory 

Com., 734 F.2d 1486, 1502 (D.C. Cir. 1984) 

(citing Fed. Energy Regulatory Comm’n v. 

Pennzoil Producing Co., 439 U.S. 508, 517, 

99 S. Ct. 765, 58 L. Ed. 2d 773 (U.S. 1979) 

and Permian Basin Area Rate Cases, 390 

U.S. 747, 797, 88 S. Ct. 1344, 20 L. Ed. 2d 312 

(U.S. 1968)). But, as Congress would soon 

learn, the disparities created by a multistate 

approach to fare regulation was not the only 

controversy that Congress would face as a 


result of the expansion of interstate commerce 

in America. 

Liability Disputes Involving 

Common Carriers 

The Interstate Commerce Act (1887) 

worked well to protect merchants against 

unfair trade practices by common carriers, 

but it did nothing to protect common 

carriers from improper forum- shopping 

measures by merchants. When it left dispute 

resolution up to the individual states, 

Congress left merchants with the freedom 

to forum shop and select a jurisdiction that 

was most likely to protect—and to promote—their 

interests. The first such case to 

bring this issue to light, and subsequently 

pave the way for the Carmack Amendment, 

was Pennsylvania R. Co. v. Hughes, 191 U.S. 

477 (U.S. 1903). Hughes involved the shipment 

of a horse from New York to Pennsylvania. 

The parties contractually agreed 

that the shipper would limit the carrier’s 

liability for any damage or injury to the 

horse that might occur during transit in 

exchange for a lower freight charge. The 

law in New York, where the contract was 

signed, permitted such agreements, while 

the law in Pennsylvania declared these 

kinds of agreements void and unenforceable. 

Big surprise—the horse was injured 

in Pennsylvania. 

Despite the specific contract terms to the 

contrary, the shipper sued in Pennsylvania 

for the full amount of the horse and won. 

Pennsylvania Railroad Company sought 

review by the United States Supreme Court, 

which in turn affirmed the Pennsylvania 

decision, finding that the Pennsylvania 

statute was not unconstitutional because 

it only had an “incidental” effect on interstate 

commerce. The statute at issue stated 

that a corporation incorporated under the 

laws of Pennsylvania and operating within 

its borders, such as the carrier in Hughes, 

could not contractually limit its liability for 

negligence even when the agreement was 

signed through an agent in another state. 

Thus, unlike the law at issue in Wabash, 

which affected all companies engaged in 

interstate commerce regardless of citizenship, 

the Pennsylvania law only sought to 

control corporations that were citizens in 

that state. 

This case presented the Supreme Court 

with an opportunity to highlight the appar- 

ent conflict between federal Commerce 

Clause powers and states’ rights, both of 

which are integrated into the Constitution. 

The Supreme Court focused on the fact that 

the intent of the state statute was a matter 

well within the state’s constitutional 

power to regulate even though the effect 

of the statute did interfere, albeit incidentally, 

with transactions involving interstate 

commerce. The Supreme Court concluded 

that states have the power to regulate corporations 

organized and operating within 

their states through the exercise of their 

police powers because “the Federal power 

to regulate interstate commerce, however 

absolute and exclusive, is not a complete 

denial of the power of a State to control 

its own corporations engaged in interstate 

commerce.” Id. at 483. Since the Pennsylvania 

law was not unconstitutional, the 

Supreme Court had no choice but to disregard 

the contract and uphold the Pennsylvania 

Supreme Court’s decision. However, 

while the Supreme Court was not willing 

to encroach on Pennsylvania’s police powers, 

it was careful to point out the inequities 

created by this multijurisdictional 

approach to liability in cases involving 

interstate commerce and called on Congress 

to legislate in this area by commenting 

on the noticeable absence of federal 

regulations governing liability in these 

types of cases. 

It took no time for the market—and 

Congress—to respond to this decision. The 

Supreme Court decided Hughes on December 

7, 1903, and Congress enacted the Carmack 

Amendment only two and a half 

years later on June 29, 1906. 

Following Hughes, common carriers began 

refusing to transport goods beyond 

state lines, which forced merchants to contract 

separately with each carrier along 

the line. As a result, a merchant could only 

seek recompense for loss or damage that occurred 

within each segment of a trip; however, 

proving where the damage occurred 

was difficult if not impossible in many 

cases. It was the merchants, then, not the 

common carriers, that bore the brunt of the 

Hughes decision. To rectify this inequity, 

Congress passed the Carmack Amendment 

to the Interstate Commerce Act in 1906, 

which was the next major step in commercial 

regulation. Atlantic C. L. R. Co. v. Riverside 

Mills, 219 U.S. 186, 199–201 (U.S. 1911).

The Carmack Amendment 

Levels the Playing Field— 

Well, Sort Of… 

Conferring Federal Jurisdiction 

As one court explained, “Congress enacted 

the Carmack Amendment… in response to 

the chaotic disparity which resulted from 

the application of the multitude of different 

state laws to interstate shipping. The 

Carmack Amendment defined the parameters 

of carrier liability for loss and damage 

to goods transported under interstate 

bills of lading, bringing uniform treatment 

to the carrier- shipper relationship.” 

Coughlin v. United Van Lines, 362 F. Supp. 

2d 1166, 1167 (C.D. Cal. 2005). The amendment 

represented the first step in reconciling 

state liability laws and establishing 

a uniform liability standard for common 

carriers. Sompo Japan Ins. Co. of Am. v. 

Union Pac. R.R. Co., 456 F.3d 54, 59 (2d 

Cir. 2006). It also gave the federal courts 

concurrent jurisdiction over all disputes 

arising from transactions involving interstate 

commerce, so much so that the federal 

courts quickly became the clearing 

houses for negotiating and settling private 

debt in any amount. See Ford Motor Co. v. 

Transport Indem. Co., 795 F.2d 538, 544 

(6th Cir. 1986). As a result, the statute was 

later amended so that the federal courts 

would have original jurisdiction only over 

those matters in which the amount in controversy 

exceeded $10,000. 28 U.S.C. §1337. 

In fact, if after an adjudication on the merits 

the value is determined to be less than 

$10,000, a court may assess costs against 

the plaintiff as a penalty for filing the claim 

in a federal court. 

While the Carmack Amendment provides 

a basis for federal question jurisdiction, 

and it preempts all state common 

law claims relating to the loss or damage 

to cargo while in transit, cases involving 

common carriers may be filed in either a 

federal or a state court; however, interstate 

travel is essential to invoke the protections 

afforded by the Carmack Amendment. Fogarty 

Van Lines, Inc. v. Kelly, 443 So. 2d 1070, 

1071 (Fla. Dist. Ct. App. 1984). Moreover, 

the fact that Congress established concurrent 

jurisdiction for Carmack Amendment 

claims does not by itself affect the ability 

of a carrier to remove a case based on the 

existence of a federal question, to wit, the 

complete preemption doctrine. Stephenson 

v. Wheaton Van Lines, Inc., 240 F. Supp. 2d 

1161, 1166 (D. Kan. 2002). 

Preemption? Maybe, 

Maybe Not 

In the words of the Eleventh Circuit, “The 

Carmack Amendment creates a uniform 

rule for carrier liability when goods are 

shipped in interstate commerce…. To 

accomplish the goal of uniformity, the 

Carmack Amendment preempts state law 

claims arising from failures in the transportation 

and delivery of goods.” Smith 

v. UPS, 296 F.3d 1244, 1246–47 (11th Cir. 

2002) (internal citations omitted). See also 

North Am. Van Lines, Inc. v. Pinkerton 

Sec. Sys., Inc., 89 F.3d 452, 456 (7th Cir. 

1996) (“The Carmack Amendment… preempts 

all state or common law remedies 

available to a shipper against a carrier for 

loss or damage to interstate shipments.”). 

However, the issue of federal court jurisdiction 

is not always as simple as it seems. 

Since Congress did not legislate complete 

preemption through the Carmack 

Amendment, opting instead for concurrent 

jurisdiction, whether a case involving 

damage to a shipment is removable is 

a case- specific determination that depends 

on the allegations in a petition. Raising federal 

preemption as a defense likewise does 

not create grounds for removal. See Metropolitan 

Life Insurance Company v. Taylor, 

481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed. 2d 

55 (U.S. 1987); BLAB T.V. of Mobile Inc. v. 

Comcast Cable Communications, Inc., 182 

F.3d 851 (11th Cir. 1999). 

The test for determining whether a claim 

is covered under the Carmack Amendment, 

and therefore removable to federal 

court, is not the same in all jurisdictions. 

For example, in White v. Mayflower Transit, 

L.L.C., 543 F.3d 581, 585 (9th Cir. 2008), 

the court considered whether the amendment 

preempted claims for intentional 

infliction of emotional distress. The court 

recognized that the Carmack Amendment 

completely preempts claims against interstate 

carriers for negligence, fraud, and 

conversion, but the issue of whether it also 

preempted emotional distress claims was 

novel to the Ninth Circuit. Looking to other 

jurisdictions, the court noted that four circuits 

had considered the issue: two circuits 

focused on the conduct, finding in favor of 

preemption, while the other two focused 

on the harm, finding that the claim was 

not preempted. 

The White court observed that in Smith 

v. United Parcel Serv., 296 F.3d 1244, 1248– 

49 (11th Cir. 2002), the court devised a rule 

making “only claims based on conduct separate 

and distinct from the delivery, loss 

of, or damage to goods escape preemption.” 

Applying this rule, the Eleventh Circuit 

held that the Carmack Amendment 

preempted the plaintiff’s emotional distress 

claim because it arose solely from the 

defendant’s transportation and delivery 

services; however, the court also noted that 

had the plaintiff alleged facts independent 

of the transportation and delivery services 

in support of his intentional infliction of 

emotional distress claim, then it would not 

have been preempted. Id. at 1249. Moreover, 

again focusing on the conduct of the 

parties, the Fifth Circuit in Moffit v. Bekins 

Van Lines Co., 6 F.3d 305 (5th Cir. 1993), 

held that the Carmack Amendment preempted 

a claim for intentional infliction 

of emotional distress when the plaintiff 

alleged only that a moving company failed 

timely to deliver its belongings. Id. at 306– 

07. The Fifth Circuit held that the Carmack 

Amendment preempted claims for the tort 

of outrage, intentional infliction of emotional 

distress, negligent infliction of emotional 

distress, breach of contract, breach 

of implied warranty, breach of express warranty, 

deceptive trade practices, slander, 

misrepresentation, fraud, negligence, gross 

negligence, and violation of common carrier 

duties under state law. Id. “To hold otherwise, 

the Fifth Circuit reasoned, would 

have defeated Congress’ purpose of creating 

uniform legislation to govern interstate 

shipping contracts,” noted the Ninth 

Circuit when discussing the case. White v. 

Mayflower Transit, 543 F.3d at 585. 

In Rini v. United Van Lines, Inc., 104 F.3d 

502, 506 (1st Cir. 1997), however, the First 

Circuit devised a rule that focused on the 

resultant harm instead of the underlying 

conduct. In that case, the court reasoned 

that since a claim for intentional infliction 

of emotional distress alleges a harm that 

is independent from the shipment itself, 

the Carmack Amendment would not preempt 

this type of claim. In Gordon v. United 

Van Lines, Inc., 130 F.3d 282, 289 (7th Cir. 

1997), the Seventh Circuit adopted the First 

Circuit’s harm-based approach, although it 


Trucking Law 

appears from the facts that the case actually 

is more in line with the dicta cited in 

Smith because of the existence of facts, 

independent of the underlying shipment 

itself, indicative of intentional misconduct 

on the part of the defendant carrier. As a 

result, in Gordon, the court held that the 

plaintiff’s intentional infliction of emotional 

distress claim was not preempted 

As a general rule, special 

damages such as lost 

profits are recoverable 

from a carrier, but only 

when it has notice or 

knowledge of the special 

circumstances from which 

such damages would flow. 

because he successfully had alleged independent 

grounds to support his claim. 

Having considered the cases as a whole, 

the White court adopted the reasoning of 

the majority, holding that the Carmack 

Amendment preempts a claim for intentional 

infliction of emotional distress when 

it arises from the same conduct as the 

claims for delay, loss, or damage to shipped 

property. Since White did not allege any 

facts that would support an independent 

intentional infliction of emotional distress 

claim, the Carmack Amendment 

preempted his claims. The vast majority 

of courts that have considered the issue 

appear to have adopted this standard not 

only for intentional infliction of emotional 

distress claims but also claims for unfair 

and deceptive practices, breach of contract, 

breach of express or implied warranty, 

and other similar state tort-based 

claims. So, the rule to take away from this 

case study is this: when a plaintiff claims 

damages resulting from injury to or loss of 

the use of goods, or both, regardless of the 

theory of liability asserted, the Carmack 

Amendment will preempt the claims, and 


the allegations will establish federal question 

jurisdiction. On the other hand, when 

a plaintiff’s claims involve separate and 

independent acts of misconduct, federal 

law will not preempt them. 

Calculating Damages in the Absence 

of a Limitation of Liability Agreement 

The Carmack Amendment in its original 

form was very simple: a common carrier 

engaged in interstate commerce shall 

issue a bill of lading; the carrier identified 

on the bill of lading shall be liable for any 

loss, damage or injury to the property that 

may occur while in transit; and the common 

carrier cannot limit its liability for 

such damages by contract, receipt, rule, or 

regulation. Act of June 29, 1906, chap. 3591, 

§7, 34 Stat. at L. 584, 595, Comp. Stat. 1913, 

§8592. Initially, Congress did not permit 

carriers to limit their liability under any 

circumstance; however, this resulted in 

sharp increases in shipping rates, so Congress 

later passed the Cummins Amendment, 

which now permits such limitations 

on liability. See United Van Lines, L.L.C. v. 

Jackson, 467 F. Supp. 2d 711, 714–15 (S.D. 

Tex. 2006); Rohner Gehrig Co. v. Tri-State 

Motor Transit, 950 F.2d 1079, 1082 (5th Cir. 

1992). Of course, to be afforded these protections, 

the carrier first has to prove that 

the Carmack Amendment even applies. 

The Carmack Amendment is now a shipper’s 

sole remedy in actions seeking damages 

for lost or damaged property: “That 

is, the Carmack Amendment preempts 

any common law remedy that increases 

the carrier’s liability beyond ‘the actual 

loss or injury to the property,’ unless the 

shipper alleges injuries separate and apart 

from those resulting directly from the loss 

of shipped property.” United Van Lines, 

L.L.C. v. Jackson, 467 F. Supp. 2d 711, 715 

(S.D. Tex. 2006) (quoting Morris v. Covan 

World Wide Moving, Inc., 144 F.3d 377, 382 

(5th Cir. 1998)). Under certain conditions, 

common carriers may further limit their 

damages to less than the “actual loss,” but 

to do so the carrier must (1) maintain an 

appropriate tariff and make it available to 

the shipper on request, (2) obtain the shipper’s 

agreement on the preferred choice 

of liability, (3) give the shipper a reasonable 

opportunity to choose between two 

or more levels of liability, and (4) issue a 

receipt or bill of lading before moving the 

shipment. See Opp v. Wheaton Van Lines, 

Inc., 231 F.3d 1060, 1063 (7th Cir. 2000); 

Bio-Lab, Inc. v. Pony Express Courier Corp., 

911 F.2d 1580, 1582 (11th Cir. 1990). Under 

these conditions liability is limited to the 

amount specified in the tariff regardless of 

what the actual damages may be. However, 

in the absence of a limitation of liability 

agreement, a carrier remains liable for all 

actual and reasonably foreseeable consequential 

damages resulting from a breach 

of contract. See Banos v. Eckerd Corp., 997 

F. Supp. 756 (E.D. La. 1998). So, what does 

this mean? 

“Actual losses” are the actual and reasonably 

foreseeable consequential damages 

and can include the contract price, 

lost revenue or lost profits, replacement 

costs or market value, or the diminished 

value of a shipment. The term “actual loss” 

is a fluid term and depends on the particular 

facts of the case, but as a general rule 

“[a] carrier’s liability under the Carmack 

Amendment includes all reasonably foreseeable 

damages resulting from the breach 

of its contract of carriage, ‘including those 

resulting from nondelivery of the shipped 

goods as provided by the bill of lading.’” 

National Hispanic Circus, Inc. v. Rex Trucking, 

Inc., 414 F.3d 546, 549 (5th Cir. 2005) 

(quoting Air Products & Chemicals, Inc. 

v. Illinois Cent. Gulf R. Co., 721 F.2d 483 

(5th Cir. 1983), cert. denied, 469 U.S. 832, 

105 S. Ct. 122, 83 L. Ed. 2d 64 (1984)). And 

“[b]oth general and special damages may 

be recovered under the Carmack Amendment.” 

Id. General damages are foreseeable 

at the time of contracting, while special 

damages result from the breach of contract 

but are not reasonably foreseeable. 

Id. See also Paper Magic Group, Inc. v J.B. 

Hunt Transport, Inc., 318 F.3d 458 (3d Cir. 

2003). Special damages such as lost profits 

also “are those unusual or indirect costs 

that, although caused by the defendant’s 

conduct in a literal sense, are beyond that 

which one would reasonably expect to be 

the ordinary consequences of a breach.” 

Texas A&M Research Found. v. Magna 

Transp., Inc., 338 F.3d 394, 404 (5th Cir. 

2003). 

As a general rule, special damages such 

as lost profits are recoverable from a carrier, 

but only when it has notice or knowledge 

of the special circumstances from 

which such damages would flow. Contempo

Metal Furniture Co. of California v East 

Texas Motor Freight Lines, Inc., 661 F.2d 

761 (9th Cir. 1981). “The purpose of this 

rule,” as one court made clear, “is to enable 

the carrier to protect itself from special 

damages by negotiating special contractual 

terms, declining the shipment, or taking 

special precautions to avoid the loss.” 

Tayloe v. Kachina Moving & Storage, 16 F. 

Supp. 2d 1123, 1129 (D. Ariz. 1998) (quoting 

Contempo Metal Furniture Co. v. East Texas 

Motor Freight Lines, Inc., 661 F.2d 761, 764 

(9th Cir. 1981)). It is the notice requirement 

that more often than not saves a carrier 

from having to pay lost profits as an additional 

item of special damages. Am. Home 

Assur. Co. v. RAP Trucking, Inc., 2010 U.S. 

Dist. Lexis 11124, at *8–9 (S.D. Fla. Feb. 9, 

2010). 

For example, in Suttle v. Landstar Inway, 

Inc., 2009 U.S. Dist. Lexis 37429 (S.D. Tex. 

May 4, 2009), the plaintiff sought reimbursement 

for the value of a piece of 

machinery that was destroyed during shipping, 

along with lost profits or lost income 

from the anticipated sale of the unit. The 

court held that lost profits or lost income 

under the Carmack Amendment was not 

recoverable because the defendant did not 

have notice of these items of special damage 

before or when the bill of lading was 

issued. However, had the defendant been 

advised of the intended use of the machinery, 

the court would have reached a different 

conclusion and awarded the lost profits 

from the anticipated sale. See also Paper 

Magic Group, Inc. v. J. B. Hunt Transp., Inc., 

318 F.3d 458, 462 (3d Cir. 2003) (“courts 

award special damages only where a shipper 

actually notified the carrier that the 

goods required special handling of some 

kind, thereby giving the carrier notice and 

making the damages foreseeable.”). So, 

what is the moral of the story? No notice, 

no lost profits. 

Calculating Damages When 

Lost Profits Are Involved 

When calculating the amount of general 

and special damages, it is important to 

remember that “actual loss” and “actual 

value” are not synonymous terms; therefore, 

computing damages will depend 

on the particular facts of a case. Actual 

loss can be the invoice or contract price; 

replacement cost, or market value); or the 

difference between the value of the goods 

as invoiced less the value of the goods as 

received, among other things. Without a 

limitation of liability provision, actual loss 

can exceed the invoice price in certain circumstances—for 

instance, when lost profits 

may be recovered—although attorney’s 

fees and costs generally are not recoverable. 

This brings us to the next question: how 

do we measure lost profits and lost revenue 

when they are recoverable? In lost cargo 

cases, the correct measure of damages generally 

means the market value of goods 

as measured when a carrier delivers the 

goods to the intended delivery destination, 

although in addition to lost profits, they 

can also include incidental expenses such 

as business interruption losses, replacement 

costs, and loss of use. So, general 

damages would be the difference between 

the fair- market value at origin and the fair- 

market value at destination, while special 

or consequential damages would include 

the gains such performance could produce 

for collateral reasons as well as additional 

expenses associated with the delay. See Jessica 

Howard v. Norfolk S. Ry., 316 F.3d 165, 

170 (2d Cir. 2003) (quoting Dobbs, 3 Law of 

Remedies §12.1(1)). 

Of course, as with any other theory of 

liability, special damages sought under 

the Carmack Amendment may be recovered 

only when they are not speculative or 

uncertain in nature and proved with a reasonable 

degree of certainty. See American 

Nat. Fire Ins. Co. ex rel. Tabacalera Contreras 

Cigar Co. v. Yellow Freight Systems, Inc., 

325 F.3d 924, 931 (7th Cir. 2003) (“[T]he 

Carmack Amendment is comprehensive 

enough to embrace all damages resulting 

from any failure to discharge a carrier’s 

duty with respect to any part of the transportation 

to the agreed destination. Recoverable 

damages includes damages for delay, 

lost profits (unless they are speculative), 

and all reasonably foreseeable consequential 

damages.”); Camar Corp. v. Preston 

Trucking Co., 221 F.3d 271, 277 (1st Cir. 

2000) (holding that lost profits are recoverable 

only if they are not speculative). 

Conclusion 

In the end, one question remains: did the 

Carmack Amendment really help common 

carriers at all? Well, probably not as much 

as Congress would have liked, although it 

does give common carriers the opportunity 

to limit their liability. I mean, how hard is 

it really to allege an independent cause of 

action arising from state tort law? Not very. 

And, if there is no tariff in place, this notion 

of “special damages” can spiral out of control 

fast. But, as long as a common carrier 

follows the four steps outlined above, 

and you as the attorney can make a colorable 

argument that the state tort claims are 

nothing more than Carmack Amendment 

claims parading around as a common law 

tort, then you can limit the damages to 

the declared amount, if not the contract 

amount stated in the tariff, and cap the 

damages. This is why it is important to read 

a petition carefully—especially in fact- 

pleading jurisdictions—and frame every 

allegation so that it comes within the purview 

of the Carmack Amendment. After 

all, it is not what a plaintiff says, but rather 

what the plaintiff means that outlines the 

theories of liability in each case. 


Trucking Law 

Workers’ Compensation 

By Sasha L. Monthei 

and Kent M. Smith 

Jurisdictional questions 

and independent 

contractor status are 

examples of the myriad 

issues of which attorneys, 

insurers, and selfinsured 

motor carriers 

must be mindful. 


Unique Issues 

for Over-the- 

Road Drivers 

The trucking industry employs 10 million people in jobs 

that directly relate to the trucking industry. Wikipedia, 

The Free Encyclopedia, accessed 9/10/12, (citing U.S. & 

World Population Clocks—POPClocks, U.S. Census 

Bureau, Population Division, 3/17/08). 

Truck drivers account for 12 percent of 

the total number of all work- related deaths 

and are five times more likely to die on the 

job than the average worker. Andrew T. 

Knestaut, Fatalities and Injuries Among 

Truck and Taxicab Drivers, Compensation 

and Working Conditions, U.S. Dep’t of Labor, 

Bureau of Labor Statistics (Fall 1997), 

http://www.bls.gov/iif/oshwc/cfar0023.pdf. Not 

only do truck drivers often sustain severe 

injuries, workers’ compensation claims involving 

over-the-road drivers often present 

unique and sometimes challenging 

legal issues due to the transitory nature of 

their work. The focus of this article is to explore 

the unique legal issues presented when 

handling workers’ compensation claims involving 

over-the-road drivers. 

Jurisdictional Issues 

Over-the-road truck drivers often suffer 

injuries in states other than the states 

where they live or where their employers 

are located. When this occurs, multiple 

states potentially have jurisdiction over an 

injured driver’s claim for workers’ compensation 

benefits. As a result, claimants 

and their attorneys will forum shop and 

file a claim in the state that provides maximum 

benefits. This can potentially force 

a single motor carrier to defend workers’ 

compensation claims in multiple states, 

which can involve complex legal issues 

and lead to varying results. Since workers’ 

compensation is a statutory creature, 

and each state has its own system in place, 

uniformity really does not exist among 

the states. 

The employer’s location, the employee’s 

residence, the location of the contract 

for hire, and the location of the injury 

are all factors that can provide the basis 

for a state to exercise jurisdiction over a 

workers’ compensation claim. Most workers’ 

compensation statutes apply to out- 

■ Sasha L. Monthei is a member attorney in the Cedar Rapids, Iowa, office of Scheldrup Blades. Kent M. 

Smith is the managing member of the firm’s Des Moines and West Des Moines, Iowa, offices. Ms. Monthei 

is the leader of the firm’s trucking and transportation litigation practice group. Her practice involves defending 

employers and insurance companies in trucking and transportation litigation, civil liability, employment 

law claims and workers’ compensation in Iowa. Mr. Smith defends employers and insurance companies in 

workers’ compensation, trucking and transportation litigation, and civil liability and employment law claims.

of-state injuries if an employer has a place 

of business in that state. See, e.g., Indiana 

Code §22-3-2-20 (2012). Some statutes 

do not apply to out-of-state injuries even 

if an injured worker is a resident of that 

state. See Dixon v. Able Equipment Co., 

668 A.2d 1009 (Md. Ct. Spec. App. 1995) 

(holding that the claimant was not regularly 

employed in the state and entitled to 

workers’ compensation benefits although 

he was a resident of the state and worked 

in the state for a potion of the year); Patton 

v. Brown & Root, Inc., 789 S.W.2d 745 (Ark. 

Ct. App. 1990) (affirming the commission’s 

decision that Arkansas residency alone was 

not a sufficient basis to invoke jurisdiction); 

Rice v. Burlington Motor Carriers, Inc., 839 

So. 2d 602 (Miss. Ct. App. 2003) (holding 

that the Mississippi resident could not 

bring a claim for workers’ compensation 

benefits in Mississippi when he was hired 

in Indiana, participated in driver’s training 

activities in Tennessee, and suffered a 

back injury in Pennsylvania); Ex parte Tri- 

State Motor Transit Co., 541 So. 2d 557 (Ala. 

Civ. App. 1989) (holding that two Alabama 

residents employed as over-the-road drivers 

who suffered out of state injuries were 

not entitled to benefits under Alabama 

law since employment was not principally 

localized in state and contracts of hire were 

subject to approval in Missouri). Some 

states require an employee to be hired in 

the state or regularly to be employed in the 

state. See, e.g., Arizona Stat. §23-904 (2012); 

DiMuro v. Industrial Com’n of AZ, 688 P.2d 

703 (Az. Ct. App. 1984) (holding that the 

claimant must have been hired in Arizona 

or regularly employed in the state to receive 

benefits under workers’ compensation laws 

for injuries occurring outside of the state). 

It is essential, therefore, when handling a 

workers’ compensation claim that results 

from an out-of-state injury, to verify that 

the state in which the lawsuit was brought 

actually has jurisdiction over the claim. 

Workers’ compensation statutes usually 

provide jurisdiction over injuries that 

occur in-state even though the employment 

is localized principally in another state, the 

claimant is a resident of another state, or 

the employee and employer entered into 

the employment contract in another state. 

In a few states, however, the state statutes 

do not automatically confer jurisdiction 

over an in-state injury. For example, 

in Minnesota, a claimant injured in that 

state must prove that he or she has foregone 

any workers’ compensation claim resulting 

from an injury that he or she may have had 

a right to pursue in some other state before 

the Minnesota statute will confer jurisdiction. 

Compare Murphy v. Dulaney Invest., 

354 N.W.2d 824 (Minn. 1984), with Pauli 

v. Pneumatic Systems, Inc., 328 N.W.2d 743 

(Minn. 1982). 

In states that consider the location of the 

contract for hire in determining whether 

the state has jurisdiction over a particular 

claim for workers’ compensation benefits, 

agencies and courts can have difficulty 

determining in which state the employee 

made a contract for hire when a case 

involves an over-the-road driver. Commercial 

drivers regularly submit applications 

for employment over the Internet or 

are offered jobs over the phone. In deciding 

where a contract for hire was made, 

courts use the last act test, which provides 

that a contract is made where the last act 

occurred giving validity to the contract. 

In some cases, the last act will be acceptance 

of a job offer. If signing an employment 

agreement is necessary to effectuate 

the employment contract, the last act will 

take place where the contract is signed. See 

Thomas v. Overland Exp. Inc., 398 S.E.2d 

921 (N.C. Ct. App. 1990). However, offers 

of employment to commercial drivers are 

usually conditional on additional things 

happening after a driver accepts a job offer. 

This was recognized in Whitney v. Country 

Wide Truck Serv., 886 S.W.2d 154 (Mo. 

Ct. App. 1994), which held that the Missouri 

Workers’ Compensation Act did not 

afford jurisdiction over a Missouri resident’s 

claim for benefits when the claimant 

was injured in Arkansas, entered into the 

contract of hire in Tennessee, and had to 

travel to Tennessee to complete a drug test, 

road test, and orientation before receiving 

a truck. In Moore v. North American 

Van Lines, 423 S.E.2d 116 (S.C. 1992), the 

court held that the claimant was not entitled 

to South Carolina workers’ compensation 

benefits despite allegedly accepting a 

job offer from the employer over the phone 

while located in South Carolina. The court 

explained that the employee did not submit 

evidence to demonstrate that the sales person 

who communicated with the claimant 

had authority to hire the claimant. 

Entitlement to Workers’ Compensation 

Benefits in More than One State 

Generally, receiving workers’ compensation 

benefits paid from one state will not 

bar a claimant’s right to file a claim for 

benefits in another state, although most 

statutes usually prevent duplicate recoveries 

for the same injury. For example, when 

workers’ compensation benefits are volun- 

In some states the 

workers’ compensation 

statutes provide that 

recovery of out of state 

workers’ compensation 

benefits precludes a claim 

for benefits in that state 

under certain circumstances. 

tarily paid under the state law in which the 

employer’s principal place of business is located, 

the benefits will usually be credited 

against a subsequent award if the claimant 

ultimately files his or her workers’ compensation 

claim in another state. However, 

in some states the workers’ compensation 

statutes provide that recovery of out of state 

workers’ compensation benefits precludes 

a claim for benefits in that state under certain 

circumstances. See, e.g., Plante v. North 

Dakota W.C.B., 455 N.W.2d 195 (N.D. 1990) 

(explaining limitation when the employee 

received benefits in another state). In Tennessee, 

a claimant is barred from receiving 

additional workers’ compensation benefits 

only if receipt of such benefits was a knowing 

and voluntary election. See Eadie v. 

Complete Co., Inc., 142 S.W.3d 288 (Tenn. 

2004) (holding that the claimant was precluded 

under the election- of- remedy doctrine 

from pursuing benefits in Tennessee). 

Independent Contractor Status 

The trucking industry relies heavily on the 

use of independent contractors to operate 

their businesses. Workers’ compensa- 


Trucking Law 

tion claims that can be brought in multiple 

states give rise to the potential dilemma 

that an independent contractor will be 

treated as an employee and entitled to 

workers’ compensation benefits. The determination 

of whether an owner- operator 

or lessor is an independent contractor is 

complicated by various federal and state 

laws and regulations. Federal regulations 

The determination of 

whether an owner- operator 

or lessor is an independent 

contractor is complicated 

by various federal and state 

laws and regulations. 

impose very specific requirements on lease 

agreements between motor carriers and 

lessors of commercial vehicles. Specifically, 

a motor carrier is required to contractually 

agree in the lease to have exclusive possession 

and control over the leased equipment. 

In the past, states had found the 

existence of an employee relationship based 

on the control required to be contractually 

agreed to pursuant to federal regulation. 

For example, an independent contractor 

was found to be an employee for the purposes 

of workers’ compensation in Roberson 

v. Industrial Comm’n, 866 N.E.2d 191 

(Ill. 2007). In that case, the truck driver 

was injured while delivering a load of steel 

coils for P.I. & I. Motor Express, Inc. The 

parties had executed an independent contractor 

agreement that adhered to the specific 

federal regulation requirements. The 

Illinois Supreme Court upheld the commission’s 

determination that the claimant 

was an employee, which was based in part 

on a finding that even though federal regulations 

imposed the exercise of control 

provided in the lease agreement, the motor 

carrier’s control was not diminished. However, 

the more recent trend among courts 

is to find that the federal regulations cannot 

create an employment status when one 

does not otherwise exist. See Wilkinson 


ex. rel Wilkinson v. Palmetto State Trans. 

Co., 676 S.E.2d 700 (S.C. 2009) (noting that 

“federal law not intended to affect a state 

court’s determination of the relationship 

between a carrier and lessor of equipment 

under workers’ compensation laws” and 

citing 49 C.F.R. §376.12(c)(4) (2008) “(providing 

that imposing ultimate responsibility 

on a carrier under federal law is not 

‘intended to affect whether the lessor or 

driver provided by the lessor is an independent 

contractor or an employee of the 

authorized carrier lessee’).”). 

Many states exclude independent contractors 

from eligibility for workers’ compensation 

benefits by specific statutory 

exemptions. Missouri’s workers’ compensation 

act contains a provision that 

excluded an owner operator of a vehicle 

leased or contracted to a for-hire motor 

carrier from employee status under its 

workers’ compensation laws. Missouri Stat. 

§287.020. In some states, workers’ compensation 

only covers those persons falling 

under the definition of “employee,” 

and through statutory interpretation, independent 

contractors have been excluded 

though not specifically mentioned. Other 

states use a common law test in deciding 

whether a driver is an independent contractor 

or an employee for workers’ compensation 

purposes, and the test usually 

focuses on the right of control. 

One way to limit exposure to workers’ 

compensation liability for independent 

contractors is to require an independent 

contractor to obtain his or her own coverage 

as a condition in the contractual 

agreement. These policies are often called 

“occupational disability” policies. Tennessee, 

by statute, allows a lessor or owner 

operator to elect to be covered under a 

workers’ compensation covering the carrier 

without affecting the status of independent 

contractor for any other purpose. 

Tenn. Code §50-6-106(B). 

Subrogation 

Often an over-the-road driver’s injuries 

are caused by the acts of a negligent third 

party, giving rise to a potential third-party 

claim. When multiple states potentially 

have jurisdiction over not only the workers’ 

compensation claim but also the potential 

third-party claim, complex issues of choice 

of law often arise. In most states when via- 

ble third-party claims exist as a result of 

a worker’s injuries, usually the employee 

is not entitled to receive a settlement for 

tort and workers’ compensation benefits. 

Essentially, the workers’ compensation 

insurer is entitled to be reimbursed or subrogated 

against any third-party recovery. 

Sometimes, a tort claim involves contract 

claims for uninsured (UM) and underinsured 

(UIM) motorist coverage. Whether 

the insurer or employer is entitled to be 

subrogated against a third-party recovery 

involving the payment of UM or UIM 

proceeds will depend on where the lawsuit 

is ultimately brought. Some states restrict 

an insurer or employer’s ability to recover 

against an award from a UM or UIM policy, 

and sometimes it depends on whether 

the policy is purchased by the employer or 

the injured worker. For example, in Hannigan 

v. W.C.A.B., 860 A.2d 632 (Pa. Cmwlth. 

2004), an employer was found entitled to 

be subrogated against UM benefits that 

the claimant received under a customer’s 

motor vehicle insurance policy. Under 

Connecticut law, an employer has no claim 

against a UM provision of the employer’s 

policy. Matteo v. Alvarez, 729 A.2d 253 

(Conn. 1999). In Rooney v. Fireman’s Fund 

Ins. Co., 645 A.2d 52 (N.H. 1994), the court 

held that under New Hampshire law an 

employer is entitled to a lien against proceeds 

recovered from a UM policy that the 

injured worker purchased. South Dakota 

allows an insurer that provides workers’ 

compensation benefits to be reimbursed 

from UM and UIM benefits recovered 

from a policy purchased by the employer. 

Other states preclude subrogation rights 

against UM and UIM benefits based on 

their interpretation of the particular statute. 

For example, in Berna-Mork v. Jones, 

498 N.W.2d 221 (Wis. 1993), the court held 

that under Wisconsin law the insurer had 

no right of reimbursement for UM coverage 

available to the employee since the claim 

was based on a contract and the statutory 

subrogation rights were limited to claims in 

tort. The court reached a similar result in 

Yaakub v. Aetna Cas. & Sur. Co., 882 S.W.2d 

743 (Mo. Ct. App. 1994), finding that the 

insurer was not entitled to credit for the 

amount received from the UM carrier since 

the carrier was not considered a third person 

within the meaning of the applicable 

Missouri statute.

Jurisdictional Causes 

One way to control forum shopping is to 

use jurisdictional clauses in employment 

agreements, but only a minority of states 

expressly will allow them, and these states 

impose specific requirements before the 

courts will uphold such agreements. Those 

states recognizing such clauses include: 

Alabama, Alaska, Delaware, Idaho, Kentucky, 

Missouri, Ohio, Pennsylvania, Texas, 

Washington, and West Virginia. Absent an 

express statutory provision approving the 

use of jurisdictional clauses, other states 

apply principles of common law in deciding 

whether the agreements are valid. Of 

those states which recognize jurisdictional 

clauses, some do not allow the agreements 

to preclude an entitlement to benefits for 

in-state injuries. For example, in McIlvainie 

Trucking, Inc. v. W.C.A.B., 810 A.2d 

1280 (Pa. 2002), an injured driver was held 

entitled to workers’ compensation benefits 

under Pennsylvania’s workers’ compensation 

act notwithstanding a contractual 

clause that West Virginia law would control. 

The court’s finding that the statute, 

which allows an employee whose duties 

require regular travel to another state specify 

that his or her employment is localized 

in another state by written agreement, 

does not permit parties by agreement to 

overcome the statute’s coverage for instate 

injuries. Other states will not uphold 

an exclusive jurisdiction agreement if an 

employee entered into a contract of hire in 

their states. For example in Steeley v. Boweil 

Storage & Transit Co., 583 N.E.2d 354 (Ohio 

Ct. App. 1989), the court reversed the lower 

court summary judgment when factual 

questions remained whether the agreement 

binding the employee to the workers’ compensation 

laws of another state fully complied 

with the statute’s requirement that 

the parties enter into the contract outside 

the state and the employee perform all or 

some portion of the work outside the state. 

By statute, Alabama law allows parties to 

confer jurisdiction of the workers’ compensation 

laws of a particular state when 

an employee regularly travels in more than 

one state. See Heather v. Tri-State Motor 

Trans. Co., 644 So. 2d 25 (Ala. Civ. App. 

1994) (holding valid the agreement providing 

that Missouri law exclusively would 

govern workers’ compensation claims). 

Some states require a nexus between a 

claimant’s employment activities and the 

chosen state law before validating such an 

agreement. For example, in Cawyer v. Continental 

Exp. Trucking, 932 P.2d 509 (N.M. 

Ct. App. 1996), the court refused to put into 

effect a clause in an employment contract 

providing that Arkansas law would govern 

workers’ compensation claims when the 

employee routinely traveled between New 

Mexico and California for work and had 

only made four isolated trips to Arizona. 

Return to Work Programs 

Most states provide that if an employee 

recovering from a work injury unjustifiably 

refuses suitable employment consistent 

with his or her physical restrictions, he 

or she cannot receive benefits is suspended 

during the period of refusal. For motor carriers 

with employees living in a broad geographical 

region, implementing a return to 

work program can pose challenges. Often, 

suitability of an offer of work can and does 

include consideration of geographic loca- 

Heavy Truck Crash Investigations 

tion of the offered work. Motor carriers 

can have difficulty implementing return to 

work programs when they have workforces 

spread across the United States. 

In March 2012, the Iowa Supreme Court 

ruling in Neal v. Annett Holdings, Inc., 814 

N.W.2d 512 (Iowa 2012), seemingly invalidated 

a centralized light-duty program that 

the employer had in place for nearly 20 years 

when a workers’ compensation claimant 

lived approximately 400 miles away from 

the site of the program primarily because 

the Court deemed that an unreasonable distance 

to require a injured worker to travel. 

The claimant, a flatbed, over-the-road truck 

driver for Annett Holdings, was injured in 

the course of his employment. He was released 

to return to work with restrictions 

preventing him from resuming his overthe-road 

driving duties. When the claimant 

was insured Annett Holdings had a 

centralized light-duty program located at 

its headquarters in Des Moines, Iowa, some 

387 miles from his home of Grayville, Illi- 

Educational Article: Energy vs. Inertia Reconstruction Models 

Read Online: www.robsonforensic.com/library/files/Articles/TruckRecon.pdf 

Most automobile crash reconstructions are performed using the Conservation of 

Inertia (COI) method. This method is acceptable and appropriate for similarly sized 

vehicles; however, as the difference in mass between the colliding vehicles grows 

(such as heavy truck-automobile collisions), the COI method becomes increasingly 

sensitive to uncertainties in impact and departure angles. Using the Conservation 

of Energy (COE) method may be more 

reliable in heavy truck-automobile 

crashes as it does not depend on the 

Engineers, Architects, Scientists & Fire Investigators angles of impact and departure. 

Read More Online: www.robsonforensic.com/library/files/Articles/TruckRecon.pdf 

www.robsonforensic.com | 800.813.6736 


Trucking Law 

nois. As part of this program, Annett Holdings 

offered employees lodging while in Des 

Moines and transportation to return home 

every other weekend. It also offered on-site 

physical therapy, fitness and examination 

rooms, and a swimming pool for rest and 

recuperation. Upon release to a modified 

work status, Annett Holdings extended a 

temporary light-duty position to the claim- 

Motor carriers can have 

difficulty implementing 

return to work programs 

when they have 

workforces spread across 

the United States. 

ant at the headquarters. He declined this 

offer, and Annett Holdings responded by 

terminating his weekly workers’ compensation 

benefits as allowed under Iowa Code 

§85.33(3), which reads: 

If an employee is temporarily, partially 

disabled and the employer… offers… 

suitable work consistent with the 

employee’s disability the employee shall 

accept the suitable work, and be compensated 

with temporary partial benefits. 

If the employee refuses to accept the 

suitable work with the same employer, 

the employee shall not be compensated 

with temporary partial, temporary total, 

or healing period benefits during the 

period of the refusal. 

On the appeal, the court majority noted 

that many states expressly require the consideration 

of the location of work in determining 

an employee’s eligibility for 

workers’ compensation benefits, and other 

jurisdictions have permitted the consideration 

of distance when the applicable statute 

does not explicitly direct employers or 

courts how to assess “suitable work.” Michigan, 

Nevada, and Oregon each require the 

consideration of distance of suitable work in 

workers’ compensation disputes. Alabama, 

the District of Columbia, Florida, Georgia, 

Indiana, North Carolina, North Dakota, 


Pennsylvania, Tennessee, and Virginia have 

all permitted considering distance. Id. at 

520–22. Ultimately, the majority opinion 

determined that Iowa Code §85.33(3) required 

taking the distance between an 

employee’s residence and the location of 

light-duty work into account when determining 

whether an employer had offered 

“suitable work,” and the majority opinion, 

therefore, approved the final agency decision 

finding Annett Holdings’ offer of light 

duty work to the claimant was not suitable. 

The majority opinion noted that “no evidence 

in the record (establishes) that Neal 

agreed as a condition of employment to any 

relocation that Annett Holdings might require.” 

Id. at 525. The dissenting opinion, 

while repeatedly acknowledging that “geographic 

proximity is a factor to be considered,” 

expressed that “it is not the same kind 

of factor in every employment context” and 

elaborated: 

Geography has a different significance 

in different situations. I would hold 

that “suitable work” for purposes of 

Iowa Code §85.33(3) may require the 

employee to travel temporarily so long as 

the work is offered in good faith to meet 

the needs of the company and the travel 

is at the employer’s expense. 

In conclusion, the dissenting opinion 

decried the notion that distance alone 

should constitute the sole ground for deeming 

an offer of light-duty work “unsuitable,” 

explaining that when an employer comes 

up with a seemingly logical plan to assign 

useful tasks to its injured employees while 

helping them recover from their injuries, 

an agency or a court should not dismiss 

that plan out of hand simply because it will 

take the employee temporarily away from 

home at the employer’s expense. 

Motor carriers will continue to face challenges 

to otherwise seemingly valid return- 

to- work programs when they require an 

injured worker to travel or to be away from 

home for periods of time while recovering 

from an injury. One possible solution 

is to include a provision in an employment 

agreement that requires all employees to 

agree to a temporary relocation to the site 

of the return to work program in the event 

of a work injury. 

Compensation Rate Issues 

Over-the-road drivers present unique wage 

issues when computing workers’ compensation 

benefits. Generally, they do not work 

for an hourly wage. Rather, they are paid per 

mile or per load. Additionally, some companies 

provide their drivers with safety 

bonuses, fuel bonuses, and loading or unloading 

pay. Moreover, many carriers provide 

their drivers with per diem payments 

or expense reimbursements, which may or 

may not be included in wages depending 

on the state where a driver pursues a claim. 

Reimbursements for work- related 

expenses generally do not result in income 

to the employee and should not be included 

in wages. However, when expense reimbursements 

exceed a worker’s actual 

expenses, an employer can treat the excess 

as income and include it in wages for purposes 

of calculating workers’ compensation 

benefits. As mentioned, over-the-road 

drivers often receive per diem payments. 

Some courts exclude these payments from 

wages while others include them. For 

example, in Hackett v. Western Express 

Inc., 21 A.3d 1019 (Me. 2011), the court 

excluded from the wage calculation the per 

diem payments that the employer made 

to the claimant to cover expenses that 

covered lodging, meals, and phone calls, 

characterizing them as special expenses 

incurred due to the nature of the employment 

and not fringe benefits. However, in 

Cadwell v. Delta Exp. Inc., 278 S.W.3d 251 

(Mo. Ct. App. 2009), the court held that 

to calculate wages properly required including 

the per diem payments because an 

employee received them if he or she was on 

the road at least 24 hours during a shift, he 

or she received a set amount regardless of 

whether he or she spent the money, and the 

employer had not restricted how he or she 

could spend them. Sometimes companies 

pay a per mile per diem to their drivers. 

Court decisions have conflicted when they 

have evaluated whether to include these 

payments in wage calculations. For example, 

in Baylog, Inc. v. Indus. Claims Appeals 

of Colo., 923 P.2d 361 (Colo. Ct. App. 1996), 

the court held that a four-cent per mile 

payment did not constitute wages because 

it was not considered as wages for federal 

tax purposes. Contrarily, the court in Scyphers 

v. H & H Lumber, 774 P.2d 393 (Mont. 

1989), held that a three-cent per diem was 

properly included in the claimant’s wage 

Over-the-Road , continued on page 91

Trucking Law 

For Better or for Worse 

By Kenneth P. Abbarno 

and David A. Valent 

Despite the delay, 

truckers, carriers, and 

attorneys who practice 

trucking litigation can 

rest assured that the 

FMCSA will continue 

to take steps to increase 

the use of EOBRs 

throughout the industry. 

The Future of 

Electronic On-Board 

Recorders 

The mandatory implementation of electronic on-board 

records (EOBR), as well as their benefits and burdens, has 

been debated by those in government and those in the 

commercial transportation industry for years. Numerous 

legislative measures have been passed 

regarding these issues, and each has come 

with a balance of support and opposition. 

The greatest supporter is the Federal Motor 

Carrier Safety Administration (FMCSA), 

which believes that implementing EOBRs 

will affect driver safety by reducing hours of 

service (HOS) violations and driver fatigue. 

Further support also comes from many 

larger commercial carriers and transportation 

associations that have the funds and 

resources readily available to implement 

this technology. Mostly smaller carriers and 

independent drivers and organizations oppose 

using EOBRs, viewing them as intrusive 

and harassing to drivers, too costly, and 

not having real benefit. 

Against this backdrop, this article will 

analyze the history of EOBR legislation, the 

purported purpose of it, what the future 

may hold for EOBRs, and the potential 

effect EOBR laws might have on drivers, 

motor carriers, and the defense of motor 

vehicle accident lawsuits. 

Background 

Federal regulators have long limited the 

number of hours that commercial truck 

drivers may operate their vehicles each day 

and over the course of a week. Traditionally, 

commercial drivers have worked to 

ensure compliance with HOS requirements 

by recording their hours in paper logbooks, 

(referred to a driver’s record- of- duty status, 

49 C.F.R. §395.8). Indeed, federal law 

requires individual drivers to keep copies 

of their records- of- duty status for seven 

days and then submit the records to their 

motor carriers, which must retain them for 

six months. 49 C.F.R. §395.8(k). 

Aside from addressing the mechanism 

used to keep track of the number of hours 

worked, which is the primary focus of 

this article, it is also important to note 

that regulations governing HOS have also 

recently changed. The FMCSA published a 

“final rule” concerning HOS in December 

of 2011, which requires compliance as of 

July 1, 2013. The new HOS rule reduces by 

■ Kenneth P. Abbarno is a co-chair of Reminger’s Transportation Committee, practicing from the firm’s 

Cleveland, Ohio, office. His practice includes frequent representation of clients in the transportation industry 

and his trial experience includes well over 50 civil lawsuits. Mr. Abbarno is also involved with Reminger’s 

catastrophic response team. David A. Valent has experience working with a wide array of practice groups at 

Reminger. One of his primary focuses is in the area of transportation litigation. 


Trucking Law 

12 hours the maximum number of hours 

that a truck driver can work within a week. 

Under the old rule, truck drivers could 

work on average up to 82 hours within a 

seven-day period. The new HOS rule limits 

a driver’s workweek to 70 hours. In addition, 

a commercial driver cannot drive 

after working eight hours without first taking 

a 30- minute break. Drivers can take 

The FMCSA believes that 

the use of EOBRs will reduce 

fatigue- related crashes 

that can be associated 

with faulty logging. 

30- minute breaks whenever they need resting 

during that eight-hour window. The 

rule does retain the current 11-hour daily 

driving limit for property carrying drivers. 

The rule also provides a “34-hour restart” 

provision, which allows drivers to restart 

the clock on their workweek by taking at 

least 34 consecutive hours off duty. The rule 

also allows drivers to use this restart provision 

only once during a seven-day period. 

In light of the new HOS rule, the FMCSA is 

also working diligently to ensure that operators 

comply with the rule and to ensure 

that they document compliance well—with 

a push toward implementing using EOBRs. 

Purported Purpose of the 

EBOR Legislation 

According to the FMCSA, “falsification of 

logbooks… [is] widespread.” See Pub. Citizen 

v. Fed. Motors Carriers Safety Admin., 

374 F.3d 1209, 1214 (D.C. Cir. 2004). The 

FMCSA believes that drivers falsify logbooks 

so that they can work longer hours. 

Longer hours can lead to fatigued driving. 

Statistics show that carriers with HOS violations 

greater than 10 percent for any single 

DOT compliance review have a 40 percent 

higher crash rate than the general motor 

carrier population. Owner- Operator Indep. 

Drivers Ass’n (OOIDA) v. Fed. Motor Carriers 

Safety Admin., 656 F.3d 580, 585 (7th 

Cir. 2011) (citing 75 Fed. Reg. 17,211 (Apr. 


5, 2010). The FMCSA believes that the use of 

EOBRs will reduce fatigue- related crashes 

that can be associated with faulty logging. 

Recent Legislation 

For many years, legislators and the commercial 

transportation industry have 

debated the cost- benefit analysis of replacing 

paper logbooks with electronic documentation, 

as well as what role electronic 

GPS tracking should play in the trucking 

industry. At the start of this debate more 

than two decades ago, Congress began 

contemplating rules mandating the use of 

electronic monitoring devices in the commercial 

driving setting: See Truck and Bus 

Safety and Regulatory Reform Act of 1988. 

Electronic On-Board Recorders for Hours- 

of- Service Compliance, 72 Fed. Reg. 2340, 

2341 (proposed Jan. 18, 2007). 

Since that time, the federal law has undergone 

many changes to incorporate and 

expand electronic tracking devices into the 

commercial transportation industry. Most 

significantly, on June 5, 2010, the FMCSA 

amended the Federal Motor Carrier Safety 

Regulations (FMCSRs) to incorporate new 

performance standards for EOBRs installed 

in commercial vehicles manufactured on 

or after June 4, 2012. The rule, known as 


of- Service Compliance, was set to incorporate 

new performance standards for EOBRs 

installed in all commercial motor vehicles 

(CMV) manufactured on or after June 4, 

2012. 49 C.F.R. §350, et seq.; Electronic On- 

Board Recorders for Hours- of- Service Compliance, 

Final Rule, 75 Fed. Reg. 17,208 (Apr. 

5, 2010). The rule also would have required 

motor carriers that have demonstrated “serious 

noncompliance” with the HOS rules 

to install EOBRs as of June 4, 2012, on all 

CMV, regardless of when a vehicle was 

manufactured. 

However, on May 14, 2012, the FMCSA 

decided to rescind the electronic on-board 

recorder hours- of- service rule so that it 

would not take effect on June 4, 2012. See 


of- Service Compliance; Removal of Final 

Rule, 77 Fed. Reg. 28,448 (May 14, 2012). 

The FMCSA made this decision in direct 

response to a Seventh Circuit Court of 

Appeals case, Owner- Operator Indep. Drivers 

Ass’n (OOIDA) v. Fed. Motor Carriers 

Safety Admin., 656 F.3d 580 (7th Cir. 2011), 

which vacated the rule, finding it arbitrary 

and capricious since it failed to “ensure 

that the devices are not used to harass 

vehicle operators.” See 49 U.S.C. §31137(a). 

The Seventh Circuit decided the case after 

three commercial truck drivers and a drivers’ 

association sought the Courts’ review 

on several grounds. 

Although this rule was recently 

rescinded, it established the ground work 

for additional legislation, such as the Moving 

Ahead for Progress in the 21st Century 

Act (MAP-21), Highway Transportation 

Bill, H.R. 4348 (discussed more below), 

so it is worthy of review and understanding. 

In initially creating the rescinded 

rule, the FMCSA defined “electronic onboard 

recorder” as an electronic device 

that is capable of recording a driver’s HOS 

and duty status accurately and automatically. 

49 C.F.R. §395.2 (2011). The electronic 

on-board recorder hours- of- service 

rule required that EOBRs must be synchronized 

integrally with a truck’s engine. 

This would link the device simultaneously 

to both the truck engine and the driver’s 

telephone so that it could send contemporaneous 

updates either through cellular 

technology or satellite to a remote server. 

To meet the agency’s now- rescinded performance 

requirements, an adequate EOBR 

would have needed the capability to record 

an extensive amount of data. The agency 

required an EOBR to record the truck’s 

registration number, the date and time, 

the truck location, the distance traveled, 

the driver’s hours in each duty status for a 

24-hour period, the motor carrier’s name 

and Department of Transportation number, 

the weekly basis used by the motor carrier, 

either seven or eight days, to calculate 

cumulative driving time, and even the document 

numbers or name of the shipper and 

shipped goods. See 49 C.F.R. §395.16 (2010). 

In the recent months since the Seventh 

Circuit Court vacated the rule, Congress 

and the President already have made 

progress to overcome the setback. On July 

6, 2012, the President signed into law the 

Moving Ahead for Progress in the 21st Century 

Act, (MAP-21), Highway Transportation 

Bill, H.R. 4348, which has a provision 

on EOBR use. This law provides $105 billion 

for the nation’s surface transportation programs 

and has a very broad goal to make 

funds available to repair the nation’s crum-

ling roads and bridges. It also seeks to 

reform federal transportation programs, to 

reauthorize the National Flood Insurance 

Program, and to create jobs in the transportation 

industry. One MAP-21 provision 

also requires commercial trucks to have 

EOBRs, or as they are also called, “electronic 

logging devices” (ELDs). 

The MAP-21 legislation calls for the 

FMCSA to create detailed regulations concerning 

the use and implementation of 

EOBRs within one year after the enactment 

of the law, which means July 2013. The law 

also requires the regulations to take effect 

two years afterward. This new highway bill 

largely mirrors the goals of the EOBR and 

hours- of- service regulations set to take 

effect on June 4, 2012, but which the Seventh 

Circuit struck down. The question 

thus becomes whether this new law, MAP- 

21, will also meet resistance. 

To answer that question, on the very 

same date that Congress enacted MAP- 

21, Rep. Jeff Landry (R-LA) and Rep. Nick 

Rahall (D-WV), launched an attempt to 

strip away funding for the EOBR mandate 

by co- introducing an amendment (the 

Landry- Rahall Amendment) to a different 

piece of legislation, the U.S. Department of 

Transportation (DOT) appropriations bill. 

The appropriation bill allocates money for 

the DOT for fiscal year 2013. The House has 

already passed the Landry- Rahall Amendment 

and reads: “[N]one of the funds made 

available by this Act may be used to promulgate 

or implement any regulations that 

would mandate global positioning system 

(GPS) tracking, electronic on-board recording 

devices or event recorders in passenger 

or commercial motor vehicles.” Those 

in favor of the Landry- Rahall Amendment 

argued that the federal government 

should not require EOBRs in commercial 

transportation because it would affect 

small business owners negatively—specifically 

small motor carrier operations. The 

primary concerns are that EOBRs cost a 

great deal to use and do not offer much 

benefit. Although the House has approved 

this amendment, the Senate has not yet 

approved it. Accordingly, it will not necessarily 

become law. Thus, we remain in 

a holding pattern on whether or when the 

federal government will mandate that the 

commercial transportation industry use 

EOBRs. 

The Future 

Since the recently passed MAP-21 has 

already met efforts to nullify its implementation, 

we need to look elsewhere to try 

to imagine what the future might hold for 

EOBRs. Speaking at the Commercial Carrier 

Journal’s Spring Symposium on May 

22, 2012, the administrator of the FMCSA, 

Anne S. Ferro, announced that the FMCSA 

is preparing a supplemental notice of proposed 

rulemaking on EOBR that plans to 

issue at the end of 2012 or in 2013. Further, 

in August of 2012, Administrator Ferro 

admitted that “[t]he OOIDA lawsuit [656 

F.3d 580 (7th Cir. 2011)] sent us back to 


Trucking Law 

the drawing board on driver harassment.” 

However, she said that the FMCSA has 

been working to identify the right technical 

specification, and the new rulemaking 

“is definitely on the way.” 

Proponents of an EOBR mandate argue 

that irrespective of whether funding is 

allocated for the implementation of MAP- 

21, the FMCSA has adequate authority and 

resources to implement regulations concerning 

EOBR use, even if the DOT appropriations 

bill fails to provide additional 

funding. Proponents of using EOBRs further 

point out that after the OOIDA v. Fed. 

Motor Carriers Safety Admin., 656 F.3d 580 

(7th Cir. 2011), lawsuit setback, the FMCSA 

received its marching orders to go forward 

with revising a plan to implement EOBRs. 

In other words, many believe that nothing 

in the Landry- Rahall Amendment would 

prevent the FMCSA from going ahead with 

its ongoing EOBR rulemaking. According 

to the FMCSA calendar, it indeed plans 

to issue a supplemental notice of proposal 

making early in 2013, which will trigger a 

public comment, and ultimately, lead to the 

release of the final EOBR rule. 

In addition, many influential groups 

associated with the trucking industry, including 

the National Transportation Safety 

Board, the American Trucking Association, 

the Teamsters Union, and the Commercial 

Vehicle Safety Alliance, have all 

taken positions in favor of advances in 

EOBR or embracing electronic logging 

devices. There is no doubt these groups 

will continue to push for the changes that 

they support. 

Potential Effect of Future EOBR Laws 

on Drivers and Motor Carriers 

Let us start by addressing the possible benefits 

of EOBRs. Using EOBRs is touted to 

improve driver log and tracking accuracy. 

This in turn should help reduce HOS violations. 

Of course, preventing HOS violations 

hopefully would decrease driver fatigue on 

the roadway and decrease the number of 

fatigue- related accidents. Ideally, this would 

lead to fewer injuries, claims, lawsuits, and 

of course, lower insurance premiums. 

Also, some analysts suggest that using 

EOBRs would save a driver on average 15 

minutes per day. This time could be spent 

more productively either driving or resting. 

To that end, the American Trucking 


Association supports electronic logging 

devices. The president of the American 

Trucking Association, Bill Graves, believes 

that EBORs are an “important safety technology 

on all trucks.” 

Interestingly, in looking at the data from 

those companies that already use EOBRs, 

the American Transportation Research 

Institute found that 76 percent of carriers 

and drivers said that using electronic 

logging devices actually improves driver 

morale. Presumably, this is because the 

automatic mechanisms designed to capture 

HOS relieve a driver of the stress and 

time associated with documenting and 

capturing his or her HOS accurately and 

contemporaneously. 

In opposition to mandatory EOBRs, 

the Owner- Operator Independent Driver’s 

Association (OOIDA), opposes industry 

wide implementation. The executive 

vice president of OOIDA, Todd Spencer, 

said that the organization’s “members 

see no reason for the costly government 

surveillance that such a mandate would 

entail.” Spencer further believes “such a 

mandate would be a step backward in the 

effort toward highway safety and is an 

overly burdensome regulation that simply 

runs up cost for the majority of trucking, 

which is small- business.” In line with 

this concern, the Seventh Circuit Court 

in the OOIDA decision specifically stated 

that the “[FMCSA] needs to consider what 

types of harassment already exist, how frequently 

and to what extend harassment 

happens, and how an electronic device 

capable of contemporaneous transmission 

of information to a motor carrier will guard 

against (or fail to guard against) harassment.” 

656 F.3d at 588–89 (7th Cir. 2011). 

Also on the downside, replacing paper 

logs with EOBRs will require carriers to 

modify their daily operations. There will be 

a learning curve to understand how EOBRs 

operate and how to ensure that drivers 

comply with HOS rules. Using an EOBR 

may also reduce a driver’s privacy and 

sense of independence. Using them also 

likely will result in electronic or computer- 

based HOS recording errors. 

Finally, implementing new equipment 

capable of electronically recording HOS 

will have a cost. The FMCSA puts the estimated 

cost of electronic logging devices 

between $500 and $800 a year, per vehicle. 

This cost probably will affect smaller carriers 

the most significantly because they 

seem less able to absorb cost increases. 

As a result, several groups in addition to 

OOIDA, such as the National Association of 

Small Trucking Companies, oppose mandating 

EOBR use. 

Aside from the effect on drivers and 

motor carriers, another important thing 

to consider is how EOBRs will affect the 

defense of motor vehicle accident lawsuits. 

Many plaintiff attorneys currently try to 

focus on paper logs or DOT logbook violations 

or both to suggest that a driver was 

over his or her allowable hours, fatigued, 

or at fault simply for driving when he or 

she was supposed to be idle. Currently, in 

many lawsuits the commercial driver has 

not acted negligently, but defending him or 

her becomes difficult because of poor documentation 

in log books, lost log books, or a 

history of driving over the allowable hours. 

Presumably, EOBR data will help improve 

compliance with HOS requirements and 

will also help establish reliable evidence 

that a driver has not violated HOS requirements. 

The electronic data ideally will help 

serve as a reliable and definitive piece of 

forensic evidence to help establish a driver’s 

actions before an accident. With EOBR 

data, a driver will also be less susceptible 

to cross- examination that the logs were 

“fudged” or altered. 

Although some large motor carriers 

already use the basic technology behind 

EOBRs, in the years to come, we can expect 

to see EOBR data evidence in nearly every 

case that we handle. Accordingly, it is wise 

to make our drivers aware that if they have 

an electronic tracking device in their vehicles, 

the information stored will likely be 

used either to their benefit or detriment in 

the event of accidents. We hope that it will 

be used more often to their benefit. 

Conclusion 

In the end, despite the delay, truckers, carriers, 

and attorneys who practice trucking 

litigation can rest assured that the FMCSA 

will continue to take steps to increase the 

use of EOBRs throughout the industry. 

With many major trucking associations 

also on board, it is only a matter of time 

before fully recognized laws and regulations 

mandate using EOBRs for better or 

for worse.

Trucking Law 

I Want My Truck 

Back—Now! 

By Jay R. Starrett 

and Thomas Gonzalez 

Given the growing 

propensity of courts 

to sanction parties for 

spoliation in commercial 

motor vehicle claims, 

you need to take all 

possible steps to avoid the 

spoliation argument. 

Spoliation in Serious 

Commercial Motor 

Vehicle Cases 

Even the most experienced transportation lawyer faces 

challenges when the interests of an insured and a carrier 

start to diverge. The most common of these scenarios 

begins with the first notification of an accident involving 

serious injuries or death. Defense counsel 

already has a plan in place and dispatches 

his or her team, including the independent 

adjustor and reconstruction expert. Over 

the next several days, counsel ensures that 

the logs, bills of lading, driver’s qualification 

file, and all other relevant materials 

are preserved. He or she also interviews 

the driver, obtains all necessary government 

reports, preserves television footage, 

subpoenas DOT video, and checks Google 

maps, among other things, and with a 

preliminary analysis well under way, the 

carrier and counsel wait to hear from a 

plaintiff’s attorney. 

Everything is seemingly in hand, and 

then the inevitable call comes from the insured. 

The insured tells you that he needs 

to repair the truck and put it back into 

service. The company only has 20 power 

units, and keeping five percent of his revenue 

sitting idle may well put him out of 

business. Defense counsel tries to explain 

to the insured that the evidence needs to 

be preserved to avoid a potential spoliation 

claim. The insured doesn’t care what 

“spoils,” and tells you that he wants his 

truck back. You try gently to explain that 

the insured has a duty to cooperate under 

the policy. The insured could care less 

about the duty to cooperate since he may 

not be in business by the time a plaintiff 

presents a claim. Moreover, he contends 

that the accident was clearly not his fault, 

and while you agree, you try to explain that 

prematurely releasing the equipment back 

into service may undermine the ability to 

defend the company. 

While spoliation claims run the gamut 

in different jurisdictions, from sanctionable 

conduct to independent tort, the Wisconsin 

Supreme Court has provided a 

helpful primer that parties can use to minimize 

spoliation claims. Given the growing 

propensity of courts to sanction parties 

for spoliation in commercial motor vehicle 

■ Jay R. Starrett and Thomas Gonzalez are shareholders in the Milwaukee office of Whyte Hirschboeck 

Dudek SC. Mr. Starrett devotes the majority of his practice to the defense of motor carriers, bus operators, 

and insurers. His primary focus is catastrophic injury and death cases. Mr. Gonzalez has defended motor 

carriers, bus companies, and their insurers during his entire career. He serves as panel counsel for transportation 

insurers and handles all aspects of transportation claims from the emergency accident response 

through trial and appeal. 


Trucking Law 

claims, you need to take all possible steps 

to avoid the spoliation argument. Following 

these steps may save you from having 

to defend your insured’s, or your own, conduct 

in a future spoliation claim. 

Identify the American Family 

v. Golke Protocols 

In American Family v. Golke, 768 N.W.2d 

The American Family 

decision highlights one 

crucial factor: notice 

is paramount. 

729 (Wis. 2009), the Wisconsin Supreme 

Court addressed a spoliation claim that 

arose after the defendants’ alleged negligent 

roof repairs caused a fire. The trial 

court found that American Family failed 

to preserve pertinent evidence and failed 

to give the defendants sufficient notice of 

the claim and the impending destruction 

of the fire scene. As a result, the trial court 

dismissed the lawsuit as a sanction for spoliation 

of evidence. 

In reversing the trial court rulings, the 

Wisconsin Supreme Court held that the 

duty to preserve relevant evidence is discharged 

when a party or claimant with a 

legitimate reason to destroy evidence provides 

other interested parties with reasonable 

notice (1) of a possible claim, (2) the 

basis for the claim, (3) the existence of 

relevant evidence to the claim, and (4) a 

reasonable opportunity to inspect the evidence. 

The court went on to hold that mailing 

a letter via first class mail constitutes 

proper notice. 

The court also addressed the proper remedy 

for spoliation of evidence. It explained 

that dismissal as a sanction is only proper 

when a party acts egregiously, which it 

described as a conscious effort to affect the 

outcome of litigation or in conscious disregard 

of the judicial process. 

American Family had provided reasonable 

notice to the defendants. It sent a letter 

by first class mail but not certified dated 

March 13, 2000. The letter explained the 


nature of the claim and also explained, “To 

provide adequate time for yourself or your 

liability carrier to conduct a proper investigation, 

any destruction of the fire damaged 

building will not take place until April 1, 

2000.” American Family did not receive a 

response from any of the defendants or the 

liability carrier and sent a second letter by 

certified mail on April 6, 2000. Ultimately 

the building destruction did not begin until 

April 11, 2000. 

The court cited case law from other jurisdictions 

finding that the duty to preserve 

evidence is not perpetual and that a party 

may discharge the duty by providing reasonable 

notice and a reasonable opportunity 

to inspect. Generally, the specific method 

and frequency of notice is less significant. 

The trial judge’s role is to examine the facts 

and use his or her discretion to determine 

whether the content of the notice is sufficient. 

The court then listed relevant consideration 

such as “the length of time evidence 

can be preserved, the ownership of the evidence, 

the prejudice posed to possible adversaries 

by the destruction of the evidence, 

the form of notice, the sophistication of the 

parties, and the ability of the party in possession 

of the evidence to bear the burden 

and expense of preserving it.” 

Learn from American Family v. Golke 

The American Family decision highlights 

one crucial factor: notice is paramount. 

Whether by certified letter, the preferred 

method, fax, or phone call, you must advise 

a potential claimant of any impending 

repairs to a damaged vehicle. With a catastrophic 

or fatality claim this may seem 

awkward or counterintuitive. However failing 

to provide notice about impending 

repairs due to concerns that notice from 

defense counsel or a carrier may plant the 

seed for litigation pale in comparison to the 

ramifications for failing to preserve evidence 

properly in a large lawsuit. 

The decision also highlights the importance 

of involving a qualified accident 

reconstructionist. The initial inspection 

work done generally is the same whether 

conducted by a plaintiff’s expert or a 

defense expert. Photographing a vehicle, 

measuring the vehicle, collecting electronic 

control module (ECM) or electronic onboard 

recording (EOBR) data, and measuring 

reflectivity often form the basic 

foundation for all expert opinions. In a 

worst case scenario, when a court rules 

that spoliation has occurred, the court 

may order your carrier client to provide the 

other side with your expert’s raw data, and 

it may be the only way to avoid a sanction. 

Of course you must do everything that 

you can to avoid relying on this last gasp 

option. The more time you can buy from 

your insured, the better. Communicating 

with an insured from the outset may make 

all the difference. If you make an insured 

immediately aware that it must maintain 

the evidence for a reasonable time, it may 

be in a better position to find alternative 

arrangements to help carry on its business. 

Give Reasonable Notice 

The multimillion dollar question is how 

much notice time is reasonable? The American 

Family court found that 19 days was 

reasonable based on the facts in that case. 

However, would that amount suffice for 

the grieving family, or a paralyzed party? 

Ultimately, the more notice the better. If 

after receiving notification, the claimants 

request more time, granting an extension 

will likely avoid a future spoliation claim. 

Attempting more than once to make 

contact may prove advantageous. A sanctions 

motion is much easier to defend when 

you have undisputed proof that you contacted 

the party more than once, and it did 

not respond within a reasonable period of 

time. Knowing your judges and venues is 

important because they may require you 

to provide more time. Of course, you may 

not have as much time as you want if an 

insured is adamant that a vehicle must be 

back on the road immediately. Even if you 

can only buy a week or two from an insured, 

follow the proper steps to minimize 

potential ramifications. The one option 

you do not have is to cross your fingers and 

hope that a lawsuit never comes. 

Deal Adequately with 

Uncontrollable Spoliation 

Many carriers and defense counsel find 

themselves faced with circumstances 

beyond their control and must deal with 

spoliation claims not of their own making. 

While this quandary may not seem 

fair, courts have handed down harsh rulings 

against carriers for spoliation claims 

in these circumstances.

In Ashton v. Knight Transportation, Inc., 

09-CV-0759, 772 F. Supp. 2d 772 (N.D. Tex. 

2011), the presiding judge issued an order 

striking the carrier’s responsive pleadings 

and liability defenses as a sanction for spoliation. 

The ruling left Knight defending a 

fatality claim solely on damages despite a 

viable liability defense. 

Ashton arose after Mr. Ashton’s vehicle 

was struck by an intoxicated driver. 

After the impact, Mr. Ashton was outside 

his vehicle. While he was on the roadway, 

a Knight truck then struck Mr. Ashton. 

Knight’s driver never stopped at the scene. 

A central issue in Ashton was whether 

Mr. Ashton was alive when he was struck 

by Knight’s truck. The plaintiff alleged that 

Knight spoliated evidence necessary to 

support the claim that Mr. Ashton was alive 

when the Knight truck struck his body. 

After leaving the scene, Knight’s driver 

drove the truck to another state, had the 

front tires replaced, and essentially abandoned 

the truck. Knight contended that the 

driver did these things without its knowledge 

or direction. After an evidentiary 

hearing, the court found that Knight must 

have known that its driver intended to have 

the tires replaced. 

Knight’s problems were compounded in 

the court’s view by the fact that it retained 

an investigator shortly after the accident. 

The court found that the investigator had 

hindered the criminal investigation by 

examining the truck before the Kansas 

Highway Patrol was allowed access to the 

vehicle and “stonewalling” the agency’s 

request for documents. 

The court explained that Knight obviously 

knew the importance of preserving 

evidence because it retained an investigator 

to perform an inspection. However, Knight 

still allowed its driver to replace the truck’s 

tires. The court also found that Knight’s 

failure to preserve satellite communications 

with its driver—despite a request to 

do so from a law enforcement agency—constituted 

bad-faith spoliation. The court’s 

opinion lists many factors that support its 

finding that the defendant intentionally destroyed 

evidence. The findings range from 

the seemingly innocuous, such as storing 

the truck outside where it was subject to the 

wind, to allegations of obstructing a criminal 

investigation. The evidentiary issues in 

Ashton are so compelling that the opinion 

should be required reading for all claims 

professionals or attorneys handling transportation 

claims. 

The concern for carriers, counsel, or 

insurers with rulings such as Ashton is 

that conduct beyond their control can ultimately 

cost dearly. If Knight’s driver had 

not fled the scene, Knight would have had 

a valid liability defense to the plaintiff’s 

claims. However, the driver’s conduct set 

off a chain of events that resulted in a 

default judgment. 

Act on the Two Main 

Case Law Lessons 

The lessons that the courts in American 

Family and Ashton provide is that notice 

and access is key. Allowing a driver to 

change a truck’s tires immediately after 

an accident may be a clear violation of 

the standard of care. However, providing 

notice and holding the truck for 30 days 

before changing the tires could avoid a 

finding of spoliation. Even if the old tires 

are not retained, which is certainly not 

recommended, the prospect of a spoliation 

finding is dramatically reduced if the 

adverse party or the adverse party’s counsel 

receives notice. 

The guiding principle to avoid spoliation 

claims should be that a carrier should never 

put a truck involved in a serious accident 

back into service without providing notice 

to the potential claimants. If a truck needs 

repairs, a carrier should send notice before 

repairing the truck. 

Counsel and claims professionals must 

balance the desires of carriers to put a 

vehicle back in service with the prospect 

for spoliation. As Ashton demonstrates, 

in some situations when a carrier cannot 

control spoliating conduct, nothing could 

stop a spoliation claim. However, as American 

Family explains, you and a carrier can 

reduce the prospect greatly by sending a 

simple letter. If an insured knows that some 

reason calls for putting a truck on a litigation 

“hold” for a designated period of time, 

the demands may quiet for long enough to 

allow you to send proper notice and avoid 

the spoliation problem. 

Remember an Insurer’s Heightened 

Duty to Preserve Evidence 

Claims professionals may feel additional 

pressure when dealing with insureds 

because courts have stated specifically that 

the law holds insurers to a higher standard 

on spoliation issues. In Powell v. Texvans, 

Inc., 2011 WL 1099120 (D. Nev. 2011), the 

district court found that a freightliner 

tractor- trailer had been repaired improperly 

before the plaintiffs had an opportunity 

to inspect the vehicle. Fortunately, the 

court did not impose sanctions for spolia- 

A carrier should never put 

a truck involved in a serious 

accident back into service 

without providing notice to 

the potential claimants. 

tion against the defendant and its insurer, 

noting that the insured driver had admitted 

that the accident was his fault. Thus, the 

court found that the repairs had not prejudiced 

the plaintiffs regarding their liability 

case. As the “near miss” issues from Powell 

demonstrate, a spoliation issue can arise 

from seemingly innocuous circumstances. 

Powell involved a rear-end accident. The 

accident occurred on June 11, 2008. On 

September 2, 2008, the plaintiffs’ counsel 

sent a letter to the insurance company, 

Great West Casualty Company, notifying 

it that the plaintiffs had retained counsel. 

The plaintiffs’ counsel followed up with 

another letter demanding an inspection 

of the tractor- trailer on October 15, 2008. 

The defense counsel responded that the 

tractor- trailer had been repaired two to 

three weeks after the accident and noted 

that neither the plaintiffs’ counsel nor his 

clients had asked for an inspection before 

the repairs happened. Moreover, the defense 

counsel noted that it was “important 

for defendants’ business to have the vehicle 

repaired and placed back in service.” 

The court held that the vehicle should not 

have been repaired without allowing the 

plaintiffs to inspect it first. The particular 

issue in Powell revolved around the tractor- 

trailer’s headlights and wiring system. The 

court explained, “an insurer or other experienced 

litigant is generally more likely 


Trucking Law 

to recognize the potential relevance of evidence 

and is, therefore, held to a higher 

standard regarding preservation than is a 

lay person who has no prior litigation experience.” 

The court went on to explain that 

because the tractor- trailer had collided with 

the plaintiffs’ vehicle causing Mr. Powell’s 

death, the defendant and the insurer should 

have known that it was likely that Mr. Pow- 

Some appellate courts 

have started to hold 

that failing to preserve 

electronic data constitutes 

sanctionable conduct. 

ell’s heirs or estate would pursue a wrongful 

death claim. The court further noted that 

while there was no evidence that the tractor- 

trailer’s headlights were not working properly, 

the fact that the insured driver did not 

see the plaintiffs’ vehicle “arguably raised a 

question as to whether the lights on either 

or both vehicles were operating properly.” 

The court stated that the defendants “acted 

precipitously in repairing the freightliner 

tractor and disposing of the headlights and 

wiring assembly without first determining 

whether the vehicle should be made available 

for inspection by plaintiffs.” 

While the court ultimately did not sanction 

the defendants in Powell, the repairs 

could have easily led to an Ashton- like situation. 

The court’s language that insurers 

or experienced insureds should reasonably 

expect or anticipate litigation from a fatality 

accident seems to raise the stakes for evidence 

preservation to elevate those stakes 

over the need to put a vehicle back into 

service. As documented in Powell, courts 

will find that parties need to allow the other 

side to inspect evidence if carriers intend to 

repair vehicles involved in fatal accidents. 

Offer a Claimant the Opportunity 

to Download Electronic Data 

A large wild-card for carriers and insurers 

in the evidence preservation arena is electronic 

control modules, or “ECMs,” and 


other electronic recording devices. Courts 

have split on whether failing to preserve 

electronic data constitutes spoliation. However, 

some appellate courts have started to 

hold that failing to preserve electronic data 

constitutes sanctionable conduct. In Cockerline 

v. Menendez, 411 N.J. Super. 596, 988 

A.2d 575 (N.J. Super. Ct. App. Div. 2010), 

the court found that the failure to preserve 

the data warranted an adverse instruction 

to the jury. 

Cockerline arose after an alleged phantom 

tractor- trailer struck another tractor- trailer 

causing it to strike the decedent’s stopped 

vehicle. The defendant was a UPS employee, 

and he was operating a vehicle equipped 

with an “in- vehicle information system” or 

“IVIS.” The system recorded data such as 

the vehicle’s speed and brake applications. 

UPS had a protocol in place that required 

the IVIS information to be stored on a UPS 

computer for 30 days unless the vehicle had 

been involved in a “serious” accident. If the 

accident was serious, the data was to have 

been printed out and retained. No repairs 

were to have been made to any UPS vehicle 

involved in a serious accident. The UPS vehicle 

involved in the accident was repaired 

several days after the accident, and the IVIS 

data was “purged” after 30 days. 

The court held that the trial judge had 

used an adverse spoliation instruction 

appropriately. The court noted that the 

plaintiff presented evidence that UPS had 

allowed the IVIS data to be purged even 

though under established policy it was 

usually analyzed even “in the case of a 

minor accident.” The court also noted that 

the roadway conditions at the time of the 

accident left the plaintiff with almost no 

evidence from which to reconstruct the 

accident and the case involved varied estimates 

of the UPS driver’s speed. Furthermore, 

the court noted that the IVIS data 

might have undercut the driver’s claims 

that he was unable to brake in time. 

After holding that the adverse instruction 

was appropriate, the court went on 

to note that the trial judge had appropriately 

allowed the plaintiff’s counsel to 

question witnesses regarding the destruction 

of the IVIS data in front of the jury. 

The court explained that the jury could 

not have assessed whether the inference 

was appropriate without hearing that testimony: 

“[T]he jury had to pick between 

the parties’ accounts of how and why the 

evidence was lost in deciding whether to 

accept or reject the spoliation inference.” 

The prospect of spoliation sanctions for 

failing to preserve electronic data raises 

significant problems for insurers and carriers. 

Many carriers only will download ECM 

data about DOT reportable accidents or 

use some other “serious” criteria. Cockerline 

serves as a warning that a carrier must 

follow a download policy strictly. Whether 

or not carriers or insurers mandate downloads, 

the spoliation prospect can still arise 

if a plaintiff cannot reconstruct an accident 

through other means such as by using an 

accident reconstructionist. 

Many small carriers do not have the necessary 

equipment to download data. In the 

inevitable tug of war between an insured 

and the insurer regarding putting a vehicle 

back in service, the best solution would be 

to follow the standard notification guidelines 

for electronic data. Advising a potential 

claimant that the claimant may inspect 

a vehicle should constitute sufficient notice 

that the claimant could have or could have 

had an expert download applicable data. 

Whether or not an insurer or carrier downloads 

is something that each entity will 

need to decide. Some carriers always download, 

and some carriers never download. 

However, failing to offer a claimant the 

opportunity to download may result in a 

spoliation sanction. 

Keep the Steps in Mind 

Ultimately, the protocols outlined in American 

Family, 768 N.W.2d 729 (Wis. 2009), 

could potentially avoid circumstances leading 

to spoliation claims such as those in 

Ashton, 772 F. Supp. 2d 772 (N.D. Tex. 

2011), or claims of improper conduct such 

as those raised in Powell, 2011 WL 1099120 

(D. Nev. 2011). Depending on the potential 

penalties for spoliation in the applicable 

jurisdiction, notifying a potential claimant 

of plans to put a vehicle back in service 

may make the difference between defending 

a questionable liability claim and losing 

defenses. Proper communication between 

claims professionals or counsel and the 

motor carrier can help balance the concerns 

over putting a truck back into service 

as soon as possible with protecting against 

the spoliation claim.

Trucking Law 

Aging Drivers and 

the Plaintiff Lawyers 

Who Love Them 

By Matthew P. Stone 

and Shawn Kalfus 

a look at some 

enlightening statistics 

about older drivers, the 

federal regulations that 

govern them when they 

operate commercial 

vehicles, and the laws that 

protect their privacy. 

Strengthen Your 

Defense and Protect 

Your Client’s Privacy 

You’ve just been hired to defend a motor carrier and its 

driver in a serious injury case. Your driver, operating a 

company- owned tractor- trailer on the highway in heavy 

rain, jackknifed the truck and struck the plaintiff’s vehicle. 

So far, so good. But wait, your driver just 

celebrated his seventy- first birthday. And, 

by the way, he currently takes medication 

for high blood pressure and recently 

started wearing prescription glasses and a 

hearing aid. Oh yeah, his medical history 

includes diabetes, arthritis, kidney stones, 

acid reflux, and prostate cancer. 

The plaintiff’s lawyer asks for your driver’s 

medical history and records in discovery. 

The lawyer plans to send subpoenas to 

your driver’s health-care providers. When 

you object, the lawyer threatens to file a 

motion to compel, arguing that the information 

is discoverable because your driver’s 

age and medical history caused, or at 

least contributed to, the accident. Is this 

lawyer right? Can you stop him or her? How 

does that information affect the case? 

As the economy continues to struggle, 

more Americans are working into their 

golden years. Commercial drivers are no 

exception, and plaintiffs’ lawyers looking 

for new angles to inject “heat” into otherwise 

mundane road wreck cases are seizing 

opportunities to paint older drivers and 

the companies they work for as incompetent 

and irresponsible. This article explores 

some enlightening statistics about older 

drivers, federal regulations governing them 

when they operate commercial vehicles, 

and laws protecting their privacy. It concludes 

with suggestions about what we, as 

defense counsel, should consider in anticipation 

of and in response to this increasingly 

popular battlefront. 

The Aging Driver 

Men and women continuing to drive in 

their 70s and 80s is nothing new. We’ve 

all seen the headlines: “86-Year-Old Man 

Plows through Crowded Farmers Market, 

Killing 10.” The driver’s age made the headlines, 

but the fact that the driver inadvertently 

pressed the accelerator instead of the 

brake—a mistake just as easily made by a 

■ Matthew P. Stone is the partner in charge of and Shawn N. Kalfus is a senior associate in the Transportation 

Law Practice Group of Freeman Mathis & Gary LLP, a 50- lawyer specialty litigation law firm in Atlanta. 

Mr. Stone also leads the firm’s 24/7 Emergency Response Team. His practice focuses on the defense of 

personal injury and wrongful death claims against companies, drivers, and insurers in the trucking and 

transportation industry. Mr. Kalfus regularly defends personal injury and wrongful death claims against 

members of the transportation industry. He also defends commercial general liability claims. 


Trucking Law 

younger driver—was left for the fine print. 

Is there truth to the perception that drivers 

become more dangerous with age? Studies 

and statistics seem to show otherwise. 

The population of people age 65 or older 

reached 40 million in 2010 according to U.S. 

Census Bureau statistics for 2010. Between 

2000 and 2010, that same demographic increased 

at a rate of 15.1 percent, nearly twice 

Despite an increase in 

the number of truck drivers 

over the ages of 55 and 

65, the number of large 

trucks involved in fatal and 

nonfatal injury crashes over 

the past decade declined. 

the rate of the U.S population as a whole. See 

Carrie Werner, The Older Population: 2010, 

2010 Census Briefs, U.S. Census Bureau, 

Nov. 2011. In 2010, the number of licensed 

drivers age 65 or older reached 34 million, 

up 22 percent from 2001. See Nat’l Highway 

Traffic Safety Admin., Traffic Safety Facts, 

DOT HS 811 640 (2010). 

In 2000, one in six commercial drivers 

was over the age of 55, according to the 

U.S. Census Bureau. Since then that number 

has increased by 19 percent, according 

to the U.S. Bureau of Labor Statistics. 

As one source remarked, “the industry- 

wide average truck driver age continues to 

increase at a greater rate than that of the 

overall workforce.” See Gene Bergoffen, 

et al., Older Commercial Drivers: Do They 

Pose a Safety Risk?, Commercial Truck and 

Bus Safety Synthesis Program, Synthesis 

18 (Transp. Research Bd., Washington D.C. 

2010). The same authoritative paper found 

“nearly 3 percent of the total truck driver 

population in the year 2000 to be older 

than age 65. By 2004,… that percentage 

had risen to 3.7 percent. If this trend continues, 

more than 5.5 percent of the truck 

driver population would be over age 65 by 

2014.” Id. (emphasis added). 


Despite an increase in the number of 

truck drivers over the ages of 55 and 65, 

the number of large trucks involved in fatal 

and nonfatal injury crashes over the past 

decade declined. See Fed. Motor Carrier 

Safety Admin., Analysis Division, Large 

Truck Crash Overview 2010. From 2007 

through 2010, the number of large trucks 

involved in fatal crashes per 100 million 

vehicle miles traveled by large trucks 

declined by 20 percent; nonfatal injury 

crashes declined by 18 percent. Id. 

In a review of available literature and 

studies on older drivers, Bergoffen cites a 

joint study of multi- vehicle crashes conducted 

by the Federal Motor Carrier Safety 

Administration (FMCSA) and the National 

Highway Traffic Safety Administration 

(NHTSA) found that “older commercial 

drivers (over age 51) were at fault less often 

than any other age group.” Bergoffen, supra 

(citing the Large Truck Crash Causation 

Study (2007)). He goes on to cite another 

study that found “of all 10-year age cohorts 

in the LTCCS [Large Truck Crash Causation 

Study], truck drivers ages 61 to 70 ‘had the 

lowest percentage of critical driver errors, 

by a wide margin.’” See Bergoffen, supra, 

(citing R.K. Knipling, Safety for the Long 

Haul: Large Truck Crash Risk, Causation 

& Prevention (Am. Trucking Ass’n 2009)). 

Citing a study of active commercial drivers 

of all ages that “showed that drivers over 

age 60 made fewer errors and had fewer 

near misses than their younger counterparts,” 

Bergoffen concludes that “even with 

the physical and cognitive changes in older 

persons, older drivers can often compensate 

for those changes by making better decisions 

and demonstrating better judgment 

while driving.” See Bergoffen, supra (citing 

R.E. Llaneras, et al., Research to Enhance the 

Safe Driving Performance of Older Commercial 

Motor Vehicle Drivers (Office of Motor 

Carriers, Fed. Highway Admin., U.S. Department 

of Transportation 1995). 

Bergoffen elaborates, “Most important is 

the evidence showing that the loss of function 

for any driver underlies a higher risk of 

crash causation, regardless of age.” Bergoffen, 

supra. Many private and governmental 

resources collect data and statistics and 

complete studies on older drivers, in general, 

and how specific medical conditions 

and medications used to treat them affect 

functionality in people of all ages. See, e.g., 

Am. Medical Ass’n, Ctrs. for Disease Control 

and Prevention, Nat’l Inst. on Aging, 

Insurance Inst. for Highway Safety, Nat’l 

Highway Traffic Safety Admin., Am. Ass’n 

Retired Persons, and AAA. 

As a whole, the literature and studies 

suggest that the perception that older 

commercial drivers are more dangerous 

than younger drivers is not necessarily 

grounded in fact; they “pose no greater risk 

than their younger and middle- aged counterparts.” 

Bergoffen, supra. Despite the 

facts, a negative perception remains and so, 

too, does a plaintiff lawyer’s opportunity 

to use that perception to enflame jurors. 

Therefore, it is critical to protect your driver’s 

privacy, and the defense of your case, 

by limiting access to his medical history 

and records to those situations in which his 

physical condition caused or contributed to 

the collision or he was not physically qualified 

to operate the vehicle. 

Physical and Medical Qualifications 

Unlike commercial airline pilots who must 

retire at age 65, neither federal regulations 

nor state laws require commercial drivers to 

step aside merely because they reach a specific 

age. The federal motor carrier safety 

regulations prescribe the minimum qualifications 

for all commercial drivers and set 

forth the criteria for determining whether 

they are physically fit to drive and the medical 

conditions that disqualify them from 

operating large trucks. Some states impose 

additional criteria for older drivers. 

For example, the District of Columbia requires 

drivers over age 70 to provide a statement 

from a practicing physician certifying 

the applicant to be physically and mentally 

competent to drive; Illinois requires a road 

test for drivers over age 75. 

Under the federal motor carrier safety 

regulations, a person cannot operate a 

commercial motor vehicle unless he is 

“medically certified as physically qualified 

to do so” and carries with him a current 

medical examiner’s certificate. See 49 

C.F.R. §391.41(a)(1)(i). (Beginning January 

30, 2014, when a driver must have a commercial 

driver’s license as specified in the 

federal regulations, he or she will no longer 

need to carry a medical examiner’s certificate. 

See 49 C.F.R. §391.41(a)(2); 49 C.F.R. 

§§391.49 and 391.64 (discussing medical 

variances, waiver, and grandfathering).

Summarizing 49 C.F.R. §391.49(b), a 

person is physically qualified to drive a 

commercial motor vehicle if he or she 

• Has no loss of a foot, leg, hand, or arm or 

impairment, defect, or limitation of one 

of those body parts to the point that it 

interferes with his or her ability to perform 

normal tasks associated with operating 

a commercial motor vehicle; 

• Has no established medical history or 

clinical diagnosis of diabetes mellitus 

currently requiring insulin for control; 

• Has no current clinical diagnosis of cardiovascular 

disease known to be accompanied 

by fainting, shortness of breath, 

collapse, or congestive heart failure; 


clinical diagnosis of a respiratory dysfunction 

likely to interfere with his or 

her ability to control and drive a commercial 

motor vehicle safely; 

• Has no current clinical diagnosis of high 

blood pressure likely to interfere with 

his or her ability to operate a commercial 

motor vehicle safely; 


clinical diagnosis of rheumatic, arthritic, 

orthopedic, muscular, neuromuscular, 

or vascular disease that interferes with 

his or her ability to control and operate 

a commercial motor vehicle safely; 


clinical diagnosis of epilepsy or any other 

condition that is likely to cause loss of 

consciousness or any loss of ability to 

control a commercial motor vehicle; 

• Has no mental, nervous, organic, or 

functional disease or psychiatric disorder 

likely to interfere with his or her ability 

to drive a commercial motor vehicle 

safely; 

• Has distant visual acuity of at least 20/40 

in each eye with or without corrective 

lenses, field of vision of at least 70° in 

each eye, and the ability to recognize the 

colors of traffic signals and devices; 

• Can first perceive a forced whispered 

voice in the better ear at not less than 5 

feet with or without the use of a hearing 

aid or does not have a specified average 

hearing loss in the better ear as tested by 

use of an audiometric device; 

• Does not use any Schedule I drugs or 

non- Schedule I drugs unless prescribed 

by a licensed medical practitioner familiar 

with the driver’s medical history who 

has advised the driver that the substance 

will not adversely affect his ability to 

safely operate a commercial motor vehicle; 

and 

• Has no current clinical diagnosis of 

alcoholism. 

Some of the medical conditions above 

such as diabetes, heart disease, high blood 

pressure, arthritis, and vision or hearing 

loss are commonly associated with the aging 

process. Merely having a history or diagnosis 

of one or more of those conditions, 

however, may not disqualify a driver. Note 

the use of italics (added by the authors) 

in the list above to distinguish conditions 

that automatically result in disqualification 

from conditions that may potentially 

result in disqualification, which the authors 

have not italicized. On potential disqualification, 

the FMCSA sometimes refers to “no 

established medical history or clinical diagnosis” 

diagnoses,” and sometimes refers 

to “no current clinical diagnosis.” 

Take for instance, diabetes. According to 

the National Diabetes Fact Sheet released 

January 26, 2011, 10.9 million, or 26.9 percent, 

of people age 65 or older have diabetes, 

making it one of the most common 

health issues faced by older drivers. The 

federal motor carrier safety regulations, 

however, do not disqualify a driver merely 

because he or she has been diagnosed with 

diabetes. Rather, he or she will be disqualified 

only if that condition is one “currently 

requiring insulin for control.” See 

49 C.F.R. §391.41(b)(3). Likewise, merely 

having a diagnosis of high blood pressure 

does not make a commercial driver unfit 

to drive. Rather, it must be “likely to interfere 

with his/her ability to operate a commercial 

motor vehicle safely.” See 49 C.F.R. 

§391.41(b)(6). 

The Medical Examination 

As for the medical examination itself, the 

federal motor carrier safety regulations 

are surprisingly general about who may 

administer one. An examiner need only be 

“licensed, certified, and/or registered, in 

accordance with applicable State laws and 

regulations, to perform physical examinations.” 

See 49 C.F.R. §390.5. Medical 

examiners can be “doctors of medicine, 

doctors of osteopathy, physician assistants, 

advanced practice nurses, and doctors 

of chiropractic.” Id. There are only 

two criteria: the medical examiner must be 

(1) “knowledgeable of the specific physical 

and mental demands associated with operating 

a commercial motor vehicle” and the 

physical requirements set forth in the federal 

motor carrier safety regulations; and 

(2) “proficient in the use of the medical 

protocols necessary to adequately perform 

the medical examination.” See 49 C.F.R. 

Unlike commercial 

airline pilots who must 

retire at age 65, neither 

federal regulations nor state 

laws require commercial 

drivers to step aside 

merely because they 

reach a specific age. 

§391.43(c). Thus, an older driver with, say, 

heart disease or high blood pressure need 

not be examined by a specialist or even a 

medical doctor. 

During an examination, a medical 

examiner reviews a driver’s social and 

medical history, including current medications, 

and performs a complete physical 

examination. If the examiner finds a driver 

fit to drive, he or she will sign and issue a 

medical certificate, which is valid for two 

years “unless the driver has a medical condition 

that does not prohibit driving but 

does require more frequent monitoring.” 

See 49 C.F.R. §391.43, Medical Examination 

Report for Commercial Fitness Determination 

649-F (6045), Instructions to the 

Medical Examiner. In these situations, 

a medical certificate will be issued for a 

shorter period, as recommended by the 

medical examiner, after which the driver 

must be reevaluated. Id. 

Is the Information Protected 

from Discovery? 

Assume that your driver passed the medical 

examination and had a valid medical 


Trucking Law 

certificate when the accident occurred. Is 

that enough to shield further inquiry into 

his medical history? Can the plaintiff’s lawyer 

access your driver’s medical history and 

records? 

The Federal Rules of Civil Procedure allow 

parties to obtain discovery “regarding 

any nonprivileged matter that is relevant to 

any party’s claim or defense… if the discov- 

Although less than 

absolute, your driver’s right 

to privacy may preclude, 

or at least limit, a fishing 

expedition through his 

medical history and records. 

ery appears reasonably calculated to lead 

to the discovery of admissible evidence.” 

Fed. R. Civ. P. 26(b). See also Fed. R. Civ. P. 

26(c) (protective orders preventing or limiting 

discovery). Discovery relating to your 

driver’s medical history and records, then, 

should only be allowed when it is relevant. 

Analyzing the requirements of Federal 

Rule of Civil Procedure 26(b), courts have 

consistently noted that 

[r]elevancy is broadly construed, and a 

request for discovery should be considered 

relevant if there is “any possibility” 

that the information sought may be relevant 

to the claim or defense of any party. 

When the discovery sought appears relevant 

on its face, the party resisting the 

discovery has the burden to establish the 

lack of relevance by demonstrating that 

the requested discovery does not come 

within the broad scope of relevance as 

defined under Rule 26(b)(1), or is of 

such marginal relevance that the potential 

harm the discovery may cause would 

outweigh the presumption in favor of 

broad disclosure. Conversely, when relevancy 

is not apparent on the face of the 

interrogatory or request, the party seeking 

the discovery has the burden to show 

the relevancy of the information or documents 

sought. 


DIRECTV, Inc. v. Puccinelli, 224 F.R.D. 677, 

684 (D. Kan. 2004) (emphasis added) (citations 

and footnotes omitted). 

When your driver was deemed fit to drive 

a commercial motor vehicle and had a valid 

medical certificate at the time of the accident, 

you have a colorable argument that his 

medical history and records are irrelevant, 

and without some evidence to the contrary 

that he concealed a disqualifying condition 

or subsequently received a diagnosis of such 

a condition, a request for his medical history 

and records would not on its face appear 

to be reasonably calculated to lead to 

the discovery of admissible evidence. 

While the argument against allowing 

discovery of your driver’s medical information 

is strong when his medical condition 

clearly had nothing to do with the accident, 

if he exited the cab of his tractor clutching 

his chest and short of breath, his medical 

records will surely come into play. But what 

about those less than clear circumstances, 

the ones between the extremes? Say your 

driver’s logs show an 11- or 14-hour violation 

in the days leading up to the accident, 

and the plaintiff’s lawyer contends that 

your driver suffers from fatigue induced 

by sleep apnea. Case law suggests that 

the burden may shift to you as the party 

resisting discovery to establish the irrelevance. 

In that regard, “the objecting party 

has a heavy burden to show why discovery 

should be denied, by clarifying and 

explaining its objections, and providing 

support therefor.” Flanagan v. Benicia Unified 

Sch. Dist., CIVS07-0333 LKK GGH, 

2008 WL 2073952 (E.D. Cal. 2008), aff’d, 

404 F. App’x 187 (9th Cir. 2010). 

Although less than absolute, your driver’s 

right to privacy may preclude, or at 

least limit, a fishing expedition through 

his medical history and records. Federal jurisdictions 

and many states uphold a right 

to privacy in medical information. For example, 

in Whalen v. Roe, the United States 

Supreme Court reviewed a New York statute 

requiring that the state receive copies of 

prescriptions for certain drugs. 429 U.S. 589 

(1977). Noting the state’s interest in controlling 

distribution of dangerous drugs and 

the strong confidentiality protections observed 

by the state, the U.S. Supreme Court 

upheld the statute but specifically acknowledged 

that a federal right to privacy protected 

against the disclosure of personal 

information contained in the prescription 

records. Id. at 599. See also United States v. 

Westinghouse Electric Corp., 638 F.2d 570, 

577 (3d Cir. 1980) (“There can be no question 

that an employee’s medical records… 

are well within the ambit of materials entitled 

to privacy protection”); Health Insurance 

Portability and Accountability Act of 

1996 (HIPAA), 42 U.S.C.A. §§1320, et seq. 

(requiring consent or a court order to access 

protected health information)). 

Many states offer similar protection. In 

Georgia, for example, privacy is a fundamental 

constitutional right “recognized 

as having a value so essential to individual 

liberty in our society that [its] infringement 

merits careful scrutiny by the courts.” 

Ambles v. State, 259 Ga. 406, 408 (1989). A 

patient’s medical information, as reflected 

in the records maintained by his or her 

medical providers is “certainly a matter 

which a reasonable person would consider 

to be private.” King v. State, 272 Ga. 788, 

790 (2000). Federal and state laws generally 

guarantee that “[e]ven if the medical 

provider is the technical ‘owner’ of the 

actual records, the patient nevertheless has 

a reasonable expectation of privacy in the 

information contained therein, since that 

data reflects the physical state of his or 

her body.” Id. See also Rasmussen v. South 

Florida Blood Service. Inc., 500 So. 2d 533, 

534–35 (Fla. 1987) (“blood donors’ rights of 

privacy are protected by state and federal 

constitutions”); State v. Nelson, 941 P.2d 

441, 448 (Mont. 1997) (“Medical records 

are quintessentially ‘private’ and deserve 

the utmost constitutional protection.”); 

Commonwealth v. Riedel, 651 A.2d 135, 142 

(Pa. 1994) (Zappala, J., concurring) (recognizing 

constitutional right to privacy in 

patient medical records)). 

Putting This Information to Use 

Armed with this information, let’s revisit 

our hypothetical. At first glance, your 

opposing counsel appears well equipped 

with arguments that your driver’s medical 

records are fair game. After all, your 

driver is 71-years-old and has an extensive 

medical history. But, let’s take a closer 

look at the accident and your driver’s medical 

conditions. 

Your driver traveled down the highway 

in heavy rain, jackknifed, and struck the 

plaintiff’s vehicle. Although unfortunate,

nothing about those facts, on their face, 

suggests that your driver’s medical conditions 

caused or contributed to the accident. 

Therefore, you would seem to have a 

strong argument that his medical records 

are irrelevant. 

Although your driver suffers from high 

blood pressure, he was taking his medication 

when the accident happened. The medical 

examiner noted those facts, found that 

your driver had received treatment and his 

condition was under control, and issued a 

medical certificate finding that your driver’s 

high blood pressure was not “likely 

to interfere” with his ability to operate a 

commercial motor vehicle safely. 49 C.F.R. 

§391.41(b)(6). Again, it seems there that you 

have a strong argument that your driver’s 

medical records fall outside the scope of 

discovery contemplated by Federal Rule of 

Civil Procedure 26. 

Shortly before the accident, your driver 

started wearing prescription glasses and a 

hearing aid. The medical examiner noted 

those facts, found that your driver’s vision 

and hearing met the required minimum 

requirements, and issued a medical certificate. 

Once again, your driver’s medical 

records appear to be irrelevant. 

How about your driver’s past diagnoses 

of diabetes and arthritis? Your opposing 

counsel surely will try to use those conditions 

to attack your driver’s fitness to 

drive a truck. Although his medical history 

includes a clinical diagnosis of diabetes 

mellitus and arthritis, the medical examiner 

noted those facts and issued a medical 

certificate finding that your driver did 

not require insulin to control his diabetes, 

and his arthritis did not interfere with his 

ability to control and operate a commercial 

motor vehicle safely. Yet again, your driver’s 

medical records appear to fall outside 

the scope of discovery. 

As for your driver’s previous treatment 

of kidney stones, acid reflux, and prostate 

cancer, the federal motor carrier safety regulations 

do not mention these conditions. 

So it would seem, then, that the plaintiff, 

as the party seeking discovery, should bear 

the burden of proving its discoverability 

by coming forward with some evidence to 

show that one or more of those conditions 

was likely to or did interfere with your driver’s 

ability to operate a commercial vehicle 

safely. 

Being Proactive 

Can you head off these issues before they 

arise? If not, how do they affect your 

defense strategy? 

Initially you must determine whether 

the existence of your driver’s medical issues 

creates a conflict of interest that precludes 

joint representation of the motor carrier and 

driver. Did the motor carrier know about 

those conditions when it hired the driver or 

later decided to keep the driver? If not, did 

the motor carrier have constructive knowledge? 

Would the motor carrier have hired 

or kept the driver anyway? Depending on the 

answers to those questions, the motor carrier 

and driver may need separate counsel. 

Having already investigated the facts 

and sequence of events leading to the accident 

preliminarily, your initial interview 

of the driver should elicit sufficient details 

about his social and medical history to shed 

light on whether he had any medical conditions 

when the accident occurred, and 

whether they could have caused or contributed 

to the accident. Using the medical 

examiner’s report in the driver qualification 

file should provide a good outline for 

areas of inquiry. Depending on what you 

learn, you may want to ask your driver to 

sign a HIPAA- compliant written authorization 

allowing you to request and receive 

his medical and prescription drug records 

directly from the providers, as well as his 

health insurers. These records may lead to 

others. Additionally, you may need to hire 

a medical expert to guide you. 

Ask your driver for written authorization 

allowing you to request records from 

his past employers; using an authorization 

instead of a subpoena avoids tipping- 

off a not so well- informed plaintiff’s lawyer 

about another source of information. Make 

sure that the authorization includes permission 

to receive his medical information 

and the results of drug and alcohol testing. 

When the plaintiff’s lawyer serves interrogatories 

and document requests for your 

driver’s medical information, or serves 

requests on your driver’s medical providers, 

you will be armed with the information 

that you need to determine if the requested 

information is relevant and discoverable. 

If it isn’t discoverable, you have grounds to 

object or to move for a protective order. If 

it is discoverable, you may have grounds to 

limit the scope of the inquiry. 

If the case is headed to a trial, you will 

want to consider filing a motion in limine to 

exclude your driver’s medical information. 

Conclusion 

As commercial drivers continue to work 

later in life and plaintiffs’ lawyers continue 

to look for new ways to gain advantages, 

motor carriers, their defense counsel, 

and their insurers need to know their drivers’ 

medical histories to evaluate liability 

and damages and to fend off unwarranted 

attacks. Having a proactive strategy makes 

it possible to stay ahead of these issues, to 

strengthen your defense, and to preserve 

your client’s right to privacy. 

SAVE THE DATE 

Trucking Law 

Primer 

June 6–7, 2013 

InterContinental Chicago 

Chicago, Illinois 

Visit http://dri.org/Events/Seminars 

or call 312.795.1101 

to register or for 

more information. 


Trucking Law 

No Simple Calculation 

By John R. Crawford 

and Benjamin A. Johnson 

Questionable data sources 

and the debatable weight 

assigned to various 

violations are examples 

of why a court should not 

permit a plaintiff to use 

CSA evidence to prove 

that a carrier was unsafe. 


Why Courts Should 

Not Admit CSA 

Scores as Evidence 

It is well known that the Federal Motor Carrier Safety 

Administration (FMCSA) launched its newest program 

to track the performance of commercial motor vehicles in 

2010. The program, formerly called “CSA 2010” and now 

known as “CSA” (Compliance, Safety, Accountability), 

collects information from a 

variety of sources and gives motor carriers a 

score based on that data. The FMCSA claims 

that the program will reduce crashes involving 

commercial motor vehicles by identifying 

carriers that have deficient scores in 

one or more areas and then allowing the 

FMCSA to intervene to try to fix whatever 

may be causing the carriers to have the deficient 

scores. 

While some data will remain private, 

many of the scores are, or will soon be, 

accessible on the Internet. The FMCSA says 

that making the information public makes 

the rating process transparent so that carriers 

and others can understand how and 

why a carrier received a certain score. Making 

the information public will also make 

it accessible to plaintiffs who may seek to 

have the information admitted as evidence 

for trials. This article will discuss how and 

why a plaintiff will seek to use the information, 

how and why a carrier should seek 

to keep the information away from a jury, 

what can be done to limit the effect of the 

information if a judge decides to allow 

a jury to hear it, and what revisions the 

FMCSA might make to the CSA. 

CSA—How It Works 

A full discussion of the CSA deserves its 

own article. But generally understanding 

the acronyms and layers of the CSA is 

important to understanding how information 

is gathered, grouped, and scored. CSA 

has three parts: measurement, evaluation, 

and intervention. Measurement involves 

the collection of information from various 

sources and transforming that information 

into a numerical score. Evaluation 

involves reviewing the measurements to 

make intervention decisions. Intervention 

involves the different ways in which the 

FMCSA can address the problems that it 

believes that a carrier has based on the 

evaluation—from sending a warning letter 

to shutting down a carrier completely. This 

■ John R. Crawford is a partner with Johnson & Lindberg PA in Minneapolis. He has litigation experience in 

the commercial trucking area, including claims for wrongful death, personal injuries, cargo liability, loading 

and unloading accidents, and premises liability. Benjamin A. Johnson practices in the areas of commercial 

trucking liability, personal injury, and insurance coverage. Prior to joining Johnson & Lindberg, Mr. Johnson 

gained experience trying criminal cases as an assistant public defender.

article is only concerned with the measurement 

component of CSA. 

The FMCSA uses what it calls the Safety 

Measurement System (SMS) to measure 

safety. The methodology behind the SMS 

is detailed and somewhat complicated. 

the FMCSA’s description of the methods 

weighs in at 120 pages. The summary of 

the SMS in this article is drawn from the 

January 2012 FMCSA publication “Safety 

Measurement System (SMS) Methodology,” 

available at https://ai.fmcsa.dot.gov/sms/ 

HelpFiles/SMSMethodology.pdf. 

Collect and Sort the Data 

The FMCSA collects data from roadside 

inspections, state- reported commercial 

vehicle crash data, and motor carrier census 

data. The data is then sorted into seven 

categories called the Behavior Analysis 

and Safety Improvement Categories 

(BASICs). The BASICs are (1) unsafe driving, 

(2) fatigued driving (hours- of- service), 

(3) driver fitness, (4) controlled substances/ 

alcohol, (5) vehicle maintenance, (6) cargo- 

related, and (7) crash indicator. 

Score the Severity of the Violations 

Once the data is sorted into its proper 

BASIC, the data that involves a crash or 

a violation of the FMCSA regulations 

receives a severity score between 1 and 

10 with 1 representing the lowest crash 

risk and 10 indicating the highest. Again, 

the methodology first must sort the data 

because the severity ratings are specific to 

each BASIC. A 4 in one category does not 

always mean the same as a 4 in another category. 

One inspection can identify multiple 

violations. But the worst possible score 

from one inspection is 30 points. 

Weight the Violations Based 

on the Passage of Time 

Each event also receives a time weight of 3, 

2, or 1. The severity score is multiplied by 

the time weight. As time passes, the weight 

decreases: for the first six months, the time 

weight is 3; for the next six months, the 

weight is 2; for the second year, the weight 

is 1. The violations are no longer a part of 

the calculated score after two years. 

Total the Scored and Weighted Violations 

One component of each BASIC score will 

always be the total of all time- and severity- 

weighted violations. For example, assume 

that a carrier has three violations in one 

BASIC over the course of two years: 

Severity 

Event 

Score × Time Weight (age)= Score 

2 3 (less than 6 months) 6 

4 2 (between 6 and 12 

months) 

8 

4 1 (over 12 months) 4 

Total Score 18 

Normalize the Total Score 

The total score, 18 in the example in the 

previous section, will become one component 

of the BASIC measure. However, the 

carrier in this example could be small, the 

number of inspections it underwent could 

be less or more than other carriers, or the 

overwhelming number of violations could 

be older or more recent than the violations 

of other carriers. The SMS takes another 

step to try to compensate for these factors. 

The BASICs use different factors to adjust 

the data, and the SMS refers to the process 

as “normalization.” For example, the 

hours- of- service BASIC normalizes based 

on the total time weight of the relevant 

inspections. In the example, the total time 

weight would be (3+2+1)=6. The BASIC 

measure on the above example would be: 

(total of the time and severity 

18 weighted violations) = 3 (BASIC 

6 (total time weight of relevant measure) 

inspections) 

Compare the Carrier with Others 

Within a Safety Event Group 

Once the data is normalized, the SMS places 

each carrier in a safety event group based on 

the number of inspections and crashes in 

which the carrier has been involved. A carrier 

with no violations within a particular 

BASIC will not be placed in an event group. 

Each carrier that has had a violation is then 

ranked within the safety event group. Each 

carrier receives a numeric score in each BA- 

SIC, which represents its percentile ranking 

in the safety event group. A score of 100 represents 

the worst performance in the group, 

and a score of 0 represents the best score. 

One carrier in each safety event group will 

receive a score of 100, and another carrier 

will receive a score of 0. 

Continuing with the example, the SMS 

divides the hours- of- service BASIC into 

five safety event groups. The hypothetical 

carrier in the example would belong in 

group 1 with other carrier that had at least 

3 inspections but not more than 10. It is 

impossible to say what the percentile score 

for the example would be. If every other 

carrier in the group has a BASIC measure 

higher than 3, then the score would be 0. 

If every other carrier’s score is lower than 

3, then this hypothetical carrier’s score 

would be 100. 

Determine Which Carriers 

Require Intervention 

The percentile ranking is the trigger for 

intervention by the FMCSA. Each of the 

BASICs has a threshold at which the 

FMCSA will intervene. For example, in the 

fatigued driving BASIC, the FMCSA will 

intervene with every carrier that has a percentile 

ranking of worse than 65. 

Give Carriers an Opportunity to 

Review and Question the Score 

If a carrier feels that there is an error in 

the data used to generate a score, the carrier 

can request a data review through the 

DataQs system. Fed. Motor Carrier Safety 

Admin., DataQs System, https://dataqs.fmcsa. 

dot.gov/login.asp (last visisted Nov. 1, 2012) (a 

system to record and monitor challenges to 

Fed. Motor Carrier Safety Admin. data). 

Why Would a Plaintiff Want 

to Use the Information? 

As carriers know, plaintiffs and their attorneys 

make every effort to make claims 

directly against trucking companies. They 

know that a jury is more likely to return a 

big verdict if they can paint a picture of a 

carrier as having pushed drivers to exceed 

hours- of- service limits, ignoring maintenance 

issues, or overlooking dangerous 

driving behavior. If a carrier has received 

any warning letters through the CSA, a 

plaintiff’s attorney will certainly seize on 

that information. In addition, a plaintiff’s 

attorney may try to use a percentile ranking 

in a BASIC to suggest that a carrier is 

deficient. A numeric score seems simple, 

and an attorney for a plaintiff is likely to 

use a “bad” number as a constant refrain 

in a case, hoping that a jury focuses on the 

simple information and ignores the fact 

that the number does not show how safe 

a carrier is. 


Trucking Law 

Keeping the Information Out 

If a plaintiff’s attorney seeks to admit evidence 

related to CSA, a carrier will need to 

ask the court to exclude the information. 

There are no appellate cases addressing 

the admissibility of SMS percentile ratings. 

Therefore the arguments about admissibility 

will be based primarily on the applicable 

rules of evidence. 

CSA evidence, probably 

in the form of a percentile 

ranking, does not make it 

more or less likely that the 

carrier was operating safely. 

SafeStat Decisions Offer Little Guidance 

Before the FMCSA began the CSA project, 

it used another rating system called “SafeStat.” 

While there are significant differences 

between SafeStat and the CSA programs, 

both rated carriers for safety, used the 

scores to determine whether an intervention 

was appropriate, and made the scores 

available to the public. Precedent related 

to admitting SafeState information would, 

therefore, likely influence a court’s decision 

on whether to admit CSA data, but there 

are few accessible decisions addressing the 

admissibility of SafeStat data. In two cases, 

the courts determined that a jury should 

decide whether a third-party logistics provider 

should have reviewed a commercial 

motor vehicle carrier’s SafeStat score before 

arranging to hire that carrier. See Schramm 

v. Foster, 341 F. Supp. 2d 536 (D. Md. 2004); 

Jones v. C.H. Robinson Worldwide, Inc., 558 

F. Supp. 2d 630 (W.D. Va. 2008). 

Those decisions did not involve using the 

data directly against the carrier. In another 

case, a district court admitted SafeStat evidence 

in a bench trial over the defendant’s 

objection but noted, “If I rely on any of 

them I’ll make sure it’s in my decision.” 

See Doyle v. Watts Trucking of Nebraska, 

Inc., 207 WL 1977271 (Neb. Ct. App. 2007). 

The Mississippi Supreme Court determined 

that a carrier’s safety rating was not relevant 

to a claim that a carrier’s failure to 


have reflective tape on its trailer caused an 

accident that killed someone in another 

vehicle. See Utz v. Running & Rolling Trucking, 

Inc., 32 So. 3d 450 (Miss. 2010) (noting 

that the carrier’s rating at issue was for 

violations occurring after the accident). In 

contrast, a federal district court allowed a 

carrier to offer evidence that it had a good 

safety rating and record to defend itself 

from claims that it failed to train or supervise 

a driver properly. See Grosek v. Panther 

Transp., Inc., 2009 WL 905035 (M.D. Penn. 

2009). The limited case law is not particularly 

helpful. 

The Rules of Evidence Will 

Control a Court’s Decision 

With so little precedent to turn to, a district 

court will make decisions on admitting 

CSA evidence based on the applicable 

rules of evidence. The strongest arguments 

for excluding the evidence will maintain 

that the evidence is not relevant. 

Relevant evidence typically is defined as 

evidence that “has any tendency to make 

a fact of consequence more or less probable 

than it would be without the evidence.” 

Fed. R. Evid. 401. And “[i]rrel e vant evidence 

is not admissible.” Fed. R. Evid. 402. 

Courts should make their relevancy determinations 

based on the applicable substantive 

law and the facts at issue. See, e.g., 

Phillips v. Western co. of N. America, 953 

F.2d 923 (5th Cir. 1992). 

Relevant Evidence Relates to 

a Claim in the Complaint 

The first step in assessing an attempt to 

introduce CSA evidence is to review a 

plaintiff’s complaint. If a complaint only 

raises a claim based on the alleged negligence 

of a driver, then any evidence related 

to CSA should be excluded because it does 

not tend to make it more or less probable 

that the driver was negligent. 

If a complaint alleges a cause of action 

based on the conduct of the carrier, a carrier 

can still argue that the CSA evidence is 

irrelevant for several reasons. 

CSA Evidence Is Not Relevant 

Because It Is Not Reliable 

First, a carrier can argue that the CSA evidence, 

probably in the form of a percentile 

ranking, does not make it more or 

less likely that the carrier was operating 

safely. Someone has to finish in last place 

in the finals of the 100-meter dash at the 

Olympics, but no one would call that person 

slow. Similarly, the fact that a carrier 

finishes at or near the bottom of its safety 

event group does not automatically mean 

that the carrier is unsafe. It simply means 

that the other carriers had fewer violations 

in the previous two years. 

In addition, a carrier can point to the 

fact that data collected from the CSA comes 

from a variety of states, which perform inspections 

at different rates and report accidents 

with different dependability. The 

difference in reporting makes the data unreliable, 

and therefore it is cannot be relied 

on to make a fact more or less probable. 

Next, the seven BASICs cover a wide 

range of potential violations. For example, 

the unsafe driving BASIC includes obvious 

violations such as reckless driving, 

improper passing, speeding, and operating 

a vehicle while texting. It also includes failing 

to use a seatbelt, having an unauthorized 

passenger on board, failing to display 

a placard indicating that the vehicle stops 

at railroad crossings, and smoking within 

25 feet of a hazardous material vehicle. A 

carrier’s percentile score does not indicate 

which of these violations led to the score, 

and it does not indicate which violations 

led to another carrier’s score. 

Also, the severity scoring within the BA- 

SICs is open to challenge. Failing to have a 

placard on the back of a truck indicating 

that the vehicle stops at railroad crossings 

receives a severity weight of 5, the same 

score as a truck that actually fails to stop 

at a railroad crossing. Failing to use caution 

in hazardous conditions has a severity 

weight of 5, but failing to wear a seatbelt in a 

commercial motor vehicle has a weight of 7. 

Because of the inconsistent data sources, 

the questionable weighting of some violations, 

and the lumping together of many 

violations in a single BASIC, the percentile 

score cannot be used to make a fact of 

consequence more or less probable. Even 

more important, the score has no relation 

to safe driving. It simply shows how a carrier’s 

performance rates compared to other 

carriers. Even if every carrier in one group 

has an excellent safety record, one carrier 

will have the worst possible score of 100. 

Conversely, even if every carrier in another 

group has a terrible safety record, one car-

ier will have the best possible score of 0. 

Since the information does not present reliable 

evidence of a carrier’s safety record, it 

does not make a fact more or less probable, 

and a court should exclude it. 

Relevant Evidence Can Still Be Excluded 

Relevant evidence can be excluded if its 

probative value is substantially outweighed 

by a danger of unfair prejudice, confusing 

the issues, misleading the jury, and creating 

undue delay. See Fed. R. Evid. 403; Old 

Chief v. U.S., 519 U.S. 172 (1997). Unfair 

prejudice is prejudice that damages a party 

for reasons other than its probative value— 

like an appeal to emotion. See U.S. v. Mohr, 

318 F.3d 613, 620 (4th Cir. 2003). Questions 

of confusing the issue, misleading the jury, 

and creating undue delay turn on whether 

the proof will create a side issue that will 

unduly distract the jury from the main 

issues. See U.S. v. Terzado- Madruga, 897 

F.2d 1099 (11th Cir. 1990). 

The arguments regarding prejudice mirror 

the arguments that show that the CSA 

evidence is not relevant. A carrier’s score 

in a BASIC relies on questionably gathered 

data that receives a questionable weight 

and is then compared to other carriers. An 

attempt to introduce a low BASIC score, 

particularly without a detailed explanation 

of the methods behind the score, is simply 

an appeal to punish a commercial motor 

vehicle carrier. That appeal to emotion is 

not allowed under the rules of evidence. 

As the multiple steps involved in determining 

a percentile score make clear, the 

evidence is complicated. Presenting the 

jury with a lengthy explanation on the 

nature of a BASIC score would confuse the 

jury and distract the members from deciding 

the main issues. The evidence would 

also significantly delay the trial. Therefore, 

even if a court determines that the CSA evidence 

is relevant, the court should exclude 

it because it is prejudicial and confusing. 

Reducing the Effect of 

Admitted Evidence 

There are several things that a carrier can 

do to limit the effect of admitted evidence. 

Some of those actions can, and should, 

take place as part of day-to-day operations. 

Others involve actions that should 

be undertaken during discovery and trial 

preparation. 

Day-to-Day Operations 

Obviously, the best way to avoid having to 

worry that a court will admit CSA data into 

evidence is to have only positive data. However, 

most carriers will have negative data at 

some point, and some will receive warning 

letters. While the FMCSA does not require 

a response to a warning letter, it would be a 

good practice to respond. A carrier should 

have an internal policy related to warning 

letters, and it should follow that policy. If 

a plaintiff offers evidence of a warning letter, 

a carrier should have evidence to offer 

demonstrating that the carrier received letter 

and that the carrier took immediate action 

to address potential problems. 

Carriers should also track their SMS 

scores to assure that the data being used is 

accurate. The SMS data will be updated each 

month. A carrier should track the data to 

make sure that older violations are being adjusted 

appropriately, no violations are somehow 

being counted more than once, and any 

new violations are being identified properly. 

Discovery and Trial Preparation 

Carriers should prepare to educate both 

judges and juries about the complicated 

method of calculating scores under the 

CSA. At least one company representative 

should be prepared to testify about the CSA 

in general and a carrier’s responses to any 

warning letters or other violations. Carriers 

should also identify experts who can discuss 

the methodology behind calculating 

BASIC scores and describe the problems 

and limitations of the program. 

Recent Statistical Analysis 

In October of 2012, the American Transportation 

Research Institute (ATRI) published 

a detailed statistical analysis of the 

correlation between BASIC scores and accidents: 

“Compliance, Safety, Accountability: 

Analyzing the Relationship of Scores to 

Crash Risk.” The report is thoughtful and 

detailed. It finds that there is some correlation 

between certain BASIC scores and 

accidents. Interestingly, the report finds a 

negative correlation between BASIC scores 

in the driver fitness and the controlled substances 

and alcohol categories. That is, a 

higher, worse percentile score correlated 

with a lower crash rate. Id. at 16–17. 

The report also criticizes several aspects 

of the SMS. The report notes that some of 

the methodology used to collect data is 

flawed. For example, the ATRI believes that 

there is selection bias that introduces “systematic 

error into the measurement system.” 

Id. at 4. Similarly, the ATRI notes that 

the region in which a carrier operates can 

have a significant effect on its score because 

different regions and states emphasize different 

issues in inspections. Id. In addition, 

the ATRI analysis involved viewing 

a single, 24-month period, which means 

that the study considered crash evidence 

that was contemporaneous to the BASIC 

scores. As the study noted, “the findings 

herein should not be interpreted as predicting 

future crashes based on BASIC 

measures; rather, the findings are descriptive 

in nature, examining current safety 

risk differences according to the previous 

two years of crash and SMS information.” 

Id. at 34 (emphasis in original). Plaintiffs’ 

counsel may try to use the favorable portions 

of the ATRI report. Carriers and their 

attorneys should argue that the report, by 

its own admission, does not suggest that a 

carrier’s BASIC rankings at any given time 

predict the likelihood of future accidents. 

Will the FMCSA Revise the 

CSA to Account for Fault? 

One common complaint by carriers is that 

the CSA includes all reportable accidents regardless 

of fault. The SMS methodology does 

not distinguish between an accident involving 

a completely and properly stopped truck 

that another vehicle crashes into and one 

that was the truck driver’s fault, let alone 

how much at fault. The FMCSA has decided 

to conduct a study into the feasibility of considering 

fault in the CSA scoring. See Fed. 

Motor Carrier Safety Admin., Crash Weighting 

Research Plan: Will Crash Weighting 

Improve the Capability of FMCSA to Identify 

High Crash-risk Motor Carriers? (July 23, 

2012), http://csa.fmcsa.dot.gov/documents/ Crash 

WeightingResearchPlan_7-2012.pdf. The FMCSA 

plans to make the results of that study available 

in the summer of 2013. 

As discussed above, one way to attack 

the admission of the CSA ratings and interventions 

is to point out that the data treats 

all accidents equally, which prejudices a 

carrier. At this point carriers cannot know 

whether and to what extent the CSA ratings 

will consider comparative fault when it ini- 

CSa Scores , continued on page 90 


wRITeRs’ cORneR 

The Use of the Passive Voice 

How to Confuse Your 

Reader Effectively 

By Kimberly J. Kanoff and Ilana Lazarus 

Most lawyers hate to write. Most lawyers would rather sentence the object and create a stronger, clearer sen- 

argue a motion in a courtroom, take a deposition, or tence. Ultimately, the active voice will make a sentence 

interview a potential client or witness than actually sit and your motion easier to read. 

in front of a computer to draft a letter, motion, or brief. Below are some examples of passive voice sentences 

Most lawyers are often left perplexed when reading com- that a writer easily can convert into active voice senplex 

judicial opinions or statutes that deal with key legal tences, making them clearer for a reader: 

issues in their cases. The reason for this confusion may PASSIVE: The defendant was convicted of slander, 

stem from the way that a sentence is drafted, using the libel, and defamation by the jury. 

passive voice rather than the active voice. 

ACTIVE: The jury convicted the defendant of slan- 

To write effective sentences and ultimately persuader, libel, and defamation. 

sive motions, lawyers should use basic grammar prin- PASSIVE: The scene of the accident was investigated 

ciples. Verbs are action or linking words. Verbs form by the police officer. 

the basis of a sentence and tell a reader what the sub- ACTIVE: The police officer investigated the scene of 

ject is doing, or verbs link a subject to a label or descrip- the accident. 

tion. See Bryan A. Garner, The Redbook: A Manual On However, similar to most concepts in the law, there 

Legal Style (Thomson West, 2d ed. 2006). Sentences have may be some exceptions and times when you should use 

a voice. Certain sentence constructions create an active the passive voice instead of the active voice. For instance, 

voice, and some create a passive voice. The passive voice if there is a detail that is unknown or unimportant, then 

consists of a “be-verb” combined with the past partici- you should use the passive voice. 

ple of a transitive verb, such as “Soccer could be played When a writer uses the passive voice when writing 

by the bobcats.” A by- prepositional phrase is often part about a complicated topic, a reader often cannot under- 

of a passive voice construction. However, if a sentence stand what the writer meant. When legislatures have 

does not use “by,” sometimes it may still be understood used the passive voice in statutes, for instance, both 

from the context of the sentence and have a passive voice. judges and lawyers have had difficulty interpreting the 

See Bryan A. Garner, The Redbook: A Manual On Legal statutes. 

Style, Thomson West, 2d Edition (2006). 

In general, criminal statutes use the active voice to 

By including the “by” in a sentence or by using the define illegal conduct clearly. For example, the federal 

passive voice, a writer makes the sentence subject the criminal statute 18 U.S.C.A. §1116 provides: “whoever 

recipient of the action rather than the “actor” or acting kills or attempts to kill” to delineate two illegal acts. 

agent. This is the crux of the passive voice. This tech- However, it also commonly uses the passive voice when 

nique often confuses a reader. Writers often overuse the listing sentencing factors. In Jones v. United States, 526 

passive voice, making a sentence longer than necessary. U.S. 227 (1999), the Supreme Court determined whether 

Instead, a writer wants to convert a sentence containing the federal carjacking statute, 18 U.S.C. §2119, which first 

the passive voice to the active voice to construct a better provided the clearly defined prohibited conduct followed 

sentence. The active voice will make the subject of the next by three numbered clauses, “defined three distinct 

offenses or a single crime with a choice of three maxi- 

■ Kimberly J. Kanoff is the head of the Appellate/Litigation Support Division of mum penalties.” 526 U.S. at 229. The Court concluded 

McIntosh Sawran & Cartaya PA in Fort Lauderdale, Florida. She practices appel- that the three clauses represented elements of sepalate 

law and civil litigation and is adjunct faculty at Ave Maria School of Law where rate offenses rather than sentencing provisions. Justice 

she teaches Appellate Practice. Before joining McIntosh, Ms. Kanoff clerked with Kennedy, however, argued in his dissent that the Court 

the Third District Court of Appeal in Miami, Florida. She is admitted to practice in should have interpreted the three clauses as sentencing 

Florida state and federal courts and the Eleventh Circuit Court of Appeals. Ilana provisions because Congress used the passive voice in 

Lazarus is a third-year law student at Nova Southeastern University School of Law them, and Congress commonly used passive language 

and helped in the preparation of this article. Writers’ Corner , continued on page 91 

86 ■ For The Defense ■ December 2012

ThInk glObally 

Código de Defesa do Consumidor 

An Overview of Product 

Liability in Brazil 

By Rosângela Delgado Barreto 

Until the enactment of the Consumer Defense Code lence, exploits fear or superstition, takes advantage of 

in 1991, the general liability rules of the Brazilian Civil children’s’ judgment limitations, disrespects environ- 

Code of 1916 governed product liability. The elaboramental values, or can cause consumers to behave in a 

tion of the Consumer Defense Code was a direct con- detrimental way to compromise their safety or health. 

sequence of the Brazilian Federal Constitution of 1988, Information plays a critical role. Manufacturers are 

which expressly established that the state would pro- required to be accurate and clear on quantity, characmote 

consumers’ defense. Federal Constitution, art. 5, teristics, composition, quality, price, and risks associ- 

XXXII (Brazil). 

ated with a product. 

The Consumer Defense Code has become one of the Under the Consumer Defense Code strict liability 

most popular laws ever passed in Brazil. It introduced regime, consumers are not required to prove that man- 

several innovations to facilitate the protection of conufacturers acted with guilt. The Consumer Defense Code 

sumers’ rights, among which include (1) strict liability of established the concepts of (1) product defect, when a 

manufacturers (not fault-based); (2) shifting of the bur- product does not offer the safety consumers legitimately 

den of proof in court; (3) possibility of modifying con- expect from it, considering its presentation, risks reatractual 

clauses harmful to the consumer and nullifying sonably expected, and the time when it was placed on 

abusive clauses; (4) protection against misleading and the market; and (2) product vice, when a product does 

abusive advertising; and (5) creation of administrative not meet, or poorly meets, its own finality. While the 

bodies to settle consumer disputes or impose sanctions first concept concerns a product’s safety, the latter aims 

at an administrative level for consumer law violations. to ensure that a product will meet its quality and quan- 

Most of these changes do not have exact definition tity standards. 

in the law. For instance, a judge may shift the burden of The Consumer Defense Code also broadened the con- 

proof whenever, at his or her discretion, the consumer’s cept of recall, requiring manufacturers that learn about 

allegation seems plausible, or when the consumer is in the risks of a product or service after placing it on the 

a vulnerable position according to the ordinary rules of market to inform consumer authorities and consumers 

experience. 

immediately through public media channels. Under the 

The Consumer Defense Code allows consumers to recently issued Ordinance No. 487/2012, a recall proce- 

review contractual clauses imposing disproportional dure is mandatory even when a manufacturer can trace 

obligations or those which become excessively onerous. consumers individually. 

It offers examples of several abusive clauses that are null The Consumer Defense Code created administrative 

and void and provides that the judge may find additional consumer bodies, such as the PROCONs—consumer 

ones case by case. 

protection bureaus—which may settle disputes between 

As mentioned, the Consumer Defense Code forbids consumers and manufacturers and impose administra- 

misleading and abusive advertising. Misleading advertive fines for violations to the Consumer Defense Code. 

tising is that which is totally or partially false and can The Consumer Defense Code also created Public Attor- 

lead consumers into error concerning any characterisneys’ Offices fully specialized and dedicated to consumer 

tic of a product, even by omission. Abusive advertising protection, which, along with the Consumer Protection 

is that which is discriminatory in any form, incites vio- and Defence Department and the PROCONs, are very 

active in conducting preliminary investigations that can 

■ Rosângela Delgado Barreto is a partner of Veirano Advogados in Rio de Janeiro, lead to collective lawsuits. The ability to negotiate with 

where she focuses her practice in the area of complex litigation including product such authorities successfully has proven to be an effec- 

liability, commercial, contractual, general civil, and regulatory litigation. She has tive tool to prevent litigation. 

significant expertise in consumer products, tobacco, automotive, cargo handling Finally, Brazil has seen an increase in collective 

machinery, magazine publishers, marine boats and engines and hotel industries litigation. The Consumer Defense Code provides for 

and counsels several top tier Brazilian and international corporations. Think Globally , continued on page 91 


defense eThIcs and PROfessIOnalIsM 

Concurrent Representations 

Curing Government Client 

Conflicts through Consent 

By Douglas R. Richmond 

It is not surprising that lawyers occasionally encounter raised even an appearance of impropriety. Id. The court 

conflicts of interest in concurrent representations. Eth- concluded, however, that the firm could undertake the 

ics rules generally permit lawyers to cure conflicts and representations to represent the state and the employees 

undertake both representations by obtaining the clients’ if the state amended its complaints to remove all allega- 

consent to the competing representations. But does the tions concerning the unnamed staff members in Trea- 

general rule hold true when one of the clients is a governsurer’s Office. Id. at 62. 

ment agency or entity? The West Virginia Supreme Court At least three courts have articulated similar posi- 

said no in State ex rel. Morgan Stanley & Co. v. Mac- tions. Guthrie Aircraft, Inc. v. Genesee County, New York, 

Queen, 416 S.E.2d 55 (W. Va. 1992). MacQueen was a law- 597 F. Supp. 1097, 1098 (W.D.N.Y. 1984); In re A. and B., 

suit initiated by the state of West Virginia against three 209 A.2d 101, 102–03 (N.J. 1965); City of Little Rock v. 

financial institutions to recover investment losses. The Cash, 644 S.W.2d 229, 235 (Ark. 1982), overruled on other 

West Virginia attorney general appointed the law firm grounds by T & T Chem., Inc. v. Priest, 95 S.W.3d 750, 753 

Wolff Ardis to represent the state. In addition to repre- (Ark. 2003). New Jersey now enforces its prohibition on 

senting the state, the firm represented seven employees public agency conflict waivers through New Jersey Rules 

of the West Virginia State Treasurer’s Office when they of Professional Conduct Rules 1.7(b)(1) and 1.9(d). 

were served with deposition notices as nonparty wit- The better view, however, holds that government clinesses. 

The defendants argued that these concurrent ents’ ability to waive conflicts of interest should be eval- 

representations posed a conflict of interest because the uated under the customary rules governing conflicts. 

state had alleged in its complaints that the Treasurer’s Restatement (Third) of the Law Governing Lawyers §122 

Office managed the fund at issue and that unnamed staff cmt. g (ii) (2000). In other words, a government entity’s 

members in the Treasurer’s Office contributed to cause ability to waive a conflict of interest should depend on 

the losses at issue. The court determined that the state’s the facts and circumstances of the particular case rather 

allegations against the unnamed members of the Trea- than on the entity’s status. See, e.g., City of Cleveland v. 

surer’s Office created a concurrent conflict of interest for Cleveland Elec. Illuminating Co., 440 F. Supp. 193, 205 

the firm sufficient to disqualify it. The state argued that (N.D. Ohio 1976) (concluding that city could waive con- 

the firm should not be disqualified because each of the flict of interest). 

seven staff members had waived the conflicts. The prob- The view that government agency or entity consents 

lem, however, was that the state also had to consent to to waive conflicts should be evaluated under customary 

the firm’s multiple representations, and the consent was rules is reasonable. When the public interest is impli- 

impossible under West Virginia law. The court reached cated, the citizenry has vested its trust in the elected or 

this conclusion based on an earlier case, which stated appointed public officials from whom consent is sought. 

that “‘where the public interest is involved, an attor- Those officials owe a public trust. In re Vrdolyak, 560 

ney may not represent conflicting interests even with N.E.2d 840, 845 (Ill. 1990). When government offi- 

the consent of all concerned.’” Id. at 60 (quoting Graf v. cials believe that it is reasonable to consent to conflicts 

Frame, 352 S.E.2d 31, 38 (W. Va. 1986)). This rule rested of interest waivers, they are presumably acting in the 

on the rationale that the public must have absolute con- public interest. Thus, in State ex rel. Nixon v. American 

fidence in the integrity and impartiality of the justice Tobacco Co., 34 S.W.3d 122 (Mo. 2000), the Missouri 

system. Id. In light of the obvious public interest inher- Supreme Court held that the attorney general of Misent 

in the state’s attempt to recoup its investment losses, souri had the power to waive an alleged conflict of inter- 

the court explained that the state could not consent to est involving private lawyers who sued various tobacco 

dual representation that involved adverse interests that companies on the state’s behalf. Id. at 135–36. Moreover, 

rules of professional conduct protect government clients 

■ Douglas R. Richmond is managing director of Aon Professional Services in Chi- against their lawyers’ potentially adverse interests just 

cago. Opinions expressed here are the author’s alone. ethics , continued on page 91 

88 ■ For The Defense ■ December 2012

Federal Case , from page 20 Finally, the makeup of the appellate 

mandate a 12- person jury. The two venues 

may also have different rules concerning 

whether a jury must reach a unanimous 

verdict. Additionally, some states have 

adopted rules that make it easier for a 

plaintiff to require a corporate witness to 

attend the trial. Under an Illinois rule, for 

example, a plaintiff may compel an officer, 

director, or employee of a corporation defendant 

to appear and testify during a trial 

simply by serving a notice. And while the 

Illinois rule permits a trial judge to require 

a plaintiff to pay the witnesses costs associated 

with the trial appearance, a trial judge 

seldom does this. 

bench should inform the removal decision. 

A hard-won trial victory upset on an 

appeal can be a particularly difficult pill to 

swallow. While defense counsel can seldom 

if ever know or forecast the issues that an 

appeal will present with any degree of confidence 

when removing a case the appellate 

process should to some degree inform the 

decision to remove. 

Conclusion 

Federal Rule of Civil Procedure 21, in conjunction 

with Federal Rule of Civil Procedure 

19, provides the defense bar with a 

powerful tool with which to move a case 

Thanks to 2012 FTD advertisers! 

to a more advantageous forum despite an 

apparent lack of complete diversity among 

the parties. As plaintiffs’ attorneys pursue 

claims against nondiverse parties to 

keep cases in a state court with more frequency, 

requesting that courts sever and 

remand claims against unnecessary and 

dispensable parties under Federal Rule 21 

warrants increased consideration in favorable 

federal jurisdictions. Closely scrutinizing 

the claims against each party and 

thoroughly analyzing whether a nondiverse 

party is necessary and indispensable 

to those claims may present options for 

removal to a federal court that might not 

seem immediately apparent. 

 


CSa Scores , from page 85 sions about whether to challenge a citation. dence that a jury can review in deciding 

tiates interventions. If a truck driver helps In jurisdictions that allow a driver to enter whether a motor vehicle carrier operated 

cause an accident, but the majority of fault a no- contest plea by paying a fine, a carrier negligently. Calculating the ratings, how- 

rests with another driver, the FMCSA still will need to know if paying a fine will preever, is not simple. The questionable data 

may attribute the accident to the driver vent the carrier from challenging a fault sources, the debatable weight assigned to 

after studying crash weighting. A change determination by the FMCSA. 

various violations, and a percentile rating 

in the methodology that the CSA uses may 

that shows the relationship between carri- 

not eliminate prejudice to a carrier. Conclusion 

ers but not the relationship to an objective 

In addition, if the FMCSA does factor Plaintiffs and their attorneys certainly will standard of safety all demonstrate that a 

fault into the ratings, carriers will want to make every effort to present CSA evidence court should not permit a plaintiff to use 

pay attention to the method used to deter- to juries. It can appear that the scores the CSA evidence to prove that a carrier 

mine fault because that will have con- that carriers receive under the CSA, and was unsafe. Carriers and their attorneys 

sequences. If the CSA relies on citations the interventions taken by the FMCSA as should challenge attempts to offer CSA evi- 

issued, a carrier will need to make deci- a result of those scores, are simple evidence to juries. 

Horse , from page 39 

to my questions is essential to your 

representation. 

• The plaintiff bears the burden of proof. At 

this stage, everything must be accepted 

as true for purpose of our motion to dismiss, 

but that is not the case on summary 

judgment. 

• Here are the litigation steps that you can 

expect: initial pleadings, written discovery, 

depositions, experts, motion for 

summary judgment, trial. We will meet 

again, face to face, to prepare for your 

deposition. 

• You are represented by counsel, and I 

would not send anyone to speak to you 

without telling you first. 

• There is an exposure to punitive 

damages. 

• There are no “home runs,” “slam dunks,” 

or “open and shut cases” for the officer. 

• If you want to, please go ahead and 

speak to an attorney from your Fraternal 

Order of Police or union, and give 

the attorney my contact information. 

I would be happy to talk to him or her 

about the case. Many officers want to 

know that you have no problem with 

this. The majority will not consult. And 

of the ones that do, the most that usually 

occurs is the other attorney will request 

periodic updates. This may go further 

than anything else you say in establishing 

your credibility. 

Win 

Well, that’s simple enough. Just win every 

case, and you’ll have no problem. Barring 

that, however, you should keep a few other 

things in mind. If you settle, and some- 


times you must settle, do everything that 

you can to have your individual officer 

dismissed from the case before the court 

enters the Federal Rule of Civil Procedure 

41 order. This is very important to an active 

police officer who may well face a lawsuit 

again and will want to be able to say that 

there was a settlement with the municipality, 

not with him or her individually. If 

you don’t win, don’t let it be because you 

didn’t fight. Law enforcement officers are 

accustomed to the fact that things don’t 

always go as planned and that juries seem 

as if they didn’t hear the same case that you 

put on. That said, they are more in tune to 

those who phone it in than professionals in 

almost any other profession. They expect 

your best. Finally, eight of 10 law enforcement 

clients want to know during your 

first meeting what they can do at the end 

of litigation to go after the plaintiff and his 

or her attorney for defamation, fraud, or 

many other heartfelt but sometimes inaccurate 

descriptors. I have used the same 

answer every time, the same answer that a 

wise City Solicitor gave to me when I was 

sued for excessive force: “If, when this all 

over, you wait 30 days, and then still want 

to sue, call me. While I don’t do that kind 

of work, I can give you the names of a few 

attorneys who do. I think that you will be 

glad to have the plaintiff out of your life at 

that point, but you call me if the 30 days 

pass and you feel the same.” I never made 

the call, and in eight years of civil rights 

defense, not one officer has made the call to 

me. Law enforcement officers are realists, 

and a realist knows that suing a plaintiff at 

the end of a successful defense is a losing 

proposition even when you win. Knowing 

that he or she may be sued again, an officer 

will go out and save a life, take a life, or 

give a life. This is the horse of a different 

color whom you represent. You are fortunate, 

indeed. 

Conclusion 

Law enforcement officers are unique clients: 

unique in the jobs that they do, and 

unique in their demands as clients. They 

are called upon during any given to day 

to be prepared to save a life, give a life, or 

take a life. Each of these unique responsibilities 

comes with an attendant exposure 

to liability. Called upon to defend such a 

client, a wise defense attorney will learn 

the basics of law enforcement, participate 

in and encourage training, communicate 

with his or her client like no other, and 

provide the best defense possible. A law 

enforcement officer is like no other, and 

he or she demands an attorney willing to 

spend the time to understand the breed. 

An attorney need not have been a police 

officer to represent a police officer. Expand 

your sense of humor to include the gallows 

humor necessary to survive in police 

work while maintaining the dignity of 

our profession. A police officer appreciates 

that you can take a joke but would rather 

have a skilled litigator under these circumstances 

than someone to have a beer with. 

The cases that a civil rights defense attorney 

handles are among the most interesting 

imaginable, and there is never a dull 

moment. Understanding the makeup of 

those you represent will make your chosen 

profession itself a horse of a different color, 

and a true pleasure.

ethics , from page 88 

as they do private clients. As a result, several 

bar ethics committees have reasoned 

that government agencies or entities may 

waive conflicts of interest in most circumstances. 

See, e.g., ABA Comm. on Legal 

Ethics & Prof’l Responsibility, Formal Op. 

Think Globally , from page 87 

the collective protection of diffuse rights, 

transindividual, indivisible, belonging to 

a group linked by a factual circumstance; 

collective interests, transindividual, indivisible, 

belonging to a group linked by a 

juridical relationship; and homogenous 

individual rights, deriving from a common 

origin. Public Attorneys’ Offices, the 

Public Defender’s Office, the Federal Union, 

the states, municipalities, public entities, 

and civil associations having consumer 

defense as an institutional purpose have 

legal standing to file collective consumer 

lawsuits. Recent legislative proposals have 

Writers’ Corner , from page 86 

in phrasing sentencing factors. 526 U.S. at 

256 (Kennedy, J. dissenting). 

The Supreme Court, in Watson v. United 

States, 552 U.S. 74 (2007), also struggled 

with statutory interpretation of another 

criminal statute, 18 U.S.C.A. §924. The 

Court observed that the use of the passive 

voice in the provision “any firearm or 

ammunition involved in or used” created 

ambiguity about who does the using. 

In United States v. Wilson, 503 U.S. 329 

(1992), the Supreme Court recognized that 

when Congress writes a statute using the 

97-405, at 4–5 (1997); D.C. Bar Legal Ethics 

Comm., Op. 268 (Oct. 1996); Ill. State 

Bar Ass’n, Comm. on Prof’l Conduct, Advisory 

Op. 94-21, at 4 (Mar. 1995) (retaining, 

however, per se prohibition against 

consent when representations are related). 

In short, courts should treat conflicts of 

sought to enlarge the parties with standing 

to file collective lawsuits to include political 

parties, union and trade associations, and 

bar associations. 

While the Consumer Defense Code has 

brought many important innovations to 

product liability rules in Brazil and is still 

viewed as a modern, effective consumer 

protection system, more than two decades 

have gone by since its enactment. Thus, 

a legislative committee has proposed an 

amendment seeking to contemplate the 

latest changes in consumer relations. In 

addition to proposing relevant innovations 

on e- commerce and super- indebtedness, 

passive voice, it often fails to indicate who 

must take a required action. The Sentencing 

Reform Act, 18 U.S.C. §3551, was modified 

from its original active voice and 

reference to the U.S. attorney general, to 

passive voice with no reference to who 

must take action. There, the Court ultimately 

determined that Congress’s conversion 

from the active voice into the passive 

voice created slim ground for presuming an 

intention to change well- established procedures. 

In his dissent, Justice Stevens argued 

that Congress’s use of the passive voice 

Over-the-Road , from page 68 of the myriad of issues presented when 

calculation because the employee experienced 

actual economic gain from the payment. 

Generally, lease payments paid to 

an employee for leasing equipment to the 

employer are not considered wages for purposes 

of calculating workers’ compensation 

benefits. See Landstar Ranger v. Kent, 828 

So. 2d 322 (Ala. Civ. App. 2002). 

Conclusion 

An attorney for an insurer of or a self- 

insured motor carrier must be mindful 

handling workers’ compensation claims 

involving over-the-road drivers. Does your 

state statute actually provide jurisdiction 

over the claim? Does a jurisdictional agreement 

exist in the employment contract, 

and if so, is it enforceable? Is there a chance 

that the injured driver will challenge his 

or her status as an independent contractor 

and that a court will set it aside? Has 

the driver received compensation benefits 

from another state, and if so, how does that 

limit his or her entitlement to additional 

interest involving government clients as 

they would those affecting private clients. 

Courts should judge a lawyer’s ability to 

obtain consent to conflicting representations 

on a case-by-case basis under applicable 

rules of professional conduct. 

among other things, in collective litigation 

the proposed Consumer Defense Code 

amendment (1) allows judges to shift the 

burden of proof until the decision and 

alter the sequence of procedural events; 

(2) establishes that the territorial effects of 

collective lawsuits decisions are no longer 

restricted to the jurisdiction of the court, 

following the recent trend of our superior 

courts; (3) allows a court to promote public 

hearings on collective lawsuit themes; 

(4) allows plaintiffs to request information 

from private parties. The National Congress 

is expected to vote on and enact the 

amendment within the next year. 

leaves open the question of who should 

make the sentencing decision. 

Since the passive voice often confuses a 

reader when interpreting statutes, lawyers 

may also be confusing judges when writing 

their motions or briefs in the passive voice. 

Lawyers must realize that in reality writing 

is crucial to the practice of law and winning 

a case. Therefore, in minimizing the use of 

the passive voice in legal documents, you 

may increase your chances of persuading a 

busy judge rather than frustrating or putting 

him or her to sleep. 

benefits? Does the case involve a potential 

third-party claim arising from the driver’s 

injuries, and if so, what do you need to do 

to preserve your client’s subrogation rights? 

Has the driver received per diem payments 

in the past, and if so, should those payments 

be included in the wage calculation? 

These are just some of the complex legal 

issues that you could face handling a workers’ 

compensation claim involving an overthe-road 

driver. Addressing these issues 

early in a case will ensure an efficient resolution 

of the claim. 


advocates 

Kip Joseph Adams , Boston, MA 

Marshall D. Bilder , Trenton, NJ 

Mary Beth Boone , 

Brunswick, GA 

James M. Bowie , Portland, ME 

Carol Brocci , Charlotte, NC 

Wilton V. Byars III , Oxford, MS 

Keith A. Call , Salt Lake City, UT 

Robert A. Carson , Chicago, IL 

Paul G. Cereghini , Phoenix, AZ 

Kevin E. Clark , Birmingham, AL 

John W. Cowden , 

Kansas City, MO 

Sarah E. Cullen , Little Rock, AR 

Jeffrey T. Davis , Springfield, MO 

John B. Davis II , 

Baton Rouge, LA 

J. Tyler Dinsmore , 

Charleston, WV 

Christopher E. Dougherty , 

Philadelphia, PA 

Andrew B. Downs , 

San Francisco, CA 

J. Cole Dowsley, Jr. , 

Nashville, TN 

Jeffrey D. Dyess , 

Birmingham, AL 

Mark A. Fahleson , Lincoln, NE 

Harold J. Flanagan , 

New Orleans, LA 

William M. Hake , 

San Francisco, CA 

William Stuart Jackson , 

Little Rock, AR 

Jeffrey M. James , Tampa, FL 

Alice S. Johnston , 

Philadelphia, PA 

Melody J. Jolly , Wilmington, NC 

Lance J. Kalik , Morristown, NJ 

M. Anne Kaufold-Wiggins , 

Atlanta, GA 

Toyja E. Kelley , Baltimore, MD 

C. Bailey King, Jr. , 

Charlotte, NC 

Martin P. Lavelle , Hartford, CT 

Robert R. Leight , Pittsburgh, PA 

Markham Richard Leventhal , 

Miami, FL 

Shari Claire Lewis , 

Uniondale, NY 

David J. MacMain , 

West Chester, PA 

J. Scott Maidment , Toronto, ON 

Elio F. Martinez, Jr. , 

Coral Gables, FL 

Edith R. Matthai , 

Los Angeles, CA 

Katie L. Templeton Mehl , 

Oklahoma City, OK 

advOcaTes and new MeMbeRs 

Each month, DRI welcomes new members from the United States and Canada and abroad. Some of these new 

members have been recommended by current members actively involved in advancing goals shared by DRI. Any 

individual who recommends a new member is recognized as an “Advocate” for DRI. 


Laurie E. Meyer , Milwaukee, WI 

Amy L. Miletich , Denver, CO 

Stuart P. Miller , Little Rock, AR 

Matthew T. Nelson , 

Grand Rapids, MI 

Heather H. Neubauer , 

Minneapolis, MN 

Daniel J. O’Connell , Chicago, IL 

Lana Alcorn Olson , 

Birmingham, AL 

Joseph J. Popolizio , 

Phoenix, AZ 

Paul A. Rajkowski , 

Saint Cloud, MN 

D. Michael Reilly , Seattle, WA 

Mary Massaron Ross , 

Bloomfield Hills, MI 

Michael P. Sams , Boston, MA 

Paul R. Sanderson , 

Bismarck, ND 

David Scouton , 


Spencer H. Silverglate , 

Miami, FL 

Rolf E. Sonnesyn , 


Michelle Stewart , 

Overland Park, KS 

William G. Stone , Chicago, IL 

Richard Shane Strabala , 

Little Rock, AR 

Melanie Kim Suhrada , 

New York, NY 

Robert E. Thackston , Dallas, TX 

Dale O. Thornsjo , 


Roger Dale Townsend , 

Houston, TX 

Hilton H. Walters , 

Oklahoma City, OK 

Margaret Fonshell Ward , 

Baltimore, MD 

Stanley P. Wellman , 

Richmond, VA 

Frank R. Whiteley , Metairie, LA 

New Members 

Alabama 

Brie L.B. Buchanan , 

Birmingham 

Parker D. Kasmer , Birmingham 

Jonathan Little , Birmingham 

Arizona 

Jamey G. Anderson , Phoenix 

John Daniel Campbell , 

Phoenix 

Diana Elston , Phoenix 

Jessica J. Kokal , Phoenix 

Robert A. Mandel , Phoenix 

Thomas A. Maraz , Phoenix 

Kristy L. Peters , Phoenix 

James Sienicki , Phoenix 

Thomas G. Stack , Phoenix 

Michael F. Tamm , Phoenix 

Jeffrey C. Warren , Phoenix 

Taylor C. Young , Phoenix 

Kelley Heide Martin , 

Scottsdale 

David Rauch , Scottsdale 

Arkansas 

John D. Davis , Little Rock 

Jacquelyn Harrison , Little Rock 

Cody Kees , Little Rock 

Karen Whatley , Little Rock 

Robert Ryan Younger , 

Little Rock 

California 

Jean Marie Daly , Los Angeles 

Charles William Jenkins , 

Los Angeles 

Avril Love , Los Angeles 

Jason Patrick Tortorici , 

Los Angeles 

Ronald Specter , 

Newport Beach 

Mark Eric Hellenkamp , 

San Diego 

Robert Buccieri , San Francisco 

Anet Medeli Castro , 

San Francisco 

Paul Hausknecht , 

San Francisco 

Derek S. Johnson , 

San Francisco 

Douglas Kent Wood , 

San Francisco 

John Hochhausler , San Gabriel 

Colorado 

Giovanni Michael Ruscitti , 

Boulder 

Brendan Benson , Denver 

Sara Claire Sharp , Denver 

Connecticut 

James E. Hennessey , Hartford 

Robert Helfand , Simsbury 

District of Columbia 

Brianne Bharkhda , Washington 

Paul D. Clement , Washington 

Carter G. Phillips , Washington 

Florida 

Michael J. Crist , Coral Gables 

Eduardo J. Medina , 

Coral Gables 

Barbara Viniegra , Coral Gables 

Amardeep Kaur Bharj , Miami 

Jeffrey Lam , Miami 

Genevieve Turner , Miami 

Celena R. Nash , Miami Lakes 

C. Scott Ross , Orlando 

Stephen J. Bagge , Tampa 

Lawrence P. Ingram , Tampa 

Hudson Jones , Tampa 

Georgia 

Chiaka Adele , Atlanta 

E. Righton Johnson , Atlanta 

Gregory T. Presmanes , Atlanta 

Michael G. Frick , Brunswick 

Idaho 

Joshua S. Evett , Boise 

Steve P. Wieland , Boise 

Illinois 

Andrew Albright , Chicago 

Christian Dancy Ambler , 

Chicago 

Brandon J. McNulty , Chicago 

Lynn H. Murray , Chicago 

Patrick T. Nash , Chicago 

Joyce F. Noyes , Chicago 

Caroline Linder Olson , 

Chicago 

Stephanie Ann Petersmarck , 

Chicago 

James R. Swinehart , Chicago 

Indiana 

Krystal Lechner , Evansville 

Victoria Calhoon , Indianapolis 

Ashley Gillenwater Eade , 

New Albany 

Iowa 

Annemarie M. Kelly , 

Des Moines 

Kansas 

James C. Spencer , Wichita 

Sean D. Walsh , Wichita 

Kentucky 

Marcus A. Roland , Lexington 

Holly Kent , Louisville 

Louisiana 

Andrew C. Kolb , Baton Rouge 

Carl J. Giffin, Jr. , Metairie 

Andrea L. Albert , New Orleans 

James R. Carter , New Orleans 

Andy Dupre , New Orleans 

Rachel S. Kellogg , New Orleans 

Robert J. May , New Orleans 

Court C. VanTassell , 

New Orleans 

Laurie Briggs Young , 

New Orleans 

Maine 

Sarah Gayer , Portland 

Maryland 

Catherine Anne Bledsoe , 

Baltimore 

Joshua H. Joseph , Baltimore 

Danielle Marone , Baltimore 

Patrick D. McKevitt , Baltimore 

Jonathan D. Nelson , Baltimore 

Benjamin Saul Vaughan , 

Rockville 

Kambon R. Williams , Towson 

Massachusetts 

Laura E. Bange , Boston 

Nancy Holtz , Boston 

Andrew R. Weiner , Boston 

Harvey Nosowitz , Cambridge 

Michigan 

James A. Sheridan , 

Bloomfield Hills 

Nathan S. Scherbarth , Detroit 

John Inhulsen , Grand Rapids 

Jeffrey G. Muth , Grand Rapids 

Joe Sadler , Grand Rapids 

Minnesota 

Kevin A. Velasquez , Mankato 

Jacalyn N. Chinander , 

Minneapolis 

Emily L. Mugaas , Minneapolis 

Henry Pfutzenreuter , 

Minneapolis 

Joanna Marie Salmen , 

Minneapolis 

Courtney Ann Sekevitch , 

Minneapolis 

M. Gregory Simpson , 

Minneapolis 

Nisha Taneja , Minneapolis 

Ryan Wade Wahlund , 

Minneapolis 

Katherine O. Fossey , 

Saint Cloud 

Mississippi 

D. Sterling Kidd , Jackson 

Jessica Banahan McNeel , 

Pascagoula 

Paul S. Rosenblatt , Ridgeland 

Missouri 

Gretchen Elizabeth Landherr , 

Kansas City 

Kristen Michael O’Neal , 

Springfield

Nebraska 

Shelia Bentzen , Lincoln 

Nevada 

Margaret G. Foley , Las Vegas 

Christopher M. Henderson , 

Las Vegas 

Priscilla L. O’Briant , Las Vegas 

New Jersey 

Jessie Christine Basner , 

Cedar Knolls 

Brian J. Whiteman , 

Florham Park 

Tracey K. Wishert , Morristown 

Jason S. Feinstein , Trenton 

New York 

Michael J. Fleming , Brooklyn 

Deirdre Elizabeth Tracey , 

Lake Success 

Robert B. Acker , New York 

Michael J. Byrne , New York 

Richard Miles Freiman , 

New York 

Michael P. Kandler , New York 

Steve P. Nassi , New York 

John A. Snyder , New York 

Avigael Fyman , Uniondale 

Seth B. Goldberg , Uniondale 

North Carolina 

Andrew N. Bernardini , Charlotte 

Garry Davis , Charlotte 

David M. Galbavy , Charlotte 

Adrienne Gilman , Charlotte 

Lori E. Gilmore , Charlotte 

Kara S. Glidewell , Charlotte 

Joseph Hamrick , Charlotte 

Michael Hummel , Charlotte 

Lang Hunter , Charlotte 

Jeffrey Kuykendal , Charlotte 

Timothy P. Lendino , Charlotte 

James D. McAlister , Charlotte 

Daniel McCullough , Charlotte 

Viral V. Mehta , Charlotte 

Sally Moran , Charlotte 

Eloise O. Morgan , Charlotte 

Colin Scott , Charlotte 

Rodney P. Sherman , Charlotte 

Janiere Taylor , Charlotte 

Cameron S. Wesley , Charlotte 

R.J. Williams , Charlotte 

Jackie Houser , Goldsboro 

Laura Carter , Raleigh 

Ed Coleman , Raleigh 

Audrey H. Groseclose , Raleigh 

Chad Halliday , Raleigh 

Webster Harrison , Raleigh 

Jack S. Holmes , Raleigh 

Cassie Keen , Raleigh 

Chrystina Kesler , Raleigh 

Carolyn Marcus , Raleigh 

Benjamin R. Moeller , Raleigh 

Caroline Paul , Raleigh 

Keith Richardson , Raleigh 

Layla T. Santa Rosa , Raleigh 

Susie Sewell , Wilmington 

John E. Pueschel , 

Winston-Salem 

North Dakota 

Rebecca L. Binstock , Bismarck 

Scott K. Porsborg , Bismarck 

Lawrence P. Kropp , Jamestown 

Ohio 

Tariq M. Naeem , Cleveland 

Oklahoma 

Brian Hansford , Oklahoma City 

Hailey M. Hopper , 

Oklahoma City 

Raegan Sifferman , 

Oklahoma City 

Valerie Renee Smith , 

Oklahoma City 

Jessica L. Speegle , 

Oklahoma City 

Joe Charles Vann , 

Oklahoma City 

Oregon 

Kristen S. David , Oregon City 

Joseph C. Arellano , Portland 

Matthew C. Casey , Portland 

Sara Cassidey , Portland 

Erin Catherman , Portland 

Nikhil T. Chourey , Portland 

Robert S. Dorband , Portland 

Susan Marie Dunaway , 

Portland 

C. Marie Eckert , Portland 

William John Edgar , Portland 

Paul Rene Xochihua , Portland 

Pennsylvania 

Kimberly A. Baubonis , Berwyn 

Gregory William Fox , 

Philadelphia 

Ryan Leonard , Philadelphia 

Gregory Michael Stokes , 

Philadelphia 

Abigail McElroy Faett , 

Pittsburgh 

Brent A. Cossrow , Radnor 

Brian H. Leinhauser , 

West Chester 

Rhode Island 

James R. Oswald , Providence 

South Carolina 

Brian O’Keefe , Charleston 

Chad Abramson , Columbia 

Brett Bayne , Columbia 

Robert Trippett Boineau III , 

Columbia 

Barrett Burley , Columbia 

Charles E. Carpenter, Jr. , 

Columbia 

Andy Delaney , Columbia 

George Gallagher , Columbia 

Mundi George , Columbia 

Christopher Gibbs , Columbia 

Landon Hughey , Columbia 

James Lichty , Columbia 

Jason W. Lockhart , Columbia 

Stuart Moore , Columbia 

Kelly Morrow , Columbia 

Matthew Moser , Columbia 

Paul Newell , Columbia 

Jason Pittman , Columbia 

Elizabeth Render , Columbia 

Drew Richardson , Columbia 

Heath Stewart , Columbia 

Charles Williams , Columbia 

Scott Winburn , Columbia 

Mark A. Allison , Greenville 

Alaina Beach , Greenville 

Walter Frye , Greenville 

Randy Hedlund , Greenville 

Katie Lyall , Greenville 

Beth McMillan , Greenville 

Amanda Mellard , Greenville 

Regan Cobb , Mount Pleasant 

Ben Cruse , Mount Pleasant 

Ben Davis , Mount Pleasant 

Mark Davis , Mount Pleasant 

Carl Edwards , Mount Pleasant 

Anne Marie Hagood , 

Mount Pleasant 

Erin Hantske , Mount Pleasant 

Andrew Luadzers , 


Blake McKie , Mount Pleasant 

Gunnar Nistad , Mount Pleasant 

Robert Sansbury , 


Christina A. Bisset , 

Myrtle Beach 

Alan Jones , Myrtle Beach 

Shayna Rasmussen , 

Myrtle Beach 

Joseph Sandefur , Myrtle Beach 

South Dakota 

Cesar A. Juarez , Sioux Falls 

Tennessee 

Daniel G. Cossey , Memphis 

Richard D. Underwood , 

Memphis 

Pele Ituau Godkin , Spring Hill 

Texas 

Beverly M. Bond , Dallas 

Deborah Junek , Dallas 

Brent M. Karren , Dallas 

Oliver Krejs , Dallas 

Samuel A. Houston , Houston 

Kent Hale , Lubbock 

Keith H. Odenweller , Spring 

James B. Edwards , Stafford 

Thomas Francis O’Connell III , 

The Woodlands 

Utah 

Adam Micheal Pace , 

Salt Lake City 

Vermont 

Brian Patrick Monaghan , 

Burlington 

Virginia 

Spiros D. Komis , Arlington 

Benjamin N. Spence , 

Glen Allen 

Clinton Verity , Glen Allen 

D. Margeaux Thomas , 

McLean 

Dare Essig , Richmond 

Sally Jean Moore , 

Virginia Beach 

Washington 

Jeffrey Lee Gingold , 

Bainbridge Island 

Daniel R. Bentson , Seattle 

West Virginia 

Joshua C. Dotson , Charleston 

Megan Leigh Fulcher , 

Charleston 

Christopher M. Jones , 

Charleston 

Wisconsin 

Julia Blair Semenak , 

Milwaukee 

Patrick L. Wells , Milwaukee 

Canada 

British Columbia 

Paul Mooney , Vancouver 

Quebec 

Sidney Elbaz , Montréal 

Newest addition to 

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For The Defense, December 2012 - DRI Today

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