For The Defense, December 2011 - DRI Today

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On The RecORd 

“May I Be Heard?” 

DRI Is Listening 

By John E. Cuttino, DRI Board of Directors 

We all share a basic human desire to be heard—to have 

others listen to us. Is that not among the highest compliments—to 

have someone interested and willing to listen 

to what we have to say? Those of us in the legal profession 

have a particularly strong need to be heard and to convey 

our opinions or knowledge through the written or 

spoken word. How often have you pleaded, “Your honor, 

may I be heard?” Do you find it hard to resist filing just 

one more reply brief? I confess, it was nearly impossible 

for me to hold this column to a respectable length. Perhaps 

this need in us is a function of our personalities; we 

tend to consider ourselves smart, creative, and almost 

always in possession of something that the world needs 

to hear. Perhaps it is related to our legal education, which 

trains us to analyze mountains of information and to 

achieve some result that we must report. Or perhaps it 

stems from our professional lives and the steady stream 

of amazing facts, unique personalities, and quirks in the 

law that keep us entertained and provide “war stories” 

that we want to tell. Others notice this need in us also. 

In fact, my favorite layman’s quote about the legal profession 

is this: “Attorneys mistake talk for action.” There 

is uncomfortable truth in that statement. Too often we 

think that if we can make ourselves heard on an issue 

long enough, if we can make just one more point, we have 

conquered it. Problem solved! Would our clients agree? 

My late father was an interesting and interested man. 

He was a seminary- educated theologian and minister, a 

college professor, and a wise and witty observer of human 

nature. His professional life included thousands of 

hours of speaking to classes, congregations, and countless 

other gatherings of varying sizes and seriousness. 

But he never missed an opportunity to remind me that 

he had learned far more by listening than by speaking. In 

his words, “You don’t learn much when you’re talking.” 

But listening is a vanishing art, apparently so close to 

extinction that we can take courses on “active listening” 

designed to “increase our productivity” and “improve 

our personal relationships.” In Henry IV, part 2, Shakespeare 

lamented “the disease of not listening,” a condition 

I believe has become considerably worse over the 

400 or so years since the “Bard of Avon” diagnosed it. 

Twenty-four-hour news cycles, cell phones, i- whatevers, 

and on- demand information make it mighty hard to listen 

to your friends, family, and colleagues, even when 

you want to. The fact is that real listening doesn’t just 

happen; it requires effort. And as difficult as it is for us 

as individuals to listen, it is even more difficult for an 

entire organization to listen. So when an organization 

does listen, it is noteworthy. 

Membership in DRI provides many advantages. Perhaps 

the greatest is belonging to a professional organization 

that considers listening vital to its mission. 

Listening has long been second nature in the culture of 

DRI. We began as the “Defense Research Institute” in 

1960, dedicated to acquiring information to use to educate, 

promote, and improve the civil defense bar. Our 

magnificent organization continues to listen today in 

ways large and small. In fact, listening is what DRI is 

designed to do. Consider these examples: 

DRI members listen to each other. This occurs in 

countless ways throughout DRI every day. DRI’s success 

depends on the meaningful participation of its volunteer 

membership. DRI members generate the ideas for educational 

seminar topics and speakers, articles and publications 

of interest to the profession, and research work 

on matters of current relevance, such as judicial independence, 

climate change, and tort reform. Through 

its structure of 29 substantive law committees and the 

Law Institute, DRI promotes free exchanges of thought. 

The DRI Board of Directors’ work is characterized by 

open discussion and, on a personal note, has afforded 

me the opportunity to share thoughts and ideas with 

some of the brightest folks that our profession has to 

offer, each of whom always listened with interest and 

open- mindedness. The success of the DRI 2011 national 

membership initiative is largely owing to the multitude 

of good ideas offered not only by the Membership Committee, 

but by many other members interested in growing 

the organization. DRI is likewise vitally interested in 

unique perspectives, as evidenced by the Diversity, the 

Women in the Law, and the Young Lawyers Committees, 

as well as DRI International. DRI and its individual 

members win when we listen to each other. 

DRI listens to the SLDOs. With its national reach, 

perspective, and vast educational resources, DRI stands 

as a valuable asset to the nation’s individual state and 

local defense organizations (SLDOs). The DRI State Representatives 

keep DRI advised about legal trends and 

challenges arising in the states. These days in particular, 

DRI and the state-based defense organizations are “better 

together,” working to support each other and the civil 

defense bar. To that end, DRI always seeks input on how 

On The Record

DRI—The Voice 

of the Defense Bar 

Vol. 53, No. 12 December 2011 

President Henry M. Sneath 

Pittsburgh, Pennsylvania 

Immediate Past President R. Matthew Cairns 

Concord, New Hampshire 

President-Elect Mary Massaron Ross 

Detroit, Michigan 

1st Vice President J. Michael Weston 

Cedar Rapids, Iowa 

2nd Vice President John Parker Sweeney 

Baltimore, Maryland 

Secretary-Treasurer Laura E. Proctor 

Nashville, Tennessee 

Executive Director John R. Kouris 

Deputy Executive Director Tyler Howes 

Director of Publications Jay Ludlam 

Editor Michelle Parrini 

Production Manager Julia Bergerud 

Contributing Editor Marge Motluck 

Advertising 

Representative Laurie P. Mokry 

For The Defense, December 2011, Vol. 53, No. 12 (ISSN 

0015-6884). Copyright ©2011, DRI. All rights reserved. 

Published monthly by DRI, 55 West Monroe Street ~ 

Suite 2000, Chicago, Illinois 60603. Telephone: (312) 

795-1101. Fax: (312) 795-0747. 

Periodicals postage paid at Chicago, Illinois, and at 

additional mailing offices. Subscription price is $65.00 

per year, and, for DRI members, is included in the membership 

dues. Individual copies are $7.00 for DRI members 

and $12.00 for non-members, plus postage and 

handling. 

POSTMASTER: Send address changes to For The 

Defense, DRI, 55 West Monroe Street ~ Suite 2000, Chicago, 

Illinois 60603. 

Correspondence and manuscripts should be sent to 

the Editor. 

All views, opinions and conclusions expressed in this 

magazine are those of the authors, and do not necessarily 

reflect the opinion and/or policy of DRI and its 

leadership. 

2 ■ For The Defense ■ December 2011 

In ThIs Issue 

1 On The Record 

“May I Be Heard?” DRI Is Listening By John E. Cuttino, DRI Board of Directors 

4 DRI News 

Members on the Move • DRI Calendar 

6 2011 Annual Meeting 

DRI Today—The Next 50 Years 

ProducT LIabILITy 

26 Past Is Prologue 

Still No Service for Cell 

Phone Radiation Litigation 

By Lawrence G. Cetrulo, 

Michael J. Cahalane 

and Robert J.L. Moore 

ProfessIonaL LIabILITy 

34 The Times They Are A-Changin’ 

Lawyers’ Professional Liability Insurance 

By Stephen S. van Wert 

drug and MedIcaL devIce 

40 FDA Regulation 

Off-Label Promotion and the First Amendment 

By Michael A. Walsh 

TruckIng Law 

48 From the Chair 

One New Idea—One New Friend 

By Kurt M. Rozelsky 

50 Rapid Response Teams 

Investigation of Catastrophic Accidents 

By Durward D. Casteel and Aaron J. Messer 

55 To Cooperate or Not…That Is the Question! 

Postaccident Police Investigations 

By Brian Del Gatto and Julia Paridis 

59 An Essential Element of Risk Management 

Battling Bias Against Truckers 

By Stockard R. Hickey III and Paula J. Gabier, Ph.D. 

31 One Size Doesn’t Fit All 

Analyzing Punitive Damages 

Reprehensibility 

By Diane Flannery 

and Jason Burnette 

78 Writers’ Corner 

Social Proof: Why Precedents Are Persuasive By Linda Morkan 

80 Think Globally 

10 Tips: Obtaining Evidence Successfully in Canada to Use in a Foreign Proceeding 

By Richard McCluskey and Lisa Parliament 

88 Advocates and New Members 

63 Welcome to the United States 

Mexico as a Partner Under 

the 2011 Trucking MOU 

By Jenifer L. Kienle and William B. Springer 

66 Wake-Up Call for Carrier and Driver 

Falling Asleep Can Result 

in Punitive Damages 

By Marshal M. Pitchford 

and Christopher E. Cotter 

71 FMSCA Safety Evaluation 

CSA—The Final Version? 

By Philip M. Gulisano and Thomas J. Lang

© 2011 Thomson Reuters L-367045/11-11 

Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters. 

JD BY DAY, 

DJ BY NIGHT. 

| Rishi Bagga (a.k.a. DJ Rishi B) 

Business Attorney, Orlando 

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DRI Services 

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Phone (312) 795-1101 

Fax (312) 795-0747 

Internet www.dri.org 

E-mail dri@dri.org 

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dRI news 


Members on the Move West agreed to provide attendees with relevant sec- 

Daniel T. Rabbitt, Jr., of St. Louis, a fellow of the 

American College of Trial Lawyers and listed in the 

Best Lawyers in America under the Personal Injury 

Defense Category for the last 23 years, started the 

Rabbitt Law Firm LLC earlier this year and recently 

moved to permanent space. 

Duane Morris partner Demetrious C. (Jim) Batsides 

will be installed as the new president of the Trial 

Attorneys of New Jersey at the organization’s 44th 

Annual Trial Bar Banquet. Mr. Batsides is a trial attorney 

in Duane Morris’s Newark, New Jersey, and 

New York City offices. His practice focuses on the defense 

and counseling of health care companies; clinical 

and genetics laboratories; pharmaceutical and 

medical device manufacturers; medical and laboratory 

professionals; and product distributors, retailers, 

and manufacturers. He has extensive experience 

in cases involving complex liability and medical causation 

issues and has represented clients in cases involving 

claims for significant personal injuries and 

economic damages from catastrophic neurological 

injury wrongful death, wrongful birth, loss of fertility, 

toxic exposure, and failure to diagnose cancer. 

Mr. Batsides also routinely counsels health care clients 

and products manufacturers on risk management 

best practices and regulatory compliance issues. 

Marie Milie Jones has been awarded the St. Thomas 

More Award, the highest honor given by the St. Thomas 

More Society for Catholic lawyers. Following the annual 

Red Mass on October 11, 2011, Ms. Jones was 

presented this honor at a dinner held at Duquesne University. 

This award coincides annually with the Red 

Mass, wherein guidance and blessings are sought for 

the bench and bar. Ms. Jones currently serves as chair 

of the board of directors of Duquesne University and is 

a member of the board of regents of St. Vincent Seminary. 

She practices law in the recently formed boutique 

litigation firm of JonesPassodelis, P.L.L.C. 

On Friday, October 21, 2011, Dennis Wall of Winter 

Springs and Orlando, Florida, co- presented a West 

Legal Education Webinar, “Disasters in Insurance.” 

tions from one of Mr. Wall’s book, CATClaims: Insurance 

Coverage for Natural and Man-Made Disasters, 

as well as PowerPoint slides drafted especially for 

the webinar. 

Robert J. Sniffen and Michael P. Spellman, the 

two principals of Sniffen & Spellman, P.A., have 

again been selected by their peers for inclusion in the 

2012 edition of Best Lawyers in America in the practice 

areas of employment law management, labor law 

management and litigation labor and employment. 

Selection to Best Lawyers is based on an exhaustive 

and rigorous peer- review survey (comprising more 

that 3.9 million confidential evaluations by fellow 

top attorneys). 

Williams Venker & Sanders has been included 

in U.S. News & World Report’s 2011 Best Law Firms 

listing for the St. Louis metropolitan area. The firm 

was given the highest ranking of “Tier 1” for its work 

in medical malpractice defense, personal injury 

defense, and product liability defense. This is the second 

consecutive year that Williams Venker & Sanders 

has received the Tier 1 ranking in these three 

practice areas. Williams Venker & Sanders partners 

and DRI members Theodore J. Williams, Jr., and 

Paul N. Venker have been included in the Best Lawyers 

in America rankings for many years. 

Reminger Co. LPA is proud to announce that two 

of their partners, Kenneth P. Abbarno and Mario 

C. Ciano have been honored as 2012 Best Lawyers 

in America “Lawyers of the Year” for Cleveland. 

Mr. Abbarno received the recognition in the area of 

transportation law, and Mr. Ciano in personal injury 

litigation defense. Honorees are selected by conducting 

peer- review surveys in which thousands of 

leading lawyers confidentially evaluate their peers. 

The lawyers honored as “Lawyers of the Year” have 

received particularly high ratings in these surveys by 

earning a high level of respect among their peers for 

their professionalism, ability, and integrity. 

Marge Motluck 

Diversity and Inclusion in DRI: A Statement of Principle 

DRI is the largest international membership organization of attorneys defending the interests 

of business and individuals in civil litigation. 

Diversity is a core value at DRI. Indeed, diversity is fundamental to the success of the 

organization, and we seek out and embrace the innumerable benefits and contributions that the perspectives, 

backgrounds, cultures, and life experiences a diverse membership provides. 

Inclusiveness is the chief means to increase the diversity of DRI’s membership and leadership positions. DRI’s 

members and potential leaders are often also members and leaders of other defense organizations. Accordingly, 

DRI encourages all national, state, and local defense organizations to promote diversity and inclusion in their 

membership and leadership.

Calendar 

Upcoming events 

of interest to 

DRI members and 

other defense lawyers 

For more information 

about any of these 

events, call DRI 

Customer Service at 

(312) 795-1101, 

or visit our website at 

www.dri.org. 

DRi Calend

DRI ToDay— 

The NexT 

50 yeaRs 

2011 annuaL MeeTIng 

DRI was proud to bring this year’s Annual Meeting—DRI’s 16th—back to Washington, 

D.C., where our nation’s capital played host to attendees of the defense bar’s 

signature event from October 26–30. The Annual Meeting, now recognized as a 

world-class program and a must- attend event for defense bar leaders, defense lawyers, 

and corporate counsel, set new highs in terms of blockbuster speakers and also 

delivered the top-notch continuing legal education events, important committee 

and state and local defense organizations (SLDO) meetings, and endless networking 

opportunities that have come to be expected. 

More than 1,500 attendees heard from President Bill Clinton, Founder of the William 

J. Clinton Foundation and 42nd President of the United States, on how to embrace 

our common humanity. Associate Justice of the U.S. Supreme Court Antonin Scalia and 

Bryan A. Garner, Founder and President of LawProse, Inc., presented excerpts from 

their recent collaboration, Making Your Case: The Art of Persuading Judges, and shared 

insights on the principles of persuasion, legal reasoning, brief writing and oral argument. 

Nora O’Donnell, chief White House correspondent for CBS, addressed the SLDO 

Leadership Breakfast attendees, providing a detailed sense of the complex issues in the 

news today and insights on the key Washington power players. Attendees of the Thursday 

Awards Luncheon were treated to a presentation by political columnist, TV personality, 

and radio host Tony Blankley, who presented on The Politics of Change in a Crucial 

American Moment. John S. Pistole, Administrator of 

the TSA, gave attendees valuable insights in to our 

nation’s transportation and security system in his presentation 

on Transportation Security—Its Evolution 

and Future. Trial advocacy experts Thomas A. Mauet 

and Dominic J. Gianna provided the final substantive 

portion of the meeting with an interactive three-hour 

blockbuster that focused on dynamic ways to view the 

arts of advocacy and persuasion. Overall, more than 

90 speakers presented during three days of programs. 

Mark Your Calendars! The 17th DRI Annual Meeting will be 

held on October 24–28, 2012, at the New Orleans Marriott in New 

Orleans, Louisiana. Information regarding early registration and 

quality education will be available in the coming months. 


From left: Matt Cairns, Toyja Kelley, 

Karen Glickstein, Cary Hiltgen (partially 

hidden), John Kuppens, Laura Proctor, 

John Kouris (partially hidden), Mike 

Weston (partially hidden), Lise 

Spacapan, Mary Massaron Ross, John 

Parker Sweeney, Henry Sneath 

The Annual Meeting means the 

election of new DRI leadership, and the organization 

is honored to announce its new 

president, Henry M. Sneath of Picadio Sneath 

Miller & Norton PC in Pittsburgh. Continuing 

to serve the organization as an officer is 

R. Matthew Cairns of Gallagher, Callahan 

& Gartrell PC in Concord, New Hampshire, 

who is now immediate past president. 

Mary Massaron Ross of Plunkett Cooney 

PC in Detroit is now DRI’s president- elect, 

and J. Michael Weston of Lederer Weston 

Craig PLC in Cedar Rapids, Iowa, rises to 

first vice president. Each year, by election of 

the DRI Board of Directors, two new officers 

are also chosen at the Annual Meeting. 

DRI congratulates John Parker Sweeney of 

Womble Carlyle Sandridge & Rice PLLC 

in Baltimore for his election to the office 

of second vice president. Mr. Sweeney will 

become the DRI President in 2014. Laura E. 

Proctor of LP Building Products in Nashville, 

Tennessee, was again elected as the 

organization’s secretary- treasurer. 

National directors were also elected to 

serve on DRI’s board: Karen R. Glickstein of 

Polsinelli Shughart PC in Kansas City, Missouri; 

Toyja E. Kelley of Tydings & Rosenberg 

LLP in Baltimore; John F. Kuppens of 

Nelson Mullins Riley & Scarborough LLP 

in Columbia, South Carolina; and Lise T. 

Spacapan of Jenner & Block LLP in Chicago. 

They join DRI’s new regional directors who 

were selected this summer: R. Bruce Barze, 

Jr., of Balch & Bingham in Birmingham, Alabama; 

John J. Burke of Hall Farley Oberrecht 

in Boise, Idaho; Stephen R. Crislip of 

Jackson Kelly in Charleston, West Virginia; 

and Glenn M. Zakaib of Cassels Brock & 

Blackwell in Toronto, Ontario.

A young guest gets hands-on reporting 

experience at the Newseum. 

As always, the Annual Meeting 

featured evening entertainment, 

beginning on Wednesday 

with the First-Time Attendees 

and DRI New Member Reception 

in the Exhibit Showcase, which 

was followed by the never- to- 

be- missed Welcome Reception— 

D.C. Style! Thursday highlights 

included the very popular Diversity 

Reception and the off-site 

networking reception at the Newseum, 

the world’s most interactive 

museum, where attendees 

were treated to live music and 

great food in a place where five 

centuries of news history meets 

up- to- the- second technology. 

Never to be outdone, the Young Lawyers 

Committee once again hosted a terrific 

networking reception on Friday evening. 

The meeting concluded on Saturday 

evening with the annual President’s 

Gala—an evening devoted to excellent 

food, wine, and stimulating conversation. 

Along with the announcement of the new 

DRI leadership, this year’s gala featured 

the conclusion of DRI’s silent auction, and 

the drawing of raffle winners. Both the 

auction and the raffle raised money for 

this year’s beneficiary, the National Foundation 

for Judicial Excellence. Heartfelt 

thanks to all of the raffle participants, auction 

winners and bidders, and especially 

to the auction item donors, as the auction 

raised $35,000 and the raffle $4,500! 

The Thursday evening reception’s setting in the Newseum. 

The Newseum houses a broadcast antenna that stood 

atop the World Trade Center’s North Tower. 

Attendees meet at the Newseum’s historic 

section of the Berlin Wall. 

Attendees browse the 

selections available 

at the Silent Auction. 

Images of American presidents, including 

John F. Kennedy, set the mood at 

Wednesday evening’s 

Welcome 

Reception— 

D.C. Style! 

For The Defense ■ December 2011 ■ 7

Embracing Our 

Common Humanity— 

President Clinton 

Headlines 2011 DRI 

Annual Meeting 

“We have something very, very 

special for everybody,” announced then 

DRI President- Elect Henry M. Sneath to 

a packed ballroom, as he introduced this 

year’s featured Annual Meeting speaker. 

He was right. DRI was honored to welcome 

Bill Clinton, 42nd president of the 

United States, to the blockbuster stage, 

where he delivered a sobering yet hopeful 

message to Annual Meeting attendees 

and their guests on “Embracing Our 

Common Humanity.” 

In opening his address, President Clinton 

said that people often ask him about 

the nation’s potential long-term decline 

and whether we have started to see the 

beginning of the end of America. “A lot 

of people are betting against us,” he said, 

“but I wouldn’t do it if I were you.” The 

president went on to explain why he felt 

that way and discussed, in the context of 

the world today, several of the important 

problems faced by the country. 


First, however, President Clinton 

offered the audience some positives. The 

president said that scientific research 

represents one example of how the world 

cooperates in some remarkable ways. 

He pointed to recent discoveries such as 

planets outside of our solar system, new 

information about our hominid ancestors, 

and recent developments in particle 

physics that may, in our lifetimes, upend 

everything that we think that we know 

about space and time. He said that cooperation 

is also what we need to achieve 

the goals of solving economic problems 

and ameliorating bad social conditions. 

“In the world we live in,” said President 

Clinton, “we’ve learned one thing: 

that the most important characteristic 

of the twenty-first century is our interdependence.” 

Interdependence, he said, 

can be good or bad, and the president 

told attendees that he organizes his life 

around a principle that involves build- 

ing up the positive, while reducing the 

negative, forces of our interdependence. 

In discussing the massive problems 

facing our country and the world today, 

President Clinton devoted significant 

time to the issue of inequality, which he 

said is far too pervasive to hold societies 

together and keep people working cooperatively. 

He talked about how social 

challenges—whether stemming from 

economic strife, education shortcomings, 

climate change-driven disasters, or 

disease—present themselves very differently 

in poor countries than in wealthy 

countries. Poor countries lack systems, 

the kind of systems that provide many of 

the things that we in this country probably 

take for granted. For example, the 

reason that Haiti experienced a cholera 

outbreak was that it lacked a sanitation 

system. Inadequate health care 

systems in poor countries have fueled 

the spread of AIDS. Poor countries are

in need of improved education systems, 

honest governance systems, and systems 

designed to attract investments and 

improve infrastructure. 

While poor countries suffer from 

these systems voids, in wealthy countries, 

the systems in place can become 

problematic, according to President Clinton. 

In wealthy countries, systems now 

function primarily to preserve the systems, 

and the people running the systems 

are more interested in holding on to 

what they have than working to advance 

the purposes for which the systems were 

originally designed. This, he believes, 

is evident in the tensions surrounding 

income disparity, the lack of a good, 

vibrant debate on role of government, 

and regular attempts to disenfranchise 

the American voters. That is why building 

and reforming systems, by working 

with governments and the private sector, 

is a primary focus of the work that 

he does with his foundation. 

“We’re going to be fine,” said President 

Clinton, “but we need to have the right 

debate. And in the world, we need to keep 

in mind that the choices will be more 

Your membership 

in DRI is as 

unique as you are 

Use the new (private) Member 

Dashboard on the DRI 

website—a one of a kind tool 

that enables you to view and 

track activites tied to your 

DRI membership. You can 

securely access the following 

information: 

■ DRI CLE Materials 

(brochures, course 

materials and rosters) 

■ DRI Activities 

■ DRI Membership Details 

■ DRI Advocates 

inequality or a future of shared prosperity; 

more instability or a future of shared 

responsibility; and a sense of our common 

humanity, which will lead us to do 

the right thing to save the planet for our 

children and grandchildren.” 

After concluding his speech, President 

Clinton fielded several questions 

from Mr. Sneath. When Mr. Sneath asked 

the president about his view on the current 

negative political discourse, especially 

as presented by the media, the 

president said that the debate we’re having 

right now is not a real debate, and 

that he pleads that we actually get down 

to a discussion of what our real choices 

are. Asked to evaluate the relationship 

between terrorism and the economy, 

Mr. Clinton recalled a recent address 

Secretary of State Hillary Clinton gave 

in which she emphasized that economic 

strength cannot be divorced from 

national security. According to the president, 

if people in the United States do 

not feel secure enough in their own economic 

fortunes, they are not going to 

support the investment needed to build 

more partnerships around the world and 

reduce the threat of terrorism. When Mr. 

Sneath asked how we can rebuild confidence 

in the financial markets without 

creating inequities, President Clinton 

emphasized the importance of addressing 

mortgage debt and updating infrastructure 

if we want to see a return to the 

growth of the 1990s. Finally, when asked 

to identify the accomplishment from 

his presidency that makes him the most 

proud, President Clinton gave Mr. Sneath 

a specific answer and a general one. Specifically, 

he pointed to the 22.7 million 

jobs created during his administration, 

92 percent of which were in the private 

sector, as well the 7.7 million people who 

moved from poverty to the middle class 

during those eight years, which was 100 

times as many as during President Ronald 

Reagan’s two terms. He also said that 

he was generally proud of the fact that 

when he left office, it was understood that 

the government, the private sector, and 

individuals had to cooperate to achieve 

progress. People had confidence in government 

and expected to solve problems 

together. 

The new Member Dashboard and 

enhanced MyDRI Profile oer you a 

unique and compelling opportunity 

to demonstrate your expertise to 

your clients and are great ways to 

maximize your membership in DRI. 

■ ENGAGE ■ CONNECT ■ GROW ■ LEARN ■ The DRI Community 

Login today at 

www.dri.org 


Scalia and Garner: Making Your Case— 

The Art of Persuading Judges 

Bryan A. Garner (left) and 

Justice Antonin Scalia 

The 2011 Annual Meeting blockbuster 

line up of speakers kicked off on 

Thursday morning with United States 

Supreme Court Justice Antonin Scalia 

and awardwinning author and leading 

legal editor Bryan A. Garner, who joined 

forces to write a book to address the ageold 

question: How do effective advocates 

persuade courts to decide cases in 

favor of their clients? Teaching from several 

sections of their book, Making Your 

Case: The Art of Persuading Judges, the 

two offered advice, with a healthy dose of 

humor, to a full ballroom on how lawyers 

can achieve best results in brief writing 

and oral argument, along with warnings 

on practices to avoid. 

For example, recalling their book’s 

section on never overstating your case, 

Mr. Garner said that the advocate should 

ask him- or herself if he or she can understate 

the case and still have it work. If, in 

your argument, you are “having to rely 

on words like ‘clearly’ and ‘obviously’ 

and that sort of thing to carry your way, 

it’s not a good argument,” he said. On the 

book’s section on why you should lead 

with your strongest point, Mr. Garner 


japed that it’s “because judges are most 

awake at the beginning of the argument.” 

He also said “first impressions last,” that 

“if you begin with a strong argument, the 

judge will think you have a strong case,” 

and that “in some contexts, such as oral 

argument, you may never get off your 

first point.” 

Justice Scalia then addressed the question 

of whether you should still lead with 

your best argument if you are second to 

argue, or if it is better to first refute the 

arguments that your opponent has just 

made. On that point, he said that he and 

Mr. Garner agreed with Aristotle’s philosophy 

that a previous argument must 

first be refuted, especially if it was well 

received. “You have to make space,” said 

Justice Scalia, drawing on his experience 

from the bench, “you have to knock down 

this powerful argument…, then I can listen 

to you.” 

Scalia and Garner also talked about 

the importance of making sure that 

the arguments upon which you rely are 

responsible and defensible, while at the 

same time having the sense to yield the 

indefensible points in your case. “Yield 

ostentatiously!” Justice Scalia recommended, 

“Show the court how reasonable 

you are.” 

In presenting any brief or oral argument, 

Justice Scalia underscored how 

important it is to “get the issue out front.” 

He remarked that he is surprised at the 

number of briefs he reads (not from his 

Court) that start with a recitation of the 

facts, which only leaves him wondering 

what he is supposed to be looking for— 

what’s important? He also underscored 

the importance of knowing your audience. 

“You should scope out the judges 

you’re appearing for profoundly before 

you write your brief or before you stand 

up,” Justice Scalia said. 

Mr. Garner spoke about the nuts and 

bolts of composing briefs, touching on 

the importance of effective point headings. 

He also addressed some points 

of oral argument strategy, reminding 

attendees that during oral argument, 

questions go one way. You should never 

ask a judge what he or she would have 

done in certain circumstances or even 

if you’ve answered a judge’s question to 

his or her satisfaction. On the subject of 

questions, Justice Scalia said that good 

advocates should welcome not only questions, 

but also hypotheticals from the 

bench. He admonished attendees to avoid 

a practice that vexes him, which is when 

a lawyer responds to a hypothetical presented 

by the court by saying that it’s “not 

this case.” He knows it’s not this case, it’s 

a hypothetical! As an appellate judge, his 

main concern is not necessarily with the 

result of the case before him—he is in 

charge of creating a rule. “If it produces 

a happy result in this case, that’s wonderful,” 

said Justice Scalia, “but my main 

concern is [whether] this rule will produce 

justice in the vast majority of cases 

to which it will be applied in the future.” 

Justice Scalia and Mr. Garner were 

kind enough to remain long after the 

conclusion of their presentation for a 

book signing, of which several hundred 

Annual Meeting attendees and their 

guests were pleased to take advantage.

Tony Blankley—The Politics of Change 

in a Crucial American Moment 

A special feature during this 

year’s DRI Annual Meeting Awards Luncheon 

was the presentation by columnist, 

TV personality, and radio host, 

Tony Blankley, who provided a clear 

and witty view of American politics in 

real time. Calling on his years as a pundit, 

commentator, and party strategist, 

he unscrambled the complexities of the 

political puzzle and positioned them in 

a precise and nuanced way. Mr. Blankley 

discussed the current political dynamic 

in Washington, D.C., and the forces that 

we can expect to drive policy changes in 

the foreseeable future. 

Mr. Blankley said that he has “a global 

sense about what might be happening” 

and believes that we’re moving—not only 

in the United States, but in Western European 

democracies—into a new era of politics. 

Since World War II, incumbents 

have had the best positions to achieve 

election, he explained. With the exception 

of President Jimmy Carter’s one 

term in the wake of the Watergate scandal, 

“we have not had a single time when 

one party or the other took control of 

the White House and didn’t hold it for 

at least eight years.” He said that now, as 

he observes not only President Obama’s 

approval ratings, but also those of many 

European leaders, incumbents will have 

difficulty holding voter confidence, given 

the state of the world economy. “As long 

as these conditions are not satisfactory to 

the average, middle- class, Western voter, 

it’s not going to be a happy task to be an 

incumbent.” He pointed to the dramatic 

number of national congressional seats 

that have changed parties in recent elections, 

and said that this force may drive 

the country’s future for a while. 

Mr. Blankley said that in recent 

years he has dubbed Washington, D.C., 

“the most dangerous city in the world” 

because just a handful of people could 

make decisions that could shape the 

planet. Now, he thinks that Washington 

remains “the most dangerous city 

in America, because they can’t do anything. 

We can’t scratch our noses to save 

our lives,” he quipped. “This town is 

completely paralyzed and frozen in this 

gridlock and struggle of two parties who 

are raging at each other.” Mr. Blankley 

said that this political climate has 

shaken people’s confidence in government 

and pointed to startlingly low polling 

numbers on consumer confidence as 

evidence. 

Although current approval numbers 

would not seem likely to instill much 

optimism in the Obama camp, when 

discussing the president’s reelection 

chances, Mr. Blankley cautioned that 

we cannot know the future, and President 

Obama does have some things 

on his side—for instance, the Republican 

slate. He said that it reminded him 

of the old Henny Youngman one liner: 

when asked, “How’s your wife?,” Mr. 

Youngman would respond, “Compared 

to what?” Mr. Blankley said that he looks 

at the president and sees this admirable, 

highly intelligent, articulate man— 

and then he looks at the other side. Of 

the Republican candidates, he believes 

that Mr. Romney is in a “pretty strong 

position,” but he stopped short of calling 

him a frontrunner. The fact that the 

Republican primary season usually experiences 

a strong turnout from the more 

conservative side of the party hinders 

Mr. Romney, as does that the last time 

around when the GOP nominated Senator 

McCain, viewed as the “moderate” 

choice, it didn’t turn out so well for the 

GOP in the general election. 

Answering audience questions, Mr. 

Blankley said that he didn’t think that 

President Obama’s foreign policy successes 

would factor into the result 

come election time. He also said that 

while both parties understand that the 

“Occupy” protests could become a factor 

in the 2012 elections, neither party knows 

where it will go yet, so they remain cautious 

of attaching themselves to one side 

or the other. 


Transportation Security— 

Its Evolution and Future 

Friday afternoon’s blockbuster speaker was John S. Pistole, who became administrator 

of the federal Transportation Security Administration (TSA) in July 2010. 

Mr. Pistole oversees management of the security operations of more than 450 federalized 

airports throughout the United States, the Federal Air Marshal Service, and the 

security for highways, railroads, ports, mass transit systems, and pipelines. During 

this interactive session, which featured audience questions and answers, Mr. Pistole 

talked about the origins of the TSA and the context in which it operates. He discussed 

the threats that the TSA works to combat, including those that existed before, on, and 

since 9/11, and compared and contrasted how the TSA has dealt with threats pre- and 

post-9/11. Mr. Pistole also addressed some of the legal issues involved in the important 

work that Congress has charged the TSA with executing. 

WikiLeaks, the Sequel—Preparing and Defending 

American Corporations Against Wholesale 

Disclosure of Confidential Information 

Moderator Kenneth G. Gormley, Dean and Professor, Duquesne University, School of Law Pittsburgh and (from left) panelists George Freeman, Vice 

President and Assistant General Counsel, The New York Times Company; Douglas R. Edwards, Assistant General Counsel, Litigation and Workout 

Division, Wells Fargo & Co.; and Randy S. Chartash, Assistant United States Attorney, U.S. Attorney’s Office, Northern District of Georgia, address Annual 

Meeting attendees at a Friday afternoon education session. This cutting- edge program included a perfect combination of experts who discussed how 

corporations and their in-house and outside counsel can prepare for, react to, and defend WikiLeaks’ corporate sequel. They also addressed the new 

privacy conundrums that are lurking around the corner. 

12 ■ For The Defense ■ December 2011

Advocacy for the Generations— 

Days of Future… Past 

Dominic J. Gianna 

Talk about ending on a high note. As is 

customary, Saturday morning witnessed the final blockbuster 

presentation of the DRI Annual Meeting in the 

form of a fast-paced, high-tech, one-of-a-kind session 

from two internationally recognized masters of the art of 

persuasion: Thomas A. Mauet and Dominic J. Gianna. Mr. 

Mauet and Mr. Gianna used their unique blend of knowledge, 

educational expertise, and humor to lead their audience 

through centuries of advocacy, from Cicero to social 

media, from the past to the future and beyond. 

Using classic and popular film clips and live demonstrations, 

Mr. Mauet and Mr. Gianna illustrated how 

modern jurors think and why they act, explained communication 

differences among generations, and explored 

how to persuade jurors best once you understand those 

generational differences. In short, they illuminated how 

to “crack the jury code.” Describing what modern juries 

want from defense lawyers, they also offered some the 

fundamental mistakes to avoid. Interweaving Cicero’s 

seven maxims for the persuasive orator, Mr. Mauet and 

Mr. Gianna discussed the best ways, through visceral and 

visual communication, to frame your case with universal 

truths that will create in jurors the will to care about 

your position. 

The Distracted Nation—How 

Heavy Use of Technology Alters 

Our Behavior and Brains and 

Killed Two Rocket Scientists 

Pulitzer Prize- winning New 

York Times journalist Matthew 

D. Richtel speaks to Annual 

Meeting attendees on Friday 

morning in an education 

session that was moderated 

by Kurt M. Rozelsky of 

Smith Moore Leatherwood 

LLP and presented by the 

Insurance Law and Trucking 

Law Committees. Mr. Richtel 

provided attendees with a 

method for using technology 

to enhance productivity and 

personal interaction, yet avoid 

having it undermine our lives. 

Thomas A. Mauet 


The Awards 

This year during the DRI Annual 

Meeting, DRI honored individuals and 

institutions with 11 awards that recognized 

their contributions to important 

areas of the law, the profession, and the 

defense bar. 

■ The Louis B. Potter Lifetime Professional 

Service Award recognizes lifetime 

contributions to the profession. The recipient 

of this award serves the best interests 

of clients and the public and exemplifies 

professionalism and professional service 

beyond observing the legal profession’s 

ethical rules. His or her conduct demonstrates 

respect for the law, upholds the decorum 

and integrity of all aspects of the 

judicial process, and preserves and enhances 

the public image of the legal profession. 

This year’s recipient was James W. 

Morris III. Mr. Morris is chair of Morris & 

Morris PC in Richmond, Virginia, where 

he practices civil litigation. He has written 

and spoken extensively on legal topics 

before a variety of organizations and 

has lectured on trial practice at the law 

schools of the University of Virginia and 

the University of Richmond. He has been 

included in the publication The Best Lawyers 

in America from its inception. Based 

on a poll of his peers, he is regularly identified 

as one of the “elite” trial lawyers in 

Virginia in Virginia Business Magazine. 

Louis B. Potter Lifetime Professional Service Award recipient James W. Morris III with R. Matthew Cairns, DRI 

President 2010–11. 


He is named one of the “Top Ten Super- 

Lawyers” in Virginia by Richmond Magazine 

and the SuperLawyers of America. 

He has tried over 500 cases to jury verdict 

in his career. 

Mr. Morris is a past president of DRI 

(1988). He is a past recipient of the Award 

for Excellence in Civil Litigation by the 

Virginia Association of Defense Attorneys. 

He has also been presented with 

the Hunter W. Martin Professionalism 

Award by the Bar Association of the City 

of Richmond. 

■ To honor a DRI member involved in 

community or public service activities 

that demonstrate active and outstanding 

commitment to improving the social 

or cultural well being of the general public 

through programs that have a positive 

impact on a community segment or 

the general public, DRI bestows the Community 

Service Award. Joseph M. Hanna, 

a partner of Goldberg Segalla in Buffalo, 

New York, received the award for 2011. 

Mr. Hanna is the founder and president 

of the nonprofit organization Bunkers 

in Baghdad, whose mission is to 

collect and supply new and used golf 

equipment to U.S. soldiers in combat 

zones and to Wounded Warriors programs 

across the country. It provides 

much-needed recreational outlet to our 

The Community Service Award is presented to 

Joseph M. Hanna. 

troops and is a rehabilitation aid to our 

soldiers recovering from injuries. More 

than two million golf balls and 50,000 

clubs have been distributed to active 

military members and veterans in all 50 

states and 11 countries. 

■ DRI conferred the Richard H. Krochock 

Award to Anne M. Talcott, a shareholder 

Schwabe, Williamson & Wyatt in 

Portland, Oregon. This award recognizes 

a DRI member who has provided exemplary 

leadership to the DRI Young Lawyers 

Committee through sponsorship or 

participation in its programs and activities, 

education, guidance, support, and 

mentoring and who has otherwise exhibited 

those qualities, enhancing the image 

of the civil defense trial lawyer. Ms. Talcott’s 

practice focuses on complex business 

and product liability litigation. She 

defends a broad range of clients in business 

disputes, class actions, mass torts, 

and automotive, pharmaceutical, and 

medical device product liability litigation. 

Ms. Talcott was selected as an Oregon 

Super Lawyer Rising Star in 2008, 

an honor bestowed on no more than two 

percent of eligible lawyers. She is chair 

of her firm’s Diversity Committee, where 

she was instrumental in implementing 

the firm’s First Year Law Student Diversity 

Scholarship Program. 

Ms. Talcott joined DRI as a young 

lawyer and became active in the Young 

Lawyers Committee, holding several leadership 

roles, including committee chair. 

She is an active member of several DRI

Anne M. Talcott is the recipient of the Richard H. 

Krochock Award. 

committees and was the chair of the 2011 

DRI Annual Meeting. Even with her busy 

practice and DRI work, Ms. Tal cott continues 

to serve as a resource to the Young 

Lawyers Committee and its members. 

■ The Davis Carr Outstanding Committee 

Chair Award was presented to 

Vickie L. Henry, a senior staff attorney 

at the Gay & Lesbian Advocates & 

Defenders (GLAD) office in Boston. This 

award honors a current or immediate 

past DRI committee chair under whom 

the committee has achieved its goals, has 

increased membership, has motivated 

member participation, including among 

minorities, has created and implemented 

new projects, and has filled all required 

committee leadership positions. 

Ms. Henry is a skilled litigator who 

came to GLAD from the law firm Foley 

Hoag LLP, where she worked for 15 years, 

becoming a partner in 2002. She focused 

her career on intellectual property and 

commercial litigation disputes. Ms. 

Henry is the recipient of many honors 

and awards. She received the Massachusetts 

LGBTQ Bar Association Pioneering 

Spirit Award in 2008. Ms. Henry has 

been named a Massachusetts Super Lawyer 

since 2004. 

Ms. Henry is the immediate past chair 

of DRI’s Commercial Litigation Committee. 

She has held several leadership 

roles within the committee and has continued 

the work of past committee leaders. 

The committee has thrived under her 

leadership. 

The Davis Carr Outstanding Committee Chair Award is 

presented to Vickie L. Henry. 

■ Asim K. Desai received the Albert 

H. Parnell Outstanding Program Chair 

Award. This award recognizes an individual 

who created a dynamic educational 

program enhancing DRI’s image and 

who has effectively led educational program 

planning, marketing, and presentation, 

displaying leadership, dedication, 

and creativity in seminar development 

and meeting organizational expectations 

for a seminar. 

Mr. Desai was the program chair for 

DRI’s Insurance Bad Faith and Extra- 

Contractual Liability Seminar in the 

summer of 2011. He effectively led the 

seminar programming committee from 

the early planning stages through the 

marketing phase. He kept the program 

on schedule and was thoroughly engaging 

as an on-site chair. Attendance and 

sponsorships exceeded the projections 

for the seminar. His dedication as program 

chair was remarkable and contributed 

to the program’s success. 

Mr. Desai is the managing partner of 

Carlson, Calladine & Peterson LLP’s Los 

Angeles office, where he specializes in 

high stakes complex litigation including 

insurance bad faith, corporate fraud, 

commercial litigation, product liability, 

and catastrophic personal injuries. 

■ DRI bestowed the Outstanding State 

Representative Award on Thomas J. Maroney, 

a founding member of Maroney 

O’Connor LLP in New York City. This 

award is presented to a current or immediate 

past DRI State Representative 

who has made significant contributions 

toward promoting 

DRI membership within his 

or her state. This recipient has 

also been instrumental in implementing 

a significant, unique 

program to foster the relationship 

between DRI and his or her 

SLDO, enhancing DRI’s stature 

or the public’s view of the role 

of the defense lawyer in society. 

Mr. Maroney has given generously 

of his time and talents 

as the DRI New York State Representative. 

His leadership skills 

have been beneficial in recruiting 

and retaining members for 

DRI and the Defense Association 

of New York (DANY). Mr. 

Maroney is a past- president of DANY, 

and now acts as an outstanding liaison 

between DRI and the DANY. 

Mr. Maroney has spent the last 29 

years dedicating his practice to high 

exposure, complex, and multi- party civil 

defense litigation. He serves as chair of 

the executive committee of the New York 

State Bar Association’s Torts, Insurance 

and Compensation Law Section. 

■ The SLDO Diversity Award is presented 

to a state or local defense organization 

that has achieved significant 

success in demonstrating a commitment 

to diversity within and outside the organization. 

The organization must also 

demonstrate a commitment to diversity 

as evidenced by a formal diversity 

The Albert H. Parnell Outstanding Program Chair Award is 

accepted by Anthony R. Zelle on behalf of Asim K. Desai. 


plan committed to achievement, sensitivity, 

and receptivity of diversity issues, 

including promotion of its minority and 

women lawyers or volunteers. The 2011 

recipient of the award was the Ohio Association 

of Civil Trial Attorneys (OACTA). 

OACTA is an organization of attorneys, 

corporate executives, and managers 

who devote a substantial portion of their 

time to the defense of civil lawsuits and 

the management of claims against individuals, 

corporations, and governmental 

entities. The mission of OACTA is to provide 

a forum where members can work 

together and with others on common 

problems and promote and improve the 

administration of justice in Ohio. 

OACTA believes that a diverse membership 

makes a stronger organization, 

encourages diversity in all aspects of its 

activities, and is committed to nurturing 

a culture that supports and promotes 

diversity. During the past year, OACTA 

announced its new annual Law Student 

Diversity Scholarship program, which is 

open to incoming second and third-year 

African American, Hispanic, Asian, Pan 

Asian, and Native American students enrolled 

at Ohio law schools. Incoming second 

and third-year female law students 

enrolled at Ohio law schools are also eligible 

regardless of race or ethnicity. 

■ The Law Firm Diversity Award recipient 

is a DRI member firm that has 

achieved significant success in the area 

of law office management, while also 


demonstrating commitment to 

increase diversity within and outside 

the firm as evidenced by a 

diversity plan sensitive and receptive 

to diversity and commitment 

to achieve it, as well as to promoting 

its minority and women 

lawyers. The 2011 recipient was 

Venable LLP. 2011 marks the 10th 

anniversary of Venable’s diversity 

program. Their diversity program 

does not have a formal structure. 

Rather, it consists of innovative 

and ongoing programs and initiatives 

that have the purposes of 

education, communication, retention, 

promotion, celebration, 

and more. The diversity program 

is managed by the firm’s Diversity 

Committee. The Diversity 

Committee is committed to ensuring that 

Venable’s commitment to attracting, retaining, 

and enhancing a diverse professional 

work force is realized through 

recruitment, education, mentoring, and 

professional development. The committee 

leads the diversity progress in the firm, 

monitors progress through retention and 

promotion, and regularly reports back to 

the managing partner, executive committee, 

and board. 

Diversity is recognized as a core value 

in Venable’s strategic plan, and diversity 

and inclusion are primary objectives 

of the plan. The strategic plan is carried 

out by the firm’s leaders and, at the firm, 

The Law Firm Diversity Award is accepted on behalf of 

Venable LLP by Craig A. Thompson, the firm’s Diversity 

Team Leader. 

Above left: The Outstanding State Representative Award is presented to Thomas J. Maroney of New York. Above right: The SLDO 

Diversity Award is accepted on behalf of Ohio Association of Civil Trial Attorneys (OACTA) by Gary L. Grubler, OACTA President (left) and 

Hilary S. Taylor, OACTA Diversity Committee Chair. 

commitment to diversity starts at the 

top. In addition to the managing partner, 

women and minorities serve as heads of 

important practice groups. 

■ Bonnie Refinski- Knight, an attorney 

at Harris, Creech, Ward & Backerby 

PA in New Bern, North Carolina, received 

the Fred H. Sievert Award Outstanding Defense 

Bar Leader Award. The award recognizes 

an individual who has exercised 

strong leadership to make a significant 

contribution toward achieving the goals 

and objectives of the organized defense 

bar as a current or immediate past president 

of a state or local defense organization 

and through innovative projects 

that bettered the organization. 

Ms. Refinski- 

Knight concentrates her 

practice in the defense of 

liability claims against 

physicians, nurses, and 

hospitals. She also represents 

clients in general 

civil litigation 

including automobile 

liability, breach of contract 

claims, warranty 

claims, construction liability, 

and general liability 

insurance claims. 

As president of the 

North Carolina Association 

of Defense 

Attorneys (NCADA), 

Ms. Refinski- Knight

Above left: The Fred H. Sievert Outstanding Defense Bar Leader Award goes to Bonnie Refinski- Knight, president of the North Carolina Association of Defense Attorneys. 

Above right: Accepting the Rudolph A. Janata Outstanding Defense Bar Association Award are (from left) David Cole, Executive Director of Pennsylvania Defense 

Institute (PDI); Craig Murphy, Immediate Past President of PDI, Matt Cairns and Patrick J. Sweeney, President-Elect of PDI and past member of the DRI Board of Directors. 

encouraged and actively worked to 

increase the profile and relevance of the 

organization, both internally and externally. 

She initiated a long range planning 

program. The NCADA proactively 

worked with the North Carolina Chamber 

and other business groups on tort 

reform recommendations for the legislative 

session. Under her leadership, the 

NCADA was more active in this legislative 

session than ever before, and is now 

recognized as a valuable resource to the 

business community. 

■ DRI honored the Pennsylvania 

Defense Institute (PDI) with the Rudolph 

A. Janata Outstanding Defense Bar Asso 

Proudly displaying the G. Duffield Smith Outstanding Publication Award 

are this year’s recipients Daniel J. Cooper (from left), Loren H. Brown, and 

Christopher Campbell. 

ciation Award. The recipient of this award 

is a state or local defense organization 

that has undertaken an innovative or 

unique program contributing to the goals 

and objectives of the organized defense 

bar. PDI was organized in December 

1969 and now boasts an impressive membership 

of approximately 1,000 lawyers, 

executives of insurance companies, self- 

insurers, and independent adjusters from 

across the state. 

PDI was a leader in the fight for tort 

reform this year that resulted in passage 

of the Fair Share Act as part of a coalition 

of business and insurance industry 

organizations committed to tort reform 

in Pennsylvania. 

Many PDI members 

contributed 

their time and 

efforts to accomplishing 

this 

important legislative 

reform. PDI 

published a “white 

paper” on the proposed 

legislation 

that served as the 

formal position of 

the coalition and 

was well received 

by the legislature. 

Several PDI members 

testified at 

legislative hearings 

on the legislation. 

■ Finally, the G. Duffield Smith Outstanding 

Publication Award was presented 

to Loren H. Brown, co-chair of 

DLA Piper’s product liability practice 

and a partner in the firm’s New York City 

office, Daniel J. Cooper, president of Lit- 

Strat Inc., a jury research and litigation 

consulting firm based in New York City, 

and Christopher G. Campbell, a partner 

in DLA Piper’s Atlanta office. The award 

honors the author or authors of a feature 

article published in For The Defense or 

In-House Defense Quarterly of current 

relevance to the practice interests of DRI 

members. The winning article should 

contain fresh, imaginative ideas that are 

well researched and presented in a lively 

writing style. Their article, “Sacking the 

Monday Morning Quarterback: Tackling 

Hindsight Bias in Failure- to- Warn 

Cases,” was published in the October 

2010 issue of For The Defense. 

This article, published as a part of the 

Drug and Medical Device Committee’s 

annual FTD collection, served two purposes: 

first, to examine hindsight bias 

in pharmaceutical failure- to- warn cases 

and other legal contexts; and second to 

offer practical tips to mitigate the effects 

of hindsight bias. It underscored how 

crucial it is for defense lawyers to recognize 

hindsight bias from the start, and to 

formulate a strategy that places a company’s 

decisions and actions in the appropriate 

historical context to mitigate the 

bias as much as possible. 


National Conclave of State and 

Local Defense Organizations 

Breaking News with 

Norah O’Donnell 

Emmy Award winning journalist Norah O’Donnell addresses 

attendees of the SLDO Leadership Breakfast. As Chief White 

House Correspondent for CBS News, principal substitute 

anchor for Face the Nation, and contributor for the awardwinning 

60 Minutes, Ms. O’Donnell is a trusted voice who has 

covered the major political stories of our time. At the SLDO 

Leadership Breakfast, Ms. O’Donnell went beyond today’s 

headlines to give attendees a more detailed sense of the 

complex issues in the news today. She offered insights on 

the key Washington power players and how the Obama 

administration works. 

Raising the 

Profile of Your 

Organization 

James D. Holland of Page 

Kruger & Holland PA in Jackson, 

Mississippi, Chair of the DRI SLDO 

Relationship Committee and 

DRI Southern Regional Director, 

speaks during a Thursday 

afternoon conclave session. 

A favorite topic among SLDO 

members and leaders is how to 

make your organization more 

effective and influential, and 

this group discussion, led by 

Mr. Holland, sought to answer that question, as participants exchanged ideas for 

raising the profile of SLDOs. 


As always, the DRI Annual Meeting 

featured the National Conclave of State 

and Local Defense Organizations, which is 

comprised of programs specifically dedicated 

to today’s SLDOs. All state representatives, 

SLDO officers, and executive 

directors were strongly encouraged to 

attend this year’s terrific line up of speakers 

and networking events, which was highlighted 

by Norah O’Donnell, who spoke 

at the Thursday SLDO Leadership Breakfast. 

Substantive sessions included presentations 

on legal audits, effective leadership 

communication, raising SLDO profiles, 

creating and maintaining judicial selection 

committees, member recruitment and 

retention, and more. Breakout sessions specific 

to executive directors, state representatives, 

and regional meeting planning 

were also held. 

Membership 

Recruitment 

and Retention— 

Strategies for 

Keeping and 

Growing Your 

Membership 

Robert M. Skelton, American 

Society of Association Executives 

(ASAE) Chief Administrative 

Officer, reviews the findings of 

two landmark research studies 

during a Friday afternoon 

conclave presentation. He 

discussed how the findings from 

the ASAE studies—The Decision to Join and The Decision to Volunteer—can help 

SLDOs better serve their members.

The 21st 

Century Juror 

Jennifer Haltom Doan of Haltom & Doan (at 

podium) moderates panelists Caren Myers 

Morrison, Assistant Professor, Georgia State 

University College of Law, and Hon. Dennis M. 

Sweeney, Howard County Circuit Court, Maryland, 

during the Thursday afternoon program 

presented by the Jury Preservation Task Force 

and the Technology and Trial Tactics Committees. 

The panel considered the ways in which current 

technology is changing jury trials in the twenty- 

first century, particularly in terms of jury selection, 

unauthorized juror research and commentary, and 

trial presentation. 

AlTeRnATIve DIspuTe ResoluTIon 

Mediating Employment Law Cases—Unique Cases 

Call for Creative Solutions 

In one of the ADR Committee’s Thursday afternoon 

presentations, Patricia L. Holland of Jackson Lewis 

LLP reviews several employment law mediation 

nuances, including joint-session tips, handling of 

emotions, settlement considerations other than 

money, release issues, tax consequences, and 

other points of interest in the swirl of federal and 

state statutory and common employment law 

claims. The committee also presented a session on 

“In-House and Outside Counsel Collaboration for 

Mediation Success,” by Erika J. Gardner of Home 

Depot USA Inc. and Robert D. Lang of D’Amato & Lynch LLP. 

Supreme Court Cases in 2011 

and DRI’s Amicus Efforts as the 

Voice of the Defense Bar 

Moderator Mary Massaron Ross of Plunkett Cooney PC (at podium), along with speakers (from left) 

Gregory G. Garre of Latham & Watkins LLP, Kannon K. Shanmugam of Williams & Connolly LLP, and Paul 

D. Clement of Bancroft PLLC, at the Thursday morning CLE session presented by the Appellate Advocacy 

Committee. The presentation included an overview of the recent Supreme Court term and cases of 

importance to those defending businesses and individuals in civil litigation. As part of this program, 

attendees learned why and how DRI is raising its amicus profile in the Supreme Court of the United 

States and other courts. 

AppellATe ADvoCACy 

What Judges Like and What They Don’t 

Hon. Douglas H. Ginsburg, U.S. 

Court of Appeals for the D.C. 

Circuit, provides attendees 

of Friday morning’s Appellate 

Advocacy Committee meeting 

with practical suggestions for 

improving appellate arguments. 

Committee Chair Scott Burnett 

Smith of Bradley Arant Boult 

Cummings LLP also spoke about 

this year’s blockbuster decisions 

in Wal-Mart v. Dukes, AT&T 

Mobility v. Concepcion, and Smith v. Bayer Corp. 

CoMMeRCIAl lITIgATIon 

Six Hot Litigation Picks for 2012 

Hope T. Cannon of Bradley Arant Boult Cummings LLP (left) and Michelle Thurber 

Czapski of Bodman PLC are among the six experts who looked into their crystal balls 

and described the six “lead-pipe cinch” hot litigation issues in commercial litigation 

for 2012. Subjects covered during this session, presented by the Commercial Litigation 

Committee on Thursday afternoon, included include business torts, intellectual 

property, class actions, sports law, antitrust, and UCC/contracts. Other speakers 

included Cynthia P. Arends of Nilan Johnson Lewis PA, James M. Burns of Williams 

Mullen, Joseph M. Hanna of Goldberg Segalla LLP, and Christopher T. Sheean of 

Swanson Martin & Bell LLP. 

For The Defense ■ December 2011 ■ For The Defense 19 

■ December 2011 ■ 19

Over Criminalization of Business Conduct—The 

Policies, Practices and Potential Remedies for the 

Government’s Latest Enforcement Actions 

Panelists for the Thursday morning presentation by the Drug and 

Medical Device and Government Enforcement and Corporate Compliance 

Committees discuss the latest enforcement actions of the U.S. Food and Drug 

Administration and the U.S. Securities and Exchange Commission and the 

effect such scrutiny is having on a broad range of industries. They also shared 

some best practices for managing these risks in the current environment. 

The panel included (from left) Howard Sklamberg, Director of the Office of 

ConsTRuCTIon lAW 

Defending Building Products in 

a Complex 

Construction 

Defect Claim 

Alan R. Levy of Buckly Zinober 

& Curtis PA discusses strategic 

considerations and other keys 

to defending claims against 

building product clients in a 

construction defect matter at the 

Friday morning meeting of the 

Trucking Law Committee. David 

V. Wilson of Hays McConn Rice & 

Pickering PC also spoke. 


Enforcement, U.S. Food and Drug Administration; Elpidio “PD” Villarreal, 

Senior Vice President–Global Litigation, GlaxoSmithKline PLC; Deborah Connor, 

Assistant United States Attorney Chief, Fraud and Public Corruption Section, 

United States Attorney’s Office; Stephen T. Gannon, Executive Vice President 

and Deputy General Counsel, Capital One Financial Corporation; and Peter S. 

Spivack of Hogan Lovells US LLP. Jonathan N. Rosen of Shook Hardy & Bacon 

LLP served as moderator. 

CoRpoRATe Counsel 

The Responsible Corporate Officer Doctrine—No 

Knowledge Is No Defense 

Douglas Stearn, Deputy Director for Policy and 

Analysis in the U.S. Food and Drug Administration 

Office of Compliance, provides his insight on 

current FDA enforcement trends, including the 

reemergence of the responsible corporate officer 

doctrine, during the Corporate Counsel Committee’s 

“in-house only” session on Wednesday afternoon. 

This program provided in-house attorneys with 

an understanding as to how the doctrine could 

be used to hold a corporate officer personally 

responsible for the conduct of his or her 

subordinates, even though the officer may not have knowledge of the alleged conduct. 

DIveRsITy 

Diversity at the Crossroads—Choosing a Path to Reverse the Attrition Rate Among 

Diverse Partners and Associates 

Then-Committee Chair Toyja E. Kelley (at podium) of 

Tydings & Rosenberg LLP, introduces speakers Taren N. 

Stanton of Thompson Hine LLP and William A. Sherman 

II of Dinsmore Shohl LLP to attendees of the Diversity 

Committee’s Friday afternoon CLE and business meeting. 

The panelists led a discussion that identified the unique 

problems that cause attrition among minority lawyers 

and provided concrete suggestions to reverse the flow of 

minority lawyers leaving law firms and the profession.

The “Miranda Warning” of Genetic Mapping— 

This Information Can Be Used Against You 

DRI InTeRnATIonAl 

Managing Cross-Border Litigation and Class Actions 

Speakers John L. Meltzer of Hogan Lovells LLP (from left), 

Timothy Pinos of Cassels Brock & Blackwell LLP, and Gordon 

McKee of Blake Cassels & Graydon LLP, provide helpful tips 

and suggestions for navigating international litigation in 

this Thursday session presented by DRI International. The 

panel discussed the need to coordinate efforts, strategies, 

and resources in an environment where international 

clients are increasingly faced with copy-cat actions arising 

from litigation that originated in the United States. Complex 

privacy issues, parallel regulatory proceedings, and the 

production of documents and information that originated 

in countries other than the United States but are sought by 

plaintiffs in U.S.-based litigation were also discussed. 

DRug AnD MeDICAl DevICe 

The Legal and the Practical—Updates 

on Issues Related 

to Preemption and 

Sales Representatives 

as Witnesses in 

Pharmaceutical Cases 

Joseph D. Cohen of Porter Hedges LLP 

talks to attendees of Thursday afternoon’s 

Drug and Medical Device Committee 

business meeting and CLE about recent 

grants of certiorari by the U.S. Supreme 

Court to consider preemption issues 

concerning generic manufacturers. 

The state of the law in this area and the potential ramifications for all 

manufacturers were discussed, as well as practical issues related to the role 

of sales representatives in pharmaceutical litigation and how to address 

plaintiffs’ attempts to portray these individuals and their jobs unfairly. 

John M. Conley of Robinson Bradshaw & Hinson 

PA speaks during a panel discussion that included 

(from left) Bernard Taylor, Sr., of Alston & Bird LLP 

(moderator); Misha Angrist, Assistant Professor, 

Institute for Genome Sciences and Policy, Duke 

University; and Gary E. Marchant, Lincoln Professor 

of Emerging Technologies, Law and Ethics, 

Sandra Day O’Connor College of Law, Arizona 

State University. During this Friday afternoon CLE 

presented by the Toxic Torts and Environmental 

Law Committee, these leading experts offered 

their insights on the potential application of the 

genetic revolution and explored the myriad of legal 

implications and issues that promise to follow. 

eleCTRonIC DIsCoveRy 

Backstopping E-Discovery—Drafting 

Effective Records Management Policies 

Phillip J. Duffy 

of Gibbons PC 

(seated) and John 

J. Jablonski of 

Goldberg Segalla 

LLP present the 

CLE portion of 

the Electronic 

Discovery 

Committee’s 

Thursday 

afternoon 

meeting. During 

the program the 

two underscored the importance of good records management, the benefits 

of having a defensible policy, and some of the key provisions that go into a 

well crafted records-management policy. 



Conquering the 

Generational Divide— 

What Makes the 

Generations Tick and 

What Ticks Them Off! 

Anna Liotta, President and CEO of Resultance Inc., reveals the 

distinct generational differences that impact the practice of 

law during a CLE session sponsored by the Diversity, Women 

in the Law, and Young Lawyers Committees. During the Friday 

morning program, Ms. Liotta offered suggestions for conquering 

this great divide to improve communications and attract, retain, 

and grow loyal clients and top talent from every generation. 

Douglas K. Burrell of Drew Eckl & Farnham LLP served as the 

program’s moderator. 

goveRnMenTAl lIAbIlITy 

The Perfect Storm—The True Story of How Inexcusable 

Mistakes and Failures at All Levels of City Government 

Led to the Payment of a Meritless Claim 

Casey C. Stansbury of Fowler Measle & Bell PLLC spoke to attendees of the Friday Governmental Liability Committee 

meeting about his experience defending a case involving whistleblower retaliation and ADEA violations and 

how he was able to control damages, defend under a reservation of rights, negotiate a settlement less than the 

plaintiff’s demand, and work with the city manager to put the city on a compliance path. 

InsuRAnCe lAW 

The History of Insurance Regulation—Applying a Century of 

Knowledge to Emerging 

Coverage Issues 

J. Stephen Zielezienski, Senior Vice President 

and General Counsel for the American 

Insurance Association (left) and Craig A. 

Berrington discuss the history of liability 

coverage, including the McCarran-Ferguson 

Act’s balance of regulatory and antitrust 

policy, the Dodd-Frank Act and its impact on 

state insurance regulation, and the current 

arguments for and against federal regulation 

of insurance, during the Friday meeting of the 

Insurance Law Committee. 

lAWyeRs’ pRoFessIonAlIsM AnD eThICs 

Professionalism and Ethics from the 

In-House Counsel Perspective 

During the CLE portion of Friday morning’s meeting of the Lawyers’ Professionalism and Ethics Committee, 

Victoria H. Roberts, Vice President and Corporate Counsel for Meadowbrook Insurance Group, and Clinton W. Thute, 

Regional Claims Manager for IFG Companies, led a discussion of the ethics issues that have become increasingly 

important to in-house counsel. Topics included the development of modern electronic technology, such as email, 

texting, Facebook, cloud computing, and multijurisdictional practice, and the implications of these developments 

on legal privileges, confidentiality, and conflicts of interest. 

eMployMenT 

AnD lAboR lAW 

The ADA 

Amendments 

Act of 2008— 

You Can Still 

Win Your 

Case Before 

It Starts 

Sidney R. Steinberg of Post & 

Schell PC spoke during the CLE 

portion of the Friday morning 

meeting of the Employment 

and Labor Law Committee. 

His presentation addressed 

how to continue to defend 

disability claims successfully in 

light of the 2008 amendments 

to the ADA. 

goveRnMenT 

enFoRCeMenT 

AnD CoRpoRATe 

CoMplIAnCe 

Health Care 

Fraud and the 

False Claims 

Act in 2011 

The Government Enforcement 

and Corporate Compliance 

Committee hosted a panel at 

its Friday morning meeting 

to discuss trends in health 

care fraud prosecutions 

under the False Claims Act, 

including notable judgments 

and settlements in 2011, 

federal policies regarding both 

criminal prosecutions and 

civil enforcement, and tactics 

that have proved successful in 

defending and even avoiding 

these claims. Moderated by 

Jason L. Drori of K & L Gates 

LLP, the panel included David 

L. Douglass of Shook Hardy 

& Bacon LLP, James W. Kraus 

of Pietragallo Gordon Alfano 

Bosick & Raspanti LLP, José P. 

Sierra of Fish & Richardson PC, 

and J. Kennedy Turner III of 

Butler Snow O’Mara Stevens & 

Cannada PLLC.

Without Fear or Favor—The Expanding 

Threats to Judicial Independence 

Hon. Alison L. Asti, Circuit Court for Anne Arundel County, Maryland; Hon. Mark D. Martin, Supreme Court of North Carolina; Hon. Paul J. De Muniz, Oregon 

Supreme Court; and moderator J. Michael Weston of Lederer Weston Craig PLC address attendees of the Friday afternoon CLE session presented by the Judicial 

Task Force and the Lawyers’ Professionalism and Ethics Committee. The panel engaged in a discussion designed to educate the private bar about threats to 

judicial independence, and to provoke a meaningful conversation about the tripartite system of government and its impact on achieving justice for our clients. 

lIFe, heAlTh AnD DIsAbIlITy 

Life Insurance Update— 

Rescissions and Stranger 

Originated Life Insurance 

Jason A. Walters of Bradley Arant Boult Cummings LLP 

summarizes recent STOLI case law, placing particular emphasis 

on the issue of insurable interest, during Friday’s Life, Health 

and Disability Committee meeting. Sarah J. Delaney of 

Goldberg Segalla LLP and Michael P. Cunningham of Funk & 

Bolton PA also gave presentations during the CLE session on 

“Social Media in Life, Health and Disability Claim Matters” and 

“2011 Hot Topics in Life, Health and Disability Law,” respectively. 

MeDICAl lIAbIlITy AnD heAlTh CARe lAW 

Health Care Associated Infections and Their Effect on 

Litigation 

Trish M. Perl, MD, and 

M. Lauree Barreca, RN, 

both of the John Hopkins 

Health System, discuss 

health care-associated 

infections that can 

become the subject of 

litigation and can also 

be relevant to defending 

medical malpractice 

cases and other types 

of personal injury 

matters in the Thursday afternoon session presented by the Medical Liability and Health Care Law 

Committee. Attendees learned about the underlying science as well as defenses to these claims. 

pRoDuCT lIAbIlITy 

“Cause” for Alarm—Enforcing 

the Causation Requirement 

in the Defense of Aggregate 

Consumer Fraud Claims 

Jeffrey A. Holmstrand of Flaherty Sensabaugh Bonasso 

PLLC (left) and Jessica Davidson Miller of Skadden 

Arps Slate Meagher & Flom LLP consider the types of 

consumer fraud suits defendants can expect to see in 

the coming years during their presentation at the Friday 

morning Product Liability Committee meeting. The 

speakers discussed how defendants facing statutory 

consumer fraud claims can most effectively defend 

against plaintiffs’ allegations, focusing on the developing 

jurisprudence regarding “causation,” particularly in 

various forms of aggregate litigation. 


pRoFessIonAl lIAbIlITy 

Sidestepping the Fraudulent Concealment 

Landmine 

Shana A. O’Grady of Mulherin Rehfeldt 

& Varchetto PC addresses claims of 

fraudulent concealment asserted against 

professionals as a means to avoid statutes 

of limitation defenses during the Thursday 

afternoon Professional Liability Committee 

meeting. Ms. O’Grady discussed the 

available defenses to such claims, as well 

as the policy debate regarding common 

law rules that subsume fraudulent 

concealment tolling provisions. 

ReTAIl AnD hospITAlITy 

Managing and Responding to a Crisis 

During the Retail and Hospitality Committee’s business meeting and CLE, 

Paul E. White of Sugarman Rogers Barshak & Cohen PC (left) and Jennifer 

Anderson Hoffman of Marlow Connell Abrams Adler Newman & Lewis 

PA draw on some real-life examples and a vivid hypothetical scenario to 

illustrate some of the key strategies that need to be employed to manage a 

crisis quickly, responsibly and effectively. 

TeChnology 

Technology Killed the Dinosaur— 

How to Defeat the Plaintiffs’ 

Bar’s Latest Reptile Strategy 

The newest trend among the plaintiffs’ bar involves triggering the 

“reptilian brain” in jurors. The book, Reptile: The 2009 Manual of the 

Plaintiff’s Revolution, suggests that jurors should be perceived as 

having reptilian-type brains that respond to survival instincts. During 

the Technology Committee’s business meeting and CLE on Thursday 

afternoon, Matthew G. Moffett of Gray Rust St. Amand Moffett & Brieske 

LLP taught attendees how to counter this “reptile” strategy using 

technological savvy and creative lawyering skills. 


ToxIC ToRTs AnD envIRonMenTAl lAW 

How the Restatement (Third) Confused 

Risk and Causation and 

Wound Up Restating 

Precautionary Principle 

David A. Oliver of Vorys Sater Seymour 

and Pease LLP shares his concerns about 

the potential effect of the Restatement 

(Third) on the future of toxic tort claims 

on Friday morning, when he was one 

of three presenters at the Toxic Torts 

and Environmental Law Committee’s 

business and CLE meeting. In addition, 

Keith B. Hall of Stone Pigman Walther 

Wittmann LLC presented “Hydraulic Fracturing and the Environment—Drink 

Up!,” Jill M. Hutchison of Jenner & Block LLP spoke on “Taking the Sting out of 

Stigma Damages—Combating Claims for Lost Property Value,” and Martha C. 

Gaythwaite of Friedman Gaythwaite Wolf & Leavitt LLP shared “War Stories 

from a Manufactured Gas Plant Trial.” 

TRIAl TACTICs 

Is the Collateral Source Rule Dead, Dying or 

Poised for a Comeback? 

John C.S. Pierce of Butler Pappas 

Weihmuller Katz Craig LLP talks during 

the Trial Tactics Committee’s Thursday 

meeting about the debate across the 

country about whether the collateral 

source rule protects the right of plaintiffs 

to collect the “billed” amount of medical 

services, as opposed to the amount “paid” 

for those services. Mr. Judge identified 

the different approaches used around the 

country, discussed emerging trends, and 

suggested arguments to help nudge a court in the right direction. Christopher 

A. Bottcher of Sirote & Permutt PC also spoke at the committee meeting on 

“Defending Lenders, Servicers and Nominees in Mortgage Litigation.” 

TRuCkIng lAW 

E-Discovery Issues Unique to Trucking 

Litigation 

Stacy Erin Rowell, Manager of Accident 

Claims/Legal, Southeastern Freight Lines 

brings her experienced perspective to 

describe the types of E-Info available 

through Engine Control Modules, on-board 

communications and satellite tracking 

systems, to name a few, at the Trucking 

Law Committee’s Thursday business 

meeting and CLE. Philip M. Gulisano 

of Burden Gulisano & Hickey LLC also 

presented at the meeting on “Federal 

Compliance, Safety and Accountability Initiative Safety Management Systems.”

WoMen In The lAW 

Defining and Promoting 

Your Personal Market Niche 

Theda C. Snyder 

of Ringler 

Associates, 

business 

development 

expert and 

author of 

Women 

Rainmakers’ 

Best Marketing 

Tips, speaks to 

attendees of 

Friday morning’s Women in the Law Committee 

meeting. Ms. Snyder discussed how women lawyers 

can become successful rainmakers and explained 

that developing a personalized and targeted 

marketing plan is the key. 

Abundant Networking 

Opportunities 

Below, a young lawyer-to-be dances at Friday evening’s perennial 

favorite, the Young Lawyers Networking Reception. 

WoRkeRs’ CoMpensATIon 

Workers’ Compensation 

Premium Fraud 

Michael R. McCann 

of Michael R. 

McCann PA speaks 

to attendees of 

the Workers’ 

Compensation 

Committee 

meeting about 

the importance 

of recognizing 

and addressing 

premium fraud, 

especially as it has become more prevalent in a 

tight economy. Scott Ethan Brown, MD, of Sinai 

Rehabilitation Center also spoke at the Thursday 

afternoon meeting on “The Chronic Pain Syndrome 

and Narcotics—A Medical Black Hole.” 

young lAWyeRs 

Don’t Be That Guy (or 

Gal)—Avoiding Common 

Ethical Pitfalls 

Anthony J. 

Novak of 

Larson King 

LLP reviews 

common 

ethical 

dilemmas 

facing young 

lawyers by 

examining 

real-life 

examples of 

situations in which lawyers, either unknowingly 

or brazenly, ran afoul of the ethical rules. This 

Thursday afternoon session was presented by the 

Young Lawyers Committee. 

Above left, Evelyn Fletcher Davis, then-chair of the Women in the Law Committee and above 

right, Heidi B. Goldstein, the committee’s Program Chair, address attendees at Friday’s 

Women’s Networking Luncheon. 

Members of Womble Carlyle Sandridge & Rice PLLC, 

sponsor of the Thursday evening Diversity Reception. 


PROducT LIabILITy 

Past Is Prologue 

By Lawrence G. Cetrulo, 

Michael J. Cahalane 

and Robert J.L. Moore 

Prospective defendants 

should still be advised 

to prepare for litigation, 

although actual liability 

is unlikely to result. 


Still No Service 

for Cell Phone 

Radiation 

Litigation 

In May 2011, the International Agency for Research on 

Cancer (IARC), a research branch of the World Health 

Organization (WHO), released a press statement indicating 

that the IARC had classified the radiofrequency elec- 

■ Lawrence G. Cetrulo is a founding partner 

and Michael J. Cahalane and Robert J.L. 

Moore are associates in the Boston office 

of Cetrulo & Capone LLP. Mr. Cetrulo chairs 

the firm’s Toxic Tort Practice Group and 

has more than 35 years of litigation experience. 

Mr. Cahalane is a member of the firm’s 

Toxic Tort Practice Group where he focuses 

on multijurisdictional, multi- plaintiff 

complex litigation. Mr. Moore practices 

primarily in the areas of toxic 

torts, product liability, personal injury, 

and complex litigation. The authors 

specially thank Ryan Hanofee for his 

contributions to this article. 

tromagnetic fields emitted by cellular 

phones as “possibly” carcinogenic to humans. 

Press Release No. 208, IARC Classifies 

Radiofrequency Electromagnetic Fields 

as Possibly Carcinogenic to Humans, May 

31, 2011, http://www.iarc.fr/en/media- centre/ 

pr/2011/pdfs/pr208_E.pdf. The IARC’s press release 

triggered waves of reports in the media 

that “[r]adiation from cell phones can 

possibly cause cancer[.]” Danielle Delloroto, 

WHO: Cell Phone Use Can Increase Possible 

Cancer Risk, CNN Online (May 31, 2011). 

Given the IARC classification and the 

headlines that followed, the public will 

understandably feel alarm. News reports 

could turn the 10-year trickle of litiga-

tion over radiofrequency electromagnetic 

fields into a torrent. See, e.g., Deborah Kotz 

& Carolyn Johnson, Cell Phones Are Added 

to List of Potential Risks for Cancer, Boston 

Globe Online (June 1, 2011). 

In this regard, the past may well be prologue. 

In the 1990s, media reports insinuated 

a link between various forms of cancer 

and electromagnetic fields from, among 

others, power lines. See, e.g., Paul Brodeur, 

The Cancer at Slater School, The New 

Yorker (Dec. 7, 1992). Litigation soon followed. 

The “science” behind the litigation 

proved meritless, but litigating these claims 

nonetheless cost defendants a great deal. 

Today’s headlines may be a harbinger 

of claims alleging a link between radiofrequency 

electromagnetic field exposure and 

adverse health effects. For at least three reasons 

history is apt to repeat itself, by which 

we mean that lawsuits stemming from 

the IARC classification are apt to prove 

unavailing. 

First, the chances are remote that plain- 

tiffs’ attorneys can establish a causal 

relationship between cell phone radiofrequency 

electromagnetic field exposure and 

adverse health effects, regardless of the 

IARC’s alarming classification. Courts previously 

evaluated the science underlying 

claims of personal injury caused by electromagnetic 

fields and found it wanting. 

See, e.g., San Diego Gas & Elec. Co. v. Superior 

Court, 920 P.2d 669 (Cal. 1996). The 

science on the supposed danger associated 

with electromagnetic fields has not materially 

advanced since the 1990s, and only 

limited evidence supports the IARC’s finding, 

which ranked radiofrequency electromagnetic 

fields emitted from cell phones in 

the same cancer- risk classification group as 

pickles, coffee, and insecticides. 

Second, even if a particular plaintiff 

could establish specific causation—a 

Daubert- proof causal link between radiation 

from radiofrequency electromagnetic 

fields and his or her particular disease— 

science has not linked radiofrequency electromagnetic 

field exposure to a “signature 

disease,” such as asbestosis for asbestos 

exposure or silicosis for silica exposure. 

Without a “signature disease,” plaintiffs’ 

attorneys, even the most experienced advocates, 

will find the burden of proof and 

expense of establishing specific causation 

between an exposure and a disease exceptionally 

daunting. 

Third, as most of the appellate courts to 

address the matter have held, federal law 

probably preempts lawsuits of this kind. 

The Federal Communications Commission 

(FCC) has set standards, including standards 

for radiofrequency electromagnetic 

field emissions, to which all cell phones 

must conform, and federal law establishing 

these standards likely trumps contrary 

state law. 

Thus, while the recent reporting on the 

alleged hazards of cell phone radiation will 

likely lead to litigation, and while prospective 

defendants should take steps to prepare 

themselves for this scenario, this litigation 

is unlikely to result in much actual liability. 

Cellular Phones and Radiofrequency 

Electromagnetic Fields 

Electromagnetic fields are a type of radiation 

emitted from all electric currents, 

natural or manmade. Radiofrequency electromagnetic 

fields are a particular category 

of electromagnetic fields, specifically those 

occupying the radio portion of the electromagnetic 

spectrum. 

All cell phones emit radiofrequency 

electromagnetic fields. Cell phones operate 

by transmitting information between a low 

powered radio transmitter in a phone and 

a base station, usually a tower with a large 

antenna. When a cell phone is charged, it 

Science has not 

determined whether 

nonionizing radiation… 

can directly affect genetic 

material, and radiofrequency 

electromagnetic field 

emission litigation 

will likely address this 

question in the future. 

emits a low level of nonionizing radiation, 

radiofrequency electromagnetic fields. Ionizing 

radiation, such as x-rays and gamma 

rays, can strip electrons from atoms and 

molecules, changing cellular makeup and 

causing, at times, tumors. On the other 

hand, science has not determined whether 

nonionizing radiation, particularly in the 

levels emitted by cell phones, can directly 

affect genetic material, and radiofrequency 

electromagnetic field emission litigation 

will likely address this question in the 

future. 

Since 1934, the FCC has regulated 

radiofrequency emissions. See Pub. L. No. 

73-415, 48 Stat. 1064, 47 U.S.C. 151, et seq. 

The National Environmental Policy Act 

of 1969, 42 U.S.C. 4321, et seq., charged 

the FCC and all other federal agencies 

with evaluating the impact of “major” regulatory 

actions “significantly affecting 

the quality of the human environment.” 

42 U.S.C. 4332(2)(C). The FCC first promulgated 

standards for radiofrequency 

exposure in 1985, regulating exposure in 


Product LiabiLity 

specific facilities that it licensed. See 100 

FCC 2d 543 (1985). Excluded from this regulation 

were “relatively low- powered communications 

systems” such as cell phones. 

2 FCC Rcd. 2064, 2065 14 (1987). In 1993, 

prompted by the adoption of guidelines 

that set limits on these exposures by industry 

consortia, the FCC began the rulemaking 

process to set federal standards for 

Plaintiffs had a difficult 

time proving causation, 

as the science underlying 

their claims never 

established a causal link 

between exposure and 

adverse health effect. 

radiation from cell phones. 8 FCC Rcd. 

2849 (1993). 

While the FCC proceeded with rulemaking, 

Congress enacted the Telecommunications 

Act of 1996, which directed 

the FCC to complete federal standards 

within six months and to “make effective 

rules regarding the environmental effects 

of radiofrequency emissions[.]” Pub. L. No. 

104-104, §704(b), 110 Stat. 56, 152 (1996); 

see 47 U.S.C. §332(c). The goals of this directive, 

according to the House Commerce 

Committee, which drafted this portion of 

the Telecommunications Act, were twofold: 

(1) to safeguard cell phone users from 

potential hazards; and (2) to ensure that a 

hodgepodge of conflicting state standards 

did not retard the development of a nationwide 

wireless communications network. 

See H.R. Rep. No. 204, 104th Cong., 1st 

Sess. Pt. 1, at 94–95 (1995). As the committee 

report noted, “[a] high quality national 

wireless telecommunications network cannot 

exist if each of its component[s] must 

meet different [radiofrequency] standards 

in each community[.]” Id. 

In August 1996, the FCC completed the 

rulemaking and issued an order setting 

the maximum radiofrequency electromag- 


netic field that a cell phone could emit. See 

11 FCC Rcd. 15123, 15127 9 (1996). All 

phones sold in the United States fall under 

that limit, though some popular phones 

come close. Additionally, under these 

standards, the FCC must authorize the 

sale of cell phones, and the manufacturer 

of a phone must certify that the equipment 

will not expose humans to levels of radiofrequency 

radiation in excess of the established 

limits. See Murray v. Motorola, Inc., 

982 A.2d 764, 775–776 (D.C. 2009). 

Previous Electromagnetic 

Field Radiation Litigation Led 

to Insignificant Liability 

Commentators began to express concern 

about a link between electromagnetic field 

exposure and adverse health effects in the 

late 1980s, and it reached a peak in the 

1990s. After widespread publicity about 

these potential hazards, plaintiffs initiated 

a number of lawsuits, a large majority of 

which courts dismissed. 

As mentioned, Paul Brodeur, a wellknown 

investigative reporter and author, 

published several articles in The New 

Yorker magazine in 1989 regarding potential 

hazards of electromagnetic field exposure. 

See, e.g., Paul Brodeur, The Hazards 

of Electromagnetic Fields I—Power Lines, 

The New Yorker (June 12, 1989). Brodeur’s 

previous articles on environmental hazards 

and health risks, including asbestos, 

had set off media frenzies that led to 

entire industries of litigation, and his writing 

on the hazards of electromagnetic fields 

drew the attention of many, including some 

plaintiffs’ attorneys. 

According to the 1989 articles, the previous 

decades saw a marked increase in 

the number of electric power lines across 

the country, and these power lines emitted 

radiation in the form of electromagnetic 

fields. Citing epidemiological studies, the 

articles indicated that exposure to these 

electromagnetic fields was associated with 

adverse health effects, such as cancer and 

birth defects. Brodeur further suggested 

that various levels of government conspired 

with the utility industry to cover up 

and discredit evidence of an association 

between electromagnetic field exposure 

and adverse health effects. 

Follow-up pieces by others in the media 

resulted in what one commentator called 

an “atmosphere of suspicion” concerning 

electromagnetic field exposure. Harold R. 

Piety, What We Don’t Know About EMF, 

128 Pub. Util. Fort. 14, 16 (Nov. 15, 1991). 

That Brodeur did not have a motive to disclose 

the potential dangers of electromagnetic 

field exposure lent credibility to his 

arguments in the eyes of many commentators 

and readers. In contrast, the utility 

industry employed most of those who 

offered different views of the science at the 

time, a fact that led some to discount statements 

that proof of adverse health effects 

did not exist. 

As the media continued to publish articles 

on the hazards of electromagnetic field 

exposure and the almost limitless number 

of exposed persons, massive numbers of 

lawsuits seemed inevitable. Some prognosticators 

proclaimed that electromagnetic 

field radiation would become the “next 

asbestos.” Patsy W. Thomley, EMF at Home: 

The National Research Council Report on 

the Health Effects of Electric and Magnetic 

Fields, 13 J. Land Use & Envtl. L. 309, 319 

(1998). One legal scholar in the early 1990s 

predicted that “the omnipresence of EMF 

[electromagnetic fields] in our lives suggests 

that EMF litigation could dwarf the 

‘legal abyss’ created by asbestos.” Roy W. 

Krieger, On the Line, 80 A.B.A. J. 40, 41 

(Jan. 1994). 

At one point in the early 1990s, it appeared 

that these predictions would prove 

correct, as plaintiffs’ attorneys filed lawsuits 

arising from electromagnetic field exposure 

as frequently as once a month. However, 

plaintiffs did not win verdicts in any 

of these lawsuits. In fact, courts dismissed 

nearly all the claims before trials. Plaintiffs 

had a difficult time proving causation, as the 

science underlying their claims never established 

a causal link between exposure and 

adverse health effect. See, e.g., San Diego 

Gas & Elec. Co. v. Superior Court, 920 P.2d 

669 (Cal. 1996). But see Zuidema v. San Diego 

Gas & Elec. Co., No. 638222 (Cal. Super. 

Ct. Apr. 30, 1993) (rendering a defense verdict 

in the first electromagnetic field case 

tried). Over time, the number of lawsuits 

alleging injury from electromagnetic field 

exposure from electric utilities diminished. 

In the late 1990s, research into the hazards 

of electromagnetic field exposure shifted to 

the study of electromagnetic fields from the 

soon- ubiquitous cell phones.

Neither the IARC Report nor Its 

Cited Studies Prove Causation 

Plaintiffs alleging that they have suffered 

adverse health due to cell phone radiation 

will have difficulty proving causation. As 

discussed above, previous electromagnetic 

field- related litigation failed largely because 

the science available at the time did not establish 

credible general causation paradigms 

between exposure to electromagnetic 

fields and adverse health effects. While the 

May 31, 2011, IARC press statement classifying 

radiofrequency electromagnetic fields 

emitted by cellular phones as “possibly” carcinogenic 

to humans grabbed headlines, the 

report released shortly afterward describing 

the work on which that classification 

rested neither proffered nor relied on new 

science establishing such carcinogenicity. 

Robert Baan, et al., Carcinogenicity of Radiofrequency 

Electromagnetic Fields, 12 The 

Lancet Oncology 624–626 (July 2011). Consequently, 

regardless of the uproar caused 

by the press release and the report, cell 

phone litigation plaintiffs probably will not 

succeed relying on the report or the studies 

that it cites. 

In May 2011, an IARC working group 

consisting of 30 scientists from 14 countries 

met to assess the carcinogenicity of 

radiation from radiofrequency electromagnetic 

fields. While the IARC working 

group most extensively considered exposure 

through cell phones, radiofrequency 

electromagnetic fields also emanate from 

occupational sources such as industrial 

equipment, broadcast antennas, and medical 

devices. However, as the IARC working 

group acknowledged, most human 

exposure to radiofrequency electromagnetic 

fields stems from devices, such as cell 

phones, held close to someone’s body. Baan, 

supra, at 624. 

The IARC had asked the working group 

members to classify various particles, 

materials, and radiation into categories 

that corresponded to the agents’ carcinogenicity 

to humans and the quantum of 

evidence indicating that degree of carcinogenicity. 

The classifications range from 

“carcinogenic to humans” to “probably not 

carcinogenic to humans.” Press Release No. 

208, IARC Classifies, supra, at 4–6 (defining 

the possible classifications). 

In performing the assessment, the IARC 

working group reviewed hundreds of past 

scientific articles but did not independently 

conduct testing or experiments. 

Ultimately, the IARC working group’s conclusion 

rested upon six human studies that 

it deemed most credible and about 40 animal 

studies assessing the carcinogenicity 

of radiofrequency electromagnetic field 

exposure to rodents. Id. at 624–25. Several 

of the human studies found an increased 

risk of glioma, a type of tumor, in mobile 

phone users. Id. Another study in Japan 

found some evidence of heightened risk of 

acoustic neuroma, another type of tumor, 

within the human study population. Id. at 

625. Though the animal studies appeared 

to show some increased cancer incidence, 

the predictive value of those studies for 

human cancer is unknown, as the IARC 

working group acknowledged. Id. 

Consequently, the IARC working group 

classified radiofrequency electromagnetic 

field exposure as belonging in the Group 

2B, “possibly carcinogenic to humans,” in 

view of the “limited evidence” of carcinogenicity 

in humans and animals. According 

to the IARC, the category is reserved 

for agents for which there is limited evidence 

of carcinogenicity in humans and 

insufficient evidence in animals, or when 

there is inadequate evidence of carcinogenicity 

in humans but sufficient evidence in 

of carcinogenicity animals. Press Release 

No. 208, IARC Classifies, supra, at 5 (defining 

Group 2B). The Group 2B category contains 

267 agents, including coffee, pickled 

vegetables, exposure to dry cleaning and 

firefighting. David Spiegelhalter, a professor 

of the University of Cambridge in England, 

commented that “[the] report is clear 

that any risk appears to be so small that it 

is very hard to detect—even in the masses 

of people now using mobile phones.” Ben 

Hirschler, Evidence “Increasingly Against” 

Phone Cancer Risk, Reuters Online (July 

1, 2011). Spiegelhalter’s characterization 

highlights how statistically weak the existing 

epidemiological evidence is to support 

a causative connection between cell phone 

use and cancer. 

The IARC working group finding that 

“limited evidence” indicates that radiofrequency 

electromagnetic fields are carcinogenic 

to humans is misleading. The 

carcinogenicity evidence is actually decidedly 

mixed. For every study that the IARC 

working group identified that found a 

causal or even correlative link between cell 

phone radiation and cancer, another study 

reached the opposite conclusion. To wit, 

according to the National Cancer Institute, 

the incidence of brain cancer actually has 

“changed little in the past decade,” while 

cell phone use has drastically increased to 

over five billion users. See National Cancer 

Institute, Cell Phones and Cancer Risk, 

Fact Sheet, http://www.cancer.gov/cancertopics/ 

factsheet/Risk/cellphones. The IARC working 

group itself added nothing to this mélange 

of contradictory studies. It did not perform 

any new studies itself. Rather, it simply 

selected certain studies without articulating 

the methodology underlying the 

selections and deemed them reliable and 

supportive of the position that it took. 

The IARC working group ipse dixit pronouncement 

of these studies’ reliability, 

however, is just one of the methodological 

flaws in its selections. The IARC working 

group report failed to quantify the possible 

risk for glioma and acoustic neuroma, 



the two types of cancer allegedly associated 

with cell phone use. Baan, supra, at 

625; Press Release No. 208, IARC Classifies, 

supra, at 2. 

Further, each study selected by the IARC 

working group had flaws. One study had 

a case- control participant bias; another 

relied on suspect data on cell phone usage. 

Multiple members of the IARC working 

With only contradictory, 

flawed studies on which 

plaintiffs can rely, plaintiffs’ 

attorneys probably could 

not defeat defense motions 

for summary judgment. 

group noted these flaws and inconsistencies 

between studies in declining to 

endorse the group’s overall finding. 

For these reasons, neither the IARC 

working group report nor the studies cited 

in the report will likely assist plaintiffs to 

prove causation if they allege that they suffer 

from the effects of cell phone radiation. 

With only contradictory, flawed studies on 

which plaintiffs can rely, plaintiffs’ attorneys 

probably could not defeat defense 

motions for summary judgment. 

Scientists Have Not Identified a Cell 

Phone Radiation Signature Disease 

Another factor weighing against cell phone 

radiation becoming cottage litigation similar 

to asbestos is that it is not associated 

with a “signature disease.” A “signature 

disease” is a specific adverse health effect 

associated with exposure to a particular 

toxin and few, if any, other potential causes. 

Many experts consider pleural mesothelioma, 

for example, a signature asbestos- 

related disease. The two cancers most 

commonly associated with radiofrequency 

electromagnetic field exposure, glioma and 

acoustic neuroma, fall well short of meeting 

the standard for “signature diseases,” as 

evidenced by the fact that the IARC working 

group report did not list those condi- 


tions specifically as among the diseases 

that may be linked to radiofrequency electromagnetic 

field exposure, and the press 

release simply stated that the evidence of an 

association between the two diseases and 

cell phone use was “limited.” Press Release 

No. 208, IARC Classifies, supra, at 2. 

The lack of a signature disease will likely 

prove an impediment to cell phone radiation 

litigation. Once a toxin is associated 

with a signature disease, plaintiffs’ 

attorneys can conduct screenings for that 

disease to find new clients more easily. 

Plaintiffs’ counsel also can invest heavily 

in developing the science of causation for 

just a single disease, rather than many, and 

could encounter difficulty finding appropriate 

experts to establish causation for the 

particular disease at issue in a case. Without 

a signature disease, plaintiffs’ attorneys 

will have difficulty identifying potential 

clients suitable for pursuing cell phone 

radiation claims. These attorneys will also 

need to find and demonstrate that experts 

qualify as experts to establish causation 

for whatever diseases plaintiffs allege that 

they developed in their cases, which will 

increase the attorneys’ expenses. These 

impediments promise to reduce the number 

of cell phone radiation- related lawsuits. 

FCC Standards Probably Preempt 

Cell Phone Radiation Litigation 

Under federal law, the FCC is charged with, 

among other things, promulgating standards 

for emissions from cell phones. Most, 

but not all, courts addressing the issue have 

ruled that this federal law conflicts with 

lawsuits that seek to impose liability for 

emissions from cell phones in compliance 

with all applicable FCC standards, and the 

federal law preempts such lawsuits. Courts 

adjudicating cell phone radiation claims 

henceforth likely will adopt this position 

as well. 

Cell phone radiation lawsuits to date 

have not alleged that the cell phones at issue 

failed to comply with FCC standards for 

radiation, but, rather, that such standards 

are inadequate. See Farina v. Nokia, Inc., 625 

F.3d. 97, 122 (3d Cir 2010); Murray v. Motorola, 

Inc., 982 A.2d 764, 775 (D.C. 2009). 

The circuits have split, therefore, on whether 

federal law preempts these lawsuits. 

The Farina case illustrates the view that 

federal law preempts cell phone radiation 

litigation. There, a putative class consisting 

of Pennsylvania cell phone purchasers 

and lessees alleged that cell phones 

expose users to unsafe levels of radiofrequency 

electromagnetic fields when they 

hold their phones to their heads and that 

phones should not have been sold or leased 

without headsets. The putative class further 

alleged that this fact rendered untrue 

statements that cell phone manufacturers 

and others in the mobile phone industry 

made in advertisements, and, in that 

respect, those advertisements were deceptive. 

The U.S. District Court for the Eastern 

District of Pennsylvania ruled that federal 

law preempted the plaintiffs’ claims. On 

appeal, the United States Court of Appeals 

for the Third Circuit affirmed. The plaintiffs’ 

claims would “erect an obstacle to the 

accomplishment of the objectives of Congress[,]” 

specifically “protecting the health 

and safety of the public, [and] ensuring 

the rapid development of an efficient and 

uniform network, one that provides effective 

and widely accessible service at a reasonable 

cost.” Farina, 625 F.3d. at 105–107, 

124–127; accord Bennett v. T- Mobile USA, 

Inc., 597 F. Supp. 2d 1050, 1053 (C.D. Cal. 

2008) (“a jury verdict finding cell phones 

unsafe because of the [radiofrequency electromagnetic 

fields that] they emit would 

“unquestionably trample upon the FCC’s 

authority to determine the maximum 

standard for RF emissions[.]”). The plaintiffs 

have petitioned the Supreme Court 

of the United States for a writ of certiorari. 

The Court, however, seems unlikely 

to grant the writ, judging by the fact that 

it requested the view of the United States 

on the writ petition, and the United States 

opposes granting the writ. 

Those courts that ruled that federal law 

did not preempt cell phone radiation litigation 

would likely reach a different outcome 

today. In Pinney v. Nokia, Inc., the 

Fourth Circuit held that a conflict did not 

exist between this litigation and federal 

law, and the litigation, therefore, was not 

preempted. See Pinney v. Nokia, Inc., 402 

F.3d 430 (4th Cir. 2005). This opinion, and 

the others that reached that conclusion, 

predated public FCC statements that such 

litigation conflicts with FCC regulations. A 

2009 amicus curiae brief submitted jointly 

by the FCC and the United States in a cell 

Cell Phone, continued on page 81


One Size Doesn’t Fit All 

By Diane Flannery 

and Jason Burnette 

in search of a better way 

to resolve the mismatch 

between the factors that 

the Supreme Court has 

identified for assessing 

reprehensibility in 

economic tort cases with 

the typical facts at issue 

in product liability cases. 

Analyzing 

Punitive Damages 

Reprehensibility 

In a pair of decisions, BMW of North America v. Gore, 517 

U.S. 559 (1996), and State Farm Mutual Auto. Ins. Co. v. 

Campbell, 538 U.S. 408 (2003), the Supreme Court held 

that due process forbids imposing “excessive” punitive 

damages, and that courts and juries should 

determine excessiveness by comparing 

a punitive damages award’s ratio to the 

amount of compensatory damages, comparing 

the available civil penalties to the 

available criminal penalties, and applying 

so-called “reprehensibility” factors. As 

the Court noted in State Farm, reprehensibility 

is “the most important indicium” 

in assessing a punitive damages award’s 

excessiveness. 

The Court identified five factors to 

guide lower courts and juries assessing 

the reprehensibility of defendants’ conduct: 

(1) whether the harm caused was 

physical, as opposed to merely economic; 

(2) whether the conduct showed an indifference 

to or reckless disregard for the health 

or safety of others; (3) whether the target 

of the conduct was financially vulnerable; 

(4) whether the conduct was repetitive or 

was an isolated incident; and (5) whether 

the harm resulted from a defendant’s intentional 

misconduct. State Farm, 538 U.S. at 

419. The Court set forth these five factors, 

however, in the context of cases involv- 

ing economic torts. As a group, the factors 

provide a relatively poor framework for 

assisting juries and courts with assessing 

reprehensibility in product liability cases 

because these factors are typically found in 

many product liability actions and consequently 

fail to distinguish between degrees 

of reprehensibility. Indeed, depending on 

how you define the terms, three of the five 

State Farm factors are inherent in every 

product liability case, thus they don’t assess 

relative reprehensibility. See Table 1 on 

page 32. 

First, product liability cases almost 

always involve physical injuries rather than 

economic harm. Second, some courts have 

interpreted financial vulnerability not as 

Gore indicated, as meaning a defendant 

targeted a financially vulnerable plaintiff, 

but instead as meaning that the defendant 

had a greater net worth than the 

injured plaintiff or that the plaintiff’s injuries 

left him or her in a financially vulnerable 

position. See, e.g., Century Surety Co. 

v. Polisso, 139 Cal. App. 4th 922, 965 n.21 

(Cal. Ct. App. 2006). Under this expan- 

■ Diane Flannery is a partner and Jason Burnette is an associate in the Atlanta office of Jones Day. Ms. 

Flannery specializes in product liability litigation, and is a member of DRI. Mr. Burnette is part of the issues 

and appeal team at Jones Day. 



sive, albeit incorrect definition, a court or 

jury will find this factor present in nearly 

every product liability case because individual 

consumers almost always have a 

smaller net worth than product manufacturers. 

Third, to the extent that courts 

construe repetitive conduct to refer to continuing 

to sell a product rather than to discrete, 

repeated acts in designing or failing 

At no point has the 

Supreme Court ever held 

that the five State Farm 

factors are the definitive 

five factors that juries and 

courts must always apply 

to assess reprehensibility 

for any and all purposes 

and in all cases. 

to redesign a product, this factor will be 

present in almost every product liability 

case because nearly all goods are mass- 

produced and mass- marketed. 

Instructing a jury on these factors, at 

least as some of the courts have interpreted 

them, can amount to a finding that three of 

the five State Farm reprehensibility factors 

automatically support an award of punitive 

damages. What is called for instead are factors 

that meaningfully aid juries and courts 

to situate—in product liability actions— 


a particular defendant’s conduct along a 

spectrum from the least to the most reprehensible. 

Because the State Farm factors 

do not assist a jury or a court to determine 

whether a defendant in a product liability 

case is “more blameworthy than others,” it 

is, therefore, appropriate and necessary to 

develop a list of factors that do. 

Meaningfully Assessing 

Reprehensibility—Place Conduct 

Along a Behavior Continuum 

A jury may assess punitive damages only 

after awarding compensatory damages. 

Whether punitive damages are appropriate 

or constitutional depends on whether 

imposing them in addition to the compensatory 

damages that already make a plaintiff 

whole is necessary either to punish that 

defendant or to deter conduct in the future. 

State Farm, 538 U.S. at 419 (“It should be 

presumed that a plaintiff has been made 

whole for his injury by compensatory damages, 

so punitive damages should only be 

awarded if the defendant’s culpability, after 

having paid compensatory damages, is so 

reprehensible as to warrant the imposition 

of further sanctions to achieve punishment 

or deterrence.”). This hinges primarily 

on how reprehensibly a defendant has 

acted. The more reprehensible a defendant’s 

conduct, the more necessary a substantial 

financial penalty becomes to punishing 

and deterring that conduct, while the less 

reprehensible a defendant’s conduct, the 

less necessary it becomes. “Some wrongs,” 

the Supreme Court has explained, “are 

more blameworthy than others.” Gore, 517 

U.S. at 575. Reprehensibility is not a black 

and white proposition to which a court or a 

jury can simply say “yes” or “no,” but rather 

a matter of degree. See, e.g., id. at 568 (noting 

a need for “flexibility in determining 

Table 1. Reprehensibility Factors in Punitive Damages Assessments 

from BMW of North America v. Gore, 517 U.S. 559 (1996), and State 

Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) 

Inherent in 

Product Liability 

Factor 

Actions 

Varies by 

Facts 

Conduct caused physical, not economic harm √ 

Conduct showed indifference to the safety of others √ 

Plaintiff was financially vulnerable √ 

Defendant engaged in similar conduct on other occasions √ 

Defendant acted intentionally √ 

the level of punitive damages”). The factors 

that a jury or a court uses must function 

as tools to help place a defendant’s 

conduct along a spectrum of reprehensible 

behavior. 

These factors need not be—and should 

not be—static across all torts. For what 

may be a helpful factor in assessing reprehensibility 

in an intentional or economic 

tort may be common to all product liability 

torts and thus of no value in assessing the 

degree of a product liability defendant’s 

reprehensibility. Relying solely on the State 

Farm factors will deny juries and courts 

access to several helpful yardsticks for evaluating 

reprehensibility that the case did not 

mention. In other words, a “one-size-fitsall” 

approach to evaluating reprehensibility 

has a substantial downside, and so the 

law has a real need to fashion factors useful 

to assessing degrees of reprehensibility in 

product liability actions. Importantly, at no 

point has the Supreme Court ever held that 

the five State Farm factors are the definitive 

five factors that juries and courts must 

always apply to assess reprehensibility for 

any and all purposes and in all cases. To the 

contrary, the Court in Gore observed that it 

is entirely legitimate for “the level of punitive 

damages” to vary for “different classes 

of cases.” Id. 

Assessing Reprehensibility by 

Considering a Typical Product 

Liability Defendant’s Conduct 

The logical place to start to pinpoint the 

most useful factors to evaluate the reprehensibility 

of a defendant’s conduct in a 

product liability case is to identify factors 

that would evaluate a typical manufacturer’s 

conduct during a typical sequence 

of events. Usually, such a defendant has 

designed a product, which has subsequently 

injured others, including the plaintiff. 

Thus, two general categories of conduct- 

related factors emerge from this sequence: 

(1) factors relevant to a defendant’s conduct 

when it initially designs a product, and 

(2) factors relevant to the defendant’s conduct 

when it discovers an injury- causing 

or potentially injury- causing defect after 

manufacturing and selling a product. 

Product-Design Conduct Factors 

When designing a product, the following 

factors can help a court or a jury evaluate

a defendant’s conduct as more or less reprehensible 

by degree depending on the circumstances 

and facts: 

1. Whether the defendant, in designing 

the product, attempted to comply 

with applicable government or industry 

safety standards 

2. Whether the defendant engaged in 

safety testing 

3. Whether the defendant took steps to 

warn consumers about possible injury 

4. Whether the defendant affirmatively 

concealed its knowledge of defects 

known to cause injury. 

See Table 2 below. 

Complying with Industry and 

Government Safety Standards 

A defendant that takes the time to consult 

relevant safety protocols—whether governmental 

or industry standards—and then 

incorporates them into its product design 

acts in a responsible and blameless fashion 

that does not warrant punishment or 

deterrent measures. Nor is there a compelling 

basis for punitive damages when a defendant 

has designed the product to meet 

the most closely analogous standards available 

after developing a novel or a cutting- 

edge product for which government or 

industry has yet to develop safety standards. 

In these scenarios, a defendant has 

not acted reprehensibly. And a defendant’s 

behavior is the very antithesis of punitive- 

damages- worthy conduct if it took the 

additional step of trying to develop safety 

standards for a new type of product. What 

is more reprehensible is when a defendant 

elects to ignore clearly applicable standards 

entirely. As one would expect, the law mirrors 

this logic. In many states, compliance 

with applicable standards is a complete 

defense to punitive damages or minimizes 

a finding of liability. See, e.g., Ohio 

Rev. Stat. Ann. §2307.80(D)(1) (establishing 

a complete defense); DiCarlo v. Keller 

Ladders, Inc., 211 F.3d 465, 468 (8th Cir. 

2000) (referring to complying with industry 

safety standards as relevant to design 

defect claims). Even if it doesn’t completely 

bar liability, compliance or attempted 

compliance with industry or government 

standards is at a minimum almost universally 

viewed as weighing against punitive 

damages. See, e.g., Richards v. Michelin Tire 

Corp., 21 F.3d 1048, 1317 (11th Cir. 1994). 

Safety Testing 

A defendant that engages in product safety 

testing acts cautiously, not reprehensibly. 

What matters in this regard is the quantity 

and quality of the safety testing, the 

resources devoted to it, and whether the 

testing was reasonable. Awards conferred 

to a product manufacturer for product 

safety and use of a product by persons or 

entities charged with public safety are, by 

their very nature, pertinent to demonstrate 

the reasonableness and blamelessness of a 

defendant’s testing protocols. Conversely, 

when a defendant “rush[es] into production” 

without pertinent testing or fails to 

test at all, the conduct may warrant a punitive 

damages award to punish or deter. 

Smith v. Ingersoll- Rand Co., 214 F.3d 1235, 

1253–54 (10th Cir. 2000). 

Warning Consumers 

Compared to a defendant that knows that 

its product may injure consumers but 

doesn’t warn them or attempt to correct 

the product, a defendant that knows that 

its product may injure acts less reprehensibly 

when it warns consumers about the 

danger. Most products are not designed 

to be completely injury proof, and trying 

to make them so would often be unreasonable 

because it would rob them of their 

intended functionality and utility. A knife 

is a knife only if it has a sharp blade, and 

a bicycle is a bicycle despite its tendency to 

tip over when someone rides it. With such 

products, it is entirely reasonable for a defendant 

to choose to warn against a risk 

rather than to ameliorate the so-called 

“defect” that causes an injury, and choosing 

to warn a consumer certainly is not a 

basis for punitive damages. Defendants 

that make this choice act responsibly— 

not reprehensibly. See, e.g., Toole v. Baxter 

Healthcare Corp., 235 F.3d 1307, 1317 (11th 

Cir. 2000) (“[W]e have repeatedly held that 

the issue of punitive damages should not 

go to the jury when a manufacturer takes 

steps to warn the plaintiff of the potential 

danger that injured him; such acts bar a 

finding of wantonness.”). 

Affirmatively Concealing 

Injury-Causing Defects 

A defendant that, in designing a product, 

learns that the product has defects that 

may cause injury and, instead of remedying 

the defect or warning consumers 

about the risk, decides instead to conceal 

the defect to make the product more marketable 

engages in far more reprehensible 

conduct than a defendant that is “up front” 

with consumers by taking corrective measures. 

To be sure, a defendant does not need 

to disclose every design and testing process 

step or every conclusion that it draws 

along the way. But defendants that learn of 

Reprehensibility

Professional liability 

The Times They 

Are A-Changin’ 

By Stephen S. van Wert 

If you take a long-term 

view of the insurance 

market, you can make 

good decisions now to 

position yourself well for 

the long-term trend. 

■ Stephen S. van Wert is the program manager for the LawyerGuard program. After practicing corporate law in New York and 

Atlanta in the 1990s, he entered the lawyers’ professional liability insurance industry. For over 20 years, DRI has sponsored 

LawyerGuard for lawyers’ professional liability insurance for its membership. Catlin Insurance Company, Inc., has been the carrier 

for the LawyerGuard program since 2009. Additional information can be found at www.lawyerguard.com. 


Lawyers’ 

Professional 

Liability Insurance 

In 1964, Bob Dylan released his third album, The Times 

They Are A- Changin’ (Columbia Records). Now, 47 years 

later, the title song seems to describe our world today aptly. 

Already in 2011 we have witnessed an enormous earth- 

quake and tsunami in Japan resulting in 

widespread nuclear contamination, the citizens 

of several Middle Eastern countries 

forcefully replaced their governments in 

the “Arab Spring,” America continued to 

battle worldwide terrorism, several European 

countries have teetered on the edge of 

bankruptcy, and Standard & Poor’s downgraded 

the debt of the United States for the 

first time in history largely due to partisan 

politics in Washington, D.C. 

What, you say, does this have to do with 

lawyers’ professional liability (LPL) insurance? 

The answer is “a lot!” But as Bob

Dylan warned so long ago, you don’t want 

to “get hurt” because you have not positioned 

your law firm well to navigate these 

challenging times. 

The Current Market for LPL Insurance 

In the insurance world, either the market 

is deemed “hard,” meaning that premiums 

are high and coverage is limited, or “soft,” 

meaning that premiums are low and insurers 

offer coverage freely. Since 2003, 

the LPL insurance market has been softening. 

Over this time, the average cost of 

LPL insurance has decreased steadily, and 

sellers have added new coverage enhancements. 

Many industry commentators have 

predicted over the past several years that a 

hard market loomed “just around the corner,” 

but that has not materialized yet. Why? 

In general, three variables affect the 

“hardness” or “softness” of the LPL market. 

First and most obviously, claims affect the 

market’s character. If clients assert more 

claims against lawyers (referred to as frequency), 

or if insurance carriers have to 

pay claims of higher amounts on average 

(referred to as severity), then the cost of 

LPL insurance will rise. But another often 

overlooked element contributes to the cost 

of claims. It is called “claims inflation,” 

which always operates in the background. 

“Claims inflation” is the increase in the cost 

of defending a claim asserted against an 

attorney or law firm. 

I would imagine that your law firm has 

raised hourly rates over the past seven 

years. The same increase in costs that you 

have been able to charge your clients also 

has been felt by your LPL insurance carrier. 

So even if the frequency and severity 

of claims had remained constant over 

time, we would expect premiums to rise 

each year, at least in the low single digits, 

simply due to claims inflation. 

The second variable affecting the LPL 

insurance market is interest rates. In insurance 

jargon, LPL insurance has a “long 

tail,” which means that usually a carrier 

doesn’t actually pay a claim until several 

years after the carrier collects an insurance 

premium from a firm. (For comparison, 

a property insurance policy has a “short 

tail” because an insurer knows at the end 

of the policy period whether the building 

that it has insured has burned down). During 

this “tail period,” sometimes called the 

“float,” an insurance company invests the 

premium that it has received, primarily in 

debt investments. If interest rates are low, 

then the income generated from the float 

is likewise low. In those circumstances, an 

insurance carrier has to rely on its underwriting 

activities to make a profit. In other 

words, carriers typically make up for poor 

interest- investment income by raising premium 

rates, decreasing coverage, or both. 

The third variable that affects the LPL 

insurance market is the amount of surplus 

capital in the overall insurance market. Surplus 

capital increases as insurance carriers 

generate positive income and choose to keep 

it in their companies as retained earnings 

instead of paying dividends to their stockholders 

or policyholders, as the case may be. 

In general, the more surplus capital that an 

insurance carrier has, the more the insurer 

can “put that surplus capital to work” by 

writing more policies. Otherwise, the surplus 

capital just sits in an insurer’s investment 

accounts earning very little interest. 

Over the past several years, the first two 

variables, claims with higher frequency/ 

severity and lower interest rates, have 

steadily built pressure that has worked to 

increase rates in the LPL insurance market. 

The third variable, though, has worked to 

Unfortunately, when the 

economy goes bad, claims 

against lawyers rise. 

decrease rates because more surplus capital 

has been chasing a relatively stagnant number 

of insureds. During the past several 

years, this pressure from the surplus side 

of the equation won, as seen in LPL insurance 

premium levels, which remained low. 

However, this is no longer the case. 

So What Has Changed? 

As we have moved into the second half of 

2011, I have noticed a definite firming in 

the LPL insurance market. One LPL insurance 

carrier is lowering limits in California 

and pushing rate increases nationwide 

in the 10 percent range. Another is completely 

remaking its book of business by 

not renewing policies with certain firms, 

lowering limits, and raising rates. I have 

seen another LPL insurance carrier even 

decide not to renew with a good law firm, 

presumably only because it could not raise 

rates fast enough due to state limitations on 

the allowable size of annual price increases. 

Several other LPL insurance carriers are 

raising rates on most of their law firm clients 

in the 2 to 10 percent range. One actuary 

that I spoke with recently said, “If 

anyone tells you they are making money 

insuring lawyers, they are either fooling 

themselves or just lying.” 

So what has changed? Unfortunately, 

when the economy goes bad, claims against 

lawyers rise. Since the last recession that 

began in 2008, law firms that practiced 

in real estate and general business transactions 

have had more claims asserted 

against them, and the corresponding sever- 



ity of those claims has gone up as well. This 

has exerted more pressure on LPL insurance 

carriers to raise rates. 

The last hard market resulted from 

similar circumstances. The stock market 

dropped precipitously in 2001 when 

the “dot.com” bubble burst. The Federal 

Reserve lowered interest rates to stimulate 

the economy. Both events had the effect of 

The good news for 

defense lawyers is that 

defense firms are still 

viewed very favorably by 

the LPL insurance industry 

reducing insurance carriers’ investment 

income. Economic growth at that time also 

slowed down, and unsurprisingly, claims 

against lawyers increased, especially in 

the securities, corporate, and wills/probate 

areas of practice. However, it was not 

until the tragedy of 9/11 that the hard market 

really kicked into gear. The 9/11 attacks 

resulted in some of the largest insurance 

losses in history, and as a consequence, a 

huge amount of surplus capital was used 

to pay these claims. The result? In 2002, 

many law firms saw their premiums rise 

10 to 50 percent in a single year, and many 

law firms even had trouble finding the coverage 

that they desired. 

History Repeats Itself 

Could this happen again? Of course, no 

one can predict future events with perfect 

certainty, but we can take note that the 

first half of 2011 generated record property 

losses from a large earthquake in 

New Zealand, from a very active tornado 

season in the midwestern United States, 

from riots in England, and from significant 

flooding due to Hurricane Irene hitting 

the eastern United States. And literally 

at the moment of writing this paragraph, I 

received a text message from a colleague 

saying that an earthquake just hit the eastern 

United States, fortunately, causing very 

little damage. 


Perhaps now you can see why an apparently 

irrelevant event such as a large earthquake 

in Japan can have an effect on LPL 

insurance rates in the United States. To the 

extent that such catastrophic losses serve 

to decrease the worldwide amount of surplus 

capital, they will decrease the pressure 

to deploy that capital in the form of 

underwriting more policies. And as that 

pressure decreases, the countervailing pressure 

from increasing claims and decreasing 

investment income begins to win out. 

Believe it or not, many of the same carriers 

that provide your law firm with professional 

liability insurance also have exposure 

to earthquakes in Japan, either directly or 

indirectly through reinsurance agreements. 

This is very purposeful on the part of insurance 

companies, to “spread their risk” 

across many classes of business all around 

the world. This diversification strategy is encouraged 

by rating agencies because it helps 

prevent one catastrophic event from bringing 

an insurer into bankruptcy. 

Is There Any Good News? 

Fortunately, there is good news. In some 

cases, carriers offering LPL insurance seem 

to be taking a “surgical approach” to their 

underwriting actions. By that I mean that 

they seem to have sought rate increases 

only from those classes of law firms that 

have generated the most losses recently. 

For example, one large LPL carrier just 

filed for a 19 percent overall rate increase 

in a certain state that it would achieve primarily 

through price increases targeting 

law firms in the real estate practice area. 

This is unsurprising because the real estate 

sector of the economy most acutely experienced 

the most recent recession. When 

times were good, mistakes that lawyers 

made on real estate deals did not result in 

claims because “everyone made money” on 

those deals. But when times are bad, clients 

may allege that those same mistakes 

caused the clients to experience losses. Sad 

to say, but when people are desperate, they 

look for the closest “deep pocket” to help 

cover their losses even when no one committed 

malpractice. 

The good news for defense lawyers is 

that defense firms are still viewed very 

favorably by the LPL insurance industry. 

This is not to say that defense firms will 

not see some carriers attempting to raise 

rates in the coming year in the low, single 

digit range. However, on a relative basis, 

defense lawyers should fare much better 

than their colleagues in transactional areas 

of practice. 

The plain truth is that defense lawyers 

just are not sued as often as lawyers working 

in other areas of practice. They also are 

relatively more insulated from claims emanating 

from poor economic conditions. 

They should by all counts continue to enjoy 

premium rates that are sometimes half as 

much as in other areas of practice. They 

also should not have much problem securing 

higher limits and favorable deductible 

options. All bets would be off, though, 

even for defense firms, if we experienced 

another enormous insurance loss such as 

that experienced after 9/11. Therefore, do 

not let the fact that your firm is a defense 

firm lull you into complacency. While some 

LPL insurance carriers seem to have taken 

the surgical approach described above, at 

least as many seem to have raised rates 

across their entire books of business. 

Prepare for the Storm 

If we see the storm clouds coming, that 

means that we have time to prepare for 

the storm. In LPL insurance, you can take 

several actions now to weather a potential 

storm in the best way possible. 

Start Easy 

The easiest and often most overlooked 

way to improve your risk profile with LPL 

underwriters is to prepare a good application. 

In many ways, applying for LPL 

insurance is analogous to applying for a 

job. You would make sure that your resume 

was perfect and communicated everything 

that was good about you. Unfortunately, 

many LPL applications that I read 

appear as if they have been just “thrown 

together” by law firms. That generates an 

unfavorable first impression in the eyes 

of an LPL underwriter, even if the content 

of the application is otherwise acceptable. 

Remember that LPL underwriters have the 

power to apply discretionary credits to your 

account. These credits are based on a carrier’s 

subjective evaluation of the quality 

of your firm. Therefore, it makes sense to 

present your law firm in the best light possible. 

Answer every question on an application. 

Leaving questions blank indicates

either that (1) you wish to hide something, 

or (2) you just take a sloppy approach to 

your work. Also, do not feel limited to the 

space allotted to you on the application 

form itself. Feel free to add additional pages 

to amplify your responses and to put your 

best foot forward. By doing this you communicate 

that you care about risk management 

and wish for an underwriter to 

evaluate your firm in the most favorable 

light possible. It should go without saying 

that anything that you put on an application 

must be true, as an insurance carrier 

can use misrepresentations on an insurance 

application as the basis to deny coverage 

for a future claim. 

Be Honest But Assertive 

About Past Claims 

Be sure to explain any incidents or claims 

on your application carefully. Resist the 

temptation just to attach the court documents 

themselves. First, an LPL underwriter 

will not wade through all of that 

paperwork. Second, the court documents 

themselves allow an LPL underwriter to 

read a plaintiff’s assertions about how negligent, 

ignorant, incompetent, and sometimes 

malicious your firm has been in 

handling a claimant’s legal matter. Rather, 

it is much more preferable to summarize a 

claim using an insurance carrier’s supplemental 

claims application. 

In the minds of LPL underwriters, law 

firms with prior claims are much more 

likely to have claims asserted against them 

in the future. Therefore, it is critical that 

you supplement your description of a claim 

with tangible reasons why it should not 

happen again. LPL underwriters will read 

a claims summary carefully, and it provides 

a chance for you to put your best foot 

forward even when discussing a negative 

aspect of your law firm’s insurance history. 

Some LPL underwriters even believe 

that a law firm is a better risk if has suffered 

a large LPL loss because it has focused the 

attention of the law firm on risk management 

issues. However, focusing attention 

on risk management is one thing. Actually 

doing something about it is another, 

and you should document all actions taken 

in this regard. The foregoing also applies 

to any prior complaints or disciplinary 

actions taken against any of the attorneys 

in your firm. 

Your Website Is Read by Everyone— 

Including the Underwriter 

You periodically should review your law 

firm’s website to make sure that it contains 

the most current information about your 

firm. Most LPL underwriters now review 

a firm’s website in tandem with its insurance 

application. If there are discrepancies 

between the two, then an underwriter will 

want to know why you portray your firm 

one way to the general public and another 

way on your insurance application. Most 

times when an underwriter spots a discrepancy, 

it is because a firm simply failed to 

update the content of its website. Yet, once 

again, that is not a good message to send to 

an underwriter. 

Law firms often portray themselves as 

very sophisticated on their websites, stating 

emphatically that they handle all kinds 

of areas of practice. Yet, when it comes to 

those reported on their insurance applications, 

law firms just report those areas 

of practice in which they in fact render 

services. 

I recognize that in the same way that 

insurers have diversified their books of 

business insuring many different classes 

of risk around the globe, many law firms 

have chosen to engage in a broad array of 

practice areas to better serve their clients 

and diversify their revenue base. However, 

to the extent that your law firm has exposure 

to the following areas of practice or clients, 

you may experience greater difficulty 

in obtaining the price and coverage that 

you desire during your next LPL renewal: 

• Banking and financial institution clients, 

especially if a client is under financial 

duress 

• High value plaintiff personal injury 

cases 

• Collections, especially since there have 

been many class action claims made 

against lawyers for violations of Fair 

Debt Collection Practices Act 

• Domestic relations with high values 

• Entertainment law with high-profile 

clients 

• Oil and gas 

• Probate, wills, and estates with high 

values 

• Real estate law 

• Securities law 

It would be wise to analyze whether your 

law firm’s exposure to these higher risk 

areas of practice or clients are worth it in 

light of the additional revenue that the firm 

realizes. Many LPL underwriters bypass 

quoting the entire law firm simply because 

one attorney in the firm performs services 

in a difficult area of practice. The reason is 

that the limits of an LPL policy apply to all 

areas of practice, not just those in which 

the majority of the attorneys perform. For 

example, if your firm has one attorney 

practicing securities law, many carriers 

will simply decline to offer terms, no matter 

how great your firm is otherwise. And if 

they do offer terms, they will charge you a 

much higher price than they would otherwise. 

Thus, you should at least ask yourself 

whether certain boutique areas of practice 

in your firm may be causing problems 

in your firm finding LPL coverage at the 

best price possible. Certainly, if the market 

hardens, this aspect of your firm’s risk 

management profile will cause you difficulties 

at your next renewal. 

Ownership Interest in Clients— 

Treasure or Trap? 

When I was practicing law, I noticed that 

the richest partners in the firm were not the 

ones who billed the most hours, but rather 

they were those who had taken an early 

ownership stake in clients that eventually 

went public. Now I admit that this scenario 

does not happen very often, but attorneys 

often seem to believe that this could happen 

to them, too. 

You should know that ownership interest 

in clients among individual lawyers is a 

“red flag” for LPL insurance underwriters. 

If a client in which an attorney has a financial 

interest has asserted a claim against the 

firm, an underwriter will wonder whether 

the attorney acted in the capacity of an 

attorney or as a company shareholder. The 

extent of this potential conflict of interest 

increases as the percentage ownership of an 

attorney increases. When a client asserts 

this kind of claim, the claimant’s attorney 

will try to make this potential conflict 

as meaningful as possible to prove that an 

attorney did not provide his or client with 

unbiased advice. Although not dispositive, 

ownership issues tend to make claims more 

complicated, and thus, more expensive to 

defend. As a result, the settlement value of 

a claim goes up. 

In addition, almost all LPL insurance 



policies exclude coverage for claims asserted 

by a client of the firm where the insured’s 

attorneys, either individually or 

collectively, own more than a certain percentage 

of the client, typically anywhere 

from 5 to 25 percent. In other words, right 

now you may not have LPL insurance coverage 

for a sizable portion of your firm’s legal 

work. If you have not checked your current 

If a hard market comes, 

those firms that do not sue 

their clients for fees will 

survive the storm much 

better than those that do. 

policy for this provision, you should do so 

immediately, after polling all of your attorneys 

to determine the extent of their ownership 

in clients of the firm. 

Know Your Rights 

It seems that everyone nowadays is quick to 

assert their rights whenever they feel that 

they have been wronged. Unfortunately, 

when it comes to insurance, most insureds 

do not know their rights under the insurance 

laws of their states. As a result, sometimes 

law firms find themselves in difficult 

situations that they could otherwise have 

avoided. As the market hardens, and as 

LPL insurance carriers start to charge 

higher premiums or even decide not to 

renew firms’ policies, having a good working 

knowledge of these laws will become 

essential to protecting your firm. 

For example, in most states, an insurance 

carrier must notify you well in 

advance of price increases for renewal 

above a certain threshold. If a carrier does 

not notify you in a timely manner, then 

it cannot legally enforce the higher pricing 

until it has satisfied the legally mandated 

notification period. The purpose of 

these laws is to allow an insured to have 

time to shop around for coverage from 

another insurance carrier before the price 

increase becomes effective. Although each 

state is different, many states require at 


least 60 days advance written notice before 

an excessive price increase can take effect. 

In addition, if an insurance carrier desires 

to take away coverage, then typically 

the carrier can do it only if it provides a “reduction 

of coverage” notice to you well in 

advance of your renewal date. Say, for example, 

that your firm has a “loss only” or “first- 

dollar defense” deductible under which you 

do not pay a deductible for the costs of defending 

a claim, but rather, you pay the 

costs only if your insurance carrier makes 

an actual indemnity payment to a claimant. 

Many times clients assert meritless claims 

against lawyers, yet the carriers have a duty 

to defend insureds for such claims even if 

they are groundless, false, or fraudulent. If 

an insured has this type of “loss only” deductible, 

then the insuring carrier has to 

pay for the cost of the defending the insured 

against meritless claims from the “first dollar.” 

In hard markets, though, insurance 

carriers may attempt to remove this type 

of deductible when next renewing policies. 

In such a case, an insurance carrier needs 

to provide your firm with a “reduction in 

coverage notice,” usually sometime before 

60 days before your policy expires. Again, 

these laws are in place to provide you with 

adequate time to secure the coverage that 

you desire from another insurance carrier. 

If the market becomes very hard, then 

some law firms may not have their coverage 

renewed. If an insurance carrier decides 

not to renew your policy, you should take 

it very seriously because future carriers 

will ask you if the firm’s insurance history 

has involved this scenario. If so, an 

LPL underwriter will want to know the 

reason why another insurance carrier did 

not renew your firm’s previously held policy. 

An LPL underwriter knows that in 

most circumstances an insurance carrier 

does not decide to non- renew a firm’s policy 

unless the carrier experienced trouble 

with the firm, such as problems with the 

firm’s claims, difficulty dealing with the 

firm during the claims adjustment process, 

or failure by the firm to pay a deductible, 

among other things. As such, insurance 

underwriters generally consider a decision 

by a previous carrier to non- renew a LPL 

insurance policy as a “black mark” on your 

firm’s insurance history. 

In most states, not only does an insurance 

carrier need to give your firm signif- 

icant advance written notice that it does 

not intend to renew your LPL policy, but 

usually it must state the reason or reasons 

why. The wording explaining why a carrier 

didn’t renew a policy is very important as 

it will provide written proof to future carriers 

about why your firm did not have its 

policy renewed. Sometimes a carrier simply 

withdraws from a state or decides it will 

no longer insure a certain class of business 

(real estate attorneys, for instance). If this 

is the case, then that does not necessarily 

reflect adversely on the merits of your particular 

law firm. However, without this explanation, 

an LPL insurance underwriter 

justifiably will view an insurance carrier’s 

decision not to renew your firm’s LPL policy 

as suspect because an underwriter knows 

that a carrier does not rid itself of business 

purposefully without good reason. 

Don’t Sue Your Clients 

In tough economic times, clients often fail 

to pay their legal bills. It is tempting for a 

law firm simply to sue a client in such circumstances. 

However, it is a well-known 

fact that law firms that sue their clients 

often are countersued for legal malpractice. 

And once a client alleges legal malpractice, 

the allegation triggers an insurance carrier’s 

defense obligation under your LPL 

policy. 

In general, it is a big “red flag” for any 

law firm to sue a client. It means that 

something has gone terribly wrong in the 

relationship between the law firm and its 

client. The expectations of either or both 

of the parties have been so disappointed 

that they have turned to the court system 

to resolve their dispute. Just because law 

firms have easy access to the court system 

should not mean that they should resort 

to such means of dispute resolution easily. 

To an LPL insurance underwriter, a 

fee- related lawsuit means that a law firm’s 

client- intake process has failed somehow, 

or the firm has failed to manage client 

expectations. In either case, proper risk 

management means that a law firm will 

do everything essentially possible to manage 

clients’ expectations. Some law firms 

understand this dynamic so well that they 

have instituted a policy of not suing their 

clients for fees, period! The partner in 

charge of a matter must write off the entire 

amount against his or her allocable reve-

nues. That focuses the partner’s attention 

on managing the expectations and collections 

process with clients, which, in turn, 

benefits the economic health of the firm 

overall. 

If a hard market comes, those firms that 

do not sue their clients for fees will survive 

the storm much better than those that do. 

Usually, insurance carriers only ask about 

fee lawsuits that have occurred over the 

past one to three years, as opposed to those 

reaching back five to seven years. If you 

institute better policies now in your firm, 

then you can report truthfully that you 

have not sued your clients for fees on future 

insurance applications during the time 

period that an insurance carrier will query. 

Some Final Thoughts 

As we move into 2012, it will be interesting 

to see how the insurance market reacts 

to world events. Even though I detect the 

beginning of a hard market, I am not sure 

when it will occur. In many ways, predict- 

ing the insurance market is akin to trying 

to predict the stock market: when you 

think you got it right, you find out that you 

don’t. 

However, as with the stock market, if 

you take a long-term view, you can make 

good decisions now to position yourself 

well for the long-term trend. The actions 

that you can take presented in this article 

represent just a sample of what you can do 

to prepare yourself better. Your insurance 

broker can offer you more in-depth recommendations 

suited to the particular needs 

of your firm. 

However, if you have considered buying 

higher limits for your firm, you should 

seriously consider doing so now instead of 

waiting another year. Not only is pricing 

relatively cheap now, but you risk a significant 

chance that it will cost more or even 

not be available in the future. You should 

expect that an underwriter will ask you the 

reasons why you want higher limits, and 

the underwriter may also increase the size 

of your deductible if you want to increase 

your limits. 

It is important to remember that much 

of the increase in LPL claims frequency 

and severity has been tied to the poor 

economy. Defense firms have been largely 

immune from an increase in these types 

of claims. Therefore, a claims-free defense 

firm should not tolerate an attempt by a 

carrier to raise its rates significantly simply 

because the carrier wants to subsidize its 

losses emanating from other law firms in 

its book of business that practiced in other 

areas of law that generated claims from the 

poor economy. Again, your insurance broker 

can lead you through this process. 

As Bob Dylan sang so long ago, the one 

who has stalled is the one who will get 

hurt. By perceiving the long-term trend 

and being proactive now, you can position 

yourself in the best way possible because it 

is dangerous to presume that the favorable 

conditions of the current soft insurance 

market will last forever. 


dRug and MedIcaL devIce 

FDA Regulation 

By Michael A. Walsh 

Recent First Amendment 

rulings usher in a fresh 

look at the rules governing 

off-label communications. 

■ Michael A. Walsh is a partner in the Dallas office of Strasburger & Price and leads the firm’s Drug and Device Industry Team. 

He devotes most of his practice to representing clients in FDA regulated industries on issues related to labeling, and is a member 

of the DRI Drug and Device Committee and the Laws and Regulations Committee of the Association of Food and Drug Officials. 


Off-Label Promotion 

and the First 

Amendment 

Warning: The reader is forewarned that [off-label promotion] 

is like a swamp laced with land mines; do not venture 

into this new claims- dissemination process without very 

great caution and attention to detail.

James T. O’Reilly, Food and Drug Administration 

§15:46 (Thompson Reuters/West, 

3rd ed. 2009). 

The Food and Drug Administration’s 

efforts regarding off- label use of medical 

products have resulted in a patchwork of 

regulations, guidance documents, statements, 

prosecutions, letters, and consent 

decrees that significantly restrict manufacturers 

from communicating concerning 

off- label uses. The restrictions hold true 

even when the “off- label” use constitutes 

the standard of care in practicing medicine 

and is based on truthful, sound science. 

The data show that doctors widely prescribe 

medical products for off- label use 

and that they need more, not less, information. 

While it is recognized that manufacturers 

of medical products are most 

knowledgeable about their products and 

best situated to participate in a dialogue 

with physicians regarding off- label use, 

they do so in a murky regulatory world in 

which the penalty for missteps is state or 

federal criminal proceedings and potentially 

crippling fines. We are in a unique 

time when the regulatory framework 

is intersecting with resurgence in First 

Amendment jurisprudence, which very 

well may result in courts taking a fresh 

look at the regulatory scheme governing 

off- label communications. 

Congress established the Food and Drug 

Administration (FDA) and set its mission 

to promote the public health and to ensure 

that drugs and devices are safe and effective. 

21 U.S.C. §393. And as explained in the 

1970s, “the major objective of the drug provisions 

of the Federal Food, Drug, and Cosmetic 

Act is to assure that drugs will be safe 

and effective for use under the conditions 

of use prescribed, recommended, or suggested 

in the labeling thereof.” Legal Status 

of Approved Labeling for Prescription 

Drugs, 37 Fed. Reg. 16,503 (Aug. 15, 1972). 

Off-Label Use and New Use 

“Off-label use” is when, in exercising professional 

judgment in the practice of medicine, 

a physician uses a product for an 

indication, dosage or duration not in the 

FDA approved labeling. “New use” and 

“new drug or device” are terms that the 

FDA uses when a manufacturer communicates 

concerning an “off- label use.” The 

FDA views disseminating information 

relating to a “new use” for a drug or device 

that it has not approved as “labeling,” and 

evidence of a new “intended use” that renders 

the drug or device adulterated or misbranded. 

21 C.F.R. §99.405. 

Misbranding 

A product is “misbranded” if the “labeling” 

includes a statement that is “false or 

misleading in any particular.” 28 U.S.C. 

§352(a); see also 28 U.S.C. §321(n) (statements 

and omissions may make a state- 

ment false or misleading). A product also is 

considered misbranded if the labeling lacks 

“adequate directions for use.” 28 U.S.C. 

§352(f)(1). In prosecuting off- label promotion, 

the government has taken the position 

that any “suggest[ion] that [a] drug is safe 

and effective” for an off- label use is “false 

or misleading,” irrespective of the scientific 

support for the suggestion. U.S. v. Warner- 

The medical profession 

recognizes off- label use 

as appropriate in the 

practice of medicine. 

Lambert Co, LLC, No. 04-10150 RGS, at 8–9 

(D. Mass. June 2, 2004) (Warner- Lambert 

Sentencing Memo); 21 U.S.C. §352(a). 

To determine misbranding, the FDA 

inquires whether product labeling possesses 

adequate information “for the purposes 

for which [the product] is intended, 

including all purposes for which it is advertised 

or represented.” 21 U.S.C. §352(f)(1). 

The FDA defines a drug’s “intended uses” 

to include FDA- approved on- label uses and 

any use “objective[ly] inten[ded]” by the 

manufacturer. 21 C.F.R. §201.128. A manufacturer 

may show its “objective intent” 

by an expression in labeling, an advertisement, 

or other “oral or written statements.” 

Id. If, with the knowledge of the 

manufacturer, the drug is “offered and 

used for a purpose for which it is neither 

labeled nor advertised,” that constitutes 

“objective intent” as well. Id. If a manufacturer 

“knows, or has knowledge of facts 

that would give notice” that its drug “is to 

be used” off- label, it “is required to provide 

adequate labeling for such a drug 

which accords with [those] uses.” 21 C.F.R. 

§201.128 (emphasis added). 

The FDA and the Practice of Medicine 

Congress elected not to permit the FDA to 

interfere with the discretion or decision- 

making of physicians caring for and treating 

patients: “Nothing in [the Federal Food, 

Drug & Cosmetic Act] shall be construed 

to limit or interfere with the authority of 


Drug anD MeDical Device 

a health care practitioner to prescribe or 

administer any legally marketed device to a 

patient for any condition or disease within 

a legitimate health care practitioner- patient 

relationship.” 21 U.S.C. §396. 

The FDA has spoken on off- label use 

by physicians and has stated that if physicians 

use a product for an indication not 

in the approved labeling, “they have the 

Four in 10 doctors queried 

about 22 medications 

believed that at least one 

of the drugs was FDAapproved 

for a specific 

indication when it was 

not labeled as such 

and when scientific 

evidence did not back the 

prescribing decision. 

responsibility to be well informed about 

the product, to base its use on firm scientific 

rationale and on sound medical 

evidence, and to maintain records of the 

product’s use and effects.” See U.S. Food 

& Drug Admin., “Off- Label” and Investigational 

Use of Marketed Drugs, Biologics, 

and Medical Devices—Information 

Sheet, Guidance for Institutional Review 

Boards and Clinical Investigators, http:// 

www.fda.gov/RegulatoryInformation/Guidances/ 

ucm126486.htm. 

The medical profession recognizes off- 

label use as appropriate in the practice of 

medicine: “Clinically appropriate medical 

practice at times requires the use of pharmaceuticals 

for ‘off- label’ indications.” Am. 

Med. Ass’n House of Delegates, Off Label 

Use of Pharmaceuticals, Resolution 820, 

(Sept. 21, 2005), available at http://tinyurl. 

com/yfpwmyo; see also Sigma Tau Pharmaceuticals, 

Inc. v. Schwetz, 288 F.3d 141 

(4th Cir. 2002); Huntman v. Danek Medi- 


cal, Inc., 1998 U.S. Dist. Lexis 13431 (S.D. 

Cal. 1998) (citing In re Orthopedic Bone 

Screw Products Liability Litigation, MDL 

1014, 1997 WL 305257, at *4–5); Washington 

Legal Found. v. Kessler, 880 F. Supp. 26, 

28 (D.D.C. 1995). Scott Gottlieb of the FDA 

put it this way: “Efforts to limit prescription 

and scientific exchange to indications 

only specified on a label could retard the 

most important advances in 21st century 

medicine…. Yet policy forces are tugging 

in exactly the opposite direction by placing 

restrictions on the exchange of some 

of the most pertinent information.” Scott 

Gottlieb, Deputy Comm’r, Med. & Scientific 

Affairs, U.S. Food & Drug Admin., 

Windhover’s FDA/CMS Summit, Prepared 

Remarks (Dec. 5, 2006), http://www.fda.gov/ 

NewsEvents/Speeches/ucm051792.htm (last 

accessed Nov. 1, 2011). 

How Often Do Physicians 

Inappropriately Prescribe Off-Label? 

A survey in the August 21, 2009, Pharmacoepidemiology 

and Drug Safety found 

that four in 10 doctors queried about 22 

medications believed that at least one of 

the drugs was FDA- approved for a specific 

indication when it was not labeled as such 

and when scientific evidence did not back 

the prescribing decision. D.T. Chen, M.K. 

Wynia, R.M. Moloney, & G.C. Alexander, 

U.S. Physician Knowledge of the FDA- 

Approved Indications and Evidence Base 

for Commonly Prescribed Drugs: Results of 

a National Survey, 18 Pharmacoepidemiology 

and Drug Safety 1094–1100 (2009). 

A national survey of nearly 500 randomly 

sampled primary- care physicians and psychiatrists 

found that 55 percent of the time 

doctors correctly identified the FDA- label 

status of drugs for particular indications. 

See Kevin B. O’Reilly, Physicians Know 

FDA-OK’d Uses for Drugs Half the Time, 

amednews.com, Sept. 14, 2009, http://www. 

ama-assn.org/amednews/2009/09/07/prsc0907. 

htm (last accessed Nov. 2, 2011). 

According to one source, “[i]n 2001, 

there were an estimated 150 million off- 

label prescriptions (21 percent of overall 

use) of the sampled medications…. Most 

off- label drug medicines (73 percent) had 

little or no scientific support.” David C. 

Radley et al., Off- Label Prescribing Among 

Office- Based Physicians, 166 Archives of 

Internal Med. 1021–66 (May 8, 2006). 

Why Do Doctors Write So Many 

Prescriptions for Off-Label Use 

Without Scientific Support? 

According to Jerome L. Avorn, chief of 

the division of pharmacoepidemiology 

and pharmacoeconomics at Brigham and 

Women’s Hospital in Massachusetts, the 

reason why doctors write so many prescriptions 

for off- label use without scientific 

support is that “[i]t is terribly, terribly 

hard for an individual practitioner to keep 

abreast of all the thousands of indications…. 

All this information about indications 

can overwhelm physicians.” Kevin B. 

O’Reilly, Physicians Know FDA-OK’d Uses 

for Drugs Half the Time, amednews.com, 

Sept. 7, 2009, http://www.ama-assn.org/amednews/2009/09/07/prsc0907.htm 

(last accessed 

Nov. 2, 2011). 

According to the New England Journal 

of Medicine, 

[i]t is unrealistic to expect each physician 

to have the time and expertise to 

subject [off- label] claims to the same 

kind of scrutiny that the FDA exercises 

when it reviews a drug application 

or a request for a new indication. 

The complexity of the assessment that is 

required, along with the high stakes of 

getting it wrong, provided the rationale 

for having a formal drug- approval process 

in the first place. 

Aaron S. Kesselheim & Jerry Avorn, Pharmaceutical 

Promotion to Physicians and 

First Amendment Rights, 358 New England 

J. of Med. 1727, 1730–31 (Apr. 17, 2008). 

Some commentators attribute the gap in 

knowledge to the approval process itself: 

“Much critical information that the Food 

and Drug Administration (FDA) has at the 

time of approval may fail to make its way 

into the drug label and relevant journal articles.” 

Lisa M. Schwartz & Steven Woloshin, 

Lost in Transmission—FDA Drug Information 

that Never Reaches Clinicians, 361 New 

England J. of Med. 1717 (Oct. 29, 2009). Despite 

this knowledge gap, “[e]x perts agree 

that additional efforts—many of them currently 

undefined—will be needed to increase 

access to appropriate off- label drugs 

for patients with rare and other diseases 

while safeguarding against illegal marketing 

and potentially dangerous prescribing.” 

Tracy Hampton, Experts Weigh in on Promotion, 

Prescription of Off- label Drugs, 297 

JAMA 683–84 (Feb. 21, 2007).

What Does the Public Think 

of Off-Label Use? 

According to a 2006 Wall Street Journal/ 

Harris Interactive Poll, consumers have 

mixed views on whether doctors should 

have the leeway to prescribe drugs for uses 

for which the FDA hasn’t approved: “Forty- 

five percent of those surveyed [said] doctors 

‘should be allowed to decide which 

prescription drug treatments to use with 

their patients regardless of what diseases 

they have or have not been approved for 

by the FDA,’ compared with 46 percent 

who said this shouldn’t be allowed.” Becky 

Bright, Adults Are Divided on Off- Label 

Use of Prescription Drugs, Wall. St. J. Online, 

Nov. 23, 2006, http://online.wsj.com/article/SB116422408807730936.html 

(last accessed 

Nov. 2, 2011). Further, 69 percent believed 

that pharmaceutical companies should not 

be allowed to “encourage” doctors to use a 

drug for a disease for which it had not been 

approved. Id. The Wall Street Journal interpreted 

the poll as indicating that “many 

Americans don’t want to hamper innovation, 

but would be supportive of greater 

limitations on off- label drug use.” Id. But 

a recent Internet- based, randomized, controlled 

trial assessed the U.S. public understanding 

of the “meaning” of FDA drug 

approval. The study concluded that “[a] substantial 

proportion of the public mistakenly 

believes that the FDA approves only 

extremely effective drugs and drugs lacking 

serious side effects.” Lisa M. Schwartz 

& Steven Woloshin, Communicating Uncertainties 

About Prescription Drugs, 171 Archives 

of Internal Med. 1463 (Sept. 12, 2011). 

Why Does the FDA Regulate What 

Manufacturers Say About Off-Label Uses? 

According to the FDA, it regulates what 

manufacturers say about off-label drug 

use because 

[B]ased on its experience, FDA has found 

that the promotion of unapproved uses 

by manufacturers of the promoted products 

can subject patients to unnecessary 

and dangerous risks…. Promotion 

of unapproved uses can encourage physicians 

and patients to make decisions 

based on statements or claims that are, 

in many cases, supported by little or no 

data. Thus FDA’s position is that the promotion 

of unapproved uses, either by 

companies or other parties that bene- 

fit by the promotion, can place physicians 

and patients in positions where 

they cannot make an informed, unbiased 

decision. 

FDA Notice and Request for Comments 

re Citizen Petition Regarding FDA’s Policy 

on Promotion of Unapproved Uses of 

Approved Drugs and Devices, 59 Fed. Reg. 

59,820, 59,821–22 (Nov. 18, 1994). 

The Safe Harbor 

Congress recognized that the standard of 

care for a physician can constitute criminal 

conduct for a manufacturer and thus 

created a safe harbor—section 401 of the 

Food and Drug Administration Modernization 

Act (FDAMA)—which outlined 

certain conditions under which a manufacturer 

could disseminate information 

on unapproved or new medical product 

uses. If a manufacturer submitted a supplemental 

new drug application (SNDA) 

and complied with section 401 regulations, 

dissemination of certain materials concerning 

“new uses” would not be used as 

evidence of intent to promote the product 

off-label. Section 401 expired in 2006, and 

the FDA promulgated “final rules” implementing 

section 401 in 2009, Dissemination 

of Information on Unapproved/New 

Uses for Marketed Drugs, Biologics and 

Devices. 21 C.F.R. §99, available at http:// 

www.accessdata.fda.gov/scripts/cdrh/cfdocs/ 

cfCFR/CFRSearch.cfm?CFRPart=99. See also, 

Guidance for Industry, Good Reprint Practices 

for the Distribution of Medical Journal 

Articles and Medical or Scientific Reference 

Publications on Unapproved New Uses of 

Approved Drugs and Approved or Cleared 

Medical Devices.” http://www.fda.gov/oc/op/ 

goodreprint.html. 

The “safe harbor” applies to information 

about uses not included in FDA- approved 

labeling disseminated to a health-care 

practitioner, pharmacy benefits manager, 

health insurance issuer, group health plan, 

or government agency. 

However, the “safe harbor” does not apply 

to information provided in response to a 

practitioner’s “unsolicited request.” The FDA 

has stated that a manufacturer’s response to 

an “unsolicited request” does not constitute 

“labeling” because it is a “personal communication 

between the requester and [manufacturer].” 

See Div. of Drug Advertising and 

Labeling Position on the Concept of Solicited 

and Unsolicited Requests (April 22, 1982). 

But this FDA “concept” is imprecise and so 

those communications could still be considered 

“promotional.” 

A manufacturer may disseminate “new 

use” information that concerns an approved 

drug or device as long as it isn’t disseminated 

with promotional material, is 

not false or misleading, and does not present 

favorable information only, in which 

case the FDA may consider the information 

misleading, meaning “misbranded.” 

The information may take form as an “unabridged 

reprint[,] … a copy of a peer- 

reviewed and published clinical study,” 21 

C.F.R. §99.101(a)(2)(i), or a “reference publication” 

including information about a clinical 

investigation, 21 C.F.R. §99.101(a)(2)(ii), 

as long as it is “considered… scientifically 

sound.” 21 C.F.R. §99.101(a)(2)(i), (a)(2)(ii). 

The FDA defines a reference publication as 

something that the disseminating manufacturer 

did not write, edit, or “influence,” that 

is generally available, and does not focus on 

products of the manufacturer distributing 

the publication. 21 C.F.R. §99.13(i). Further, 

the FDA will not permit a manufacturer to 

ground information in a letter to the editor, 

abstracts, or studies involving four or 

fewer subjects. 21 C.F.R. §99.101(b). Nor can 

the information derive from another manufacturer’s 

publication unless the distributing 

manufacturer has that manufacturer’s 

permission to disseminate it. 

To obtain FDA approval to disseminate 

information regarding a “new use,” 60 days 

before disseminating it a manufacturer 

must submit the following to the FDA: 

• A copy of the information; 

• All information that the manufacturer 

has, including clinical trial information 

and the method used for selecting any 

bibliography; 

• A supplemental application for a “new 

use” or the equivalent; and 

• If the manufacturer has no additional 

information, a statement that it has no 

additional information relating to the 

“New Use.” 

21 C.F.R. §99.201(a)(2). 

If a manufacturer has not submitted a 

supplemental application 

• If studies have been completed, a manufacturer 

must submit a copy of the protocols 

and a certification stating that 

studies have been completed and that 



the manufacturer will submit a supplemental 

application within six months; 

• If studies have not been completed, a 

manufacturer must submit proposed 

protocols and a schedule of when the researchers 

will conduct the studies and a 

certification that the manufacturer will 

use due diligence and will submit a supplemental 

application within 36 months. 

Irrespective of the stakes, 

a new day is dawning on the 

First Amendment, and the 

FDA’s old arguments may 

not endure the scrutiny. 

• If the manufacturer seeks exemption 

from the supplemental application 

requirements, the manufacturer must 

submit an application for exemption 

(economic feasibility, unethical to conduct 

a study) from the supplemental 

application requirements. 

See 21 C.F.R. §99.205. 

If the dissemination parameters fail to 

meet these requirements, including “failing 

to exercise due diligence,” the failure 

may render any disseminated information 

“labeling [and] evidence of a new intended 

use, adulteration, or misbranding of the 

drug or device.” 21 C.F.R. §99.405. 

Mandatory Statements 

The information disseminated “shall” 

include a disclosure permanently affixed 

and “prominently displayed” on the front 

of the information to be disseminated 

stating “This information has not been 

approved [or cleared if a device] by the 

Food and Drug Administration.” 21 C.F.R. 

§99.103. This mandatory statement must 

disclose whether the information is disseminated 

at the expense of the manufacturer 

and identify the authors of the 

publication who received compensation 

from the manufacturer as well as identify 

approved, or cleared, treatments for the 

product, as well as the information’s funding 

source. Id. 


The manufacturer must also include in 

the mandatory statement: (1) the approved 

labeling; (2) a bibliography listing materials 

that do not support the new use; and 

(3) additional information that the FDA 

deems “necessary to provide objectivity 

and balance.” 21 C.F.R. §99.103. 

Industry Supported Activities 

The FDA’s approach to educational events 

during which “off- label” uses are discussed 

is contained in “Industry Guidance on 

Industry- Supported Scientific and Educational 

Activities.” 62 Fed. Reg. 64,074, 

64,093 (Dec. 3, 1997), available at http:// 

www.fda.gov/RegulatoryInformation/Guidances/ 

ucm122044.htm. According to the FDA, 

“truly independent and nonpromotional 

industry- supported activities have not been 

subject to FDA regulation.” 62 Fed. Reg. 

64,094 (Dec. 3, 1997). 

Twelve Factors to Determine 

Independence 

Noting that “[d]emarcating the line 

between activities that are performed by 

or on behalf of the company, and thus, 

subject to regulation, and activities that 

are essentially independent of their influence 

has become more difficult due to 

the increasing role industry has played 

in supporting postgraduate and continuing 

education for health care professionals,” 

the FDA identified factors to evaluate 

industry- supported scientific and educational 

activities to determine whether a 

company supporting an activity “is in a 

position to influence the presentation of 

information related to its products” or to 

“transform an ostensibly independent program 

into a promotional vehicle.” Industry 

Guidance on Industry Supported Scientific 

and Educational Activities, 62 Fed. Reg. 

64,095, 64,099 (Dec. 3, 1997). The factors 

only apply to “company- supported activities 

that relate to the supporting company’s 

products or to competing products” and are 

intended to clarify the difference between 

promotional and nonpromotional activities 

for activity designers. 62 Fed. Reg. 

64,096. The factors are 

1. Did the program provider rather than 

the supporting company control content 

and select presenters and moderators? 

2. Did the program meaningfully disclose 

relationships? 

3. What was the program’s focus; for 

instance, did it focus on a product? 

4. Did the relationship between the provider 

and the company permit the company 

to exert control over the provider? 

5. Did the provider have a history of failing 

to meet independence standards? 

6. Is the provider involved in the company’s 

sales or marketing? 

7. Did the agenda include multiple presentations 

of the same program? 

8. Did audience selection reflect marketing 

goals, or did the company’s 

marketing department influence its 

selection? 

9. Did the program offer opportunity for 

discussion? 

10. Did the program provider or the supporting 

company disseminate additional 

product information after the 

program? 

11. Did the program include ancillary 

marketing efforts? 

12. Did anyone complain that the supporting 

company attempted “to influence 

content.” 

Industry Guidance on Industry Supported 

Scientific and Educational Activities, 62 

Fed. Reg. 64,097–64,099. 

The FDA also takes into account a category 

of catch-all “additional considerations,” 

such as whether the written 

agreement between a supporting company 

and the program provider reflected that the 

later would design and direct the program. 

Id. at 64,099. 

Promotion of FDA- Regulated 

Medical Products Using the 

Internet and Social Media Tools 

In November 2009, the FDA held two days 

of meetings on promoting FDA- regulated 

products with social media attended by 

a variety of stakeholders many of whom 

presented written materials and addressed 

the issue. The industry has long awaited 

guidance from the FDA on this topic. An 

archived webcast of the meeting is available 

at http://www.capitolconnection.net/ capcon/ 

fda/111209/FDAarchive.htm (last accessed Nov. 

2, 2011). 

Government Accountability 

Office Study 

In July 2008, the U.S Government Accountability 

Office (GAO) reviewed the FDA’s

oversight of off- label promotion and produced 

a report to Congress detailing the 

regulatory framework, how the FDA oversees 

off- label promotion, and its actions 

regarding off- label promotion. U.S. Gov’t 

Accountability Office, GAO-08-835, Prescription 

Drugs: FDA’s Oversight of the 

Promotion of Drugs for Off- Label Uses 

(2008), available at http://www.gao.gov/new. 

items/d08835.pdf (last accessed Nov. 2, 2011). 

July 15, 2011, Citizen’s Petition 

Regarding Safe Harbor 

On July 15, 2011, seven major manufacturers 

of marketed drugs and devices filed a 

citizen’s petition seeking a clearly defined 

free speech safe harbor for information that 

enables a scientific exchange of extra- label, 

truthful and non- misleading information. 

This petition presents as clear an explanation 

of the Byzantine rules governing off- 

label communications as may be possible and 

represents a significant attempt to bring clarity 

to this murky regulatory environment. 

Commercial Speech and 

the First Amendment 

First Amendment concerns have hounded 

the FDA as it reeled in who could speak, 

what they could say, and when and where 

they could say it. In the past, with a notable 

exception or two, discussed below, the FDA 

prevailed on First Amendment challenges, 

perhaps because what is at stake is the 

entire regulatory scheme itself. Irrespective 

of the stakes, a new day is dawning on 

the First Amendment, and the FDA’s old 

arguments may not endure the scrutiny. As 

explained by the Seventh Circuit, 

Defendants’ lead argument is that the 

Food, Drug, and Cosmetic Act violates 

the First Amendment by restricting promotional 

materials to those that the FDA 

has approved. The argument starts from 

the premise that federal law allows customers 

of any approved medical device 

or drug to put it to any use that the customer 

sees fit. These “off- label uses” 

being lawful, the argument goes, it must 

be lawful to tell customers about them. 

Until the last 30 years, such an argument 

would have been laughed out of court. 

U.S. v. Caputo, 517 F.3d 935, 937 (7th Cir. 

2008). 

Well, the laughter has stopped, and courts 

are taking a fresh look at this First Amend- 

ment issue. The FDA originally took two 

positions respecting the relationship between 

the First Amendment and off- label 

or new use: 

• The FDA off-label restrictions regulated 

conduct not speech. 

• And if the Court does find the dissemination 

of information did constitute speech, 

it constituted commercial speech; as such, 

in regulating it the FDA restrictions satisfied 

the Central Hudson test. 

See Summary on Final Guidance on Industry 

Supported Scientific and Educational 

Activities, 62, Fed. Reg. 64,074, 64,082; 62 

C.F.R, 64,074, 64,082. 

The Notable Exception 

In Washington Legal Foundation v. Friedman, 

Judge Lamberth of the District of 

Columbia held that through the FDAMA 

provisions on off- label dissemination the 

FDA regulated speech and not conduct, 

and as such the provisions fell within the 

purview of intermediate First Amendment 

scrutiny. 13 F. Supp. 2d 51, 59 (D.D.C. 1998). 

Judge Lamberth entered a permanent injunction 

prohibiting the FDA from enforcing 

“any regulation, guidance, policy, order 

or other official action” to “prohibit, restrict, 

sanction, or otherwise seek to limit any 

pharmaceutical or medical device manufacturer 

or any other person from” particular 

speech. Id. at 74. The speech is 

• Disseminating reprints of materials 

from “bona fide peer- reviewed professional 

journals,” 

• Disseminating textbooks or portions of 

textbooks, and 

• Suggesting content or speakers to an 

independent program provider. 

Id. 

Judge Lamberth found that the FDA regulation 

overstepped the boundary necessary 

to serve the government’s interests in 

regulating off- label communications and 

less restrictive alternatives existed. Washington 

Legal Foundation v. Friedman, 13 F. 

Supp. 2d 51, 74 (D.D.C. 1998). 

On appeal, the Fourth Circuit noted that 

“as a result of the government’s clarification 

at oral argument, the dispute between 

the parties has disappeared before our 

eyes.” 202 F.3d 331, 334 (D.C Cir. 2000). The 

Fourth Circuit dismissed the appeal and 

vacated the trial court injunction. When 

the parties later asked Judge Lamberth to 

enforce whatever remained of the injunction, 

the court stated: 

This year, the Court of Appeals was 

poised to finally galvanize a rule of law 

in this area. Yet, for whatever reason, the 

opportunity was spent debating not the 

U.S. Constitution’s First Amendment, but 

its Article III case or controversy requirement. 

In fact, after the Court of Appeals’ 

opinion, we have even less First Amendment 

law than before; this is because the 

Court vacated all of this Court’s previous 

constitutional rulings on the matter. 

As for this Court’s part in the controversy, 

the Court is confident that it has 

done its best…. It has decided the underlying 

[constitutional] issue at least twice, 

and senses it will be called on to do so 

again before the controversy is concluded. 

For now, however, the issue must 

be given a temporary rest. 

128 F. Supp. 2d 11, 15 (D.D.C. 2000). 

Sorrell v. IMS Health Inc. 

131 S. Ct. 2653 (2011) 

Sorrell is not an off- label promotion case 

but it offers a major pronouncement of 

the Supreme Court reasoning on the 

First Amendment in the context of FDA- 

approved products. 131 S. Ct. 2653 (2011). 

Pharmacies collect prescribing information 

(PI), including a prescriber’s name and 

address; the name, dosage, and quantity of 

the drug; the date and location where the 

prescription was filled; and the patient’s 

age and gender. Manufacturers purchase PI 

to focus their marketing messages to individual 

prescribers and rely on sales representatives, 

referred to as “detailers,” to visit 

individual physicians to provide information 

to the physicians on their products. 

In 2007, Vermont enacted a “Prescription 

Confidentiality Law” that prohibited 

pharmacies from selling PI for marketing 

purposes and barred manufacturers from 

using PI for marketing purposes. 

The district court found in favor of Vermont, 

but the Second Circuit reversed, 

finding that the statute violated the First 

Amendment to the U.S. Constitution by 

burdening the speech of pharmaceutical 

marketers and data miners without adequate 

justification. A nearly identical statute 

was considered by the First Circuit 

and, because the First Circuit viewed the 

prescribing information as a commodity, 



“mere beef jerky,” IMS Health Inc. v Ayotte, 

550 F.3d 42, 53 (CA1 2008), and the Second 

Circuit viewed it as speech akin to a “cookbook, 

laboratory result or train schedule,” 

the Supreme Court granted certiorari. 

The Supreme Court analysis began by 

stating that “[s]peech in aid of pharmaceutical 

marketing, however, is a form of expression 

protected by the Free Speech Clause of 

Sorrell… plainly paves the 

way for courts to review the 

First Amendment implications 

of the patchwork regulatory 

scheme governing offlabel 

communications. 

the First Amendment.” 131 S. Ct. at 2659. 

The Court found that the law warranted 

heightened scrutiny because Vermont 

“designed [the law] to impose a specific, 

content- based burden on protected expression.” 

Id. at 2664. The Court wrote that 

“[t]he First Amendment requires heightened 

scrutiny whenever the government 

creates a ‘regulation of speech because of 

disagreement with the message it conveys.’” 

Id. Vermont argued, as does the FDA about 

manufacturer off- label speech, that heightened 

scrutiny was not warranted because 

the law was “a mere commercial regulation.” 

The Supreme Court disagreed, stating 

that (1) the “law does not simply have 

an effect on speech, but is impermissibly 

directed at certain content and is aimed at 

particular speakers,” and (2) distinct from 

previous cases that considered limiting access 

to using governmental information, 

the law in Sorrell “implicated” commercially 

available information and restricted 

“[a]n individual’s right to speak… when information 

he or she possesses is subjected 

to ‘restraint on the way in which the information 

might be used or disseminated.’” 

Id. at 2665 (internal citation omitted). In 

addressing the conflict between the First 

Circuit and the Second Circuit, the Court 

stated that “[f]acts, after all, are the begin- 


ning point for much of the speech that is 

most essential to advance human knowledge 

and to conduct human affairs. There 

is thus a strong argument that prescriber- 

identifying information is speech for First 

Amendment purposes.” Id. at 2667. 

According to the Supreme Court, 

Those who seek to censor or burden free 

expression often assert that disfavored 

speech has adverse effects. But the “fear 

that people would make bad decisions if 

given truthful information cannot justify 

content- based burdens on speech.” 

The First Amendment directs us to be 

especially skeptical of regulations that 

seek to keep people in the dark for what 

the government perceives to be their 

own good. These precepts apply with 

full force when the audience, in this 

case prescribing physicians, consists of 

“sophisticated and experienced consumers.”…That 

the State finds expression too 

persuasive does not permit it to quiet the 

speech or to burden its messengers. 

131 S. Ct. 2670. 

The Court quoted one Vermont physician: 

“We have a saying in medicine, information 

is power. And the more you know, 

or anyone knows, the better decisions can 

be made.” Id. at 2671. 

Sorrell is not an off- label case, but it 

plainly paves the way for courts to review 

the First Amendment implications of the 

patchwork regulatory scheme governing 

off- label communications. Significantly, 

the Second Circuit will review another 

First Amendment case, this time squarely 

addressing the First Amendment in the 

context of off- label marketing. 

U.S. v. Caronia, 576 F. Supp. 

2d 385 (E.D.N.Y. 2008) 

Orphan Medical manufactured and marketed 

a sleep- inducing depressant, Zyrem. 

A government informant contacted Mr. 

Caronia, a sales representative, asking for 

information on off- label use and for a presentation 

by a medical liaison. Mr. Caronia 

arranged the presentation, and the sting 

operation resulted in prosecution. Unfortunately 

for Mr. Caronia, his employer 

admitted to a conspiracy to misbrand and 

paid a hefty penalty. In addition, a former 

manager testified that he had personally 

instructed the medical liaison to misbrand 

the product on prior occasions. 

In denying Mr. Caronia’s motion to dismiss, 

the trial court presciently stated: 

Reduced to its essence, Caronia’s argument 

is that the government cannot 

restrict truthful, non- misleading promotion 

by a pharmaceutical manufacturer 

(or its employees) to a physician 

of the off- label uses of an FDA- approved 

drug… squarely, Caronia’s constitutional 

attack calls into questions America’s 

regulatory regime for the approval 

and marketing of prescription drugs. 

The court went on to state: “The Constitutional 

issues raised in Caronia’s motion are 

very much unsettled, not only in the circuit 

but nationwide.” The court ruled that “[i]t 

is clear to the Court that the promotion of 

off- label uses of an FDA- approved prescription 

drug is speech not conduct.” The court 

found the facts supported three of the four 

Central Hudson factors and stated: “With 

that the overture ends and the play begins. 

Enter on stage the essential question—can 

government satisfy the fourth prong of Central 

Hudson?” In answering that question, 

the Caronia trial court stated that 

here, the FDA’s maintaining through the 

FDCA’s misbranding provisions some 

control over the off- label promotion of 

manufacturers does appear essential to 

maintaining the integrity of the FDA’s 

new drug approval process…this Court 

is unable to identify non- speech restrictions 

that would likely constrain in any 

effective way manufacturers from circumventing 

that approval process. 

The case was tried to a verdict against 

Mr. Caronia, and the jury convicted him 

on one count of “conspiracy to introduce 

or deliver for introduction into interstate 

commerce a drug, Xyrem, that was misbranded.” 

The jury imposed a $25 fine and 

community service as a sentence. 

With the tide rising on the First Amendment, 

Mr. Caronia has been joined by amici 

that have been battling this issue since the 

days when it was “laughed out of court.” 

Only now no one is laughing. Caronia is 

up before the Second Circuit, and supplemental 

briefing was filed in August 2011, 

addressing the First Amendment issues 

raised by the Supreme Court in Sorrell. 

While it is not clear how the Second 

Circuit will rule in Caronia, in Sorrell the 

Second Circuit found that the Vermont 

statute violated the First Amendment, stat-

ing that “[t]he statute is therefore clearly 

aimed at influencing the supply of information, 

a core First Amendment concern…. 

[T]he First Amendment teaches that courts 

should assume that truthful commercial 

information ‘is not in itself harmful.’” 630 

F.3d 263, 272 (2d Cir. 2010) (internal citation 

omitted). The Second Circuit concluded 

that the state could achieve its goals 

with less restrictive means: 

In other words the statute seeks to alter 

the marketplace of ideas by taking out 

some truthful information that the state 

thinks could be used too effectively. The 

state’s approach to regulating the interaction 

between detailers and doctors is 

premised on limiting the information 

available to physicians as a means of 

impacting their conduct. This approach 

is antithetical to a long line of Supreme 

Court cases stressing that courts must 

be very skeptical of government efforts 

to prevent the dissemination of information 

in order to affect conduct. 

Id. at 277–78. 

From “Notable Exception” 

to Developing Trend? 

On October 14, 2011, Par Pharmaceuticals 

filed a declaratory judgment action 

in the U.S. District Court of the District of 

Columbia seeking a preliminary injunction 

preventing the federal government 

from criminalizing truthful speech that 

is not misleading to health care providers 

concerning its FDA- regulated products. 

At issue in Par is the drug Magace, a 

drug to treat weight loss or wasting in AIDS 

patients, which doctors use off- label more 

frequently with other populations such as 

geriatric and cancer patients. Par may pick 

up where Washington Legal Foundation v. 

Friedman left off, as a party has again asked 

that court to issue an injunction barring 

the FDA from prohibiting truthful speech 

that doesn’t mislead concerning regulated 

products. Perhaps this iteration of First 

Amendment challenges in that court will 

not “disappear before our eyes” as it did in 

Washington Legal Foundation v. Friedman. 

Conclusion 

The boundary between permissible and 

impermissible speech regarding off- label or 

new uses is vague, and the civil and criminal 

penalties for a real or imagined misstep 

are severe. Yet the data show that physicians 

and the consuming public require 

more, not less, truthful scientific information 

regarding the uses to which they put 

medical products. The current compliance 

and enforcement regime may not only fail 

to satisfy the mounting First Amendment 

challenges, but it may also fail the underlying 

interest of the improving public health, 

which it is designed to serve. 


TRuckIng Law 

From the Chair 

By Kurt M. Rozelsky 

Our ambitious 2012 

schedule makes it the 

perfect time to get 

involved in the Trucking 

Law Committee. 

■ Kurt M. Rozelsky is an attorney in the Greenville, South Carolina, office of Smith Moore Leatherwood LLP. Kurt focuses his 

practice on the defense of transportation matters, product liability claims, and other technical and expert driven litigation. In 

addition to chairing DRI’s Trucking Law Committee, he is a vice chair of the FDCC’s Transportation Section and is a member of 

ABOTA, TIDA, and Transportation Lawyers Association. He has 72 friends (14 pending). 


One New Idea— 

One New Friend

Whenever I go to a conference, reception, or similar event, 

I set a simple goal: learn one new idea and meet one new 

friend. Sounds simple, right? As lawyers, we are all busy. 

In fact, we pride ourselves on being busy. When you ask 

someone how they are doing, the common 

response is “I’m really busy,” to which we 

generally reply by telling them how busy 

we are as well. It is as if the busiest person 

wins. Well, 2012 is the perfect time for you 

to slow down and focus on learning one 

new idea and making one new friend in the 

Trucking Law Committee. 

Speaking of new ideas, the Trucking Law 

Committee has been hard at work planning 

the 2012 Trucking Law Seminar: Road 

Warriors 2012—Reshaping Trucking Litigation, 

to take place February 16–17 at the 

fabulous Westin Kierland Resort in Scottsdale, 

Arizona. M.J. Dobbs, Program Chair, 

and Brett Ross, Program Vice Chair, and 

their steering committee have put together 

an incredible, not-to-be-missed program. 

The 2012 seminar features a keynote 

speech by David Osiecki of the American 

Trucking Associations about the upcoming 

legislative and regulatory agenda affecting 

the trucking industry. In addition, there 

are practical segments on voir dire in a 

trucking case, handling the nontraditional 

trucking case, handling damages after stipulating 

to liability, and defending the driver’s 

history. There are breakout sessions 

for new- to- trucking attorneys on medical 

issues and advanced sessions on loading/ 

unloading, trucking employment issues, 

and the ever- evolving CSA. Finally, the 

seminar will introduce two live features: a 

driving simulation and a live independent 

medical exam (IME). This is truly a seminar 

where you will learn much more than 

just one new idea. 

On the “meet one new person” goal, 

the 2012 seminar offers numerous opportunities 

to network with trucking attorneys 

from around the country at breakfast 

gatherings, cocktail receptions, and the 

ever- popular dine-arounds. The last seminar 

hosted nearly 650 attendees, including 

numerous industry representatives, and 

the upcoming seminar expects to be even 

grander. If you cannot meet one new per- 

son in this venue, you are not trying very 

hard. 

The Trucking Law Committee offers 

many more opportunities to learn new 

ideas from our quarterly newsletter, In 

Transit, and this issue of For The Defense. 

Thanks to Publications Chair Stephen 

Pesarchick and Publications Vice Chair 

John Lomax Anderson for their efforts in 

putting these materials together. The committee 

publications offer an excellent way 

to get involved in the committee and share 

your knowledge and experiences. If you 

have an article or an idea, let us know and 

we will work to get you published. 

Combining new ideas and new friends, 

2012 will continue the development of 

the Trucking Law Specialized Litigation 

Groups (SLGs). These subgroups include 

Biomechanics/Accident Reconstruction, 

Cargo Claims, Insurance Coverage, 

Logistics, New Trucking Attorney/Young 

Lawyers, and Regulatory/Governmental 

Affairs. SLG Chair Pat Sweeney and 

SLG Vice Chair Sara Turner are recruiting 

members to each of these groups to 

get more people involved in the committee 

and we hope you will join one or more of 

the SLGs. The more people get involved the 

more productive these groups will become, 

leading to more new ideas and more new 

friends. 

As you read through the following pages 

of excellent articles, written by experienced 

trucking practitioners, strive to learn one 

new idea that you can put into your practice 

today. And as you prepare for 2012, 

strive to make the one new friend in the 

Trucking Law Committee. In the end, you 

will find that the new idea/new friend idea 

is a way to grow your practice professionally 

and personally. Good luck, and I look 

forward to making many new friends at the 

2012 seminar in Scottsdale. 


Trucking Law 

Rapid Response Teams 

By Durward D. Casteel 

and Aaron J. Messer 

Pieces of evidence, each by itself insufficient, 

may together constitute a significant 

whole, and justify by their 

combined effect a conclusion. 

—Lord Wright 

Physical evidence cannot be wrong, it 

cannot perjure itself, it cannot be wholly 

absent. Only human failure to find it, 

study and understand it, can diminish 

its value. 

—Paul L. Kirk 


Investigation 

of Catastrophic 

Accidents 

Time is of the essence when investigating a catastrophic 

trucking accident since key evidence, such as a favorable 

witness, a faint tire mark, or accident debris, disappears 

quickly from a scene. For this reason, trucking companies 

and their third-party administrators or 

insurers use small groups of professionals 

known as “rapid response,” “go,” or 

“CAT” teams to assess and investigate accidents 

quickly. This article offers a primer 

on the makeup and activities of a successful 

trucking accident rapid response team. 

The article also addresses the application 

of the attorney- client privilege, the work- 

product doctrine, and spoliation to the 

team’s efforts and findings. 

Benefits of a Rapid and 

Thorough Investigation 

A thorough investigation has many benefits. 

First, it will increase the chance that a 

trucking company will have the evidence 

necessary to defend no-fault accidents, or 

to prove comparative fault on the part of 

other drivers or third parties such as highway 

construction companies or state transportation 

departments. Second, collecting 

and documenting physical evidence will 

allow a trucking company to evaluate wit- 

ness statements better, including that of 

the trucking company’s driver. Third, rapidly 

and thoroughly investigating an accident 

better positions a trucking company 

to influence investigations by governmental 

agencies because the company’s team 

can then provide evidence when appropriate 

to an investigating authority or to a district 

attorney. Finally, an investigation will 

assess an accident’s causes early and accurately. 

This early assessment will increase 

the chance of achieving a timely settlement, 

when appropriate, by providing the information 

necessary to set a proper reserve. 

Importance of Arriving at the 

Accident Scene Quickly 

Team members must arrive on the scene 

of a catastrophic accident as soon as possible 

so that key evidence can be preserved 

or documented. A rapid response has the 

advantages of 

• Identifying all potential witnesses, including 

law enforcement, fire depart- 

■ Durward D. Casteel and Aaron J. Messer are trial attorneys at Casteel & Associates in Baton Rouge, Louisiana. 

They practice primarily in the areas of trucking and insurance defense. Both are active members of 

DRI and its Trucking Law Committee. The authors thank Cline Young for his assistance regarding the accident 

reconstructionist’s role in responding to a catastrophic accident, and the engineers at Delta [V] Forensic 

Engineering for their input into the electronic data section of this article.

ment, and emergency medical services 

(EMS) personnel; 

• Documenting the scene before the debris 

field has been cleared; 

• Identifying damage to stationary objects 

or landmarks; 

• Documenting tire marks and evidence 

of paint transfer, liquids, and stains; 

• Preserving electronic data; 

• Obtaining accurate weather data; 

• Documenting construction zones or 

highway signage in real time; 

• Obtaining the road surface’s coefficient 

of friction close to the time of the accident; 

and 

• Testing a company’s driver for drug and 

alcohol use on a timely basis. 

The team will have only one chance to preserve, 

collect, and document much of the 

evidence. 

Team Members 

Every trucking accident rapid response 

team should include the truck driver, an 

accident reconstructionist, preferably 

one with an engineering degree, a field 

adjuster or investigator, a company representative, 

and an attorney. Other potential 

team members include electronic control 

module (ECM) specialists, biomechanical 

engineers, “hazmat spill” response 

companies, videographers, aerial photographers, 

cargo- loss adjusters, criminal 

defense attorneys, and engineers with 

expertise in highway safety, traffic flow, or 

construction- zone safety. 

Driver 

A driver who is physically able should initiate 

the investigation by documenting the 

accident scene and by preserving evidence. 

In some cases, such as, an early- morning 

accident in blizzard conditions on US 191 

in northern Montana, getting help from 

any other team member may take several 

hours. A trucking company should, 

therefore, prepare a driver beforehand to 

take a number of steps on his own. These 

actions include, among others (1) ensuring 

his own safety, (2) contacting 911, (3) taking 

steps to prevent secondary collisions, 

(4) checking on the occupants of the other 

vehicles, (5) contacting the company dispatcher, 

(6) removing the key from the 

tractor’s ignition, (7) obtaining names and 

addresses of the individuals involved and 

of any witnesses, (8) obtaining license plate 

numbers of all vehicles involved, (9) taking 

photographs of the vehicles and roadway in 

as much detail as possible, and (10) documenting 

all admissions of responsibility. 

If, on the other hand, the accident occurs 

on I-78 in New Jersey, the police and an 

adjuster should arrive within minutes, and 

those professionals will be able to perform 

several of those initial duties. Nonetheless, 

a company should prepare a driver to collect 

as much information as possible. 

Field Adjuster or Investigator 

A field adjuster or investigator will, in most 

cases, be the second team member on the 

scene. This field adjuster should have extensive 

experience with catastrophic truck 

accidents and should be accessible anytime. 

The adjuster must know the U.S. 

Department of Transportation (DOT) regulations 

regarding postaccident drug and 

alcohol testing and the trucking company’s 

postaccident testing protocol, which may 

be stricter than the DOT mandatory testing 

requirements. The adjuster must have 

the skills and knowledge to obtain witness 

statements, for example, knowing which 

interviews to record, to take photographs 

at accident scenes, and to identify debris 

and other physical evidence important to 

reconstructing an accident. The adjuster 

should also have a good rapport with state 

and local law enforcement. 

The field adjuster’s tasks will depend on 

which other team members can quickly 

arrive on the scene. Typically, the team’s 

attorney will ask the adjuster to learn the 

location of vehicles already towed from 

the scene, to identify which company did 

the towing, and to secure records from the 

tractor’s cab, including paper logs, inspection 

reports, and registration and service 

records. 

A trucking company should identify a 

field adjuster well before a catastrophic accident. 

The best way to find a competent adjuster 

is to consult those experienced in the 

field, including trucking attorneys or other 

risk managers. It’s not wise to only look in 

the directory of a national adjusting company 

or rely on a contract that a trucking 

company may have with a national adjusting 

company. Most areas should have “goto” 

adjusters with the training and skills to 

investigate a catastrophic accident properly. 

Using an inexperienced adjuster has serious 

risks. In one instance an adjuster was 

called to the scene of a late-night tractor- 

trailer accident in which a car clipped the 

back of a trailer and rolled several times. 

The adjuster somehow concluded that the 

driver of the car was in fair condition at 

the hospital and told the trucking company 

that it could release the driver and truck to 

The best way to find a 

competent adjuster is to 

consult those experienced 

in the field, including 

trucking attorneys or 

other risk managers. 

continue on their trip. Although the other 

driver died shortly after reaching the hospital, 

the trucking company did not find 

out about his death until after the eighthour 

alcohol- testing window required by 

49 C.F.R. §382.303 had closed. 

Accident Reconstructionist 

The team’s accident reconstructionist 

should have an engineering degree and 

should have extensive experience with commercial 

vehicle accidents. Ideally, he or she 

should live within driving distance of the 

accident scene. His or her role is to be the 

technician—the on-the-scene expert—who 

determines how the accident happened and 

who documents, photographs, and measures 

the scene and the vehicles involved. 

The reconstructionist’s investigation 

generally follows this path: (1) talking with 

the police if they are still present, (2) walking 

the scene starting at the vehicles and 

tracing backward to the origin of each vehicle’s 

tire marks, (3) placing chalk marks on 

the roadway using a roll-a-tape so that the 

measured distances can be photographed, 

(4) documenting evidence in the order in 

which it will disappear, and (5) gathering 

evidence using the things listed in the 

“Tools of the Trade” section below. 

Because taking photographs is the most 


Trucking Law 

important way to document physical evidence 

at an accident scene, good reconstructionists 

are good photographers by 

necessity. The reconstructionist will typically 

photograph a scene from the outside 

edges of the scene inward to the vehicles’ 

final resting points. His or her photographs 

will document, for example, the beginnings 

of tire marks, points of impact, vehi- 

The accident 

reconstructionist will have 

more difficulty collecting EDR 

data from the other vehicles 

involved in the accident 

than collecting it from the 

trucking company’s vehicle. 

cle damage, and damage to inert objects 

such as road signs. 

The accident reconstructionist will collect—or 

have collected—the electronic data 

from the truck, and, if possible, other vehicles 

involved in the accident. See Michael 

W. Halvorson, “Black Box” Technology and 

Its Use in Litigation, For The Defense, January 

2009 (thoroughly discussing event data 

recorder data, its usefulness in investigating 

accidents involving commercial vehicles, 

and its value in defending lawsuits 

that arise from those accidents). The greatest 

challenge the reconstructionist will 

have is preserving data from the vehicles 

until the data can be extracted. This is particularly 

true of the data stored in the vehicle’s 

event data recorder (EDR). 

The accident reconstructionist should 

take several steps to preserve the data from 

the commercial vehicle’s EDR. If possible, the 

data should be extracted on the scene. This 

is the safest way to preserve last-stop data. If 

the data cannot be extracted on scene, the vehicle 

should be towed and its keys secured, 

because the last stop data will be overwritten 

as soon as the vehicle is operated or the engine 

is engaged. Finally, the reconstructionist 

should determine the truck’s manufacturer, 


model, and VIN number, as well as the engine’s 

manufacturer, model, and build date. 

A visual inspection will confirm the truck’s 

and the engine’s specifications. 

There are three methods to download 

and extract data from an EDR: incident 

truck, surrogate truck, and bench-top. 

The preferred method is to use the engine 

manufacturer’s hardware and software 

to extract the data while the EDR is still 

attached to the vehicle, referred to as the 

“incident truck” method. The second 

method involves removing the EDR from 

the truck, storing it until the download can 

be performed, and then placing the EDR 

module on a surrogate truck that is identical 

to the incident truck for the extraction. 

This method is referred to as the “surrogate 

truck” method. The bench-top method 

involves plugging the EDR directly into a 

laptop using the manufacturer’s software. 

This method can cause the loss of data such 

as trouble codes or fault codes. 

The accident reconstructionist will have 

more difficulty collecting EDR data from 

the other vehicles involved in the accident 

than collecting it from the trucking company’s 

vehicle. First, a reconstructionist 

normally cannot control whether someone 

operates the other vehicles or engages their 

engines after an accident. Second, most 

states have enacted legislation protecting 

the privacy of the owners of the other vehicles. 

Some states require a trucking company 

to obtain written permission from 

the owners of the other vehicles before 

the company can use electronic data from 

those vehicles. 

Attorney 

While a trucking company representative 

is the general manager of the rapid 

response team, the attorney on the team 

operates as the coach or the field general. 

The attorney has a number of tasks that 

need to be carried out from the scene or 

from the attorney’s office, including 

1. Providing updates to and consulting 

with the company representative about 

the team’s investigation; 

2. Overseeing the flow of information 

between the driver, law enforcement, 

the media, the adjuster, the reconstructionist, 

and any other technical members 

of the team; 

3. Ensuring that the adjuster and the 

reconstructionist carry out the tasks for 

which each has responsibility; 

4. Arranging for private air travel for team 

members if required by the size of the 

state or the remoteness of the accident 

scene; 

5. Ensuring that the vehicle, data, and 

other evidence are properly preserved; 

6. Interviewing the driver and taking 

detailed notes when necessary; 

7. Determining whether a criminal defense 

attorney should represent the driver; 

8. Ensuring that the driver is drug and 

alcohol tested if required by the DOT 

regulations or by company policy; and 

9. Conducting an early evaluation of logbook 

compliance. 

It is the attorney’s responsibility to make 

sure that the investigation is initiated as 

rapidly as possible and that no stone is left 

unturned. 

Company Representative 

The company representative—whether a 

claims professional, a risk manager, or an 

in-house attorney—ultimately will make 

the calls on the extent of the accident investigation 

and the size and components of 

the team. The company representative will 

deploy the team by selecting the team’s 

attorney and often selecting the team’s field 

adjuster and accident reconstructionist. 

The representative will also ensure that the 

driver knows that he or she can only make 

a statement to the attorney, provides the 

exact location of the accident to the team, 

and provides everyone’s contact information 

to other team members. 

Criminal Defense Attorney 

A trucking company’s driver should receive 

representation by a criminal defense attorney 

anytime the driver is subject to an 

ongoing criminal investigation or has been 

arrested after an accident. Because of possible 

conflicts of interest between the driver 

and the trucking company, the criminal 

defense attorney should not work for the 

same law firm as the attorney who will 

direct the “go” team’s investigation. This 

ensures that the attorney will not violate 

any ethical rules and will provide unfettered 

counsel to the driver. 

A trucking company should, in most 

cases, pay for a driver’s defense. First, it is 

simply the right thing to do and will sig-

nal to the company’s other drivers that the 

company will stand behind them in difficult 

times. Second, a guilty plea—and in some 

jurisdictions a conviction—would likely become 

admissible in a subsequent civil trial. 

Post-accident Testing 

The Code of Federal Regulations specifies 

when a driver must submit to post- 

accident drug and alcohol testing. 49 C.F.R. 

§382.303. Generally speaking, it says that a 

driver must have a test when (1) a fatality 

occurs, (2) the driver receives a citation for 

a moving violation and anyone involved in 

the accident immediately receives emergency 

room treatment, or (3) the driver 

receives a citation for a moving violation 

and any vehicle needs towing because of 

crash damage. If an accident meets any of 

these criteria, a driver must have an alcohol 

screen within eight hours of the accident 

and a drug screen with 32 hours. 

Every member of a rapid response team 

should ensure that mandatory testing be 

conducted within the time allowed by this 

regulation. 

Tools of the Trade 

Each law firm should maintain an accident- 

response kit. These kits are especially useful 

when the attorney arrives on the scene 

before the accident reconstructionist. The 

kit should include things such as a digital 

camera, a 100-foot tape measure, a measuring 

wheel, safety cones, safety vests, flashlights, 

gloves, rain gear, bug repellent, and 

water. A good field adjuster will also routinely 

have several of these items. 

The accident reconstructionist should 

typically arrive on the scene in an SUV 

loaded with the equipment needed to investigate 

any type of accident, including 

• Robotic laser and GPS surveying 

equipment; 

• High-quality cameras and equipment, 

including specialty lens for photographing 

minute objects such as light bulb 

filaments; 

• Tools for measuring brakes, including 

a portable air pressure decay test 

apparatus; 

• Equipment, both hardware and software, 

for imaging EDR data from commercial 

diesel engine control modules 

and from passenger vehicle airbags, rollover, 

and power- control modules; 

• Chalk and marking paint; 

• Roll-a-tapes, measuring tapes, and range 

poles; 

• Biohazard suits; 

• Hard hats; 

• General tools, including a carpenter’s 

level, a hammer, wire cutters, screwdrivers, 

vise grips, and surveyor’s nails; and 

• The items included in an attorney’s 

accident- response kit. 

Spoliation and Preservation 

of Evidence 

Properly preserving evidence—both physical 

evidence from the scene of an accident 

and “stored” evidence such as the driver’s 

qualification file and logs—is essential to 

the proper defense of a claim arising from a 

catastrophic accident. There are two related 

but distinct reasons for taking pains to preserve 

all potentially relevant evidence. The 

first reason is to ensure that not only is the 

evidence available at trial, if necessary, but 

also to establish a proper foundation for 

Engineers, Architects, Scientists & Fire Investigators 

Admiralty / Maritime 

Architecture / Premises Safety 

Aviation 

Biomechanical Engineering 

Construction Claims / Injuries 

Crash Reconstruction 

Dram Shop / Liquor Liability 

Education / Supervision 

Electrical Engineering 

Environmental / Toxic Torts 

its admissibility. The second reason is to 

avoid the potentially devastating allegation 

that someone or some party intentionally 

destroyed evidence. 

Building a Proper Foundation 

One of the fundamental principles underlying 

evidence law is that the evidence that 

a party seeks to admit is indeed what the 

party claims it is. Collecting evidence without 

taking care to guarantee its authenticity 

may render the evidence inadmissible 

at trial. 

This becomes particularly important 

when dealing with evidence collected from 

an accident scene. An accident reconstructionist 

or field adjuster must label, tag, log, 

and store all of the collected evidence. After 

the materials have been collected, chain of 

custody documents should be generated that 

document when and to whom the evidence 

was transferred each time it was moved. If 

evidence hasn’t been properly handled and 

stored, the opposing party can argue that 

Fire / Explosion 

Human Factors 

HVAC / Plumbing 

Occupational Health / Safety 

Oil & Gas Drilling 

Product Liability 

Sports and Recreation 

Structural Engineering 

Toxicology 

Vehicle Engineering 

With 175 experts at one firm, Robson Forensic provides expertise in more 

than 75 unique disciplines. Visit us online for expert bios and CVs. 

www.robsonforensic.com | 800.813.6736 


Trucking Law 

there is no way to know whether the evidence 

is authentic. Consider the half-filled 

whiskey bottle that an adjuster finds on the 

floor of a claimant’s car. If the adjuster photographs 

the bottle in place at the scene, and 

labels, logs, and stores it in a secure place, 

the team’s attorney should have no problems 

with its authenticity in a trial. Failing to take 

those steps will have the opposite effect. 

The consequences of 

a judge finding or a jury 

believing that spoliation 

has occurred are several 

orders of magnitude worse 

than evidence that a driver 

had a single hours- of- 

service violation seven 

days before an accident. 

The American Society for Testing and 

Materials (ASTM) has at least two publications, 

Standard Practice for Collection and 

Preservation of Information and Physical 

Items by a Technical Investigator, E1188- 

05, and Standard Practice for Examining 

and Preparing Items That Are or May 

Become Involved in Criminal or Civil Litigation, 

E860-07, dealing with collecting and 

preserving evidence. A team’s technical 

experts should understand the importance 

of properly preserving evidence, and it may 

be wise to avoid doing business with—at 

least in catastrophic cases—experts who 

are not familiar with the ASTM standards. 

Spoliation of Evidence 

Spoliation is defined as the negligent or willful 

destruction of evidence by a party to litigation. 

Such a loss of evidence has very 

serious consequences, consequences that 

almost always outweigh any negative ramifications 

associated with admission of that 

evidence. Assume that a driver falsified his 

log book seven days before an accident. A 


trucking company may be inclined to strictly 

follow the six-month retention period mandated 

by 49 C.F.R. §395(k), especially if a 

claimant’s attorney hasn’t requested that the 

company preserve the evidence. In this situation, 

the trucking company could face a 

number of negative consequences. 

In some jurisdictions spoliation of evidence 

can create a separate cause of action 

that results in a separate judgment, including 

perhaps punitive damages. Other consequences 

include the “adverse presumption” 

in which a court instructs a jury that the evidence 

lost or destroyed must have been detrimental 

to the party that lost it. This allows 

a jury to speculate wildly about the evils that 

the evidence must have contained. Think of 

the 18 minutes missing from the Watergate 

tapes. A finding of spoliation could also result 

in the exclusion of favorable evidence 

that an offending party wishes to admit. An 

equally harmful consequence is the potential 

loss of credibility with the jury that comes 

from a destruction of evidence. Many cases 

hinge on how a jury perceives the trustworthiness 

of the parties, and evidence spoliation 

may make it appear that a trucking 

company has a guilty conscience. The consequences 

of a judge finding or a jury believing 

that spoliation has occurred are several orders 

of magnitude worse than evidence that 

a driver had a single hours- of- service violation 

seven days before an accident. 

Since a rapid response team’s responsibilities 

include collecting and preserving 

evidence on the scene, the attorney responsible 

for the “go” team should also make it 

clear to the rest of the team that they need 

to avoid even the appearance that evidence 

was destroyed or mishandled. Any 

costs or aggravation associated with saving 

evidence—even harmful evidence— 

are far less than the costs associated with 

an adverse court finding on spoliation. 

Protecting the Fruits of 

the Team’s Labor 

As the material gathered by a rapid 

response team is relevant to postaccident 

litigation, it is subject to discovery unless 

shielded by the attorney- client privilege or 

the work- product doctrine. 

Attorney-Client Privilege 

The attorney-client privilege protects from 

discovery communications between a cli- 

ent and counsel made in the course of legal 

representation. This concept has critical 

application to a rapid response team’s investigation. 

First, and most importantly, a 

driver involved in an accident must make 

all statements to the team’s attorney, not 

to a company representative or a field adjuster. 

In most cases a driver ultimately will 

be named a codefendant with the trucking 

company, and any communication 

between the driver and the attorney will receive 

attorney- client protection. Protecting 

a driver’s statement can prove critical in the 

immediate aftermath of an accident. For example, 

a driver distraught over a horrific accident 

may accept more responsibility just 

after the accident than he might when he 

later learns, for instance, that the driver of 

another vehicle involved was legally drunk. 

It is also important that the lawyer serve as 

the conduit between the other team members 

and the trucking company. While statements 

made by team members won’t have attorney- 

client protection, funneling communications 

through the lawyer will strengthen the argument 

that the team’s efforts were undertaken 

in anticipation of litigation. 

Work-Product Doctrine 

The work-product doctrine protects from 

discovery documents and other tangible 

things prepared by a party, or representative 

of a party, in anticipation of litigation. This 

doctrine does not protect materials assembled 

in the ordinary course of business, or 

for non- litigation purposes. So the threshold 

determination that a court will make 

when deciding whether to protect the fruits 

of a team’s efforts is whether an investigation 

was conducted in anticipation of litigation 

or in the ordinary course of business. 

To make that determination a court will 

ask if a trucking company would have created 

a document regardless of whether litigation 

was expected to ensue. For example, 

a report prepared by a dispatcher when a 

driver calls in an accident, or a report prepared 

by a company’s safety department 

describing an accident and its causes, will 

likely be discoverable because a trucking 

company typically prepares these after 

every accident and not just those that a 

company anticipates will lead to litigation. 

In determining the primary motivation 

for creating a document a court will con- 

Rapid

Trucking Law 

To Cooperate or Not… 

That Is the Question! 

By Brian Del Gatto 

and Julia Paridis 

Use of response teams, 

as well as driver training, 

can limit potentially 

damaging statements. 

Postaccident 

Police 

Investigations 

Consider the following hypothetical scenario. A driver 

for your motor carrier client is headed to a rest stop for a 

much-needed break. Before moving into the exit-only lane, 

he or she checks his or her rear- and side-view mirrors and 

doesn’t notice any cars in the lane to his or 

her right. As the driver signals to change 

lanes and moves right into the exit lane, 

the driver’s phone rings, and he or she looks 

down for a second to determine who it is. 

The driver then looks up just as the rightfront 

passenger side of the tractor collides 

with the left-back driver side of a four-door 

sedan. 

The motor carrier’s driver pulls over and 

is confronted by someone yelling, “You hit 

me!” The person complains of neck and 

back pain and calls 911. The ambulance 

arrives and places the sedan driver on a 

stretcher while he or she lists the various 

injuries that he or she has suffered, none 

serious or life threatening. When an officer 

arrives, he or she takes the sedan driver’s 

statement first. The sedan driver claims that 

he or she saw the driver of the truck looking 

down at something immediately before the 

truck veered into the sedan’s lane and hit 

the car, and the truck driver never used the 

truck’s turn signal. The officer approaches 

the motor carrier’s driver for a statement. 

The next few minutes are crucial and will 

have a profound impact on the ultimate outcome 

of this matter for the driver, the motor 

carrier, and the insurers of each. 

Postaccident Investigations 

The policeman on the beat or in the 

patrol car makes more decisions and 

exercises broader discretion affecting 

the daily lives of people every day and 

to a greater extent, in many respects, 

than a judge will ordinarily exercise in 

a week. 

—Warren E. Burger, Standards Relating 

to the Urban Police Function, American 

Bar Association: Advisory Committee 

on the Police Function (1972) 

People sometimes don’t report minor collisions. 

The parties simply exchange insurance 

information; however, most collisions 

that result in property damage or physical 

injuries are reported. And the officer who 

arrives on the scene of an accident has a 

duty to investigate the circumstances and 

to prepare a report. When an officer per- 

■ Brian Del Gatto is the managing partner of Wilson Elser’s Stamford, Connecticut, office and a member of 

the firm’s executive committee. He practices in both Connecticut and New York, handling cases in both jurisdictions. 

He is the practice team leader of the firm’s Transportation & Logistics Practice. Julia Paridis is an associate 

in Wilson Elser’s Stamford office and a member of the firm’s Transportation & Logistics Practice. 


Trucking Law 

sonally witnesses an accident, his or her 

first-hand observations become the basis 

for a report. If, however, as is the case with 

most collisions, a law enforcement officer 

arrives on the scene after an accident has 

occurred, he or she must rely on evidence 

or information, if any, and the statements 

of the parties and witnesses to the collision 

in preparing a report. 

While motor carriers 

should never encourage 

drivers to lie to investigating 

officers, they should 

not voluntarily provide 

information that may 

imply liability. 

Investigating officers use statements 

made by the parties during a postaccident 

investigation to prepare an accident report 

and, in some circumstances, issue citations 

to the parties that they’ve deduced are at 

fault. In extreme cases, they will arrest a 

party to an accident. See Brian Del Gatto 

& Michaelle Jean-Pierre, Admissions of 

‘Guilt.’ The Boomerang Effect of Traffic Citations, 

For The Defense 18 (February 2010) 

(discussing the effect of traffic citations in 

civil litigation for personal injury in detail). 

When police question them, truck drivers 

often feel compelled to make a statement 

or to volunteer information that is not required. 

Generally, motor carriers should 

encourage drivers to cooperate in investigations 

and to relate their versions of the 

events. A police officer will consider all parties’ 

statements in preparing a report, and if 

one driver fails or refuses to provide his or 

her side of the story, the officer will not have 

a reason to question the other party’s version 

of the events or assignment of blame. While 

motor carriers should never encourage drivers 

to lie to investigating officers, they should 

not voluntarily provide information that 

may imply liability belongs with them or 

their employers. Most states have statutes 


that require a party involved in a collision 

to cooperate in its investigation, but a driver 

should understand the level of cooperation 

and the amount of information that the law 

requires a driver to provide. 

Liability and Police Reports 

A fair suspicion may be well worthy of 

further investigation, and it may well be 

worth the expense and trouble of examining 

witnesses to see whether it is well 

founded. 

—Jessel, M.R., In re Gold Co. (1879), 

L. R. 12 C. D. 84 

While typically inadmissible as evidence to 

establish the cause of an accident, a police 

report can set the foundation for a civil 

negligence action. When someone initiates 

civil litigation, the insurance carrier of the 

party allegedly at fault will often begin to 

investigate by reviewing the police report; 

the plaintiff’s counsel will do the same. 

The insurance carrier reviews the police 

report to determine whether liability is 

questionable and whether it will defend a 

claim against its own insured. The plaintiff’s 

counsel will use the police report to 

formulate arguments and to prepare a litigation 

strategy in the prosecution of the 

plaintiff’s case. If liability or fault is referenced 

in the police report, the case will 

escalate into witness interviews and depositions 

seeking affirmation of that liability. 

The police report will influence the questions 

that attorneys ask during the depositions 

and later during a trial in large part. 

Even when one party to an accident 

does not initiate a civil negligence action 

against another party, an insurance carrier 

will analyze a police report to determine 

whether it will seek subrogation from the 

carrier of the other party for the payments 

made to its insured for damages resulting 

from the accident. 

Admissibility of Police 

Reports in Civil Actions 

The admissibility of a police report in a civil 

action varies throughout the states and is 

governed by the rules of evidence of each 

state. In most states, a police accident report 

generally is inadmissible on the basis 

that the report violates the hearsay rule. Under 

Federal Rule of Evidence 801(c) hearsay 

is defined as “a statement, other than one 

made by the declarant while testifying at 

the trial or hearing, offered in evidence to 

prove the truth of the matter asserted.” Federal 

Rule of Evidence 801(d)(2) specifies that 

certain statements made against a party to a 

particular action are not hearsay and, therefore, 

admissible. These statements include 

those made by the party, those of which the 

party “has manifested an adoption or belief 

in their truth, and those made by the party’s 

agent concerning a matter within the 

scope of his or her agency or employment. 

All other statements defined as hearsay 

are admissible only when they fall under 

one of the enumerated exceptions of Federal 

Rules of Evidence 803 and 804. Federal 

Rule of Evidence 804 provides hearsay 

exceptions if a declarant is not available, 

and Federal Rule of Evidence 803 enumerates 

exceptions for situations in which a 

declarant’s availability is immaterial. The 

Federal Rule of Evidence 803 exceptions 

include, among others, business records 

prepared in the regular course of business 

and public records setting forth matters 

observed under a duty to report. 

In Alabama, for example, a statute expressly 

makes police reports inadmissible: 

they “shall not be used as evidence in 

any trial, civil or criminal, arising out of 

an accident.” Alabama courts have found, 

however, that this is not an absolute inadmissibility, 

and while police accident reports 

are deemed inadmissible because they 

are hearsay, they can gain admission if they 

fall within an applicable hearsay exception. 

See Stevens v. Stanford, 766 So. 2d 849, 852 

(Ala. Civ. App. 1999). 

For instance, a police report can gain 

admissibility under the business records 

exception when the report consists of the 

reporting officer’s personal observations 

made while carrying out official police 

duties. Holliday v. Hudson Armored Car 

& Courier Serv., 301 A.D.2d 392, 396 (N.Y. 

App. Div. 2003). However, when information 

in a police report is based on statements 

or observations of witnesses under 

no business duty to make such statements, 

the report is generally inadmissible. Id. See 

also Yeargans v. Yeargans, 24 A.D.2d 280 

(N.Y. App. Div. 1965); Kratz v. Exxon Corp., 

890 S.W.2d 899, 905 (Tex. App. 1994). 

Drivers’ Postaccident Duties— 

Reporting Statutes 

Many states’ reporting statutes require

motorists as well as other persons involved 

in accidents to report the accidents to the 

police. The information required by such 

reporting statutes typically includes identifying 

information such as the driver’s 

name, address, and driver’s license number, 

and the vehicle’s insurance and registration 

cards. 

For instance, under N.Y. Vehicle and 

Traffic Law, §600 

any person operating a motor vehicle 

who, knowing or having cause to know 

that personal injury has been caused 

to another person, due to an incident 

involving the motor vehicle operated 

by such person shall, before leaving the 

place where the said personal injury 

occurred, stop, exhibit his or her license 

and insurance identification card for 

such vehicle… and give his or her name, 

residence, including street and street 

number, insurance carrier and insurance 

identification information including 

but not limited to the number 

and effective dates of said individual’s 

insurance policy and license number, to 

the injured party, if practical, and also 

to a police officer, or in the event that 

no police officer is in the vicinity of the 

place of said injury, then, he or she shall 

report said incident as soon as physically 

able to the nearest police station or judicial 

officer. 

See also VA Code Ann. §46.2-89; Conn. 

Gen. Stat. §14-217; Fla. Stat. §316.062. 

Under N.Y. Vehicle & Traffic Law §605, 

in the event of an accident in which anyone 

is killed or injured, or in which property 

damage exceeds $1,000, individuals have a 

duty to report the accident to the commissioner 

in writing within 10 days of the accident. 

New York’s motor vehicle accident 

form MV-104 requests specific information 

regarding the accident, as required by the 

commissioner, mainly standard identifying 

information, such as the driver’s license 

number and the insurance policy number 

and vehicle registration number, as well 

as information pertaining to the accident, 

such as a description of the accident, the 

location, the estimated cost and damages 

sustained by the vehicles, and the injuries 

sustained by all the involved parties. 

Form MV-104 also requests information 

pertaining to the traffic, weather, and 

roadway conditions and, more notably, pre- 

accident vehicle action. This section offers 

20 choices for selection, including “making 

right turn on red” or “making left turn on 

red,” two selections that imply a statutory 

infraction. Interestingly, the options also 

include “making right turn” and “making 

left turn,” which carry no such implication. 

These reports typically are inadmissible 

in a civil action to prove the truth of 

the matter asserted; courts may, nonetheless 

admit them into evidence for impeachment 

purposes. Motor carrier companies 

should encourage drivers, therefore, to 

prepare these reports cautiously to avoid 

selecting options or making statements 

that someone may later use against them 

in civil actions. 

State reporting statutes only uncommonly 

require a driver to make a statement 

or answer questions regarding causation; 

the driver simply is required to identify 

him- or herself in the manner mandated 

by law. Short of providing the identifying 

information required by statute, a driver 

normally does not have an obligation to 

answer the questions of an investigating 

officer or to make a statement regarding 

an accident. See State v. Avnayim, 185 A. 

2d 295, 298 (Conn. Cir. Ct. 1962). 

Obstruction of Justice 

When does a driver’s refusal to cooperate 

with an investigation amount to an 

obstruction of justice? Typically, during an 

accident investigation a driver must provide 

the investigating officer with identifying 

information, but nothing more. An 

investigating officer is free to investigate 

evidence and to draw conclusions based on 

his or her own observations; however, no 

one is required to admit culpable conduct, 

although simply identifying oneself in certain 

accidents may become enough to infer 

culpability. Failing to provide or delaying 

an investigation by withholding such 

information can amount to an obstruction 

of justice. 

The North Carolina Court of Appeals 

has held that investigating an automobile 

accident was a duty of a highway patrolman, 

and the refusal of a driver to respond 

to a trooper’s repeated inquires pertaining 

to the accident was sufficient evidence 

to allow a jury to find that the driver 

obstructed and delayed the trooper in the 

performance of his duties. State v. Grav- 

eran, 2008 N.C. App. Lexis 15 (N.C. Ct. 

App. Jan. 15, 2008). The driver in Graveran 

failed to produce his driver’s license and 

speak with the officer regarding the accident 

despite the officer’s several requests. 

The Supreme Court of Washington has 

held that a driver’s refusal to produce his 

driver’s license during an accident investigation 

was sufficient grounds for an arrest 

State reporting statutes 

only uncommonly require a 

driver to make a statement 

or answer questions 

regarding causation. 

for obstructing a law enforcement officer. 

Sunnyside v. Wendt, 755 P.2d 847, 852 

(Wash. Ct. App. 1988). The court emphasized 

that the applicable ordinance did not 

require someone to make a statement when 

an officer requested one. Insofar as a police 

officer’s duty to prepare an accident report 

is reasonably aided by production of a driver’s 

license, the court reasoned that failure 

to produce the license could amount to an 

obstruction of a public servant’s discharge 

of his or her official duties. 

In Avnayim, the Superior Court in Connecticut 

reviewed the constitutionality of a 

statute proscribing disorderly conduct. 185 

A.2d 295, 298 (Conn. Cir. Ct. 1962). The defendant 

in Avnayim was involved in an accident, 

and during the police investigation 

was described as “belligerent and boisterous, 

was sarcastic and evasive in his answer, 

kept shouting ‘None of your business; 

you are here only to take down numbers; I 

can say what I want.’” The court held that 

although the defendant was not obliged to 

answer the questions asked by the police 

and the police legally could not arrest the 

defendant for refusing to do so, his belligerent 

and boisterous conduct, apart from 

his right to refuse to answer questions and 

apart from his right to protest his innocence, 

“create[d] a commotion or disturbance 

and thus render[ed] him liable to 

arrest for disorderly conduct.” Id. at 298. 


Trucking Law 

A driver’s refusal to provide identifying 

information required by a statute is actionable; 

the driver’s refusal to provide a statement 

or answer questions usually is not. 

The Fifth Amendment— 

Criminal Versus Civil Liability 

If an accident has criminal implications, 

the tone of the investigation will change 

When an accident 

threatens criminal 

prosecution, the case 

will invoke constitutional 

protections, such as the 

U.S. Constitution’s Fifth 

Amendment privilege 

against self- incrimination. 

accordingly. Cases involving fatalities or 

intoxicated drivers, for example, typically 

will lead to criminal charges and arrests. 

The investigation of such accidents will 

become more involved. For example, under 

N.Y. Vehicle & Traffic Law §603-a, when 

an accident results in a serious physical 

injury or death to a person, the police officer’s 

investigation must cover the following: 

(1) the facts and circumstances of the 

accident; (2) the type or types of vehicles 

involved; (3) whether pedestrians were 

involved; (4) the contributing factor or factors; 

(5) whether the investigating officer 

can determine if a violation or violations 

occurred, and, if so, the specific provisions 

that were violated and by whom; and 

(6) the cause of the accident, if the investigator 

can determine the cause. 

Furthermore, when an accident threatens 

criminal prosecution, the case will 

invoke constitutional protections, such as 

the U.S. Constitution’s Fifth Amendment 

privilege against self- incrimination. An 

officer is required under the Fifth Amendment 

to give the warnings required by 

Miranda v. Arizona, 384 U.S. 436 (1966), to 


a suspect before the officer asks questions 

that may elicit an incriminating response. 

In Miranda, the Supreme Court held that 

the Fifth Amendment privilege against self- 

incrimination prohibits admitting into evidence 

statements made by a suspect during 

“custodial interrogation” without first 

warning someone of the right against self- 

incrimination, now commonly referred to 

as the “Miranda warning.” Custodial interrogation 

is defined as questioning “initiated 

by law enforcement officers after a 

person was been taken into custody.” Id. 

at 444. And “custody” can take place anywhere, 

including on a roadway. 

The Miranda warning was meant to preserve 

the privilege during “incommunicado 

interrogation of individuals in a police- 

dominated atmosphere,” said to generate 

“inherently compelling pressures which 

work to undermine the individual’s will to 

resist and to compel him to speak where he 

would not otherwise do so freely.” Id. at 445 

& 467. The Fifth Amendment is not intended 

to be a refuge for those facing civil liability, 

according to People v. Kroncke, 70 Cal. App. 

4th 1535, 1557 (Cal. Ct. App. 1999). 

In California v. Byers, 402 U.S. 424, 427 

(U.S. 1971), the United States Supreme 

Court reviewed California’s “hit-and-run” 

statute to determine whether it infringed 

on the constitutional privilege against 

compulsory self- incrimination. Similar 

to many states, California’s reporting statute 

requires a motorist involved in an accident 

to stop at the scene of the accident and 

give his or her name and address to the 

other motorists. The respondent in Byers 

was charged with passing another vehicle 

without maintaining a safe distance 

and with failing to stop and identify himself 

as required by California law. Focusing 

on the “[t]en sion between the State’s 

demand for disclosure and the protection 

of the right against self- incrimination” 

and “balancing the public need on the one 

hand, and the individual claim to constitutional 

protections on the other,” the U.S. 

Supreme Court found there was no conflict 

between the hit-and-run statute and 

the self- incrimination privilege. Id. at 427. 

The Court further stated that the California 

statute was “directed at the public at large” 

and the group subject to the statute was 

neither “highly selective” nor “inherently 

suspect of criminal activities.” Id. 429. 

In New York, it is a misdemeanor to fail 

to comply with N.Y. Vehicle & Traffic Law 

§600, which requires “every motor vehicle 

operator, whether culpable or not, involved 

in an accident causing property damage or 

personal injury, to remain at the scene of 

the accident, exhibit his license, and identify 

himself to the party sustaining damage 

and, in the case of personal injury, to a 

police officer.” People v. Samuel, 29 N.Y.2d 

252, 258 (N.Y. 1971). Following the logic in 

Byers, the court in Samuel concluded that 

“the incidental and limited risk of inculpation 

by identification and report of motor 

vehicle operators whose conduct involves, 

or is likely to involve, criminal accusations 

is insufficient to inhibit the regulatory 

power by the interposition of the privilege 

against self[-]incrimination.” Id. at 257. 

Conclusion 

Weighest thy words before thou givest 

them breath. 

—Othello, act 3, scene 3, 

William Shakespeare 

While a police report and any citations 

issued as a result of an investigation typically 

are typically inadmissible in a civil 

negligence action to establish culpability, 

attorneys may offer them as evidence in 

certain situations. Even when a court does 

not admit a police report into evidence in 

trials, the statements made by the parties 

immediately following the accident can 

have a profound impact on the outcome of 

a case. It would, therefore, benefit motor 

carriers to conduct seminars to train their 

drivers regarding postaccident investigation 

requirements. Drivers should know 

what information generally they must produce 

under the reporting statutes of the 

states in which they travel. As demonstrated 

above, this information typically 

includes identifying information such as 

the driver’s license and the vehicle’s insurance 

and registration cards. Motor carriers 

should also encourage drivers to provide 

their version of the events; however, they 

should be advised to use discretion when 

making such statements. 

While it is true that drivers have the statutory 

duty to provide information to law 

enforcement officers, emphasize to drivers 

that it is uncommon for a reporting statute 

to require a party to make a statement or 

Postaccid

Trucking Law 

An Essential Element 

of Risk Management 

By Stockard R. Hickey III 

and Paula J. Gabier, Ph.D. 

Sensationalized reports 

of accidents and reckless 

behavior have led to a 

public perception that 

the industry is far less 

safe than it really is. 

Battling Bias 

Against 

Truckers 

Trucks are ubiquitous. Yet nothing else in the United 

States so integral to everyday life is so directly inaccessible 

to the general public. Although every American benefits 

from the world’s best system for transporting goods via 

highway, relatively few people actively interact 

with that system in any way except when 

they become stuck in traffic behind a tractor- 

trailer. Most Americans base their opinions 

of the trucking industry on sensationalized 

news reports of horrendous and tragic 

crashes. In popularity polls, truckers do rank 

ahead of politicians, used car salesmen, and 

lawyers, but they still appear way down on 

the list. Of course, this is unfair and just plain 

wrong. The trucking business is populated by 

smart, honest, hard- working people who deserve 

to be held in the highest regard. 

Claims managers and defense attorneys 

should examine and attempt to minimize 

the effect of bias against the trucking business 

in four ways: 

1. Take bias into account when evaluating 

a claim for settlement purposes. 

2. Proactively undertake a post-accident 

company plan of action. 

3. Craft your trial preparation and defense 

story to counter the bias. 

4. Work to educate the public and attenuate 

the bias at every opportunity. 

The Effect of Bias on Settlement Value 

Because the vast majority of liability claims 

are resolved via settlement, accurately evaluating 

claims is critically important. Experienced 

claims people and attorneys know 

there are no magic formulas or shortcuts 

that will determine the correct dollar 

value on a claim. Every claim is unique 

and its own facts and circumstances drive 

its value. Those facts and circumstances 

include the characteristics of the venue, 

the specifics of the accident, the characteristics 

of your clients, and the characteristics 

of the claimant. 

Know the Venue 

Research into the demographics, lifestyles, 

recent events, and economic state of the 

county or district from which your jurors 

are drawn may offer you an idea of 

■ Stockard R. Hickey III is a member of the law firm Gwin, Steinmetz and Baird PLLC in Louisville, Kentucky. 

He represents trucking companies, insurers, third-party administrators and individuals in defense of 

a variety of claims. Paula J. Gabier, Ph.D., of Gabier Consulting in New Bern, North Carolina, teaches effective 

ways to educate jurors and assists attorneys and corporations in developing successful, research- based 

trial themes. She has studied and learned from thousands of actual and surrogate jurors nationwide and has 

assisted clients in hundreds of cases, large and small. 


Trucking Law 

the likely attitudes of your jurors. High 

unemployment, economic hardship, and 

excessive reliance on government subsidies 

all spell trouble for civil defendants 

in general and trucking industry defendants 

especially. While of course, there are 

exceptions, individuals who have recently 

suffered significant health issues, economic 

setbacks, or feel little control over their 

It is no coincidence that 

some of the worst venues 

for trucking liability claims 

have nothing in common 

except for having highvolume 

crossroads and 

a lot of truck traffic. 

lives generally would be more inclined to 

favor an injured plaintiff as opposed to a 

truck driver employed with a trucking corporation. 

Our message of hard- working 

people who perform an essential service 

to society plays much better to jurors who 

value personal productivity versus those 

who don’t. 

If the claim’s exposure justifies the cost 

of hiring a litigation consultant, in-depth 

telephonic polling will identify how much 

bias exists against the trucking industry in 

your venue and can also ascertain which 

specific juror attitudes are related to verdict 

preference in your case. Such findings 

will help you identify which jurors to 

strike peremptorily should you take the 

case to trial. 

Research into past jury verdicts in a 

venue will tell you not only whether damages 

awards tend to be conservative or liberal, 

but it may also differentiate between 

truck accidents and other motor vehicle 

accidents. If the sample size is large 

enough, a pattern of bias or of impartiality 

may appear. 

Look at a map. If major interstate highways 

crisscross a venue or if it is a manufacturing 

hub, the high volume of truck 


traffic more likely than not will affect the 

attitudes of your jurors. It is no coincidence 

that some of the worst venues for trucking 

liability claims have nothing in common 

except for having highvolume crossroads 

and a lot of truck traffic. 

Consider the Circumstances 

of Your Accident 

When an accident happens between a 

driver of a Toyota Camry and a driver of 

a Ford Taurus, it does not create a perception 

of unfairness or illicit irrational 

fears. Jurors probably would not identify 

with either driver to an extent that would 

prejudice the other. In contrast, a collision 

between a Chevrolet Malibu and a Freightliner 

Cascadia just doesn’t seem fair to the 

unfortunate occupants of the Chevy. Jurors 

are more likely to identify and sympathize 

with the people in the car than with 

the driver of the truck. 

Some motor vehicle accidents occur 

regardless of the size of the vehicles 

involved. However, in some accidents, the 

relative size of the vehicles may appear to 

be a causative factor. For example, with 

a lane-change accident in which the rear 

trailer tandems struck a small car, the fact 

that the truck driver him- or herself was 

about 60 feet away from the area of contact 

may have affected the accident. Similarly, a 

3,000-pound car can maneuver much better 

than a 78,000-pound tanker and a judge 

and jury will probably hold the truck driver 

to a higher standard than the car driver. 

If admissible evidence suggests that your 

truck driver was not in compliance with 

hours of service regulations, he or she had 

not attended mandatory safety and training 

sessions, the trucking company had 

inadequate safety records or safety programs, 

or the truck’s brakes were out of 

adjustment, the door to unfair bias against 

your trucking company stands wide open. 

Consider the Characteristics of 

Your Company and Driver 

Companies such as UPS or FedEx have a 

distinct advantage in litigation over companies 

that don’t have a direct and positive 

impact on the public. As a general 

rule, everyone looks forward to receiving a 

package, whether it is a gift or something 

ordered online. The companies that deliver 

those packages have developed images that 

invoke positive feelings in jury pools. Those 

positive feelings are likely to carry over into 

a courtroom. In contrast, a waste hauler 

or an oil company is not likely to invoke 

such positive feelings in potential jurors, 

regardless of its actual value to society or 

safety record. All else being equal, a company 

with a good reputation for safety, 

responsible management, and credible 

corporate representatives will probably 

fare better than a company without those 

characteristics. 

Truck drivers are, at least for the present, 

human beings. Each has his or her own 

unique set of characteristics. Some characteristics 

are more appealing than others. 

It is critically important to meet with 

your driver face-to-face early. Is he or she 

likeable? Defensive? What are his or her 

strengths and weaknesses as a party to 

a lawsuit? Can you significantly improve 

the driver’s testimony and demeanor with 

preparation? 

Consider the Characteristics 

of Your Claimant 

It is not uncommon for jurors in close 

cases to make a decision based on liking 

one party more than the other or viewing 

one party as much more deserving than the 

other. If a plaintiff makes a good appearance 

and seems credible, or if he or she 

is an “eggshell plaintiff,” jurors are more 

likely to identify or sympathize with him 

or her, and you must take that into account 

when evaluating a case. If a plaintiff lacks 

credibility, or if jurors could perceive him 

or her as undeserving of a significant damages 

award, you should adjust your evaluation 

of his or her claim accordingly. 

Be Proactive with a Post-accident 

Company Plan of Action 

Most trucking companies and insurers have 

well- established procedures for responding 

to major accidents. The primary goals of 

those procedures are to obtain evaluation 

information and to preserve the evidence 

necessary to defend a claim. An immediate 

accident response also presents an opportunity 

to minimize the negative bias associated 

with the trucking industry in general 

and the company in particular. An effective 

postaccident response plan should include 

sensitive, personal contact with those affected 

by the accident. The response should

demonstrate the trucking company’s moral 

principles and compassion for all injured 

parties, and, if appropriate, to bystanders, 

law enforcement, media, and the public. 

In conjunction with the investigative 

aspect of an accident response plan, a 

trucking company should train one or 

more corporate representatives to respond 

to the needs of potential claimants. When 

an accident meets certain pre- defined criteria, 

a representative should arrive at the 

accident site as soon as possible to offer 

assistance, with no strings attached, to 

those affected by an accident. A trucking 

company should help with immediate 

needs such as transportation, food, clothing, 

hotel, funeral costs, and grief counseling, 

among other needs. Regardless of a 

company’s liability, a compassionate accident 

response shows injured parties and 

their families that the company cares about 

their well- being. This can have a very positive 

effect on settlement negotiations, and 

it may even head off a claim entirely. Often, 

you can help a company avoid the anger 

that triggers litigation. Even if an accident 

later turns into a lawsuit and reaches the 

trial stage, jurors will see a company with 

a human face and compassion. 

Dealing with Bias During Trial 

Our system of justice relies on fairness 

and impartiality to protect the rights of 

our citizens. For the past two centuries, we 

have frequently given lip service to reducing 

the effects of prejudice and ensuring 

that the people who appear in our 

courts are judged solely by their actions. 

We have made strides to eliminate race, 

gender, religion, politics, and wealth as factors 

in courtroom decisions. However, neither 

trucking companies nor truck drivers 

qualify as a “suspect class,” and nothing in 

the Bill of Rights prevents judges or jurors 

from openly or even worse, secretly, judging 

them with hostility. 

Armed with awareness that bias does 

exist and that your trucking company 

likely will encounter it, you can take a 

number of steps to mitigate or attenuate 

unwarranted prejudice in a civil trial. 

Use Pretrial Motions 

Depending on local rules of practice and 

evidence, pretrial motions can sometimes 

effectively nullify bias by asking a court to 

prohibit any reference to irrelevant information 

such as which company a truck 

driver worked for at the time of an accident 

and which company will indemnify 

the driver for damages assessed against 

him or her. Usually, a trucking company’s 

vicarious liability is not in dispute and is 

not relevant to liability or damages issues. 

In a fair world, a lawsuit would involve Person 

vs. Person, with the vicarious liability 

to be fixed as a matter of law. 

Use motions in limine to ask the court 

to prohibit references to facts that have 

nothing to do with the issues of liability or 

damages in that particular case. Whether 

a truck driver had a DUI twelve years ago 

and whether a trucking company had a 

higher than average out of service rate 

three years ago are no more relevant to liability 

than the fact that crashes more frequently 

involve red cars than blue cars. 

One of the basic rules of evidence in every 

jurisdiction is that irrelevant evidence is 

not admissible. 

Know Your Audience by 

Doing Jury Research 

If you have the financial resources to conduct 

research with juror eligible surrogates, 

you can use the findings to fine-tune your 

trial themes and to craft your best trial 

“story.” Jurors come to a courthouse with 

attitudes regarding trucking companies 

and truck drivers, and jury research, when 

done properly, will identify those attitudes. 

It will also identify which arguments work 

and which don’t and which values, such as 

justice, hard work, and fairness, are most 

important to jurors. With the benefit of 

research, counsel for the defense can create 

a compelling trial story that takes into 

consideration jurors’ preexisting attitudes 

and incorporates the values most important 

to them. 

In addition, if your goal is to settle a case, 

ask your trial consultant to put together a 

mediation report of the jury research findings. 

During mediation or direct negotiation, 

you can use that report to make 

better arguments about the strengths, 

weaknesses, and the relative value of a 

case with a claimant and his or her lawyer. 

Select Your Trial Representative Wisely 

Post-trial juror interviews have established 

a strong correlation between ratings of a 

corporate representative and verdict preference. 

Jurors who have positive impressions 

of a corporate witness are usually 

pro- defense in their verdict preference. 

Those with negative reactions to a corporate 

representative often find in favor of 

the plaintiff(s). While we cannot establish 

that in all cases a corporate representative 

caused a juror to vote one way or another, 

certainly a corporate representative can 

make or break your case. 

Jurors expect a trucking company representative 

to be very knowledgeable about 

the company’s hiring practices, safety 

records, ongoing safety programs, and its 

drivers’ history on and off the road. Jurors 

also expect corporate witnesses to be likeable 

and to deliver direct answers without 

being evasive or defensive. In determining 

your trial representative, ensure you have 

someone who is willing to do the homework 

to learn about the company’s history 

and its practices inside- and- out. Also 

ensure you have someone who, at least 

with preparation, can retain a consistent 

and appropriate demeanor even during the 

most difficult cross- examination. 

Use Voir Dire to Identify and Mitigate Bias 

In most courts, the trial lawyer’s only 

opportunity to speak directly with jurors 

comes during jury selection. In any trial, 

the most important goals of voir dire are 

to learn about the prospective jurors and 

to determine which jurors are least able 

to judge the case objectively. In a trucking 

case, questions should focus on identifying 

jurors who hold strong negative 

attitudes toward truck drivers, trucking 

companies, and corporations in general. 

Questions should also identify individuals 

who strongly oppose caps on damages 

in lawsuits or who are excessively sympathetic 

toward injured people. Although you 

want to encourage jurors to respond freely 

with their opinions to all voir dire questions, 

because attitude questions have an 

implied “right” or “wrong” answer, you 

must even more importantly create an 

environment in which jurors feel at ease 

to tell you how they really feel when you 

question them about their attitudes. The 

best way to do this is by asking your questions 

in a way that presumes bias exists and 

by remembering that simple word choices 

often do make a huge difference in encour- 


Trucking Law 

aging juror responsiveness. Let’s take attitudes 

toward corporations as an example. 

Suppose you ask, “Does anyone here have a 

negative view of corporations?” Jurors who 

have negative views may be less likely to 

raise their hands since the question implies 

someone only rarely would have such an 

opinion. What about the following question: 

“By a show of hands, how many of 

Jurors are more 

likely to identify and 

sympathize with the people 

in the car than with the 

driver of the truck. 

you have a negative view of corporations?” 

Here, the question suggests to prospective 

jurors that people commonly have these 

negative views, and you, the juror, don’t 

have to feel shy telling us that you do, too. 

Here are some additional questions you 

should consider asking in a trucking case: 

• I represent Mr. [driver] and [trucking 

company], and I recognize that many 

people have negative opinions of truck 

drivers or trucking companies because 

of the experiences they have had or 

because of what they have seen in media 

reports. 

• How many of you have ever been 

intimidated or scared by a truck on 

the road? 

• How many of you, by a show of hands, 

have ever witnessed or been involved 

in an accident with a truck? 

• In an accident lawsuit involving an individual 

and a truck driver, how many of 

you would start out in favor of the individual, 

even slightly, before hearing the 

evidence in the case? It is okay if you feel 

this way, but I just need to know. By a 

show of hands, how many of you would 

be inclined to start a bit in favor of the 

individual driver? 

• This case involves an individual who is 

alleging that he or she suffered injury in 

a vehicular accident with a truck driver. 

Some people believe truck drivers are 


professional drivers and because they 

are professionals, they should be held 

to higher driving standards than a regular 

driver. Others believe truck drivers 

are only human and should be held to 

the same standards as regular automobile 

drivers. What I would like to know 

is how many of you feel the first way— 

that truck drivers are professionals and 

therefore should be held to higher driving 

standards? And how many of you 

feel strongly about that? 

After you have the information necessary 

to exercise your peremptory strikes 

effectively, and to make a strong case for 

challenges for cause, you can also inculcate 

your jurors against bias and obtain their 

public commitment not to reach conclusions 

about your case until they hear all the 

evidence. You should also encourage jurors 

to call attention to bias in the deliberation 

room when other jurors discuss their own 

negative experiences with truckers or make 

generalizations about trucking companies. 

The following comments and questions are 

examples of ways to indoctrinate jurors 

against bias during voir dire. Please note 

that some courts may preclude these questions, 

which are rhetorical in nature and 

are not designed to elicit candid responses 

from the jurors. 

• [Trucking company] is a company that 

is responsible for delivering freight to 

stores, manufacturing plants and anyone 

else who needs something transported 

from one place to another. 

• Will any of you hold your experiences 

with other trucks on other days 

against my clients in this case today? 

• Mr. [driver] is a professional truck 

driver who was driving a truck to make 

a pickup on [date]. 

• Mr. [driver] lives in [place]. Does anyone 

here know him? 

• Trucking companies like [trucking company] 

are made up of people, and they 

deserve the same justice that we would 

give to an individual. In fact, the law 

will instruct you that you must treat 

individuals and corporations the same. 

Will everyone here be able to do that— 

to treat [trucking company] the same 

as you would an individual, such as 

[plaintiff]? 

• In the jury deliberation room, your fellow 

jurors may bring up their own expe- 

riences with big trucks or truck drivers 

they have encountered on the road. Will 

you be able to say to your fellow jurors 

“we are only supposed to be basing our 

decision on the evidence in this case— 

not our personal experiences?” 

Educating the Public to Reduce Bias 

The trucking industry and its advocates 

have taken steps to spread the word on 

how important trucks are to our country 

and how professional truckers are the 

safest group of drivers on our roads. The 

American Trucking Association’s “Good 

Things: Trucks Bring It” program is a great 

start, but much more is needed. Drivers 

who reach safety milestones should be 

lauded publicly, not just internally. Anecdotal 

evidence of trucking’s positive contributions 

to society is abundant but poorly 

reported. Everyone in the trucking industry, 

as well as everyone closely associated 

with the trucking industry, should actively 

seek opportunities to talk and write about 

trucking’s overall safety record and the 

high standards to which commercial drivers 

are held. 

If those of us who depend on the trucking 

industry to feed our families don’t 

advocate for its continued vitality and survival, 

then no one else will. 

Conclusion 

Trucking companies and truck drivers are 

pariahs in the courtroom. The general public 

perceives the industry as far less safe 

than it really is. The media sensationalizes 

reports of catastrophic accidents while 

ignoring countless everyday acts of courtesy 

and safety. Stories of truck drivers’ 

rude and reckless behavior are much more 

likely to be repeated than stories of their 

kindness and courtesy. This emboldens 

people who interact with trucks to assert 

liability claims against trucking companies 

and truck drivers, who start with 

two strikes against them in defending liability 

claims. Those who manage, defend, 

and resolve those claims must be properly 

prepared and equipped to evaluate and 

counteract bias against truckers. How the 

trucking industry and its lawyers deal with 

bias, both in the short term and in the long 

term, is an essential element of successful 

liability risk management.

Trucking Law 

Welcome to the 

United States 

By Jenifer L. Kienle 

and William B. Springer 

Time will only tell 

how many Mexican 

companies will have the 

resources to participate 

and whether those that 

do will demonstrate 

more than simply being 

“fit, willing, and able.” 

Mexico as a Partner 

Under the 2011 

Trucking MOU 

On March 3, 2011, the White House declared the end of 

an impasse between Mexico and the United States about 

Mexican trucking activities in the United States. After a 

meeting between Mexican President Felipe Calderon and 

U.S. President Barack Obama in Washington, 

D.C., the White House announced that 

the United States would lift the decades- 

long ban prohibiting Mexican trucking 

companies from operating within the 

United States on the condition that Mexico 

dropped tariffs on $2.4 billion worth of U.S. 

pork, cheese, corn, and fruit imports. See 

Mark Drajem & Jens Erik Gould, Obama, 

Calderon Lift U.S. Ban on Mexican Trucks, 

Retaliatory Quotas, Bloomberg (Mar. 3, 

2011), http://www.bloomberg.com/news/2011- 

03-03/mexico-u-s-are-said-to-reach-agreementon-end-to-border-trucking-dispute.html. 

The 

dispute between the two countries had 

been active for over 15 years, waxing and 

waning in intensity due to various political 

and economic developments but always 

present. The dispute had been particularly 

rankling to Mexico, which felt that the dispute 

represented a blatant refusal on the 

part of the United States to honor parts 

of the North American Free Trade Agreement 

(NAFTA), as evidenced by the sever- 

ity of the retaliatory tariffs. The end of the 

impasse, however, may signify the conclusion 

of over 15 years of often bitter interactions 

with our southern neighbors and 

heated political wrangling at home related 

to cross- border trucking. 

After the announcement in March, a subsequent 

agreement became final on July 6, 

2011, when the Department of Transportation 

and the Secretaria de Comunicaciones 

y Transportes of the United Mexican States 

released a Memorandum of Understanding 

(MOU) regarding cross- border trucking 

services, which will allow Mexican trucking 

companies to engage in cross- border shipping. 

While this may not have the appearance 

of a momentous development to those 

not well versed in the contentious history 

leading up to the 2011 MOU, the realization 

of relatively unfettered although closely regulated 

cross- border trucking between the 

United States and Mexico would indeed represent 

a significant change in United States- 

Mexico border policy. 

■ Jenifer L. Kienle is a partner in the Orange County, California, office of Lewis Brisbois Bisgaard & Smith, a 

national firm with offices in 17 cities. Ms. Kienle defends personal injury and property damage cases related 

to transportation and construction and is an OSHA appeal specialist who is active in DRI, TIDA, and the 

Associated Builders and Contractors. William B. Springer is an associate in Ms. Kienle’s Transportation and 

General Liability group and is experienced in litigating complex cases. 


Trucking Law 

Cross-border trucking has been a long 

time coming. NAFTA contemplated such 

provisions at its inception, which stalled 

due to various political and economic considerations. 

The historical dialogue and 

economic and political pressures that led 

to the 2011 MOU extended over three U.S. 

presidential administrations and, as discussed 

below, until recently the United 

The threat of terrorism 

weighed heavily on many 

Americans’ minds when it 

came to border security… 

and rushing to open the 

border in any respect 

became less of a priority. 

States had avoided dealing with them 

despite tariffs, litigation, and intense international 

pressure. 

How NAFTA Derailed 

President George H.W. Bush spearheaded 

NAFTA, a trilateral free-trade agreement 

between the United States, Canada, and 

Mexico. Discussions in the early 1990s 

among the participating countries about 

eliminating tariffs on products traded 

between them ultimately led to NAFTA, 

which the presidents of the countries 

signed on December 17, 1992. The ambitious 

agreement took effect on January 1, 

1994, and it scheduled full implementation 

for January 1, 2008. The combined gross 

domestic product of the three treaty signatories 

made the area it governed the largest 

free-trade area in the world. 

Since its inception, NAFTA has had 

a real and incontrovertible effect on the 

member nations’ economies. From 1993 

to 2007, trade among the NAFTA nations 

more than tripled, from $297 billion to 

$930 billion. Additionally, business investment 

in the United States rose by 117 percent 

in that same period, compared with a 

45 percent increase between 1979 and 1993. 


And U.S. output manufacturing rose by 58 

percent between 1993 and 2006 compared 

with 42 percent between 1980 and 1993. 

Manufacturing exports reached an all-time 

high in 2007 with a value of $982 billion. 

See Office of the U.S. Trade Representative, 

Exec. Office of the President, NAFTA 

Facts, NAFTA—Myth vs. Fact (Mar. 29, 

2008), http://www.ustr.gov/sites/default/files/ 

NAFTA-Myth-versus-Fact.pdf. 

NAFTA was contemplated at a time 

when the United States’ policy toward 

Mexican trucking was in flux. The Motor 

Carrier Act of 1980 was among the first legislative 

acts to open the door to Mexican 

trucking companies, offering a relatively 

pain-free process for gaining permission 

to engage in cross- border trucking. Under 

the Motor Carrier Act of 1980, trucking 

companies, including Mexican carriers, 

were permitted to engage in cross- border 

trucking as long as they were “fit, willing, 

and able to provide the transportation.” See 

Motor Carrier Act of 1935, 49 U.S.C. §10101. 

In 1982, however, the United States 

closed the brief window of opportunity 

created by the Motor Carrier Act of 1980 for 

enterprising Mexican trucking companies 

to engage in cross- border trucking. The 

United States placed a moratorium on new 

licenses and permits to Mexican trucking 

companies as part of the Bus Regulatory 

Reform Act (BRRA) of 1982. While the 

BRRA did not single out Mexican trucking 

companies specifically, it may as well have 

because it placed a moratorium on issuing 

permits or certificates to motor carriers 

domiciled in, or owned or controlled by, 

a contiguous foreign country, encompassing 

both Canada and Mexico. The president, 

however, had the authority to lift 

the moratorium in whole or in part for 

any country. See Mem. on Bus Regulatory 

Reform Act of 1982, Public Papers of Ronald 

Regan (Sept. 20, 1982), http://www. reagan. 

utexas.edu/archives/speeches/1982/92082c.htm. 

After signing the BRRA into law, on September 

20, 1982, President Ronald Reagan 

lifted the moratorium against Canada. 

Id. Mexico had no such luck, and the moratorium 

persisted. The BRRA colored the 

United States- Mexico trade environment, 

and ultimately the NAFTA discussions that 

began in earnest in the early 1990s. 

Upon its implementation on January 1, 

1994, NAFTA had sweeping effects on the 

tariffs applicable to Mexican imports and 

exports. NAFTA effectively eliminated tariffs 

on more than one-half of U.S. imports 

from Mexico and more than one-third of 

U.S. exports to Mexico, and it set a timetable 

of 10 years for the full implementation 

of the agreement and 15 years for 

certain U.S. agricultural exports. See http:// 

en.wikipedia.org/wiki/Nafta#Provisions. 

Limited Cross-Border Trucking Stalls 

NAFTA also included express cross- border 

trucking provisions intended to allow each 

participating nation eventually to ship 

products across the respective borders of 

the other participating nations. The agreement 

adopted the following guidelines to 

prevent signatories from favoring domestic 

providers: 

Article 1202: National Treatment 

1. Each Party shall accord to service 

providers of another Party treatment 

no less favorable than that it 

accords, in like circumstances, to its 

own service providers. North American 

Free Trade Agreement Arbitral 

Panel, In the Matter of Cross- Border 

Trucking Services, Secretariat File 

No. USA-MEX-98-2008-01, Final 

Report of Panel, at 64 (Feb. 6, 2001), 

http://www.worldtradelaw.net/nafta20/ 

truckingservices.pdf. 

Article 1203: Most-Favored Nation 

Treatment 

Each party shall accord to service 

providers of another Party treatment 

no less favorable than it accords, in 

like circumstances, to service providers 

of any other Party or of a non- 

Party. Id. 

Article 1104: Standard of Treatment 

Each Party shall accord to investors 

of another Party… the better of the 

treatment required by Articles 1202 

and 1203. Id. at 75. 

December 18, 1995, was targeted as the 

date when the U.S. border would officially 

open to allow Mexican carriers to conduct 

limited shipping into California, Arizona, 

New Mexico, and Texas. Phase two, 

to begin on January 1, 2000, was intended 

to abolish state-based restrictions and open 

the border to Mexican carriers to engage 

in cross- border trucking anywhere in the 

United States. See North American Free 

Trade Agreement, Annex I: Reservations

for Existing Measures and Liberalization 

Commitments, Schedule of the United 

States. 

As these NAFTA deadlines loomed, the 

United States relied on border security and 

public safety concerns to support the decision 

to extend the moratorium under the 

BRRA, thus delaying implementing agreed 

upon commitments to liberalize cross- 

border trucking markets. 

The United States Violates NAFTA 

As the first date for border opening under 

NAFTA approached in 1995, President Bill 

Clinton extended the BRRA moratorium, 

which prohibited Mexican truckers from 

traveling more than 20 miles into U.S. 

territory. In 1998, in response, Mexico 

formally requested that a NAFTA arbitration 

panel investigate and opine on the 

impact of the U.S. failure to lift its moratorium 

on the processing of applications by 

Mexican- owned trucking firms for authority 

to operate within the United States. On 

February 6, 2001, the North American Free 

Trade Agreement Arbitral Panel established 

under Chapter Twenty of NAFTA 

issued a final order, finding that the U.S. 

had breached Article 1202 and 1203, as well 

as the liberalization guidelines in Annex 

I of NAFTA. North American Free Trade 

Agreement Arbitral Panel, supra, at 81. 

In addition, the panel specifically rejected 

the United States’ assertion that Mexico’s 

inadequate trucking regulations warranted 

withholding permits. Id. 

Although the ruling opened the door 

for Mexico to impose new tariffs against 

the United States, Mexico opted to continue 

informal and diplomatic discussions 

with the Bush administration, and 

it did not take retaliatory actions. Later 

that year, September 11, 2001, shook the 

United States to its core, and the United 

States tightened border security, making 

liberalizing granting cross- border trucking 

permits politically undesirable to pursue 

given the increased focus on securing 

borders. For years to come, the threat of 

terrorism weighed heavily on many Americans’ 

minds when it came to border security, 

and indeed, it continues to do so today 

for many, and rushing to open the border in 

any respect became less of a priority. 

Mexico remained subject to the moratorium 

until September 2008, when a 

pilot program led to as many as 100 Mexican 

trucking companies hauling cargo 

across the U.S. border. Following the historic 

political tug of war that comes part 

and parcel with cross- border trucking, 

the United States again quickly shut Mexico’s 

window when in 2009, a spending 

bill passed in Congress that cancelled the 

program. This time, Mexico responded 

with the retaliatory tariffs that became a 

focus of the recent talks between President 

Obama and President Calderon, culminating 

in the 2011 MOU. See Drajem & 

Gould, supra. Specifically, Mexico imposed 

retaliatory tariffs on 89 categories of U.S. 

exports totaling approximately $2.4 billion 

in exports from 40 states. Organization 

of American States, State’s Foreign Trade 

Information System, Mexico, http://www. 

sice.oas.org/ctyindex/USA/USTR_Reports/2011/ 

NTE/MEX_e.pdf. Against the backdrop of all 

of this history the United States and Mexico 

once again came to the bargaining 

table to try to reach some common ground 

regarding cross- border trucking. Perhaps 

realizing that such an agreement could be 

mutually beneficial, the two countries soon 

executed the 2011 MOU, and the United 

States renewed its commitment to cross- 

border shipping. 

Picking Up Where NAFTA Left Off 

The inefficiency created by the 1982 moratorium 

on licensing Mexican trucking 

companies extended by President Clinton 

drove the 2011 MOU negotiations. Due to 

the licensing moratorium a Mexican carrier 

transported goods to the U.S. border 

by a Mexican carrier, delivered them to 

a temporary short-haul provider to cross 

the border, and then an American trucking 

company picked them up to haul them 

to a final destination. Such inefficiency and 

expense drove the Mexican government to 

press diplomatically for a new understanding, 

while U.S. safety concerns ultimately 

prevailed in the new pilot program created 

under the 2011 MOU. 

The 1994 MOU, as drafted by the U.S./ 

Mexico Joint Working Committee on 

Transportation Planning, was intended 

to address many of the most contentious 

issues facing Mexico- United States cross- 

border trucking. As stated in Article I of 

the 1994 MOU, “The Parties intend to cooperate 

on land transportation planning and 

to establish methods and procedures to 

analyze current and future transportation 

infrastructure needs to facilitate efficient, 

safe and economical cross- border transportation 

movements.” See U.S./Mexico 

Joint Working Comm. on Transp. Planning 

1994 Mem. of Understanding, Article 

1, http://www.borderplanning.fhwa.dot.gov/ 

mou1994.asp. 

The 2011 MOU establishes 

a pilot program… which 

would allow Mexican 

trucking companies to 

engage in cross- border 

shipping, provided that 

they met the stringent 

requirements of the MOU. 

Generally, however, the 2011 MOU establishes 

a pilot program of up to three years, 

as determined by agreement of the United 

States and Mexico, which would allow 

Mexican trucking companies to engage 

in cross- border shipping, provided that 

they met the stringent requirements of the 

MOU. See Mem. of Understanding Between 

the U.S. Dep’t of Transp. & the Secretaria 

de Comunicaciones y Transportes of the 

United Mexican States on Int’l Freight 

Cross Border Trucking Services, at Article 

2, “Scope,” (July 6, 2011), http://www.fmcsa. 

dot.gov/documents/Mexican_MOU_Eng.pdf. 

Annex 1 of the 2011 MOU outlines the 

requirements that a Mexican trucking 

company must meet to qualify for a permit 

to engage in cross- border shipping: 

1. All Mexican- domiciled motor carriers 

that wish to participate in 

international freight cross- border 

trucking services in the U.S. are to 

complete the application OP-1 MX. 

The application, and accompanying 

application fee, is to be submitted to 

FMCSA. Motor carriers who partic- 

Mexico, continued on page 84 


Trucking Law 

Wake-Up Call for 

Carrier and Driver 

By Marshal M. Pitchford 

and Christopher E. Cotter 

even when proven the 

legal cause of an accident, 

fatigued driving may 

not go beyond mere 

negligent conduct to 

the more egregious 

culpable conduct. 


Falling Asleep 

Can Result in 


Driver fatigue continues to be a significant problem for 

motor carriers and their drivers. A 2007 study reported 

that 13 percent of commercial drivers were considered to 

have been fatigued at the time of their crash. U.S. Dep’t of 

Transp. Fed. Motor Carrier Safety Admin., 

The Large Truck Crash Causation Study, 

http://www.fmcsa.dot.gov/facts-research/ 

research-technology/analysis/FMCSA-RRA-07-017. 

htm (2007). Certainly, there are instances 

in which tired driving has led to accidents. 

However, whether such conduct rises 

to a level of culpability in which courts 

should levy punitive or exemplary damages 

against the driver and the carrier is another 

matter. Numerous courts have considered 

the issue and the results may surprise you. 

This article provides an in-depth analysis 

of the cases that have tackled whether to permit 

punitive damages awards in accidents 

involving driver fatigue. Although the punitive 

damages standard varies from state to 

state, and the outcomes hinge on the particular 

facts of each case, the cases do provide 

guidance about whether a defense attorney 

can successfully convince a court to dismiss 

a punitive damages claim at the summary 

judgment stage or whether a jury will have 

the opportunity to consider such an award. 

Standards for Awarding 


Although punitive damages have been 

awarded in this country since Colonial 

times, for most of this nation’s history 

they were available only in the traditional, 

intentional tort context. That is, only if 

a jury found that a defendant acted with 

a specific intent to cause harm could it 

award punitive damages. Before the 1960s, 

punitive damage awards were rare. Visible 

punitive awards against manufacturers 

came with the 1960s product liability 

revolution. See Daniel W. Morton- Bentley, 

Law, Economics, and Politics: The Untold 

History of the Due Process Limitation 

on Punitive Damages 17, ExpressO (Mar. 

2011) (unpublished manuscript), available 

at http://works.bepress.com/daniel_morton- 

bentley/1. At that time, American courts 

and legislatures began to expand rapidly 

the situations in which punitive damages 

were awarded. A number of states adopted 

a “reckless disregard” standard for puni- 

■ Marshal M. Pitchford and Christopher E. Cotter are attorneys with Roetzel & Andress LPA in Akron, Ohio. 

They have extensive experience with transportation litigation, including personal injury claims, cargo claims, 

freight charges collection and transactions, government relations and commercial litigation. As members of 

the firm’s emergency response team, they have also coordinated numerous emergency responses on behalf 

of their transportation and logistics clients.

tive damages liability. Other states adopted 

a three-pronged “willful, wanton or gross 

misconduct” standard, giving plaintiffs 

three separate paths to obtain punitive 

damages. Both of these standards require 

a mental state that is something less than a 

specific intention to harm someone. 

Today, most states use these two standards 

in some form or another. For instance, 

many states use the term “gross negligence,” 

which is typically defined as a 

“wanton or reckless disregard for the safety 

of others.” Crouch v. Teledyne Continental 

Motors, Inc., 2011 WL 1539854 (S.D. Ala. 

Apr. 21, 2011); see also Durham v. County 

of Maui, 692 F. Supp. 2d 1256, 1262 (D. 

Haw. 2010) (“gross negligence… is the 

entire want of care [raising] the presumption 

of indifference to consequences”); In 

re Fosamax Products Liability Litigation, 

647 F.Supp.2d 265, 283 (S.D.N.Y. 2009) 

(“‘Gross negligence’ means that the defendant’s 

conduct was so reckless or wanting 

in care that it constituted a conscious disregard 

or indifference to the life, safety, 

or rights of persons exposed to such conduct”). 

Another common standard today 

is a “conscious disregard for the rights and 

safety of other persons that has a great 

probability of causing substantial harm.” 

See Preston v. Murty, 32 Ohio St. 3d 334, 

335 (Ohio 1987). 

Yet, in other states, the bar remains high. 

For instance, under Arizona law, a plaintiff 

must prove that a tortfeasor’s “evil hand 

was guided by an evil mind.” Bachrach v. 

Covenant Trans. Inc., 2011 WL 1211767, at 

*1 (D. Ariz. Mar. 31, 2011). In New York, 

punitive damages are permitted when a 

defendant’s wrongdoing “is not simply 

intentional but evince[s] a high degree of 

moral turpitude and demonstrate[s] such 

wanton dishonesty as to imply a criminal 

indifference to civil obligations.” Washington 

v. Kellwood Co., 2009 WL 855652, at *11 

(S.D.N.Y. Mar. 24, 2009). 

Although state courts and legislatures 

have adopted a variety of standards for 

awarding punitive damages, most if not all 

courts would agree with the Ohio Supreme 

Court that “something more than mere 

negligence is always required.” Leichtamer 

v. Am. Motors Corp., 67 Ohio St. 2d 456, 

472, (Ohio 1981); see also Hutchinson v. 

Penske Truck Leasing Co., 876 A.2d 978, 

983–84 (Pa. Super. Ct. 2005), aff’d, 922 

A.2d 890 (Pa. 2007) (“Ordinary negligence, 

involving inadvertence, mistake or error 

of judgment will not support an award of 

punitive damages.”). Yet, conduct associated 

with something less than a specific 

intent to drive a semi into another 

vehicle can fall within the punitive damages 

standard. A commercial driver who 

makes a conscious decision to forego sleep 

to spend more time on the road and subsequently 

causes an accident due to fatigue 

tests where courts will draw that line. 

The Purpose of Punitive Damages 

The same two objectives generally underlie 

the various standards for awarding 

punitive damages: punishment and deterrence. 

The United States Supreme Court 

has recently explained that “[r]e gard less 

of the alternative rationales over the years, 

the consensus today is that punitives are 

aimed not at compensation but principally 

at retribution and deterring harmful conduct.” 

Exxon Shipping Co. v. Baker, 554 U.S. 

471, 492–93 (2008). In most modern American 

jurisdictions, juries are customarily 

instructed on these twin goals of punitive 

damage awards. 

Because of the deterrent goal of punitive 

damages, some level of mental awareness 

or knowledge on the part of a tortfeasor is 

an indispensable feature of any punitive 

damages standard. In the trucking context, 

what a driver knew before an accident and 

whether the driver made conscious decisions 

based on that knowledge are the key 

issues. For a motor carrier, its knowledge 

of previous unresolved problems affecting 

a driver’s ability to drive safely, or a failure 

to properly monitor a driver for such problems, 

are often the key considerations. 

Certainly, any situation in which money 

or profit takes precedence over safety 

quickly raises a red flag for courts considering 

whether to permit juries to consider 

awarding punitive damages. As aptly 

described by an Illinois federal court, 

“[m]oney [taking] precedent over safety 

is virtually the definition of the kind of 

corporate behavior warranting an award 

of punitive damages.” Trotter v. B & W 

Cartage Co., Inc., 2006 WL 1004882, at *7 

(S.D. Ill. Apr. 13, 2006) (internal quotations 

omitted). Motor carriers often find themselves 

the target of these kinds of attacks, 

regardless of their plausibility. See, e.g., 

McAchran v. Knight Trans., Inc., 2009 WL 

888539, at *1–2 (Ariz. App. Apr. 2, 2009) 

(involving assertions by the plaintiffs that 

the carrier’s policy of paying by the mile 

encouraged and in fact resulted in falsification 

of travel logs to the financial benefit 

of both the carrier and its drivers). Punishment 

and deterrence are not overtly discussed 

in many of the driver fatigue cases, 

Punishment and 

deterrence are not overtly 

discussed in many of 

the driver fatigue cases, 

but these two underlying 

goals surely play a role in 

determining their outcome. 

but these two underlying goals surely play 

a role in determining their outcome. 

Higher Burden of Proof 

Plaintiffs seeking punitive damages not 

only must establish a greater degree of culpability 

than mere negligence, they also 

carry a greater burden of proof. In a majority 

of jurisdictions, a plaintiff is required 

to establish conduct warranting punitive 

sanction by “clear and convincing evidence,” 

which is typically defined as “evidence 

that will produce in the mind of the 

trier of fact a firm belief or conviction as 

to the facts sought to be established.” See, 

e.g., Wood v. Neuman, 979 A.2d 64, 73 

(D.C. 2009); Cross v. Ledford, 161 Ohio St. 

469, paragraph three of the syllabus (Ohio 

1954); State v. Addington, 588 S.W.2d 569, 

570 (Tex. 1979); Black’s Law Dictionary 227 

(5th ed. 1979). 

This standard takes a middle ground 

between the burden of proof standard 

ordinarily used in civil cases, proof by 

a “preponderance of the evidence,” and 

the criminal law standard, proof “beyond 

a reasonable doubt.” The United States 

Supreme Court has specifically endorsed 

the “clear and convincing evidence” bur- 


Trucking Law 

den of proof standard for punitive damages 

in civil cases. Humana Inc. v. Forsyth, 525 

U.S. 299, 301 (1999). 

Levying Punitive Damages 

Against a Motor Carrier 

A plaintiff injured in a trucking accident 

often will sue both the commercial driver 

and the motor carrier. Under the doctrine 

A plaintiff must prove 

that a motor carrier’s 

conduct with respect 

to its driver exceeded 

mere negligence and 

reached a gross level 

of culpable conduct. 

of respondeat superior a trier of fact may 

hold an employer liable for compensatory 

damages resulting from the negligent 

acts of its employees committed within 

the scope of their employment. However, 

when a plaintiff seeks punitive damages 

from an employer based on the culpable 

conduct of its employees, a different analysis 

may apply. 

The Restatements of Torts and Agency 

both support holding an employer liable for 

punitive damages only when the employer 

or one of its managerial agents authorizes, 

contributes to, or ratifies the employee’s 

wrongful conduct. Restatement (Second) of 

Torts Section 909(d); Restatement (Second) 

of Agency Section 217(C)(d). For instance, 

if a trucking company actively permits or 

encourages its drivers to violate the hours 

of service regulations and to sleep inadequately 

between runs, a jury could find that 

the carrier authorized the driver’s fatigued 

driving. 

Several courts have adopted the Restatements’ 

approach. See, e.g., Ducharme ex rel. 

Rogers v. Board of County Com’rs of Butler 

County, Kan., 2011 WL 2173684, at *10 (D. 

Kan. June 2, 2011); Mercury Motors Express, 

Inc. v. Smith, 393 So. 2d 545 (Fla. 1981); Cal. 


Civ. Code §3294(b); Lehmann v. Toys R Us, 

Inc., 132 N.J. 587, 592 (N.J. 1993). 

Other courts take a firmer approach, 

holding an employer liable for punitive 

damages any time an employee’s wrongful 

acts occurred within the scope of employment. 

See, e.g., Laidlaw Transit, Inc. v. 

Crouse ex rel. Crouse, 53 P.3d 1093, 1097–98 

(Ala. 2002); Stroud v. Denny’s Restaurant, 

Inc., 271 Or. 430, 532 P.2d 790 (Ore. 1975). 

This is no different from the respondeat 

superior doctrine for negligence claims. 

Pennsylvania has adopted its own 

standard. There, a jury may award punitive 

damages when an employee’s conduct 

was clearly outrageous, committed within 

the scope of employment, and carried out 

with the intent to further the employer’s 

interests. Achey v. Crete Carrier Corp., 2009 

U.S. Dist. Lexis 44353, at *7–8 (E.D. Penn. 

Mar. 30, 2009). 

Yet even in jurisdictions that require 

employer authorization or ratification, this 

additional hurdle for a plaintiff does not 

exist when the plaintiff asserts a direct 

claim against a trucking company. For 

claims such as negligent hiring, negligent 

supervision, negligent retention, or negligent 

entrustment of a vehicle, a plaintiff 

must prove that a motor carrier’s conduct 

with respect to its driver exceeded 

mere negligence and reached a gross level 

of culpable conduct. See, e.g., Dalworth 

v. Bulen, 924 S.W.2d 728, 732 (Tex. App. 

Apr. 24, 1996) (finding that for the jury to 

award punitive damages against the carrier 

requires finding that “someone employed 

by [the motor carrier] and who was acting 

in the scope of that managerial capacity 

was grossly negligent”). Because a motor 

carrier’s own conduct is at issue, whether 

it ratified or approved the driver’s conduct 

that led to the specific accident is not 

germane. 

Methods of Proving Driver Fatigue 

Although the central question of this article 

is whether a commercial driver’s fatigue 

rises to the level of culpable conduct, the 

question involves an antecedent question. 

A plaintiff must first establish that fatigue, 

in fact, played a role in causing the accident. 

Unless a driver readily admits that 

he or she slept at the wheel, a plaintiff must 

present evidence, often circumstantial, that 

the driver slept or that fatigue otherwise 

contributed to an accident. Plaintiffs have 

attempted to present evidence of fatigued 

driving in a variety of ways. 

Hours-of Service-Violations 

By far the most commonly presented evidence 

of driver fatigue is violation of the 

federal hours of service (HOS) regulations. 

Although the HOS regulations do 

not explicitly declare their purpose, the 

tie between restrictive driving hours and 

fatigue is clear. Preventing driver fatigue is 

undoubtedly one of the key purposes of the 

limitations on hours of service in part 395 

of the FMCSR. See 49 C.F.R. §§395.3, 395.8. 

Courts disagree about whether punitive 

damages are warranted when a driver 

violates the HOS regulations. For example, 

one court has explained that HOS violations 

“are merely evidence that [the driver] 

drove beyond the ten-hour limit earlier in 

the week and, therefore, may have been 

tired when he hit [plaintiff’s] car.” Purnick 

v. C.R. England, Inc., 269 F.3d 851, 853 (7th 

Cir. 2001). They “do not show [the driver’s] 

knowledge that an accident would probably 

occur, however.” Id. 

Another court acknowledged that “a reasonable 

man in [the truck driver’s] position, 

after reading the ten hour rule, may 

have realized the risk the regulation was 

designed to avoid.” Burke v. Maassen, 904 

F.2d 178, 183 (3rd Cir. 1990). However, the 

court was quick to add that the plaintiffs 

didn’t present evidence that the defendant 

driver “himself appreciated this risk.” Id.; 

see also Osborne Truck Lines, Inc. v. Langston, 

454 So. 2d 1317, 1326 (Ala. 1984) (“the 

mere violation of these [HOS] regulations 

would not support a claim of wantonness”). 

These cases recognize that a driver does not 

automatically become tired the minute he 

or she exceeds the time limits imposed by 

the HOS regulations. A driver in violation 

of the HOS regulations is not necessarily a 

fatigued driver. 

Yet other courts have found a connection 

between a driver’s HOS violations and 

culpability at least potentially reaching the 

punitive damages level. For instance, in 

Smith v. Printup, the driver testified during 

his deposition that he knew what the law 

required regarding accurate logs and limited 

work hours, but nevertheless he drove 

17 or 18 consecutive hours leading up to the 

collision. 866 P.2d 985, 1013 (Kan. 1993).

The court concluded that “[t]o the extent 

that such disregard may be interpreted as 

related to the cause of the accident, it supports 

the claim that he acted wantonly.” Id. 

Also, in Torres v. North Am. Van Lines, 

Inc., the driver failed to log any of his time 

on Line 4 (On Duty Not Driving) of his log 

in the three months preceding the accident. 

658 P.2d 835, 838 (Ariz. App. 1983). 

The court, interpreting this oversight as the 

driver’s attempt to avoid the 70-hour rule, 

concluded that a jury “could logically conclude 

that this manifested a wanton disregard 

for the safety of others, that is, gross 

negligence.” Id. at 839. 

A carrier’s best response to evidence of 

a driver’s HOS violations is direct evidence 

that the driver was not in fact fatigued 

at the time of an accident. For instance, 

in Purnick, there was evidence that the 

commercial driver had driven beyond the 

10-hour limit several times during the 

week preceding the crash and had falsified 

his logs. 269 F.3d at 853. However, the 

driver’s Qualcomm showed that he did 

not drive for the 17 hours before the trip 

that ended in the crash, which “tend[ed] 

to show that [the driver] likely thought he 

was rested.” Id. As such, the court granted a 

summary judgment in favor of the defense 

on the punitive damages claim. Id. at 854; 

Tew v. Jones, 417 So. 2d 146, 147 (Ala. 1982) 

(affirming a directed verdict in favor of the 

defendants on the punitive damages claim 

and involving a driver who had driven all 

day but had taken breaks for breakfast and 

an afternoon soft drink). In general, direct 

evidence demonstrating the driver’s alertness 

and rest will likely trump circumstantial 

evidence of fatigue. 

Other Circumstantial Evidence 

Another common method for proving 

driver fatigue is offering evidence of the 

driver’s activity in the days or hours leading 

up to an accident. For instance, in Cummings 

v. Conglobal Indus., Inc., the driver 

had slept only five and a half hours in the 

three days before the accident. 2008 WL 

4613817, at *1 (N.D. Okla. Oct. 14, 2008). 

The court determined that the driver was 

“sleep deprived” at the time of the accident 

and denied the trucking company’s motion 

for a summary judgment on that basis. Id. 

at *2. When a driver had not had sleep for 

more than 40 hours at the time of an acci- 

dent and habitually used amphetamines, a 

court permitted the jury to consider punitive 

damages against the driver and motor 

carrier. Sakamoto v. N.A.B. Trucking Co., 

Inc., 717 F.2d 1000, 1002–1003 (6th Cir. 

1983); see also DeMatteo v. Simon, 812 P.2d 

361, 364 (N.M. App. 1991) (upholding a 

punitive damages award when a driver only 

had five hours of sleep and then drove for 

20 hours immediately preceding the accident); 

Osborne, 454 So. 2d at 1326 (finding 

a jury properly awarded punitive damages 

when the driver had been on the road over 

16 hours and “with knowledge of that fact 

continued to drive”). 

Certainly, when a plaintiff’s attorney has 

evidence that a driver took amphetamines 

or caffeine pills, achieving a summary 

judgment for the defense can become difficult. 

See Briner v. Hyslop, 337 N.W.2d 858, 

867 (Iowa 1983) (remanding the case for a 

jury to consider punitive damages when 

the driver had not slept for 30 hours and 

had in his possession amphetamine and 

caffeine pills that he admitted taking at 

various times during his trip). 

Plaintiffs’ attorneys have also supported 

a driver fatigue theory with evidence of 

unusual activity of a semi immediately preceding 

an accident as reported by eyewitnesses. 

Although evidence that a truck was 

weaving in and out of its lane, or drifted 

into an adjacent or oncoming lane might 

suggest that the driver was fatigued, such 

circumstantial evidence alone would not 

likely support a punitive damages claim 

in most courts. See, e.g., Batts v. Crete Carrier 

Corp., 2009 WL 6842545, at *3 (N.D. 

Ga. Dec. 14, 2009) (finding insufficient evidence 

to support a punitive damages claim 

when the driver never slowed down, never 

braked, and rear-ended the plaintiff’s vehicle); 

but see Briner, 337 N.W.2d at 867 (finding 

a jury entitled to decide whether the 

conduct warranted a punitive damages 

award when the driver had recently consumed 

several double scotches and drifted 

over the center line and collided with the 

oncoming vehicle). 

When a commercial driver has a medical 

history that includes sleep apnea, plaintiffs’ 

attorneys have cited the sleep disorder as 

circumstantial evidence of driver fatigue. 

However, as with HOS violations, plaintiffs 

must make the connection between the 

disorder and the cause of the accident. For 

instance, in Achey, the plaintiff contended 

that the driver knew that he had sleep 

apnea but continued to drive his tractor- 

trailer. Achey, 2009 U.S. Dist. Lexis 44353, 

at *8. The defense effectively overcame 

this assertion, as the court concluded that 

“there does not appear to be a link between 

[the driver’s] alleged sleep apnea condition 

and the fatigue [he] experienced prior to 

In general, direct evidence 

demonstrating the driver’s 

alertness and rest will 

likely trump circumstantial 

evidence of fatigue. 

the accident, as [his] primary sleep apnea 

symptom was snoring, not drowsiness.” Id. 

at 16 of 25. Whether a driver was actually 

in a tired state at the time of an accident is 

the key inquiry and not all circumstantial 

evidence can adequately establish fatigue, 

despite the hunches of plaintiffs and their 

counsel. 

Direct Evidence 

The most common direct evidence of 

fatigue is the driver’s own admission that 

he or she was tired at the time of an accident, 

or shortly beforehand. In one case, 

the commercial driver testified that she 

knew that she was having problems staying 

awake while operating her automobile 

and, in fact, had stopped her vehicle twice 

before the accident and attempted to wake 

herself up. Claypoole v. Miller, 43 Pa. D. & 

C.4th 526, 528 (Penn. Comm. Pleas 1999). 

The court permitted the plaintiffs to amend 

their complaint to add a claim for punitive 

damages. Id. 

In another case, the driver told the 

responding police officer after the crash 

that “I was tired and thought as soon as I 

got into New Jersey I would stop and nap. 

I dozed for a second, when I looked traffic 

was at a dead stop. I hit the brakes and 

turned the wheels, but couldn’t stop; the 

[decedents’] car got jammed underneath.” 

Achey, 2009 U.S. Dist. Lexis 44353, at *4. 


Trucking Law 

The court concluded that a jury could reasonably 

conclude that the driver “acted 

outrageously in continuing to drive while 

knowing the risks of doing so in a state 

of fatigue.” Id. at *34; see also Gunnells v. 

Dethrage, 366 So. 2d 1104, 1106 (Ala. 1979) 

(finding a jury had properly considered 

punitive damages when the driver testified 

that he “might have had a little bit of 

Whether a driver was 

actually in a tired state at 

the time of an accident is 

the key inquiry and not all 

circumstantial evidence can 

adequately establish fatigue, 

despite the hunches of 

plaintiffs and their counsel. 

drowsiness” and that the car had drifted 

over the center line and back just before 

the accident). 

However, direct evidence of driver 

fatigue does not automatically mean that 

a defense attorney cannot achieve a summary 

judgment. In one case, the driver testified 

that he was sleepy but not asleep at 

the time of the accident. Turner v. Werner 

Enterprises, Inc., 442 F.Supp.2d 384, 385 

(E.D. Ky. 2006). Specifically, he testified 

that “obviously when you’re tired, you’re 

kind of like in an… in and out state.” Id. 

Yet even in light of this testimony, the court 

granted a summary judgment in favor of 

the trucking company and its driver on 

the punitive damages claim. Id. at 387. 

Because the driver was “within the speed 

limit, apparently within the proper lane, 

and without any suggestion of intoxication,” 

mere fatigued driving did not rise to 

the level of culpable conduct warranting 

punitive damages. Id. at 386. 

Common Threads 

After reviewing the numerous cases that 

have tackled whether a punitive damages 


award is appropriate when an accident is 

caused by driver fatigue, it can be a challenge 

to synthesize the holdings to extract 

a distinct bright line that, once crossed, 

would completely foreclose a summary 

judgment in favor of a defendant and making 

punitive damages a real possibility. 

Because the punitive damage standard varies 

from state to state, and because the outcomes 

hinge largely on the specific facts of 

each case, unsurprisingly we have found 

inconsistencies and contradictions among 

the courts that have examined this issue. 

Yet some common threads have emerged. 

Punitive Damages Against 

the Commercial Driver 

Simply put, if a driver was aware of his or 

her fatigue before an accident and made a 

conscious decision to continue driving, a defendant’s 

attorney will not likely achieve a 

summary judgment on the punitive damages 

claim. Such knowledge and subsequent 

conduct appears to make the difference with 

driver fatigue between negligent and culpable 

conduct warranting punitive damages. 

Several courts have stated that “just falling 

asleep at the wheel does not support an 

award of punitive damages.” Batts, 2009 

WL 6842545, at *2; see also Briner, 337 

N.W.2d at 868 (“The act of falling asleep 

generally would not constitute conduct that 

would allow punitive damages.”); George, 

708 S.E.2d at 207 (“inadvertent driver error 

caused by falling asleep behind the wheel 

by itself does not support an award of punitive 

damages”). 

Yet, in many of those same cases, the 

courts permitted the juries to consider 

punitive damages because the drivers had 

some awareness of their fatigue and continued 

to drive. For instance, in Briner, the 

commercial driver “knew of his [fatigued] 

condition and persisted in driving despite 

the danger.” Briner, 337 N.W.2d at 868 

(emphasis added). In Claypoole, the driver 

“knew she was physically exhausted,” since 

she had stopped her vehicle twice before 

the accident and attempted to wake herself 

up. Claypoole, 43 Pa. D. & C.4th at 528 

(emphasis added). In McAchran, the driver 

“was aware of the substantial risks involved 

in continuing to operate his truck while 

fatigued but acted to serve his own interests 

having reason to know and consciously 

disregarding the substantial risk of harm 

to others.” 2009 WL 888539, at *1 (emphasis 

added). In Osborne, the driver had been 

driving over 16 hours at the time of the 

accident and “with knowledge of that fact 

continued to drive.” Osborne, 454 So. 2d at 

1326. In all of these cases the courts permitted 

the juries to consider whether punitive 

damages were warranted. 

Conversely, a court granted a summary 

judgment in favor of the driver and carrier 

because the court found “no evidence 

[that the driver] consciously ignored the 

risk of fatigue.” Batts, 2009 WL 6842545, 

at *2 (emphasis added). The Burke court, 

discussing the punitive damages claim, 

did not find evidence that the driver “consciously 

appreciated the risk of prolonged 

driving” beyond the 10-hour rule. Burke, 

904 F.2d at 183 (emphasis added). 

Given the twin goals of punitive damages—punishment 

and deterrence—it 

makes sense that courts home in on a driver’s 

awareness of fatigue and whether he or 

she made a decision to continue driving. It 

is difficult to deter accidental conduct. For 

the same reason, it would not make sense to 

punish that behavior. The case law reflects 

these underlying principles. 

Levying Punitive Damages 

Against a Motor Carrier 

When juries consider whether to levy punitive 

damages against a motor carrier, the 

focus shifts from the driver’s conduct to 

the knowledge and acts or omissions of the 

carrier management. On examining the 

cases in which courts permitted juries to 

consider levying punitive damages against 

motor carriers, several patterns emerged. 

Regardless of whether a plaintiff seeks 

punitive damages based on respondeat 

superior or direct claims against a carrier, 

the most common reason courts permit 

juries to award punitive damages is that a 

carrier failed to monitor a driver’s compliance 

with the HOS regulations. 

For instance, in Torres, the court found 

that the carrier had received notice several 

times that its drivers were not complying 

with the HOS regulations. Torres, 

658 P.2d at 839. The problem had existed 

for a number of years, and the carrier 

did not attempt to take corrective measures. 

Id. The court explained that the carrier 

“should have known that its failure to 

Falling asleep, continued on page 81

Trucking Law 

FMSCA Safety 

Evaluation 

By Philip M. Gulisano 

and Thomas J. Lang 

More data available to the 

public and to plaintiffs’ 

attorneys means motor 

carriers must proactively 

monitor safety status, 

investigate violations and 

crashes immediately, and 

take corrective action. 

CSA— 

The Final 

Version? 

We have been talking for some time about “CSA 2010,” 

the program created by the Federal Motor Carrier Safety 

Administration (FMCSA) to focus attention on the specific 

behaviors of drivers and motor carriers that lead to 

crashes. The program, now just called 

“CSA,” which stands for “compliance, 

safety, and accountability,” was first rolled 

out by the Administration in 2008 for a trial 

run in four states: Colorado, Georgia, Missouri, 

and New Jersey. In 2009, the FMCSA 

added Delaware, Minnesota, Maryland, 

Montana, and Kansas. Currently, a portion 

of the CSA, the safety measurement 

system, is fully active in all 50 states and 

warning letters are being received by carriers 

in each state. However, all interventions 

are not fully implemented in each state due 

to the need for additional training of enforcement 

staff. The FMCSA expects that 

all interventions will be fully implemented 

shortly. Additionally, the safety fitness determination 

prong of CSA must still undergo 

federal rulemaking, which we expect 

will be released by the FMCSA before publication 

of this article. Once all of these steps 

are completed, the entirety of the CSA program 

should be fully implemented throughout 

the entire United States. 

The CSA program takes a new approach 

to the way that information regarding 

motor carrier performance such as roadside 

inspection data, driver logs, and crash 

history is collected and used to attempt to 

determine compliance with federal rules 

and potential safety issues. This article 

presents an overview of the CSA program, 

the methodology that it uses to measure 

safety compliance and make intervention 

decisions, and some potential issues that 

all motor carriers and the attorneys advising 

them need to understand, not only 

to maintain and to reinforce safe driving 

practices, but also to take proactive 

approaches to litigation. 

Patti Gillette, Director of Safety for 

the Colorado Motor Carrier Association, 

was active on the forefront of the initial 

CSA program testing in Colorado and has 

extensive experience with the program. Dr. 

Gillette travels around the country educating 

motor carriers and drivers on the particulars 

of the CSA program and agreed to 

■ Philip M. Gulisano is a founding member of, and Thomas J. Lang is an associate at, Burden, Gulisano 

& Hickey, LLC in Buffalo, New York. Mr. Gulisano has over a decade of experience representing trucking 

industry clients in the defense of catastrophic personal injury, cargo and loss transfer claims. He serves as 

the webcast chair for the DRI Trucking Law Committee. Mr. Lang also focuses his practice on representing 

trucking industry clients in defense of personal injury and loss transfer claims. 


Trucking Law 

share some of her knowledge and insight 

regarding the CSA program for this article. 

CSA—Brief Overview 

The CSA program has three components. 

The first component is the Safety Measurement 

System (SMS). The CSA program 

feeds data from other motor carrier- related 

databases into this database, the SMS, and 

applies a new methodology to that data to 

quantify safety and compliance for each 

motor carrier. The second component is the 

“safety fitness determination,” the actual 

safety rating assigned to each motor carrier 

based on the collected data as analyzed 

by the SMS methodology. The third component 

is intervention, which represents the 

type of enforcement that the FMCSA will 

impose on each carrier depending on its 

overall safety rating. 

The overwhelming majority of the data 

that the CSA program will use in the SMS 

comes from two major databases: the Motor 

Carrier Management Information System 

(MCMIS) and the Commercial Driver’s License 

Information System (CDLIS). The MC- 

MIS stores information received from form 

MCS-150, motor carrier identification data; 

SAFETYNET, state inspection and accident 

reports; and federal inspection and accident 

reports, among others. The CDLIS contains 

CSA Operational Model 


“driver records,” which states must create 

under 49 C.F.R. §384.225, providing information 

regarding violations and convictions 

committed by a driver, as well as the driver’s 

medical certification, among other information. 

The CSA program will constantly retrieve 

data from these databases and feed it 

into the SMS. The federal government, individual 

motor carriers themselves, and the 

public will have access to this data. 

At its core, the CSA program will not 

change anything operationally for carriers. 

Carriers will still be subject to inspections. 

The major change is that the CSA program 

will collect and measure the retrieved data 

differently than the SafeStat program and 

eventually use it to assign a constantly updated 

“rating” to each carrier. According 

to Dr. Gillette, the CSA program will benefit 

motor carriers because they can use the 

methodology to acquire better data to identify 

potential safety concerns much more 

quickly than they could under SafeStat, and 

they can use that data not only to improve internal 

safety programs but also to make better 

hiring, training, and retention decisions. 

The CSA Operational Model and 

SMS Methodology—How Motor 

Carrier Data Is Evaluated 

The CSA operational model diagram be- 

low shows how the CSA program will identify 

and address motor carrier safety issues. 

CSA, Fed. Motor Traffic Safety Admin., U.S. 

Dep’t Transp., The New Operational Model, 

http://csa.fmcsa.dot.gov/about/csa_how.aspx. 

The process begins with collecting safety 

data and feeding it into the SMS, sorting it 

into seven behavioral analysis and safety 

improvement categories. The methodology 

evaluates the sorted data in each behavioral 

analysis and safety improvement category 

(BASIC), and each motor carrier receives 

a percentile score between 0 and 100 and 

is placed in a corresponding peer group or 

“safety event group” for each BASIC. The 

methodology doesn’t rate individual drivers, 

but it collects data on them for use by 

law enforcement personnel. Depending on 

a carrier’s overall percentile score within 

the peer group, referred to in CSA parlance 

as the safety event group, the FMCSA 

may subject the carrier to an intervention, 

which can range from a warning letter to a 

suspension of authority to operate. 

As mentioned, the SMS methodology 

measures the on-road safety performance 

of each motor carrier in seven behavioral 

categories, the BASICs. Each BASIC consists 

of a group of actions or inactions by 

a motor carrier assembled from roadside 

inspection data and assigned numerical 

measures. Weighting schemes apply to the 

data that take many factors into account, 

such as the severity of a violation and how 

recently a violation occurred. The SMS 

methodology also applies a “utilization 

factor,” which accounts for the fact that 

certain carriers will have far more vehicles 

or use those vehicles more often than 

other carriers, which increases crash risk 

and inspection exposure, which, in turn, 

can increase the number of violations that 

inspections uncover. Violations associated 

with a higher risk of causing crashes 

receive higher scores because they receive 

greater weights, and the more recently the 

violations occurred, the more heavily the 

methodology weights them. 

For example, assume that a motor carrier’s 

most recent roadside inspection 

discovered a driver driving with a suspended 

license. This violation has a severity 

weight of 10. The carrier will have 30 points 

attached to its “driver fitness” BASIC score 

for six months after the violation. Thus, 

the more recently a violation occurs, or the

more severe the violation, the higher the 

sum of a carrier’s violations for this BASIC, 

at least temporarily. 

Additionally, a motor carrier’s overall 

total sum of time- and severity- weighted 

violations in the “driver fitness” BASIC 

will be divided by the total time weight of 

relevant inspections, meaning all inspections 

conducted by a Motor Carrier Safety 

Assistance Program (MCSAP) agency and 

reported to the MCMIS, with or without 

violations, and any other inspection resulting 

in “driver fitness” violations. Therefore, 

a carrier inspected more often than 

others that has more violations will have 

those violations count against it less in the 

“driver fitness” BASIC compared with a 

carrier with fewer vehicles on the road and 

subject to fewer inspections. 

Once the score for each motor carrier 

is calculated in a BASIC, if the SMS has 

sufficient data, discussed more below, the 

carrier is placed into a safety event group 

with motor carriers supposedly operating 

at similar levels in that behavioral category. 

Then an individual motor carrier’s 

BASIC score is compared with the other 

motor carriers in that safety event group, 

which will constantly change, and if that 

score is above a certain percentile of its 

peers, the FMCSA will subject that carrier 

to an intervention. The type of intervention 

for each carrier will vary depending 

on the violation severity and history, but it 

ranges from a warning letter to a full compliance 

review. 

The Seven BASICs 

The first BASIC is “unsafe driving,” which 

is intended to measure or to quantify the 

on-road operation of commercial motor 

vehicles in dangerous or careless manners. 

The violations grouped into this BASIC 

include speeding, reckless driving, and 

unsafe lane changing. FMCSR parts 392 

& 397. The violations are weighted based 

on the crash risk associated with each, 

from 1 to 10 with 10 assigned to the most 

severe. Additionally, the calculations apply 

a weighting scheme to the points in time of 

violations: 0–6 months × 3; 6–12 months × 

2; and 12–24 months × 1. For more detailed 

information about the complicated equations 

used to measure the BASICs, see Fed. 

Motor Carrier Safety Admin, U.S. Dep’t 

Transp., Safety Measurement System (SMS) 

Methodology, Version 2.1 (Dec. 2010) (explaining 

the SMS methodology and each 

calculation), http://csa.fmcsa.dot.gov/resources. 

aspx (select “SMS Methodology” in left navigation 

bar, then scroll to download the 

publication). 

Table 1 explains the utilization factor 

computation for straight trucks. The CSA 

program methodology tries to compare 

like- vehicles with like- vehicles in some 

ways, breaking them into two categories 

for some data scoring, straight trucks and 

combination tractor- trailers. 

Table 1. Unsafe Driving BASIC: 

Straight Segment 

Utilization Rate 

(VMT/Avg. PU) Utilization Factor 

200,000 1 

No recent VMT data 1 

The sum of the violations weighted for 

time and severity in this BASIC is divided 

by the average number of power units (PUs) 

that a carrier has on the road, then multiplied 

by a utilization factor that increases 

up to a value of three between 20,000 and 

200,000 miles traveled by that carrier for 

carriers that operate straight trucks, and 

up to a value of 1.6 between 80,000 and 

160,000 miles for carriers that operate 

combination tractor- trailers. Table 1 only 

illustrates the utilization factor computation 

for straight trucks. 

The second BASIC is the “fatigued 

driving (hours- of- service)” BASIC. Data 

about drivers who are found ill or fatigued 

and have hours- of- service violations are 

grouped into this BASIC. FMCSR parts 

392 & 395. Violation- severity weighting 

in this category is based on crash risk and 

ranges from 1 to 10, with an out- of- serviceviolation 

adding 2. Also, violations are time 

weighted according to this scheme: 0–6 

months × 3; 6–12 months × 2; and 12–24 

months × 1. See Fed. Motor Carrier Safety 

Admin, U.S. Dep’t Transp., Safety Measurement 

System (SMS) Methodology, supra 

(explaining the SMS methodology and each 

calculation). 

To calculate the “fatigued driving” 

BASIC, the sum of time- and severity- 

weighted violations is divided by the total 

time weight of relevant inspections, which 

is composed of all inspections conducted 

by a Motor Carrier Safety Assistance Program 

(MCSAP) agency and reported to 

the MCMIS, regardless of finding violations, 

and any other inspection resulting 

in fatigued driving violations. 

According to Dr. Gillette, the name of 

this BASIC, “fatigued driving,” is misleading 

since the conduct grouped into this 

category mainly is hours- of- service violations, 

not “fatigued driving.” There is only 

one violation that the methodology groups 

into this BASIC that has anything to do 

with fatigued driving and that is “driving 

while ill or fatigued.” The remaining behaviors 

sorted into this BASIC are log-book 

violations. An example given by Dr. Gillette 

is that if a carrier has a fatigued driving 

BASIC score of 80 percent, all the public 

might see when reviewing that information 

online, explained later, is that the company 

has 29 fatigued driving violations, but in 

actuality, the carrier’s drivers could have 

forgotten to fill out log books correctly in 

28 of the violations, and the company could 

have violated the allowable hours of service 

for the last, none of which have anything to 

do with fatigue. 

Four other BASICS are “driver fitness,” 

the category for violations relating to failure 

to have a valid commercial driver’s 

license or medical certification, FMCSR 

parts 383 & 391; “controlled substances/ 

alcohol,” the category for violations for 

on-road operation of a commercial motor 

vehicle while impaired by alcohol or drugs, 

FMCSR parts 382 & 392; “vehicle maintenance,” 

the category for violations for 

operation of a commercial vehicle without 

properly maintained brakes or lights, 

violations for other mechanical issues, and 

violations for failure to make required 

repairs, FMCSR parts 382 & 392; and 

“cargo- related measure,” the category for 

violations for improperly securing a load, 

retaining cargo, and handling hazardous 

material, FMCSR parts 392, 393, & 397 and 

hazardous material violations. The severity 

weighting that violations receive again 

is based on crash risk and range from 1 to 

10, with an out- of- service violation adding 

a weight of +2. Violations also are time 

weighted using the same formula as the 

“fatigued driving” BASIC time- weighting 


Trucking Law 

formula and are also normalized by the 

time weight of relevant inspections. See 

Fed. Motor Carrier Safety Admin, U.S. 

Dep’t Transp., Safety Measurement System 

(SMS) Methodology, supra (explaining the 

SMS methodology and each calculation). 

The seventh and last BASIC differs from 

the other six, and technically, it is not a 

BASIC at all. The “crash indicator” measure 

is designed to track crash histories 

and high-crash patterns as identified in 

state- reported crash records. Each crash 

is weighted in severity from 1 to 3, with 

crashes involving injuries, fatalities, and 

hazardous material releases having greater 

weights. Crashes also are time weighted. 

Additionally, final scores for the “crash 

indicator” measure take a utilization factor 

into account, the same utilization factor 

applied to the “unsafe driving” BASIC. 

See Fed. Motor Carrier Safety Admin, U.S. 

Dep’t Transp., Safety Measurement System 

(SMS) Methodology, supra (explaining the 

SMS methodology and each calculation). 

To calculate the “crash indicator” measure, 

the total time- and severity- weighted 

applicable crashes are divided by a carrier’s 

average power units multiplied by a utilization 

factor. 

Safety Event Groups 

Once a carrier’s score for each BASIC is 

computed, the motor carrier is placed in a 

safety event group and assigned a percentile 

based on how it compares with other 

carriers in that safety event group. So a carrier 

belongs to seven safety event groups, 

each corresponding to one of the seven 

BASICs. The FMCSA may subject a motor 

carrier to an intervention based on the carrier’s 

percentile if it exceeds an applicable 

threshold. Table 2 presents the applicable 

percentile thresholds at which the FMCSA 

may intervene due to BASIC rankings. 

However, the SMS methodology applies 

certain “data sufficiency standards” before 

assigning a percentile rank to a motor carrier. 

In other words, a motor carrier won’t 

receive a percentile rank in a BASIC until 


the SMS has sufficient data for the carrier 

in that BASIC. The “data sufficiency standards” 

differ for each BASIC but essentially 

require a minimum number of inspections 

within the previous two years. For 

the “crash indicator” measure, for example, 

a motor carrier must have been involved in 

two Department of Transportation (DOT) 

reportable crashes before it will receive a 

percentile in that BASIC under the methodology. 

In the remaining BASICs, a motor 

carrier must have undergone a specific 

number of inspections that resulted in 

applicable violations for that specific BASIC 

before the methodology will calculate and 

assign a percentile. 

For example, in the “fatigued driving” 

and “unsafe driving” categories, a motor 

carrier must have three inspections resulting 

in applicable violations before it will 

receive a percentile rank in those BASICs. 

In the “driver fitness,” the “vehicle maintenance,” 

and the “cargo- related” BASICs, 

a motor carrier must have five inspections 

finding applicable violations. Lastly, in the 

“controlled substances/alcohol” BASIC, the 

percentile ranking methodology requires 

only one inspection finding an applicable 

violation before a motor carrier will 

receive a rank. 

The specific, final percentile that a motor 

carrier receives varies by the BASIC and the 

number of applicable violations found for 

the carrier within the BASIC. The SMS assigns 

a motor carrier to a safety event group 

for a BASIC according to the number of violations 

recorded in the SMS in that BASIC 

for the motor carrier. In other words, motor 

carriers assigned to a safety event group all 

have BASIC violations numbering within a 

particular range for that BASIC. 

In the “unsafe driving” BASIC, the number 

of inspections with unsafe driving violations 

depends on whether a motor carrier 

operates straight trucks or combination 

tractor- trailers. As mentioned, the methodology 

tries to compare like- vehicles with 

like- vehicles in some ways. The methodology 

similarly differentiates between the 

Table 2. 

Basic General Haz M Passenger 

Unsafe Driving, Fatigued Driving (HOS), Crash Indicator 65% 60% 50% 

Driver Fitness, Drugs/Alcohol, Vehicle Maintenance, 

Cargo-Related 

80% 75% 65% 

two vehicle types for the “crash indicator” 

measure. The safety event group to 

which the SMS assigns a motor carrier for 

the “crash indicator” measure obviously is 

determined by the number of DOT reportable 

crashes in which a carrier has been 

involved. Tables 3 and 4 list the safety event 

groupings, based on violation numbers, for 

motor carriers operating straight trucks in 

two categories, “unsafe driving” and “crash 

indicator.” 

Table 3. Unsafe Driving BASIC: 

Straight Segment 

Number of Inspections 

Safety Event with Unsafe Driving 

Group 

Violations 

Straight 1 3–4 




Straight 5 50+ 

Table 4. Crash Indicator: Straight Segment 

Safety Event 

Group Number of Crashes 

Straight 1 2 




Straight 5 26 

In the “controlled substances/alcohol” 

BASIC, again the SMS methodology calculates 

percentiles after organizing carriers 

into safety event groups according to 

the number of on-road inspections finding 

controlled substances/alcohol violations, as 

specified in Table 5. 

Table 5. Controlled Substances/Alcohol 

BASIC Safety Event Groupings 


with Controlled 

Safety Event Substances/Alcohol 

Group 

Violations 

1 1 

2 2 

3 3 

4 4+ 

Table 6 explains the safety event groupings 

for the remaining BASICS, “fatigued 

driving,” “driver fitness,” “vehicle maintenance,” 

and “cargo- related,” again organiz-

ing motor carriers into groups according 

to the number of inspections with applicable 

violations found for a carrier in each of 

these categories. 

Table 6. Fatigued Driving, Driver Fitness, 

Vehicle Maintenance, Carglo-Related 

BASICS Safety Event Groupings 


Safety Event with Applicable 

Group 

Violations 

1 3–10 (Fatigued Driving) 

5–10 (all others) 

2 11–20 

3 21–100 

4 101–500 

5 501+ 

The FMCSA may identify interventions 

for motor carriers when they exceed 

the applicable thresholds for the specific 

BASICS within their assigned safety event 

groups. 

The SMS 

In addition to performing all these calculations 

and housing data for motor carriers, 

the SMS makes data for each motor carrier 

available to the public through the FMCSA 

website, displaying it in the format illustrated 

below. 

The display lists each BASIC individually 

with a corresponding on-road performance 

percentile score. If a motor carrier 

had some violations in a BASIC, the SMS 

will “flag” it with a golden triangle with 

an exclamation point inside, display in the 

“BASIC status” column for that BASIC. The 

flagging symbol will appear if a motor carrier 

exceeds the threshold or a motor carrier 

had a serious violation in that BASIC 

within 12 months of the calculation. Then 

FMCSA may subject that carrier to more 

monitoring or an intervention. The public 

cannot view the “cargo- related” BASIC and 

“crash indicator” measure, but the motor 

carrier to which the information refers and 

law enforcement can view those categories. 

Interventions and 

Safety Determinations 

Interventions under the CSA program can 

range from something as minor as a warning 

letter to a suspension of a motor carrier’s 

authority to operate. Other potential 

interventions include a targeted roadside 

inspection, a focused compliance review, a 

comprehensive onsite compliance review, 

and potentially, an out- of- service order. 

As mentioned, motor carriers with 

scores exceeding the thresholds outlined 

in this article will have a yellow triangle 

with an exclamation point inside as part of 

that BASIC record. The CSA refers to this 

as “flagging.” The motor carrier will then 

automatically receive a warning letter outlining 

the carrier’s score, what it means, 

and how the carrier can correct the identified 

problems. 

However, the method by which the 

FMCSA will determine each motor carrier’s 

safety fitness rating must go through 

the federal rulemaking process. Currently, 

motor carriers receive BASIC scores as 

described in the previous pages. Next, they 

will receive safety fitness ratings. We do 

not know yet how the FMCSA will determine 

those ratings, nor do we know what 

level of enforcement, if any, the FMCSA will 

assign to rating classifications. Currently, 

the FMCSA website and the CSA operational 

model diagram in this article use 

the terms “marginal” and “unfit” in relation 

to safety evaluations, from which we 

may infer that those terms could become 

safety fitness determination terms. After 

the FMCSA moves through the federal 

rulemaking process, if it decides to use 

those terms in safety fitness determination 

labels for motor carriers, you can bet 

that the plaintiffs’ bar will waste no time or 

effort exploiting those terms against motor 

carriers in litigation. 


Trucking Law 

Intervention and “Notice” 

With every “intervention” the plaintiffs’ 

bar can argue that a motor carrier received 

a level of “notice” regarding a potential 

safety issue. For example, if a motor carrier 

receives a warning letter as a result of 

its “vehicle maintenance” BASIC percentile 

rank, and if a plaintiff later sues the carrier 

over a motor vehicle accident alleging 

that a defective brake caused the accident, 

the plaintiff can allege that the motor carrier 

received notice of vehicle maintenance 

problems before the accident but did not 

take corrective action. 

Also, because time will lapse under the 

CSA operational model between collecting 

and analyzing data and finally issuing a 

warning letter, by the time that the FMCSA 

determines that a motor carrier should 

receive an intervention, that motor carrier 

may have already corrected a problem to 

comply fully with standards, perhaps even 

before it received a warning letter. 

Litigation Concerns 

Aspects of the CSA program have some 

troubling consequences for motor carriers 

in litigation. In particular, the safety event 

groups, the crash report data collected in 

the SMS, and cargo- related interventions 

can have some troublesome consequences. 

Revolving Safety Event Groups 

The safety event groups are designed to 

change on a rolling basis. This means that a 

motor carrier’s percentile score in a specific 

BASIC will change based on the actions of 

other carriers in that same group. 

According to Dr. Gillette, for example, if 

your trucking company safety event group 

for a BASIC has 100 companies, each company 

will receive a number between 1 

and 100. If your trucking company scores 

49 in that BASIC, and if another trucking 

company in your group that scores 83 

decides to fire its safety director and to 

hire a new one, over the next six months, 

its BASIC score may fall from 83 to 30. As 

a result, your score could increase from 49 

to 50 or 55. Once placed in a safety event 

group for a specific BASIC, each motor 

carrier’s score for that BASIC changes constantly 

as the SMS receives more data from 

additional inspections, or as time passes 

and corresponding time weights for violations 

decrease. If inspecting another motor 


carrier in your safety event group for a 

BASIC reveals a violation, its score for that 

BASIC will increase. Another motor carrier 

with a higher score than your score may 

have its score suddenly drop below yours 

just because six months passed and time 

weights on some of the other company’s 

violations decreased. 

If your company transfers into a different 

safety event groups next month because 

it adds 50 new trucks, even though the 

company has not done anything differently, 

your score could skyrocket or plummet 

depending on what other companies 

in your safety event group do. More than 

your own internal company operations will 

affect your company’s scores in the BASICs: 

what your neighbors and your competition 

do will impact your scores. The scores of 

the other motor carriers within your safety 

event group may drop and push your score 

over a permissible threshold, potentially 

subjecting you to an intervention. Dr. Gillette 

stated that in her opinion, the rolling 

safety event groups are “as close to a fatal 

flaw as CSA has.” 

Additionally, if a motor carrier transfers 

into another safety event group, for whatever 

reason, depending on how it ranks 

compared with the other motor carriers, 

the change alone could subject the carrier 

to an immediate intervention, and simply 

purchasing more trucks or undergoing 

additional inspections can precipitate 

a transfer to another safety event group. 

If one motor carrier with a score above 

the applicable threshold has its score drop 

below the threshold, that will push another 

motor carrier over the threshold, potentially 

subjecting that other carrier to intervention, 

and not necessarily because the 

carrier receiving the intervention failed to 

comply with safety standards. 

To prepare to handle potential litigation 

due to these rolling safety event groups, 

motor carriers and their attorneys must 

first understand why the FMCSA subjects 

a carrier to an intervention. For instance, 

did a score change because another motor 

carrier’s score changed? Next, a motor carrier 

should take preventive action every 

time it experiences an applicable violation 

that will end up in the SMS in a BASIC. A 

motor carrier and its attorney should plan 

to respond to any level of FMCSA intervention, 

even a warning letter, regardless 

of why the FMCSA intervened, even if that 

carrier experienced a percentile ranking 

change precipitated through no fault of 

the company. Promptly investigating and 

attending to an intervention initiated by 

the FMCSA, regardless of the level or the 

precipitating circumstances, will go a long 

way to curb litigation that may arise from 

a motor vehicle accident. 

Further, motor carriers and their attorneys 

need to understand that interventions 

caused by a rolling safety event group have 

some troubling implications for punitive 

damages. When a plaintiff is injured in a 

motor vehicle accident involving a tractor- 

trailer, his or her attorney almost invariably 

demands to see at least six months 

worth of the driver’s log books. If the plaintiff’s 

attorney finds many violations, those 

violations can support a claim for punitive 

damages. 

As the Supreme Court stated, 

The most important indicium of the 

reasonableness of a punitive damages 

award is the degree of reprehensibility 

of the defendant’s conduct. We have 

instructed courts to determine the reprehensibility 

of a defendant by considering 

whether:… the conduct involved 

repeated actions or was an isolated incident;… 

punitive damages should only be 

awarded if the defendant’s culpability, 

after having paid compensatory damages, 

is so reprehensible as to warrant 

the imposition of further sanctions to 

achieve punishment or deterrence. 

State Farm Mutual Automobile Ins. Co. v. 

Campbell, 538 U.S. 408, 419 (2003) (citing 

BMW of N. Am. v. Gore, 517 U.S. 559, 575 

(1996)) (emphasis added). 

The more instances of conduct that 

a plaintiff’s attorney can point to, the 

stronger the plaintiff’s claim for punitive 

damages becomes. The CSA data collection 

system will make greater amounts of motor 

carrier data more easily available to plaintiffs’ 

attorneys than in the past, so motor 

carriers’ attorneys must prepare to defend 

clients against plaintiffs asserting punitive 

damage claims. 

The Federal Circuit Courts have not spoken 

decisively on whether driver violations 

of FMCSA rules, such as hours- of- service 

rules, warrant awarding punitive damages 

to plaintiffs. However, if a motor carrier has 

several hours- of- service violations, a plain-

tiff’s attorney can allege that the violations 

support a claim that a carrier knew or encouraged 

drivers to operate beyond the allowable 

hours of service, or that the carrier 

did not have an effective procedure to monitor 

drivers’ hours- of- service compliance. 

Similarly, a plaintiff’s attorney can use violations 

found in a “vehicle maintenance” 

BASIC to support an allegation that a motor 

carrier either did not exercise due care in 

repairing and maintaining its fleet or altogether 

did not have an effective procedure to 

monitor its vehicles’ mechanical conditions. 

Imagine a motor carrier with multiple 

log-book violations recorded in the SMS in 

the “fatigued driving (hours- of- service)” 

BASIC. Even if the carrier complies fully after 

the fact, that carrier’s percentile in that 

BASIC may increase if other carriers improve 

in that category, and the carrier could 

receive a warning letter. Then, if a driver 

for the motor carrier has an accident and 

a plaintiff sues the motor carrier alleging 

fatigued driving as a cause, the plaintiff’s 

attorney will not only have access to “evidence” 

demonstrating previous instances of 

“fatigued driving,” but also a warning letter 

received by the carrier to support a claim for 

punitive damages, even though the carrier’s 

fatigued driving violations didn’t bring 

on the warning letter. In this scenario, the 

“allegedly repetitive conduct” could defeat 

a motion for a summary judgment on the 

claim for punitive damages, and at the very 

least, could compromise a motor carrier’s 

settlement position. 

Reportable Crashes 

Another major concern raised by the 

SMS methodology has to do with “crash 

accountability.” The SMS collects all reportable 

state and local DOT crash reports for 

the “crash indicator” category, all of which 

count against that particular motor carrier’s 

score regardless of the carrier’s actual 

fault. Thus, many crash scenarios may 

occur that do not even involve the conduct 

of a motor carrier’s driver that will increase 

the motor carrier’s BASIC score. For example, 

under this methodology, a truck driver 

stopped at a stop light who is rear-ended 

will be held accountable for a crash that 

he or she had nothing to do with. Or, if a 

truck driver is headed down a highway 

and another vehicle on the other side of an 

interstate kicks a tire over into the truck 

driver’s lane that hits the driver’s trailer, 

the truck driver, and therefore, the motor 

carrier, could have a reportable crash in 

their records. Dr. Gillette and others agree 

that the CSA should not use these types of 

crashes to judge a motor carrier, and they, 

along with individuals from the FMCSA, 

agree that the agency needs to find a way 

to expunge these types of crashes from a 

motor carrier’s record. 

Again, having additional “crashes” in 

motor carriers’ SMS records opens the door 

for the plaintiffs’ bar to question carrier 

safety procedures in front of a jury. Moreover, 

the more “crashes” in a motor carrier’s 

SMS record, the greater their potential 

exposure to punitive damages. 

Motor carriers and their attorneys must 

adopt systems to investigate and document 

all reportable crashes in the carriers’ 

SMS records and to take necessary 

corrective actions immediately. If a crash 

occurs that uncovers a violation relating 

to the driver’s log book, a motor carrier 

AREAS OF EXPERTISE 

• Construction Defect Evaluations 

• Construction Disputes 

• Moisture Intrusion Analysis 

• Roof Damage Evaluations 

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TO SUBMIT AN ASSIGNMENT: 

should investigate and consider adopting 

a policy of spot- checking driver log books 

for FMCSA compliance. Even if a “crash” 

occurs because a tire flies across an interstate 

and strikes a truck, the motor carrier 

should investigate, and if the motor carrier 

determines that nothing could have helped 

prevent the accident or corrective action 

is not necessary, then the motor carrier 

should document that conclusion. Keeping 

a proper paper trail will be the best way 

to combat the wealth of data concerning a 

motor carrier’s on-the-road performance 

that the FMCSA will make available to the 

public and to plaintiffs’ attorneys. 

Cargo-Related Problems 

A third major litigation concern for motor 

carriers is that the SMS methodology 

potentially will subject carriers to interventions 

for alleged violations relating 

to load securement and cargo. In many 

cases, a contract charges a shipper with 

FMSCA Evaluation

Writers’ Corner 

Social Proof 

Why Precedents Are Persuasive 

By Linda Morkan 

How is a legal brief like canned laughter? You know 

canned laughter: that annoying group laugh used on 

sit-coms and late-night talk shows, hinting to the home 

audience that something funny has occurred. Indeed, 

something absolutely hilarious, as proven by the fact 

that the studio audience is laughing and hinting that you 

should be, too. Come, laugh with the others! It’s funny, 

or else the others wouldn’t be laughing, right? 

In the social sciences, this is referred to as “social 

proof,” the phenomenon of looking at what other people 

think is correct to determine what is correct. In other 

words, we believe that when a lot of people do something, 

it must be the right thing to do. We find this a handy 

shortcut because following someone else’s lead requires 

less independent thought and judgment. 

Most of us know the laugh-track trick and, if we really 

thought about it, we could resist the subliminal message. 

After all, we like to judge for ourselves whether something 

is humorous, to be the arbiter of our own reactions. 

But, other times, we let our defenses down, and we succumb 

to the temptation to just go along. If everyone else 

is laughing, it must be funny. 

So by now you must be asking, “What in tarnation 

does the laugh-track trick have to do with great legal 

brief writing?” Think about our use of precedents as a 

persuasive tool and the answer is clear. We (as persuaders) 

dangle in front of our readers (the “persuadees”) 

the idea that they should do “x” because others have 

done “x.” We are using social proof as a tool of legal persuasion. 

“X” is correct because others also think “x” is 

correct. Voilà! Of course, because we engage in a more 

sophisticated type of persuasion, directed at experienced 

“persuadees,” it is usually not enough for us to simply 

point to other cases and walk away victorious. We expect 

to analyze the precedents that we rely on, pulling them 

apart and drawing out the similarities between a representative 

case and the case under consideration. The 

more similarities that we can show, the more persuasive 

the precedent will become. It is as if we are saying, 

“Look!” [waving case] “This case is just like the one you 

have to decide, and the judge in this case did just what 

we think you should do here.” The more you can support 

■ Linda Morkan is the chair of the appellate practice group in the Hartford, Connecticut, 

office of Robinson & Cole LLP. A longtime member of DRI’s Appellate Advocacy 

Committee, Ms. Morkan is also a member of the American Academy of Appellate 

Lawyers and was recently named Hartford’s “Appellate Lawyer of the Year.” 


your premise that the two cases are “just alike,” the more 

likely you are to succeed. 

There is no gainsaying how important precedents 

are in legal writing. Indeed, even in cases which involve 

statutory interpretation—when the text of a statute 

should be the primary area of focus—you will instead 

see briefs begin with a discussion of cases which have 

already interpreted that particular statutory provision. 

It is almost as if lawyers think that the most important 

information to impart to a judge is: “This has been done 

before, and this is how it was done.” 

This leads to a second observation about the importance 

of precedents. Whereas the theory of social proof 

explains why judges find precedents persuasive—both 

local and foreign—we all know that judges find cases 

decided in their home jurisdictions the most persuasive. 

Again, social science has an answer to explain this: We 

each have an innate desire to be consistent. 

The human desire for consistency is a powerful tool 

of influence. Once we have committed to a position, we 

have an almost overwhelming urge to portray that action 

as the “right” choice. People will go to great lengths 

to keep their thoughts consistent with what they have 

already decided. On a micro-level, this means that individuals 

have a deep-seated desire to take the same position 

that they have taken before. On a macro-level, this 

means that a court is impelled to the same conclusion 

that it has reached before. So, whether you knew it or 

not, you have been playing to a judge’s innate bias when 

you use precedents from his or her own home jurisdiction 

or, even better, from his or her own pen. 

Needless to say, attorneys can abuse these forms of 

subliminal persuasion. Using a precedent to lead a court 

to a conclusion that is not really justified by that precedent 

can lead to a less than ideal result, just as blind 

conformity can lead societies to commit or accept atrocities. 

What makes social proof so useful—its ease of reference—is 

also its Achilles’ heel. 

So it is most fortunate that, in most of our advocacy, 

we have attorneys on both sides of a dispute. If one lawyer 

tries to stretch a precedent beyond its natural elasticity, 

his or her opponent can warn a judge and keep that 

judge from too quickly succumbing to social proof. We 

also have experienced jurists, some might even say suspicious 

or cynical jurists, who are not easy marks and 

know that sometimes canned laughter is just masking a 

joke that isn’t really very funny.

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ThInk gLObaLLy 

10 Tips 

Obtaining Evidence Successfully in 

Canada to Use in a Foreign Proceeding 

By Richard McCluskey and Lisa Parliament 

With an increasing number of cross- border transac- the interests of justice. To the extent possible, a letter of 

tions occurring in today’s marketplace, evidence rele- request should make it clear that justice cannot be served 

vant to a dispute in one jurisdiction can be located on the between the parties without the Canadian evidence. It 

other side of a border. When relevant documents or wit- should also explicitly state that the requester needs the 

nesses find themselves within Canada, foreign litigants evidence for pending rather than anticipated litigation. 

will need to initiate the two-step process for obtaining 3. Identify the evidence sought with reasonable 

evidence abroad through a mechanism known as a “let- specificity. A Canadian court may not enforce a letter 

of request.” First, a party seeking to compel Canadian ter of request if the information seeker does not clearly 

evidence must bring an interlocutory motion or applica- identify the information. Canadian courts have consistion 

before the court in which the litigation is pending to tently refused requests that amount to fishing expedi- 

have that court issue a letter of request. Second, the party tions. However, Canadian courts may enforce overbroad 

must bring an application before a court in the Cana- requests in part, and they may enforce more restricted 

dian jurisdiction where the evidence is located seeking forms of requests outlined in the letters. To increase the 

an order enforcing the letter of request. 

odds that you will achieve successful enforcement, a let- 

While Canadian courts have discretion regarding ter should list the documents sought by class or cate- 

enforcing letters of request, they are usually inclined to gory, at a minimum. 

show deference to a foreign court’s request in the inter- 4. Explain why the evidence is not otherwise 

ests of promoting comity. That said, Canadian courts obtainable. If the information sought is available in the 

have also made it clear that when they have applica- foreign jurisdiction, by which here we mean someplace 

tions for orders enforcing letter of requests before them, other than Canada, the Canadian court probably won’t 

they will not rubber- stamp them, and Canadian courts enforce a letter of request. Similarly, a requesting party 

should not enforce letters of request routinely. 

should first attempt to obtain the documents voluntarily. 

Below we offer 10 practical tips for foreign litigants And Canadian courts will require more than bare asser- 

to make obtaining evidence in Canada as smooth a protions that evidence is otherwise unavailable. 

cess as possible. 

5. Ensure that a request does not contravene 

1. Establish with sufficient detail that the evi- Canadian public policy. Courts will not enforce letdence 

sought is relevant. Canadian courts will only ters that are manifestly unjust or immoral. A Canadian 

enforce letters of request when the evidence sought is court asked to enforce a letter of request will also weigh 

obviously relevant to the foreign litigation. Canadian whether the evidence is necessary against the proposed 

courts interpret relevance narrowly, and potential rel- order’s impact on Canadian sovereignty. Courts are speevance 

is insufficient. A Canadian court will consider cifically loath to enforce requests that amount to extra- 

whether the requested evidence is squarely related to the territorial applications of foreign policy objectives. 

allegations set out in the foreign pleadings. 

6. Ensure that a request is not unduly burden- 

2. Demonstrate that the evidence is necessary for some. Take steps to minimize inconveniencing the per- 

pretrial discovery purposes or for a trial. A Canadian son or entity from which you seek evidence. A Canadian 

court will consider whether the evidence is necessary to court will evaluate the burden placed on a non-party witness 

and compare it with the probative value of the evi- 

■ Richard McCluskey is an associate in the Litigation and Dispute Resolution dence. The more onerous the request, the less likely a 

Group at McMillan LLP in Toronto. He maintains a broad civil and commercial lit- court would grant it. 

igation practice and is developing expertise in cross- border litigation. Lisa Par- 7. Consider whether you are making a documenliament 

is a partner in McMillan’s Litigation and Dispute Resolution Group, with tary request or a request to examine a witness. In 

expertise in product liability and class action defense. She regularly advises lead- general, a Canadian court will consider the same factors 

ing companies on multijurisdictional coordination and cross- border issues, risk whether enforcing a documentary request or a request to 

assessment and management, and litigation management. Think Globally

Cell Phone, from page 30 field exposure as it develops, to stay on the 

phone radiation case stated that “state-law 

claims would upset the balance” of safety 

and efficiency struck by the FCC standards. 

Amicus Curiae Br. of United States & Fed. 

Comm. Comm’m, Murray v. Motorola, Inc., 

982 A.2d 764 (D.C. 2009). In the future, 

courts likely will defer to this agency determination 

of conflict with state laws. See 

Williamson v. Mazda Motor of Am., Inc., 

131 S. Ct. 1131, 1139 (2011). 

Conclusion 

Though cell phone radiation litigation probably 

will not succeed, attorneys representing 

defendants and potential defendants 

can and should nonetheless recommend 

the following two measures to reduce 

exposure. 

First, recommend that potential defendants 

continue to follow the science on the 

hazards of radiofrequency electromagnetic 

Falling asleep, from page 70 

enforce the 70-hour rule could result in 

sloppy logging of on-duty time with the 

concomitant risk of exceeding the time 

limitation, thus causing fatigue.” Id. This 

was enough for the court to send the punitive 

damages decision to the jury. Id.; see 

also Came v. Micou, 2005 WL 1500978, at 

*5 (M.D. Penn. Jun. 23, 2005) (“failure to 

conduct any investigation into [the driver’s] 

hours of service… constitutes reckless 

indifference to the rights of others”); McAchran, 

2009 WL 888539, at *6 (reversing a 

summary judgment on the punitive damages 

claim in favor of the defendant and 

remanding the case for trial on punitive 

damages in part because the carrier “failed 

to take any actions to ensure specifically 

that [the driver] did not violate the federal 

regulations regarding maximum allowable 

hours of service”); Innovative Container 

Company, LLC v. Son Light Trucking, Inc., 

2006 WL 895021, at *8 (D.S.C. Apr. 3, 2006) 

(finding the motor carrier “exhibited a conscious 

indifference to the consequences of 

exceeding the hours- of- service requirements 

by putting a tired driver on the road 

and destroy[ing] the logbooks to prevent 

uncovering this information”). 

Courts view a motor carrier’s failure to 

monitor HOS compliance as “send[ing] a 

message to drivers that hours of service 

cutting edge of consumer safety. And recommend 

that potential defendants also 

document their consumer safety efforts informed 

by the science. While this science 

now does not appear to establish a link between 

radiofrequency electromagnetic field 

exposure and adverse health effects, conceivably 

the prevailing scientific view could 

change. In that event, defendants that could 

point to a record of inquiry into and adherence 

to state-of-the-art safety standards 

would have a potent defense during trials. 

Second, when representing defendants 

in state courts, defense attorneys should 

consider removal. Some states have more 

lenient standards for the admission of 

expert testimony, raising the possibility 

that a court could admit as evidence the 

questionable science cited in the IARC 

report. The IARC does plan to release a longer 

version of the report, although it prob- 

violations were acceptable conduct.” Trotter, 

2006 WL 1004882, at *7. Clearly, the 

goals of deterrence and punishment underpin 

these decisions. 

A related but separate reason courts 

permit juries to consider levying punitive 

damages against a motor carrier is that 

the carrier provided incentives to its drivers 

to work long hours or forego adequate 

rest. For instance, in Briner, the court criticized 

the livestock carrier’s payment system, 

which paid its drivers a percentage of 

the gross truck revenue. Briner, 337 N.W.2d 

at 868. The greater the number of truckloads, 

the more the drivers earned. Id. If 

a driver could not make it to a loading site 

early in the morning, then loading the livestock 

would be put off until another day. Id. 

Thus, a driver had “great incentive to arrive 

by early morning.” Id. Because the court 

found that the carrier was “fully aware of 

the habits of [its] drivers,” it overturned the 

motion for a summary judgment in favor 

of the defense and remanded the case for a 

jury trial on punitive damages. Id. 

As mentioned briefly above, if the case 

facts suggest that profits may trump safety 

for a carrier, a court will likely permit a 

jury to consider awarding punitive damages. 

Trotter offers one striking example: 

the carrier’s director of safety explained 

during his deposition that “my own gut 

ably will not include anything that would 

make the IARC cell phone findings more 

credible evidence. See Press Release 208, 

IARC Classifies, supra, at 1; Baan, et al., 

supra, at 624. 

Also, federal courts tend to rule on 

issues of preemption more frequently that 

state courts. Given federal courts’ relative 

familiarity with preemption doctrine, it is 

more probable that they will rule that federal 

law preempts a radiofrequency electromagnetic 

field lawsuit. 

In sum, although it appears unlikely at 

this point that those involved in mobile 

telephony will incur significant liability for 

personal injuries caused by radiofrequency 

electromagnetic field emissions, defense 

attorneys advising those parties would do 

well by those clients by preparing them to 

defend themselves on the general causation 

front, given the potential number of claimants. 

reaction, if you will, was that money took 

precedent over safety” for the carrier. 2006 

WL 1004882, at *7. The court explained 

that “‘[m]oney [taking] precedent over 

safety’ is virtually the definition of the 

kind of corporate behavior warranting an 

award of punitive damages.” Id. 

A less common reason courts will permit 

juries to consider awarding punitive 

damages is that a carrier had knowledge of 

a driver’s history of a fatigue problem and 

failed to address it adequately. For instance, 

in Matthews, the bus driver was involved in 

a previous, fatigue- related accident while 

employed by the company, and the company 

didn’t complete the background check 

on the driver, failing to get a report concerning 

the driver’s previous employment 

that it had requested but didn’t receive, 

which would have revealed that the driver 

had two other fatigue- related accidents. 

882 F. Supp. at 149. This was sufficient to 

defeat a summary judgment motion on 

the punitive damages claim. Id. In Came, 

the fact that the carrier knew about one 

of the driver’s previous accidents involving 

fatigue, and should have known about 

two other previous accidents involving 

fatigue, contributed to the court’s decision 

to deny a summary judgment request on 

the punitive damages claim. Came, 2005 

WL 1500978, at *5. 


Attorneys defending motor carriers in 

lawsuits will want to note that if a court 

finds that a driver’s conduct did not rise 

to the level of culpable conduct warranting 

punitive damages, it will likely find 

the same for the carrier as well, even if 

a plaintiff asserts direct claims against 

the carrier. See, e.g., George, 708 S.E.2d at 

208 (“because we conclude that [plaintiff] 

offered an insufficient forecast of evidence 

that [the driver] engaged in willful or wanton 

conduct, we likewise conclude that 

there was an insufficient forecast of evidence 

that Greyhound participated in or 

condoned [the driver’s conduct]”); Burke, 

904 F.2d at 184 (“Since the evidence is 

insufficient to allow an award of punitive 

damage against [the driver], it follows that 

no punitive damages can be awarded vicariously 

against [the carrier].”). 

Think Globally

Q: 

Wal-Mart v. Dukes 

Who takes a stand on the cases that 

matter most to you, your firm and 

the defense bar? 

“Allowing hundreds of thousands (and now over a million) of 

individuals to file a singular, overly generalized claim clearly 

disregards the requirement of individualized proof. While we hope 

justice is served for anyone who faces discrimination, this enormous 

aggregation of truly disparate claims could not result in any kind of 

just and fair ruling.” 

—R. Matthew Cairns, Immediate Past President of DRI 

AAAAAmmerican American Electric El Power Company v. 

State Stat of Connecticut 

“Singling out these five utility companies is legally dubious and 

an ill-suited avenue for tackling global warming issues. The 

Supreme Court’s review of this case should reinforce and clarify 

existing precedent on the appropriate roles for the courts, 

legislature, and regulatory bodies in climate change issues.” 

—John Parker Sweeney, Second Vice President of DRI and 

Ocer Liaison to the Climate Change Litigation 

Task Force 

A: DRI—taking 

on the 

issues that matter. 

■ American Electric Power 

Company v. State of 

Connecticut 

■ AT&T Mobility v. Concepcion 

■ E.P.J. Fund v. Halliburton 

■ Greenwood v. CompuCredit 

■ Harvey and Mowdy v. KAG 

West and Kennan Advantage 

Group Inc. 

■ Matrixx Initiatives v. Siracusano 

■ Minneci v. Pollard 

■ Philip Morris USA Inc. v. Jackson 

■ Wal-Mart v. Dukes 

■ White and Case v. United States 

of America 

www.dri.org

FMSCa evaluation, from page 77 Smith v. N. Dewatering, Inc., 2004 U.S. Dist. tions, motor carriers must proactively seek 

loading and sealing the cargo, especially Lexis 2648, at *6 (D. Minn. Feb. 19, 2004). the ability to inspect, verify, and potentially 

when a motor carrier will haul a hazard- However, despite this, in many cases a even load the cargo that they will ship. 

ous material. Also, contracts often prohibit shipper is the entity that loads and secures 

a motor carrier’s employees and drivers the cargo, leaving the motor carrier to take Conclusion 

from breaking the cargo seal. However, the the majority of blame for any related negli- In conclusion, the CSA program involves 

CSA methodology still holds the motor cargence. Law enforcement may break a cargo comprehensive data gathering and measurrier 

accountable for load securement viola- seal to inspect it, and if an officer finds ing methodology to evaluate and rate each 

tions or anything else that the shipper did violations, a motor carrier’s BASIC score individual motor carrier based on its per- 

incorrectly. 

may increase due to the shipper’s failure. formance in many different fields of safety 

Federal regulations “place the burden of And in cases involving hazardous material compared with relevant peers. However, it 

load securement upon the carrier. See 49 releases, the potential for punitive damages will make more data available to the public 

C.F.R. §§390–393 (2002). These regulations may be high. 

and to plaintiffs’ attorneys than in the past, 

require carriers to inspect whether cargo Dr. Gillette believes that in the future so motor carriers must proactively monitor 

is properly distributed and adequately many motor carriers may seek contractual their own safety status, immediately inves- 

secured both before driving a truck and requirements permitting their drivers to tigating violations and crashes and taking 

during transport. (See 49 C.F.R. §392.9(b); physically inspect cargo before agreeing to corrective action. Properly investigating 

Smart v. Am. Welding & Tank Co., 149 N.H. transport loads, or they many seek adden- and responding to safety concerns, will 

536, 826 A.2d 570, 573–74 (N.H. 2003)). dums to contracts to protect themselves. permit motor carriers to combat attempts 

Thus, under federal law, responsibility for Since federal law holds motor carriers to use the tools and conclusion of the CSA 

improper loading generally rests with the responsible for load- securement shipper against them in litigation. 

carrier, even if the shipper loads the cargo.” negligence and other cargo- related viola- 

Mexico, from page 65 

ipated in the 2007–2009 Demonstration 

Project are to be exempt from 

payment of the application fee. 

2. All Mexican- domiciled motor carriers 

that wish to participate in 

international freight cross- border 

trucking services in the U.S. are to 

undergo a Pre- Authorization Safety 

Audit (PASA) performed by FMCSA, 

in accordance with Title 49 of the 

U.S. Code of Federal Regulations 

(CFR), Part 365, as may be amended. 

The PASA will include the following, 

in addition to any other requirements 

set out in the Federal Motor 

Carrier Safety Regulations (FMC- 

SRs): … 

Id. at Annex 1. 

Annex 1 continues in some depth, establishing 

driver national security and criminal 

background checks, exclusion criteria 

set forth by the U.S. Customs and Border 

Protection of the U.S. Department 

of Homeland Security, communication 

between the parties’ security agencies, 

record inspection and review regarding 

performance data and safety management 

programs, alcohol testing, compliance with 

hours- of- service rules, and other regulations 

that U.S. trucking companies must 

abide by. 


On its face the 2011 MOU appears to regulate 

Mexican truck drivers and companies 

using safety and reporting obligations recognized 

by the U.S. Department of Transportation. 

See id. 

The Impact of the 2011 MOU 

on Safety and Small 

Trucking Businesses 

As the borders become easier for Mexican 

trucking companies to cross, so too 

will it become easier to overcome the hurdles 

that have hindered efficiently transporting 

and shipping Mexican products 

to the United States. Trucking analysts 

on all sides have expressed opinions on 

the effect that the 2011 MOU will have 

on small trucking companies. Not surprisingly, 

perhaps the loudest argument 

against cross- border trucking has foreseen 

danger to the American worker and small 

business owner, using the oft-raised specter 

of cheaper Mexican labor undercutting 

its American counterpart. They argue 

that this will result in, among other things, 

American workers losing jobs to Mexican 

trucking, or lowering wages for American 

workers. The AFL-CIO, the largest federation 

of unions in the United States, for 

example, views it as unfair to U.S. workers 

and corporations unless the pilot program 

added provisions that would require signa- 

tory countries to adjust wages upwards and 

raise labor and environmental standards. 

Does that argument hold water? Supporters 

of NAFTA and cross- border trucking 

will say no, even though U.S. employment 

rose from 110.8 million people in 1993 to 

137.6 million in 2007, which roughly covers 

the period during which NAFTA took effect 

and its originally scheduled full implementation, 

an increase of 24 percent. But the average 

unemployment rate was 5.1 percent 

from 1994–2007, compared to 7.1 percent 

from 1980–1993. Additionally, U.S. business 

sector real hourly compensation rose 

by 1.5 percent each year between 1993 and 

2007, for a total of 23.6 percent over the full 

period. During 1979–1993, the annual rate 

of real hourly compensation rose by only .7 

percent each year, or 11 percent over the full 

14-year period. See NAFTA Facts, NAFTA— 

Myth vs. Fact, supra. 

Another common argument against 

Mexican cross- border trucking is that 

Mexican safety standards do not match 

those of domestic carriers, thereby making 

them unsafe, or at the very least, less safe 

than American trucks. Opponents argue 

that Mexican trucking companies have 

lower safety standards, employ “more dangerous” 

drivers, do not have proper insurance 

policies, and could become a source 

of increased congestion and accidents on

American roadways. A simple Internet 

search of “Mexican Trucking Safety” brings 

up countless websites decrying the opening 

of the border as the end of days. 

The evidence, however, may not bear this 

out. Mexico has 1,309 trucking companies 

that the United States exempted from the 

1982 moratorium. Of the exempted companies, 

859 actively crossed the U.S. border 

from 2003 to 2006, and United States subjected 

their drivers and trucks to inspections 

for violations that would put them 

out of service until corrected. The “out- of- 

service” rates for long-haul Mexican trucks 

Reprehensibility

may decide that failing to take this action 

constitutes more reprehensible conduct— 

particularly if a defendant knew that the 

product was, in fact, defective, and did not 

try to make the product safer. 

Conclusion 

The U.S. Supreme Court’s project of establishing 

constitutional rules for punitive 

damages awards is not yet complete. The 

law particularly needs to resolve the mis- 


match between the factors that the Court 

has identified for assessing reprehensibility 

in economic tort cases with the typical facts 

at issue in product liability cases. The work 

must begin in the lower courts. In states 

where juries have the first-line responsibility 

to ensure that reasonable punitive damages 

verdicts prevail, trial courts should 

take the first step of providing suitable 

instructions that recast the reprehensibility 

factors along the lines outlined above. If 

juries return verdicts that include punitive 

damages awards, both trial courts and appellate 

courts should review those verdicts, 

taking manufacturers’ design and post- 

design conduct into account. And counsel 

must attempt to convince these courts 

that they should not reflexively use a set of 

factors that the U.S. Supreme Court never 

intended as exclusive and applicable to all 

cases, and which, in product liability cases, 

at least, are a poor fit. 

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Pennsylvania 

Bonnie S. Stein, Morrisville 

Maria L. Panichelli, 

Philadelphia 

Terence M. Pitt, Philadelphia 

Adam S. Ennis, Pittsburgh 

Edward A. Smallwood, 

Pittsburgh 

Puerto Rico 

Edna M. Tejeda, Hato Rey 

Rhode Island 

Kevin J. Gallagher, 

Providence 

Andrew J. Murray, 

Providence 

South Carolina 

J. Bennett Crites III, 

Charleston 

R. Daniel Addison, Columbia 

Curtis Dowling, Columbia 

Joseph A. Rhodes, Jr., 

Greenville 

South Dakota 

Brooke Swier Schloss, 

Avon 

Heather Lammers Bogard, 

Rapid City 

Meghann Joyce, Sioux Falls 

Tennessee 

Robert Scott Durham, 

Knoxville 

Matthew G. White, Memphis 

Texas 

Jacquelyn V. Clark, Dallas 

Abigail A. Mathews, Dallas 

Sarah L. Rogers, Dallas 

Josh N. Bowlin, Houston 

Joshua W. Mermis, Houston 

Utah 

Matthew C. Ballard, 

Salt Lake City 

Stewart O. Peay, 

Salt Lake City 

Vermont 

Jon T. Alexander, Burlington 

Nicole Andreson, Burlington 

Sean M. Toohey, Burlington 

Virginia 

Angela B. Axselle, 

Glen Allen 

M. Andrew Boran, Norfolk 

Virginia 

J. David Crain, Norfolk 

Washington 

Meredith E. Dishaw, Seattle 

Aimee N. Maurer, Spokane 

West Virginia 

Joseph T. Cramer, Charleston 

Suleiman O. Oko-ogua, 

Charleston 

Shannon Smith, Morgantown 

Justin M. Hershberger, 

Wheeling 

Wisconsin 

Laura M. Lyons, Madison 

Spencer E. Davczyk, Wausau 

australia 

Queensland 

Mark V. Victorsen, 

Brisbane 

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