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43 Brief 62 (2013-2014)
Evidentiary Issues in Trucking Cases

handle is hein.journals/tbrief43 and id is 268 raw text is: PRACTICE TIP Evidentiary Issues in Trucking Cases By Anthony J. Novak According to the Federal Motor Carrier Safety Administration (FMCSA), in 2011 there were 273,000 police-reported crashes involving large trucks.' Of these crashes, 3,341 (1 percent) resulted in at least one fatality, and 60,000 (22 percent) resulted in at least one nonfatal injury. Like any other types of accident, more trucking crashes create more truck- ing litigation. There are, however, certain evidentiary issues unique to trucking cases that attorneys should keep in mind from the outset. This article focuses on four issues of significant importance: spoliation of evi- dence, event data recording, admissibility of driving history, and FMCSA safety rating systems. Spoliation Spoliation is the intentional or unintentional failure to preserve evidence that is relevant to a legal pro- ceeding. As a defense lawyer in a trucking accident, opposing counsel will often attribute the destruction or manipulation of evidence to your client, so it is impor- tant for industry members to understand the rules and repercussions surrounding spoliation of evidence. 62 THE BRIEF m SUMMER 2014 The laws and applicable standards vary among the states. In states like Mississippi, if evidence is missing, a driver must prove the evidence is absent for a justi- fied reason (e.g., natural disaster).' If the facts show the evidence was deliberately or negligently destroyed, the court will instruct the jury to assume or infer the miss- ing evidence is unfavorable to the driver. Along with this negative presumption, the court may impose disci- plinary or discovery sanctions, criminal penalties, and contempt of court.' This scenario occurred recently in Texas. After an unrelated accident, the plaintiff exited his car and was on the roadway when the defendant's truck struck and killed the plaintiff.' The truck then continued driving approximately 1,400 miles to a different state, where the driver replaced the truck's two front tires-the car- rier authorized and paid for the replacement. After the original tires were removed, they were lost.6 Finally, the driver abandoned the truck in a parking lot in California. The carrier retrieved the truck and took it to one of its yards, where it sat outdoors for three months. During that time, the carrier's lawyer and investigator allegedly inspected the truck and removed substances from its body.' The Texas district court held that spoliation had occurred and struck down all of the defendants' pleadings and defenses in regard to liability.' Plaintiffs often send letters to defense attorneys in an effort to record their attempts to preclude any acts of spoliation. In these letters, the plaintiff asks the defendant to maintain evidence relevant to a con- templated case. However, these letters often make the mistake of asking the defendant to maintain an unnecessary or cumbersome amount of documents. These unnecessary requests often contain categories of information that in no way affect the litigation or underlying issues. Defense attorneys should compare the request to their client's company policy for reten- tion of documents and FMCSA regulations and ensure all documents required to be retained by the policy and regulations are retained. Lastly, the defense should respond to this letter with its own letter, request- ing that the plaintiff maintain certain documentation and inform the opposing party when repairs need to be made to the plaintiff's vehicle, and expressing the client's refusal to comply with any cumbersome and unnecessary portions of the plaintiffs requests. This response letter could preserve relevant evidence and show the opposing party's request was immediately believed to be overly burdensome. Regardless of the posturing, both defense and plain- tiffs attorneys should take all necessary steps to avoid spoliation of evidence, as it could have an adverse effect on both parties. TORT TRIAL & INSURANCE PRACTICE SECTION

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