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Tired Trucker Suit Settles for $9.5 Million

Lawyers Weekly USA, February 2, 2004, By Natalie White

Tired Trucker Suit Settles for $9.5 Million
Bank Card Records Help Seal Victory

An unnamed trucking company has agreed to pay $9.5 million to the family of a 15-year-old Missouri girl who was killed when a semi tractor-trailer hit the pick-up truck she was riding in head-on.

It is the fourth settlement arising from the August 2001 crash that killed five people, said Brian McCallister, who represented the teenager’s family along with Grant Davis and Scott Bethune. The case was settled confidentially in November with an agreement that the names of the defendants would not be disclosed.

McCallister said he believes the plaintiffs have been so successful in these suits because they worked together to build their case against the trucking company.

The driver of the truck – an independent driver who owned the vehicle – leased himself and his equipment to a larger trucking company. He was hauling a load of beef on I-70 near Kansas City, MO, when he lost control of the truck. It crossed the median and barreled the wrong way down the highway at 70 mph, smashing into a pick-up truck that was hauling a horse trailer. The five passengers, who were returning from a horse show, died. The semi driver survived.

A year after the accident, the driver was acquitted of criminal manslaughter. But the accident spurred five civil suits against the trucking company.

“Tired truck drivers are the number one reason for fatal truck wrecks. It’s a real safety problem in the US and one that needs to be solved,” said Grant Davis, lead attorney for the plaintiffs.

Defense attorney Patrick K. McMonigle declined to comment about the case.

By using an aggressive approach in discovery and sharing information among the plaintiffs, McCallister was able to uncover bank card data and other evidence that helped show the company could have and should have kept accurate track of the driver’s hours but didn’t bother.

“We had consolidated discovery in all five cases. We were hitting the defendants from every side, every angle. We asked for that early on, and the judge agreed. We got a lot of information and we only had to take the deposition of people one time for all five cases,” McCallister said.

Using the band card data, which showed the date, time and location of gas and other purchases, McCallister said, the plaintiffs’ experts were able to calculate that this driver drove at least 10 hours more than the 60 hours allowed by law for a driver in a seven-day period.

McCallister said the girl’s parents argued that the truck driver fell asleep at the wheel and that the company knew he routinely drove more than the maximum number of hours allowed by federal laws, which were enacted to prevent driver fatigue.

Federal regulations allow truckers to drive up to 10 hours a day and also limit the total number of hours for any seven-day period to 60 hours. However, McCallister said truckers are paid by the load which provides incentive for them to drive as many hours as possible in as little time as possible.

The defense claimed the company could not have prevented the crash because the driver lost consciousness in a coughing spell that created an episode called “cough syncope,” in which the blood supply to the brain is momentarily stopped, causing a blackout or fainting spell.

This was the same defense used in the criminal trial, which ended in acquittal. However, the judge in the case said he didn’t completely “buy” the coughing defense, but could not convict because he didn’t think the prosecution proved the driver’s action rose above the level of simple negligence.

The key difference, McCallister believes, is that the prosecution did not have the bankcard evidence that allowed them to prove the trucker willfully violated driving time limits and that the trucking company purposefully looked the other way.

However, McCallister said the defense argument was weak considering that this driver had been caught incorrectly recording his hours in the past.

The bankcard data proved to be strong evidence, McCallister said. The trucking company provided employees with the Comdata bankcards and received information from Comdata bankcards that would allow them to easily track their drivers’ movements and thereby calculate their hours.

In depositions, Comdata said one of their selling points to trucking companies is that they can monitor the drivers more closely and audit their hours. McCallister said that although the trucking company had access to the Comdata information, it did not use it to audit its drivers, not even drivers whose logs (drivers are now supposed to log and report driving hours) had come into question in the past- as this driver’s had.
“This driver was someone who had a history with this company and had problems with his logbook before. They definitely should have been keeping a better watch on him and they could have used this information to do that. But they just didn’t bother,” McCallister said.

He said that the trucker routinely compressed times and distances entered in his logbooks so it seemed he worked fewer hours and his books would pass muster when checked by the company.

McCallister argued that the company had a responsibility to probe deeper and double check logbooks. In addition, the trucking company had been fined by the federal government in the past for not keeping driving hour information and had been found in violation of that regulation several times, McCallister said.

“They are required to keep dispatch records for six months but they were destroying them after several days instead. They were thumbing their noses at the federal government,” he said.

The two focus groups the plaintiffs’ lawyers used were most concerned by the fact that the company wasn’t keeping information required by the federal government and it wasn’t using the Comdata information to audit its drivers.

The focus groups were also struck by the written test the driver was required to take before he was hired. On it was a statement that drivers are required to log all activities truthfully and honestly, asking for a true or false response.

“He circled false,” said McCallister, “Yet they hired him. As a practical matter, he probably just made a mistake or misunderstood the question but when you combine that with the rest of the facts of the case, the focus group just gaped. We knew we had a very large verdict in the making.”

“The amounts of the first three settlements are confidential,” said McCallister. In this settlement, the plaintiffs agreed not to publicly use the name of the case but the amount of the settlement and other details of the case are not considered confidential.

Plaintiffs’ Attorneys: Grant L. Davis and Scott S. Bethune of Davis Bethune & Jones in Kansas City, MO.: Brian F. McCallister of The McCallister Law Firm in Kansas City, Mo.

Defense Attorneys: Patrick K. McMonigle of Dysart, Taylor, Lay, Cotter & McMonigle in Kansas City, Mo.

The Case: Doe v. ABC Trucking Co.; Circuit Court of Jackson County Mo.; Judge Marco A. Roldan.