rapid response article ftd december 2011

T r u c k i n g L a w

50 ■ For The Defense ■ December 2011

■ Durward D. Casteel and Aaron J. Messer are trial attorneys at Casteel & Associates in Baton Rouge, Lou-isiana. 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 acci-dent reconstructionist’s role in responding to a catastrophic accident, and the engineers at Delta [V] Foren-sic Engineering for their input into the electronic data section of this article.

Rapid Response Teams Investigation of Catastrophic Accidents

and their third-party administrators or insurers use small groups of profession-als known as “rapid response,” “go,” or “CAT” teams to assess and investigate acci-dents quickly. This article offers a primer on the makeup and activities of a success-ful 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 InvestigationA thorough investigation has many bene-fits. 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 high-way construction companies or state trans-portation 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, rap-idly and thoroughly investigating an acci-dent better positions a trucking company to influence investigations by governmen-tal agencies because the company’s team can then provide evidence when appropri-ate to an investigating authority or to a dis-trict attorney. Finally, an investigation will assess an accident’s causes early and accu-rately. This early assessment will increase the chance of achieving a timely settlement, when appropriate, by providing the infor-mation necessary to set a proper reserve.

Importance of Arriving at the Accident Scene QuicklyTeam members must arrive on the scene of a catastrophic accident as soon as pos-sible so that key evidence can be preserved or documented. A rapid response has the advantages of• Identifying all potential witnesses, in-

cluding law enforcement, fire depart-

By Durward D. Casteel

and Aaron J. Messer

Pieces of evidence, each by itself insuf-ficient, may together constitute a sig-nificant 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

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

© 2011 DRI. All rights reserved.

For The Defense ■ December 2011 ■ 51

ment, and emergency medical services (EMS) personnel;

• Documentingthescenebeforethedebrisfield has been cleared;

• Identifyingdamagetostationaryobjectsor landmarks;

• Documenting tiremarksandevidenceof paint transfer, liquids, and stains;

• Preservingelectronicdata;• Obtainingaccurateweatherdata;• Documenting construction zones or

highway signage in real time;• Obtainingtheroadsurface’scoefficient

of friction close to the time of the acci-dent; and

• Testingacompany’sdriverfordrugandalcohol use on a timely basis.

The team will have only one chance to pre-serve, collect, and document much of the evidence.

Team MembersEvery trucking accident rapid response team should include the truck driver, an accident reconstructionist, preferably one with an engineering degree, a field adjusterorinvestigator,acompanyrepre-sentative,andanattorney.Otherpotentialteam members include electronic control module (ECM) specialists, biomechan-ical engineers, “hazmat spill” responsecompanies, videographers, aerial pho-tographers, cargo-loss adjusters, crimi-nal defense attorneys, and engineers with expertiseinhighwaysafety,trafficflow,orconstruction-zonesafety.

DriverA driver who is physically able should ini-tiate the investigation by documenting the accident scene and by preserving evidence. Insomecases,suchas,anearly-morningaccidentinblizzardconditionsonUS191in northern Montana, getting help from any other team member may take sev-eral hours. A trucking company should, therefore, prepare a driver beforehand to take a number of steps on his own. These actionsinclude,amongothers(1) ensuringhisownsafety,(2) contacting911,(3) tak-ing steps to prevent secondary collisions, (4) checkingontheoccupantsoftheothervehicles, (5) contacting the companydis-patcher, (6) removing the key from thetractor’signition,(7) obtainingnamesandaddresses of the individuals involved and

ofanywitnesses,(8) obtaininglicenseplatenumbersofallvehiclesinvolved,(9) takingphotographs of the vehicles and roadway in asmuchdetailaspossible,and(10) docu-menting all admissions of responsibility.If,ontheotherhand,theaccidentoccurs

on I-78 inNew Jersey, the police and anadjustershouldarrivewithinminutes,andthose professionals will be able to perform severalofthoseinitialduties.Nonetheless,a company should prepare a driver to col-lect as much information as possible.

Field Adjuster or InvestigatorAfieldadjusterorinvestigatorwill,inmostcases, be the second team member on the scene.Thisfieldadjustershouldhaveexten-sive experience with catastrophic truck accidents and should be accessible any-time. The adjuster must know the U.S.DepartmentofTransportation(DOT)reg-ulations regarding post- accident drug and alcohol testing and the trucking company’s post- accident testing protocol, which may bestricterthantheDOTmandatorytest-ingrequirements.Theadjustermusthavethe 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 adjustershould also have a good rapport with state and local law enforcement.Thefieldadjuster’staskswilldependon

which other team members can quickly arrive on the scene. Typically, the team’s attorneywillasktheadjustertolearnthelocation 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, inspec-tion reports, and registration and service records.

A trucking company should identify a fieldadjusterwellbeforeacatastrophicac-cident. The best way to find a competent ad-justeristoconsultthoseexperiencedinthefield, including trucking attorneys or other riskmanagers.It’snotwisetoonlylookinthedirectoryofanationaladjustingcom-pany or rely on a contract that a trucking companymayhavewithanationaladjust-ing company. Most areas should have “go-to”adjusterswiththetrainingandskillstoinvestigate a catastrophic accident properly.

Usinganinexperiencedadjusterhasseri-ousrisks.Inoneinstanceanadjusterwascalled to the scene of a late-night tractor- trailer accident in which a car clipped the back of a trailer and rolled several times. Theadjustersomehowconcludedthatthedriver of the car was in fair condition at the hospital and told the trucking company that it could release the driver and truck to

continue on their trip. Although the other driver died shortly after reaching the hos-pital, the trucking company did not find out about his death until after the eight-hour alcohol- testing window required by 49C.F.R.§382.303hadclosed.

Accident ReconstructionistThe team’s accident reconstructionist should have an engineering degree and should have extensive experience with com-mercialvehicleaccidents.Ideally,heorsheshould 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 mea-sures the scene and the vehicles involved.

The reconstructionist’s investigation generallyfollowsthispath:(1) talkingwiththepoliceiftheyarestillpresent,(2) walk-ing the scene starting at the vehicles and tracing backward to the origin of each vehi-cle’stiremarks,(3) placingchalkmarksonthe roadway using a roll-a-tape so that the measured distances can be photographed, (4) documentingevidence intheorder inwhich it will disappear, and (5) gather-ing evidence using the things listed in the “Tools of the Trade” section below.

Because taking photographs is the most

The best way to find a

competent adjuster is to

consult those experienced

in the field, including

trucking attorneys or

other risk managers.



important way to document physical evi-dence at an accident scene, good recon-structionists are good photographers by necessity. The reconstructionist will typi-cally 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 begin-nings of tire marks, points of impact, vehi-

cle damage, and damage to inert objectssuch as road signs.

The accident reconstructionist will col-lect—or have collected—the electronic data from the truck, and, if possible, other vehi-cles involved in the accident. See Michael W. Halvorson, “Black Box” Technology and Its Use in Litigation,ForTheDefense,Janu-ary2009(thoroughlydiscussingeventdatarecorder data, its usefulness in investigat-ing accidents involving commercial vehi-cles, and its value in defending lawsuits that arise from those accidents). The great-est challenge the reconstructionist will have is preserving data from the vehicles until the data can be extracted. This is par-ticularly true of the data stored in the vehi-cle’seventdatarecorder(EDR).

The accident reconstructionist should take several steps to preserve the data from thecommercialvehicle’sEDR.Ifpossible,thedata should be extracted on the scene. This isthesafestwaytopreservelast-stopdata.Ifthe data cannot be extracted on scene, the ve-hicle should be towed and its keys secured, because the last stop data will be overwritten as soon as the vehicle is operated or the en-gine is engaged. Finally, the reconstructionist should determine the truck’s manufacturer,

model,andVINnumber,aswellastheen-gine’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: incidenttruck, surrogate truck, and bench-top. The preferred method is to use the engine manufacturer’s hardware and software to extract the datawhile theEDR is stillattached to the vehicle, referred to as the “incident truck” method. The second method involvesremovingtheEDRfromthe truck, storing it until the download can beperformed, and thenplacing theEDRmodule on a surrogate truck that is identi-cal to the incident truck for the extraction. This method is referred to as the “surro-gate truck” method. The bench-top method involvespluggingtheEDRdirectly intoalaptop 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 moredifficulty collectingEDRdata fromthe other vehicles involved in the accident than collecting it from the trucking com-pany’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 vehi-cles. Some states require a trucking com-pany to obtain written permission from the owners of the other vehicles before the company can use electronic data from those vehicles.

AttorneyWhile a trucking company representa-tive 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 fromtheattorney’soffice,including1. Providing updates to and consulting

with the company representative about the team’s investigation;

2.Overseeing the f low of informationbetween the driver, law enforcement, themedia,theadjuster,thereconstruc-tionist, and any other technical mem-bers 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 requiredby thesizeof thestate or the remoteness of the accident scene;

5. Ensuring that the vehicle, data, and other evidence are properly preserved;

6. Interviewing the driver and takingdetailed notes when necessary;

7. Determiningwhetheracriminaldefenseattorney should represent the driver;

8. Ensuring that the driver is drug and alcohol tested if required by the DOTregulations or by company policy; and

9. Conductinganearlyevaluationof log-book compliance.Itistheattorney’sresponsibilitytomake

sure that the investigation is initiated as rapidly as possible and that no stone is left unturned.

Company RepresentativeThe 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 inves-tigation and the size and components ofthe 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 informa-tion to other team members.

Criminal Defense AttorneyA trucking company’s driver should receive representation by a criminal defense attor-ney anytime the driver is subject to anongoing criminal investigation or has been arrested after an accident. Because of possi-ble 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 unfet-tered 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-

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.

For The Defense ■ December 2011 ■ 53

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 be-come admissible in a subsequent civil trial.

Post-accident TestingThe Code of Federal Regulations speci-fies 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 emer-gency 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 alco-hol screen within eight hours of the acci-dent 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 TradeEach law firm should maintain an accident- response kit. These kits are especially use-ful 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 measur-ing wheel, safety cones, safety vests, flash-lights, gloves, rain gear, bug repellent, and water. A good field adjuster will also rou-tinely have several of these items.

The accident reconstructionist should typically arrive on the scene in an SUV loaded with the equipment needed to inves-tigate any type of accident, including• Robotic laser and GPS surveying

equipment;• High-quality cameras and equipment,

including specialty lens for photograph-ing minute objects such as light bulb filaments;

• Tools formeasuring brakes, includinga portable air pressure decay test apparatus;

• Equipment, both hardware and soft-ware, for imaging EDR data from com-mercial diesel engine control modules and from passenger vehicle airbags, roll-over, and power- control modules;

• Chalkandmarkingpaint;• Roll-a-tapes,measuringtapes,andrange

poles;• Biohazardsuits;• Hardhats;• General tools, including a carpenter’s

level, a hammer, wire cutters, screwdriv-ers, vise grips, and surveyor’s nails; and

• The items included in an attorney’saccident- response kit.

Spoliation and Preservation of EvidenceProperlypreserving evidence—bothphys-ical 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 pre-serve 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 its admissibility. The second reason is to avoid the potentially devastating allegation that someone or some party intentionally destroyed evidence.

Building a Proper FoundationOne of the fundamental principles underly-ing evidence law is that the evidence that a party seeks to admit is indeed what the party claims it is. Collecting evidence without tak-ing 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 reconstruc-tionist 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 there is no way to know whether the evi-dence is authentic. Consider the half-filled whiskey bottle that an adjuster finds on the floor of a claimant’s car. If the adjuster pho-tographs 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.

TheAmerican Society for Testing andMaterials(ASTM)hasatleasttwopublica-tions, Standard Practice for Collection and Preservation of Information and Physical Items by a Technical Investigator, E1188-05, and Standard Practice for Examin-ing and Preparing Items That Are or May Become Involved in Criminal or Civil Litiga-tion, 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 arenotfamiliarwiththeASTMstandards.

Spoliation of EvidenceSpoliation is defined as the negligent or will-ful destruction of evidence by a party to lit-igation. Such a loss of evidence has very serious consequences, consequences that almost always outweigh any negative ram-ifications 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 man-dated by 49 C.F.R. §395(k), especially if a claimant’s attorney hasn’t requested that the company preserve the evidence. In this sit-uation, the trucking company could face a number of negative consequences.

In some jurisdictions spoliation of evi-dence can create a separate cause of action that results in a separate judgment, including perhaps punitive damages. Other conse-quences include the “adverse presumption” in which a court instructs a jury that the ev-idence lost or destroyed must have been det-rimental 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 re-sult 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 trustwor-thiness of the parties, and evidence spoli-ation may make it appear that a trucking company has a guilty conscience. The conse-quences of a judge finding or a jury believing that spoliation has occurred are several or-ders of magnitude worse than evidence that



a driver had a single hours- of- service viola-tion seven days before an accident.

Since a rapid response team’s responsi-bilities include collecting and preserving evidence on the scene, the attorney respon-sible for the “go” team should also make it clear to the rest of the team that they need to avoid even the appearance that evi-dence was destroyed or mishandled. Any

costs or aggravation associated with sav-ing 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 LaborAs the material gathered by a rapid response team is relevant to post- accident litigation, it is subject to discovery unless shielded by the attorney- client privilege or the work- product doctrine.

Attorney-Client PrivilegeThe attorney-client privilege protects from discovery communications between a cli-ent and counsel made in the course of le-gal representation. This concept has critical application to a rapid response team’s in-vestigation. 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 ad-juster. In most cases a driver ultimately will be named a codefendant with the truck-

ing company, and any communication between the driver and the attorney will re-ceiveattorney-clientprotection.Protectinga driver’s statement can prove critical in the immediate aftermath of an accident. For ex-ample, a driver distraught over a horrific ac-cident 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 argu-ment that the team’s efforts were undertaken in anticipation of litigation.

Work-Product DoctrineThe 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 assem-bled in the ordinary course of business, or for non- litigation purposes. So the thresh-old determination that a court will make when deciding whether to protect the fruits of a team’s efforts is whether an investiga-tion was conducted in anticipation of litiga-tion or in the ordinary course of business.Tomakethatdeterminationacourtwill

ask if a trucking company would have cre-ated a document regardless of whether liti-gation was expected to ensue. For example, a report prepared by a dispatcher when a driver calls in an accident, or a report pre-pared 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-sider various factors, including whether a company retained counsel and whether the attorney was involved in generating the document. With respect to an attorney- led investigation conducted after a serious accident, a trucking defendant would have a powerful argument that the investigation was conducted in anticipation of litigation. After all, why would a trucking company retain an attorney to conduct an investiga-

tion if litigation was not anticipated? This argument becomes weaker if an in-house attorney who routinely conducts accident investigations conducts the investigation.Butwhileinvolvementofanattorneyis

a highly relevant factor to a court making an anticipation- of- litigation determina-tion, it is not dispositive. If a trucking de-fendant immediately retained an attorney to investigate every accident, then a plain-tiff’s attorney might successfully argue that the investigation was undertaken in the ordinary course of business. A defendant can maneuver around this argument by showing that only accidents involving seri-ous injuries trigger an attorney- led inves-tigation, while other catastrophic accidents in which no one is injured do not warrant an attorney- led rapid response team. That would support the notion that an outside counsel only leads an accident investiga-tion for that company when the company anticipates litigation rather than routinely to determine the underlying cause. It is important that motor carriers and their attorneys understand and prepare to artic-ulate in each instance why an investigation was conducted in anticipation of litigation rather than as routine company processes.

Even when a company can establish that an investigation was conducted in antici-pation of litigation, a court may determine that an opposing party may still discover the results of an investigation if the party seeking discovery has substantial need of them to prepare its case and that party cannot obtain the substantial equivalent by other means without undue hardship. In other words, if an opposing party needs something and can’t get it, a court would more likely view it as discoverable irrespec-tive of whether or not something is work product. And while the burden of proving that the material was prepared in anticipa-tion of litigation lies with the party seeking protection, the party seeking production has the burden of proving that the party needs the material and cannot obtain it without undue hardship.

In trucking accident cases, witness statements most often trigger this analy-sis. Often a witness will die or disappear after making an initial statement. In that instance the analysis is not very tricky, and a company will probably have to make

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.

Rapid Response, continued on page 86


a statement available to the opposition. Opponents can still discover witness state-ments, though, even when a witness is still available. This can occur when the witness statement that a party seeks was made very shortly after an accident, when the wit-ness’s recollection was still fresh. Many courts have held that statements made close to the time of an accident are unique in that they provide immediate, and pre-sumably better, impressions of the facts. In other words, a witness statement provided shortly after witnessing an event cannot be duplicated later, even when an opponent can depose the witness. This is particu-larly relevant in the context of a “go” team’s investigation, as one of the primary goals is to identify and take statements from wit-nesses as soon as possible. If a field adjuster or investigator takes a recorded statement from a non- driver witness while still on

the scene of an accident, in many jurisdic-tions a company will have to produce it. This makes it even more important that an interviewer exercise caution in determin-ing whether to record a witness’s statement.

Practical ApplicationWhile the company’s initial contact with the team’s attorney will almost certainly be by telephone, the trucking company’s rep-resentative should send a follow- up e-mail asking the attorney to conduct an inves-tigation to evaluate the causes of the acci-dent and the trucking company’s potential exposure. The representative could later ask the attorney to prepare a report, which the attorney could title, for instance, “Anal-ysis of Accident Occurring on Interstate 10 in Baton Rouge, Louisiana, on January 1, 2011.” Such a title would increase the probability that the report, or at least the majority of the report, would be protected

Rapid Response, from page 54 by evidentiary privileges. Keep in mind, however, that a trucking company would probably have to produce any portion of an investigative report that contains facts only, without analysis, such as skid-mark data or photographs.

ConclusionCatastrophic trucking accidents leave behind troves of evidence that might be critical to defending a trucking company and its driver. But just as quickly as the evi-dence appears, it starts to disappear: vehi-cles are moved, debris and glass are swept up, tire marks begin to fade, and witnesses filter away. A qualified rapid response team can not only gather this evidence, but it can take the steps necessary to make sure that the evidence collected is ultimately admis-sible in a trial.

rapid response article ftd december 2011

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