Opinion: Carved in Electronic Stone

By Donald C. Massey

ttorney

“Joe Smith’s on-board recorder indicts him as a killer,” the plaintiff’s attorney said, pacing before the jury. “He’d driven that huge truck longer than the law allows, and he’d been speeding. This is not conjecture — it’s fact, plain as day, as good as carved in electronic stone. It’s irrefutable that Joe Smith was tired, careless and driving too fast — and he drove his truck right into the plaintiff, crippling him for life.”

Five of the twelve jurors turned, looking angrily at professional truck driver Joe Smith. The others watched the plaintiff’s attorney attentively as he wrapped up his rebuttal argument. And Smith shifted in his seat nervously, scarcely believing that this was happening to him.

Two years earlier, Joe was in his tractor-trailer, en route from Jacksonville to Houston. He’d made the run a hundred times before, at least. A conscientious driver (he wore a 20-year safe driving patch proudly on his shoulder), Joe had planned to spend the night at a Louisiana rest stop he knew he could reach within his remaining legal driving limit. He’d done it before.

This time, some unexpected road work in Alabama backed traffic up for miles, knocking a good forty-five minutes off Joe’s schedule. He tried to make up some time in Mississippi, driving 75 mph on an empty, lonely interstate posted for 70 mph. Crossing into Louisiana, he dropped down to the posted 55 speed limit, and was only a couple miles away from the rest area where he planned to park for the night.

Suddenly, a green car that was stopped on the shoulder of the road pulled onto the road and directly into the side of Joe’s truck. The car’s driver was drunk after a night of partying; he’d pulled over to throw up.

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Now, that driver was the plaintiff, sitting forlornly before the jury in a wheelchair. And Joe’s onboard recorder — he kept it well-maintained, and always remembered to enter his appropriate duty status — showed plainly and accurately that Joe had driven eleven minutes longer than allowed under the law, and earlier in the day had been driving five miles over the posted speed limit in another state.

Things were not looking good for Joe, or his employer.

This trial hasn’t happened yet. But it will, if the Federal Motor Carrier Safety Administration’s proposal to require electronic recorders goes into effect.

No one is more concerned with highway and vehicle safety than trucking companies. Responsible carriers not only bend over backward to follow the law, but they go far beyond the federal compliance requirements in creating and maintaining safe, productive workplaces.

Unfortunately, many carriers that have tried to lead in enhancing safety through internal audit processes, or the implementation of new technologies, have found themselves slapped in the face by a tort system that has little sympathy for progressive management and no understanding of real world operations.

The FMCSA’s proposed hours-of-service recorder requirement steps knee-deep into this problem while neatly sidestepping any potential solutions. Setting aside the controversial issue of whether or not driver-dependent electronic logbooks will actually improve compliance (even FMCSA officials admit that there’s no data that they will improve safety), what they will do is provide a potentially devastating canvas on which trial lawyers can paint nasty pictures in tort cases.

The sample trial described above may be a dramatization, but it’s not an over-dramatization. Similar cases are heard every day. The truck driver’s electronic data demonstrates two facts: One, he was 11 minutes over allowable driving time; and two, he was driving five miles over the speed limit at some point in his trip. Both are entirely unrelated to the accident and played no role in the events. But electronic evidence sounds awfully impressive to a jury, and factors like speed and legal driving time, innocent as they may seem in this particular case, strike an emotional chord that trial lawyers love to play.

The air and rail industries have varying requirements to record electronic data (not employee hours-of-service data, mind you). But they also have protections built into those requirements that limit the ways in which required data can be used against them. Experience in these industries show that, used properly, technology and recorded data can be effective management tools to use in enhancing corporate safety.

The FMCSA is apparently not interested in using technology the same way at all. Technology is included in the proposed rule solely as a hammer under which certain carriers will fall just because they happen to share some operational characteristics. And contrary to what some carriers seem to think, FMCSA’s proposal offers no protections or limitations on data use. The electronic data required under this proposal can be read, accessed, used, subpoenaed, analyzed — in any way deemed appropriate by the federal government, local law enforcement or civil courts.

It’s a shame our system has come to this. Imagine what operational improvements carriers might be able to make if they could only collect and analyze data, in accordance with their own needs, and free from fear of rapacious trial lawyers out for blood and money. If finalized as proposed, FMCSA’s hours-of-service rule won’t bring us any closer to that day.

Mr. Massey is a partner with the law firm of Adams & Reese in New Orleans, where he focuses on highway accident litigation. Portions of this column were adapted from an article that originally appeared in Southern Illinois University Law Journal.