Recorded Engine Data Can Help Defend Claims

Lawyers, Safety Director Outline System’ Use at ABA Meeting

By Jonathan S. Reiskin, Associate News Editor

This story appeared in the March 19 print edition of Transport Topics. Click here to subscribe today.

NEW ORLEANS — Sophisticated recording devices built into modern trucks and diesel engines can generate information that plaintiff’s attorneys can use to force fleets and their insurance companies to pay massive settlement claims.

However, lawyers and safety experts here said the data also can exonerate drivers and carriers when they are innocent.

Dean Newell, safety director at Maverick Transportation, strongly endorsed the use of recording and safety systems, saying that “70% of accidents are caused when a car is at fault, but trucks pay for 90% of the accidents. . . . We employ the technology to put the odds in our favor.”

Newell, who took part in a panel discussion here March 8 that was part of an American Bar Association transportation meeting, said some of the systems he uses are electronic control modules in diesel engines, lane-departure and collision warning systems and braking with anti-rollover systems.

After reviewing for the lawyers the system readouts and safety capabilities, he offered the caveat that “these technologies are tools, but they are not substitutes for skilled drivers.”

Newell said he still spends a lot of time with drivers, teaching them how to think quickly and continuously when driving for Maverick, a Little Rock, Ark., flatbed carrier.

“Driving is all about making decisions, and a driver will make about 160 decisions per mile.

Over the course of a 500-mile trip, that’s 80,000 decisions,” he said. Bob Tynes, a safety consultant from Carrollton, Ga., who had been a safety inspector with the Federal Motor Carrier Safety Administration and its predecessor agencies, said the electronic control modules are somewhat similar to an aircraft’s “black box,” in that the ECM includes an event data recorder, or EDR.

“They date back to 1987 and are primarily used to promote engine efficiency,” Tynes said.

The ECM is also the part of the engine that includes the speed governor that can cap a vehicle’s speed at an arbitrary level, such as 62 miles per hour, 75 mph or a speed in between.

The EDR is often designed to take special note of data, such as when there is substantial deceleration of about 7 mph in a second, Tynes said. In addition to speed, the EDR monitors information such as torque, braking and engine load.

When the data leave the realm of maintenance shops and safety directors and enter a courtroom, sometimes the information can harm a trucking company’s case, but not always.

“This data can back up a driver, and often does,” Tynes said. Blair Jones, a Portland, Maine, attorney, said he has seen cases where performance-based brake testing has helped bolster a trucking company’s defense.

He said it gives “real-life testing results” that are superior to traditional accident reconstruction methodology. The testing procedure puts the truck on a machine like a dynamometer.

Technicians get the truck rolling in place and then stop it and measure the brake-performance data. Jones told of a case where a trucking company was under attack because the brakes on three of the 10 wheels were slightly out of ideal adjustment.

Through the performance-based test, he said, engineers proved the imperfect adjustment had no significant effect on the truck’s ability to stop out on the street.

“We settled the case during trial and took the brake issue away from the plaintiff,” Jones said.

As for the most talked-about new technology for trucks — electronic onboard recorders, which FMCSA has endorsed for tracking driver hours of service — the panel’s moderator, Phoenix attorney Tamara Cook questioned the effects of EOBRs on safety.

She summarized the argument in favor of EOBRs by saying that widespread use of them would make it harder for drivers to cheat on the HOS rule. Better HOS compliance should reduce driver fatigue, and that would decrease accident rates.

However, she also said that, at present, there is not a lot of hard evidence to verify that chain of reasoning. “This is a hotly debated issue and the subject of a lot of litigation, but many people are asking if EOBRs will be effective or redundant,” Cook said.