Episode #20 – Changes and challenges in trucking

This video episode of The Litigation Psychology Podcast features Dr. Bill Kanasky interviewing Kurt Spengler, Partner at Wicker Smith, on topics in the trucking industry including the increase of technology in the industry and the increase in nuclear verdicts. They also discuss the lack of communication within the trucking and transportation industry and amongst the defense bar in general, the current good PR that the trucking industry is enjoying in the COVID-19 and if it will last, and the on-going challenge of reptile in trucking litigation.

Full Episode Transcript

[0:04] Bill Litigation Psychology Podcast brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky, and with us today a trial attorney, Kurt Spengler, here in Orlando, right down the street from me. Kurt, how you doing?

[0:17] Kurt Doing well, doing well. How’s it going with you?

[0:20] Bill As you can see, thankfully the weather’s, weather is beautiful here. So if the price I have to pay is sitting on the back porch every day talking to talented people like you, I’ll take it for another month. Thank you so much taking the time to speak with us. Kurt, tell me a little bit about your professional background and, and where your area of practice is.

[0:40] Kurt Okay. I’ve been an attorney in Orlando for a little over thirty years, always doing defense of civil litigation cases, wide variety of cases. I actually am an attorney for Walt Disney World quite a bit in their premises liability cases. I do, I do it—in my past I did some med, med mal cases. I still do a little bit of that, but which is, is good in the personal injury cases because it gives us a, you know, a stronger base of knowledge about medicine than maybe some attorneys. And then in the probably the past 10 years, I’ve done a significant amount of transportation cases, trucking cases. The head of our Wicker Smith’s entire firm transportation practice group and member of TIDA, and I’ve handled, you know, hundreds and hundreds of trucking cases. My office looks out over I-4 and so I always am looking out the window and see clients’ trucks go by all the time.

[1:41] Kurt So yeah, our Jacksonville office looks at the St. Johns River, our West Palm office looks at, you know, the Intercoastal and the ocean, and Tampa looks at the Bay. I get to look at I-4,

[1:55] Bill Which by the way, I-4, that’s been under construction for what, 50, 50 years now? Well thanks for that, just a recap about your background.

I want to jump around a little bit. I was doing a podcast with a, with an actually in-house claims adjuster in the trucking industry and the question came up of, you know, technology’s evolved so much in the trucking and transportation industry, but it’s been kind of a double-edged sword. What’s your opinion of whether it be GPS or the in, the in-cab, you know, video cameras? Is it a good or a bad thing, or a little bit of both when it comes to putting on a case?

[2:37] Kurt You know, there’s, yeah, so there’s different aspects of it. I guess some of it is to monitor driver behavior and safety, and obviously anything that’s safer is better. I don’t know that it always necessarily pans out to be safer, but from an attorney’s perspective, definitely a double-edged sword. You know, I’ve had DriveCam cases and, you know, you’re getting more and more DriveCam where, you know, the driver may tell one story and then the DriveCam tells another. Other times it’s actually exculpatory. I’ve, you know, had cases where people, we, she thought it was like setups where, you know, someone’s pretty much slamming on their brakes on the expressway for no apparent reason and then they get rear-ended. And so it is a double-edged sword. And then you have the inward-facing camera which…

[3:26] Bill Yeah.

[3:26] Kurt And that’s controversial because some people think it’s an invasion of privacy or, you know, there’s discussion whether or not it really makes a difference. And the drivers may, you know, the first couple of weeks it’s in the truck it may alter their behavior, but after a while, out of sight, out of mind, and they’re back to whatever they’re doing. But I’ve had some cases where the outward-facing camera looked great, but then it just so happens you see the inward, the guy was glancing down at something or tapping a cigarette out the window or something that’s… so it’s always, there’s always something to it. But you know, at least I think that at least you know what you’re dealing with at the time.

[4:07] Bill Yeah

[4:08] Kurt So some of the main technologies—you got the cameras, you got the GPS, you know, obviously you got the ECMs where you can, you know, right, you know, when an accident happened it’s recorded and you can, you know, get lots of data. Speed at the time of impact, how long they started braking beforehand, and you can go back quite far. And you know, what was their behavior? And so if it shows, you know, that you weren’t going over the speed limit, that you, you know, started to brake at a reasonable point in time, these types of things can be helpful. Again, yeah, it’s, it is a double-edged sword sometimes.

[4:48] Bill Yeah, you know, okay. Case-by-case basis, right?

[4:50] Kurt Yeah, if you get one where it’s like, okay, we, you know, started to brake a half a second before we hit impacted that car and we’re going 40 miles an hour, you know, that, that’s probably a case you’re going to be settling.

[5:05] Bill Yeah, so we’ve all heard about, about the problem of nuclear verdicts, particularly over the last few years. Why has the nuclear verdict phenomenon really just hammered the transportation and trucking industry? It seems to be disproportional relative to other industries. What are some of your hypotheses on why that’s the case? One of mine, which—it’s funny I was driving on I-4—I took my family to the beach yesterday because the beach opened up over at New Smyrna, and I swear every third or fourth billboard was a plaintiff attorney billboard. The, the amount of aggressive advertising they have, particularly for the trucking industry, I find very interesting. What are some of your thoughts?

[5:50] Kurt You know, and that’s an interesting point. I don’t know and if the dollar figures that they’re putting up there have any influence on what people think cases are. Of course, the dollar figures you see, I mean, there’s—and I’ve been to quite a few seminars, trucking seminars where we’re talking about this subject obviously—and I mean, there’s like hundred million dollar verdicts, 50, 60, 70. I mean, these are not, you know, a three million dollar verdict. These are huge verdicts in trucking cases and not always catastrophic. I mean, I’ve heard of ones where there’s, someone’s getting the neck fusion and they’re getting twenty, thirty million. It’s… I don’t, you know, I mean, I don’t know the reason, but obviously the economy’s been very good up until the recent months. There’s a lot of trucks on the road.

I think everyone’s probably had some type of negative experience near a truck or truck driver, and so they come in with that experience. And then I think you… we were talking beforehand obviously of the reptile issue. And there’s, you know, a million different safety issues. And no matter what you’re doing as a trucking company, the, the, you know, the claim is you could always do better. Shouldn’t it be safer? And so, you know, there’s a tug of war over getting the freight moved and, and, and doing it as safe as possible. And so I think, you know, I think the reptile in that scenario, where everyone can relate to, “I’ve been on the road near a truck,” that may have something to do with it. But it’s definitely been a significant problem in the, particularly in the trucking industry, although other industries to a lesser degree.

[7:34] Bill Sure. Do you find that, what are your experiences with or maybe your evaluation of how the trucking industry has been communicating with both defense counsel, with each other, to try to maybe get on the same page for once to try to maybe develop something new to decrease the amount of these nuclear verdicts? Because the one thing, you know, and it’s been a criticism of the defense bar for a long time across all industries, is that defense attorneys and companies don’t talk enough. They don’t communicate ideas. Unlike the plaintiffs’ bar—they tell each other everything. Do you think the industry’s response has been appropriate, or do you think more can be done?

[8:17] Kurt Well, I mean, I think this has gotten people’s attention. And I mean, I do go to quite a few trucking law seminars where we, we have some of the leaders from some of the biggest trucking companies in the country. We discussed these issues and how things can, I mean how you can improve the perception for jurors. But I mean, and my impression is that most of these companies are genuinely concerned about safety and making the trucks safer, but you got to get the message out somehow to the community.

[8:50] Bill Yeah.

[8:51] Kurt And there has been some else, but but from try, from trying cases’ standpoint, there has been also efforts to combat the reptile theory. And there’s been some good, you know, rulings from judges not allowing that type of, you know, strategy in court. I think you have to… voir dire is going to be huge in any of those cases where you’ve got to, you know, get, you know, help people understand, you know… I always like to try to say, you know, like if you’re talking about, “well, wouldn’t it be better, wouldn’t it be safer to do this, wouldn’t it be safer to do that?” You know, we, you know, and that’s what the kind of the reptile theory is—is would it always be safer to do something a certain way? Well, you can always do something safer. And I say, “well, it would be safer if we made it, you know, 10 miles an hour on I-4 and that way no one would ever get in a high-speed accident, but it wouldn’t be practical or reasonable.”

[9:54] Bill Sure.

[9:55] Kurt And so you could always do something safer. You know, or you know, if Disney World wanted to wrap everyone in bubble wrap before they came in the park or something. But you can’t, you know, and so you have to kind of get that understanding to the jury in advance that you’re gonna hear this about, you know, it’s always, you know, “it needs to be safer, safer, safer,” but let’s talk about, you know, the real world here and, and the concept of being reasonable.

[10:20] Bill Absolutely. I apologize for the background noise, my neighbor’s like blowing leaves across the way. COVID-19—so this has been something no one’s ever been through before and everybody has kind of predictions on how it’s going to influence jury decision-making, particularly in transportation. Now, transportation has got maybe for the first time in, I don’t know, near 30 years—and by the way, you don’t look like you’re 35 years old so I don’t know if I’m buying that 30 year experience.

[10:52] Kurt You know, for some reason my hair is not falling out and it’s not changing colors. I mean, I don’t know why, they’re just good genes or something.

[10:59] Bill But it’s been the best public relations message we’ve seen in some time. And you have a lot of talk, particularly in the media about, you know, “truck drivers are heroes,” looking at all the the important things the industry’s doing right now. What can the industry do to try to get that to translate into jury decision-making? I’ve talked to a hundred people about this—a hundred people think, “no, it’s, you know, jurors are very what have you done for me lately, they have short memories.” Others are like, “well no, if we play our cards right maybe we can get a more positive message like the healthcare folks have done.” Where do you maybe see this going from an industry point of view?

[11:41] Kurt Yeah, again, I think in the, you know, maybe in a, for a year afterwards we might be in good stead, but you know, a few years down the road we’ll be, you know, probably back to normal. But yeah, since we represent healthcare providers and truck drivers right now, I’m kind of interested to see how the jurors are going to be treating them, you know, once we do get some jury trials. But I think again it would be talking to ’em, talking to jurors in voir dire, and I’m sure the plaintiffs’ lawyers are going to be wanting to talk to them about that too.

I don’t know what the trucking industry can really do to publicize what they’ve done, you know, as far as, you know, that, you know, we were, they were continuing to roll and continuing to deliver the groceries and everything we needed to keep, keep this country going during COVID. But I mean to the extent that they can, they can do any kind of public service spots or something like that, and that would be great. But I, it seems like it should have a favorable impact on jury verdicts. And I think, you know, if you’re trying a case—I actually have some clients that have, you know, garbage truck and recycling truck companies and, you know, “does everyone here like to have their garbage picked up?” You know, like everybody does. Nobody, you know… could you imagine what would happen if we didn’t have garbage trucks right now? How many of you out there actually wanted to be a garbage truck driver, you know? And no one’s gonna raise their hands and so you know, you could maybe, you know, get them to think about, you know, “hey, these guys, they’re people too, first of all, and they’re doing a tough job. We don’t, you know, we shouldn’t be holding them to some higher standard than they ought to be held to.”

[13:28] Bill Very interesting. Two more questions for you. First of all, how have you and your firm been internally communicating about how to deal with the reptile tactics, and are these tactics something that you’ve been able to convey the danger of to your clients? Meaning, have your clients finally figured out, “hey, we may need to put some more resources and more time into our cases because I don’t want to get reptiled like the company down the street”?

[13:59] Kurt Yeah, so obviously this has been a pretty hot topic for the last four or five years. You know, in cases where we think that’s gonna happen—and trucking is, you know, yes, you know, it’s particularly susceptible to it—but we try to file motions in limine. And there’s a, there’s a fair, like I said, there’s some decent orders coming out from some judges that will not allow that because… you know, there’s one we just saw recently where they said you can’t use the term “safety rule” because yes, it’s, there’s really no such thing. It’s nebulous.

And so, and then obviously in the preparation of the witnesses, you know, that’s obviously a big thing is to get them ready for those types of questions and not to just, you know, you know, as we all know, it sounds perfectly, you know, reasonable to say, “wouldn’t you agree that you always want to make things as safe as possible?” Or yeah, and, then we get them to be trained and say, “no, I, I think we need to be reasonable in our… and be reasonably safe.” And so, but yeah, I mean, you know, motions in limine and, and preparing the witnesses and then again, you know, talking to people through the jury selection process, and those are probably the three main things. But I think most risk managers and insurance folks are pretty aware of it now. I haven’t really been seeing it as much as I used to recently. I don’t know if it’s, if it’s just been luck of the draw, the cases I’ve had, or what—I haven’t seen it in as much.

[15:42] Bill Well, thank you for your opinions on that. Finally, is, is that a little Gator football helmet behind you up there on the top of your shelf?

[15:49] Kurt Oh sure, sure. Yeah, and you know I got the mug.

[15:55] Bill So, what, what is your prediction? Because you know, here in the state of Florida, no one watches professional sports because all the teams stink, everybody’s into… and it’s like a bloodbath down here in the state of Florida. What is your prediction on what the, I guess the SEC but also just, the NCAA—have you been hearing any thinking about, is college football going forward? Because if we don’t get some football here soon, I might go insane.

[16:24] Kurt I know, it’s driving me crazy. I watched an old game. Florida-Florida State game that I knew Florida had won, so I watched it, you know, a few weeks ago. But yeah, I don’t, I… you know, I thought for sure by September we would be back at it and playing football, but I don’t know if that’s going to be the case. And then you know, will the players be prepared? It’s hard to say, but you know, and I’m hopeful that we’ll be sitting in stadiums in September. But yeah, I have no idea. Now the Bucs, apparently people are gonna want to go see them this year if they’re playing this year.

[17:06] Bill Well, that’s because Mr. Brady has arrived in town and yeah, a lot of excitement in Tampa.

Well, Kurt, thank you so much for being on the podcast. Please keep in touch and let us know if we can help you with anything on your cases.

[17:16] Kurt All right, appreciate it. Thanks, I enjoyed the, enjoyed the experience.

[17:19] Bill Thanks, take care.