Jury Awards $90 Million in Fatal Trucking Collision

A Civil District Court jury for the Parish of Orleans, Louisiana awarded a grand total of $90,751,808.01 in damages for the wrongful death and injuries of seven individuals following a collision between an 18-wheeler and a GMC Yukon on I-10 near LaPlace, Louisiana. The accident occurred shortly after midnight on December 25, 2008. Tammy Westbrook was operating an 18-wheeler on I-10 and rear-ended the GMC Yukon driven by Lewis Knoten and had four passengers. The Yukon was pushed into the rear of a Lincoln LS driven by Alvin Welch who had no passengers. Upon impact, the Yukon caught fire and three of its passengers were killed, while the others sustained injuries.

Although the published decision does not provide a detailed account of the injuries incurred by the plaintiffs, Laila Knoten, one of the Yukon’s passengers that had lost her mother, had to care for an injured father and had injuries of her own following the accident, received the highest award of $44,405,104.62. The next highest award was $37,804,427.02 to another passenger of the Yukon.

Commercial transportation attorneys in New Orleans know all too well what they face when their clients are the cause of tragic incidents. While liability may be adverse, mitigating damages, leaving no stone unturned, pre-trial litigation, and presenting the best defense to a jury are the only ways to avoid absolute runaway juries in a nation of ever-increasing verdicts.

Knoten v. Westbrook

Philip D. Lorio, IV

Rule 11 Amendments Pass House of Representatives, Move On To Senate Judiciary Committee

The United States House of Representatives recently passed legislation to amend Rule 11 of the Federal Rules of Civil Procedure. The current form of Rule 11 generally provides that an attorney’s signature on a pleading certifies, to the best of the attorney’s knowledge, information, and belief, that the pleading is not intended to harass, delay, or needlessly increase the cost of litigation; that the claims, defenses, and other legal contentions are well-founded; and that factual statements are supported by evidence or likely will be supported through discovery. Violations of this rule may lead to sanctions.

H.R. 720, titled the Lawsuit Abuse Reduction Act of 2017, amends Rule 11 to make sanctions mandatory and removes a 21-day safe harbor provision that the current Rule 11 includes, which preconditions the filing of a Rule 11 motion for sanctions on giving the offending attorney 21 days to withdraw the alleged offensive pleading. The amendments also allow a court to impose additional sanctions, including striking the pleadings, dismissing the suit, non-monetary directives, or penalty payments if warranted for effective deterrence. H.R. 720 passed the House of Representatives on March 10, 2017 and has been referred to the Senate Judiciary Committee for consideration. Rule 11 was amended in 2007 as part of a restyling of the Federal Rules but the amendments made no substantive change to the rule. Prior to 2007, the rule was last amended in 1993.

Trevor M. Cutaiar

Newly Implemented Training Requirements for CDL Applicants

Effective February 7, 2017, with a compliance date of February 7, 2020, all first time Class A and B Commercial Drivers’ License (“CDL”) applicants, those seeking an upgrade in their CDL classification, and those seeking a hazardous materials, school bus, or passenger endorsement for the first time will have to meet certain training requirements prior to applying for a CDL. Exempt from the required training are veterans, firefighters, and farmers.

The training must be provided by an approved instructor listed in the Federal Motor Carrier Safety Administration’s Training Provider Registry. To be approved, the instructor must have carried a CDL and all necessary endorsements for at least two years prior to providing training. The training will include classroom and “behind the wheel” sessions. One must complete a written assessment and obtain a score of 80% to satisfy the classroom training requirement and must perform at a level satisfactory to an instructor’s discretion to satisfy the driving requirement. States may individually impose more stringent requirements and drivers are permitted to receive training in any state.

Companies will want to implement policies and programs to ensure their drivers are in compliance with the new training requirements by February 7, 2020.

Philip D. Lorio, IV

United States Fifth Circuit Reaffirms Supremacy of Carmack Amendment

The Carmack Amendment, codified at 49 USC §14706, et seq., imposes a federal liability regime for claims concerning goods damaged or lost during transportation in interstate commerce. In the U.S. Fifth Circuit, it has long been held to preempt state and common law remedies against a carrier, notwithstanding more recent state court opinions. In Heniff Transportation Systems, LLC v. Trimac Transportation Services, Inc., the U.S. Fifth Circuit reaffirmed the preemptive scope of the Carmack Amendment.

Heniff Transportation Systems was to transport chemicals from Texas to Illinois. It hired Trimac Transportation Services to clean its tanker prior to the trip. The cleaning was not done correctly, and the chemicals were contaminated, as were additional chemicals when mixed with the contaminated batch at the terminus. Heniff settled with the receiver for damage caused by the contaminated shipment and then sued Trimac, asserting several state law claims and a federal claim for liability apportionment under the Carmack Amendment. The district court granted partial summary judgment in favor of Trimac on the grounds that Heniff’s state law claims were preempted.

On appeal, the U.S. Fifth Circuit held that the service provided by Trimac, cleaning Heniff’s tanker-trailer so that it could be used to transport chemicals from Texas to Illinois, was a service related to the movement of passengers or property in interstate commerce, which, in turn, made Trimac a carrier subject to the Carmack Amendment. The district court’s ruling was therefore affirmed.

Heniff Transportation Systems, LLC v. Trimac Transportation Services, Inc.

Eric W. Sella

City Introduces $40 Million Crime Prevention Plan

On January 23, 2017, the City of New Orleans introduced a $40 million crime prevention plan that includes installation of cameras and vehicle-tracking equipment in over 20 of the city’s neighborhoods. These camera feeds, as well as the feeds from existing public and private security cameras, will be sent to the New Orleans Police Department central command center and monitored around the clock.

In addition to these enhanced surveillance efforts, the City of New Orleans has proposed increased security on Bourbon Street, including blocking off vehicle access to the first eight blocks, and requiring bars to keep their doors closed after 3 a.m. The goal is to discourage patrons from congregating on the street.

Pierce C. Azuma

Plaintiff Attorneys Stake Out Position on Driverless Cars

The American Association for Justice (AAJ), a nonprofit advocacy and lobbying organization for plaintiff lawyers in the United States, recently issued a report on driverless cars and the future of liability. The report, titled “Driven to Safety: Robot Cars and the Future of Liability,” opens by noting that more than 2 million people are injured and more than 30,000 killed in 6 million automobile crashes on U.S. roads every year. Robotic cars, the report notes, could potentially prevent 90 percent of crashes and save thousands of lives. Without human drivers, or insurance policies to match, traditional approaches to liability may have to evolve. Of the many legal and industry changes forecast, the AAJ advocates for a strict liability approach to future automobile crashes and discourages talk of manufacturer immunity. As the AAJ correctly notes, under most strict liability regimes, a claimant need only prove the tort occurred and that the defendant is responsible.

In Louisiana, La. C.C. art. 2317.1, enacted in 1996, effectively abrogated the concept of “strict liability” in cases involving defective things and imposed a negligence standard based on the owner or custodian’s knowledge or constructive knowledge of the defect. The surviving strict liability regime under revised La. C.C. art. 667 is restricted to pile driving and the use of explosives. The Louisiana legislature has yet to address this “strict liability” concept for driverless cars.

Eric W. Sella

New Orleans Overhauls Bail System

On January 12, 2017, the New Orleans City Council voted unanimously to approve a proposal to eliminate bail for many charged with nonviolent crimes in Municipal Court. The exemption will not apply to those arrested on domestic violence, battery, impersonating a police officer, and illegal weapons charges. Those arrested and charged with animal cruelty, assault, criminal trespassing, disturbing the peace, and criminal property damage may be immediately released but are required to make their first court appearance within 24 hours. Special rules will also apply for repeat offenders, no-shows, and flight risks.

Currently, Municipal Court judges have the authority to set bail from $150 to $2,500. Proponents of the revision assert that the changes will help lessen the burden overwhelming and impacting poorer defendants.

Pierce C. Azuma

New Orleans Parkers, Beware…

The City of New Orleans recently unveiled its 2017 budget, and it appears that 55 new traffic cameras are part of the grand plan. Specifically, New Orleans plans to introduce 45 permanent cameras, and 10 mobile cameras, into the Greater New Orleans area by April 2017. The City estimates that these cameras will increase the overall revenue by approximately $5 million.

The increased revenue will likely be met with frustration to many of the City’s residents who have already fallen victim to the traffic cameras. Upon receipt of a camera light ticket, the only known recourse, at this time, is to request a hearing with the City of New Orleans. Though many citizens have opted to ignore violation notifications, recent developments in other cities, such as Chicago, would prompt contrary action. Notably, the City of Chicago has initiated collections for outstanding parking tickets exceeding 5 years. This precedent doesn’t bode well for the citizens of New Orleans who opt to ignore rather than contest, or even pay. With the imposition of additional camera lights, it’s likely that we could anticipate a resurgence in complaints.

Caitlin R. Byars

Not for Sale

Mark Zuckerberg, CEO of Facebook, recently expressed an interest in owning additional land in Hawaii, apparently to the dismay of state politicians and many local citizens. According to State Rep. Kaniela Ing, Zuckerberg is trying to usurp the land from those native to the island. Zuckerberg already owns 700 acres of beachfront land on Kauai’s North Shore. His land, however, is interspersed with additional owners, who Zuckerberg plans to buy out.

The smaller parcels of land, which could be owned by more than a sole person, are known as “kuleana lands” and are typically passed down without a will or a deed. In the past, these parcels of land were vulnerable to sugar plantation owners who utilized quiet title actions to identify all owners and, eventually, compensating them for the land. While Zuckerberg has announced an intention to protect the interest of the property owners during the process of acquiring the land, State Rep. Kaniela Ing would prefer that the law, which allows the succession of these lands to descendants, be amended to finally resolve this issue.

Caitlin R. Byars

Social Media Discovery

In a case arising out of a motor vehicle accident, the defendant issued discovery requests seeking, among other things, plaintiff’s online postings related to any type of psychical or athletic activities since the accident date on all social media websites (e.g. Facebook, Instagram, Twitter). Plaintiff objected to the discovery requests on the grounds that it was overly broad. Defendant filed a motion to compel the social media postings, arguing first that plaintiff failed to timely object to the discovery at issue, and second that the information requested was specifically tailored and relevant to plaintiff’s claim for damages. In response, plaintiff maintained that the discovery would require the production of large amounts of irrelevant information, and thus the request was excessive.

In general, social media content is neither privileged nor protected by any right of privacy and is discoverable. However, such a discovery request must still be tailored so that it appears intended to lead to the discovery of admissible evidence. In ruling on Defendant’s motion to compel, United States Magistrate Judge Erin Wilder-Doomes acknowledged that plaintiff failed to timely respond to the discovery requests, thus waiving any objections; but held that Defendant’s social media requests, while relevant, were overbroad. With respect to Defendant’s social media interrogatory, the court limited the request to “identifying all social media accounts that Plaintiff has used since the underlying accident on June 6, 2014, her usernames, whether she has accessed the accounts since the accident, and the last time she accessed the accounts.” In regards to Defendant’s request for production of documents, the court limited the request “to all of Plaintiff’s social media postings, including photographs, since the June 6, 2014 accident that: (1) refer or relate to the physical injuries Plaintiff alleges she sustained as a result of the accident and any treatment she received therefor; or (2) reflect physical capabilities that are inconsistent with the injuries that Plaintiff allegedly suffered as a result of the accident.” Plaintiff was further ordered to download all historical data available from the social media accounts to review for responsive information. If a particular social media account does not allow for download and review, the court instructed Plaintiff to provide responses that include a description of the steps taken to locate and review the responsive information within any social media account.

Scott v. United States Postal Serv.

Adam P. Sanderson