Discoverability and Admissibility of Preventability Determinations

Jonathan M. Abramson and Jordan C. Lubeck*

INTRODUCTIONPreventability determinations

have become commonplace in the trucking industry. While such determinations serve legitimate safety purposes, there is a danger that preventability determinations will be discoverable and admissible in litigation stemming from the accident which is the subject of the preventability determination. This article will discuss the discoverability and admissibility of preventability determinations.

It is the policy or practice of many trucking companies to conduct a preventability review and determination when its driver is involved in an accident. Accidents of any sort involve a myriad of factors making it difficult to set specific rules to classify an accident as preventable or non-preventable. Preventability determinations are conducted for a variety of reasons. One reason is because of the Federal Motor Carrier Safety Regulation’s (“FMCSR”) requirement that motor carriers have systems, programs, practices and procedures to ensure compliance with the regulations.1 However, the FMCSR’s do not specifically require preventability reviews and determinations. Another reason is for

a motor carrier to ensure that safety is at the forefront of a driver’s training. Other reasons include a motor carrier’s desire to internally understand accidents, and to avert future accidents. Whatever the reason, conducting an investigation into the preventability of an accident can have a significant effect on potential litigation brought by an injured plaintiff. A plaintiff may utilize a preventability determination as a tool in litigation. The question “what was the determination as to the preventability of this accident” will inevitably come up in a deposition, and a motor carrier must be prepared to combat the answer to this question.

DISCOVERABILITYWhether a preventability

determination is discoverable depends in large part on how the determination is created. If a preventability determination is conducted in a companies’ ordinary course of business, the determination is likely discoverable. In Laws v. Stevens Transport, defendants argued that plaintiffs should be denied discovery that pertained to “post accident actions, including internal audits, safety review determinations and preventability determinations.” 2 The defendants asserted that the preventability information was protected by the attorney-client privilege.3 The Court found that because the defendant’s post accident actions were conducted in the ordinary course of business the actions did not enjoy work product protection.4 Similarly, in Byrd v. Wal-Mart Transp., the plaintiff

sought discovery of Wal-Mart’s post-accident investigation, including its preventability determination, which was conducted immediately after the accident.5 In a deposition of a Wal-Mart representative, the plaintiff asked the deponent if “Wal-Mart [had] ever attributed any fault to [its driver] for the wreck.”6 When Wal-Mart’s counsel instructed the deponent not to answer the question, plaintiffs moved to compel an answer.7 While the Court denied the motion to compel as the question was protected by work product immunity, Wal-Mart conceded that its preventability review was prepared in the ordinary course of business and thus did not enjoy any special work product protection.8

Nevertheless, in Heartland Express, Inc., of Iowa, the District Court of Appeal of Florida ruled on the issue of whether a trial court’s order compelling disclosure of information regarding a risk manager’s investigation departed from requirements of law by requiring disclosure of work-product.9 The Court did not analyze whether the investigation was conducted in the ordinary course of business and found that “[t]he work-product doctrine protects both fact work-product (information which relates to the case and is gathered in anticipation of litigation), as well as opinion work-product (the attorney’s mental

*Kissinger & Fellman, P.C. (Denver, Colorado)

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impressions, conclusions, opinions and theories concerning litigation).”10 Because the information sought by the plaintiff required the defendant “to disclose information gathered in the course of the investigation by its risk manager, and because [the plaintiff] made no showing of need or undue hardship, the trial court’s order compelling disclosure was a departure from the essential requirements of law.”11 In Gruenbaum v. Werner Enterprises, Inc., plaintiff sought an order compelling the deposition of defendant’s in-house counsel, who oversaw the investigation of the accident at issue.12 Defendant’s objected to the motion based on the attorney-client privilege and the work product doctrine.13 While a preventability determination was not made at the time of the deposition request, the plaintiff failed to offer a persuasive argument or evidence that the testimony would not be privileged.14 The Court ruled that “even if such preventability determination had been made [the information] would be privileged ….”15

ADMISSIBILITYThere are several rules of evidence

that can be used in support of a motion in limine to exclude a preventability determination.

Rule 401 Relevant Evidence and Rule 403 Danger of

Unfair Prejudice The admissibility of evidence

depends on whether the evidence is relevant. It can be argued that preventability determinations are not relevant. Evidence is relevant “if it has any tendency to make a fact more or less probable than it would be without the evidence and if the fact is of consequence in determining the action.”16 Only relevant evidence is admissible.17 The most viable rule to attack the admissibility of preventability determinations is Rule 403. Under Fed. Evid. R. 403, even relevant evidence may be excluded

if its probative value is substantially outweighed by the danger of “unfair prejudice, confusion of the issues, misleading the jury, undue delay, wasting time, or needlessly preventing cumulative evidence.” The phrase “unfair prejudice” in Rule 403 “means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.18

Internal standards of various trucking companies in determining whether or not an accident is preventable are vastly different than the standard of ordinary care.19 Therefore, Rule 401 relevance must be argued in attempting to prohibit a preventability determination from use at trial.20 Often times, internal company standards hold a driver to a higher standard than an ordinary standard of care.21 A plaintiff will want a jury to infer that because a preventability analysis determines that a driver could have prevented an accident, that the driver is therefore negligent. “The problem with that inference is that the standard for determining preventability and the standard for determining negligence under [varying law] are not necessarily [going to be] the same.”22 It should be argued this difference in standards will result in unfair prejudice and confusion of the issues.

In Villalba v. Consol. Freightways Corp., defendants moved to exclude three documents generated as a result of the company’s review of the accident. Defendants also moved to exclude any mention of these documents by the plaintiff. The three documents included a report of the company’s accident review committee, a letter of investigation directed to the driver, and a disciplinary letter to the driver. The accident review committee found that the accident was preventable because the driver made an improper lane change.23 The Villalba Court found a split in authority as to whether conclusions of the post-accident investigation

were admissible under Fed. Evid. R. 407, remedial measures. The Court unequivocally found the post-accident investigation inadmissible pursuant to Rule 403.24 Significant to the finding was the standard of preventability used by the defendant company. The plaintiff maintained that the standard of preventability for the defendant company was the same as the standard of negligence. However, pursuant to Illinois law, the Court defined negligence as “the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence.” The defendant utilized the National Safety Council Rules to determine preventability, which specifically notes that preventability “is not solely based on or determined by legal liability.”25 The defendant defined preventability as an accident “which the driver failed to do everything that reasonably could have been done to avoid the accident…when a driver commits errors and/or fails to react reasonably to the errors of others, the National Safety Council considers an accident to be preventable.”26

In finding the post-accident reports inadmissible, the Court expressed that “the two standards may confuse and mislead the jury and result in a mini-trial regarding the different standards and the significance of the preventability finding, diverting attention away from the real issue of negligence…there exists a danger that the proposed evidence could suggest a decision to the jury on an improper basis.”27 Furthermore, in Cockerline v. Clark, a preventability determination found an accident preventable. Based on New Jersey’s equivalent of Fed. Evid. R. 403, the court found the preventability determination inadmissible “because the preventability determination was a matter entirely separate from the circumstances of the accident itself,

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[and it] could only confuse, take an undue consumption of time and mislead a jury.”28

It is important to know and understand the motor carrier’s definition of preventability and distinguish it from the applicable standard of care. With this understanding, one will be able to argue that the preventability determination is inadmissible because it is irrelevant, prejudicial and will mislead and confuse a jury.

Rule 407 Subsequent Remedial Measures

Another argument for exclusion of a preventability determination is Rule 407, subsequent remedial measures. “When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove 1) negligence, 2) culpable conduct, 3) a defect in a product or its design or 4) a need for a warning or instruction.29 A majority of courts do not consider a post-accident investigation or preventability determination as a “measure” within the meaning of Rule 407.30 This is because courts see post-accident investigations as evidence of a party’s analysis of a product and not necessarily as a subsequent measure.31 However, there are exceptions.

In re Complaint of Consolidation Coal Co., 123 F.3d 126 (3rd Cir. 1997) involved an injured deckhand’s negligence action against a shipowner. The injured deckhand challenged the district court’s ruling excluding a safety memo regarding the accident. The memo was prepared five days after the accident and stated that the plaintiff fell after a line broke. The memo also cautioned employees to inspect ropes carefully before using them. The defendant shipowner argued that the memo was a subsequent remedial measure and the district court agreed. The Third Circuit agreed stating that supporting

authority excluded “evidence of post-accident investigations under Rule 407.”32 While the Fifth Circuit rejected the rationale of In re Complaint of Consolidation Coal Co., it represents precedent whereby post-accident investigations were excluded pursuant to Rule 407.

Additionally, the defendant’s policy in Martel v. Massachusetts Bay Transp. Authority was to investigate accidents involving its buses to determine the cause of the accident and whether the bus driver could have prevented it.33 The undisputed purpose of the investigation was to prevent future accidents by identifying drivers who require additional safety training.34 The investigation found that the accident could have been prevented if the bus driver looked into his right front mirror as he was making the turn.35 The defendant filed a motion in limine to exclude the plaintiff’s proffered evidence of the post-accident investigator and his ultimate opinion that the driver was negligent. Although the evidence was incorrectly excluded by the trial court as improper expert testimony, the Supreme Judicial Court of Massachusetts still excluded the evidence as a subsequent remedial measure. The Court relied on the fact that “the investigation is inextricably bound up with the subsequent remedial measures to which it may lead, and questions of admissibility of evidence as to each should be analyzed in conjunction and answered consistently.”36

Defendants also filed a motion in limine in Harper v. Griggs “to exclude any and all evidence relating to the corporate defendant’s Accident Review Board….”37 The Accident Review Board in Harper v. Griggs conducted an investigation following the accident and issued a “preventable accident ruling.” The purpose of the ruling was to determine whether the accident was preventable and also to educate drivers on how to prevent future accidents.38 In considering whether the Board’s

ruling was a subsequent remedial measure, the Western District of Kentucky held that “the factual causes or circumstances of the accident should be admitted, but [Accident Review Board] evidence dealing with procedures or actions taken after the accident to render it less probable is inadmissible.”39 Furthermore, the Court discussed precedent related to the “critical self-analysis doctrine,” which “shields information when ‘public policy outweighs the needs of litigants…for access to information relevant to the litigation.’” The Court concluded that the “[Accident Review Board] evidence of a conclusory nature is inadmissible as evidence…[and] includes the…thoughts, analysis, inferences, or deductions based on the factual circumstances of…[the] accident, and their recommendations, changes in policy, or employment decisions in light of the accident.”40 The factual findings of the review, including evidence relating to the causes, circumstances, or damage caused by the accident was found admissible.41

Case analysis shows that preventability determinations focused on thinking towards the future in educating drivers and emphasizing safety will more likely be held as inadmissible. If this is not the case, and the determination is more of a fact-finding process, it is less likely to be excluded. To combat this, one should rely on Martel v. Massachusetts Bay Transp. Authority and argue that the determination ultimately results in subsequent remedial measures that must be analyzed in conjunction with the factual determinations.42

42 U.S.C. § 1983 and a Similar Approach to Arguing

Inadmissibility Trucking litigation is not the only

context where the issue of an entity’s self-initiated investigation and evaluations comes into play during the litigation process. Similar to a preventability determination, law enforcement

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agencies will often conduct their own incident review investigations in order to make recommendations as corrective measures for consideration and implementation by the agency. Like a trucking company reviewing its safety policies and procedures, a law enforcement agency will also take a look at their existing policies and procedures during the self-initiated review. As there is not a great number of published decisions on the admissibility of preventability determinations, one may consider citing to 42 U.S.C. §1983 decisions. When a plaintiff sues a law enforcement agency pursuant to 42 U.S.C. § 1983, and requests the agencies’ self-initiated investigation in the discovery process for use at trial, similar issues arise as to the admissibility of such evidence.

A police department’s policies and procedures are irrelevant and inadmissible when analyzing a 42 U.S.C. § 1983 claim.43 In Tanberg v. Sholtis, plaintiffs contended that evidence related to a police department’s standard operating procedures (“SOPs”) was relevant and admissible to their claims of excessive force and assault and battery.44 However, the trial court ruled that SOPs were “inadmissible because they were irrelevant to the federal claims….”45 On appeal, the Tenth Circuit found evidence of SOPs to not only be irrelevant but found this evidence inadmissible in an exclusionary rule context.46 The Tenth Circuit found local police regulations should not be admissible as a standard for evaluating police conduct because police practices vary from place to place.47 Tenth Circuit precedent has established that the violation of police department procedures “does not make it more or less likely that [police conduct] implicates the Fourth Amendment, and evidence of the

violation is…irrelevant.”48 Additionally, “[t]he Federal Rules

of Evidence expressly preclude the introduction of evidence of subsequent remedial measures to prove a party’s negligence or culpable conduct.”49 The admission of evidence of subsequent remedial measures is governed by Rule 407 of the Federal Rules of Evidence.50 When a report sets out remedial measures that should be taken to prevent the reoccurrence of mistakes and poor judgment revealed in the report, the report will fall within the ambit of Rule 407.51 In Specht v. Jensen, the Tenth Circuit found the District Court properly excluded a press release which summarized the results of the investigation of the incident giving rise to the lawsuit, and stated that those involved exercised poor judgment and that appropriate disciplinary action would be taken.52 Because the release set out the remedial measures taken to prevent the reoccurrence of the mistakes or poor judgment revealed by the investigation, it was within the ambit of Rule 407 and was inadmissible.53

Federal Motor Carrier Safety Administration (“FMCSA”)

Litigators may also rely on protections under the FMCSA in addition to traditional rules of evidence when trying to exclude preventability determinations from disclosure and admission at trial.54 Pursuant to 49 U.S.C. § 504(f):

No part of a report of an accident occurring in operations of a motor carrier, motor carrier of migrant workers, or motor private carrier and required by the Secretary, and no part of a report of an investigation of the accident made by the Secretary, may be admitted into evidence or used in a civil action for damages related

to a matter mentioned in the report or investigation. In Sajda v. Brewton, defendants

argued that 49 U.S.C. § 504(f) barred a Department of Transportation Accident Register from disclosure in discovery.55 The United States District Court for the Northern District of Indiana found that reported cases on the issue all reached the same conclusion; 49 U.S.C. § 504(f) creates a privilege against disclosure and admission of accident reports generated pursuant to the FMCSA.56 However, like the cases discussed above regarding the discoverability of preventability determinations, the Court also found that the DOT Accident Register was not precluded from discovery as a result of the work product doctrine because the report was generated in the ordinary course of business.57

CONCLUSIONPreventability analysis and

the ultimate determination of preventability are widely used tools in the trucking industry. Preventability determinations can play an important role in preventing future accidents and promoting safety. However, there is significant danger that such determinations can adversely affect a trucking defendant in the course of litigation. Understanding potential arguments both based on the rules of evidence and on statute to exclude such determinations will become increasingly important to litigators in defending their clients. It is clear that there is no national legal consensus on how to deal with preventability determinations in discovery and ultimately at trial. Therefore, litigators must understand the trends in litigation involving preventability determinations and must argue for exclusion of such determinations.

Endnotes 1 See 49 C.F.R. § 385.3. 2 Laws v. Stevens Transport, 2013 U.S. Dist. LEXIS 32221, at *9 (S.D. Ohio 2013). 3 Id. at *10.

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4 Id. at *12-13. 5 Byrd v. Wal-Mart Transp., 2009 U.S. Dist. LEXIS 87356, at *1 (S.D. Ga. 2009). 6 Id. at *2. 7 Id. at *4. 8 Id. at *6. 9 Heartland Express, Inc., of Iowa v. Torres, 90 So.3d 365 (Fl. 2012). 10 Id. at 367. 11 Id. at 368. 12 Gruenbaum v. Werner Enterprises, Inc., 270 F.R.D. 298, 309 (S.D. Ohio 2010).13 Id.14 Id. at 310.15 Id. at 309. 16 Fed. Evid. R. 401.17 Fed. Evid. R. 402.18 Villalba v. Consol. Freightways Corp., 2000 WL 1154073, at *6 (N.D. Ill. Aug. 14, 2000). 19 See Tyson v. Old Dominion Freight Line, Inc., 608 S.E.2d 266, 268 (Ga.App. 2004).20 See Rogge v. Estes Express Lines, 2014 U.S. Dist. LEXIS 159839 (N.D. Ohio Nov. 10, 2014) (granting motion to exclude preventability

determination) (“There is no indication that the opinion is based on national, company, or personal standards. The opinion is, therefore, unreliable and the jury should not and will not hear it.”)

21 Id.; see also Villalba, 2000 WL 1154073 at *5. 22 Villalba, 2000 WL 1154073 at *6. 23 Id. at *5. 24 Id. at *6.25 Id.26 Id.27 Id. at *5; see also Tyson, 608 S.E.2d at 270 (“With regard to the finding that the collision was preventable, the evidence shows that [defendant’s]

definition of preventable is different from the standard of liability.”) 28 Cockerline v. Clark, 2013 WL 5539064, at *8 (N.J. Super. Ct. App. Div. Oct. 9, 2013). 29 Fed. Evid. R. 407.30 See e.g., Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron, a Div. of Textron, Inc., 805 F.2d 907, 918 (10th Cir. 1986). 31 See id. 32 In re Complaint of Consolidation Coal Co., 123 F.3d 126, 137 (3rd Cir. 1997) (citing Spect v. Jensen, 863 F.2d 700, 701-702 (10th Cir. 1988)). 33 Martel v. Massachusetts Bay Transp. Authority, 525 N.E.2d 662, 663 (Mass. 1988). 34 Id.35 Id.36 Id. at 664.37 Harper v. Griggs, 2006 U.S. Dist. LEXIS 64691, at *1 (W.D. Ky. 2006).38 Id. at *2. 39 Id. at *5. 40 Id. at *7. 41 Id. 42 Martel, 525 N.E.2d at 664. 43 See e.g., Tanberg v. Sholtis, 401 F.3d 1151, 1162-63 (10th Cir. 2005); see also Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir. 2001) (Tenth Circuit finding

in favor of officer defendants and explaining, “[t]he expert’s affidavit does not, however, highlight a disputed issue of fact; rather, it simply contains the ultimate conclusion that the officers’ use of force did not conform with accepted police guidelines and practices and was, therefore, excessive.”)

44 Tanberg, 401 F.3d at 1162–63.45 Id.46 Id.47 Id.48 Id.49 Michael & Ann Hogan v. City of Easton, Et Al, 2006 U.S. Dist. LEXIS 90235 *24 (E.D. Penn. 2006)50 Specht v. Jensen, 863 F.2d 700, 701 (10th Cir. 1988). 51 Id. at 701-02; see also Zurich American Ins, Co. v. Bulk Carrier Services, 2011 WL 572361 *2 (D.Colo. 2011) 52 Specht, 863 F.2d at 701-02. 53 Id. 54 See Asbury v. MNT, Inc., 2014 U.S. Dist. LEXIS 167724, at *31 (Court not allowing an expert to provide a jury with a definition of a

preventable accident that was different than the definition in the FMCSA). 55 Sajda v. Brewton, 265 F.R.D. 334, 340 (N.D. Ind. 2009).56 Id. at 340-41. 57 Id. at 340.

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