Truck Injury Lawyer Blog : Truck Accident Lawyer & Attorney: Morgan Adams : Contingency Fee Truck Accident Lawyer

One of the injuries that is of greatest concern for those involved in a truck wreck is a brain injury. While severe brain injuries are easy to identify, mild traumatic brain injuries are not. Explaining the way the brain was injured, and proving to a jury the long term impact of having a brain injury when the victim looks normal, requires training and expertise. I previously blogged on the requirements a competent trucking lawyer should have but I neglected including expertise in handling brain injuries.

Please keep in mind that even though doctors will frequently use the term "mild" to describe many brain injuries, there is nothing mild about brain damage. The use of "mild" by a doctor only means that the person isn' t dead or in a coma. If someones brain is damaged, they have lost their future. They may have memory problems that will have caused them to lose their past. They will never be everything they could have been, even if they do everything they can to try to recover. 

Mild brain injuries typically occur from a wave effect. The brain is like jello, made up primarily of water and is encased in one of the hardest bones in the body, the skull. Because the brain is somewhat fluid, in a wreck it can move and strike the skull. The cells are torn under the forces involved in a wreck. Current medical science makes it clear that it is not necessary for the head to have hit anything in order for brain damage to occur.

Personalities change, memory becomes a problem, frustration and anger are not uncommon. The victim however is able to talk. They don't want to admit anything is wrong, and the family is just so happy for the victim to be alive that they blame the changes on other problems. A questionnaire can help experts determine whether there is a mild traumatic brain injury such as the one that can be downloaded here: Symptom Questionnaire.

If you think someone you love has had some of the changes discussed above have them tested by a neuropsychologist. These are the trained professionals best able to determine whether or not a mild traumatic brain injury has occurred.

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I have a client that was hit by a Swift Transportation Truck in mid-May 2009. Some weeks later, after my client left the hospital, I was hired. I sent a spoliation letter to Swift on June 5, 2009 by fax, mail, and certified mail alerting them to the fact my client was injured and they needed to keep documents that might help figure out who was responsible for the wreck. A spoliation letter is a letter that asks a company to preserve evidence that would show why the wreck happened. Often the major cause of a wreck is not the driver, but the trucking company. The trucking company is typically found at fault for failing to train its drivers, refusing to fire dangerous drivers or hiring them in the first place, failing to properly maintain trucks and not giving drivers the tools they need to drive safely, and for not supervising the drivers while they are on the road. Click her to see a sample spoliation letter.

Swift responded to this letter by stating they refused to save all the documents requested but only to "preserve information [Swift] believe is relevant..." If that isn't putting the fox in charge of the hen house I don't know what is! They went on to say "we will not preserve each and every item enumerated on your list. ...If you believe this response to your request is inadequate, you may wish to file a lawsuit..." They say they will only preserve documents "as required by the Federal Motor Carrier Safety Administration..." which allows documents, relevant to determining fault in a wreck, to be destroyed in 30 days. (Specifically, post trip inspection documents are only required to be saved for 30 days according to  FMCSR 396.11(c)(2). ) Electronic material is frequently only kept for days and can be critical in a case. Many of the most important liability documents are destroyed in 6 months while a minority of documents are required to be kept for 3 years.

The ironic thing is that Swift will have insurance adjusters actively discouraging surviving family members from hiring a lawyer, even though the company itself is destroying documents which are critical to proving Swift was responsible for the wreck. Families typically are told to "wait and see what we offer before hiring a lawyer," even though the proof a lawyer needs to prove your case is actively disappearing." This is the worst sort of corporate abuse.

PLEASE DON'T THINK SWIFT, OR ITS INSURANCE AGENTS, IS ON YOUR SIDE. For more on problems caused by insurance adjusters see my prior post  "Insurance Companies Trick Victims in Trucking Cases"

The Law Offices of Morgan Adams concentrates in protecting the rights of those who were seriously injured or lost a loved one in a serious accident with a commercial truck. Our lawyers are based in Tennessee but serve clients throughout the nation. If you or someone you love has been seriously hurt by a careless truck driver, don’t sign anything the trucking company gives you -- contact us as soon as possible at 800-580-4878 or by email to learn more at a free, confidential consultation.

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I just returned from the American Association for Justice's 2008 Trucking Litigation Seminar where, with hundred's of lawyers from around the country, we gathered together to talk about the complicated world of tractor trailer litigation. The program was designed to teach lawyers new to the area of trucking litigation how to handle cases and to give experienced lawyers new tips and insights to take their practices to a new level. It was a great seminar and I would like to thank all the staff at AAJ who made it possible as well as this year's chair of AAJ's Interstate Trucking Litigation Group Steven Gursten from Michigan. So what did we discuss?

I presented a program on the Direct Examination of the Accident Reconstructionist, a critical witness in a trucking case that can make sense of conflicting witness statements and the physical evidence left at a crash scene. Other speakers and their topics included:

1. Michael Leizerman - How to Discover Service Violations and What to do With Them
2. Edward Hershewe - Convincing Arguments fro Damages in Trucking Cases
3. Steven Friedman - Spoliation of Evidence
4. Stephen Gorney - Technology Update in Trucking Cases (GPS, Black Boxes, and On    Board Computer Operating Systems)
5. Emily Hawk Raley - Truck Driver Training and Standards
6. Sylvester James - Themes in Trucking Cases
7. Eddie Davidson - Jury Selection in a Trucking Case
8. James Sloan - Investigating the Crash and Accident Reconstruction
9. Kenneth Shigley - Understanding NHTSA
10. Robert Bailey - Crafting the Trial Story for Trucking Cases
11. Richard Holmes - Common Pitfalls in Handling Trucking Cases - The Defense Perspective

Specialized programs like this make a huge difference in a lawyer's ability to handle trucking cases. It puts the sharpest legal minds together in one room talking about one thing, how to handle those tragic cases where someone was injured or killed from a crash with a tractor trailer. The faculty did an outstanding job and are to be commended for all their hard work. I was honored to be asked to speak and  be a part of such a highly respected group.

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Training remains the number one way to prevent truck rollovers according to government and industry officials. A 2007 report by Battelle Memorial Institute for the FMCSA found “75% [of rollovers] are attributed to driver error.” The primary cause was running off the road, caused by driver fatigue or inattentiveness.”

Trucking companies could reduce rollovers by the following: Lowering a trailer 3” would reduce rollovers approximately 12% annually. A wider trailer track, from 96” to 102”, would reduce rollover’s 17%. The study found the average cost of a rollover was $600,000 and that for every dollar spent on stability control devices the company would save $2.20. According to Steve Niswander, vice president of safety and policy regulatory relations for Groendyke Transport, driver training is still the most effective way to present crashes. (See Transportation Topics, December 10, 2007, p11)

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In a Tractor Trailer rollovers, who is to blame is frequently a major issue. Federal regulations generally require the driver to bear responsibility for the loading, and faulty loading, of the trailer. However an exception is made for loads that are sealed. www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.asp Who then is responsible? Generally speaking it is the company that loaded and sealed the trailer. Frequently these companies point at the driver and blame him for excessive speed and allege this is the real cause of the collision. While this may be a cause in wrecks, there are a number where the driver is as much of a victim as any other innocent party and,  it is the company that improperly loaded the trailer who is truly at fault.

In 2002 new rules on securing cargo were adopted that went into effect  Jan 1, 2004. www.fmcsa.dot.gov/rules-regulations/truck/vehicle/cs-policy.htm The new rules require motor carriers to change the way they use cargo securement devices to prevent articles from shifting on or within, or falling from commercial motor vehicles. The changes may require motor carriers to increase the number of tie-downs used to secure certain types of cargo. If you have a case where a truck rolled over, or material fell off of a truck. these rules would also apply to those companies loading and sealing trailers. It is critical that experts be retained as soon as possible to determine if a cargo securement issue is involved in a collision, and to determine who is at fault for the improperly loaded trailer.

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