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After lives are lost, records often go missing

Trucking companies destroy, falsify evidence 'all the time' to avoid admitting fault

Sunday, September 17, 2006
By Gregg Jones, Holly Becka, Jennifer LaFleur and Steve McGonigle
The Dallas Morning News

Trucking companies sometimes go to extraordinary lengths to avoid admitting fault in fatal accidents. They purge onboard computers, falsify records and destroy documents that federal law requires them to keep, a review of court files shows.

"The trucking industry appears to spend more time doctoring records, falsifying logs and covering up fault than they do screening drivers and training drivers," said Frank Branson, a nationally prominent Dallas plaintiffs' attorney who has handled truck accident cases for 37 years. "The end result is a lot of catastrophically injured and killed Texans."

Federal law requires interstate truckers to record, either in a written or digital "logbook," how they spend their workday – driving or resting, on duty or off. An interstate trucker is limited to 11 hours of driving over a 14-hour period and isn't supposed to get back on the road until resting for 10 straight hours.

Intrastate drivers who don't travel beyond a 150-mile radius aren't required to keep logs. But their employers must maintain records to ensure they don't exceed a 12-hour driving limit and must retain those records for six months.

Missing logbooks

In 2002, a Fort Worth judge sanctioned Omaha, Neb.-based Werner Enterprises Inc., one of the nation's largest trucking companies, for destroying the daily logs of one of its drivers involved in a fatal accident.

Linda Camacho, a 51-year-old Fort Worth grandmother, burned to death after a Werner truck rear-ended her car on Interstate 35W near Alliance Airport on Oct. 24, 2001. A lawsuit filed by her family alleged that the Werner driver was distracted at the time of the accident because he was using the company's Qualcomm e-mail system, which is mounted on the steering wheel.

The Qualcomm system is used by more than 2,000 trucking fleets nationwide, according to the San Diego-based company.

Clay Miller, a Dallas attorney who represented the family, sought the trucker's e-mails and records from his truck's Global Positioning System.

Werner refused to provide the records and destroyed about six months of the driver's computerized logs leading up to the accident, despite a court order. The company also initially refused to turn over a previous lawsuit in which it had been accused of allowing truckers to e-mail while driving, court records show.

Werner told Tarrant County District Judge Bob McCoy that the driver's electronic logs were automatically purged and that it never intentionally disregarded the court order. The company noted it had provided driver's logs for 11 days prior to the accident and also had submitted reconstructed driver's logs.

The trucking company could have prevented its truckers from e-mailing while driving by sending a lockout signal that would have frozen their computer screens and keyboards while the trucks' wheels were in motion, the court records showed. But even after serious accidents, including a double fatality in Pennsylvania in 1999, the company refused to use the lockout signal.

Werner's driver in the Pennsylvania crash also was accused of using the computer while driving, and Werner also said it lost that driver's computer logs, e-mail messages and GPS hits, court records show.

"They claim they lost it, but it was the only stuff they lost," said Mr. Miller, who has represented victims of truck accidents for more than a decade. "It happens all the time. They [trucking companies] lose the logs; they can't find the logs."

Ultimately, Judge McCoy ruled that Werner "did engage in sanctionable conduct including the destruction of documents and the failure to comply with multiple court orders." He directed Werner to provide the Camacho family legal team a sample of e-mails and GPS data from more than 100 tractor-trailer rigs to show how often its truckers were e-mailing while driving.

"It turned out that 90-plus percent of drivers are using it while they're driving," said Mr. Miller. In one of the e-mails, he said, a Werner trucker was trying to arrange a date with another trucker following behind.

The judge also ruled that he would instruct the jury that the destroyed evidence would have been harmful to the trucking company's defense. But days before the trial began, Werner agreed to a multimillion-dollar settlement, according to the Web site of Mr. Miller's firm. Werner did not admit liability.

Neither Werner nor its Dallas lawyer returned phone calls seeking comment.

Mr. Miller said he could comment only on details available in the public record because of a confidentiality agreement that was part of the settlement.

Such agreements are common, a Dallas Morning News review found, allowing trucking companies to settle wrongful death lawsuits quietly and without negative publicity.

False records

Federal law requires drivers and their employers to keep logbooks, fuel receipts and other trip documentation for six months and vehicle maintenance records for a year. When an accident occurs, they are required to preserve all relevant documents.

Safety inspectors and plaintiffs' attorneys use this information to determine whether a driver has complied with hours-of-service laws or exceeded them in the days and hours prior to an accident. Missing records make an investigation nearly impossible.

Such was the case of trucker Manuel Romero.

In July 2000, he drove his 18-wheeler loaded with sand down a hill on State Highway 114, northwest of Fort Worth, at 60 mph and slammed into a Volvo sedan stalled on the road, killing teenagers Gerald Thomas Pope and Adam J. Watkins.

A driver behind Mr. Romero told authorities he thought the trucker, who had suddenly veered left toward the Volvo, had fallen asleep at the wheel. Mr. Romero later testified that he liked to get an early start, hauling gravel and sand for Aggregate Haulers Inc., and woke between 4 a.m. and 5 a.m. so he could deliver four loads a day.

When lawyers for the victims tried to prove that Mr. Romero was driving exhausted, however, Aggregate Haulers said it had lost or inadvertently destroyed his records. The company later produced five days of logs filled out by Mr. Romero the week of the accident, but the documents raised even more questions. They showed that Mr. Romero was supposedly off duty and not driving at the time of the accident; his post-trip inspection report for that day showed his truck in good working condition, when it had been badly damaged in the accident.

An expert for the victims' families said these and other misstatements indicated the logs had been filled out in advance and didn't accurately reflect Mr. Romero's driving hours. He testified that four of the five days' logs had been falsified.

During the hearing, Aggregate's safety director acknowledged that the company had not turned over all of Mr. Romero's logs and that he was unaware that Federal Motor Carrier Safety Administration regulations required the company to maintain truck dispatch records.

One of the plaintiffs' attorneys, Seth Anderson, erupted. "Your Honor, what we're talking about is they have destroyed – defense counsel even has said they've destroyed – virtually every item related to Mr. Romero's logs, his time of service, his bills of lading, his receipts, any evidence that could show hours he worked, and they've destroyed those within the time period they were requested by subpoena, and they were under a legal duty to maintain them."

The Wise County judge later ruled that a week's worth of Mr. Romero's driving logs and the bills of lading had been destroyed and said they would have been harmful to the company's defense.

On July 25, 2003, the judge found that negligence by Mr. Romero and Aggregate Haulers caused the teens' deaths, court records show. The company eventually paid more than $1 million to the plaintiffs, said Chuck Noteboom, an attorney for the victims' families.

The blame game

Some companies throw up roadblocks that make wrongful death lawsuits expensive and drawn out, a review of court records showed.

On Dec. 16, 1998, Manuel Ybarra was driving his pickup down State Highway 276 near the East Texas town of Quinlan, pulling a trailer loaded with lawn equipment.

Jerry Edward Few, driving an 18-wheeler leased to L.H. Chaney Materials Inc., was hauling a load of gravel to a site along Interstate 30. At the intersection of FM1565 and 276, Mr. Few rolled through a stop sign and into Mr. Ybarra's path. Mr. Ybarra slammed on his brakes but couldn't stop in time. He was decapitated when his pickup skidded under the truck's trailer.

Authorities cited Mr. Few for running a stop sign and pulling into oncoming traffic. Mr. Ybarra's family filed a lawsuit accusing Chaney, a Denton County-based business, and three affiliated companies of breaking various federal and state trucking regulations, including encouraging fatigued drivers to keep working.

Chaney and its co-defendants responded by blaming Mr. Ybarra for the accident. They accused him of negligence for "failing to hook up the brakes of his trailer in violation of Texas law." And they argued that Mr. Ybarra "was in the best position to prevent the accident but failed to take evasive measures to avoid the collision."

In the months of legal maneuvering that followed, Chaney fought to avoid releasing information on prior accidents involving its drivers and lawsuits resulting from them. It refused to provide copies of inspection reports involving the accident vehicle, out-of-service reports and safety audits. It fought the release of almost every document related to its employment of Mr. Few, his background and his driving record. It also refused to release detailed information regarding the education, training and instruction of its drivers and said it didn't have any driver, training or safety policy manuals.

Lawyers for the Ybarra family requested trip logs, trip reports, bills of lading, hours-of-service data and dispatch records, but "most of the time, defendants provided no answer," the plaintiffs protested to the judge. The company said it didn't have Mr. Few's logbooks.

After nearly a year of parrying the plaintiffs' requests for information, and with a trial date fast approaching, Chaney agreed to pay the Ybarra family $1.35 million in an out-of-court settlement, court records show. It did not admit liability.

'Hide the ball'

One Texas lawyer who frequently represents trucking companies said he isn't aware of any cases in which his clients have destroyed evidence. But some do adopt "aggressive document retention policies, more accurately described as document shredding policies."

In other words, he said, "the old inadvertent destruction."

However, more common than outright destruction is trucking companies' withholding records and information, said the defense lawyer, who asked not to be named for fear it would hurt his business.

"They'll play hide the ball," he said. "If you don't ask for it the right way, you're not going to get it. The trucking companies are not in there to find truth and share information with everyone involved."