On December 14, 2010, the Florida Court of Appeals for the First District issued the first appellate decision addressing the application of the jury findings from the disbanded Engle class action to individual actions.  In R.J. Reynolds Tobacco Co. v. Martin, 2010 WL 5074839 (Fla. App. 1st Dist Dec. 14, 2010), the court rejected the defendants' arguments and held that individual Engle plaintiffs could rely on the Engle factual findings to establish the "conduct" elements of their claims.  In so holding, the court refused to follow the Eleventh Circuit Court of Appeals decision in Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324 (11th Cir. 2010).  In Brown, the Eleventh Circuit held that individual Engle plaintiffs may only use the Engle Phase I findings to establish elements of their claims in federal court if they could demonstrate with a “reasonable degree of certainty” which facts were “actually adjudicated" by pointing to the actual trial transcript.  The decision creates a split between federal courts and state courts as to the scope of Engle.  The Florida Court of Appeals also upheld the 25 million dollar punitive damage award despite a nearly 8:1 ratio to the compensatory damage award.  With hundreds of individual actions still pending in Florida state and federal courts, this decision is likely only the beginning in a journey that may ultimately reach the United States Supreme Court.

As with most business in America, shrinking margins require managers and leaders of the transportation industry to precisely manage overhead costs to ensure the business makes a profit.  Costs constraints, as they are known, require trucking companies to do more with less.  This often results in fewer drivers handling more loads, sometimes exceeding hours of service or the driver's physical capabilities.  The dilemma for leaders managing costs may be whether more costs are expended on the front end, to hire enough drivers and ensure they safely operate the vehicles, in an effort to avoid the big COSTS. 

Below is a link to an article describing how Swift Transportation was hit with a $15 million dollar verdict in a case where allegations included the Swift driver was on methamphetamine.   The article not only addresses some of the facts, but it primarily discusses the resulting appeal and the risks associated with trial judge evidentiary rulings.  This circumstance raises many questions, one of which may be, what might the carrier have done to preclude the driver from pushing her driving hours to the extent of needing methamphetamine?  Could the carrier formulate any protocol, or expend some costs on the front end, to better avoid this type of accident and resulting litigation?  Which costs are more expensive; front end hiring/training/monitoring or handling the post-accident injuries, damages and litigation costs?

http://www.judicialview.com/Court-Cases/Civil-Procedure/Trucking-Company-Appeals-$15-Million-Accident-Judgment/10/13247

Bearing in mind that Supreme Court majority opinions often cannot have the flair and bite of the concurring and dissenting offerings, I urge you to indulge in a couple of finely crafted works overshawdowed by an eventful news day. With the Kagan hearings, close of the term, several important rulings and Justice Stevens' retirement, it was easy to miss these compelling contributions. Justice Clarence Thomas' concurring opinion in McDonald v. City of Chicago gave spirited life to the Privileges or Immunities Clause of the 14th Amendment, while the distinguished Justice Stevens' bid farewell with a study in patent law in Bilski v. Kappos, in which he concurred in the decision, but "strongly disagreed" with the Court's disposition. Each is a lengthy, but gripping read, giving context and insight into the accompanying majority opinions. If you only read the holding and majority opinions in these cases, you have done yourself a true disservice.

In Houston on Tuesday, May 25, U.S. District Judge Ellison entertained arguments on initial discovery disputes already arising out of the Gulf oil spill litigation. Transocean asked the Court to postpone plaintiffs’ requests for depositions and evidence collection until the November deadline for further plaintiffs to join the suit. Plaintiffs -- some families of workers on the rig at the time of the explosion -- requested to move forward immediately in the discovery process. While Transocean has petitioned the court to consolidate the various lawsuits pending in numerous jurisdictions and limit its exposure to $27 million, or the value of the rig and cargo, under the 1851 Shipowner’s Limitation of Liability Act, Plaintiffs’ argued there would be no such limit if they are able to prove through investigation Transocean’s negligence. Judge Ellison both sympathized with the families and their “horrible personal tragedy” and acknowledged the complexities and issues in this lawsuit. He vowed to proceed cautiously because of the high stakes involved. The judge asked the attorneys to submit their arguments to the court in writing and scheduled two more hearings in June, focusing on whether the suit should remain in Texas and whether depositions should begin immediately.

While a judge should strive to keep proceedings moving forward, without just cause to believe information could be lost if not immediately gathered, Judge Ellison should limit discovery until all known parties are established. There is no doubt these officials and witnesses will be deposed. Each party should be represented at such depositions, and the deponents should not face multiple inquisitions, which invariably would occur when new parties entered the proceedings. The stakes are high and the world is watching. Allowing multiple bites at the proverbial apple and prolonged, duplicative discovery exercises will foster the circus atmosphere that is developing. This judge has the opportunity to help set the tone for the multitude of litigation that will arise out of this disaster. By staying the discovery requests until the parties are established, Judge Ellison will contain one area of this otherwise out-of-control mess.