DOEXPERTWITNESSESHAVEA SHELFLIFE?

Does this also apply to tow operators?

During two recent cases, an interesting question came up. Do expert witnesses have a shelf life? While we don’t believe that a person completely stops being relevant, but like a doctor who has never taken updated courses and gained additional certifications, they’re operating (literally) based on current information they gleaned in medical school many moons ago. The same theory applies to experts in the transportation safety field, along with several other fields. The rhetorical question that begs to be asked is, if a person hasn’t had relevant experience in decades, how could they properly investigate and form an opinion on something where they have no current experience?

First case in point: I was retained on the defense side of an injury incident case in Louisiana. An independent contractor had entered the storage yard at a large insurance auction business, cobbled together a stack of pallets and debris to have the loader set a wrecked Kenworth tractor’s front end on, and the contractor and his helper crawled all over the Kenworth while trying to move the front axle back into place. It had been “knocked out” of position during a wreck, and

BY JAMES E. LEWIS ///

OVER ONE – LOSE NONE!

they were going to try to put it back into place so the truck could be pulled “piggyback” style. While they were under the truck pulling and banging on things to move the axle, the truck fell, and severed the legs of the contractor’s helper. A lawsuit was filed, depositions were handled, discovery was completed, and experts were retained on both sides.

I reviewed the plaintiff’s expert’s curriculum vitae (resume) and past case history. This man charged significantly outrageous fees, and opined as a “transportation safety expert witness,” but during my investigation, it was determined that the other expert had never

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• To unite all common industry first responders to train, educate and motivate the public we serve to just driven a truck as an actual truck driver for wages. His father was in the Army as a truck driver and gained his commercial license through a grandfather clause in the early 1980s. He taught his son, plaintiff’s expert, how to drive so his son could get a CDL and be a heavy truck mechanic. Plaintiff’s expert stopped working on heavy trucks in 1992 and started teaching diesel technician courses at a local community college. He then became an expert witness, despite never having any transportation safety courses, having worked as a safety manager, or even a driver trainer. Still, he had worked on more than 300 cases where he opined as a transportation safety expert.

During my deposition, plaintiff’s counsel asked about opinions I’d formed. I explained that plaintiff’s expert had no experience relevant to being a “transportation safety expert witness” and had never worked in the transportation or safety fields. The case was settled a week later, and plaintiff’s counsel later reached out to me, explaining that he could no longer use the other expert, based on realizing his qualifications were truly misplaced and did not apply to transportation safety cases.

In a more recent case, I was retained to work on the defense side of a double-brokering scenario that resulted in a truck crash. The freight brokerage in the middle of a transaction between a major food supplier and a trucking company was named in the suit. The case centered around the fact that the trucking company contracted by the broker handed off the load to an unvetted driver who was operating illegally and had a crash that injured several people badly.

During the discovery process, a long-time transportation expert witness with a well-known name was retained for the plaintiff’s side. I studied that person’s curriculum vitae and noticed several things: the man hadn’t operated a truck as a truck driver or driver trainer in the actual “field” since 1983. 40 years ago. The man started several truck driving schools and worked as an entry-level driver trainer, teaching the skills necessary to pass the commercial driver’s license test, but that’s

BY JAMES E. LEWIS ///

where his experience ended. He hadn’t held any position related to transportation safety, transportation management, or operations. The most damning issue, in the current case, was that he had absolutely no experience with freight brokers going to be giving opinions toward transportation safety and freight brokerage operations.

To further clarify, this man operated a truck during the “old days” of the Interstate Commerce Com- disbanded in 1995 with the advent of the Federal Motor Carrier Safety Administration (FMCSA) and the ICC was fully phased out by 1999. 24 years ago. The entire truck driver hours-of-service system was overhauled, as was the safety reporting and scorekeeping system, along with driver fitness changes, and many regulatory guidelines. It was a whole different world after 1995, and this man had stopped actively driving on public roads 12 years before that. There were additional, huge changes to driver hours-of-service operations in 2005, 2013, and 2018. The introduction of electronic logging systems was in 2010, with the electronic logging devices being mandated between 2017-2019. And this man, with no current experience for 40 years, would speak to the current case transportation safety issues, electronic logging, and brokerage issues on a crash that occurred in 2022.

There are fields where things don’t change much over the years – carpentry, concrete work, and painting all come to mind with only minor changes due to new technology. Transportation safety and compliance isn’t one of those areas. If your expert doesn’t have recent experience, there’s a good chance he can be defeated on the witness stand by a sharp opposing counsel who realizes that expert witnesses have a shelf life.

Think again – do tow operators have a shelf life if they don’t stay current with training and equipment?