Shamberg, Johnson & Bergman won what is thought to be the largest personal injury verdict in Kansas in November in a trucking case against Swift Transportation. The $23.5 million verdict followed a lengthy jury trial in U.S. District Court in Wichita.
In the middle of the night on March 16, 2006, Terry Frederick was travelling in the sleeper berth of a Yellow Transportation truck driven by Mr. Frederick’s co-driver along a dark stretch of U.S. Highway 54 near Tucamcari, N.M.. As the Yellow truck passed a rest area, a Swift truck that was attempting to enter the rest area from the wrong entrance backed into the Yellow Truck. The collision left Mr. Frederick partially paralyzed and killed his co-driver.
Because Mr. Frederick was in the sleeper berth when the accident occurred, the only eyewitness to the accident was the driver of the Swift truck. Consistent with her account to the New Mexico State Police, the accident report indicated that she was turning into the rest area when the Yellow truck rear-ended her. Friends of Mr. Frederick and the co-driver from Yellow Transportation told the Frederick family that the Swift driver’s story did not make sense, given Mr. Frederick’s and his co-driver’s experience and familiarity with the route they were driving. Subsequent evidence would prove the friends correct.
Early involvement in the case by Lynn Johnson, Scott Nutter ensured that physical evidence from the accident scene was preserved. The damaged Swift trailer and Yellow cab established that the angle of the Swift trailer at the time of impact could not have resulted from a normal steering maneuver. Instead, the damage showed that the Swift truck, upon not being able to complete the turn into the rest area, had to back up – into oncoming traffic – just prior to the accident.
Discovery revealed that the Swift driver lacked the experience, qualifications and training to safely operate her rig – let alone to drive the prestigious intercontinental route to which Swift had just promoted her despite prior difficulties delivering loads on time. Discovery also revealed that the Swift driver had lied on her job application about past drug use, felony convictions and license suspensions, and that she tested positive for methamphetamine in a U.S. Department of Transportation test conducted shortly after the March 2006 accident. After surviving a Daubert challenge, plaintiffs’ pathology expert testified that the Swift driver was impaired at the time of the accident, based on the amount of meth in her urine shortly after the accident.
Subsequent discovery also revealed that a third tractor-trailer had been parked in the rest area in a location that would have made it impossible for the Swift driver to turn into the rest area without backing up. Finally, two witnesses from the towing company that cleared the accident scene testified that the Swift driver told them just after the accident that she actually did have to back her rig up in order to enter the rest area.
At trial, Swift attempted to argue that if its driver was impaired by meth at the time of the accident, she would not be in the scope and course of her employment, because Swift forbade drug use by its drivers. Thus, Swift argued, it could not be vicariously liable for its driver’s negligence. After this argument failed, the case was submitted to the jury with counts of negligence against the driver and Swift.
The jury came back after six and a half hours of deliberation with a verdict of $19.5 million in damages for Mr. Federick and $4 million for Donna Frederick, Terry’s wife. Under New Mexico law, no caps applied to the awards. However, the jury assigned 35 percent fault to Mr. Frederick’s co-driver, reducing the net judgment to $15.275 million.
The Fredericks’ determination to seek the truth about the accident resulted in a great victory and a rebuke of Swift’s refusal to take responsibility for its and its driver’s negligence. The case shows the importance of relentless discovery when an initial account of an accident – as is often found in an accident report–doesn’t add up.