Negligent Hiring of a Dangerous Truck Driver: the hiring manager implodes
Larry Grassini, a top southern California trial lawyer, sent me this adverse examination he did of a trucking company’s hiring manager. The exam shows the elements of an excellent cross-examination: firm control of the witness, good use of his deposition, appropriate challenges of the witness’s improbable assertions, and painting of a good overall theme. I will let Grassini set up the background:
The case was called Dawn Renae Diaz v. Sugar Transport of the Northwest, Inc., et al. The plaintiff was Dawn Diaz, who was severely injured in a cross-freeway accident. Dawn was heading southbound on the 101 Freeway when a Sugar Transport truck heading northbound was clipped on the front left side by a pickup passing it, causing the pickup to flip over the median divider and land on Dawn’s car.
Police report and witnesses put 100 percent fault on the pickup driver. We sued Sugar Transport (“STN”) for negligent hiring and their driver, Jose Carcamo, for negligent driving.
The cross-examination is of Mark Stephens, a 25-year employee of STN whose deposition we took as “the person most knowledgeable in hiring practices and procedures at STN and in hiring the driver, Jose Carcamo.”
It was important for us to show STN’s hiring practices were terrible and that they didn’t care about these drivers (from their office 300 miles away) driving through Ventura.
The tachograph chart for the day of the accident went missing and we argued that it would have proved our theory of the accident which was that Carcamo got frustrated when the pickup tried to move in front of him and he sped up and then closed the gap and caused the accident (see last question to Stephens).
Stephens was a “get along, go along” kind of witness and was stuck with some dumb answers in deposition. I started the cross reminding him of the deposition and then kept the transcript in my hand and would open it up and look at it every time he tried to give an answer that might be considered favorable to STN. He was the first one to use the term “tattletale” when describing a tachograph. STN and Carcamo denied “closing the gap” and Stephens’ final answer agreeing that that type of driving was well known and a problem in the industry was a big help in establishing our claim.
Q Mr. Stephens, your deposition was taken in this case in November of last year. Do you recall that?
[Unlike a non-party witness, the deposition of a corporate spokesman can be used for any purpose, so it’s unobjectionable for the cross-examiner to lead with what at first looks like the setup for reading testimony as non-impeachment substantive admissions. Instead, the cross-examiner uses the deposition as a reminder to the witness that he needs to toe the line of what he already said.]
A Yes, I do.
Q And you were provided by STN at that time as the person who was most knowledgeable in the hiring practices and procedures at Sugar Transport and specifically regarding the hiring of Jose Carcamo. Do you recall that?
A Yes, I do.
Q And you realized, at the time your deposition was taken, you were under oath?
A Yes.
Q Okay. And after your deposition was taken, you didn’t make any changes to it, and you signed it?
A There was one change that I made. It was the actual number of years that I worked for the company. And then I signed it, yes.
Q All right. And you’ve worked for STN for over 20 years?
A Yes, sir.
Q Now, you are the terminal manager for the southern element of STN, correct?
A I am the terminal manager for the Northern and Southern California depots.
Q Where do you live, sir?
A I live in Atwater.
Q And for us Southern Californians, where is that?
A Atwater is just north of Merced, south of Modesto.
Q And how far away from the Southgate terminal is that?
A 300 miles, 300-plus miles.
Q And so, it’s your testimony that you oversee the hiring of not just the people up in Stockton, but also the people down in Southgate; is that right? The drivers?
A I don’t hire anyone in Stockton.
Q Okay. You hire people in what plant?
A At the Broncho wine facility, where we are stationed, and in Southern California, yes.
Q And what operations do you have in Stockton where you live?
A I don’t live in Stockton.
Q What operations do you have in Northern California?
A Cherokee Freight Lines is in Stockton, California.
Q Are you an employee of Cherokee Freight Lines?
A No, I am not.
Q Do you work for Cherokee Freight Lines?
A No, I do not.
Q Okay. So, am I understanding that you are the terminal manager for Southgate, and you live up in Atwater?
A That’s correct.
Q And you don’t do any work for any of the operations up in Northern California of STN?
A I am in charge of Northern California Sugar Transport stationed in Ceres, California.
Q Okay. Where is Sugar Transport’s Northern operation?
A The ownership is in Stockton, California. We are based out of the Broncho Winery in Ceres, California. We are stationed at the Broncho Winery in Ceres, California.
Q And where is Ceres in relationship to Southgate?
A It’s in Northern California.
Q How many miles from Southgate?
A 300-plus miles.
Q So, your home is close to your operation up north?
A That is correct.
Q And how many drivers do you have in the Northern operation?
A 21.
Q And how many in the southern operation?
A 16.
Q And you were the person that was provided as the person who had knowledge of the hiring, specifically, of Jose Carcamo; is that right?
A That’s correct.
Q Now, you have no memory of having interviewed Jose Carcamo; is that right?
A That is correct.
Q And you have no recollection of obtaining the information that was obtained from past employers for Jose Carcamo until just before your deposition was taken; isn’t that right?
A Yes, it is.
Q And the reason for that is because there’s no policy for the person who’s going to be—at STN, for the person who is going to hire the driver to see the documents that are returned from the prior employers; isn’t that right?
A That is correct.
[The questioner next poses a common-sense Rule of the Road question, oriented toward public safety.]
Q Do you believe, sir, as a—as the person in charge of hiring for STN, that before hiring someone or at the time you get the information back from the prior employers, you should take that into consideration in determining whether they are a safe or unsafe driver to protect the public on the motoring—motoring public?
A I believe it could be one consideration, yes.
Q And that—and at STN, it can’t be a consideration because you don’t get the information; isn’t that right?
A That is correct.
Q How many years have you been in charge of hiring for STN?
A It has to be in the 15 neighborhood, 14-15 years.
Q And for the past 14 or 15 years, as the hiring manager in charge of hiring at STN, you have never seen one of those previous employer’s records like you got on Jose Carcamo; isn’t that correct?
A That is correct.
Q So, it isn’t just a situation where you didn’t see it for Jose Carcamo. The policy and procedures set up at STN are set up so that the person who hires the drivers never sees the information that’s returned from the prior employers; is that right?
[The cross-examiner sets up the problem as not just leading to the issue for this driver, but systemic to the defendant company.]
A That is correct.
Q And you didn’t interview Jose Carcamo, did you?
A Looking back on it, no.
Q But you made the final decision to hire him?
A Yes, I did.
Q Do you remember that decision?
A Not specifically.
Q But when you made the decision, you clearly didn’t have any information that came from prior employers because that’s not the policy at STN, correct?
A That’s correct.
Q Now, right before your deposition, I take it your—the lawyer for STN showed you this document, which is 81. Smaller version?
A Yes.
Q And, of course, that document, Plaintiff’s 81, wasn’t even considered when you decided to hire Jose Carcamo because you don’t get it; is that right?
A I did not get that.
Q And you saw on that, sir, that basically, that document, which you didn’t have, gets told—said that the safety habits of Jose Carcamo were poor and that he had two accidents, correct?
A Yes, it is.
Q And we asked you why you would hire someone if you had that kind of information, and you told us, “It’s hard to find drivers where their DMV printout are not a deterrent, and we needed drivers, we needed bodies to work.” Was that your testimony back then?
A Yes, it was.
[This was a great admission, which, since it came in a party’s deposition, through its corporate spokesman, could be read into the record as substantive evidence without trying to first set up a contradiction.]
Q Do you know why the federal government has set up a practice and procedure for the hiring of commercial drivers?
A I would say so that they can regulate us.
Q So they can regulate you to make sure that you hire safe drivers to protect the rest of the people that are driving on the freeways; is that right?
A Yes.
Q Do you think it’s a valid reason, when you only know one thing from somebody, and that is that they are—have poor safety habits, do you think it’s a valid reason for STN to say we need to hire him because we need to put drivers out on the road?
A On one man’s judgment?
Q I’m asking you. You are the guy who is in charge of hiring.
A On one man’s judgment, I wouldn’t take that to heart.
Q I asked you, do you think that if you get a report, the only report, that says driving—or safety habits were poor, and he had two accidents, that it’s a valid excuse to hire him because you need to put drivers out there on the road so STN can make some money? Do you think that’s a reasonable excuse?
A No.
Q So you agree with me, sir, then, that with that information, you shouldn’t have hired him?
A No.
MR. RENNIE: Judge, I think we have one of those double-negative questions you usually try to flush out.
MR. GRASSINI: Let me ask it to you so it’s not—Do you believe that with that information, and that’s all the information you had, that it was a valid excuse that you needed to fill your slots for drivers? That’s a that’s a yes or no.
A That’s the only piece of paper that I have to work with, sir.
Q That’s the only piece of paper you got; is that right?
A If that’s the only piece of paper I have to work with, then you are right.
Q Okay. Now, there are ways to get more information, aren’t there?
A Yes.
Q And you said in your deposition that if you had three or four of those, then maybe you wouldn’t hire him?
A That is correct.
Q Now, have you reviewed Carcamo’s driver qualification file since your deposition or before your deposition or any time?
A No.
Q As the person most knowledgeable on the hiring practices and specifically the hiring of Jose Carcamo, you’ve not looked at his driver qualification file?
A I’ve seen his DMV printout from when he handed it to us, when he turned that in. His resume.
Q Well, could you show me in his personnel and driver qualification file where the resume is?
A I don’t know if we kept it or not. Sir, this is the first time –
THE COURT: Counsel, you’ve asked him to look for it.
MR. GRASSINI: Fine. See if you can find that. The resume you are looking for.
A I don’t see it in here.
Q Did you know that STN sent out documents, sent out requests for employment verification from the three or four prior employers that Carcamo had listed on his application?
A I would assume that we did, yes.
Q As the person most knowledgeable, did you know that they did?
A No, I don’t know that they did.
Q Do you know, as the person most knowledgeable, what they did to make any good faith effort to get information from the prior employers that didn’t return the request?
A No, I don’t.
Q Do you believe, as the person most knowledgeable about the hiring practices and procedures at STN, that if STN sends out employment verification requests and doesn’t get anything back, that they should make a good faith effort to follow up and try and get some information?
A Yes.
Q Do you know why they didn’t?
A No.
Q Well, you were the man in charge. Weren’t you the one who should have done it?
A No. I wasn’t in—I did not fill out or send out any of that paperwork.
Q Now, if you had seen any of the information for the person that you are most knowledgeable about hiring and it hadn’t come back, but you had his employment application, okay?
A Okay.
Q That’s the employment application, correct?
A Yes, it is.
Q First time you’ve seen it?
A No.
Q Showed it to you before at your deposition?
A Yes.
Q Which was in November of 2007, two and a half years after he was hired, correct?
A Yes.
Q When you look at that employment application, do you see that he worked for three months immediately before he applied to you, for Southwest Processors?
A Yes.
Q And Southwest Processors is the one who said they wouldn’t re-hire him and he had poor safety habits. The next note shows that he had a gap in his driving from February of ‘05 for four years. Do you see that?
A Yes.
Q As a person provided as the person most knowledgeable in the hiring of employees at STN and specifically Jose Carcamo, isn’t that a red flag?
A No.
Q Is a gap in the employment history something that gets your attention?
A We ask them about the, uhm—yes, it gets our attention.
Q And you ask them what they were doing during the time there was the gap?
A Yes.
Q And do you know if that was done in this case?
A I could not tell you.
Q And then you didn’t see the application; so, you, yourself, could not determine there was this four-year gap from the three months before he was hired, right?
A That’s correct.
Q Now I want to talk to you about the STN safety and training manual. You’ve seen that?
A Yes, I have.
Q You are familiar with it?
A Not familiar with it.
Q Well, you are the person who hires people for STN, aren’t you?
[It’s useful to keep reminding the jury that this is a witness who should know things he doesn’t know.]
A Yes, I am.
Q Do you think that the people that you hire for STN should become familiar with your own safety manual?
A There are—yes.
Q And how can they do that if you are not familiar with it?
A I’ve worked for the company for 20 years. I have long since forgotten most of that.
Q But you are in charge of hiring and firing. Do you think that you should be familiar with it, number one, and number two, give it to the employees so they can become familiar with it?
A We—it is given to the employees.
Q Do you know in Mr. Carcamo’s deposition he testified no one gave it to him?
A No, I didn’t know that.
Q Assume for me that he did testify that he wasn’t given the STN safety and training manual. That would be a violation of your—of your policies, wouldn’t it, to give the employees a copy of the manual?
A It would be a violation, yes.
Q And it says you don’t have a copy. Let me put it in front of you, sir. Sir, have you seen that in your manual?
A I haven’t seen that, but it’s there.
Q And that’s regarding training, correct?
A Yes.
Q And that talks about STN’s training policies, correct? And it says: “At the time of hire, an extensive orientation program and review of the safety and training manual take place. We hold ongoing safety meetings, which are mandatory to attend.” Do you know if any kind of an orientation program was given to Jose Carcamo, including a review of this safety manual, before you put him out on the road?
A No, I don’t.
Q Referring again to Exhibit 6, line No. 8, page 8. You see that the manual says: “Safety meetings are held on Saturday or Sunday several times throughout the year. Employees are required to attend?”
A Yes
Q Do you know—and when they are—when they attend, don’t you put something in their file about them attending safety meetings?
A Yes, there would be something.
Q Okay. As you looked through the file of Jose Carcamo, did you see any indication that he’s ever attended any safety meeting?
A No.
Q And am I correct, sir, that when you hire drivers, you hire them for the first 120 days as an introductory period in order to evaluate their performance and to get the information back from prior employers?
A Yes.
Q And during that time, they are probationary employees. They don’t get medical coverage, they don’t get holiday plans or anything like that, they are just probationary employees, correct?
A Yes.
Q And is the reason for that, sir, that in the event you get something like this back, referring to Exhibit 81, you can decide whether or not you want to keep them?
A Yes.
Q Do you have a policy, sir, when someone has an accident on the job, to come down and talk to them about that accident?
A No, I don’t.
Q Does STN?
A I am not aware of one. I’m not the safety officer.
Q Who is the safety officer?
A That would be John Ott.
Q Now, you know what a tachograph is, don’t you?
A Yes.
Q And you are the fellow from STN that described it in your deposition as a tattletale; is that right?
A That’s correct.
Q And by tattletale, one of the things that you mean is that if someone’s involved in an accident, and they are speeding, or they have an impact, the tachograph will be the tattletale; isn’t that right?
A No.
Q Did you have any knowledge, sir, as the—you are not the safety person, are you?
A No. ,
Q You are the hiring person?
A Yes.
Q You’ve seen tachographs for years?
A Yes.
Q And are you aware, sir, that tachographs show accident circumstances?
A No, I am not aware of that.
Q You just were never aware of that?
A Yes, that’s correct.
Q Let me ask you, sir, have you ever seen the owner’s manual that comes with the Abbott tachograph?
A No, I haven’t.
[The cross-examiner launches a line of questions that show the witness should know something he claims not to know.]
Q How do you know that? I didn’t even get it in front of you. How do you know you’ve never seen that?
A I’ve never seen it.
Q Have you tried to keep yourself from seeing it?
A No.
Q Have you ever asked for it?
A No.
Q Have you ever wondered what it was that those tachographs were doing in your trucks for the people that you hired?
A No.
Q But you don’t do—do know that STN was requiring the drivers to sign the tachographs every morning?
A Yes.
Q Put them in their trucks and then hand them in at the end of night, don’t you?
A Yes.
Q And that those trucks at STN that had tachographs, the tachographs were used by the drivers?
A Yes.
Q As the, uhm, person most knowledgeable in hiring, are you aware, sir, of the requirements of the federal government to keep duty hours?
A Yes and no. I am not—I don’t watch them.
Q You understand that there are requirements for your drivers that they can only drive so many hours per day, and they can only drive so many hours per week, you know that?
A Yes.
Q Okay. And you discuss that with them, don’t you?
A If I am made aware that there’s a problem, then I will discuss it with the drivers, yes.
Q Who discusses it with them if there’s no problem so they know what they are supposed to do?
A John Ott.
Q John Ott is up there with you in Ceres, isn’t he?
A Stockton.
Q Stockton?
A Yes.
Q You know he never came down and talked to Jose Carcamo before he was employed, don’t you?
A I am not aware of it, but I couldn’t tell you for sure.
Q Well, you’ve been sitting out here in the hallway here for two or three days sitting there next to John Ott?
A Yes.
Q And you never asked him whether or not he ever came down and talked to Mr. Carcamo before Mr. Carcamo was employed?
A No.
Q I want to show you a—a document, sir, and we will mark this next in order. This was in your deposition. Are you aware, sir, that that note was found in the glove compartment of the of the vehicle that Carcamo was driving at the time of the accident?
A I was told that, yes.
Q Okay. And is it STN policy to tell their drivers what to do in the case of an accident?
A Yes.
Q And so, that’s standard policy for STN to have something—some—a note like that or that one in their glove—glove box at all times, correct?
A Something that they can refer to, yes.
Q Okay. And that—and that’s actually a picture of the—the note that was in the glove box, correct?
A That’s suppose—yes.
Q And it says: “Attention drivers, These forms must be in every truck as well as a camera to get pictures of all pertinent information if involved in an accident or any situation where photos can help you or the company; parking tickets, citations, et cetera.” Do you see that?
A Yes.
Q Okay. So, somebody had to have some discussions with the truck drivers about what they should do in the event of an accident, right?
A Yes.
Q And they are told specifically that they should get pictures in a situation where the photos can help you and the company, right?
A That’s correct.
Q Okay. And are you aware, sir, of when those notes were put into the driver’s glove box, whether there was any mention to them about how the tachograph, if they are involved in an accident, can show the accident sequence?
A No.
Q You are not—you are not aware of that?
A No. I am not aware of that.
Q Who would be aware of that? Mr. Ott?
A That’s a possibility.
Q Now, you do know—maybe you don’t. Let me show you the safety and training manual 8-1. And you see that shows the accident reporting procedures?
A Yes.
Q And it says: “Do not admit liability to anyone”?
A Yes, it does.
Q Okay. When somebody discusses that part of the manual with the prospective drivers, do they at that point say anything to them about the tachograph?
A No.
Q They don’t?
A I would assume not. No. There’s probably no mention of the tachographs.
Q You are aware the manual says to fill out the tachographs every day?
A If it’s the old manual, yes.
Q Well, you are—the old manual is the manual, the only manual that’s ever been produced to us. It was updated in 1998, and the tachograph in this case was installed after 2003. Anything old about that?
A No.
Q Now, when we took your deposition, had you read the deposition of Jose Carcamo?
A No.
Q Have you read it up to today?
A No.
Q Do you know that in the—and the jury has seen the deposition. In the deposition, Mr. Carcamo admitted that he lied on his application because it was the best he could do.
A I am not aware of that.
Q You weren’t aware of it at your deposition, not aware of it now?
A You are telling me this now? Yes.
Q We asked you at your deposition, didn’t we, if you knew that Jose Carcamo had admitted that he was untruthful in his application?
A Yes, you did mention that.
Q And we asked you if you were aware of it, and you said you weren’t. Do you think, as the person most knowledgeable in the hiring and retention of Jose Carcamo, that might be something you would want to take a look at before you came in here and testified to this jury?
A I wasn’t aware I could read the other people’s depositions.
Q So, it’s your testimony that you would have read the deposition of Jose Carcamo, but your lawyers told you you couldn’t?
A I didn’t ask, nor did anyone tell me.
Q You’ve been sitting out there two or three days. You could have sat and read Jose Carcamo’s deposition, and you didn’t do it?
A That’s correct.
Q Sir, when you are provided as the person who is most knowledgeable as to the hiring and retention of Jose Carcamo, don’t you think it’s important, before you come before this jury, to read what he said about his hiring?
A I wasn’t made of aware of them.
Q You did the performance review of Jose Carcamo; is that correct?
A That’s correct.
Q Have you ever met him?
A Yes.
Q When?
A Oh, jeez. Uhm, I really don’t remember the date. Back in 2005.
Q How many times have you talked to him since you first met him?
A I have no way of telling you that. I don’t have any idea.
Q How often do you come down to Southern California?
A I’m usually in Southern California every couple of months.
Q Every couple of months. And it was your job to do the performance evaluation of Jose Carcamo; is that right?
A That’s correct.
Q That’s based upon every couple of months? Perhaps seeing him, seeing how he’s working, seeing how he’s driving, is that how you do it?
A Yes.
Q But your performance evaluation of Mr. Carcamo was that he was harsh and condescending towards others; isn’t that right?
A Yes.
Q And he has an anger problem, doesn’t he?
A I don’t believe I wrote “anger problem.”
Q Well, do you believe he has an anger problem?
A I don’t think he has an anger problem.
Q Well, what do you say—what does “harsh, condescending, and a problem with authority figures” mean to you?
A The—the way that he talked to the authority figures, uhm, the fact that occasionally, when he was dealing with the customer service personnel, he was uhm, sharp with them.
Q Let me ask you, sir, do you know, as the person who is in charge of hiring drivers, are you a driver yourself?
A I have been, yes.
Q Are you a driver now?
A I have a commercial license.
Q Do you—do you drive?
A No.
Q Have you—are you familiar with the truck drivers’ handbook?
A Yes.
Q And do you know that in the truck drivers’ handbook there’s a discussion in there about, uhm, not speeding up to keep people from cutting in front of you?
A I am sure there’s something in there. I am not familiar with it, but that makes sense.
Q Because you know that’s a problem sometimes with truck drivers, isn’t it, that they get frustrated and that they—when people try to move in front of them, they move up to close the gap so the person can’t get into the lane? You know that’s a problem, don’t you?
A It’s a big problem throughout the—throughout—everyone that drives.
MR GRASSINI: Thank you. That’s all I have for you, sir.
[The cross ends on the plaintiff’s theory of the case, that a driver with a poor driving history and an anger management problem likely sped up to try to prevent another vehicle from moving into his lane. Before that, the cross-examination had effectively exposed the company’s indifference to its drivers’ work histories and its lackadaisical approach to its safety manual. The entire plaintiff’s case ends up proven through one adverse witness.]
