New Trucking Law in Texas Takes Aim at Reptile Theory

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Over the past decade, the number of motor vehicle lawsuits in Texas has increased significantly, including those involving commercial vehicles and employers, while the number of actual collisions involving a fatality, severe injury, or any injury has increased only slightly or, in some cases, decreased. In other words, plaintiffs are filing lawsuits against trucking companies at greater and greater rates without any regard to the severity of the accident.

Along with an increase in trucking litigation, the past decade has also seen an accompanying rise in jury verdicts for plaintiffs in trucking cases. Companies whose employees operate commercial vehicles are spending increasing amounts of money in court and to purchase expensive insurance coverage.

Changing demographics and political leanings among jury pools in large metropolitan areas like Houston and Dallas have played a part in the larger damages awards. However, litigation tactics used by the plaintiff bar have played a more significant role.

The most commonly used plaintiff tactic is known as the “Reptile Theory.” The Reptile Theory focuses on safety and security issues to subtly encourage jurors to envision themselves in the same position as the plaintiff, which allows plaintiffs’ attorneys to sidestep improper “Golden Rule” arguments while making a similar impression on the jury.

Plaintiffs’ attorneys employing Reptile Theory start by establishing safety rules in the form of statutes, employee handbooks, and industry standards. They then attempt to get defendant witnesses or corporate representatives to admit to violations of these rules without regard to whether the violation played any role in causing the accident in question. At trial, plaintiffs’ attorneys then argue that these safety rules were intended to protect not just the plaintiff, but the larger public and, ultimately, the jurors, as well. The Reptile Theory attacks the reputation of the trucking company, rather than the circumstances of the accident itself, in an effort to incite fear and anger in the jury. And it works.

In seeking to address this rise in litigation, Gov. Greg Abbott signed House Bill 19 into law on June 16, 2021, which went into effect on September 1, 2021.

Companies operating commercial vehicles stand to benefit from this new framework. Generally, HB19 provides a framework for trial procedures, the use of evidence, and the determination of liability in certain civil actions involving commercial motor vehicles. Courts will now be required, on a motion by defendant, to provide a bifurcated trial wherein liability for the accident and the amount of compensatory damages are determined in the first phase. Liability for and the amount of exemplary damages would be determined in the second phase. The trial court has no discretion and must grant a timely-filed (within 120 days of filing the defendant’s answer) motion to bifurcate.

Crucially, HB19 limits, for the most part, an employer defendant’s liability for damages caused by the ordinary negligence of its employee to that of respondeat superior, provided the employer defendant timely (within 120 days of the defendant’s answer) stipulates that the driver was the defendant’s employee and was in the course and scope of his employment. Once this stipulation is made, plaintiffs are not allowed to bring claims for negligent hiring, supervision, training, or retention in Phase 1.

Plaintiffs are not completely limited in bringing a claim against the employer in Phase 1. In an action in which an employer defendant is subject to the Federal Motor Carrier Safety Act (FMCSA), the following evidence related to negligent entrustment may be presented in Phase 1 of a bifurcated action, if applicable:

  1. Whether the driver employee was licensed to drive at the time of the accident;
  2. Whether the driver employee was disqualified from driving at the time of the accident;
  3. Whether the driver employee was subject to an out-of-service order at the time of the accident;
  4. Whether the driver was medically certified at the time of the accident;
  5. Whether the driver was using a phone at the time of the accident;
  6. Whether the driver refused to submit to an alcohol or controlled substance test;
  7. Whether the employer allowed the driver to drive on the day of the accident;
  8. Evidence of alcohol and controlled substance violations by the employer;
  9. Whether the employer properly investigated the driver if, when the accident occurred, the driver had been employed for less than a year; and
  10. Whether the employer was subject to an out-of-service order.

This provision also does not limit a plaintiff’s right to bring claims in Phase 1 based on an employer’s own negligence which are not based solely on the negligence of the employee, such as negligent maintenance.

HB19 limits plaintiffs’ ability to employ Reptile Theory in Phase 1. Specifically, HB19 limits the admissibility of evidence of a defendant’s failure to comply with a regulation or standard in Phase 1 of a bifurcated action. Such evidence is admissible in the first phase only if it (1) tends to prove that the failure to comply with the regulation or standard was a proximate cause of the injury or death for which damages are sought, and (2) is specific and governs, or is an element of a duty of care applicable to a defendant and at issue in the action. This eliminates the possibility of extraneous, irrelevant facts inflaming and distracting the jury.

Another import feature of HB19 provides that photographic and video evidence of vehicles involved in an accident are presumed admissible. Previously, the admissibility of photos and videos showing damage to the vehicles involved in the accident was left to the trial judge’s discretion. Many judges refused to admit photos depicting minor damage to the vehicles involved in an accident unless the offering party accompanied the photo or video with testimony from a biomechanical expert regarding the forces involved in the accident. HB19 states that properly authenticated photos and videos are presumed admissible without expert testimony even if they are used to refute a party’s assertion regarding the severity of the accident.

No doubt, there will be a years-long adjustment period as we see how HB19 is applied by trial and appellate courts. In the short term, commercial motor carriers may see a slight downturn in the number of smaller, minor damage cases. The new law’s overall effect on the values of severe injury and death cases remains to be seen.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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