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One of the big keys with these reconstructions is evidence, especially roadway evidence and vehicle evidence. To ultimately try to answer some of these questions, that’s what we need, and the quicker either side can get involved, the better chance you’re going to have.
David Craig:
I’m attorney Dave Craig, managing partner and one of the founders of the law firm of Craig, Kelley and Faultless. I’ve represented people who have been seriously injured or who have had a family member killed in a semi or other big truck wreck for over 30 years. Following the wreck, their lives are chaos. Often, they don’t even know enough about the process to ask the right questions. It is my goal to empower you by providing you with the information you need to protect yourself and your family. In each and every episode, I will interview top experts and professionals that are involved in truck wreck cases. This is After the Crash.
Well, good morning and welcome to another episode of After the Crash. Today we have Ben Phelps as our guest. Ben is an accident reconstructionist, and we’re going to talk to Ben. Ben handles accident reconstructions involving heavy trucks, as well as other car crashes and other types of motorcycles and everything else. But we’re going to talk a little bit about big trucks, commercial motor vehicles, heavy truck cases. Ben works with Crash Consulting Services and has for a number of years, was also a former police officer with the Lebanon Police Department, retired there as a lieutenant here just recently. So welcome, Ben, to the podcast.
Ben Phelps:
Thanks for having me.
David Craig:
So Ben, why don’t you tell us a little bit, how did you get into accident reconstruction? What piqued your curiosity? How did you gain experience and training?
Ben Phelps:
So obviously, public safety and law enforcement’s my background. I started in public safety 29 years ago with fire and EMS and got an interest in the car crashes. And at that point, it was the injuries and what kind of injuries they were seeing. And then as I changed careers from fire and EMS over to law enforcement, which I spent 25 years in, obviously then I’m responding and investigating firsthand the crashes. And it was just interesting to me to figure out, okay, what really happened? You have the driver’s side, you have the witnesses, but that’s not always accurate as to what happened. So putting the puzzle together with the vehicles and the roadway evidence sparked some curiosity. So I eventually started taking a little bit more training and went through the reconstruction training and from there, I gained a strong interest in the heavy trucks and the commercial motor vehicles. So I started expanding my knowledge and training into that area.
David Craig:
And I know you also have a, don’t you have a Master’s degree as well?
Ben Phelps:
I do. My degrees are all in public safety. I have an associate’s in paramedic science. I spent 25 years as a paramedic. And then I have a bachelor’s in criminal justice and a master’s in public safety and criminal justice.
David Craig:
And then as you were starting to investigate wrecks for the police and started getting training, tell us a little bit about the type of training that you have to get to become an accident reconstructionist.
Ben Phelps:
So obviously, in the academy and through on the job, you get the basic crash training, how to document it, how to take some basic tire marks, skid measurements, distance measurements. But once you get beyond that and start looking at it, going more in depth, both IPTN, Northwestern, there’s a couple others in the country, those are probably the two most prominent, have reconstruction courses. And I started taking those, which is where you get a little bit more into the vehicle dynamics, measuring the skids, how to apply the roadway frictions, the surface frictions, the momentum analysis. So I go through that six week series, learn how to do this, start getting some practical applications. And then my interest became in the heavy vehicles.
So I started expanding in the truck crashes because they’re a little bit different. I mean, the physics is the same, the science is the same, but you’re dealing with a larger vehicle, larger mass. Started taking classes on that. And then also you throw into this, the data side of it. All these newer vehicles, you’re getting more and more data. So now I’m learning, okay, how do I access this data? How do I properly interpret and apply this data?
David Craig:
As attorneys, you get a law degree, you can practice any type of law, but if you have an interest in heavy truck wrecks, then what you do is you have to go get special training and you learn. There’s that whole area of law. But really, it’s not until you get your hands dirty, you start actually working the cases, you can go to all the classes you want to go to, but when you start working them, that makes all the difference in the world. And I know you’ve been handling these type of cases for years, and I would imagine the experience that you have has really helped you get to the next level.
Ben Phelps:
It has. When I first started, especially dealing with trucks as a young officer and new to the investigation world, they’re scary. But it’s a bigger vehicle. But they articulate different, the brakes work different, the systems work different, the data’s different. And you can sit through all the classes and take all these notes and pass all these tests, but until you actually get out there and get covered in grease crawling around a truck, looking at the braking system, looking at the tires, looking at how they interact with the road and the forces involved, it’s a totally different world. So the training in the classroom gives you a good basis, but until you actually get out there and get doing it, it’s a totally different world.
David Craig:
Well, and I think one of the misconceptions a lot of times clients have when they call me is that they’ll say, “Well, we didn’t call right away because we knew the police were investigating. And so we want to wait until the police finish their investigation.” And my experience has been, I mean, I represented victims all over the country, I know your company does reconstruction all over the country, and so I have found varying degrees of competency in police departments throughout the country. Has that been your experience? I mean, there’s certainly different levels.
Ben Phelps:
It is, it is. The police departments, a lot of the guys, they have good intentions. They do the best they can with the training and the tools and equipment they have to work with, but they don’t all have the proper training and equipment. So I understand everybody’s, they like to wait, see what the police come up with, see what they have to say, but unfortunately, you lose a lot of evidence doing that. When it comes to roadway evidence and even vehicle evidence and data, time is of the essence. So the sooner you get another set of eyes on it, especially one that’s looking at it from a different perspective, the better chance you’re going to have of preserving, maintaining and collecting evidence.
David Craig:
And it’s not a slam against the police because the police department has certain amount of resources that they have available to them. And not every police department can afford the top of the line of equipment, nor can they afford to train their police officers in reconstruction, let alone have a vehicle while in reconstruction.
Ben Phelps:
That’s right. And there is no slam on them. A lot of them, they’re doing the best they can. A lot of them are looking for some of the same outcomes that we look for in the private sector and answering the questions, what happened? Why did it happen? But they’ve also got to look at the criminal side, but they’re constrained. They have budgetary constraints. So like you were talking about, they can’t afford all this equipment. Some of the equipment we use in the private sector, you’re getting into hundreds of thousands of dollars for that equipment, and they just can’t afford it. They’ve also got manpower and resource constraints. When I go out on the private side to work a scene or do a vehicle inspection, I’ve got all the time in the world. The police department doesn’t. They have an active roadway shutdown, I don’t in the private sector, but they have a roadway shutdown, so you’re worried about traffic backing up, secondary crashes in the queue.
They also have other calls going on. Just because they’re out working this serious crash or truck crash, doesn’t mean their world stops. They still have other emergencies to handle and respond to, and they’re doing it with limited resources. And I would say a large percentage of the agencies across the country right now are having a manpower shortage and they’re facing recruiting and retention issues, so this just magnifies it more. So now you’ve got upper-level management breathing down your backs to get these roadways open, to get back to the next call and to get these reports done, so they don’t have the time it takes to properly process and report on these crashes.
David Craig:
Yeah, and I think of the level of expertise, as well. Again, it depends if you’re in a big city or a smaller community that actually has dedicated resources. I mean, there’s certain small counties that I’ve come across that have really good crash response teams. And then I’ve come across others in other states where it’s just non-existent. They’re more worried about just getting the roadways to open back up than they are trying to figure out what happened. And the problem is if your family or a loved one’s been in a wreck, you don’t know how good the police department is. And if you’re relying upon them, only them, you’re really at risk, I think.
Ben Phelps:
No, I would agree with that. And even a little bit further on that, even if you have one of the best teams in the country, they’re going to have a bad day. They’re going to have a busy day. So even if you know you’ve got a really solid, really good team and you just want to stand by and wait to see what they have, you’re still taking a risk at losing evidence that may not have been captured or collected or something like that.
David Craig:
I also think that, you know, we’ve worked together a lot over the years, and in fact, sometimes you’ve been on the other side because your company does do both plaintiff and defense work, and so I’ve seen you a lot at these truck inspections. But I mean, I think that as a truck wreck lawyer, I’m familiar with the Federal Motor Carrier Safety Standards. I’m familiar with the CDL manuals. I’m probably familiar with whatever trucking company’s industry standards they are. I probably know what they’re driving, how many trucks are out of service, how many drivers are out of service before I ever even go out to the scene. And so we look at all that, where the police officers, I meet a lot of police officers who don’t know what the federal regs are. They’re not looking for that.
And that can be really critical when you’re investigating a wreck, to have an understanding of what this equipment is, what these drivers are supposed to do, what their limitations are. And from a mechanical standpoint, a lot of times when I work with you, we’ll bring a heavy truck mechanic out to look at the truck as well. So you have a team there checking brakes, you’re looking at stuff. And sometimes the mechanic has found things that a reconstructionist wouldn’t even find, but certainly a police officer just investigating, not going to have that resource.
Ben Phelps:
That’s correct. And when I first started getting into the heavy truck stuff, there was a lot that I didn’t know about the federal regulations. And obviously, I’m in Indiana, and that’s where my police experience is. And the way our state’s set up, the federal regulations with regards to CMV is dedicated solely to the state police. So we don’t have the opportunity to go through some of that level-one type of training that they do. And we don’t know these regulations as in depth as they do. So a lot of times, the local and rural local city agencies are depending on the state troopers or this outside agency for that knowledge, and it’s just not always available. And there are a lot of things that play into service, especially when you really start digging into these crashes. You’re looking at mechanical violations that could have contributed to it. You’re looking at out-of-service violations that may be there, driver log issues. And that’s all stuff that most police officers don’t enforce, so they don’t understand or know what those regulations truly are.
David Craig:
I mean, I guess a simple example for people out there listening is, I don’t know how many cases I’ve had on snow or ice, and the truck will be passing and lose control, but it’ll be going clearly under the speed limit. But a lot of times they won’t find fault on the trucker, but if you understand the federal regs, they say that you have to use extreme caution in adverse weather conditions. I mean, that’s what the federal regs require. And so the question in my mind always is, “Well, was this driver using extreme caution?” The CDL manual the truck drivers have to learn to get a CDL license or get their commercial driver’s license, says that on wet pavement, they should decrease their speed by a third. On packed snow, if they’re driving on packed snow, they should decrease their speed by 50%. And if they’re driving on ice, they should get off at the first available chance they have to get off safely.
Well, I’ve met a lot of police officers who don’t know those regulations, and so they don’t apply that when they determine cause on the police report. They’re not looking for a violation of the federal, they’re just looking at the state and local. And so when I go out and look at it, we’re looking at it from that perspective. Okay, what regs are applicable in this case? What might have been violated or maybe not? And then equipment wise, what shape is the equipment in? And looking at every angle that there may be, and unfortunately, I think not all lawyers are created equal either. If they don’t understand that, they don’t even know what they’re looking for. And if you have a reconstructionist who doesn’t understand that or a mechanic, then the victim is at a disadvantage.
Ben Phelps:
They are. One of the things I learned early, early in my reconstruction career, or my path, was ask questions, ask for help. Don’t be afraid to reach out. I can’t tell you how many times I phoned a friend. Even today. I’ve been doing this for a while now. I love heavy truck crashes. Even today, I’ll still phone a friend. When you talked about, we bring a mechanic, I love having a mechanic with me because yes, I can measure brake strokes, yes, I can look at tread depths, I can look at drums. I’m not going to look at it at the detail that he is. And unfortunately, sometimes I think in the law enforcement realm, we get hung up on, again, the time issues, got to get it done, got to move to the next one. But also the pride is we don’t want this outside guy helping us. We don’t want this civilian coming in to tell us what we may have missed or what we may find. And so sometimes I think that plays into it.
David Craig:
One of the things I mentioned was that you do both sides. At Crash Consulting Services, you get hired by the trucking company and their insurance carriers and their attorneys, on occasion, and you also represent the victims of truck wreck crashes. So you guys do both sides. Do you think that is beneficial to work both sides?
Ben Phelps:
Oh, I think it’s very beneficial. I think it puts us more in the middle when you’re looking at these cases. When I get a new case and I start looking at it, regardless of whether I’m plaintiff or defense, I start looking at it as, okay, what would I do with the plaintiff’s side of this? What would I do with the defense side of this? I feel one of the things, especially as we get through litigation and into the expert witness testimony and stuff like that, is I need to be ready to combat both sides of it. If I’m going to attack it X way as a plaintiff, then as a defense, I need to be able to overcome that or be able to explain that. And it’s the same when I’m on the defense side. If this is what my defense route’s going to be, I need to anticipate the plaintiff’s side and be able to explain that, counter that or whatever.
In the end, and then one of the things, and I think most of our clients will appreciate it, is I’m pretty open and candid with them. I’m going to tell you, “Here’s what’s good. Here’s bad. Here’s what’s real ugly.” It may not always be the answers that they want or what they want to hear, but it’s where we’re at, it’s the reality of it, and I think it’s important to take that into consideration. But I think doing both sides, I think it adds to credibility and I think it’s good for the attorneys as well because they’re getting us on both sides of it and they’re familiar with us, so they know what to expect.
David Craig:
I agree with you, I think that when I see Crash Consulting Services against us, there’s a certain level of trust there. And so whoever I’m using typically knows who you guys are and vice versa. If you guys are working for us and someone else is working for the defense. And I think that we all know that your company and you, in particular, and everyone that works there, you’re going to find out the facts. I mean, the facts are the facts. You can’t really change them, so here’s what happened. And you’re not going to try to change the facts. They are what they are. And like you said, you’re going to tell whichever side you work for, “Here’s the scoop. Here’s the facts.” Sometimes you can help us, sometimes you can’t. But I think that that’s appreciated. And typically, when you have somebody that’s honest and does a good job of reconstructing, then they’re going to be highly in demand on both sides.
Ben Phelps:
There’s similarities between crashes. There are no two the same. They’re all different, especially if you’re on the victim side of it. And sometimes I think they all get treated as, “Oh, it’s just another head on. It’s just another rear end. It’s just another crash,” and that’s not the case. But I do think it’s important, when you’re looking at these, regardless which side you’re on, sometimes there’s an elephant in the room that you just have to put out front and say, “Yes, we know this problem is here,” and acknowledge it, address it, and move on.
David Craig:
I would imagine though, there’s an advantage when you’re on the defense side. When I represent the plaintiff side, the victims are dealing with a catastrophic injury or a death, and they are preoccupied with their family situation and the chaos that has been created. And typically, the last thing they’re thinking about is, should I go preserve evidence? I would imagine the defense side, though, is thinking, “Let’s go preserve evidence,” and they get the call quicker, right?
Ben Phelps:
So, it’s a totally different world when I’m responding on defense versus plaintiff. When I get a defense case, I would say at least eight out of 10 times, it’s a fresh crash, 24, 36 hours old at the most. Nowadays, it’s not uncommon for me to get a call on a defense trucking case, and they’re still trying to remove the victims from the scene. So we’re starting to get these notifications early into it. Well, that’s an excellent position to be in for us with evidence preservation and collection.
The plaintiff side, we’re not that lucky. Every once in a while, but typically we’re not. The victims are still trying to process what has happened to them or their family or their loved one, and what do we need to do next? Everything that comes along with a serious injury or the death of a loved one, they’re working through all that. And a lot of times the last thing on their mind is, “Ooh, I need to get a lawyer for this.” I think it’s important to get that lawyer early because it’s going to help starting you go towards closure. Plus, they can start working on some of the stuff that you’re not thinking about while you deal with your grieving, while you deal with the loss and everything that’s associated with it. One of the big keys with these reconstructions is evidence, especially roadway evidence and vehicle evidence. To ultimately try to answer some of these questions, that’s what we need, and the quicker either side can get involved, the better chance you’re going to have.
David Craig:
Yeah, and I see that. I mean, I’ve had cases and I’ve talked to defense lawyers, defense trucking companies and part of their agreement with the insurance carrier or the trucking company is that they have to be at the site or have somebody at the site so many hours after they get notified. And the truck driver typically, if they’re physically able to, calls dispatch says, “Hey, I’ve been in an accident,” and it starts right then immediately.
Ben Phelps:
Yes.
David Craig:
Whereas with me, again, typically we don’t get called as quick, but sometimes there’s a person in the family that’s not the immediate family who’s suffering, who says, “Hey, wait a minute, you need to hire somebody.” And when that person happens to know, they hire a truck wreck lawyer, then with our firm, we have a rapid response team of our own that we send out. People go out and immediately start looking for evidence. I mean, some of this evidence disappears within days. We see so much now that’s captured by videos, but that video is not always there if you don’t get there quick enough, right?
Ben Phelps:
No, especially when you’re looking at videos from businesses or private residences. There’s cameras everywhere. They’re recording constantly, but they’re not always storing those videos because you just get into storage issues and the humongous amount of data. A lot of these are on a loop. So, some of the businesses I deal with, you may have anywhere from a seven-day to a 28-day loop. Some of these states with their traffic cameras, it’s a 24-hour loop. So if you’re not getting involved quick enough or getting out there to start looking for these things, you may have lost some valuable video that might have been able to help answer some questions.
And even depending on the law enforcement and public safety videos, they all have different retention periods as well. They’ve got some that are set by statute, but some of them are determined by the department, and the more they keep, the more storage they have to have. So their retentions are fairly short too, some of them as short as 30 days. So if you’re not involved in that time to get out that freedom of information request and to try and grab these videos or get them preserved, then you may lose those as well.
David Craig:
Yeah, absolutely. I mean, the first thing we do when we get hired is we get out preservation of evidence letters to everybody who has a camera. We first send out our investigator, he looks for cameras everywhere. As soon as he finds them, he comes back, lets us know where they’re at. We then send the notices out and say, “Hey, please preserve that evidence. If not, please let your lawyer contact us.” And then he goes to the scene and looks for evidence because sometimes, depending on how hastily the police did their investigation or how heavy traffic was, how quickly they had to get roads open, sometimes he’ll take photographs that aren’t in the police photographs, and they are skid marks or a yaw mark or something that maybe just was missed. And that stuff disappears over time.
Ben Phelps:
Yes, it does, especially if you’re on a heavily traveled roadway like an interstate or you have some weather pattern changes, those marks are going to start dissipating and the longer it takes, the less chance you have of recovering the useful evidence.
David Craig:
Let’s talk about and switch gears to talk a little bit about data extraction. You mentioned it a little bit earlier. I mean, one of the big things now that reconstructions have to know how to do is to obtain all the evidence that’s in these vehicles. And certainly in big trucks, heavy trucks, they have certain stuff that cars don’t have. And the same way in cars nowadays. My goodness, they’re drivable computers. And so talk a little bit about, let’s start off with the heavy trucks, what type of data is there to download and how do you go about getting it?
Ben Phelps:
So the heavy trucks, there’s a lot of data available. Most of the trucks on the road nowadays, their engines are equipped with data recorders that, when certain thresholds are captured or met or exceeded, that it’ll capture and record that related data. And a lot of times we can recover that data using the engine manufacturers OEM software. They’re stored at various points or at various modules within the truck. So it’s a matter of just tapping into the truck’s communication system through the diagnostic port and requesting the data and, through the transfer protocols, boom, we get it. It’s usually in proprietary software that’s translated for us and we’re good to go.
The problem with some of that becomes when you have a catastrophic power failure or catastrophic damage to the vehicle. Then we’re having to remove modules from the truck and having to look at either doing a direct-to-module type imaging, which is plugging a programming and cable harness into the module, and requesting the information that way, which works. But it can have some inherent issues because when these modules fire up, they’re looking for all these sensors to say, “Oh, hey, are you here? Are you here? Are you working?” Now we’ve taken that away and just put our cable to it. So one of the problems we can have just going that route is we can generate some diagnostic codes that may overwrite some that are related to the collision.
So you have to be careful with that, make sure you’re you obtaining that data the proper way. For us, Cummins engines, we do those direct-to-module quite a bit. No matter what environment you put it in, there’s a good chance you’re going to create or overwrite some diagnostic records regardless. But when you start looking at the Detroits and the Caterpillars and stuff like that, we’re usually shipping those off to another company to say, “Okay, can you put it in the proper environment, whether it’s a simulation environment or whatever you need to do to try to minimize that?” The other option with some of these modules is what’s called a chip off, and that’s where we’ll send it off. And some of the specialists that do this, they’ll go into the case of the ECM, they’ll take the chip out of it and put it into a surrogate ECM and download the data that way. If you have a truck that’s been involved in a crash, maybe a subsequent fire, you still have a chance for some data.
The biggest issue that we get with data in truck crashes is power failures. Most of the trucks, in order to write the data, they have to have power for that data to be transferred from the temporary memory to the permanent storage. When you have a catastrophic power loss, you’ve lost the power for that to happen. And then some of them have a shutdown sequence that has to be present in order for it to say, “Okay, lock this data.” So if you’ve lost this eloquent shutdown, then your data may not be there. And then everybody’s favorite trucks to deal with are the Volvos and Macks. Those, it’s the proprietary software, but they only allow a handful of vendors in the US to access the event data from Volvo Macks. The dealerships can’t even access it. So we’re either having to bring in a specialist from one of three or four companies, or we’re having to remove the modules, which usually there’s at least three, sometimes four, and then ship them off so they can put it in their download environment and extract the data from them that way.
David Craig:
Just so these folks that are listening to this, this is a designed for everyday average people that may find themselves in this situation, but the type of data that we’re looking at in these ECMs, are we looking at speed? Are we looking at braking? What type of things do we see and how far back do we see that?
Ben Phelps:
So a lot of what we’re seeing depends on the manufacturer again. Cummins, you’ll see it’s called a “sudden deceleration event.” It gives you up to 60 seconds of pre-event or pre-trigger data, 15 seconds post-trigger data. And with that, we’re looking at vehicle speeds, engine speeds, accelerator input, braking. Sometimes we’ll get whether cruise is active or not. With Detroit, we get a couple different records there. We can get a “hard brake,” which is similar to sudden deceleration, but we can also get a “last stop,” which once the vehicle’s at a stop for a certain amount of time and doesn’t move for a certain amount of time, it generates this stop record. And while we may only get a minute of hard brake data, we may get, I want to say it’s a minute and a half maybe, of last stop record, but my times may be off just a little bit on that. But it’s the same stuff we’re getting. We’re getting vehicle speed, we’re getting accelerator input, engine speed, braking.
When you go to Caterpillar engines, they’ve got what they’ve called a “quick stop.” Well, those are turned off, by default, from the factory. So unless the user or the owner of the truck has said, “Hey, I want this feature turned on,” you may not get anything outside of freeze-frame data from fault codes that are generated. And then when you get that, you can get the speed the vehicle was going when it was generated, were the brakes applied, some of those type of things. When you look at the Volvo Macks, especially the newer ones, depending on the year, you may get 60 seconds of data in quarter second intervals, or you may get 15 seconds of data before an event. But with them, now we’re starting to see steering involved, and I think that’s the first heavy truck that I’ve actually seen the steering input reported in. Outside of that, we’re getting the vehicle speed, the engine speed, the brake, the accelerator, the cruise control. So the data that we’re getting is all manufacturer dependent on the engine, typically.
In addition to the engine stuff, we can get some data from the interlock braking modules and that’s going to give us any fault codes, the programming of it. But on Bendix, it’s hidden within their proprietary file and you have to send it to them to get it interpreted. They have what they call BDR, Bendix diagnostic records. And within that, you can get yaw rates and vehicle speeds and some of that type of stuff that’s occasionally useful, especially if you can’t get anything else. Continuing with the truck data, most of these, especially the bigger companies, have telematic systems and fleet tracking systems. They want to know where their trucks are, they want to know what they’re doing, and there’s a wealth of information from that. Some of them are tied in with the communication system of the truck, and they’ll pull vehicle speeds and engine speeds and braking from the truck’s communication system. And some of them will use GPS from speed, some of them will use both.
But from that, you’re getting GPS coordinates, vehicle speeds. These things can be programmed to where, if it detects a certain amount of reduction in speed, it can notify whoever they’ve told it to notify. And it can be emails, it can be text messages. And it’s the same when you’re looking at the video cameras, the dash cameras we’re now starting to see. Those things have come a long way to where some of these companies, they can log in and watch the driver drive down the road, and if he takes a turn too fast, if he stops too fast, if he accelerates too fast, they can program these triggers and it can notify whoever they have told it to notify by email, text, phone call, whatever their method is. So you’ve got that type of data available, which with that, especially the camera systems, usually you’re getting video with it, which is helpful.
David Craig:
We’re starting to see a little bit of inward-facing cameras. So some companies actually have outward-facing cameras, so they look out forward and see what’s going on. But they also have some companies use cameras that actually videotape the drivers — which, that can tell you a lot of stuff, especially if someone dozes off or falls asleep or is not paying attention. But we’re starting to see, now, I know some truckers really are against that, but some trucking companies like that because they can then monitor, in real time, periodically, and just check the status of their drivers.
Ben Phelps:
Yes, and that’s a very good point. Especially the newer camera systems, they’re coming with a lot of artificial intelligence type stuff. Some of the new cameras out there, you can program them to sense when the driver lights a cigarette, when the driver has a drink in their hand, when the driver’s head nods. In my law enforcement experience, I’ve got 11 miles of interstate that ran through the city, and there’s several times we would get a call from a trucking company to check the welfare of one of their trucks going down the road because they’re getting notifications that he may be dozing off or he may be leaving his lane of travel. So a lot of them are using that type of stuff as a safety feature, not only for the other drivers, but for their driver as well.
And then another thing that I haven’t touched on yet is the collision mitigation systems of these trucks. Now you’re getting forward-facing radar, and lane detection through a forward-facing camera has been around for a few years and a little bit now, but now you’re starting to get to where they’re more incorporated and they have automated braking assist. So if it detects you’re closing on an object or a vehicle ahead of you, it’ll start giving you warnings. And if it doesn’t sense that response, the truck will start braking for you or it’ll tell you when you’re leaving your lane. Some of these camera systems will even tell you, “Hey, you’re going over the speed limit.” It’ll sense the speed limit sign and say, “Oh, hey, you’re speeding.” So there’s a wealth of data in these trucks. It’s just knowing how to access them and obtain what you need. But then the other key is, now that I have this data, how do I properly interpret and apply it?
David Craig:
Sure. And I think a starting point is when you go out and inspect these vehicles, I assume that’s one of the first things you do is look and see, well, what kind of data is there? What kind of systems are they using? We had one here recently where the tractor trailer was completely destroyed. I mean, there’s no data available from the tractor. The tractor’s completely destroyed. There’s nothing there. Nothing to download, no cable, and there’s nothing to put a cable into. However, because of the telematic system, we have downloads on how fast and slow and braking, and we have everything because the company was monitoring. And so even though we weren’t able to get it from the physical truck anymore, we’re able to get it from the company, from who they use. There’s so much more out there, but you have to know what companies do they use, what system do they have, what data are they monitoring? Some pay extra for certain stuff and don’t pay for other stuff. And so you have to know what you’re looking for, right?
Ben Phelps:
Yes, you do. And one of the things that it can be difficult in our world, but it’s pretty much a necessity anymore, is you have to keep up with what’s there, what’s available. So over the years, and as time goes on, we’re knowing, okay, if it has this type of system in it, here’s what data I expect, here’s how we typically need to go about getting it. And then if I’m given data, I can say, “Well, no, this isn’t everything,” or “There should be more to this,” or something like that. But yeah, you have to know, most companies love cloud storage. Things are transmitted fairly quick after they’re captured. There’s a number of times, and most of it’s defense side for me, but there’s a number of times that I may be getting a video clip or a snippet of a telematics download on a rapid response before I’ve even made it to the scene yet. So I’m already getting an idea of what to expect. So it’s very important that you know what’s going on.
When they have these triggering events, especially with the camera systems and the telematics, a lot of times, those do get preserved because let’s face it, everybody’s got to work on protecting their interests as well, so they’re going to preserve them, but that doesn’t mean you can just assume they’re going to preserve them. You still need to get somebody on it. You still need to say, “Hey, what’s out there? What’s this got in it? And get the appropriate ball rolling to try and preserve and obtain that data. One of the things we do is when we get a case in and start building a file, especially with heavy trucks, we’re looking at, okay, what kind of engine does this have? Because that’s going to tell me what kind of equipment I need, that’s going to tell me if I need to bring in the specialist with Volvo Mack for the main download.
Then when I get at the truck, I can say, “Okay, here’s what the collision mitigation system is on it. It may or may not have video associated with that. Hey, it’s got a dash cam. Here’s what the manufacturer is, so I know what it should have. Okay, here’s this telematic system.” And then you throw in this whole new world of electronic logging for their log books. So now you have the electronic logs. Well, some of their electronic logs also capture data related to the truck’s performance, such as speed, brakes or any type of fault codes or what some will call “critical faults.” So there’s so much data available in the trucks, but again, you got to know where to go and what to expect.
David Craig:
Absolutely. And if you’re a lawyer, you’ve got to know who to hire to get that information because not all reconstructionists are equal. Not all of them understand heavy trucks.
Ben Phelps:
No, and my experience is there’s a lot of reconstruction people and firms and agencies across the country, and a lot of them do great work. Not all of them do heavy trucks. So if you get one that doesn’t regularly do heavy trucks, they may not be as current or as up to date on the available data that some of us that do it all the time are.
David Craig:
And I would say that’s the same way with attorneys. Unfortunately, I get cases referred to me close to a statute of limitations. Someone sat on it and did nothing to preserve any of the evidence, and then all of a sudden, I get a phone call and they say, “Well, they’re not going to settle with me. Here’s my case.” And you’re like, “Well, what did you do? Did you send preservation letters out?” “No, no I didn’t.” They didn’t do any of it. And so, I mean, the nice thing about it is, I don’t have to be a mechanic. I don’t have to understand how you get the data. I just have to understand what am I looking for? What’s out there?
And I have to know who to hire. And that’s unfortunately, not all lawyers. They may be personal injury attorneys, but they may not have ever handled a truck case. And so if you’ve never handled one, then in my mind, you’re at disadvantage because I’ve never met a truck defense lawyer who hasn’t handled truck cases. The trucking companies and the insurance companies know who to hire. They have firms that specifically do transportation law. And so no matter where I’m at, they’re experienced.
Ben Phelps:
No, and I think that’s important to look at because the commercial vehicle and the trucking industry, it’s specialized, and these cases are more specialized as well. When you get an accident involving a heavy vehicle, there’s a lot more at stake. Usually, there’s a lot more catastrophic injuries, there’s a lot more property damage. There’s also a lot more, in some cases, insurance coverage involved. So everybody’s trying to get their cut, get their piece or protect their interests. But a lot of people, with the amount of injury and destruction and damage that’s involved in these, it’s easy to miss stuff if you don’t deal with it all the time.
David Craig:
Yeah, absolutely. We talked about trucks, but cars now have a lot more information in them. And so one of the things is, if I represent the victims of a car crash with a semi, and a semi has hit a car, you think, “Okay, I got to focus on the truck.” But at the same time, you also need to focus on your car because there’s data there as well, and you want to make sure that data is preserved. It’s the first thing I do is make sure that the vehicle, my vehicle is preserved and make it available to the defense to download, because I don’t want anybody to think that we’re doing anything improper or get a jury instruction or a separate cause of action for spoliation in some states. So tell us a little bit about what kind of stuff now is available in cars.
Ben Phelps:
So, cars are also a wealth of data. You have the traditional airbag modules that are capturing crash-related data a lot of times. The advantage there is if you have a power loss, they’ve got the capacitors that keep enough power to write this data to the module, so you got a better chance of getting related data from the module once the thresholds are met. But you’ve got more beyond that. You’re getting cars now that are coming out with forward-facing cameras, these collision mitigation systems that when it senses an event, you’ll get a picture X amount captured, X amount before the event, at the event, after the event. So now you’re getting these still photographs that can give you an idea of, okay, where was this car on the road? Where was this other person? A pedestrian, if you happen to get one triggered by that, where were they at?
You’ve also got more and more cars getting equipped with dash cameras, but you’ve also got infotainment systems that are huge in cars now, and they’re starting to have more practical application in the crash world, especially for law enforcement. Law enforcement can use them to track the path of a car, especially if you’re looking at hit-and-run type stuff. But sometimes with these infotainment systems and the data you can get out of them, it’ll give us an idea if the driver was on the phone at the time. Was the driver using some type of app? It can give us an idea on speed. If for some reason the airbag module didn’t capture an event, well, maybe the infotainment system captured something, but you also have, and it’s in the trucks 90% of the time as well, you also have the driver’s cell phone. And that can be very telling as well. So preserving that cell phone and getting it imaged or dumped to look at what was going on around the time of the crash, may provide some insight.
David Craig:
And it’s getting more and more complicated. I can remember the very first case I had, which was out in Iowa, and the first time we had one with a car, it was basically a computer. They could tell if they were on the phones, they could tell all that type of stuff through this Cadillac. And it was like, “Holy cow, there’s so much information there.” And it was important because those two people in that car died. So they’re not there to give any testimony.
Sometimes we’re trying to prove things, but other times, I’m just trying to disprove things. So you’re trying to disprove. We want to show that someone’s not on a cell phone. You want to show someone is not speeding. And so we think about it in terms of, well, we want to prove the other side is doing this or doing that, but at the same time, we also want to prove that our client’s not doing certain things, or if they are doing things, I need to know about that on the front end. And so I think you have to look at it from that perspective as well.
Ben Phelps:
Oh, yeah. And we should be looked at objectively, as well. And just like you said, “Hey, I can prove by this what X was doing and what Y was doing or what they weren’t doing.” I think that’s just as important to a case and to the families for closure as, not only what they were doing wrong, but what were they doing right? It’s not always about who’s in the wrong or what. Sometimes to get closure, you just need to know what happened, and maybe they weren’t doing anything wrong, they were just in the wrong place at the wrong time. But I think it’s important for everybody to be looking at it objectively and looking at, okay, yeah, this is what X was doing wrong and this is what X was doing right. Same with the other people involved.
David Craig:
I’ve been doing it for over 38 years, and I’ve never had a client come to me in one of these catastrophic cases, “Oh gosh, how much money are we going to get?” I mean, everybody comes to me when there’s a fatality, when their family member’s not available to tell them the story, tell them what happened, they want to know what happened. And they do for closure, they want to know the good and the bad. I mean, they come to me and say… And I promise, I say, “I don’t know whether you have a case or you don’t have a case.” I mean, sometimes we do, but sometimes we don’t. And so on the cases where I don’t know, I tell them, “I don’t know, but I will find out. I will find out. We’ll have a better idea six months from now than we did today after I do our investigation.”
And the family members are always appreciative of that. I’ve spent tens of thousands of dollars to find out that I didn’t have a case, and the family still was appreciative because I did that. They didn’t owe me the money. I advanced it. And they were still appreciative of the fact that I was able to answer their questions as to what happened.
Ben Phelps:
Well, and I think ultimately as an accident reconstructionist, that’s what part of my job is as well. I may be hired by one side or the other, but I’m not there to make it or sway it one side or the other. I’m there to look for the facts, what can I prove? What can I scientifically say happened and help provide some of those answers for the closure. I think if you’re getting a client or somebody that’s solely looking at the dollar sign, you’re not going to get the investigation that you should. You’re not going to get something as in-depth. But I also don’t think that the family or the clients are going to get the closure that they need because it’s so focused on that dollar sign.
I know a lot of times you’ll hear people joke around or make fun of people, families or whatever, that get a plaintiff attorney quickly after the crash, and they think it’s all a money grab. But it’s really not, in my opinion. It’s, A, we got some interest to protect and B, we want some answers, and this is the best way to get it. Because they realize that if I don’t get the proper people involved, stuff is going to fade away over time. Evidence is going to disappear. So again, timing in these things is of the essence.
David Craig:
Well, and I think that what I enjoy about doing this is being able to give those answers to families and working with people like you and Kevin and your company and Mark. The reality is that sometimes even with all this data, you still have to put the cases together. You have to take it, and you never know what you’re getting into. I mean, I can remember a bus case, a school bus case, where they had chosen not to activate the data, the electronic control module, yet at the same time, they had a camera that faced backwards. We were hired quick enough in the right season where I was able to get another bus and drive that bus on the same route. And because of the shadowing of trees, we were able to track that bus route and determine speed of that bus by getting hired.
So even though the bus chose not to activate their electronic control module, because we were hired quick enough, I was able to get a bus and actually reenact the whole crash where a pedestrian got hit. And we went from a police report that was against us to being able to buy the family security for this man’s children. But that’s a unique case where you have to get hired and you have to work with the right reconstructionist to be able to figure out these puzzles.
I had a box truck that hadn’t had it activated, but there was a security camera, and we were able to time the distance between passing this pole and that pole and the reconstructions were able to figure that out. I mean, there’s just so many different pieces of the puzzle that even though you get some data, you got to take it and put it all together and figure out what happened.
Ben Phelps:
Well, and one of our important jobs is I can get all the data in the world out of these vehicles, but if I can’t corroborate it or prove it up, then it’s not really good data. So I need to be able to take this data and say, “Yes, this matches my roadway evidence. This matches my dynamics of the crash. Yes, this is a reasonable speed. No, this is not a reasonable speed.” They’re computers, and while they have a low error rate, typically they’re not perfect either. So you still can’t take the human element out of it. You still have to look at your overall collision. You still have to look at your roadway evidence, your vehicle evidence and say, “Is this consistent?”
And one of the things that just frustrates me is I, over the years, have dealt with a few law enforcement agencies, both as a police officer assisting them and with my work in the private sector. And they’ve taken some of the stance that, “Well, we can’t do anything with this crash. There’s no data.” Well, if you don’t have data, go back to the old school methods. Go back to your physics, your math, and the science and look at it. But look outside the box too, just like you were talking. We were looking at shadows and videos from your bus or surrounding residents, stuff like that. There’s a lot of different options, but the biggest thing with data is you have to be able to prove it up and say, “Yes, it’s consistent with this crash and these circumstances.”
David Craig:
Absolutely. And the sooner you get hired, the better your chances are to gather as much information as you can. We’ve followed the path of vehicles before, and so we’ve been able to show, through security videos from different businesses, vehicles speeding on the path to the wreck. There’s just so much stuff that you can gather that can help you. And then you get the eyewitness testimony, you start building it, and you eventually are able to figure out, okay, well here’s what most likely happened. But you can’t do that if you don’t get hired soon enough.
Ben Phelps:
No, nope. And again, the sooner the better. Even if you’re not going to get the outcome that you desire or that your client desires, they may still be able to get the closure, but they’re getting that because of the early involvement. You’ve got the opportunity to get all this evidence and take an in-depth look at it. And you alluded to it earlier, the police reports aren’t always right. So if you get that evidence early enough, you may able to say, “Hey, this isn’t wrong.” I mean, I’ve worked with my own guys on the police department, we’ve made mistakes that we’ve had to go correct. We’ve had other people say, “Hey, did you consider this?” or “Did you see this?” Aerial photography is now a big part of reconstruction. And there’s some, where we’ve started working it, and then we look at the aerial stuff and it’s like, “Holy cow, we missed this tire mark. How’d we miss it?”
So you have to look at the whole picture, but the key is time. Defense, it’s easy. A lot of defense, especially with trucks, sometimes they’re involved before all the patients are gone. Plaintiff, it’s a little more challenging, but the opportunity’s still there if you get them hired quick enough.
David Craig:
I think that even though for 38 years I’ve been doing the same thing, and I’ve been fortunate enough that I’ve worked with heavy truck cases for my entire career, and the way we gather information is different. The urgency is not. The day when I used to get hired, I mean, I used to hire pilots to fly over the scenes before drones, and I would fly pilots over and we would capture it because if it changed, it was gone. And so we would fly planes and I’d hire pilots to get in and photograph it. Now we use drones. I mean, there’s just so much stuff has changed, but yet the one thing that hasn’t is that, the quicker you get out there, the better your chances are of preserving the evidence. And that hasn’t changed any.
Ben Phelps:
No, and I don’t think it’s ever going to. One of the things that I was going to mention earlier and it spaced me is, timing is very important, especially if you have either a construction zone or a temporary construction zone. Advanced warning becomes a big issue in these. And if you wait too long to get that all documented, they may have been moved. Again, if you don’t get the right attorneys involved, they may not know what the advanced warning requirements are and what the requirements are for these contractors to verify their signage on a daily basis.
David Craig:
Yeah, and video footage when they make their runs, how long will they maintain that footage to the contractors of their site? I mean, there’s so many different issues in construction zones. I had one down in Kentucky where we scanned miles of the path of the vehicle traveling through the construction zone so that we would have that preserved on signage and where everything was at. And fortunately, we were hired quickly. And construction cases are trickier than anything because of the fact that things change so quickly. Well, is there anything else, Ben? I mean, appreciate your time. Anything else that you think people should know that we haven’t chatted about?
Ben Phelps:
I think the biggest thing for everybody to know and understand is don’t be afraid to seek help early. Reach out. Just because you reach out and inquire with an attorney as to what’s happened doesn’t mean you’re stuck with them; doesn’t mean you’re going to owe any big bills. I mean, a lot of them will take a consultation on the case and not hit you with a big bill, but reach out, get them involved, get their thoughts. And another thing that I try to preach is keep in mind, yes, there’s similarities in crashes. No two crashes are the exact same. So just because it’s a similar type of crash to something else, doesn’t mean that you’re going to get the same outcome, but you won’t know that if you don’t get them involved early and start getting that evidence preserved and collected.
David Craig:
Yeah, absolutely. And I think that with respect to attorneys, if you’re the victim, every lawyer I know that does this type of work is going to talk to you for nothing. You’re going to usually work on a contingency fee, so you’re not going to owe them. They’re going to advance the expenses, so they’re going to hire all the experts and you’re not going to have to pay money out of pocket. So there’s really no downside. And if there is no case, then you’re not going to owe them any money now. And the challenge is that I just finished writing a book that said “it’s never been easier to pick the wrong attorney” because there’s all these TV commercials, these billboards. And it’s not to say that somebody who does TV or billboard or whatever is not a good lawyer, but you don’t know whether they are or they’re not. And just because they are all over the buses, they’re all over the billboards, doesn’t make them the best attorney to handle a particular case.
And so, you should be able to go talk to somebody. I believe you should narrow it down to two or three and then go interview them. And any lawyer who’s not willing to sit down with you and answer your questions honestly and not discuss their experience, their results, then you’ve got the wrong lawyer to begin with. If they can’t tell you about truck wrecks and they can’t tell you about how they’ve handled them, what kind of cases they’ve handled, what kind of results they’ve gotten, what they would do, what kind of experts would they hire, then you’ve got the wrong lawyers to begin with. It may be a little harder to find the right attorney, but the reality is these cases are catastrophic. They’re going to affect your family for the rest of your life. You want to make sure you put time and effort into finding the right attorney.
And I would say, with respect to reconstructionists, the attorney needs to make sure they hire the right reconstructionist on a heavy truck case. So if a lawyer’s looking, and I do get lawyers who comment, I had a lawyer from out of state, California, just reached out who was watching this podcast. But if a lawyer’s looking at it and they’re trying to decide how do I hire a reconstructionist for a heavy truck case? What type of things should they be looking for?
Ben Phelps:
I think you want to look for somebody that, especially with a truck case, that does them frequently or does quite a bit of them, but you want one that’s staying up with technology and staying current, especially with the data acquisitions that you can do now and the analysis. Once you really get into mediation, maybe doing mediation videos, you may be doing trial prep exhibits, or during trial, you may want to get into where you’re doing some type of animation stuff. So I think you want to try to get somebody on board that’s got experience with that or has the ability to facilitate that.
In our company, we do quite a bit of stuff, but we also have other companies that we may bring in to help us with a video aspect. If you want to do some type of video analysis or some type of animation, we may do some of the basic ones, but depending on what we’re getting, we’re not afraid to outsource it. So you also want somebody that knows their limitations. There’s several times where I’ve said, “Hey, that’s a little bit out of our wheelhouse. We can help facilitate it, or I can get you some names.” And a lot of times, we’ll end up working with these other experts. But I think when you’re looking for one, you want somebody or an organization that works in this industry and isn’t just doing a truck crash here or there.
David Craig:
And I would add to that, those people who do that, like you guys, will have the investment in the equipment. There are some out there who, they don’t do enough of it that often enough, that they haven’t invested in the equipment because, like you said, it can be hundreds of thousands of dollars. And so, as an attorney, I want to work with experts who have the equipment to do the job right.
Ben Phelps:
Yep. Your outputs and your results are only going to be as good as the people you have working on it.
David Craig:
Absolutely. All right, Ben, well thank you so much for your time. I appreciate you being a guest on After the Crash.
This is David Craig, and you’ve been listening to After the Crash. If you’d like more information about me or my law firm, please go to our website ckflaw.com or if you’d like to talk to me, you can call 1-800-ASK-DAVID. If you would like a guide on what to do after a truck wreck, then pick up my book, Semitruck Wreck: A Guide for Victims and Their Families, which is available on Amazon, or you can download it for free on our website, ckflaw.com.
