Trial Magazine

Trial lawyers spend a lot of time spotting trouble. People don’t contact our offices unless they or someone they love have been seriously harmed. Through our client interactions, we identify patterns and trends. We meet people who were harassed by the same office manager, ripped off by the same bank, or injured by the same car model.

In this transportation-themed issue of Trial, AAJ members give you a glimpse of the trends and trouble spots they have flagged across the transportation spectrum. You’ll find articles about opioid use in truck crash cases (p. 23), driverless cars (p. 34), liability in distracted driving cases (p. 44),  and more.

Transportation is my area of practice. I have been thinking about the development of driverless (or “robot”) vehicles, and the possible pitfalls ahead. How will manufacturers and industries balance innovation and safety?

AAJ has been monitoring this technological frontier for many years, always on the lookout for laws or regulations that could limit injured consumers’ rights. After the National Highway Traffic Safety Administration (NHTSA) released the first version of its Federal Automated Vehicles Policy in September, AAJ flagged concerning areas regarding preemption of state common law, discovery, and cybersecurity.

The overarching concern is that these new guidelines are little more than a ­framework. They are neither mandatory nor formal regulations—though NHTSA has indicated it will take steps to regulate if manufacturers do not comply.

Government regulations serve as a conscience for corporate America, imposing accountability and keeping people safe. Few, if any, large corporations and industries voluntarily meet safety standards or develop products to protect consumers unless forced to do so.

AAJ’s reading of the guidelines finds that they may preempt state regulation of performance and safety of “highly automated vehicles” (HAVs), as NHTSA calls them. The policy states that the U.S. Department of Transportation (DOT) “strongly encourages States to allow DOT alone to regulate the performance of HAV technology and vehicles.”

AAJ expects a battle over preemption and the scope of a 2000 U.S. Supreme Court case, Geier v. American Honda Motor Co., Inc., which held that the plaintiffs’ claims for damages under D.C. tort law were preempted because they conflicted with the objectives of a Federal Motor Vehicle Safety Standard issued by the DOT under the National Traffic and Motor Vehicle Safety Act of 1966.

The current NHTSA guidelines could preempt claims based on state standards, including products liability suits, design-defect cases, and common law negligence cases based on violations of state safety standards. Also, injured parties in motor vehicle lawsuits involving issues such as privacy, hacking, and identity theft likely would be unable to use state causes of action related to cybersecurity best practices.

The guidelines do not address discovery of vehicle data for court cases. How will discovery—potentially revealing system failures and establishing who or what was in control of the vehicle at the time of the crash—be managed in the initial cases that move forward?

While driver assistive technologies such as automatic parallel parking and brake intervention have arrived, entirely driverless cars will not be widely available for at least another two generations. Between now and then, AAJ will carefully monitor the legislative and regulatory fronts, and AAJ members will keep a keen eye out for trends indicating that innovation and safety are not yet in sync.

Julie Braman Kane is a partner at Colson Hicks Eidson in Coral Gables, Fla. She can be reached at julie.kane@justice.org.