Mining The FMCSA Safety Measurement System
Before the deposition, pull the carrier’ s SMS data from the FMCSA website. The Safety Measurement System organizes safety data into seven Behavior Analysis and Safety Improvement Categories— the BASICs: Unsafe Driving, Hours-of- Service Compliance, Driver Fitness, Controlled Substances / Alcohol, Vehicle Maintenance, Hazardous Materials Compliance, and Crash Indicator.
Look for any BASIC where the carrier’ s percentile ranks above the intervention threshold. A carrier in the 75th percentile or above for Unsafe Driving or HOS Compliance is a carrier that the government itself has flagged as problematic. That data is powerful in deposition because it forces the safety director to either acknowledge the systemic problem or try to explain it away— and either answer helps you.
Cross-reference the SMS data with the specific violations found during roadside inspections. If the company has a pattern of HOS violations, brake defects, or tire failures, those patterns become exhibits in your deposition and evidence of notice at trial.
Key Deposition Topic Areas And The Questions That Matter A. Driver Hiring and Qualification
This is where you establish whether the company put a dangerous driver on the road and whether a reasonable hiring process would have prevented it.
Start broad and then narrow. Ask the safety director to walk you through the company’ s standard hiring process from start to finish. Then apply it to the specific driver:
•“ Walk me through exactly what you did when you hired [ driver’ s name ]. Start from the moment the application came in.”
•“ Under 49 CFR 391.23, you were required to contact every employer this driver worked for in the previous three years. Show me the responses you received.”
•“ How many previous employers did not respond to your inquiry? What did you do about that?”
•“ Did you review the driver’ s motor vehicle record before putting him behind the wheel? What did that record show?”
•“ Were there any accidents, violations, or license suspensions on the MVR? If so, what analysis did you perform to determine whether this driver should be hired?”
•“ Did the driver disclose any prior accidents on the employment application? Compare that to what the previous employer records and MVR actually showed.”
Under 49 CFR 391.23( e), the carrier must investigate the driver’ s drug and alcohol testing history with all DOT-regulated employers over the preceding three years. This is frequently where you find gaps:
•“ Did you obtain the drug and alcohol testing history from every prior DOT-regulated employer? If not, why not?”
•“ Did any prior employer report a positive test result, a refusal to test, or a violation of DOT drug and alcohol rules?”*
•“ If the answer to any of those is yes— what returnto-duty process was completed before you allowed this driver to operate a commercial motor vehicle?”
B. Training and Supervision
Most carriers will tell you they have a training program. The goal here is to determine whether that program exists on paper only or whether it is meaningfully implemented and enforced.
•“ Describe your orientation program for newly hired drivers. How many hours? How many days? What topics are covered?”
•“ Is there a written curriculum? Produce it.”
•“ What ongoing training do you require for drivers who have already completed orientation?”
•“ How do you identify drivers who need remedial training? What triggers additional training— an accident? A complaint? A roadside inspection violation?”
•“ Were there any complaints about [ this driver’ s ] driving— from the public, from law enforcement, from other employees— before this crash? What was done in response to each one?”
•“ What is your performance review process for drivers? How often does it occur? Show me this driver’ s performance reviews.”
The answer to the complaint question is often devastating. Either the company received warnings about this driver and failed to act, or the company had no system for tracking complaints at all. Both answers establish negligence.
C. Hours-of-Service Compliance
Fatigue is a factor in a significant percentage of trucking crashes, and the hours-of-service regulations exist for exactly that reason. Under 49 CFR Part 395, drivers must observe strict limits on driving time and mandatory rest periods. The carrier has an independent obligation to monitor compliance.
•“ How does your company monitor hours-of-service compliance?”
•“ Who reviews the ELD data? How often? What are they looking for?”
•“ When a violation is identified— a driver exceeding the 11-hour driving limit or the 14-hour on-duty window— what happens? Walk me through the process.”
•“ How many HOS violations has this driver had in the past two years? How many has your company had fleetwide?”
•“ Under 49 CFR 395.8, your drivers are required to
18 The Trial Lawyer