Commercial Agendas

Sometimes commercial dynamics have far more to do with settlements than do the facts of a case. But only if a plaintiff’s attorney is willing to exploit them. This reality is a symptom of our time, where giant oligopolies have swallowed up much of the public transportation landscape. At the operating level, a handful of private contractors or brokers dominate the market in many public transportation sectors. This is largely true in most sectors at the vehicle level, where choices are limited to only a handful. Most lawsuits will not threaten these dynasties’ agendas. But the right law suit can, where these defendants cannot afford to go to trial.

These dynamics are complex, and usually lie beneath the surface in accidents and incidents. As a result, many fine and even brilliant attorneys may not be aware of them. But a seasoned expert who, for decades, has kept track of the swirling dynamics in each sector can identify the vulnerabilities, and give his counsel some interesting choices.

Big defendants couldn’t care less about, “I want umpteen million on my desk by Friday and I can control my client.” But they live in fear of, “You know, I think we’ll go out to bid this year.”

At the management and operating levels, one NEMT broker has an astonishing number of multi-billion-dollar contracts for its purported selection, management and oversight of endless private contractors which it is starving into committing relentless safety compromises. (See Similarly, one schoolbus contractor deploys one-sixth of the nation’s 450,000 or so schoolbuses — and half of all privately-contracted schoolbuses deployed.

At the vehicle level, there are only three manufacturers of large and full-size schoolbuses. And the sole American motorcoach manufacturer owns nearly half of the U.S. market.

As an example of the exposure and vulnerability of these giants, the major oligopoly with a multi-billion-dollar annual contract with a state, and a really ugly case with dozens or scores of errors and omissions, does not care about this statement: “I can control my client. I want several million dollars on my desk this Friday, or we’re going to trial.” What this defendant lives in fear of is this statement: “You know, I think we’ll go out to bid this year.” This is because really ugly incidents tend to garner considerable press. This coverage places political pressure on the government entities ostensibly in charge of them to “find someone else.” As examples of cases where TA President Ned Einstein found such dynamics:

  • Over a four-year period, the driver of one oligopoly’s schoolbus molested six developmentally-disabled female passengers nearly every day .
  • In another case involving an oligopoly NEMT broker, Mr. Einstein is planning to testify that no driver of the accessible van he examined had secured a single wheelchair in it for at least the past two years.

A defendant’s risks associated with proceeding to trial in such a case can be troubling. But this dynamic does not come from the examination of evidence. It comes from an expert’s keen knowledge of the industry, and who the most visible and vulnerable players are.

On the defense side, there are sometimes no excuses for the astonishing settlements offered in frivolous lawsuits largely because bus operators (in most states) and motorcoach operators (which operate across state lines) are required to hold only $5M in liability insurance. (In Canada, they must carry $25M.) Here, when a motorcoach driver falls asleep at the wheel, and most of the passengers are killed or transformed into quadriplegics, the operator’s insurance barely makes a dent. So plaintiffs’ attorneys go after otherwise innocent codefendants with deep pockets. After one such catastrophic accident in 2008 with five fatalities, the vehicle manufacturer settled for $30M. In an accident three year later, where the driver fell asleep at the wheel and 17 passengers were killed (and dozens more mutilated), this same manufacturer needlessly settled for $18M. In either of these accidents, a good expert with a knowledge of bus sales reality at the time the vehicle-in-question was sold could have provided immense insight. Helping defend a smaller fellow codefendant in the second of these accidents, TA President Ned Einstein and a fellow-expert helped it settle the case for a handful of magic beans.

Another set of dynamics relates to the lack of regulations in the U.S. regarding driver assignment. Unlike Canada, the European Union, Australia and likely a few other places, America has no regulatory provisions, which (if followed) would prevent motorcoach operators from committing “shift inversion” — what Mr. Einstein has coined as “Bus Lag.” (See “Bio-Sensitive Driver Assignment.”) Tiny motorcoach operators and oligopolies alike often make no connections among (a) schedule creation, (b) driver assignment to shifts on those schedules, and (c) safety. This omission simplifies their “management,” saves them money and avoids union conflicts (whereby drivers select the shifts they want based on their seniority). This multi-faceted omission is not difficult to explain to the jury:

  • Let’s say you work 9-to-5.
  • Tomorrow, report to work at 1 PM, OK?
  • The next night, report to work at 5:00 PM, OK?
  • The day after that, report to work at 9:00 PM, OK?

By the end of the fourth day’s shift, one’s head is likely to drop into a bowl of hot soup. Yet many motorcoach drivers operate 53,000-lb. vehicles, much of the time at highway speeds, under these same conditions. In this operating environment, shift inversion eventually takes its toll.

In a world dominated by giant oligopolies, the big money for plaintiffs’ counsel lies in an understanding of the public transportation industry’s dynamics and its participants’ commercial agendas. Similarly, the way out for the genuinely-innocent defendants in this world lies in an understanding of these same dynamics and commercial agendas.

Keeping it simple is a presentation skill. It is not a prudent approach for analysis.

With a genuine expert in this field at one’s disposal, “keeping it simple” is an often-misunderstood concept: Keeping it simple is a presentation skill. It is not a prudent approach for analysis. Plaintiffs’ attorneys unwilling to pay for this analysis often leaves most of the money on the table. Defendant’s attorneys unwilling to pay for it can lose their clients’ shirts.