Trucking Litigation – Understanding ECMs, Qualcomm, VORAD, and Spoliation

By: Mark D. Chappell, Esq.

Chappell, Smith and Arden, PA

1-800-531-9780

www.csa-law.com

I. Introduction

We no longer have to take the truck driver's word for how the wreck happened and how our client caused his own injury or death. Technology is now available to assist plaintiff's trucking lawyers. This information is all available for free if you know where to look.

II. ECM

A. What is the ECM?

The ECM, or the Electronic Control Module, is an onboard computer and monitoring system that collects detailed factual data during the truck's operation. These onboard computers are able to collect and store information and data related to hard braking, quick stops, speed, and RPMs. All of today's major manufacturers use a version of ECM technology in their engines, transmissions, or braking systems. The amount and type of information recorded on ECMs will depend on the manufacturer, model and year of the truck.

Beginning in the early 1990's, trucking manufacturers started incorporating ECMs into their engine components. Also referred to as the "Black Box," the ECM is designed to capture information related to the driver's operation of the truck. While ECMs were originally designed to protect engine manufacturers against warranty claims, the information and data collected by ECMs have become increasingly useful in establishing driver error, poor maintenance, and Federal Motor Code Safety Regulation violations.

ECM data collection requires that the person downloading the data be informed and diligent. ECM software and hard drives are designed to retain information for a limited period of time. Information on ECM hard drives is typically available for 30 days after an event. This data is then erased, overwritten, or purged. Attempting to download this information should be one of the first steps in any investigation process. Depending on the manufacturer of the engine and the technology, knowing professionals that are authorized and capable to download the information is very important.

B. What Type of Data is Collected by ECMs?

ECMs are capable of collecting data related to the truck's speed, braking, hours of operation, and maintenance. ECMs operate by recording data during the truck's operation. There are two major categories of events where data is recorded, configuration and incident events. A configuration event occurs, and configuration data is recorded, when issues with oil pressure, coolant levels, and engine temperature take place. Configuration events can be set by the individual consumers or manufacturers. Incident events occur when the driver performs a quick stop or sudden deceleration. Incident data is commonly recorded when a truck is involved in an accident.

Early engine ECMs only recorded configuration data because the systems were designed to protect the engine manufacturers from warranty claims brought by consumers. As of today, the major manufacturers build engines with ECMs that record configuration data and incident data, which includes quick stop data, last stop data, and diagnostic records.

In particular, ECMs are capable of recording the truck's average speed, highest speed, the amount of time that the truck was traveling over 65 miles per hour, and the engine's revolutions per minute. As related to braking, ECMs can measure braking events, such as hard braking, quick stops, and the last stops. ECMs are also able to measure the hours of use and operation of the truck, including idle and running time. However, certain ECMs will only record such information and data upon the occurrence of an event.

C. What Trucks Utilize ECM Technology?

Major trucking manufacturers began building engines with ECMs in the early 1990s. Caterpillar, Cummins, Detroit Diesel, Mack, and Mercedes Benz are among the manufacturers that build engines with internal ECMs. The particular engine manufacturer, the year, and the model of the engine will determine what information is recorded by the ECM. As a rule of thumb, the earlier model years will provide less information, and the window of time to preserve the information on the ECM will be smaller. In determining the specifications of the particular engine, the easiest way to identify the manufacturer, year, and model of the engine is to look at the identification tag, which is usually located on top of the valve cover or to the left side of the engine.

1. Caterpillar

Caterpillar began manufacturing engines with internal ECMs in 1994. Today's models record calibration information, trip, fault information, and diagnostic code snapshots. Caterpillar engines have yet to manufacture ECMs that record last stop data. Depending on the year of the Caterpillar engine, certain incident data may not be recorded. Early Caterpillar ECMs may present two issues. First, early Caterpillar ECMs will not record quick stop or diagnostic record information. Second, early Caterpillar engines did not have internal batteries, so ECM data will be lost if the engine loses power or the battery is disconnected.

2. Cummins

Cummins also began manufacturing engines with internal ECMs in 1994. Up until 2008, Cummins engines only recorded configuration data. Cummins ECMs began to record quick stop and sudden deceleration data after 2008. Cummins engines also require two separate software programs, Insite and Powerspec, to download all of the data from the engine. Insite is used by Cummins' technicians to program the modules, retrieve trip data, and read fault code information. Powerspec is necessary to recover configuration, trip and fault code data. Powerspec is also required to remove sudden deceleration information. Cummins engines will record 59 seconds before and 15 seconds after the occurrence of an event. Cummins engines also have a Road Relay recording system that may contain sudden deceleration information even if the ECM data is unavailable. The Road Relay recording system is typically located within the cab of the truck and can be downloaded by the Powerspec software.

3. Detroit Diesel

Detroit Diesel began manufacturing engines with ECMs in 1993. Before 1998, Detroit Diesel engines only recorded configuration data. Detroit Diesel ECMs began recording quick stop, last stop, and diagnostic records in 1998. Following an event, Detroit Diesel ECMs are capable of recording vehicle speed, brake, throttle, and cruise control levels. Detroit Diesel ECMs will record 104 seconds before and 15 seconds after an event.

Like Cummins, two separate software programs are needed to recover all of the data from Detroit Diesel engines. Detroit Diesel Electronic Controls Reports recovers the daily miles traveled, operation time, average speed, and fuel economy from the last 3 months. Detroit Diesel Diagnostic Link retrieves calibration and additional fault data. It is important to note that the earlier Detroit Diesel ECMs also do not have internal batteries, and data will be lost if power cannot be maintained to the ECM after an accident.

4. Mack

Mack began manufacturing engines with ECMs that recorded configuration and quick stop data in 1998. In 2006, Mack began manufacturing engines that also recorded last stop data. While configuration and fault code information is downloadable by the public, quick stop and last stop events are not. To download quick stop and last stop data, you must be authorized by Mack. Mack engines will record the 75 seconds surrounding the event, which can include data such as wheel speed, engine speed, clutch use, and cruise control status.

5. Mercedes Benz

Mercedes Benz began manufacturing engines with ECMs in 2000. Mercedes Benz uses Detroit Diesel software to download ECM data. Mercedes Benz ECMs record the same data as Detroit Diesel engines, for the same events, and for the same period of time surrounding events.

6. Available ECM Information by Engine Manufacturer

ECM Data

Potential Data in ECM

III. Eaton's VORAD

A. What is VORAD?

Eaton's Vehicle Onboard Radar, or VORAD, is an onboard radar system that is designed to monitor driver error and prevent trucking collisions. Eaton's VORAD system provides truck drivers with variable audio and visual warnings when the radar system detects potential oncoming hazards that may appear around the driver's truck. The VORAD system is available for commercial and consumer vehicles. Eaton offers the VORAD system to manufacturers and trucking companies for installation during truck assembly. Eaton also sells a version of VORAD system that can be retrofitted and installed on trucks that are already on the road.

Today's VORAD models offer an onboard computer that monitors and compiles safety data during truck operation, which can be transmitted or downloaded via satellite. As compared to the ECM systems, Eaton's VORAD system enables the user to download safety data wirelessly. This option greatly decreases the possibility that the electronic operation and performance data will be lost.

B. How does VORAD operate?

VORAD operates through a series of radar sensors that can be placed in the front, rear, sides, and blind spots of the truck. The sensors emit high frequency radar pulses that detect potential oncoming hazards. These sensors are wired into a central processing unit that analyzes the speed of the driver's truck, the distance between the driver's truck and any oncoming hazard, and trajectory of any oncoming hazard. When the central processing unit detects a potential hazard, driver display units warn the driver through a series of lights and audible noises that vary with the hazard's speed and distance from the truck. Using this high frequency radar pulse technology, later VORAD models are also capable of detecting hazards that are around corners, and maintaining pre-set cruise control speed intervals between the truck and a vehicle ahead.

C. What Type of Data is Collected by VORAD?

Eaton's VORAD system is able to monitor and compile information related to the truck's speed, braking, driving time, and following distance. As with ECMs, VORAD measures the truck's average and maximum speeds. The VORAD also measures and stores data from the truck's braking events. Notably, the VORAD measures safety data related to how much time the truck spends inside of one, two, and three car lengths from other vehicles.

Eaton's VORAD system is capable of satellite remote downloads. As compared to ECMs, if the VORAD system is equipped with Eaton's Vehicle Information Management System with Satellite Connection, or VIMS+, the potential loss of safety data is minimized because the truck data can be downloaded remotely. However, this data is usually sent to the trucking company, and the trucking companies will fight your requests for this data.

Eaton's VORAD system also offers an accident reconstruction feature. This feature is able to provide an analysis of the speeds, deceleration, and trajectory of all of the vehicles involved in an accident. The VORAD system is capable of measuring and collecting all of the data from any vehicle that is located in the VORAD's radar beam pattern. This data can also be downloaded wirelessly via satellite.

IV. Qualcomm

A. What is Qualcomm?

Qualcomm Enterprise Services began developing and manufacturing mobile equipment and technology to help track and collect data in the trucking and motor carrier industry in the late 1980s. Beginning with the OmniTRACS system, Qualcomm has developed mobile tracking, logistics, safety, compliance, and communication technologies that are widely used in the trucking industry today. Their numerous products utilize global positioning and cell phone technology to transmit information and data from individual truck driver's rigs to the trucking companies while they are on the road. In fact, Qualcomm's global positioning technology boasts that it can pinpoint a truck's location within a three block radius anywhere in the world.

B. How Does Qualcomm Operate?

Qualcomm technology operates by sending and receiving information from an onboard computer through a system of satellites to Qualcomm Enterprises, which is then relayed to the individual trucking companies. Inside the trucks, the technology operates through an onboard computer and transmitter. The onboard computer is typically located inside the cab where it is easily accessible by the truck driver. The transmitter is usually located on top of the roof of the truck. Once the information is transmitted from the truck, it is relayed through a series of satellites, which are communicated to network operation centers at Qualcomm Enterprise Systems. Qualcomm then analyzes the data and relays it to the individual trucking companies. Using this system, Qualcomm is able to keep track of a truck's location, speed, and fuel usage.

C. What Type of Data is Collected by Qualcomm?

Qualcomm Enterprises Services offer a wide array of packages that collect a broad range of information. Qualcomm offers service packages that transmit information relating to the individual truck's hours of service, fuel usage, speed data, hard braking information, in cab tracing, servicing records, safety compliance, and other critical event information. While Qualcomm offers numerous packages that collect valuable trucking data, the individual trucking companies must purchase these services, which means there is no guarantee that such information is necessarily available.

In particular, Qualcomm's CSA Safety Performance Service, Critical Event Reporting, and Hours of Service applications collect and transmit information that is potentially invaluable. The CSA Safety Performance Service is designed to assist trucking companies with federal motor carrier compliance. This service collects and analyzes driving and performance data that is scored, correlated, and compared to industry-wide and federal motor carrier standards. Qualcomm's Critical Event Reporting provides near real time examination of driver performance. The Critical Event Reporting monitors the driver's hard braking, roll stability, lane departures, and other driver initiated results. The service can also deliver instantaneous reporting of accidents. Qualcomm's Hours of Service application provides electronic drivers' logs. This service operates through an electronic on-board recorder that automatically creates electronic driver logs, which takes log book maintenance away from the typical trucker.

V. How This Information Is Useful

ECM, VORAD, and Qualcomm information is invaluable, and should be preserved as soon as possible. While the majority of these technologies were pioneered and designed to protect the engine manufacturers and the trucking companies, plaintiff's attorneys have used this information to gain a competitive advantage during negotiations, mediations, and in trial.

ECM, VORAD, and Qualcomm data and information are useful in establishing the negligence of drivers and trucking companies. Combined with any physical evidence that is left on the road during the accident, the speed and braking data that is captured before, during, and after any event will be integral in establishing the driver's negligence and causation. All of this information can also assist your expert in accident reconstruction. Data related to the hours of operation, log book, and truck maintenance violations can be useful in establishing the trucking company's negligence in failing to follow their own internal policies and federal motor carrier regulations. Hours of service technology and electronic driver's logs can be used to establish driver fatigue.

Retaining accident reconstruction and forensic experts as soon as possible is advisable. Having your accident reconstructionist and forensic expert present at the accident scene for purposes of documenting any physical evidence and monitoring the movement of the truck would be ideal. In many cases, the ECM, VORAD, and Qualcomm data is damaging to the trucking company, so it would be desirable to them for this information to be lost or erased. The best way to combat this tactic is to have your expert present when the truck is moved, inspected, or when any information is downloaded from the truck's onboard computer system.

VI. Spoliation

Once you become involved in a trucking litigation case, the first step that you must take is to protect the electronic data and information that these onboard computers collect. ECM, VORAD, and Qualcomm data is typically damaging to trucking companies, and they will be quick to erase or purge this information. You must act quickly to attempt to preserve this information.

The first step that you should take is to send the trucking company an effective spoliation or preservation letter. Your spoliation or preservation letter needs to be sent to the trucking company on the first day that you become involved in the case. This letter puts the trucking company on notice that any evidence related to your accident is to be preserved, and if the company fails to do so, you will seek sanctions. Your letter needs to cast a wide net and cover any potential information that may exist. Many experienced trucking attorneys have generic spoliation letters that they tailor to each individual wreck, some of which are available on the internet for reference.

The next step that you should take is to find an expert in the field and conduct an inspection of the truck and accident scene. Your expert should be able to inspect the truck, tell you what type of equipment and software is required, and what information and data should be available. If you have filed your case by this point in time, you should start working with your experts in requesting documentation and information through discovery.

Retaining an experienced accident reconstructionist at this time would also be beneficial. The common trucking accident produces a multitude of physical evidence. Having an experienced professional to assist you in piecing together the physical evidence and the data from these onboard computers is worthwhile.

Trucking companies will attempt to erase this electronic data by claiming that they are only required to retain this information for six months under the Federal Motor Carrier Safety Act. To preserve your right to monetary sanctions and adverse inference instructions, you must beat the trucking company to the punch and put them on notice. Numerous cases illustrate that trucking companies will attempt to destroy and withhold evidence even after they receive spoliation letters. It is our job as attorneys to find out who was responsible and seek the appropriate remedies.

By familiarizing yourself with the current trucking technology, retaining experienced professionals, and moving quickly, your client's rights will be protected and the negligent parties will be held accountable.

Mark Chappell practices with the multi-state law firm of Chappell, Smith and Arden, whose attorneys practice across the southeast in the areas of trucking litigation, products liability, complex litigation and workers' compensation. He is a past president of the South Carolina Association of Justice and an AAJ Governor. Mark is a member of the AAJ Trucking Litigation Group, Association of Plaintiff's Interstate Trucking Lawyers Association, and ABOTA. He has tried to verdict over 100 cases and has received numerous multi-million dollar verdicts and settlements. He is recognized by his peers as a Super Lawyer, Top 100 Trial Lawyer and is AV rated in litigation and workers' compensation.