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Proper and Company Names and dates have been redacted and changes made to protect the
identity of the parties.
Expert Report
Author Michael Mattia
Page 2 of 45
SUMMARY OF ACCIDENT
Plaintiff had driven a truckload of baled corrugated scrap cardboard (hereinafter “bale(s)”)with
total weight over 43,000 lbs, that was baled and loaded by Defendant for delivery to the
consignee. Plaintiff was in the process of opening the trailer’s cargo doors when a bale of
corrugated scrap, weighing approximately 1,400 lbs, was jettisoned from the trailer; struck him,
drove him to the ground and then landed onto the Plaintiff’s entire body. The full force of the
bale’s weight pushed down on the Plaintiff’s lungs and other vital organs and the Plaintiff
commenced suffocating. A forklift operator, advised of the accident, immediately drove to the
scene and operated the forklift to lift the bale, allowing the Plaintiff to once again breathe until
fire rescue units arrived.
AUTHOR: Michael Mattia, MHM, has over 40 years experience in the field of Environmental
Health and Safety, has served as a Volunteer Fire Fighter/Paramedic, Safety Officer for Ryder
Truck Lines, Safety Director for two major medical centers1, Director of Risk Management with
the Institute of Scrap Recycling Industries (hereinafter “ISRI”) and Chief Safety
Engineer/Consultant for the U.S Transportation Security Administration. Currently serves as an
expert witness and consultant specializing in the scrap recycling industry.
Tenure at ISRI was 14 years where he became the recognized and highly respected safety expert
for the scrap recycling industry. Among his countless accomplishments in this field the
following are those that make him qualified to be an Expert Witness for this case .
Served as a Director on the Main ANSI Z245 Committee that governs the various standards for
equipment designed to collect and process recyclable materials. At the same time served on the
subcommittee that updated the ANSI Z245.5 standard for Balers and Bales, of the type used
throughout scrap recycling facilities, including the one that was in use at the Defendant’s facility.
Represented the scrap recycling industry and worked directly with the Federal Motor
Carrier Safety Administration (hereinafter FMCSA”) in the drafting of a new Cargo
Securement Standard (hereinafter “Securement”)
Conducted extensive researched, of equipment, used in the scrap recycling industry,
involved in the most deaths and serious injuries. Balers were one group of equipment
that underwent this all-encompassing review.
The results of the baler review showed that the majority of deaths and serious injuries
were related to the production, loading, transport and delivery of paper bales.
1 University of Miami-Jackson Memorial Medical Center and University of Maryland Medical Center
Page 3 of 45
The findings were incorporated into a training video that received high praise throughout
the recycling industry. The author traveled to numerous scrap paper events to lecture on
his findings.
The author’s work led to the inception of the joint ISRI/AF&PA working group that
created the shipping guide for baled paper products.
EXPERT OPINION:
1. Defendant knowingly failed to operate their baler, according to
manufacturer specifications and OSHA enforceable
regulations. Instead, Plaintiff knowingly modified their baler to
operate in a dangerous mode producing corrugated bales in a
wide range of weights and lengths that would make it difficult,
without a good amount of careful planning and execution, to
load these bales so as to become stable cargo.
2. Defendant knowingly failed to train their forklift operators
according to OSHA requirements.
3. Defendant instructed their forklift operators to load the bales
directly into a trailer, as they were produced by the baler.
Defendant did not provide instructions regarding how to load
the heavier and longer bales on the bottom so as to provide
stability to each of the two stacked bales.
4. Defendant provided untrue testimony as to the weights of the
bales produced.
5. Defendant loaded bales, as the top of a two bale stack, that
were heavier than the base bale below. This created an
unstable stack.
6. Defendant provided untrue testimony as to the lengths of the
bales produced.
7. Defendant loaded bales, as the top of a two bale stack, that
were longer than the base bale below. This created an
unstable stack.
Page 4 of 45
8. Defendant loaded unstable bale stacks that were highly
susceptible to movement from interaction with forces.
9. Defendant dismissed any liability, on its part, with a flawed
interpretation of Federal Cargo Securement Regulations.
10.All of points 1-9, above, lead to or were directly instrumental
in the loading of unstable bales, by the Defendant, onto
Plaintiff’s trailer. These unstable bales were the direct cause of
the Plaintiff’s injuries.
11.The Plaintiff in no way caused or contributed to the accident.
CRITICAL INFORMATION
The following is each Expert Opinion and the critical information obtained from the Documents
reviewed and additional research that lead to the opinion(s).
BALER OPERATION
1. Defendant knowingly failed to operate their baler, according to
manufacturer specifications and OSHA enforceable
regulations. Instead, Plaintiff knowingly modified their baler to
operate in a dangerous mode producing corrugated bales in a
wide range of weights and lengths that would make it difficult,
without a good amount of careful planning and execution, to
load these bales so as to become stable cargo.
Scrap originates when an object is no longer usable or used; the object is then reduced to the
various specific materials from which the object was made. Each type of material is sized,
packaged and sent to a facility that is equipped to recycle the scrap into new products.
Page 5 of 45
The Defendant manufacturers corrugated2 sheets in a wide range of grades.
3 During the
production process corrugated material that is trimmed from the final sheets and sheets that fail
inspection become scrap for recycling. Defendant’s Operations Manager (Ops Mgr), described
the operation.
Ops Mgr: “Coming off of the corrugators, it (scrap) goes up a set of trim tubes into a
secondary set of hopper knives which cuts it into smaller pieces up into a blower system
which goes across the plant into a hopper”4…
SAFE AUTOMATIC OPERATION
At this point one standard safe operating protocol is to have a trained and experienced baler
operator5manually operate the baler through all of the necessary steps.
Another safe operating protocol is to have the baler operate in automatic mode. A trained baler
operator would not need to be with the equipment at all times. When not with the baler, the
operator should have the machine in sight and check the operation frequently. Hazardous
situation that can arise, such as material that can jam the baling operation, cannot resolve itself
while in automatic mode. This, and other problem situations, requires the baler operator.
1. Scrap fills the baler’s hopper until it rises to a predetermined level triggering
automatic sensors
2. This triggers the baler’s ram to compress the scrap into the baling chamber
3. This process continues until other sensors detect the compressed scrap has
reached a predetermined length.6
4. The ram then pushes the compressed paper out of the baling chamber and
into/onto an automatic tying station that secures wire around several points on the
compressed material.
5. When the load is tied, the new bale is ejected, onto either the floor or a conveyor.
2 Layers of heavy paper the top layer of which is grooved and ridged. 3 Ops Mgr 4 Ops Mgr, 11:7 5 Manufacturers will, most often, provide such training on site following installation 6 Bale height and width conforms to the dimensions of the baling chamber
Page 6 of 45
2
3
4
1
Example of a scrap paper baler. (not the Defendant’s)
1. Scrap is deposited into a hopper
2. Hydraulic ram compresses the scrap
3. When right amount is compressed, ram pushes compressed
paper to an automatic tying operation
4. Finished bale ejected.
Page 7 of 45
DEFENDANT’S PERSONNEL with ADMITTED RESPONSIBILITY for BALING
OPERATIONS
The responsibilities of and the interaction between supervisors and the employees, who loaded
the trailers, was examined
Defendant’s General Manager (GM) had been employed by the Defendant for 16 years;
Question: “…you were listed as someone that might have oversight over the loading of
these trailers; is that not correct.”
GM. “Well, being the general manager, I have oversight for everything. But I have,
you know, people that report to me who are directly responsible for that. So if there is an
issue, they would come to me and say there’s an issue with that. But this (loading
trailers) has never been an issue7.”
GM testified that he had delegated the issue of the baler and bales of scrap to Ops Mgr.
Ops Mgr, employed by Defendant for 20 years8, was asked if he oversaw the loading of
cardboard bales.
Ops Mgr: “Indirectly.”
Question: “When you say indirectly, what do you mean by that?”
Ops Mgr: “Meaning I am not personally loading those trucks. All I am doing-I’m
overseeing Melissa9 who is calling when those loads are ready to be picked up.”
3rd
Shift Supervisor (3rd
Super), employed by Defendant for “two year,10
with 17 years
experience, on his supervision duties.11
”
3rd
Super: “…supervisor over the whole corrugators, the corrugators and the shipping. So
the whole plant pretty much.12
”
3rd
Super “Now, most of the time as a corrugated supervisor, I’m in charge of the baler.”
Not necessarily shipping.”13
.
Question: “Have you been involved—when you say in shipping, is that loading trucks?”
7 Gen Mgr 9:10
8 Ops Mgr: 5:4
9 Logistics manager 103rd Shift Mgr5:1 11 Ibid: 5:6 12 Ibid: 8:20 13
Ibid: 6:4
Page 8 of 45
3rd
Super: “I haven’t actually loaded them, but I’m responsible for them14
.”
First Shift Production Supervisor (1st Super), employed by Defendant, 10 years, 25years
experience15
with corrugated.
Question: “What kind of things are you doing as a production supervisor on the first
shift?”
1st Super: “Overseeing production.”
Question: “That includes the loading of the scrap bales onto trailers?”
1st Super: “If necessary. Absolutely”
16
None of the questions regarding Defendant’s baling operations and the bales produced were
directed to the company’s baler operator. Also, there was no mention of a baler operator for
either shift.
1. Therefore it is reasonable to accept as fact that Defendant’s baler was not operated by a
trained and experienced baler operator. Therefore it was operating in an unattended
automatic mode.
Defendant’s baler produced bales of various weights and lengths.17
A properly functioning baler
cannot produce such bales in automatic mode, only when the machine is operated by a trained
operator can weight and length be modified.18
.
2. This leads to a reasonable conclusion that there was a malfunction in the Defendant’s
baler.
The sensors are a key to proper baler operation in automatic model. The hopper sensors cannot
be moved or added to so as to activate the baling ram when scrap reaches anyone of variously
placed sensors. If a manufacturer of balers is asked how to activate the baling ram at various
levels of scrap in the hopper, the answer would most likely be, “Get a trained baler operator who
will manually control the ram whenever you want.”
The only option left is to modify the baler to work in a hazardous automatic mode.
14
Ibid 7:1 15 Ibid: 5:11 16 Ibid: 10:16 17 Height and width are the dimensions of the baling chamber and therefore these do not vary. 18 There is no feasible reason to modify the weight and length of bales. The purpose of a well functioning baler is to create bales of standard dimensions and sizes.
Page 9 of 45
The report of a baler operating in a hazardous automatic mode was first made public following
the death of a baler operator.19
The investigation described the operation of the baler.
Hazardous Automatic Baler Operation20
,
1. The baler’s sensors, that trigger the ram, are blocked, usually with wood or
electrical tape. This triggers the ram to continuously move, compressing whatever
scrap is in the hopper.
2. Generally, no parts of the baler will operate if just one set of sensors are
compromised. This will require blocking all the sensors including the ones that
monitor the length of the compressed scrap.
3. The blocking of the length monitoring sensor compromised the automatic
command to stop compressing and to eject the compressed material, into the tying
operation, once it has reached the designated length, to be tied.
4. Most balers have an override command. This signals the ram to immediately stop
compressing and to push whatever compressed paper is in the baling chamber out
to the tying station. This command is effectively used by baler operators when a
problem arises that require the immediate clearing of the baling chamber.
5. In hazardous operation the override command takes the place of the bale length
sensor ejector forcing a bale to be tied when someone wishes rather than when the
bale has reached a predetermined length.
6. Often a worker assigned to activate the override command will fail to check the
status of a forming bale. This leads to the discovery of the existence of a larger or
smaller bale, in the baling chamber, than wanted. At this point it is unknown what
the parameters for ejecting the bale were. One alternative is that a forming bale is
ejected because the sole individual in attendance, such as the forklift operator, is
breaking for lunch or it is the end of the shift and he/she will be leaving. Ejecting
the bale will ensure that the paper does not continue to compress while no one is
in attendance. With the information available it is uncertain of the operating status
of the baler between shifts.
20
California Case Report: 09CA005The hazard of this operation was first highlighted nationally when the California Fatality Assessment and Control (FACE) Program reported a fatality regarding a worker who accidentally fell into the hopper of a baler operating with the sensors blocked. The employee was crushed and died on the scene. The report cites, “The machine was set on automatic mode with the electronic sensors blocked which meant that the machine constantly cycled.” “The worker was crushed and pronounced dead on the scene.”
Page 10 of 45
1. This description of a hazardous automatic baler operation explains what
modifications the Defendant was required to do so as to produce bales as
described earlier.
2. Such a modification presents an imminent dangerous threat to any worker in the
area. A number of scrap paper recycling workers have been killed or seriously
injured after intentionally or accidentally falling into the hopper while attempting
to release a jam.
3. Since 2005 OSHA21
has recorded eight fatal and 14 serious accidents involving
balers used to create bales of paper and cardboard.22
Defendant’s hazardous baler
modification endangered the safety of all employees who could come in contact
with the baler as well as endangering the safety of truck drivers who would
transport trailers filled with unstable pairs of stacked bales. This is what occurred
to the Plaintiff.
The Defendant’s hazardous modification and operation of its baler was not just a danger to
workers; it violated Federal Safety regulations. OSHA applies their machine safeguarding
requirements, General Industry Standard 29 CFR 1910.212 to balers.
1. For specific guidance regarding operational safeguards, OSHA looks to ANSI23
Z245.5 -201324
, Safety requirements for baling equipment.
2. ANSE Z245.5 prohibits any change to machine safeguarding, this includes
sensors, and requires a trained operator to always be in attendance when the baler
is operating..
Changing, modifying or obstructing a baler’s sensors, in a manner contrary to manufacturer
specifications, based on ANSE Z245.5, would most likely be considered, by OSHA, as a serious
violation or a willful violation if the changes related to an injury.
.
21 www.osha.gov 22 OSHA places corrugated under cardboard. 23 American National Standards Institute creates recommendations for construction and operation of equipment. 24
Safety Requirements for Installation, Maintenance and Operation for Baling Equipment
Page 11 of 45
FORKLIFT OPERATOR TRAINING
2. Defendant knowingly failed to train their forklift
operators according to OSHA requirements.
OSHA Standard 29.CFR 1910.178 – “Powered Industrial Trucks” (Forklift) requires specific
training, for every forklift operator.
1. Each operator must successfully complete training on a wide range of safe operation
topics
2. Training must be conducted under the direct supervision of person(s) who have the
knowledge, training, and experience to train operators and evaluate their competence
3. The employer must certify (document) that each operator was successfully trained
and evaluated
4. Each operator must be evaluated at least every three years.
Defendant identified two employees with the responsibility to load corrugated bales onto trailers,
1st forks and, 3
rd forks
25.
What training did 1st and 3
rd shift forks receive in order to properly perform their job and comply
with OSHA Regulations?
3rd
Shift Forks:
Employed by Defendant for 4 years, not employed for 5 years then reemployed for 7 years at the
time of deposition,
Had no forklift training or experience prior to her return,
Commenced her recent stint with forklift training from Patty Mane, there was no indication of
Patty’s knowledge, training and experience, except for on the job experience, which that alone
would not qualify her to conduct OSHA required training. •
Neither received nor was given access to written or video training materials
Was not certified as a forklift operator per OSHA requirements
First Shift Forks:
Employed by Plaintiff for 17 years, loading trailers for 10-11 years,
One month forklift experience before Plaintiff
25
There was no second shift at Defendant’s facility.
Page 12 of 45
Received forklift training at Plaintiff from a man named “George”
No information was presented, regarding George’s knowledge training and experience that
qualified him to be a trainer.
Neither received nor was given access to written or video training materials
Was not certified as a forklift operator per OSHA requirements
Yet for 1st forks, the requirements go one step farther
Training language
1st shift forks required the assistance of an interpreter (Spanish-English) during his deposition.
This raises the concern regarding his comprehension of any OSHA required forklift training.
OSHA memorandum of April 28, 2010 states that “employee training required by OSHA
standards must be presented in a manner that employees can understand…”
The memorandum further states, “It is the Agency’s position that, regardless of the precise
regulatory language, the terms “train” and “instruct”, as well as other synonyms, mean to present
information in a manner that employees receiving it are capable of understanding.”
“For example, if an employee does not speak or comprehend English, instruction must be
provided in a language the employee can understand. Similarly, if the employee’s vocabulary is
limited, the training must account for that limitation.”
Another concern is, given the question of language, how well could 1st shift forks have
understood direction, if and when there was supervisory direction, regarding the loading of the
bales.
FORKLIFT OPERATOR INSTRUCTIONS
3. Defendant instructed their forklift operators to load the
bales directly into a trailer, as they were produced by the
baler. Defendant did not provide instructions regarding how
to load the heavier and longer bales on the bottom so as to
provide stability to each of the two stacked bales
3rd
Super
Question: “Were there any safety regulations that were given to you or the others prior to
this case about how to load these trailers?”
Page 13 of 45
3rd
Super: “Like I said the person that loaded it was already trained.” “So normally they
just have the person before them train them or an experienced trainer. I don’t think
there’s any literature.”
Question: “Was there ever any safety meeting prior to this case about the loading of
these bales?”
3rd
Super “Not that I am aware of.26
Eventually, the Defendant identified “the person that loaded it” as the forklift operator who was
responsible for safe loading and inspection of the loading.
Question: “So Defendant relies on the forklift operators to assume that that load was
loaded properly and safely, is that right?”
Ops Mgr: “Yes27
.”
Forklift Operators Training.
Question: “So at the time that this load was being loaded did you feel that they (forklift
operators) needed any additional training on how to load a trailer/”
Ops Mgr: “No I did not28
.
Question: “Do you know if they hired a new forklift today who would be doing the
training?”
Ops Mgr: “Again, depending on which shift, I would expect Sue to take care of that on
third shift or Felipe in conjunction with their supervisor29
.”
Question: “So Defendant relies on the forklift operators to assure that that load was
loaded properly and safely; is that right?”
Ops Mgr: “Yes30
.”
Question: “And what do you do to train your personnel on safe loading procedures?”
Ops Mgr: “It is basically an on-the-job type training. Usually an operator will work
with either Sue if it’s on third shift or Felipe that’s on day shift visually watch how they
are loading, how they are handling bales and try to emulate them31
.”
26 Ibid: “16:15 27 Ops Mgr: 80:14 28 Ibid: 137:4 29 Ibid: 59:1 30
Ibid:80:14
Page 14 of 45
What instructions were given to the forklift operators?
Question: “How to do it, what instructions are given to them on how to load these trailers
with the cardboard bales?”
Ops Mgr: “The only instructions are as a bale is created, you pull it from the baler. You
weigh it, and you have their choice of either taking that unit directly into the trailer or
waiting for a second one if they wanted to take two in at a time.”
Question: “Are there any other instructions other than waiting for a bale to be created,
weighing it and taking it on the forklift either one or two at a time.”
Ops Mgr: “No32
.”
One possible answer can be found in Ops Mgr’s deposition.
Question: “…what instructions are given to them on how to load these trailers with the
cardboard bales?”
Ops Mgr: “The only instructions are as a bale is created, you pull it from the baler. You
weigh it, and you have their choice of either taking that unit directly into the trailer or
waiting for a second one if they wanted to take in two at a time.”
Question: “Are there any other instructions other than waiting for a bale to be created,
weighing it and taking it on the forklift either one or two at a time?”
Ops Mgr: “No.”
Question: “What about loading it into the trailer, what instructions are they given about
how to load the bale into the trailer?”
Ops Mgr: “They will load it straight into the trailer.”33
BALE WEIGHTS and LOADING
4. Defendant provided untrue testimony as to the weights of
the bales produced.
5 . Defendant loaded bales, as the top of a two bale stack, that
were heavier than the base bale below. This created an
31 Ibid: 58:6 32 Ibid: 45:4 33
Ibid: 45:4
Page 15 of 45
unstable stack Defendant consistently loaded bales on the
top of a stack that were heavier than the bale below.
Ops Mgr
Question: “And then at some point when it (baler) has enough (scrap in hopper) it bales it
or do you bale it by hand?”
Ops Mgr: “No, that is the actual baling. At some point it (scrap) will reach a certain
length (compressed). There’s an instrument on top of the compactor34
that is
programmed for a certain number of clicks. When it hits that “sweet spot” it will then tie
that bale off35
.”
Question: “And this (baler), the instrument on top of it, what is the “sweet spot,” if you
will, that it stops and it says a bale is a bale now?”
\ Ops Mgr: “I don’t have direct knowledge of what that number is.”36
Asked who would have such knowledge Ops Mgr replied,
Ops Mgr: “Probably the maintenance manager” “And I don’t know that he would
even be able to come in here and tell you its set at without actually going out and looking
at it37
.”
Question: “Who’s the maintenance manager by the way.”
Ops Mgr: “Mike38
.”
Question: “Are there instruments that also have sweet spots for telling height and the
width?”
Ops Mgr: “No.”
Question:”It’s only the length?”
Ops Mgr: “Correct39
”
Question: “What about the weight when the bale comes off of the compactor and it’s
baled, is there a scale?
34
Compacter is another word to refer to a baler 35Ibid: 11:22 36 Ibid, 12:19 37 Ibid: 12:22 38 Ibid: 13:8 39
Ibid: 14:13
Page 16 of 45
Ops Mgr: “Yes.”
Question: “And so each bale gets weight at that point?”
Ops Mgr: “Yes40
.”
3rd
shift Super on bale operations and weight
Question, “And the machine that these bales come out of, I understand they try to make
them as uniform as possible, is that correct?”
1st Super: “Yes.”
Question: “Can you walk me through that real quick?”
1st Super: “Well, there’s a little device over there that every time the ram pushes forward,
it clicks, and its so many clicks per bale”. “And then it ties it off”. “I think it’s like 42
clicks per bale.
Question: “That’s 42 clicks then spits out a bale?”
1st Super: “Yes”
41
Concerning their knowledge of bale weights.
Question: “Do you know what these roughly weighed.”
Gen Mgr “No.”42
Ops Mgr: “Roughly 1,300 to 1,500 pounds43
.”
1st Super
1st Super: “I know the weight of them. The dimensions I wasn’t really sure of, but that
looks correct.”
Question: “He (Ops Mgr) said the general weight was about 1,200 to 1,500
pounds.”
1st Super: “Yes.”
Question: “That’s when the clicker would get to a certain point, it would spit out, and that
would mean it was either between 1,200 and 1,500 pounds.
40 Ibid: 14:13 41 1st Super, 12:15 42 Gen Mgr: 38:22 43
Ops Mgr :15:4
Page 17 of 45
1st Super: “Yes”
44
3rd
super forklift operator
3rd
forks: “They’re anywhere between 800 and 1,700 pounds.”
After told Ops Mgr’s answer of 1,200 to 1,500 pounds
3rd
forks: “That’s typically what they come out as, but every now and then they do come
out smaller, and they come out larger45
.”
1st Super
Question: “So we’ve heard anywhere from 800 to 1,700 and 1,200 to 1,600?”
1st Super: “Around a thousand pounds, 1,200
46.”
1st forks
1st forks: “That I don’t recall, but it’s mainly in between 1,000, 500 pounds
47.”
The bale weights listed for Plaintiff’s trailer, (Exhibit 6)48
, were set within three ranges; 1,300 –
1,500 lbs, Ops Mgr’s first weight range, and ranges above and below this range.
Table #1 shows the results.
Only 10 of 34 bales fell within the Ops
Mgr weight range of 1,300 – 1,500 lbs.
Twenty bales fell below the range and
four fell above
So as to obtain a broader analysis of bale weights, additional bale weight lists were requested and
provided by consignee. From these the set chosen for examination was 28 trailer loads; 14
trailers loaded prior to Plaintiff’s accident and 14 loaded following the accident.49
This
44
3rd
Super: 13:9 45
3rd
Forks:15:16 46 3rd Super, 34:15 47 1st Forks 24:19 49 In the paperwork provided by consignee there was trailer documentation, within the noted range, that did not contain the weight loading sheet; these were not used.
Number of
bales loaded
Beginning
weight range
Ending weight
range
20 (59%) 1,000 > <1,300
10 (29%) 1,300> <1,500
4 (12%) >1,500
TABLE #1
Page 18 of 45
represents 914 bales loaded over a five month period.50
The weights of these 914 bales ranged
from 720 pounds to 1,748 pounds
3rd
Forks’s original pronouncement of the range for bale weights, 800 – 1,700 lbs, was extremely
close to the range found in this 5 month survey: 800 – 1,700 lbs.
Table 2 shows the number of bale weights, from 922 bales, weighed and loaded, that fell in,
above or below the range 1,300 – 1,500 pounds. During the five month period of this survey,
only 25% of bales loaded fell within the 1.300 – 1,500 range.
3rd
forks discussed how bales are loaded onto trailer, referring to Exhibit 6, a sheet listing the
weight of each bale loaded onto Plaintiff’s trailer
3rd
forks discussed Exhibit 6, a document listing the weights of each bale loaded onto the
Plaintiff’s trailer.
Question: “And the first where it says No.1 is that indicative of the first bale put into the
truck.”
Question: “Is the second one the one on top of the bale on the nose?”
3rd
Forks: “Yes.”
Question: “So the first two bales would be stacked on top of each other at the nose of the
trailer?”
3rd
Forks: “Yes.”51
50 11/06/12--3/13/13 51
Ibid: 39:18
Total Bales
loaded
Weight
<1,000
Weight
1,000-1,100
Weight
1,100 -1,200
Weight
1,200 -1,300
Weight
1,300 -
1,500
Weight
1,500 and
up
914 137 125 201 184 215 52
TABLE #2
Page 19 of 45
3rd
Forks indicated that bales are loaded in pairs52
as they are produced. Odd number bales
represent first in for a two stack, therefore the bottom bale, the even number bales are the second
loaded to a two stack and therefore a top bale.
The bale weights from Plaintiff’s trailer were arranged, in Table #3, as to how they were loaded,
top and bottom bale on a stack. The weight of the top bale was subtracted from the weight of the
bottom bale. A positive number indicates the base bale was heavier than the top bale; a negative
number indicates the top bale was heavier than the base bale.
Using the 28 trailers, 464 bale pairs were counted53
, of these 204(44%) bales were top bales
heavier than the bottom bales.
One top bale was over 550 lbs heavier than its bottom bale.
The next heaviest top bale was 370 lbs more than its bottom bale.
66 top bales were heavier within the range of 100-300 lbs
3rd
Forks’s original range for bale weights, 800 – 1,700 lbs, was extremely close to the
range found in the 5 month survey: (800 – 1,700 lbs)
Within Ops Mgr range (1,300 – 1,500) 23 % of bales
Expanding the range (1,200 – 1,500) expands to 44% of bales
Majority of bale weights (76%) were outside the ranges provided by Defendant’s Ops
Mgr.
Majority of bale weights (56%) outside expanded range (1,200 – 1,500)
BALE LENGTH and LOADING
6. Defendant provided untrue testimony as to the lengths of
the bales produced.
7.Defendant loaded bales, as the top of a two bale stack, that
were longer than the base bale below. This created an
unstable stack
BALING OPERATIONS-LENGTH
52 There are times when one or more bales will be loaded individually or stacked as three. 53 Two consecutive bales as the last item on trailers were not counted as pairs do to the often use of these as single bales.
Page 20 of 45
Defendant’s deposed employees were asked their knowledge of bale length.
Ops Mgr
Question: “Is there a general length that they come out?”
Ops Mgr: “Typically the units are coming out at around 72 inches long54
.”
Question: “And going back then to the general length and size of these bales, you said its
72 inches long.?”
Ops Mgr: “Correct55
.”
Question: “And generally speaking, the length is 72 inches.”
Ops Mgr: “Yes.”
Question: “All right. I want to make sure generally speaking these are the general
measurements, length, width and height?”
Ops Mgr: “Correct.”
Question: “41, 33 and 72.”
Ops Mgr: “Correct.56
”
1st Super
Question: “You’ve never seen them change from 72 inches in length greater or less than
based on weather conditions?”
1st Super: “No. When they’re sitting in the building, I haven’t seen them change. And
once they’re put on the trailer, you can’t really see them. And the ones on the end I’ve never
seen expand.”57
1st shift super Shown Ops Mgr Exhibit 1
Question: “What about the dimensions of the bale?”
1st Super: “If this is the dimensions, I’ll take your word on it. I don’t know the exact
dimensions.”58
54 Ops Mgr: 13:4 55 Ibid: 13:22 56 Ibid 133:12 57 1st Super: 45: 7 58
3rd
Super: 34:21
Page 21 of 45
3rd
Forks:
Question: “The Ops Super had given me dimensions of the bales, if you know, the length
of the bale was 72 inches according to the Ops Mgr, generally speaking; is that about right?”
3rd
Forks: “That’s probably right59
.”
1st Forks
Question: “Do you know what the dimensions were prior to 2013, roughly?”
1st Forks: “Yes.”
Question: “What were they?”
1st Forks: “I’d say about 33 inches by – I’m not too sure of the width, anywhere between
38 and 40 inches. I’m not too sure about that.”
Question: “What about the length?”
1st Forks: “Between 85 and 95 inches.
60
Question: Prior to January of 2013 were the length of the bales produced by the machines
pretty much the same regardless of the weight?”
1st Forks: “There’s some difference depending on what’s being produced. Some are
lighter than others.”
Question: “The ones that are heavier, are those longer as well?”
1st Forks: “No. It could be the same length. Let me clear something. Once in a while
there’s some bales that are long.”61
BALE LENGTH
Bale Weight has been shown to vary, in some cases, such as the weights of the Defendant’s bales
to vary greatly. It was highly unlikely that the weights of the Defendant’s bales fluctuated due to
baling contaminants and/or different material with different mass. The height and width of a
bale cannot vary due to the fixed dimensions of the baling chamber. Therefore, the weight of the
Defendant’s bales varied dependent upon the only variable left, length.
To prove this a basic proportion formula was used.
59 3rd Forks: 16:4 60 1st Forks: 24:21 61
1st
Forks: 25:19
Page 22 of 45
Through depositions, the Defendant’s established bale length, the length the baler was
programmed to achieve, was 72”62
” and the established bale weight was 1,40063
pounds These
were entered as “A” and “B”, respectively, in the equation. The known weight of the bale, for
which the length was sought, was entered in “D,” with the sought after length remaining as
“C”.64
From the 922 trailers, three65
specific control trailers were chosen to compare against the lengths
determined for the bales on the plaintiff’s trailer. These trailers were specifically chosen because
each had a notation, by consignee, of problems with the load on arrival that seemed very similar
to the condition of the bales on Plaintiff’s trailer. The trailer numbers and date of loading were; #
8342 (11/9/12); #8333 (1/3/13) and #8314 (1/10/13) The consignee note precedes each table.
The length of the top and bottom bale, for each two bale stack in each sampled trailer, was
appended to the weight table for the same bales. (Tables #4, 5, 6)
For trailer 8342, 11 of 21 bale pairs (53%) had the top bale’s weight and length exceed the
weight and length for the matching bottom bale. Weight differences for the 11 varied from 8lbs
to230 lbs. Length differences varied from 1” to 12.” These potentially unstable bale pairs appear
to have been randomly distributed between the front, middle and rear of the trailer.
For trailer 8333, 8 of 16 bale pairs (50%) had the top bale’s weight and length exceed the same
for the bottom bale. Weight differences for these 8 varied from 8-552 lbs. Length differences
varied from 2” to 29”. These bale pairs seemed to also be randomly distributed throughout the
trailer
For trailer 8314, 6 of 16 bale pairs (37.5%) had the top bale’s weight and length exceed the same
for the bottom bale. Weight differences for the 6 bales varied from 12 - 318 lbs. Length
differences varied from 1” to 7” As with the previous two trailers, these bale pairs were also
randomly distributed.
“ 2 broken bales, trailer was a mess as usual”
Date Trailer
11/9/2012 8342 pounds
inches
bales weight weight weight length length length
pair # base top difference base top overhang
1,2 1136 968 168 58 50 8
62 A length of 72”has, for some time, been a maximum length for paper bales in the scrap recycling industry 63 Midpoint and average of range 1,300, 1,400, 1,500 (1,300 – 1,500) 64 To solve multiply A and D then divide by B. 65
Work with data for bale weights indicated that a large sample was not needed.
Table #4
Page 23 of 45
3,4 1166 1096 70 60 56 4
5,6 804 1024 -220 41 53 -12
7,8 998 1006 -8 51 52 -1
9,10 904 940 -36 46 48 -2
11,12 968 876 92 50 45 5
13,14 1032 934 98 50 48 2
15,16 842 1050 -208 43 54 -11
17,18 956 958 -2 49 49 0
19,20 1010 1240 -230 52 64 -12
21,22 1144 1026 118 59 53 6
23,24 888 1050 -162 46 54 -8
25,26 934 1134 -200 48 58 -10
27,28 1160 1074 86 60 55 5
29,30 912 834 78 47 43 4
31,32 860 860 0 44 44 0
33,34 illegible 1014
0
35,36 894 1098 -204 46 56 -10
37,38 1020 1198 -178 52 62 -10
39,49 1246 1358 -112 64 70 -6
41,42 1346 1176 170 69 60 9
“load shifted and most bales were tipped over”
Date trailer
1/3/2013 8333 pounds
inches
bales weight weight weight length length length
Table #5
Page 24 of 45
pair # base top difference base top overhang
1,2 1240 1192 48 64 61 3
3,4 1206 1106 100 62 57 5
5,6 806 1358 -552 41 70 -29
7,8 1174 1206 -32 60 62 -2
9,10 1286 832 454 66 43 23
11,12 1194 1298 -104 61 67 -6
13,14 1008 1104 -96 52 57 -5
15,16 1140 1138 2 59 58 1
17,18 1212 1180 32 62 61 1
19,20 1100 1108 -8 57 57 0
21,22 1174 1340 -166 60 69 -9
23,24 1326 1486 -160 68 76 -8
25,26 1600 1542 58 82 79 3
27,28 1390 1422 -32 71 73 -2
29,30 1350 1300 50 69 67 2
31,32 1214 1042 172 62 54 8
Page 25 of 45
“couldn’t weigh all, 2 broken, load shifted again, and several top bales were half broke
because of that, must load different66
”
Date trailer
1/10/2013 8314 pounds
inches
bales weight weight weight length length length
pair # base top difference base top overhang
1,2 1450 1548 -98 74 80 -6
3,4 1582 1466 116 81 75 6
5,6 1516 1528 -12 78 79 -1
7,8 1394 1306 88 72 70 2
9,10 1250 1150 100 64 59 5
11,12 1344 1220 124 69 63 6
13,14 900 978 -78 46 50 -4
15,16 1120 980 140 58 50 8
17,18 1076 1006 70 55 52 3
19,20 1214 1144 70 62 59 3
21,22 1182 1200 -18 61 62 -1
23,24 1134 1120 14 58 58 0
25,26 1274 1150 124 65 59 6
27,28 1468 1590 -122 75 82 -7
29,30 1430 1748 -318 73 49 24
31,32 1546 1100 446 79 57 22
66 The phrase “must load different” found on the trailer’s face sheet was appended to the longer phrase written on consignee’s” receiving slip
Table #6
Page 26 of 45
8. Defendant loaded unstable bale stacks that were highly
susceptible to movement from interaction with forces.
FORCES
Close to one half of all top bales, loaded by Defendant, in a two bale, were heavier and longer
than the bottom bale on which is sat. These long and heavier top bales were upwards of 500
pounds heavier and 12” longer than the bale on which they rested.
This loading error created bales in which the top bale was in great danger of being displaced by a
natural force that is a force which tends to change the motion of an object.
The primary forces that can act on moving trailers and content are, acceleration, deceleration,
change of direction (turning) and gravity. These forces can cause and/or act on instabilities. For
the case at hand, the greater the degree of instability for a top bale in each bale pair the greater
the chance the top bale will move and fall.(Illustration #1)
These forces are continually present. The weight and length of top bales can increase or
decrease the effect of these forces on top bales.
TURNING
FORCES TURNING
FORCES
DECELERATION
ACCELERATION
GRAVITY
ACCELERATION
Illustration #1 ACCELERATION
TURNING
FORCES
ACCELERATION
TURNING
FORCES
GRAVITY
Page 27 of 45
The factors that can determine the potential effect these forces can have on a top bale are;
1. center of gravity
2. friction
3. torque
The center of gravity (CG) is
1. The midpoint or center of a bale where all of the bale’s weight is concentrated
2. Since all of a bale’s weight is concentrated at this point, the force of gravity is also
concentrated at this point
3. The higher a bales center of gravity the more unstable it becomes and the less energy
it takes to topple the object
4. The quality of the stability of the top bale, in a two bale stack, is at its highest point
when the top bale’s center of gravity is on or very near the base bale’s center of
gravity.
5. .As both centers of gravity move apart the stability of the top bale lessens; the more
the stability lessens the greater the potential that one or more forces will cause the top
bale to shift and fall
Eleven of the 17 top bales, in the Plaintiff’s trailer, had shifts67
of their center of gravity away
from the bottom bale. The minimum amount of shift can be calculated by merely computing the
length of both bales. Yet this does not account for shifts during loading. According to 3rd
forks,
each bale stack was loaded against one of the side walls. If the bottom bale is loaded flush with
a wall and the top bale is not then this increases the distance between the center s of gravity of
both bales.
Friction: the force resisting the sliding motion between two solids. Corrugated paper
scrap bales have rough surfaces; this increases the force of friction between two stacked
bales decreasing the potential for movement of the top bale. If the amount of surface
contact, between the two bales, is decreased so is the amount of friction available to keep
the top bale from sliding away from the bottom bale. The force of friction can be reduced
by the longer the length of the top bale and/or if the top bale is loaded away from the
bottom bale.
67 The distance of the shift was calculated based solely on the size of the bales Testimony was provided that indicated the bales would be loaded against a wall. If the bottom bale is loaded flush against the wall and the top bale is not, then the distance of the center of gravity of the top bale, away from the bottom bale will increase.
Page 28 of 45
Torque: a force that acts on the lever arm of an object so as to rotate the object around a fixed
axis. An example of torque is the use of a wrench to tighten or loosen a bolt. The force of a hand
rotates the wrench’s handle around the center of the bolt. The force of the hand against the
handle is the torque. The longer the handle, the greater the amount of torque pressure a hand can
generate and the easier to rotate the bolt. (See Illustration #2)
The same is true of bales. The center of gravity is the fixed axis
and the handle is the amount of bale protruding. (See Illustration
#3) The farther the top bale protrudes away from the bottom bale the longer
its “handle” and the greater the torque force. The torque force will act on the
“handle” of the top bale forcing it to rotate around its center of gravity and fall. The rotating top
bale can also strike other adjacent bales potentially forcing them to move and fall.
7
.
The heavier and longer a top bale, the greater the potential for forces to act on
that bale. It seems that before some of Defendant’s employees could not accept or did not know
this fact.
CG
Illustration #3
Illustration #2
HANDLE
Torque
Force
CG
Page 29 of 45
Gen Mgr: “It’s a thousand pound bale. How does a thousand pound bale shift?
This is the first that I’ve ever heard of that.68
Gen Mgr: “Until this incident, it never occurred to me that a bale could shift or tip.69
The bale that jettisoned from the trailer and knocked the Plaintiff down was between 1,400 and
1,500 pounds.
DEFENDANT’S DISMISSAL OF LIABILITY
9. Defendant dismissed any liability, on its part, with flawed
interpretations of Federal Cargo Securement Regulations.
Defendant is adamant as to who has the ultimate responsibility for the safety of a load,
Ops Mgr: “When Defendant loads a trailer, once it is loaded and it is pulled from the
dock, it becomes the driver’s responsibility.”70
Ops Mgr: “Once it pulls out of our dock, we have no responsibility.”71
Ops Mgr: “Again, it comes back to the driver. We have no control of what that load
does when it leaves our dock”72
.
Ops Mgr: “I just can’t say what the load is going to do once it leaves here that the driver
has not secured73
.”
Question: “…what would be things that would determine a load to be unsafe?”
Ops Mgr: “You have to ask the driver that, I’m not a driver74
.”
The Defendant maintains that when a trailer is loaded, the safety of the load becomes the total
responsibility of the driver that transports the load.
The basis for this belief was be a faulty interpretation of regulations promulgated by the Federal
Motor Carrier Safety Administration (FMCSA). These regulations require that only safely
loaded and/or properly restrained cargo be allowed on our Nation’s roads. This regulation places
the vast burden for this on the driver. A reasonable responsibility because the driver is the last
68
Gen Mgr 69
Ibid 20:19 70 Ibid: 62:11 71 Ibid: 62:19 72 Ibid: 104:7 73 Ibid: 113:15 74
Ibid 116:20
Page 30 of 45
individual to make a decision concerning whether or not the load is safe enough to be out on the
roads.
This responsibility is in 49 CFR 1910.392.9
§ 392.9: Inspection of cargo, cargo securement devices and systems.
(a) General. A driver may not operate a commercial motor vehicle and a motor carrier
may not require or permit a driver to operate a commercial motor vehicle unless
(b) (a)(1) Thru (a) (3) (Outlines the drivers responsibilities to ensure the vehicle and
cargo is safe to travel.)
However, the regulations provide one exemption,
Section§ 392.9 (b) (4) states:
The rules in this paragraph (b) do not apply to the driver of a sealed commercial motor
vehicle who has been ordered not to open it to inspect its cargo or to the driver of a
commercial motor vehicle that has been loaded in a manner that makes inspection of its
cargo impracticable.
In their various depositions, the Defendant maintains that the above regulations transfers’
responsibility, to the driver, for the stability of a load once the driver pulls the trailer away from
the dock. It does, except for,
Defendant does not refer to FMCSA and/or 392.9, yet the adamant stance must be on the
regulation without regard or knowledge of the exemption provided Section§ 392.9 (b) (4).
There are two instances that can make inspection of loaded cargo, by the driver, impracticable,
1. Issues regarding the vehicle,
2. Issues regarding the load.
Page 31 of 45
ISSUES REGARDING THE VEHICLE
An average 53’ dry van trailer is 13’6” (162”) from ground to top. A 110” interior height then
leaves 52” (4’4”) from the ground to the trailer floor. To get into a trailer a 5’8” driver would
have to push ¾ of their body up and into the trailer. (See Illustration #4).
Not accepted by Defendant, Ops Mgr: “I’m sure he could climb up inside the trailer75
.”
How difficult would this be? Very difficult.
1. There are no ladders on either side of the rear of a 53” trailers for a driver to use to
safely climb up. (Illustration #5 )
.
A
75
Ops Mgr: 122:20
52”
Illustration #4
Illustration #5
Page 32 of 45
2. There are no handles or other fixed devices, inside the trailer, for a
driver to grasp to assist in pulling himself up and in.(Illustration #6 )
3. The “ICC bumper,” installed beneath a trailer prevents
shorter vehicles from driving under. Its position rules it
out as a safe step. (Illustration #7)
Illustration #6
Illustration #7
15”
”
Illustration #8
4. This leaves the driver having to inspect the load from
the ground.
A 5’7” driver, standing on the ground behind a trailer
loaded with bales of scrap corrugated would only have
15” clearance above the trailer floor. (Illustration #8)
Page 33 of 45
The Defendant does not consider any of the above as physical barriers to a driver’s access into
the trailer from ground level.
Question: “Can a driver—is a driver physically capable of climbing up onto the back of
the trailer after it’s been loaded here (Defendant’s Facility) to look inside the trailer?”
Ops Mgr: “Yes76
Question: “What about front to back, can a driver from the ground see for instance the
second row, the second to last row of bales from the ground.?
Ops Mgr: “Very possibly, yes.”
Question: “How would he do that?”
Ops Mgr: “You would be able to see them from the side as they’re only 33 inches
wide77
.”
.
76 Ibid 138:9 77
Ibid:85:6
Hypothetical. (See Illustration #9)
One stack of bales is loaded against one wall and the next stack against the opposite wall. The width of the
Plaintiff’s trailer was 101” The smallest bales, in length, on the Plaintiff’s trailer was 52”. Take a 52” long
stack against one wall and a longer length stack loaded against the opposite wall. There is nowhere to look
except at the first two stacks from the rear of the trailer.
101”
101” Illustration #9
Page 34 of 45
Defendant retains his opinion.
Question:”Would you agree with me that it is more difficult for a driver to inspect
the cargo of these cardboard bales when they are loaded into the trailer and they’re
(driver) standing on the ground looking into the trailer than if they were on the dock and
looking into the trailer and the load?”
Ops Mgr: “No I couldn’t say that.”
Question: “Why not?”
Ops Mgr: It’s my opinion.
Question: “Do you have a reason for your opinion that it’s the same whether they’re on
the ground looking into the trailer or they’re on the dock looking into the trailer?”
Ops Mgr: “If we’re speaking of these specific loads, because you can see it on the side,
because it does not go wall to wall78
.”
At this point it has been proven that it would be extremely difficult and dangerous for a driver to
climb up into an empty 53’ trailer much less into one that is loaded close to the rear doors.
Also it has been proven that, with the loading method the Defendant uses, the driver, looking at
the load from the ground, could not see beyond the last two last stack of bales.
In fact, the second to last stack of bales would be all the driver could see whether looking up
from the ground or from the Defendant’s dock.
So it all boils down to how safe the trailer was loaded.
LOADING
At the time of the depositions, the issues of heavier and longer bales loaded atop less heavy and
not as long bales was not known to Plaintiff’s side. Therefore, deposition questions centered on
what could be considered safe loading practices on the part of the Defendant.
Some exchanges were positive,
Question: “You said earlier that it was never a concern of the method used here at (your
facility) to load these bales, correct?”
Gen Mgr: “That’s correct.”
Question:” And it is also your understanding that then there would also be no concern for
whether securing devices would be necessary for these loads?”
78
Ibid:84:13
Page 35 of 45
Gen Mgr: “That’s correct79
.”
Question: “Do you agree that cargo such as cardboard bales should be loaded so that they
cannot shift or tip.
Gen Mgr: “Yes, I agree they should not, yes80
.”
Question: “When the driver as of January 23rd
2013 pulls the trailer out of the dock, is it
fair to say that the driver at that point can assume that or rely on the Defendant to have
loaded the bales properly into the trailer?”
Ops Mgr: “Yes”
Question: “And that would include the driver can rely on the fact that the Defendant,
prior to January, would have loaded those in a safe—a reasonably safe manor to prevent shifting
or tipping of those bales?
Ops Mgr: “Yes81
”
Then the answers turned negative.
Question: “Was it your understanding prior to January of 2013 that the Defendant was
responsible when loading those cardboard bales to prevent lateral or horizontal
movement after they were loaded into the trailer?”
Attorney objection
Question: “Can you answer it?”
Ops Mgr: “I cannot.”
Question: “Why can’t you answer the question?”
Ops Mgr: “I just cannot answer that question.”
Question: “Can you not answer it because you don’t know?”
Ops Mgr: “I don’t know82
.”
Question: “Is a shipper of cardboard bales like the Plaintiff responsible for loading
cardboard bales into a box trailer in a way that the bales cannot move laterally or horizontally to
prevent shifting or tipping within the trailer during transport.”
79 Gen Mgr: 32:11 80 Ibid:101:15 81 Ops Mgr:85:13 82
Ibid: 87:4
Page 36 of 45
Attorney: Objection. “If you want to change the word responsible you can.”
Question: “Can you answer it the way it is asked?”
Ops Mgr: “No.”
Question: “And is it because you don’t know.”
Ops Mgr: “Again, I don’t know83
.”
Is a shipper of cardboard bales like the Defendant responsible for loading cardboard bales into a
box trailer in a way that the bales cannot move laterally or horizontally to prevent shifting or
tipping within the trailer during transport
Question: “Would you agree with me that if a load of cardboard bales is loaded so that they are
restrained against horizontal movement by either the trailer or the cargo that the cardboard
bales would not shift or tip during transport?”
Ops Mgr: “No.”
Question: “You won’t agree with that?”
Ops Mgr: “I will not agree with that.”
Question: “And why not?”
Ops Mgr: “Again, it comes back to the driver. We have no control of what that load
does when it leaves our dock84
.”
The shipper is not absolved from responsibility of improper loading when a driver takes
possession of the load if the driver would not be able to see a problem with the load.
How could the Defendant have developed such a wrong interpretation of the FMSCA Cargo
Securement Regulations?
Ops Mgr himself may have provided an answer.
Question: “Are you familiar with the Federal Motor Carrier Safety regulations?”
Ops Mgr: “Some of them, yes.”
Question: “What are you familiar—which ones are you familiar with?”
83Ibid: 87:19 84
Ibid: 103:17
Page 37 of 45
Ops Mgr:”We deal a lot more with hours of service with running our own fleet of
drivers.”
Question: “What about proper loading and securement?”
Ops Mgr: “No, I can’t say that I’m familiar with that.”85
Another area Defendant uses as an excuse for not being responsible for a load once the loading is
accomplished deals with the issue of securing cargo using devices.
Citing the FMCSA regulations regarding cargo securement.
§ 392.9: Inspection of cargo, cargo securement devices and systems.
General A driver may not operate a commercial motor vehicle and a motor carrier may not
require or permit a driver to operate a commercial motor vehicle unless
(b) Drivers of trucks and truck tractors. Except as provided in paragraph (b) (4) of this section,
the driver of a truck or truck tractor must
(2) Inspect the cargo and the devices used to secure the cargo within the first 50 miles after
beginning a trip and cause any adjustments to be made to the cargo or load securement devices
as necessary, including adding more securement devices, to ensure that cargo cannot shift on or
within, or fall from the commercial motor vehicle; and
(3) Reexamine the commercial motor vehicle's cargo and its load securement devices during the
course of transportation and make any necessary adjustment to the cargo or load securement
devices, including adding more securement devices, to ensure that cargo cannot shift on or
within, or fall from, the commercial motor vehicle.
(4) The rules in this paragraph (b) do not apply to the driver of a sealed commercial motor
vehicle who has been ordered not to open it to inspect its cargo or to the driver of a commercial
motor vehicle that has been loaded in a manner that makes inspection of its cargo impracticable.
As previously presented, if a driver cannot inspect a loaded trailer so as to make a reasonable
finding that the load requires cargo securement devices then the driver is exempt from providing
and/or placing such devices.
The FMCSA regulations are clear. The shipper has no control over a safety hazard, created
during loading that would not have been readily apparent to a reasonably trained eye alert to such
a problem while loading or supervising the loading. Yet, a bale that weighs 500 pounds more
85
Ibid 86:8
Page 38 of 45
than the bale it is sitting on or a bale that projects 12 inches beyond the bale below, should these
not be considered readily apparent to the individual who loaded each?
How can the Defendant absolve itself from responsibility, for errors just as these, once the load is
accomplished and the driver arrives to claim it and the driver cannot see past the last two stacks
of bales?
The burden was and always has been on the shipper to ensure proper loading. The burden is on
the driver to make a decision of the safety of the loaded dependent on what the driver can see.
The burden starts with supervision, providing employees with expectations of how a load can
and must be safely loaded. Supervision continues by checking the loading until there is
confidence that the forklift operator knows what they are supposed to do and does it, time and
again.
The following explains where the Defendant was regarding supervisor responsibility for the safe
way to load.
Question: “…I know some plants have quality control people that walk around and check
quality control; does anyone here at Defendant wear that hat?”
Ops Mgr: “No86
.”
3rd
Super
Question: “John, do you ever inspect a load of cardboard bales when Felipe is done
loading it.?
3rd
Super: “No, I really don’t.”
Question: “Do you know if anyone does here before the load goes out?”
3rd
Super: “Usually the truck driver does before he pulls it out
Question: “Do you know where he does that?”
3rd
Super: “No, I don’t”87
10. All of points 1-9, above, led to or were directly instrumental
in the loading of unstable bales, by the Defendant, onto
Plaintiff’s trailer. The disruption of these unstable bales were
the direct cause of the Plaintiff’s injuries.
86 Ops Mgr: 80:9 87
3rd
Super:18:13
Page 39 of 45
Plaintiff’s trailer: #8342
According to testimony of truck driver
that first picked up this trailer,
Question: “And was the one right next to
the door?”
Driver: “No,It was an arm’s length away,
which you can see probably like two-and-
a-half, three feet.”88
Question: “So, the first row in the rear of
the trailer would have been a single bale?”
Driver: “Right.”89
Given there were 34 bales and that at least
one was a single meant that there either
was a three stack in the trailer or a single
stack farther up in the trailer.
Of the possible 15 bale stacks, 7 top bales
weighed more than their bottom bale.
Each of the negative weight differences
also indicate the top bale was longer than
the bottom bale making for an unstable
stack.
88 Driver: 53:11 89
Driver: 53:22
Date trailer
1/16/2013 8342
bales weight weight weight
pair # base top difference
1,2,3 1238 1344 1318
4,5 1420 1474 -54
6,7 1610 1644 -34
8,9 1528 1220 308
10,11 1242 1362 -120
12,13 1344 1290 54
14,15 1400 1184 216
16,17 1284 1244 40
18,19 1250 1232 18
20,21 1082 1050 32
22,23 1140 1040 100
24,25 1108 1024 84
26,27 1092 1154 -62
28,29 1278 1468 -190
30,31 1222 1282 -60
32,33 1300 1540 -240
34 1432
Table #
Page 40 of 45
The last four 2-bale stacks leading up to
the individual bale were all top heavy
with significant amounts of overhang.
Of special concern is the last bale pair
that was 240 lbs top heavy with a 12”
overhang.
Measurement of inside of Plaintiff’s trailer found
wall panels to be 52” wide. The final rear
measurement was from beginning of panel to end
of the trailer. The panel size was determined to be
one-half the full panels, or 26”.
The standing two-bale stack, seen in the rear
stopped, was loaded with the front end adjacent to
the end of the second full panel.
Calculations done: Length of trailer:630” less 130”
(52”+52”+26”) =500” divided by 33”(width of bale
stack) =15 rows. This equates at least 15 stacks of
two bales plus one additional
Remaining are the three bales visible at the end of the
trailer, numbered 1, 2 and 3.
Bale Pair # Weight Base Weight Top Weight
Difference
Length
Difference
26,27 1092 1154 -62 -3”
28,29 1278 1468 -190 -9”
30,31 1222 1282 -60 -3”
32,33 1300 1540 -240 -12
34 1432
52” 36”
1
2
3
Page 41 of 45
The front end of Bale #3 is close to the beginning of the
first trailer panel. Given that it is standing on its 33” wide
side, the side on which bales were loaded, places this bale
more than 52” from the last two-stack of bales.
Question: Why is it this far forward? Testimony indicates
that, upon the trailer first being picked up from the
Defendant, one single bale was noted on the rear of the
trailer, approximately three feet back from the doors. This
would make bale #1 the single bale and bale #2 loaded
atop bale #3 as a two-stack.
Was bale stack 2 over 3 loaded this far forward rather than
being loaded immediately in front of the visible two-stack
over 52” away?
Was bale stack 2 over 3 properly loaded in front of the
visible two-stack then shifted over 52” towards the rear of
the trailer?
There is not sufficient information to answer these
questions. Yet given the placement of the bales, post
accident, the mechanics of the accident can be developed.
3
1
2
Page 42 of 45
Accident Mechanics
Prior to accident unfolding,
a. Bale #1 was rotated a quarter turn back
(placement such as with Bale #3), within
several feet of the rear of the trailer
b. Bale #2 was also rotated a quarter turn back
and sitting atop Bale #3.
c. Note: Bale #2 was 240 pounds heavier and 12”
longer than Bale #3.
Accident
While the trailer was moving a torque force tilted
bale #2 causing it to fall and rotate a quarter turn
forward.
Bale #2 rotated towards and struck Bale #1,
forcing Bale #1 to commence to rotate forward
then slamming into the trailers rear doors.
Bale #2 remained in continuous contact with
Bale #1pinnning the latter against the doors and
continuing to exert its 1,540 pounds of weight
against Bale #1
When Plaintiff opened the trailer’s passenger side
door nothing seemed amiss.
As Plaintiff released the locking rod of the
driver’s rear door the stored energy of Bale #1
catapulted the bale out the doors and onto the
Plaintiff.
Bale #2 commenced to follow Bale #1 yet,
fortunately for Plaintiff, had only enough stored
energy to be forced partially out of the rear of the
trailer.
1
2
3
Page 43 of 45
11.The Plaintiff in no way caused or contributed to the accident.
ACCIDENT SUMMARY
This narrative was paraphrased from Plaintiff’s deposition alone as he was the only eyewitness to
the actions leading to the accident that produced his injuries. Having reviewed Plaintiff’s
deposition and accident scene photos I firmly believe the account he provided accurate.
ACCIDENT
On the day of the accident, Plaintiff drove trailer #8342 from consignee. Once there he parked
the semi-trailer in the general area delineated for trucks awaiting an open dock spot. As per his
training, when it appeared a semi trailer at the dock would be moving very soon, Plaintiff exited
the cab of his tractor and walked to the rear of the trailer. He flipped up the latch securing the
handle of the locking rod and turned the handle to the right, disengaging the locking rod from the
top and bottom of the trailer’s rear frame. He pulled on the handle to open the door, sensing no
resistance or power forcing the door to spring open, the Plaintiff then walked the right door to the
side of the trailer where he hooked it in place to prevent it from closing.
Plaintiff then returned to the rear of the trailer, looked inside the open right doorway and could
not see anything was amiss that would have prevented a safe opening of the left door. Plaintiff
then walked to behind the left door. As with the right door, he flipped up the latch, grasped the
handle and commenced rotating it to the right.
He followed the same procedures he had followed with the right door. He no sooner had
disengaged the locking rod when the left door sprang forward with great speed, slamming into
the Plaintiff before he could realize what had happened. The impact spun him around 180
degrees so that he was then facing away from the trailer. In the very next moment a large bale
was jettisoned from the trailer on a path directly for the Plaintiff. The bale struck the Plaintiff,
driving him to the ground. The bale, approximate weight of 1,400 – 1,500 lbs then landed on the
plaintiff pinning him to the ground. The extremely heavy bale compressed the Plaintiff’s
internal organs, including his lungs; this action caused the Plaintiff to commence suffocating.
The driver of the semi trailer that was ahead of the Plaintiff’, at the dock, by now had backed out,
straightened her vehicle and commenced to drive out of the facility. As she drove past the rear of
the Plaintiff’s trailer she spotted him pinned beneath a bale. Immediately she stopped and exited
her trailer then ran to the Consignee dock for help. Upon hearing what she had seen, the dock
supervisor boarded a forklift and drove to the accident scene. Once there he used the forks of the
vehicle to lift the bale sufficiently to allow the Plaintiff to once again breathe. The forklift
operator remained in this position awaiting the arrival of fire rescue.
Page 44 of 45
Consignee’s Report
This above accident summary is background for this subject.
In the week following the accident consignee issued an Incident Investigation Report90
. The
report has several issues that reflected negatively on the Plaintiff and will therefore be addressed.
Issue 1pg1: Another truck driver in the area witnessed the event…
Rebuttal: The driver of the other commercial vehicle testified
Other Driver: “When I pulled out- when I was getting into my cab to pull out of the dock,
I saw him (Plaintiff) getting out of his cab and walk to the back of the trailer. I pull up alongside
him, you know, my cab going towards the back of his trailer. I saw the doors were swung open
and saw a bale of the cardboard out on the ground91
.”
Issue2 pg 2: Both doors had been opened at the same time.
Rebuttal: Plaintiff opened both doors simultaneously. This criticism is from one or more
individuals who have seen open trailer doors, probably on television, and then surmised that
Plaintiff opened both doors at the same time. In all my years I have yet to see both double trailer
doors opened simultaneously. For these reason,
1. It has been always taught, as part of the CD92
license training and recertification, to first
open the right door then latch it to the side of the trailer; then do the same for the left
door. In this manner if freight is pushing on the door being opened, the door will swing
out; striking the driver knocking them out of the way. Opening both doors
simultaneously offers no protection from either door.
2. The left door, springing outwards, struck the Plaintiff and spun him around. If the door
had moved him laterally, it would have been towards the left side of the trailer, not
towards the middle. Regardless of the angles of the on-scene photographs, the Plaintiff
was nowhere near the middle of the trailer.
Issue 3 pg 2: “Driver was not in the proper position for opening door by opening door
with the same hand as the door side with other arm firm against the door, Had that been
the case he have been pushed out of harm’s way by the door.”
Rebuttal: It is unclear in the first sentence, “Driver was not in the proper position for opening
door by opening door…”whether the author intended all that followed “by opening door to mean
90 Date:1-23-13 Updated 1-31-2013 91 Other Driver: 4:16 92
Commercial Driver’s License
Page 45 of 45
what should be done or should not be done. Assuming that the phrase “by opening door with
same hand as the door side with other arm firm against the door.” is presented as the proper
technique the following concern is presented.
1. According to the instructions, a driver opening the right rear door should do so using
the right hand
2. While doing so the “other arm” is pressed firmly against the door.
3. In so doing how does the driver, his right hand on the handle of the right door, move his
left arm to press against the right door?
4. The only feasible way is for the driver to have his back and left arm flat against the
door.
5. In theory it may work so that the door would push rather than strike the driver.
Definitely would require some testing.
6. Even then, good luck getting driver’s to do this.
Issue 4 pg 3: … (driver opened both doors)...or opened the left door without noticing the tipped
bale or after noticing opened the left door anyway.
Rebuttal: As to the first part, does it count if the first time the Plaintiff noticed the bale was
when it hit him and then proceeded to suffocate him? As to the second part, Plaintiff testified
looking in through the right door way and not noticing a problem.
Issue 5 pg 3: “There was no load securing device used in this case.” And “It is now common to
use load securing devices in bale trucks.”
Rebuttal: See section above on cargo securement for details. In brief, the answer to both is no
and no. This question is a little strange given that on page #4 the author of this document
states, ”Strapping or barring loads of waste paper may not be advisable as oddly sized or shaped
bales could be leaning on devices causing additional risk.”
