SPECIAL REPORT: DAC case set to go to jury Tuesday

| 9/1/2006

Sept. 1, 2006 - DENVER - The lead attorney for the truckers who are suing DAC Services Inc. was delighted Friday morning when a federal judge accepted the drivers' definition of "accuracy" as part of jury instructions.

That definition is one of the key factors in the instructions that the judge is scheduled to give the jury Tuesday morning. Those instructions will outline specifically what yes-or-no questions the jury has to consider when it is deciding whether DAC Services Inc. willfully violated federal law.

The truckers contend that DAC, whose parent company is USIS Commercial Services Inc., violated the Fair Credit Reporting Act by willfully failing to follow reasonable practices to ensure maximum accuracy in the so-called DAC reports that it sells to motor carriers.

The accuracy of DAC reports is one that has impact on practically every trucker on the road, as the company has a database with files on almost 5 million drivers. In the slang of the industry, many drivers have reported being "DAC'd" - adversely affected by inaccurate, vague and incomplete DAC reports.

If the jury finds that DAC has acted willfully and violated the Fair Credit Reporting Act, the truckers' lead attorney, Randall S. Herrick-Stare, said it could be "a big fat piece of law" in the area of consumer reports and the rights of the individuals those reports are about.

That's an even larger impact than the Owner-Operator Independent Drivers Association was seeking when it filed the case against DAC in 2004. OOIDA asked U.S. District Court Judge Robert E. Blackburn to certify the case as a class action, with the class including every driver who has been the subject of a DAC report since July 7, 1999.

Blackburn denied class status earlier this year and the case proceeded with OOIDA's legal team representing six individual truckers. Blackburn has since removed two of those truckers from the case, but the four plaintiffs whose complaints are headed to the jury are more than enough to have an impact for all truckers.

The case has been one of multiple ironies, as both Herrick-Stare and the judge observed in open court Friday morning.

Blackburn commented about the irony of ruling on the definition of "accuracy" in a case that hinges on whether DAC reports are accurate.

The judge's statement generated a round of chuckles in the Denver courtroom. When Herrick-Stare responded by saying that the case was fraught with ironies, the judge responded with a broad smile.

Though it was a brief conference Friday morning - lasting only 59 minutes - there were a number of times that Blackburn ruled on the side of the truckers. And more than once, he simply shut down DAC's lawyer, Larry Henry, when he was objecting to the court's proposed jury instructions.

For example, Henry wanted the judge to add language to the instructions regarding DAC's contention that the driver reports in its database are not DAC's property, but the property of the motor carriers who submit the information.

"Doesn't the verb 'published' provide a sufficient prophylactic for the defense?" Blackburn asked DAC's lawyer, then added, "cut to the chase, Mr. Henry."

Henry conceded the point.

Then Blackburn ruled in favor of the truckers on the point being discussed and added language that Herrick-Stare had requested.

Later, Henry objected to the judge's proposed instructions because they refer to the federal requirement that DAC reports be "reasonably complete." DAC's lawyer said the phrase could confuse the jury as it relates to the definition of "accuracy."

"Haven't I defined the terms?" Blackburn asked, and then suggested that Henry come up with a hypothetical example to illustrate his point.

Henry did not have an example to suggest.

When Henry later returned to the question of the definition of accuracy, the judge interrupted him.

"Let me stop you here," Blackburn said.

On the next point Henry raised, the judge told him that his objection was a repeat of a previous one that had already been overruled. Henry gave up and moved on.

Henry also suggested that the judge had left out a key instruction to the jury about the nature of testimony from "lay witnesses." The DAC lawyer said he was concerned that the jury might be confused, because in addition to hearing testimony from experts in communications and human resources, the jurors also heard testimony from several DAC employees about the reports and forms used and developed by DAC.

DAC's lawyer wanted the judge to tell the jury that the DAC employees were not experts and therefore their testimony should have less weight.

Blackburn shut him down.

"I've been instructing juries for 20 years and I've never given a lay opinion instruction," Blackburn said.

The judge told Henry that the standard instruction about witness credibility was enough, and any discussion about experts versus lay people would prejudice the jury.

Court is scheduled to resume at 9 a.m. Tuesday. Each side will have 45 minutes to present its closing arguments to the jury and deliberations will begin after that.

- By Coral Beach, staff editor