Six Arkansas responders described lasting breathing problems after working a truck crash without knowing its cargo included formic acid. The state’s high court has restored their compensatory awards, dividing 4 to 3 over whether the evidence supports causation and the awards.
A jury awarded six Arkansas responders $75 million against trucking company Old Dominion Freight Line, finding it negligent for not disclosing its hazardous load to emergency authorities after a crash. According to the opinion, Old Dominion did not notify police of the formic acid until more than five hours after the collision, and expert testimony established that the men will live the rest of their days as if “breathing through a straw.” On November 5, the Arkansas Supreme Court voted 4 to 3 to uphold the 2021 judgment and vacated a Court of Appeals opinion that had ordered a new trial. The $75 million is compensatory only; the jury rejected punitive damages. The lesson for trucking defendants: a barrel that federal law did not require to be placarded still produced a $75 million judgment, because the jury’s finding rested on what emergency authorities were not told. Justice Cody Hiland’s dissent, joined by two other justices, challenged both the proof of causation and the size of the awards.
The parties agreed that a pickup driver, who died in the collision, was the sole cause of the crash. Old Dominion and its truck driver argued on appeal that federal law did not require a hazardous-materials placard on the trailer and that the responders’ claims would impose a notification duty beyond federal law. The Supreme Court said the evidence was undisputed that no placard was required for the 565-pound barrel of formic acid, but rejected the argument because the responders had not sought to impose placarding beyond federal law. It also rejected the notification argument, citing testimony from two officers who said the driver answered no when they asked about hazardous materials, and the company’s later delivery of shipping papers to police. The driver disputed that one of those officers had asked him.
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The truck overturned and caught fire on Highway 70 in St. Francis County on April 20, 2018. The opinion recounts what the responders said they encountered while working the wreck. Trooper Frank McMillion testified that an unfamiliar odor made him lightheaded and nauseous. Later, he said, a stronger smell burned his nose and throat and left him feeling unable to breathe. Corporal Allen Jones described burning nasal passages after the wind shifted. Four workers from White Motor Company, the towing business called to help clear the wreck, also responded; three of them, Bengi Bokker, Zack Billingsley and Carlton Pettus, testified to an odor that left them unable to breathe.
At 7:49 p.m., McMillion told dispatch that the crew had inhaled an unknown substance and requested an ambulance. According to the opinion, Old Dominion did not notify police of the formic acid until 8:51 p.m., more than five hours after the collision, when Trooper Keith Ponder received the company’s email with the bill of lading and safety data sheet. The jury found that Old Dominion, through its employees, was negligent for failing to disclose the hazardous material to emergency authorities and that the failure caused the responders’ injuries. Its finding did not rest on the collision, which the parties had stipulated the pickup driver caused.
The defense also argued that people paid to respond to emergencies could not recover for hazards encountered in that work. The Supreme Court rejected that argument, accepting the responders’ position that they were not paid to assume the risk of exposure to hazardous materials. Bengi Bokker testified that he never would have taken his crew to the scene had he known hazardous materials were present, and that a company paid, trained and equipped to clean up hazardous materials, such as Chemtech, would have responded instead. McMillion said he would have evacuated the area and called an emergency manager.
McMillion’s wife testified that he could no longer play with his grandchildren as he once had. Jones said his breathing problems limited his work as an officer; his wife testified that even dressing and collecting the mail could leave him short of breath. Bengi Bokker said he needed help with towing tasks he previously performed himself.
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Two younger tow workers described the future they feared. Hunter Bokker, the fourth generation of his family employed at White Motor Company, testified that he is concerned the family business may be at risk if his limitations keep him from working. Carlton Pettus said shortness of breath kept him from carrying his young daughter around the house for long. The majority opinion says the men’s injuries “will only worsen with age.” The Supreme Court majority held that the testimony, examinations and medical records supported the jury’s finding of lasting injury.
The jury awarded $25 million to McMillion, $20 million to Bengi Bokker, $15 million to Jones and $5 million each to Hunter Bokker, Zack Billingsley and Pettus. It rejected punitive damages. After the verdict, the trade publication The Trucker reported that Old Dominion attorney Zachary Hill had called the ruling against the company “shocking to the conscience” in his December 22 motion seeking a new trial or a reduced award.
The St. Francis County Circuit Court entered its judgment on December 17, 2021, after a trial held December 7 to 15, according to the Supreme Court opinion. The Arkansas Court of Appeals’ 2025 ruling, also summarized there, ordered a new trial because it found the damages were not supported by substantial evidence. This week, the Supreme Court vacated that ruling and affirmed the denial of the defense motion for a new trial or remittitur, a court-ordered reduction of the awards. The circuit court never ruled on that motion, so it was deemed denied after thirty days.
Justice Courtney Rae Hudson’s majority opinion says the jury heard evidence of permanent or worsening respiratory injuries and the limits those injuries placed on daily life. It treats medical expenses as one consideration, not a measure of what a person’s future pain must be worth. The majority also points to the jury’s different awards for the six men and its rejection of punitive damages as reasons to leave its assessment in place.
Justice Hiland’s dissent identifies $15,156 in medical bills admitted for three responders, each of whom received $5 million. Bills for the other three were not admitted; the majority held that the defense had not preserved its challenge to their exclusion, because a party generally must make a proffer, a formal offer of excluded evidence for the trial record. The dissent says the evidence of injury could not sustain awards from $5 million to $25 million. It also challenges the medical expert’s basis for attributing the conditions to formic acid.
**P&L translation:** by the dissent’s count, the three men whose bills were admitted received $15 million against $15,156 in admitted medical bills, about $990 in award for every $1 of bills. The leading indicator for claims teams is the roadside record: what a driver tells an officer who asks about hazardous cargo, and when the bill of lading reaches police.
The scoreboard now reads $75 million in compensatory awards for six men, no punitive damages, and a crash the parties agreed was caused solely by a pickup driver who died in it. McMillion, who called for an ambulance at 7:49 p.m., keeps a $25 million award. Old Dominion’s next legal choice is whether to ask the court to rehear the decision.
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