Truck Injury Lawyer Blog : Truck Accident Lawyer & Attorney: Morgan Adams : Contingency Fee Truck Accident Lawyer

One of the the requirements of every trucking company before they put a truck on the road, and every truck driver before they get behind the wheel of a tractor trailer, is that they both must agree to follow the Federal Motor Carrier Safety Regulations. These are the regulations that keep us, the public, safe on the roadway while 80,000 pound tractor trailers are driven around us. Trucking companies, truck drivers, and truck accident lawyers must know all the regulations to determine if a violation of a safety regulation contributed to a wreck. The FMCSA lists all of the potential violations of the FMCSR in a chart it uses under the  Behavior Analysis and Safety Improvement Category (BASICs) program.

The FMCSA came out with revisions to the BASIC violations today, which means it also updated the FMCSR violation chart. Each violation of the FMCSR results in points being assigned through BASIC against the truck driver and trucking company. The points are then used to determine a trucking company's safety rating.

Lawyers can look at the list of BASIC (FMCSR) violations to make sure they are not missing potential negligence per se claims. Trucking companies and truck drivers can review the list to make sure they are running legal. The master list of FMCSR violations can be found HERE

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One of the things you do when handling a trucking case, whether as a plaintiff or a defense lawyer, is to audit the drivers logs to determine if the driver was over hours and driving in a fatigued state. I have blogged on fatigued driving extensively in the past. A key in auditing logs is to get all of the supporting documents (see FMCSR 395.8 (k)(1)(Question 10)) federal regulations require a trucking company to keep. These documents "support" the driver's logs by showing where the driver/truck was at a specific time.

E-ZPass - One of the most overlooked supporting documents is the information found in E-ZPass data. E-ZPass is an electronic device that records when and where a truck passes through a toll plaza.

Currently E-ZPass data is available in the following states: 

1. Illinois
2. Indiana
3. Ohio
4. West Virginia
5. Virginia
6. Pennsylvania
7. Maryland
8. Delaware
9. New Jersey
10. New York
11. Massachusetts
12. New Hampshire
13. Rhode Island
14. Maine

Other states have similar devices for toll plazas within their state. For example Georgia has Peach Pass and Florida has SunPass.

PrePass - PrePass is another electronic device that helps determine the location of a truck at a given date and time. PrePass allows trucks to bypass weigh stations by electronically transmitting a truck's license number, motor carrier identification, and weight to the weigh station so the truck doesn't have to stop.

According to a recent report there are 435,000 trucks in the PrePass system and 123,000 trucks in the E-ZPass system. Each of these trucks has an electronic record that will help put them at a specific place and time. Once that is done you can compare the data to what is shown in the driver's logs to determine if his truck was moving while the driver claimed he was sleeping.

These PrePass and E-ZPass records should be obtained in almost every case and help lawyers and trucking companies properly audit a truck driver's logs. Any trucking company that fails to use this data in auditing a driver's logs doesn't care whether its drivers violate the HOS regulations and is placing the public - you and me - at risk.

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Recently I was associated on a trucking case in Arizona by my friend Peter Gorski and his brilliant associate Kelley Durham. Our client, a seasonal agricultural worker, had run into a parked trailer that had been left on the side of the road. The force of the wreck killed our client and the defendants' believed the death occurred immediately at impact. The police report indicated it was our client's fault, and there was even allegations that our client had drugs and alcohol in his system.

After a thorough investigation our trial team determined that the truck driver 1) failed to place the required warning triangles (FMCSR 391.22), 2) illegally parked on the roadway, and 3) had even parked the trailer in the wrong direction so there was no lights, reflectors, or visibility tape facing oncoming traffic. These factors had not been taken into account by the police.

After many depositions we felt liability was clearly the fault of the trucking company. The trucking company was at fault for failing to properly train the truck driver and for knowingly allowing the illegal parking in order to speed up its operations and make more money. We then deposed the defense toxicologist and were prepared to file a Daubert Motion to keep out the speculative results of the sloppily conducted drug and alcohol testing of our client. Having strongly established our case through deposition, we were able to present a strong case at mediation.

The case resolved at mediation for one of the largest settlements or verdicts we could find for a Yuma, Arizona death case - one million dollars.

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Obstructive Sleep Apnea (OSA) has long been know to be a problem in the trucking industry. A recent study confirms overweight drivers are more likely to be involved in a crash, 54% more likely than other drivers! The researchers stated that OSA is most likely the cause of the increased crash risk.  

Drivers who have OSA fail to get enough sleep, drive tired, and drive down the road "nodding" off. These "micro sleeps," where the eyes close for a few seconds or shorter, the driver nods, then "wakes" back up, have the 80,000 pound tractor trailer going down the road BLIND. During these nodding periods wrecks happen because the driver has no idea what is going on around the truck.

OSA is frequently found in overweight people, and trucking companies can expect OSA, more likely than not, with drivers with a body mass index (BMI) over 30 (Obese). The National Institute of Health has a BMI calculator HERE for easy calculation of your BMI. If it is over 30, and you are a truck driver, you should immediately be checked for OSA. OSA is a condition contributed to by the long hours a driver spends sitting down, fast food eaten on the road, and the lack of places to exercise. Trucking companies know the FMCSA prohibits drivers with untreated OSA (OSA can typically be treated with a CPAP machine, many of which are made for truck drivers.) to drive a tractor trailer.

Even though OSA is a known danger in the industry, unsafe trucking companies have generally failed to take precautions against putting drivers with OSA on the road. These days there are hundreds of articles about the dangers of fatigue and OSA in every truck industry trade publication. Any trucking company that doesn't know about OSA at this point, and the dangers it  causes, is so incompetent and dangerous that they should IMMEDIATELY be taken off the road! Most trucking companies already have OSA screening programs in place. While Schneider National and I have had our disputes in the past (HERE), I will point out that they have had an OSA policy since 2004. J.B. Hunt entered into a program with SleepSafe in 2009 for its drivers to be tested and treated for OSA.

Sleepsafe, a company employing doctors that specialize in OSA in the trucking industry, estimated that trucking companies recouped the full amount spent on OSA programs in the first 4-10 months, with cost savings thereafter (Article at TruckingInfo.com HERE ). Far from being an expense, OSA policies saved trucking companies money .. and now clearly save lives as well.

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I have blogged numerous times since 2007 about the horrible safety levels of our nation's trucking fleet as documented in the annual Roadcheck Safety Inspections. In Roadcheck, the Commercial Vehicle Safety Alliance (CVSA) teams with state inspectors and they check more trucks on the road than normal. They announce the inspection dates months in advance so all the smart truck drivers who are driving illegally take vacation days and the numbers look better than the reality.

Out of the millions of trucks on our highways, less than 100,000 are inspected over the three day inspection period. Overall, less than 2% of the commercial trucks on our roads are inspected annually. In 2012 the Roadcheck inspections found 22.4 percent of vehicles, and 3.9 percent of drivers, out of service (OOS)! That is more than one in every five trucks taken off the road for safety violations so severe the driver was not allowed to proceed!

I find it interesting that, unlike past years, the percentage of drug and alcohol violations by drivers were not revealed in the CVSA press release. In 2008 I blogged on the Roadcheck results (HERE)which showed there were 92,500 commercial drivers driving IMPAIRED on our roads every day!

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I have blogged repeatedly about the need for seatbelts on school buses. IT IS PAST TIME TO HAVE SEATBELTS INSTALLED ON EVERY BUS!

Another tragic school bus crash involving middle school children shows why this is a critical - but overlooked -  safety feature. I blogged previously about another school bus crash in Kentucky HERE. I have blogged on the topic previously HERE and HERE. If we require these same students to be in car and booster seats, and will ticket a car driver for allowing a child to be out of the seat, how can we say seatbelts are not needed on a school bus? The CNN report is copied below for your consideration:

(CNN) -- Dozens of schoolchildren in Louisville, Kentucky, were taken to hospitals after the bus they were riding in collided with a car and rolled on its side, officials said.

Of the 47 middle school students taken to the hospital, about half received injuries that were not life-threatening, and the rest were taken as a precaution, Duncan said. All three people in the Mustang were also taken to the hospital.

Individuals were taken to Kosair Children's, Southwest Hospital, Jewish Hospital Medical Center East, and Sts. Mary and Elizabeth Hospital, Duncan said.

The Jefferson County Public Schools bus had been picking up students who attend Frost Middle School.

Rain was falling when the Mustang, occupied by three high school students, and the bus collided at an intersection, Duncan said.

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Morgan Adams is selected as a Mid-South Super Lawyer for 2012.

Super Lawyers (a Thomson Reuters publication) is a listing of outstanding lawyers in the Mid-South including lawyers from Tennessee, Arkansas, and Mississippi. Super Lawyers has an extensive election process that involves peer nominations, evaluations and third-party research. Each candidate is evaluated on 12 points that include lawyer-peer recognition within the legal community, professional achievement and legal excellence.

Super Lawyers is limited to the top 5 percent of the lawyers in Tennessee, Arkansas, and Mississippi. I am proud that I have been selected as Mid-South SuperLawyer for multiple years.

This honor is important to me because it’s a recognition of my commitment to protecting truck and bus accident victims in Tennessee, the mid-south, and across the United States.

To be a successful lawyer you have to really care about people, like people, and want to help them. You have to be committed to protecting people when they are being harmed. Further it is not enough to care about just your clients, you have to give back to the legal community and teach other lawyers what you do so that everyone is protected and everyone is made safer. That is why I write for legal text books and teach as many as 15 national legal seminars a year to other lawyers. Here is to a safer year for both your family and mine.

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One of the frequent consequences of a truck wreck, when there are survivors, is a brain injury. As a result I have been very active in learning all I can about this frequently invisible, and incredibly devastating, injury. One of my friends, Randy Rozek in Wisconsin, recently brought an article to my attention and I wanted to make sure you had a chance to see it. Understanding the mechanisms of brain injury is a critical aspect of being a good trucking lawyer. Randy posted this on his legal blog, and I thank him for bringing it to my attention: 

A new study published in the highly-regarded Journal of Neurotrauma establishes organic brain changes, even in cases of a single mild traumatic brain injury. The study entitled “The Use of Magnetic Resonance Spectroscopy in the Subacute Evaluation of Athletes Recovering from Single and Multiple Mild Traumatic Brain Injury” used advanced imaging to analyze changes in the brain following TBIs. Magnetic Resonance Spectoscopy (MRS) is an advanced imaging technique considered a compliment to magnetic resonance imaging (MRI). While MRI forms anatomic images from the signal of hydrogen protons, MRS uses the same information to establish the concentration of brain metabolites, such as N-acetyl aspartate (NAA), choline (Cho), and creatine (Cr). MRS can be beneficial in the diagnosis of certain brain disorders and creatine deficiency disorders.

The new study looked at the concentration of certain brain metabolites in specific areas of the brain following single and multiple brain injuries. The primary focus of the study was the genu and splenium areas within the corpus collosum. 20 normal volunteers and 28 mild brain injured student athletes recovering from mild TBI were selected for the study. The TBI group was categorized based upon the number of mild TBI’s and time since injury. The results of the imaging study were astounding.

Decreased concentrations of N-acetyl aspartate (NAA), choline (Cho), and creatine (Cr) were seen in the genu of the corpus collosum, but not in the splenium of the corpus collosum, regardless of the number of TBI’s suffered by the individual. Interestingly, individuals recovering from their first mild TBI showed the most significant changes in NAA/Cho and NAA/Cr ratios. Since all individuals were still experiencing symptoms of mild TBI, the amount of time since the TBI to the date the imaging was performed was not a significant factor determining the ratio of brain metabolites. The authors did note a correlation between number of TBI’s and the length of symptomatology, confirming the multiple concussion effect.

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The American Bar Association recently published a new text book on handling trucking cases. As a Truck accident attorney I am proud to say I was asked to contribute a chapter to the book. The text, in its third edition,  is titled "Truck Accident Litigation." The text book can be purchased HERE. My chapter was on issues involving negligence per se, that is to say negligence as a matter of law, for trucking company's that violate the FMCSR. The cover of the text book is shown below: 

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