CDL Drivers Must Now Use a Certified Medical Examiner for Medical Card

DOT Reminds Commercial Drivers that Physicals Must Now Be Performed by Certified Medical Examiners

 National Registry Will Improve Safety for Travelers, Health of Commercial Drivers

 WASHINGTON – The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) is reminding interstate truck and bus drivers that beginning today, all new USDOT physicals must be performed by a qualified health professional listed on the National Registry of Certified Medical Examiners.

“Safety is our highest priority and it is vital that every commercial truck and bus driver be qualified, alert, and focused when they are behind the wheel,” said Secretary Anthony Foxx.  “Medical examiners equipped with a thorough understanding of DOT fitness standards will be able to ensure that commercial drivers meet the health requirements necessary to operate on our highways and roads, thereby strengthening safety for every traveler.”

The new program, which was required by federal law and addresses four National Transportation Safety Board recommendations, sets baseline training and testing standards for medical professionals who perform commercial driver physicals and for tracking of driver medical certificates. 

Today, approximately 22,000 medical professionals have completed the coursework and testing and are listed on the National Registry and another 27,000 have begun the certification process.  Current medical certificates held by commercial driver’s license (CDL) holders will continue to be valid until the expiration date that is shown on the card.  Only then will the driver need to seek a certified medical examiner to perform their new examination.

“We have certified thousands of health professionals to conduct driver exams – with more being added every day,” said Federal Motor Carrier Safety Administrator Anne S. Ferro. “The online database is easily searchable so drivers can schedule their medical certification exam with a qualified healthcare professional wherever they might be – coast to coast, including Hawaii and Alaska.”

A USDOT medical exam looks at a range of conditions to assess a driver’s ability to safely operate a commercial vehicle, including cardiovascular disease, respiratory and muscular functions, vision, and hearing.

All interstate commercial truck and bus drivers must pass a USDOT medical examination at least every two years in order to obtain a valid medical certificate, maintain their CDL, and legally operate a commercial motor vehicle.

Medical examiners on the National Registry will also be required to maintain and demonstrate competence through periodic training and recertification testing and those that fail to maintain federal standards will be removed.

FMCSA developed the National Registry of Certified Medical Examiners program as part of the agency’s commitment to enhancing the medical oversight of interstate drivers, and preventing commercial vehicle-related crashes, injuries, and fatalities.  To learn more, visit http://nationalregistry.fmcsa.dot.gov.

 

Truck Driver Shortage to Reach 500,000 in 2013!

Right after I blogged on the Wall Street Journal article here, I received a copy of the industry trade magazine Transportation Topics  (Transportation Topics, 2012 Top 100 For Hire Carriers, p A3) that reported industry economist Noel Perry, at FTR Associates, stated that the trucking industry was going to be short 500,000 drivers in 2013! Today’s shortage of about 200,000 drivers will increase to around 800,000 drivers in 2014, [Perry] estimated. That is less than previous forecasts “but still a big deal,” he said. (http://www.overdriveonline.com/ftr-forecasts-higher-growth-driver-pay)

This is a HUGE problem! Only time will tell if the Wall Street Journal, or Mr. Perry, is more accurate. Either way it is a scary time on the roads!

Wall Street Journal States Trucking Industry Short 20,000 Drivers

The Wall Street Journal noted today (July 16, 2012, page C1) that the trucking industry is currently short  20,000 drivers. The ATA has estimated that by 2014 the industry will be 111,000 drivers short - a fact I blogged about HERE back in 2007.

The only reason the current shortage isn't worse is the economy is in the tank. As the economy begins to revive, things will get much worse on the roads. Dangers from tractor trailers - where almost 20% of trucks on the road are already unsafe - will increase if trucking companies attempt to fill this gap with unsafe truck drivers.

A trucking company has a choice in whether to put an unsafe, untrained driver on the road. It is far better for a company to turn down a contract, even if it might garner a few extra dollars, if accepting the contract would require the trucking company to use a driver that might kill or maim someone in a wreck.

I know what the companies should do, I pray every night about what they will do. 

 

Truck Drivers Entitled to Workers Compensation Benefits for Lung and Bladder Cancer

In my prior post I discussed that WHO has proven a link between lung and bladder cancer and diesel fumes. What does this mean for drivers? It means you are entitled to workers compensation benefits if you have these conditions and can prove long term exposure to diesel fumes.

Drivers can count on the trucking company they worked for for 20 years trying to blame the driver for the cancer (remember when you tried smoking for 1 week in 8th grade? The defense lawyers will say that caused your cancer!). These blame games may work without a lawyer, but the science is now clear and should allow a recovery for many career truck drivers with cancer.  The reason? A contributing cause of your cancer was your job. In most states this means you are entitled to medical care and weekly disability checks and your families may be entitled to benefits on your death.

Generally it is the last employer that assumes the risk of paying workers compensation benefits even though all of your prior employment history may also have contributed to the cancer. Once you are aware your condition may be work related you have just a few days to report the condition to your employer (generally you must report to a manager or follow company procedures for reporting an injury) as work related. In many states, if you wait for more than 30 days, you are not entitled to any benefits. REPORT YOUR CLAIM IMMEDIATELY!

 

Truck Driving is a Dangerous Profession: Add Cancer from Diesel Fumes to the List of Risks

I have previously posted on how manufacturers of cabs don't seem to care if a truck driver lives or dies. Trucking companies and truck manufacturers treat drivers like disposable objects, worrying far more about the bottom line than the driver's safety and training. The fact is trucks don't include many of the safety features that car drivers enjoy as standard,  such as rollover protection. My prior blogs on the need for rollover protection can be seen HERE, HERE and HERE. I have also blogged on the need for electronic stability control (available since 2004 for trucks) HERE, and lets not forget that fire after a wreck is still a huge danger to drivers, see my post HERE. Now the World Health Organization has identified a new risk for truck drivers - CANCER.

The WHO stated, in its recently reported study, that diesel fumes cause cancer. In fact if you are exposed to high levels of diesel fumes you are seven (7) times more likely to get lung cancer, and bladder cancer is also a risk.

A more detailed discussion can be found in a NY Times article written by Donald McNeil  found HERE.

NTSB States Trucking Companies Should Obtain Ten (10) Year Driver History

NTSB recently stated that commercial motor vehicle companies should obtain a CDL drivers' 10 year driver history. Currently trucking companies are only required to obtain a 3 year history, many drivers re-enter the industry with a clean record, after horrific wrecks, with only a short period of time out of the business so that prior problems "drop off" their three year record.

The NTSB recommended that the following should take place:

3. Revise 49 Code of Federal Regulations 391.23 to require that motor carriers obtain a 10-year driving history for all prospective commercial vehicle drivers.

4. Revise 49 Code of Federal Regulations 384.225 to require that states retain on the Commercial Driver's License Information System driver record all convictions, disqualifications, and other licensing actions for violations during the prior 10 years.

This is a good idea and I hope that it is adopted.

 

Cell Phone Ban For Truckers in Effect Jan 3, 2012

The cell phone I ban I previously blogged about HERE has gone into effect, making American roads a little safer for 2012. This is not a complete ban, hands free devices are still allowed.

The American Trucking Association (ATA) has posted its interpretation of the rule HERE.

CELL PHONE USE BY TRUCK DRIVERS ILLEGAL

A new rule has eliminated one of the great dangers on the roadway, the use of cell phones by truck drivers. Now I am not stating that car drivers should be allowed to use cell phones, nor am I saying that hands free phones are significantly safer. I am saying that this is a step in the right direction.  Further, since trucks are so much bigger than cars, the use of cell phones by truckers typically leads to greater tragedy than when a wreck simply involves two cars. A wreck between two cars is simply more survivable for the parties involved.

Distracted driving is something I have blogged about extensively and it is nice to see a step in the right direction. The announcement stated: 

U.S. Transportation Secretary Ray LaHood today announced a final rule specifically prohibiting interstate truck and bus drivers from using hand-held cell phones while operating their vehicles. The joint rule from the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) is the latest action by the U.S. Department of Transportation to end distracted driving.

You can find out more, HERE

DRUG USE HIDDEN AND RAMPANT IN TRUCKING INDUSTRY

While trucking companies acknowledge that hair tests show a much higher number of drivers with drug problems than conventional drug testing, most still don't use this modern and efficient test.

C.R. England, a large national trucking company, found when it switched to hair tests for drugs that the positive rate for drivers shot up to from 2.8% to 11%. Both JB Hunt and Schneider are also using hair tests to determine drug use. Schneider found on a simultaneous urinalysis/hair test that 82 truck drivers tested positive on the urinalysis and 964 on the hair test. The difference is 882 drug users that are on our roads, slipping through the crack with a company that does not hair test for drugs.

See: Transportation Topics, July 11, 2011, P3

 

TRUCKING COMPANIES CONTINUE TO KNOWINGLY HIRE UNSAFE TRUCKERS

Lets face it, there are good truck drivers ( I represent a lot of them when they get hurt by unsafe truck drivers.) and then there are folks that shouldn't drive a tricycle much less a tractor trailer. The latter category of truck drivers endangers my friends on the road and my family. So what to do? 

Well, if you are a trucking company executive the first thing you can do is hire safe drivers. (The second thing you can do is provide adequate training but lets save that for another day.) In 2008 there were 4.9 million commercial drivers. Despite the large number of drivers, trucking companies have almost 100% turnover of drivers every year - and a driver shortage is anticipated by the industry. That means that a trucking company has to replace each driver in their fleet every year. As drivers get harder to find, some companies simply hire from the bottom of the barrel.

The FMCSA agrees that hiring safe drivers is critically important in avoiding wrecks. It has therefore set up a pre-employment screening program (PSP) to allow trucking companies to check drivers crash and safety records out BEFORE they hire them. So if we consider there are almost 5 Million drivers, and 100% turnover, there should be almost 5 Million driver safety checks right? Wrong!  Only 7.6 of truck drivers, or 380,000,  were checked out before being hired last year! (Transportation Topics, May 30, 2011, p4) The reason I believe they dont check out drivers? Bad drivers work cheaper, keeping wages down across the industry for good safe professional drivers and putting more money into the pockets of trucking companies.

Once again keeping the wheels moving, and making money, wins out over putting safe drivers behind the wheels and paying them fairly.

REPORT VIOLATIONS OF THE FMCSR - (888) 368-7238

Every so often drivers ask me how to report a company that forces them to work over hours, or drive unsafe equipment. The government has set up a toll free hotline to take these complaints and start an investigation. The DOT website to report violations can be found here and states:

The Motor Carrier Safety hotline is a line of communication available to commercial vehicle drivers to submit reports of actual or potential violations of the federal motor carrier safety regulations. The line, 1-888-DOT-SAFT (368-7238), is a toll-free number for drivers nationwide to contact the Federal Motor Carrier Safety Administration.

The Safety Violation and the Consumer Household Goods Commercial Complaint Website Hotline http://nccdb.fmcsa.dot.gov  is available to drivers to report safety violations to the Federal Motor Carrier Safety Administration online using a secure system.

Pre-employment Screening Program (PSP) for Drivers is LIVE

In case you missed it the PSP (Pre-employment screening program) is now live. PSP is designed to assist the motor carrier industry in assessing individual operators’ crash and serious safety violation history as a pre-employment condition.

Carriers should be using this program to check on all new drivers. The PSP website is located here. The cost to the company is only $10 per driver report. The PSP system allows motor carriers to search a driver’s history in multiple states. The fee remains $10 regardless of the number of states queried for a driver.

The Pre-Employment Screening Program is a screening tool that allows motor carriers and individual drivers to purchase driving records from the Federal Motor Carrier Safety Administration’s (FMCSA) Motor Carrier Management Information System (MCMIS). Records are available for 24 hours a day via Web request.

Driver Information Resource records purchased through PSP contain the most recent 5 years of crash data and 3 years of roadside inspection data from the FMCSA MCMIS system on each driver.

Causes for Ashville, NC Wreck, Involving Globe Carrier Company, that Killed Five

Truck driver Roumen Todorov Velkov, of Globe Carrier Co., killed five (5) people when he hit a line of stopped cars on Interstate 26 Sunday night, October 24, 2010. It does not appear the truck driver ever braked.

There is an excellent article about the problems in the trucking industry that may have lead to the crash (here) with information about the crash itself, but it ignores some of the likely causes which experienced counsel would consider. What are these causes?

  1. Fatigue
  2. Controlled Substances (Drugs and Alcohol)
  3. Overdriving of Headlights (By the time you see something in the road at night, with your headlights, you cant stop in time because you are driving too fast) 
  4. Improper training.
  5. Negligent Hiring of an unqualified driver
  6. Distracted driving - Cell Phones and Texting
  7. Faulty Maintenance (bad brakes)

These families will all need help and certainly have our prayers. Unfortunately minimum insurance coverage has not increased for tractor trailers since the 1980's (See Here) so there will likely only be $750K to go around in the primary policy, clearly not enough for a loss of this magnitude. The key is to hire an experienced trucking lawyer early in the process to see if other companies contributed to the wreck. This could involve, at a minimum, the shipper, the broker, or even a prior employer of the driver. These lawyers would, at a minimum, send spoliation letters such as the one found here.

I am sure the insurance agents are already promising to "take care of things" for these families. This is part of the formal "Apology" system designed to keep money out of the hands of the victims and their survivors. See my blogs here and here for more on this.

Trucking cases are complicated and intense, even if just properly prepared for mediation. I work with a number of great lawyers in North Carolina and would be happy to make referrals for any family member or answer any questions.

OVER 10% OF TRUCKS ON ROAD WITH BAD BRAKES - INDUSTRY FAILS TO TRAIN DRIVERS

Over 10% of all commercial motor vehicles (Tractor trailers, buses, etc...) have brakes that are so bad that government inspectors place them out of service and wont allow them to continue to drive on our roads. The CVSA (the Commercial Vehicle Safety Alliance, an industry group)  recently released statistics, on October 15, 2010, that stated that of all the vehicles inspected recently that:

  • 4,117 vehicles were placed OOS for brakes (13.5% in 2010, 15.1% in 2009).

ONE OUT OF TEN! Note that is out of service which means 20% OR MORE of the braking power is impacted. This statistic DOES NOT include CMV's that have bad brakes that have less than 20% of braking power impacted. You would think, giving the incredibly low standard that drivers and companies have to meet to keep brakes satisfactory, that training would keep this, one of the most critical accident prevention tools available, from ever being violated. 

The Trucking Industry should be ashamed of this. 

Texting by Truckers Banned - Risk of Wreck 23.2 Times Greater for Texting Drivers

The Final Rule banning texting by Commercial Motor Vehicle (CMV) drivers was published today in the Federal Register (see: 75 FR 59118). While the full text of the rule can be downloaded from the above link, some key points to remember are: 

  1. The Final Rule is effective today, September 27, 2010
  2. Texting increases the risk of a wreck 23.2 TIMES vs. a non-texting driver
  3. A texting violation counts as a serious traffic violation and can disqualify a CDL driver
  4. Federal Employees were forbidden to text and drive on October 6, 2009 (74 FR 51225 and Executive Order 13513)
  5. Texting includes dispatch devices, cell phones, or ANY other texting device such as a laptop
  6. The FMCSA states the Duty to ensure there is no texting by the driver is imposed on the carrier directly.
  7. FMCSR impacted by the ban on texting include:
    1. 383.5    Definitions
    2. 383.51  Disqualifications of Driver
    3. 390.3    General Applicability
    4. 390.5    Definitions
    5. 391       Qualifications of Drivers
    6. 391.2    General Exceptions
    7. 391.15  Disqualification of Drivers
    8. 392.80  Prohibition Against Texting (new)

 

 

 

UPS Driver Robert Morali Drove 5.2 Million Miles Accident Free Using the "Five Seeing Habits"

Congratulations to Robert Morali who recently completed 5.2 Million Miles of tractor trailer driving for UPS without an accident!

Was he lucky? Not according to Mr. Morali. He credits his training (which is similar to the Smith System training) by UPS on the "Five Seeing Habits" which are: 

  1. Aim High In Steering - This means look down the road at least 12-15 seconds instead of right in front of your vehicle. This lets you plan an out for any hazard that might be in front of you.
  2. Get the Big Picture - Maintain the proper following distance (at least one car length for every 10MPH) and scan to the front, sides, and rear constantly. Mr Morali stated he checked his mirrors every 2 seconds.
  3. Keep Your Eyes Moving - Scan don't stare. Don't keep your eyes focused on an object for more than 2 seconds. Eliminate eye holding patterns.
  4. Leave Yourself An Out - Surround yourself with space and always leave yourself an escape route in case the unexpected happens.
  5. Make Sure They See You - Communicate in traffic with your horn, turn signals, and brake lights. Watch traffic to make sure they see you. Use you signals and tap your brakes to make sure those drivers following you know what you are doing. 

These are common sense tips, widely taught as safe driving techniques in the trucking industry. When followed, a safe professional truck driver, like Mr. Morali, can have an entire driving career without a wreck.

 

Do Volvo Trucks have a Defect Causing Brakes to Apply Without Driver Input?

Recently I was contacted about a Volvo tractor trailer whose brakes allegedly spontaneously applied to  the parking brakes. This is supposedly true even with positive air pressure showing on the gages. Volvo is apparently fully aware of this problem and no immediate recall has been issued.

Has any driver had this sort of problem? Can anyone else substantiate this problem?

What Caused A Truck Accident In Hart County Kentucky That Killed Eleven People?

Today a tragic accident occurred in Munfordville, Hart County, KY involving a tractor trailer that crossed the median on I-65 and killed at least eleven people. The collision occurred at 5:30 AM and impacted the Esh family of Marrowbone, near Burkesville, Ky.

Given the time of day that this collision occurred, one of the primary issues is going to be fatigue of the tractor trailer driver. It is likely that he fell asleep and that caused him to cross the median. I have blogged extensively on this before, whether from hours of service violations  and fake logs, or from sleep apnea, fatigue is absolutely deadly.

A second possibility would be a load shift, causing the driver to loose control. This might have implications for the company that loaded the tractor trailer, depending on how the facts develop.

Finally, technology exists that would have prevented this tragedy. I have blogged on lane departure systems that would have alerted the tracto trailer driver before this tragedy occured.

The preventable tragedy that occurred in this case is something my firm deals with on a regular basis across the country and why we donate to truckingsafety organizations that attempt to make the roads safer.

The Truck Accident Lawyers at the Law Offices of Morgan Adams concentrate in protecting the rights of those who were seriously injured or lost a loved one in an accident with a commercial truck or bus. Our lawyers are based in Tennessee, but serve clients throughout the nation. If you or someone you love has been seriously hurt by a careless driver, don’t sign anything the trucking company gives you -- contact us as soon as possible at 866-580-4878 or by email to learn more at a free, confidential consultation.

 Morgan Adams is a trial attorney licensed in Tennessee and Georgia. He is listed as a "Mid-South SuperLawyer" (Limited to the top 5% of the lawyers in Tennessee, Mississippi, and Arkansas), is a member of the Million Dollar Advocates Forum (limited to lawyers who have recovered 1 million dollars or more for their clients), a LawDragon 500 Finalist, and is the Chair of the American Association of Justice's Interstate Trucking Litigation Group. He has served as chair of the Tennessee Association of Justice's Trucking Litigation seminars since 2004, and is a frequent speaker at national legal education programs, training lawyers to properly handle injury cases involving commercial vehicles. 

 

Dupre Logistics Takes Steps to Become Safer by Paying Drivers Hourly

It is well know in the trucking industry that paying drivers by the mile gives them an economic incentive to speed and violate hours of service regulations (resulting in fatigued drivers) in order to pack on the miles and earn more money. In fact many drivers have told me "if the wheels aren't turning I ain't earning." Trucking companies turn a blind eye to the violations created by a rate per mile system creating a huge safety issue for the motoring public who has to share the roadway with these dangerous drivers and companies.

Dupre Logistics appears to be an exception and is to be commended for shifting all of its drivers over to an hourly rate for driving its trucks instead of  paying drivers a set amount per mile. The company has also moved to EOBR's which more accurately track drivers work habits and time spent on the road. The President of Dupre Logistics, Tom Voelkel stated moving to hourly pay has reduced the company's accident related expenses by 70%! The company also has an active safety culture which has resulted in numerous safety awards.

Congratulations to Dupre Logistics for getting it right and making the roadways safer. I almost wish I could tell you that they were unique in their ability to provide safe drivers because then the tragic deaths involving drivers from other companies would be less painful. In looking at Dupre's website it becomes clear that the steps they took could easily be taken by other companies if they choose to do so. Other trucking companies simply choose not to follow Dupre's lead, by continuing to run unsafe driver's, putting us all at risk.

DOT RECONSIDERS HOS RULE - NEW HOS RULE EXPECTED BY AUGUST 2011

I have many post on the Hours of Service (HOS) issues for professional commercial drivers. I am pleased that the DOT has decided to reconsider the current, ill conceived, hours of service regulation. Truck drivers are generally treated like slave labor by trucking companies. In fact tractor trailers have frequently been referred to as rolling sweat shops. Regulations allowing drivers to drive longer do nothing but increase the chance of fatigued drivers, a factor in at least 1/3 of all commercial vehicle crashes.

The new HOS rule is expected to be issued by August 2011.

TRUCKER'S DRUG TEST MUST BE OBSERVED TO AVOID CHEATING

Recently, on May 15, 2009, the US District Court for the District of Columbia upheld a law that requires truckers to have observed drug tests if they have failed or refused to take a test as a condition of employment. I can't believe that the law was contested. Every member of the armed forces has observed drug tests at least annually. When you are in safety sensitive functions I think that a drug test, by a method that decreases the chance of cheating on the test, is only proper.

Perhaps I am biased in favor of these tests because for 22 years I had these tests in the USMC. Perhaps it is because I have dealt with the families who deal with the aftermath of a driver on drugs who cause a catastrophic wreck, or perhaps it is just because I know at least 2-3% of truck drivers are on drugs or alcohol on our roads every day and I just think more should be done to keep drunks off our roads.

Is there anyone who disagrees? Really? 

APRIL 28 - WORKER'S MEMORIAL DAY

The toll of workplace injuries, illnesses and deaths remains enormous. Each year, thousands of workers are killed and millions more are injured or diseased because of their jobs. Nowhere is this more evident than in the trucking industry where unscrupulous companies often take advantage of drivers, forcing them to work beyond what is safe for both the driver and the public.

There is a reason that trucks are often called sweatshops on wheels.

The first Workers Memorial Day was observed in 1989. April 28 was chosen because it is the anniversary of the Occupational Safety and Health Administration and the day of a similar remembrance in Canada.

On April 28th please remember those who work, and have been injured and killed, to provide you the things you use every day.

SLEEP APNEA INCREASES RISK OF A WRECK TWO TO SEVEN HUNDRED PERCENT

The study in the Journal of Occupational and Environmental Medicine (March 2009, Volume 51, Issue 3) found that the link between obesity and sleep apnea so strong that the federal government should mandate testing for sleep apnea for commercial motor vehicle drivers. Sleep apnea was found to increase the risks of a wreck 2 to 7 times over a fit driver. The study went on to confirm that 3.9 Million of the nations 14 million CMV drivers were possibly effected by sleep apnea. This is consistent with the industry estimate that 25% of the nations CDL drivers has obstructive sleep apnea, typically found in drivers whose body mass index was greater than 29.

I have posted previously on this topic, please see my earlier posts.

See Video's of Common Driver Errors

The FMCSA has posted video's of common driver errors on its web site. See: www.fmcsa.dot.gov/about/outreach/education/driverTips/index.htm

More will be said later about each area, but for now know that the video's show the following: 

Failure to Buckle Up
Too Fast for Conditions
Unfamiliar Roadway
Inadequate Surveillance
Driver Fatigue
Driver Distraction
Following Too Closely
Inadequate Evasive Action

FMCSA GETS IT WRONG - Keeps 11 Hour Driving Rule and 34-hour Restart

In a move to keep driver's on the road longer, the FMCSA kept a provision in the Hours of Service Regulations for Drivers that will allow companies to force them to be on the road 11 hours at a time and the 34 hour restart. These rules have been successfully challenged in court in the past, so it is ironic that the FMCSA would reissue the rules without change a second time. While the regulation will favor trucking companies that can keep their driver's on the road longer, it does nothing to protect drivers from a 11 hour workday. Let's face it. The trucking industry runs one of the last "legal" sweatshops in America.

I have previously written about how fatigue at the end of the day makes wrecks more likely. This regulation will only exacerbate the dangers from tired, exhausted, and fatigued truck drivers.

Driver Turnover at Trucking Companies Drops to Lowest Level Since 1995 - Impact on Safety

The American Trucking Association announced driver turnover is the lowest it has been since 1995. Due to the recent downturn in the economy, drivers are worried they may not get another job if they leave so they are willing to stay put, and trucking companies are running fewer trucks which require fewer drivers. This trend highlights the fact that trucking companies can retain the best drivers and will have plenty of quality applications for any job opening if they treat their drivers fairly.

What implications does this have for safety? Simply this. Trucking companies have no business putting dangerous, untrained drivers on the road. The companies that hire dangerous drivers in this economy are clearly putting profits over people. There are safe, well trained, experienced drivers looking for work. Trucking companies that ignore this pool, to save a few dollars to hire ill-trained workers, are risking the lives of their drivers and the public.

Court Blocks Direct Observation of Drug Tests for Truckers Who Tested Positive

The U.S. Court of Appeals for the District of Columbia recently put into place a temporary stay, preventing employers from directly observing employees take a drug test AFTER THEY FAILED THE FIRST ONE!  I have not reviewed the case or the stay so this is off the top of my head but what were they thinking? 

Perhaps I am biased because ALL drug tests in the military are observed. Perhaps I am biased because almost 2% of the truckers on the road are DUI (see my prior posts), perhaps I am just worried about my family on the road with a drugged out trucker. Regardless, if a trucker has already failed a drug test, and they allow him to be retested to keep his job, EVERY possible precaution should be used to make sure a druggie isn't behind the wheel of an 80K tractor trailer.

FATIGUED TRUCK DRIVERS 2.5 TIMES MORE LIKELY TO BE IN A COLLISION


Drivers with obstructive sleep apnea have 2.5 times greater risk of having a highway accident than drivers without sleep apnea as the condition cases driver fatigue (Findley LJ, Unverzagt ME, Suratt PM, Automobile accidents involving patients with obstructive sleep apnea, Am Rev Respir Dis. 1988 Aug; 138(2): 337-40. 1988). The FMCSA Medical Review Board recently recommended that drivers be tested for sleep apnea because of the risk of fatigue. The scientific basis for the recommendation is well understood and researched, the question becomes what will actually be passed into law? We should see a proposed regulation from the FMCSA by the change of the current administration in January 2009.

In the meantime trucking companies would be well advised to have their drivers tested, and if necessary treated, immediately. Failure to have a driver tested may result in a tragedy easily avoided. While I am aware that when a driver is diagnosed with sleep apnea he is unable to drive until treated, isn't that short period better than having a wreck that results in injury to the driver or to others?

Wall Street Journal Calls for Safeguards from Pilot Fatigue - The Bigger Problem is Fatigued Truckers

Andy Pasztor and Susan Carey had an excellent article on the effects of fatigue on pilots in the Wall Street Journal, PA1, Col. 4 Friday, September 12, 2008. While the NTSB calls fatigued pilots one of its "10 Most Wanted" safety improvements, it relates only 10 airline crashes and 260 deaths to the pilot fatigue problem since 1990. Compared to the fatigue problem in the trucking industry, and the thousands of deaths caused since 1990, the airline fatigue problem is minuscule.

I would have loved to have seen the authors compare the hours of service between  truck drivers and pilots, as well as the respective industry  issues that cause fatigue. For example the pilots have longer hours, but they also have auto pilots and have fewer dangers per mile than a truck driver. A lane change from a tired truck driver can, and frequently does, result in a fatality. Untreated sleep apnea is rampant in the trucking industry, yet pilots have to fly in thunderstorms.

There is no question that fatigue is a killer. I have previously posted on this topic and it will continue to be an issue until the government realizes that uncaring corporations will work their employees to the bone in order to earn a few more dollars. Pilots and Truckers have that in common.

Trucking Companies Turnover at 103% and Expected to go Higher

Turnover rates in the trucking industry have declined as a result of the slowing economy, as drivers are holding on to their current jobs, hesitant to move from company to company. Regardless of the decline, turnover rates remain at a high103% in the first quarter of this year. In breaking down this number, if a company hired 100 employees in 2007, they would have had to replace all of those employees once, and three of them twice, in order to match this rate of turnover.

In his article, Driver Turnover Rates Decline, but Trucking Expects Reversal, Eric Miller writes, “’It is important to note that, while the driver market has eased over the last year (or more), this is only a temporary phenomenon,’ ATA Chief Economist Bob Costello wrote in the report. ‘In the longer-run, the driver shortage will be back with a vengeance, once freight volumes pick up, likely boosting turnover.’”

Both high turnover rates and driver shortages cause numerous problems in the trucking industry. High turnover rates require trucking companies to constantly hire and train new employees, decreasing the number of experienced truckers on the road. Driver shortages, on the other hand, push a trucking company to extend the number of hours a driver will be on the road in an effort to meet demand.

My thanks to Jackie Bretell who wrote this post.

18-Wheeler Driver Violating Federal Regulations Kills Deputy and Firefighter in North Carolina

According to the Associated Press a tractor trailer was driven through blinding fog and smoke on a coastal highway in North Carolina, near Marine Corps Base Camp Lejeune, and struck and killed  Deputy Steven Boehm and a Firefighter Gene Thomas early Saturday, killing them. The deaths were tragic and, worse, easily preventable.

The Federal Motor Carrier Regulations, specifically 392.14 states that "extreme caution in the operation of commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by ....fog....or smoke, adversely effect visibility or traction. Speed shall be reduced if such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued..."  Clearly the driver did not pull over when he should have and drove blindly into the fog and smoke. The driver had no idea what was before the tractor trailer as he traveled down the road and was driving faster than his ability to see a person, recognize that someone was in the road, and then stop. The only other alternative is that the driver did this intentionally. Can anyone else think of another explanation?

It is tragedies like these, where a delivery schedule and a few dollars are given a higher priority than life, that truly make me angry. I am sure the driver and his company are "sorry." I am also sure that insurance adjusters are, as I write this, talking to the families of these men, telling them that it was a "terrible accident" and they will "do the right thing" by the family. In my opinion unless they explain that the FMCSR's were violated for profit, and that they either didn't train the driver because they were too cheap to have a safety program, or had such a culture that the driver felt he had to keep driving to deliver the load even though he couldn't see, justice won't be done. They should also, to be fair, tell the families that while they are grieving, and making funeral arrangements, the tractor trailer insurance company has hired investigators, photographers, and others to protect the insurance company, not the families. This insurance investigation team, called a rapid response team in the industry, starts to work as soon as the collision is reported. Their job is  to make sure the fault of the trucking company is minimized in every possible way. I think not telling the family all of this is what an adjuster means when he says the insurance company will "do the right thing." They mean do the right thing by the insurance company. They sure are not out there protecting the family.

If anyone knows these families and wants to give them my name I will be happy, free of charge and with no obligation, to tell them exactly what needs to happen to protect their rights and find out why this tragedy really happened and what is being hidden from them. If these families don't get in touch with a lawyer with trucking experience they may get some money, but they will never get justice.

This is not how I had planned to write my Father's Day blog. Tonight I will pray for the families and ask that you do so as well.

 The Law Offices of Morgan Adams represents plaintiffs in wrongful death and catastrophic injury cases arising from motor carrier accidents across Tennessee, Georgia, and throughout the country.  Morgan Adams is an Officer of the Interstate Trucking Litigation Group, American Association for Justice and one of only two lawyers in the country honored with the Life Member Award by the Association of Interstate Trucking Lawyers of America. He has served as chairman of the Tennessee Association of Justice’s Trucking Litigation Seminar since 2004. Morgan Adams’ firm focuses on cases arising from truck wrecks and accidents (tractor trailer accidents, truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks, rollovers, cement mixers, tanker truck wrecks, fires and explosions involving trucks, hazardous chemical and materials truck and tanker wrecks.)

Better Drug Tests Needed For Truck Drivers

Current DOT drug tests can be beaten, easily, by truck drivers. In fact even if all the procedures are followed urine samples can be switched, at least that is what the Drug and Alcohol Testing Association has stated. I would list the various ways to cheat but that has already been supplied to truck drivers in the April 14, 2008 issue of Transportation Topics. They even listed the name of the product to use, which would allow driver's to find it on Google, to avoid having a positive drug test. No kidding. You just can't make this stuff up.

 A better method, and less invasive, would be simply to test hair samples. This test can determine drug use over the period of time it took the hair to grow. Another method, the saliva test, can determine some drug use within a 24 hour period. The best result for the public would be a combination of the tests, but no one at this time, even safety groups, appears to be advocating for that at this time.

What is clear from the above is that the urine tests currently administered can easily be beaten. There are better methods available to detect drug use, and the failure to have better testing allows drugged up drivers on the road.

Tennessee Industry Roadblock Takes 36% of Inspected Trucks of the Road for Violations

Staff writer Ben Benton of the Chattanooga Times Free Press reported Thursday, April 12, 2008, on the statistics from the Tennessee Industry Road Block at Monteagle, Tennessee. The Roadblock was run by the Tennessee Highway Patrol's Commercial Vehicle Division. The results?

  1. 2310 Trucks went through the inspection site in the time the roadblock was set up.
  2. 41 trucks were inspected (my calculation shows that is 1.8 percent of the trucks)
  3. 12 trucks were removed from the road (apparently for mechanical/equipment issues)
  4. 3 drivers were removed from the road for violations (typically hours of service violations but the article didn't say)

Thus out of 41 trucks inspected 15 were on the road in violation of regulations ranging from being overweight (which means the truck can't stop as fast as a properly loaded truck and other problems associated with exceeding the design capacity of the truck) to an airline problem which could eliminate braking capacity for a tractor trailer (truck brakes are typically air brakes). This is a 36.5% failure rate of inspected trucks.

What does a 36.5% failure rate mean? The article states "more than 9 million trucks" pass through Tennessee. Given that number, and a 36.5% failure rate, that means 3,285,000 trucks IN TENNESSEE ALONE shouldn't be on the road. Perhaps what is worse a trucking company official, who was also present with Mr. Benton and quoted for the article, stated "Everything the Troopers do on inspections is what the driver should do every morning before he leaves." This means the companies either fail to train the drivers in how to do a proper FMCSR pretrip inspection or the company has fostered a safety attitude that allows the driver to believe he can get away with a poor inspection.

The implications for Tennessee, and the rest of the country, are serious. Trucking companies must crack down on safety issues within their fleets before more tragedies occur. It is far cheaper to conduct a proper inspection than it is to deal with litigation after a collision caused by a problem that should have been corrected before the truck left the terminal.

DRIVECAM REDUCES LITIGATION AND MAKES FOR SAFER DRIVERS

I just returned from a presentation by DriveCam www.drivecam.com that could really help trucking companies reduce claims AND eliminate risky drivers from their fleet. DriveCam works much like an event data recorder discussed in prior blogs. Essentially it is a camera mounted in the cab of the truck that will retain several seconds of video of both the driver and what is in front of the truck before and after an emergency event like hard braking, swerving, collision, etc... The information is automatically transmitted, wirelessly, to DriveCam headquarters for a safety analysis and then on to the trucking or bus company. Companies can then look at the data, EVEN IF THERE IS NOT A WRECK, to see what if any driver errors there were in creating the emergency situation. Was the driver following too close? Did a car swerve in front of them and cut them off? DriveCam allows company officials to review and to recognize safe drivers for preventing accidents and penalize dangerous drivers for causing accidents.

If DriveCam data exists it will immediately prove, or disprove, the cause of a collision. Juries will no longer have a he said, she said, situation in court. Trucking companies will either have a defense or will be able to admit liability, and accept responsibility,  for what happened without the burden and expense of a trial. It would appear that everyone would benefit.

I realize that some drivers may feel big brother has entered the cab. I would love to hear from drivers who were saved from punishment or a lawsuit because of DriveCam proof as well as from any driver who feels they were punished unfairly by the DriveCam system.

 

Court of Appeals Increases Danger on the Roads and Rejects 10 Hour Rule for Truckers

The U.S. Court of Appeals, for the District of Columbia Circuit, on Wednesday, January 23rd, denied Public Citizen’s motion to vacate the interim regulations adopted by the Federal Motor Carrier Safety Administration (FMCSA), keeping in place the rule increasing the time drivers are allowed behind the wheel from 10 hours to 11. The 10% increase in driver's hours was previously struck down by this very court.

The governments retention of the 11 provision is a major blow for safety in this country given the increased use of trucks and the decline in the number of available drivers. According to the American Trucking Associations own studies the trucking industry was 20,000 drivers short in 2004 and it estimated the industry would be short 111,000 drivers by 2014. This means less qualified drivers will be driving longer hours. Please see my earlier posts on the HOS issue.

YOU SHOULD CALL OR WRITE YOUR CONGRESSMAN AND TELL THEM 11 HOURS IS TOO MANY TO BE BEHIND A WHEEL OF AN 80,000 pound tractor trailer.

A copy of the one page order allowing the FMCSA 11 hour rule to remain in place may be found at:

www.truckinjurylawyerblog.com/Order On HOS Rejection Petition to Enforce Jan 23, 2008.pdf

Team 2007 Has 3 Million Miles EACH Without A Collision!

Because my firm specializes in litigating collisions involving tractor trailers, frequently I get asked if I believe all truck drivers are dangerous. The answer is a resounding NO.

A fine example of the best in the trucking industry is the Small Trucking Association’s Team 2007. The members of Team 2007 are perfect examples of safe professional tractor trailer drivers. These ten (10) drivers have a combined 269 years of driving experience and with more than 30 MILLION accident free miles driven. My hat is off to the 2007 team consisting of:

1.       George Drewicke

2.       Donnie Sanders

3.       Harry Bolm

4.       Doyle Zorn

5.       Timothy Carroll

6.       Ken Bohman

7.       Jim Ryburn

8.       Richard Swonger

9.       Richard Maschino and

10.    Stan Scott

Preventing Tractor Trailer Rollovers

Training remains the number one way to prevent truck rollovers according to government and industry officials. A 2007 report by Battelle Memorial Institute for the FMCSA found “75% [of rollovers] are attributed to driver error.” The primary cause was running off the road, caused by driver fatigue or inattentiveness.”

Trucking companies could reduce rollovers by the following: Lowering a trailer 3” would reduce rollovers approximately 12% annually. A wider trailer track, from 96” to 102”, would reduce rollover’s 17%. The study found the average cost of a rollover was $600,000 and that for every dollar spent on stability control devices the company would save $2.20. According to Steve Niswander, vice president of safety and policy regulatory relations for Groendyke Transport, driver training is still the most effective way to present crashes. (See Transportation Topics, December 10, 2007, p11)

ATA to Leave Owner Operators Without Workers Compensation Insurance

The American Trucking Association (ATA) has announced plans to lobby states to put large truck company profits over the well being of owner-operators (O-O) (See Transportation Topics, December 10, 2007 page 1). Specifically the ATA stated that they were lobbying states to ensure owner operators were exempted from workers compensation laws (stating O-O’s had to be covered by workers compensation insurance by the companies that hired them) since it was clear that any federal legislation taking away this benefit would not pass. 

Workers compensation protects O-O’s by insuring that, if they are hurt on the job, they can get their medical bills paid and have a small income until they heal. Under the laws of many states O-O’s are considered employee’s for purposes of workman’s compensation. This is because the trucking companies dictate the route, times, and frequently provide the truck to the O-O on a payment plan. In my experience the payments under the workers compensation system are never enough to keep the O-O’s truck from being repossessed, but are sometimes enough to keep the driver’s house out of foreclosure until the driver can go back to work. If the large companies don’t cover workers compensation for the small O-O, then many will go without insurance or go to work for a larger company. If the O-O goes without insurance, and is injured, it is the taxpayer that will eventually pick up the medical bills.

These O-O’s are frequently mom and pop drivers and often reflect the finest ideals that the trucking industry has to offer. They are pursing the American dream of owning their own business and making that first step. While any other employer would have to cover workers compensation insurance, the trucking companies want to shift this cost to the O-O who already are facing all the costs of higher fuel and taxes, with none of the pricing power of the larger companies to pass these costs on. The ATA should be ashamed of its position on this issue.

FMCSA TAKEN BACK TO COURT FOR HOS RULE

It is not surprising that the FMCSA was taken back to court as they proposed keeping the 11 hour rule which has been struck down by the courts. This topic has been discussed in my prior blogs extensively. The proposed rule is simply dangerous. The safety studies cited for safer highways fail to take into account introduction of technology that decreases collisions. The selective nature of the studies chosen, and willful turning of a blind eye on the part of officials who expect to be working for the trucking industry at some point, is something I thought I would only see in third world countries.

Sen. Frank Lautenberg (D-N.J.) said during a Dec. 19 hearing. “Despite two unanimous federal court decisions . . . the FMCSA is going forward as if the court said nothing at all.” Lautenberg said he believed “the administration’s proposed rule is a sham, and so do our courts. They’ve said so twice.” He added that since FMCSA has been “giving us reason to question their priorities and their commitment to safety, it is time for Congress to get involved.”

I agree. Please write your Representatives and let them know that this proposed rule is dangerous and they should actively oppose lengthening the hours truck drivers are on the road. Put it to them simply, ask "How is your driving after 11 straight hours on the road? Is it better or worse than when you started?" I think we all know the answer to those questions. Let us hope congress and the courts do as well because it is clear that the FMCSA won't admit the answer.

FMCSA ENDANGERS PUBLIC BY PROPOSED HOURS OF SERVICE REGULATIONS

The Federal Motor Carrier Safety Administration (FMCSA) has issued an Interim Final Rule (IFR) putting into place the same 11 Hours of Service Regulation (HOS) that was struck down, only a few months ago, by the courts as being unsafe. The press announcement from the FMCSA on this issue can be found  at:   www.fmcsa.dot.gov/about/news/news-releases/2007/121107.htm

Predictably, the American Trucking Association (ATA) welcomed the IFR on the drivers’ Hours of Service. From a company owner's standpoint  the IFR makes since because anything that allows a driver to spend more time on the road puts more dollars in their pockets. From the publics standpoint, having tired truckers on the road only leads to tragedies. My firm has been honored to represent many of these families, whether victims or heirs, and tired truckers are dangerous.

One of the major flaws with the FMCSA and the ATA's position (that the 11 hour HOS regulation is safer than the 10 hour HOS) is that they fail to take into account the other safety equipment that is becoming prevalent in the trucking industry. Please see my prior posts for examples.

Is it any surprise that the FMCSA officials leave government service to join ATA companies and ATA companies provide officials to the FMCSA and the government? Clearly the fox is guarding the hen house in the FMCSA.



 

Government Agency Agrees DOT Drug Tests Faulty

I have multiple posts on the use of illegal, Over-The-Counter, and legal drug use by drivers and with any luck something will be done about this clear danger. In the past I have been told "we have testing for that" even though it was well known the testing was ineffective. The facts which were apparent to anyone who has experience in tractor trailer litigation was brought to Congress' attention recently. The Government Accountability Office told Congress that the Department of Transportation’s drug and alcohol testing program for truck drivers is unreliable and riddled with problems.

Our testing clearly shows that the drug user could easily beat the DOT drug test, even if the collection sites followed all of the DOT protocols,” said Gregory Kutz, managing director of forensic audits for the Government Accountability Office. “The test can be beat using counterfeit documents, synthetic urine or adulterants.”

Another GAO official, Katherine Siggerud, told the House Transportation Committee’s highways subcommittee on Nov. 1, “There appears to be a significant lack of compliance [with drug and alcohol rules] among motor carriers, particularly small carriers and self-employed drivers.”

Rep. Peter DeFazio (D-Ore.), chairman of the highways subcommittee, called the Nov. 1 testimony “absolutely devastating,” saying the investigations showed that “in the United States, we have no meaningful program of drug testing for commercial truck drivers. None.”

Rep. James Oberstar (D-Minn.), chairman of the full Transportation and Infrastructure Committee, agreed, saying, “To find that [our drug-testing program] falls so grossly short, as you put it, is shocking.”

GAO looked at the way test protocols were handled and, Kutz said, “with respect to protocols, 22 of the 24 sites that we visited failed at least two of the 16 DOT protocols we tested for.”

Siggerud’s report said, “Products designed to ‘beat’ the test are marketed brazenly on the Internet,” making samples unreliable, even when a carrier has a testing program in place.

She said another problem was that job-hopping after a positive drug test “appears to be quite common.”

Oberstar criticized the practice of marketing and selling masking agents or synthetic samples.

“There’s no other beneficial use for those products — they ought to be banned,” he said. “I hope the outcome of this hearing is legislation to do exactly that.”

Oberstar said the current system of relying on drivers to self-report positive drug tests to employers, and past employers to provide information to prospective ones was not good enough because it allowed drivers to “jump from job to job to job and leave their drug history behind.”

Rick Craig, director of regulatory affairs for the Owner-Operator Independent Drivers Association, said the driver group was “unconvinced of the need for a national clearing-house for positive drug and alcohol test results,” citing privacy and other concerns.

   

See: DOT Drug tests Faulty, GAO Tells House Panel, by Sean McNally in Transportation Topics Nov 12, 2007, Page 1 and 43.

Undetected Drug Use Prevalant Among Truck Drivers

J. B. Hunt Transport Services top safety official, Greer Woodruff, recently reported that they had achieved more accurate results from testing hair samples of drivers than urine samples for drug use.

According to the company, 866 drivers applied for a job (in a one year period which ended in 2007) and 9.22% of drivers tested positive for drugs based on the hair sample, and only 1.59%, of the same group, tested positive through a urinalysis. J.B. Hunt stated hair testing is more appropriate for pre-employment hiring and a urinalysis is more appropriate for a post accident and reasonable cause testing.

While a hair test does not detect recent use (it takes 5-7 days for the hair to grow enough to be tested) it is much better at detecting a history of drug use. Additionally the hair sample test is dramatically harder to cheat on than a urinalysis, while giving lawful driver's more dignity in the testing process.  In J. B. Hunt's case 66 drivers were detected with a history of illegal drug use that would otherwise have been on the highways. It is hard to think of how many dangerous tractor trailer drivers are on the road when these figures are extrapolated out across the trucking industry.  

J. B. Hunt should be commended for using this common test to ensure its drivers are free from drug use. The scary part is, in companies that don't use a hair test to detect illegal drugs, approximately 8% of tractor trailer drivers should not be hired due to drug abuse. The American Trucking Association commissioned a study in May of 2005 that found there were 1.3 million truck drivers in the United States. If 8% are unfit to drive, that means there are 104,000 drivers on the roads of America that have a history of drug use and should not be behind the wheel of an 80,000 pound tractor trailer.

These drivers are also the drivers most likely to abuse over-the-counter and prescription drugs as well as the illegal drugs that a hair test reveals. They are also far more likely to be in a collision. Trucking companies know this and frequently fail to have their drivers submit to a mandatory, post accident, drug test as a result. They roll the dice that this information won't come to light in a jury trial, and that a jury will dismiss this failure as something that "just happened" because of everything "going on."

The trucking industry is aware of JB Hunt's results with hair testing, they were announced at a conference and were widely reported in the industry. Time will tell if other companies try to make the roads safer by using hair tests or if they would rather risk the lives of Americans for the sake of moving more freight for a few more dollars. Truly putting profits over people.

 The source of this article was Transportation Topics, November 5, 2007, Page 27

Driver Error in Fog Kills Two in 100 Car Pileup in California

18 Tractor Trailers were involved in a 100 car pileup in a California fog on November 4, 2007, and the tragedy is the Federal Motor Carrier Safety Regulations require drivers to use "extreme caution" if they have poor visibility. This was an avoidable collision for the truck driver's, and the Innocent's hurt by their recklessness,  if the tractor trailer drivers had only followed the law.

Specifically 49 C.F.R. § 392.14  states a driver must exercise "extreme caution" when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust or smoke, adversely affect visibility or traction. Had the driver's exercised "extreme caution" there is no doubt in my mind that there would have not been 18 tractor trailers involved in this collision and the photographs I am pasting below would not have included a tractor trailer.

FMCSA WEAKENS AGRICULTURAL CARGO SECUREMENT

The Federal Motor Carrier Safety Administration (FMCSA) adopted more stringent standards for cargo securement last year. These standards help ensure the safety of truck drivers, and everyone else on the highways because if a load shifts the tractor trailer can roll over. Additionally, the load can simply fall off the truck with improper cargo securement so strengthening the rules requiring greater cargo securement makes everyone safer.

Unfortunately on September 28, 2007 the FMCSA weakened the rules in regards to hay bales. Instead of straps every 10' the new regulation requires one strap for a 32' trailer and two if the trailer is between 32' and 48'.

Having moved my fair share of hay bales into the second floor of barns, I can tell you there is nothing funny about a 40-50 pound hay bale bouncing towards you on the highway. I think this is a bad decision and someone will die as a result.

Tired Inattentive Trucker Kills Two and Involves 11 Vehicles

A crash involving 11 vehicles on Interstate 75 resulted in two deaths this morning, Oct 1, 2007, in Sarasota, Fl.

James P. Brashear, 42, of Sarasota, and Manuel R. Ramirez, 54 of Miami, were both killed at about 12:30 a.m. Monday in a road construction area when a semi-tractor trailer collided with several vehicles.

The driver of the semi, Pablo A. Merlos, 33, of Miami failed to stop and continued colliding with vehicles.

There were a total of 12 people injured, including one patient who was flown to Bayfront Medical Center in St. Petersburg from the scene just north of Bee Ridge Road in Sarasota. Four patients were transported to the Doctor's Hospital of Sarasota with minor injuries, according to the Florida Highway Patrol.

Lyn Cassan, director of marketing for the Doctor's Hospital, said she could not release the condition of crash victims.

Florida Highway Patrol Lt. Doug Dodson said the crash was under investigation.

"The construction crew along with Florida Highway Patrol was operating with a running road block to slow the traffic down because they were going to a lane transfer," he said. "Traffic started backing up northbound. A tractor trailer failed to stop striking multiple vehicles."

A lane of traffic was closed for seven hours, Dodson said. 

See the full story at: www.bradenton.com/breakingnews/story/160682.html

FAKING EOBR LOG BOOK ENTRIES

Electronic On Board Recorders (EOBR's) have been touted as the best way to eliminate chronic Hours of Service (HOS) violations which lead to fatigue, a major cause of trucking collisions. For example on Aug 9, 2007 the Chattanooga Times reported that in an Atlanta collision which killed 4, the driver state "he had fallen asleep at the wheel."  Anything that would eliminate these tragedies should be applauded, but EOBR's are not a panacea.

In my business I often represent severely injured truckers that have been hung out to dry by their own trucking company. One of my clients recently told me that when he drove a truck with an EOBR, the company gave him the company code which places the EOBR into a "test" mode. While in the test mode the EOBR is offline and doesn't record his hours. He could therefore drive longer hours, in violation of the HOS regulations.

Without the use of an experienced trucking lawyer critical issues like this are likely to be overlooked. A case involving a tractor trailer is not just a big car wreck case and requires significant expertise to handle properly. Make sure any lawyer you hire has that experience.

 

Collisions Caused by Trucks Leaving Their Lane are Preventable

Lane Departure Warning (LDW) Systems

Trucking companies that are concerned about safety, of their drivers and the public, have ways to assist truck drivers in preventing some of the most common and tragic of collisions, those caused by lane departure. When a tractor trailer leaves its given lane of travel, other motorists on the road frequently pay the price. Frequently, lane change collisions are caused by drowsiness, fatigue and distraction. Trucking companies are aware of how these collisions occur and their frequency (see below link to FHWA fact sheet). They are also aware that technology exists, and is in use, which would significantly reduce this type of collision if they only chose to use it. Trucking companies can empower their drivers to stay safe by using a lane departure warning system or they can gamble with the lives of the drivers and the public. 

Computers and technology now can monitor the position of a vehicle within a roadway lane and warn a driver if it is unsafe to change lanes or merge into a line of traffic. These systems use imaging technology or radar to warn drivers when they are leaving their lane and can also assist drivers who are intentionally changing lanes by detecting vehicles in the driver's blind spot.

One such imaging system is manufactured by Iteris, which states the following on their website about lane change collisions and their product:

Latest Statistics: Highway Fatalities
42,643 Total Fatalities in 2003
23,324 Lane Departure Fatalities in 2003
59% Lane Departure Fatalities in 2003
(Percent of total fatalities as a direct result of unintended lane departure accidents.)

Source: safety.fhwa.dot.gov/facts/road_factsheet.htm


What is LDW?
LDW uses a technology called Machine Vision to track a vehicles position relative to the lane markings. Using image recognition software, the system can detect when a vehicle drifts towards an unintended lane change. When this occurs, the unit automatically emits a distinctive rumble strip sound from the left or right speaker (depending on which way the vehicle is drifting), alerting the driver to make a correction.

LDW works effectively both day and night and in most weather conditions where lane markings are visible. LDW is capable of detecting both solid and dashed lines even if the lines are heavily faded.

"Virtual" rumble strips
U.S. Government accident statistics, collected for over 20 years, show that highway rumble strips, where installed, have proven to effectively reduce run-off-road accidents by 30 - 70%. LDW warns drivers before they hit the rumble strip.

LDW provides all the functionality of highway rumble strips, electronically, everywhere there are lane markings. LDW works on the shoulder, centerline and between lanes.

Lane Departure Warning Features & Benefits
Promotes use of turn signals when changing lanes
Conditions drivers to have a keen sense of "lane position awareness"
Emits no warning for planned lane departures (with turn signals on)
Zero maintenance with functioning wipers and clean windshield
Disabled below 37 mph (design for highway travel)
Designed for 10-12 year life
OEM available through Freightliner, Mercedes, and MAN
Can be installed on most power units
Many truck drivers report that it is an effective aid in rain, sleet, fog and general low visibility conditions.
False warnings are near zero
Can warn drivers of impending fatigue before it becomes a problem



Driver Error Responsible for 75% of Tank Truck Rollovers

While a majority of tanker truck rollovers are caused by driver error, if trucking companies increased training and used current safety technology the number would be reduced according to a recent report by the Federal Motor Carrier Safety Administration. The trucking companies appear to be withholding the very tools necessary to protect drivers and the public from these types of wrecks.

The report also noted "drowsiness and inattention together contribute to one in five cargo tank rollovers." Fatigue is a topic covered in my earlier posts at length and continues to be an issue of public safety.

See: www.ttnews.com/articles/basetemplate.aspx

25% of Truck Drivers Should Not Be Driving due to Fatigue

A reporter for the Chattanooga Times Free Press stated that, according to the American Trucking Association, 1/4 of its drivers have problems with sleep apnea. See the front page of  the July 19, 2007, Chattanooga Times Free Press, "Truckers get physical."

Sleep apnea  is a sleep disorder characterized by pauses in breathing during sleep. People with sleep apnea are often sleepy during the day. They find that they are still tired even after a nap. When you stop breathing, your body wakes up. It happens so quickly, you aren’t even aware of it. This disrupts your sleep process. Individuals with sleep apnea can stop breathing hundreds of times in one night. This makes them feel very tired the next day. Generally sleep apnea is most prevalent in overweight middle aged men who snore and have neck sizes greater than 17".

The Federal Motor Carrier Safety Regulations forbid drivers with sleep apnea from driving until the sleep apnea is treated. FMCSR 392.3  specifically states a trucking company shall not allow a sleepy driver to drive.  For a copy of the regulation see:   www.truckinjurylawyerblog.com/49cfr392.3.pdf

The National Sleep Foundation states:

Sleepiness and driving is a dangerous combination. Most people are aware of the dangers of drinking and driving but don’t realize that drowsy driving can be just as fatal. Like alcohol, sleepiness slows reaction time, decreases awareness, impairs judgment and increases your risk of crashing.

It's nearly impossible to determine with certainty the cause of a fatal crash where drowsy driving is suspected. However, there are a number of clues at a crash scene that tell investigators that the person fell asleep at the wheel. For example, drowsy driving accidents usually involve only one vehicle where the driver is alone and the injuries tend to be serious or fatal. Also, skid marks or evidence of other evasive maneuvers are usually absent from the drowsy driving crash scene.

Unlike alcohol-related crashes, no blood, breath, or other objective test for sleepiness behind the wheel currently exists that investigators could give to a driver at the scene of a crash. This makes police training in identifying drowsiness as a crash factor very difficult.

Definitions of drowsy driving or driver fatigue rely on how the concept of "fatigue" is defined. Fatigue is a general term commonly used to describe the experience of being "sleepy," "tired," "drowsy," or "exhausted." While all of these terms have different meanings in research and clinical settings, they tend to be used interchangeably in the traffic safety and transportation fields.

There are many underlying causes of sleepiness, fatigue and drowsy driving. Including sleep loss from restriction or too little sleep, interruption or fragmented sleep; chronic sleep debt; circadian factors associated with driving patterns or work schedules; undiagnosed or untreated sleep disorders; time spent on a task; the use of sedating medications; and the consumption of alcohol when already tired. These factors have cumulative effects and a combination of any of these can greatly increase one's risk for a fatigue-related crash.

Sleepiness or Fatigue Causes the Following:

Impaired reaction time, judgment and vision
Problems with information processing and short-term memory
Decreased performance, vigilance and motivation
Increased moodiness and aggressive behaviors
In addition to the dangers of driving under the influence of fatigue, several states are considering legislation that would allow police to charge drowsy drivers with criminal negligence if they injure or kill someone while driving if they have not had adequate sleep. See: www.sleepfoundation.org/site/c.huIXKjM0IxF/b.2485279/k.A2A4/Drowsy_Driving.htm

Unfortunately truckers who report they have sleep apnea can't drive until it is treated, and the whole time they are under treatment they are not getting paid. Further, if the sleep apnea can't be cured, the drivers will be forbidden from driving. The sad result for the American public is that most trucking companies turn a blind eye to the problem, well known in the trucking industry, to avoid losing drivers for any length of time, placing profits over people. A simple solution would be to find work for the driver, that does not involve driving a tractor trailer, until the illness is treated.


BUS CRASHES CAUSED BY PASSENGERS

A Greyhound bus crashed July 10, 2007, injuring or shaking up the 49 people on board.  A passenger with known mental issues grabbed the steering wheel from the bus driver. See: www.wmcstations.com/Global/story.asp

This crash is reprehensible because it was not only easily preventable, but because Greyhound has known for years this type incident occurs without protective barriers for the driver. In fact our firm sued Greyhound over a similar crash in 2001 which resulted in our clients death. The Greyhound bus driver in our case stated that drivers had been asking Greyhound for years for protection from passenger assaults and interference with the the drivers. Greyhound records show that, before the crash my firm handled in 2001, there were 42 similar incidents of passengers interfering with the driving of a bus, with 5 of the incidents resulting in an accident. The experts in our case agreed that an inexpensive protective barrier was called for, readily available, and should be installed on passenger buses.

After significant discovery, effort, and work we were able to prove Greyhound's poor practices and decisions endangered our client and the motoring public. Our clients eventually made a decision to settle their case prior to trial and Greyhound stated they were going to install protective barriers on their buses. Clearly they did not. A companion case to ours, with a paralyzed passenger,  went to trial and received a multimillion dollar verdict which was upheld on appeal.  See: Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288 C.A.6 (Tenn. 2007)

Greyhound should be punished for allowing this type of accident to happen again. They clearly don't understand the need to protect their passengers!

 

Electric On Board Recorders

On May 11, 2007 the Commercial Vehicle Safety Alliance (CVSA) issued a statement supporting 100% use of Electric On Board Recorders (EOBR's) and acknowledging the problems with fatigued truck drivers on the roads. The CVSA said:

To enable significant positive changes to commercial vehicle drivers’ hours of service (HOS) compliance, CVSA is advocating universal adoption of electronic on board recorder (EOBR) technology. Captain John E. Harrison, President of the Commercial Vehicle Safety Alliance (CVSA), outlined before a Senate subcommittee how EOBR technology could help solve problems as well as making recommendations on the current Federal Motor Carrier Safety Administration (FMCSA) EOBR Notice of Proposed Rulemaking.

“Compliance with the HOS regulations continues to be a significant problem encountered by law enforcement, both at roadside and in the motor carrier’s place of business,” said Harrison to the subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security Committee on Commerce, Science, and Transportation United States Senate on EOBRs and Truck Driver Fatigue Reduction.

Unfortunately, drivers operating in excess of drivers’ HOS limits and falsified driver logs continue to represent a significant risk to safety. In 2006, HOS violations were represented in seven of the “Top 20” driver violations discovered during roadside inspections, representing 34.2 percent of the total. Of those, 78.8 percent were for HOS. During compliance reviews, five of the “Top 12” critical violations cited were HOS related, or 34.6 percent of the total. The results from the 2006 Large Truck Crash Causation Study indicated that fatigue was reported as an associated factor in 13 percent of all large truck crashes.

“We believe EOBRs hold great promise and is one of a number of tools for helping improve compliance with HOS regulations and providing a positive impact on safety and crashes related to driver fatigue. EOBR technology is proven--more than 50 countries have mandated electronic data recorders for driving and standby time recording and/or speed and distance recording.” said Harrison. “We also believe that wide-scale adoption of EOBRs will help curb the challenges with limited resources available at the state and federal levels for overseeing the motor carrier industry.”

CVSA is an international not-for-profit organization comprised of local, state, provincial, territorial and federal motor carrier safety officials and industry representatives from the United States, Canada, and Mexico. Our mission is to promote commercial motor vehicle safety and security by providing leadership to enforcement, industry and policy makers. In addition, CVSA has several hundred associate members who are committed to helping the Alliance achieve its goals; uniformity, compatibility and reciprocity of commercial vehicle inspections, and enforcement activities throughout North America by individuals dedicated to highway safety and security. For more on CVSA visit www.CVSA.org


"NO ZONES" ATTEMPT TO SHIFT BLAME ONTO THE INJURED

Trucking Companies have long been aware that tractor trailers have blind spots if drivers fail to use all the mirrors available to them. Typically you will see two types of mirrors on a truck, a flat mirror and a round mirror. By using both of these mirrors a truck driver can see into the "blind spot" of a tractor trailer. Trucking Companies call these alleged blind spots "No Zones." For an example of a "No Zone" see the link at the bottom of this post.

So why have "No Zones?" Defense lawyers use "No-Zones" to shift blame onto drivers who were run over by a tractor trailer! They argue to the jury: 1) Everyone knows about the no-zone, there is even a picture of it on the back of the truck. 2) The dead driver should have paid more attention because he/she knew, or should have known,  they were in a "blind spot" Since you have read this far it now means YOU are responsible if you are passing a truck and the driver changes lanes, running you over!

The truth is the professional tractor trailer driver is 100% RESPONSIBLE for this type of collision. 1. They have specialized training about the blind spots 2. They have mirrors which, if they chose to use them, would eliminate blind spots and 3. They can use electronic systems, in use and available today, to trigger warnings to the tractor trailer driver whenever vehicles are in a blind spot. See: truck.eaton.com/vorad_how_works.htm  For example, Schneider National, a trucking company with 15,500 drivers, would save approximately 6.2 lives EVERY YEAR with this system in place.

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Driver Problems Hidden By States

A recent MSNBC report  video.msn.com/v/us/msnbc.htm, shows how drivers of the 3.2 million tractor trailers registered in the US are being driven by problem drivers. In this instance the driver had 56 violations on his license and had his license suspended seven times by the State of Delaware. Because this was information was not communicated,  he was still allowed to drive. The Trucking Companies choice of drivers, and failure to do an adequate background check as required by law, resulted in the death of an innocent man who was simply using the roads to get from point A to point B.

Drivers of Tractor Trailers are allowed to have only one license by federal law. States are supposed to timely communicate information on drivers to a database to allow other states to revoke a bad driver's license. The failure to timely submit the information to the database by a state results, as in the above case, with death on the highways. The States unwillingness to get this information into the hands of the folks who need it for enforcement, and the Federal Government's lack of oversight in this area, is shameful.

Driver Factors in Truck Wrecks

The federal government has listed the reasons that truck drivers are involved in collisions. According to the FMCSA 2007 report on the 2005 crash results, the top 10 causes of truck accidents, where the truck driver is a fault, are:

  1. Failure to keep in proper lane
  2. Driving too fast for Conditions
  3. Fatigue
  4. Failure to yield right of way
  5. Overcorrecting
  6. Erratic or reckless driving
  7. Illegal Drug use (By experience this would also include prescription and over the counter drug use)
  8. Illegal maneuver, improper turn
  9. Failure to obey Traffic signs
  10. Cell phones

Bad Drivers on the Road Due to Driver Shortages

The American Trucking Association estimated in 2005 that by 2014 there would be a shortage of 111,000 drivers. This shortage of drivers frequently causes trucking companies to hire drivers that are unqualified rather than having to turn down lucrative trucking contracts.

It is critical in a trucking case to have the Driver's Qualification File reviewed by an experienced lawyer to see if the trucking company knowingly hired an unqualified driver.