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

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.

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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.

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According to CVSA, Roadcheck 2009’s record total of overall inspections and Level I inspections showed significant violations in vehicle and driver out of service (OOS) rates.

During the event, 9,700 CVSA and FMCSA certified inspectors at 2,148 locations across North America performed a record 72,782 truck and bus inspections. Of that total, there were 57,013 NAS Level I inspections, the most comprehensive roadside inspection. Both of these outputs are significant increases over previous records for the 22-year event. The total inspection output is a 7.1 percent increase over the previous record (2008), and the NAS Level I output is an 8.9 percent increase (2008).

Data showed 22.2 percent of all trucks and drivers were found to be out of service in Level I inspections.

Driver results for the vehicle types were as follows:

• All inspections: 95.6 percent of drivers passed, and 4.4 percent were placed out of service (5.3 percent were out of service in 2008).
• All Level I inspections: 96.1 percent of drivers passed, and 3.9 percent were placed out of service (4.9 percent were out of service in 2008).
• Hazmat: 97.0 percent of drivers passed, and 3.0 percent were placed out of service (2.4 percent were out of service in 2008).
• Passenger carrying vehicles: 96.4 percent of drivers passed, and 3.6 percent were placed out of service (4.5 percent were out of service in 2008).

Vehicle results were as follows:

• All inspections: 80.4 percent of vehicles passed, and 19.6 percent were placed out of service (20.8 percent were out of service in 2008).
• All Level 1 inspections: 77.8 percent of drivers passed, and 22.2 percent were placed out of service (23.9 percent were out of service in 2008).
• Hazmat: 83.0 percent of vehicles passed the inspection, and 17.0 percent were placed out of service (17.6 percent were out of service in 2008).
• Passenger carrying vehicles: 88.5 percent of vehicles passed the inspection, and 11.5 percent were placed out of service (12.2 percent were out of service in 2008).

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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? 

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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.

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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.

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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: 

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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.

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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.

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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.

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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?

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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.

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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.

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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.)

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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.

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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.

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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.

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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

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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

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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)

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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

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EOBR's (Electric On Board Recorder's) have been the subject of earlier posts and on the whole are a step forward for safety. EOBR's can be very beneficial in ensuring tired truckers are not allowed on the roads in violation of the law. Unfortunately there are ways to "fix" the EOBR's to allow violations of the FMCSR Hours of Service (HOS) regulations. Knowing how to prove an EOBR was "fixed" in order to allow a driver to stay on the road longer than the HOS regulations allows is an important reason to hire an experienced tractor trailer attorney.

This story appears in the Aug. 20th print edition of Transportation Topics:

HILTON HEAD, S.C. — Four months after the public comment period for the proposed electronic onboard recorder rule closed, a Federal Motor Carrier Safety Administration official said those comments were still being reviewed and no final rule was imminent.

At the same time, a trucking official suggested the uncertainty regarding hours-of-service rules for drivers could delay any final EOBR rule.

“No final decision has been made about the outcome of the rulemaking,” Debbie Freund, senior transportation specialist for FMCSA, said here Aug. 14 during a presentation at the 2007 PeopleNet user conference.

“The [notice of proposed rulemaking] is a proposal based on the best information available at the time it was developed,” Freund said.

Announced in January, the rule would mandate EOBRs for the worst violators of its hours-of-service rules and provide incentives in the form of relaxed record keeping requirements for carriers who adopt them voluntarily (1-15, p. 1).

The public comment period closed April 18.

When the rule was published, officials estimated it would take four years between the time a final rule was published and full implementation.

But Dave Potts, director of safety and operations for American Trucking Associations, said here that last month’s decision by a federal appeals-peals court to overturn the HOS rule (7-30, p. 1) could push that potential timetable back.

He said any change, through a new FMCSA rule or other methods, in on-duty time, driving hours, the 34-hour restart or sleeper-berth time could result in the need for new EOBR performance specifications, updates to vendors’ EOBR software programs and additional time to train drivers, management and law enforcement.

Freund declined to discuss the hours-of-service case, other than to say the “agency was still reviewing the court’s decision,” or the case’s potential effect on the EOBR proposal.

She did say, however, that in response to the comments on the EOBR proposal, the agency may conduct additional technology assessments to ensure that data obtained from EOBRs not integrally synchronized with the engine or vehicle are accurate.

She added that other EOBR subjects drawing the agency’s attention, based on comments it received, included data security and integrity, interoperability and manufacturer self-certification.

Still, Freund said the agency believes its proposed rule provides the greatest safety benefit because the small number of carriers required to use EOBRs have a much higher crash rate than all other carriers.

Increasing the level of compliance with HOS rules would decrease the incidence of fatigue-related crashes, she said.

Potts, meanwhile, reiterated that ATA generally supports FMCSA’s proposed EOBR rule but said the federation believes more definitive performance specifications were needed and a pilot program should be undertaken to obtain and analyze “real-world data” before any final rule is implemented.

He also said a larger number of the worst HOS violators — 10% or more — should be required to use EOBRs.

Gerry Krolikowski, chairman of the Commercial Vehicle Safety Alliance’s driver-traffic enforcement committee, gave a similar assessment of the proposed EOBR rule.

He said that, while the law enforcement community is in favor of electronic onboard recorders, CVSA wants to be sure the devices are tamper-resistant and standardized for easy accessibility.

Krolikowski is a lieutenant with the Nebraska State Patrol.

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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.

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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:

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

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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

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According to JJ Keller, hours of service violations and brake problems were the top violations found during the  2007 Roadcheck. Between vehicle problems, and driver problems, approximately 49% of the inspections showed either the vehicle or the driver should not be on the road. JJ Keller reported:

A total of 62,370 inspections were conducted during the 72-hour Roadcheck 2007 event from June 5–7, 2007. The following out-of-service (O-O-S) statistics emerged for drivers and vehicles:

The number of U.S. state inspections totaled 53,451 (85.70%); Canadian inspections totaled 7,274 (11.66%); U.S. FMCSA inspections totaled 1,506 (2.41%); and Mexican inspections totaled 139 (0.22%).

See: www.jjkeller.com/news/newsinfo/T_news2194.htm

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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.

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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!

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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

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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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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.

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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

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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.

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