MAP-21 made significant changes in the trucking industry regulatory scheme. One change is that Section 32307 of MAP-21 was amended to prohibit employers from allowing employees to drive when the employer knows or should reasonably know that the the driver is disqualified,or when the employee's driver's license was suspended, revoked, or canceled. This final rule, issued October 1, 2013, amends 49 CFR 383.37.
Congress, despite a government shutdown, has a sleep apnea bill ready for the President's signature. While the trucking industry estimates that “the impact of screening, diagnosis, and treatment for obstructive sleep apnea could exceed $1 billion annually.” The industry failed to mention that $1 billion annually is a bargain compared to the death, carnage, and destruction caused by a fatigued truck driver behind the wheel of an 80,000 pound tractor trailer.
The legislation requires the FMCSA to go through a full rule making process which will add years of delay to the implementation of this much needed legislation.
Untreated sleep apnea can lead to fatigued driving and is thus a medically disqualifying condition for truck drivers. FMCSR 391.41(b)(5) see also: FMCSA Medical Advisory HERE
Every so often I need to revise and update my standard spoliation letter (a letter telling the trucking company to save evidence that shows who is, and is not, at fault for a wreck). In part because of changes in the trucking industry, in part because it can always be made better.
In this latest update I strengthened some areas and added a request to save documents used in preventability determinations. My thanks to Jen Ojeda, a brilliant Atlanta, GA trucking lawyer, for the idea which was brought to my attention by Steve Gursten, a superb Michigan tractor trailer lawyer. For those of you counting, here is version 5!
Do you have a good tractor trailer lawyer? If the lawyer you are considering cant produce a spoliation letter upon demand, even at the initial meeting, I STRONGLY suggest you consider looking for another lawyer.
If we know the trucking company and driver involved, our firm practice is to send our spoliation letter (often modified for the specific case) out the same day we are hired, or the next day if the mail has run. In some cases our clients are hospitalized - or worse - and we have to wait till the police report is available to identify the trucking company and driver so we know to whom we need to send the letter. Only in rare cases do we find that the spoliation letter shouldn't be out within the first month of accepting a case.
Semiconductor technology firm Qualcomm Inc. said it has sold its transportation and logistics business, Omnitracs, to Vista Equity Partners for $800 million. This includes the Commercial Motor Vehicle tracking or "telematics" systems.
The acquisition by Vista Equity Partners will include all Omnitracs operations in the United States, Canada and Latin America as well as the companies it purchased in 2011, Sylectus and FleetRisk Advisors, according to the company.
“The opportunity for fleet management and telematics is evolving rapidly, and we believe Omnitracs is well positioned to continue its leadership position as a stand-alone entity,” Qualcomm Executive Vice President Derek Aberle said.
Qualcomm said it expects the sale to be completed during the first quarter of its 2014 fiscal year.
Omnitracs is part of Qualcomm’s Wireless & Internet segment, or QWI. Omnitracs has not been making the company a profit. The division posted a fiscal third-quarter loss of $16 million before tax, compared with a loss of $6 million in the same quarter last year. QWI revenue slipped 1% to $158 million.
MAP-21, the Moving Ahead for Progress in the 21st Century Act (P.L. 112-141), was signed into law by President Obama on July 6, 2012. It is the first long-term highway authorization enacted since 2005. It sets highway safety as a national goal.
The changes brought about by MAP-21 are extensive and impact almost every area of the trucking industry. A complete copy of the legislation can be found HERE Lawyers handling trucking cases should make sure they review this legislation in detail. Much of the legislation has gone into effect, other provisions go into effect in October.
The new Hours of Service (HOS) regulations go into effect today. In many ways these regulations are simply the old, pre-President Bush, regulations with some minor changes. Nonetheless, you can expect the trucking industry to be up in arms. I have posted on the new HOS previously HERE
The outrage is primarily because the trucking industry still imposes the burden of all road delays on a truck driver. It is commonly known in the trucking industry that if the wheels aren't turning, trucker's ain't earning." This causes many truckers to push the HOS. I have previously posted on the need for truckers to be paid hourly, with overtime, HERE.
The FMCSA sent out a press release on the topic which states:
New Hours-of-Service Safety Regulations to Reduce Truck Driver Fatigue
WASHINGTON — The U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) announced that new federal regulations designed to improve safety for the motoring public by reducing truck driver fatigue took full effect today, July 1, 2013.
"Safety is our highest priority," said U.S. Transportation Secretary Ray LaHood. "These rules make common sense, data-driven changes to reduce truck driver fatigue and improve safety for every traveler on our highways and roads."
Trucking companies were provided 18 months to adopt the new hours-of-service rules for truck drivers. First announced in December 2011 by FMCSA, the rules limit the average work week for truck drivers to 70 hours to ensure that all truck operators have adequate rest. Only the most extreme schedules will be impacted, and more than 85 percent of the truck driving workforce will see no changes.
Working long daily and weekly hours on a continuing basis is associated with chronic fatigue, a high risk of crashes, and a number of serious chronic health conditions in drivers. It is estimated that these new safety regulations will save 19 lives and prevent approximately 1,400 crashes and 560 injuries each year.
"These fatigue-fighting rules for truck drivers were carefully crafted based on years of scientific research and unprecedented stakeholder outreach," said FMCSA Administrator Anne S. Ferro. "The result is a fair and balanced approach that will result in an estimated $280 million in savings from fewer large truck crashes and $470 million in savings from improved driver health. Most importantly, it will save lives."
FMCSA's new hours-of-service final rule:
- Limits the maximum average work week for truck drivers to 70 hours, a decrease from the current maximum of 82 hours;
- Allows truck drivers who reach the maximum 70 hours of driving within a week to resume if they rest for 34 consecutive hours, including at least two nights when their body clock demands sleep the most - from 1-5 a.m., and;
- Requires truck drivers to take a 30-minute break during the first eight hours of a shift.
The final rule retains the current 11-hour daily driving limit and 14-hour work day.
Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Trucking companies and passenger carriers that allow drivers to exceed driving limits by more than three hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.
Just finished speaking at the Kentucky Justice Association on "When a Million Isn't Enough - Broker and Shipper Liability. The moderator was a good friend of mine and great host, Tim Lange (a phenomenal Louisville, Kentucky trucking lawyer see HERE) and I was honored to share the stage with other brilliant lawyers who represent people injured by trucks and buses. It was truly a masterclass, national program. In addition to myself and Tim, the faculty consisted of: Jay Vaughn, Joe Fried, Larry Simon, and Marion Munley Cartwright
Swift, like many trucking companies, has a history of destroying evidence that shows they were at fault for a wreck. I have posted on this previously. That is one of the reasons it is important to hire a lawyer as soon as possible when you have a trucking case.
Recently, in an Arkansas case, the trial court held, and the 8th Circuit Court of appeals agreed, that the jury was entitled to know that Swift spoliated evidence. Th Order from the 8th Circuit Court of Appeals states:
I have previously posted on how inadequate current insurance limits are on tractor trailers. In that blog post I stated (regarding the minimum $750K limits being inadequate for catastrophic wrecks, limits having not been increased in almost 3 decades):
If you go to any present value calculator on the Internet and use a 4% inflation rate you will find that the present value of $750,000, 29 years from now, is about $240,000 in today's dollars. To put it another way, you would need $3,120,000 in today's dollars to equal $750,000 in 1980.
A new actuarial study, sponsored by The Trucking Alliance, has found that trucking companies insured at the $750,000 level are, in effect, uninsured. “They are just rolling the dice that they don’t have an accident,” Lane Kidd, president of the Arkansas Trucking Association and an Alliance member stated.
The study included data on more than 8,600 truck accident settlements between 2005 and 2011. An article on the study can be found HERE
I note many safety groups, and my own firm, agree that insurance minimum limits need to increase for all truck and bus companies.
One of the the requirements of every trucking company before they put a truck on the road, and every truck driver before they get behind the wheel of a tractor trailer, is that they both must agree to follow the Federal Motor Carrier Safety Regulations. These are the regulations that keep us, the public, safe on the roadway while 80,000 pound tractor trailers are driven around us. Trucking companies, truck drivers, and truck accident lawyers must know all the regulations to determine if a violation of a safety regulation contributed to a wreck. The FMCSA lists all of the potential violations of the FMCSR in a chart it uses under the Behavior Analysis and Safety Improvement Category (BASICs) program.
The FMCSA came out with revisions to the BASIC violations today, which means it also updated the FMCSR violation chart. Each violation of the FMCSR results in points being assigned through BASIC against the truck driver and trucking company. The points are then used to determine a trucking company's safety rating.
Lawyers can look at the list of BASIC (FMCSR) violations to make sure they are not missing potential negligence per se claims. Trucking companies and truck drivers can review the list to make sure they are running legal. The master list of FMCSR violations can be found HERE
One of the things you do when handling a trucking case, whether as a plaintiff or a defense lawyer, is to audit the drivers logs to determine if the driver was over hours and driving in a fatigued state. I have blogged on fatigued driving extensively in the past. A key in auditing logs is to get all of the supporting documents (see FMCSR 395.8 (k)(1)(Question 10)) federal regulations require a trucking company to keep. These documents "support" the driver's logs by showing where the driver/truck was at a specific time.
E-ZPass - One of the most overlooked supporting documents is the information found in E-ZPass data. E-ZPass is an electronic device that records when and where a truck passes through a toll plaza.
Currently E-ZPass data is available in the following states:
- West Virginia
- New Jersey
- New York
- New Hampshire
- Rhode Island
Other states have similar devices for toll plazas within their state. For example Georgia has Peach Pass and Florida has SunPass.
PrePass - PrePass is another electronic device that helps determine the location of a truck at a given date and time. PrePass allows trucks to bypass weigh stations by electronically transmitting a truck's license number, motor carrier identification, and weight to the weigh station so the truck doesn't have to stop.
According to a recent report there are 435,000 trucks in the PrePass system and 123,000 trucks in the E-ZPass system. Each of these trucks has an electronic record that will help put them at a specific place and time. Once that is done you can compare the data to what is shown in the driver's logs to determine if his truck was moving while the driver claimed he was sleeping.
These PrePass and E-ZPass records should be obtained in almost every case and help lawyers and trucking companies properly audit a truck driver's logs. Any trucking company that fails to use this data in auditing a driver's logs doesn't care whether its drivers violate the HOS regulations and is placing the public - you and me - at risk.
Recently I was associated on a trucking case in Arizona by my friend Peter Gorski and his brilliant associate Kelley Durham. Our client, a seasonal agricultural worker, had run into a parked trailer that had been left on the side of the road. The force of the wreck killed our client and the defendants' believed the death occurred immediately at impact. The police report indicated it was our client's fault, and there was even allegations that our client had drugs and alcohol in his system.
After a thorough investigation our trial team determined that the truck driver 1) failed to place the required warning triangles (FMCSR 391.22), 2) illegally parked on the roadway, and 3) had even parked the trailer in the wrong direction so there was no lights, reflectors, or visibility tape facing oncoming traffic. These factors had not been taken into account by the police.
After many depositions we felt liability was clearly the fault of the trucking company. The trucking company was at fault for failing to properly train the truck driver and for knowingly allowing the illegal parking in order to speed up its operations and make more money. We then deposed the defense toxicologist and were prepared to file a Daubert Motion to keep out the speculative results of the sloppily conducted drug and alcohol testing of our client. Having strongly established our case through deposition, we were able to present a strong case at mediation.
The case resolved at mediation for one of the largest settlements or verdicts we could find for a Yuma, Arizona death case - one million dollars.
Obstructive Sleep Apnea (OSA) has long been know to be a problem in the trucking industry. A recent study confirms overweight drivers are more likely to be involved in a crash, 54% more likely than other drivers! The researchers stated that OSA is most likely the cause of the increased crash risk.
Drivers who have OSA fail to get enough sleep, drive tired, and drive down the road "nodding" off. These "micro sleeps," where the eyes close for a few seconds or shorter, the driver nods, then "wakes" back up, have the 80,000 pound tractor trailer going down the road BLIND. During these nodding periods wrecks happen because the driver has no idea what is going on around the truck.
OSA is frequently found in overweight people, and trucking companies can expect OSA, more likely than not, with drivers with a body mass index (BMI) over 30 (Obese). The National Institute of Health has a BMI calculator HERE for easy calculation of your BMI. If it is over 30, and you are a truck driver, you should immediately be checked for OSA. OSA is a condition contributed to by the long hours a driver spends sitting down, fast food eaten on the road, and the lack of places to exercise. Trucking companies know the FMCSA prohibits drivers with untreated OSA (OSA can typically be treated with a CPAP machine, many of which are made for truck drivers.) to drive a tractor trailer.
Even though OSA is a known danger in the industry, unsafe trucking companies have generally failed to take precautions against putting drivers with OSA on the road. These days there are hundreds of articles about the dangers of fatigue and OSA in every truck industry trade publication. Any trucking company that doesn't know about OSA at this point, and the dangers it causes, is so incompetent and dangerous that they should IMMEDIATELY be taken off the road! Most trucking companies already have OSA screening programs in place. While Schneider National and I have had our disputes in the past (HERE), I will point out that they have had an OSA policy since 2004. J.B. Hunt entered into a program with SleepSafe in 2009 for its drivers to be tested and treated for OSA.
Sleepsafe, a company employing doctors that specialize in OSA in the trucking industry, estimated that trucking companies recouped the full amount spent on OSA programs in the first 4-10 months, with cost savings thereafter (Article at TruckingInfo.com HERE ). Far from being an expense, OSA policies saved trucking companies money .. and now clearly save lives as well.
Morgan Adams is selected as a Mid-South Super Lawyer for 2012.
Super Lawyers (a Thomson Reuters publication) is a listing of outstanding lawyers in the Mid-South including lawyers from Tennessee, Arkansas, and Mississippi. Super Lawyers has an extensive election process that involves peer nominations, evaluations and third-party research. Each candidate is evaluated on 12 points that include lawyer-peer recognition within the legal community, professional achievement and legal excellence.
Super Lawyers is limited to the top 5 percent of the lawyers in Tennessee, Arkansas, and Mississippi. I am proud that I have been selected as Mid-South SuperLawyer for multiple years.
This honor is important to me because it’s a recognition of my commitment to protecting truck and bus accident victims in Tennessee, the mid-south, and across the United States.
To be a successful lawyer you have to really care about people, like people, and want to help them. You have to be committed to protecting people when they are being harmed. Further it is not enough to care about just your clients, you have to give back to the legal community and teach other lawyers what you do so that everyone is protected and everyone is made safer. That is why I write for legal text books and teach as many as 15 national legal seminars a year to other lawyers. Here is to a safer year for both your family and mine.
Brain Changes Result in Mild Traumatic Brain Injury from Single Impact - Journal of Neurotrauma Study
One of the frequent consequences of a truck wreck, when there are survivors, is a brain injury. As a result I have been very active in learning all I can about this frequently invisible, and incredibly devastating, injury. One of my friends, Randy Rozek in Wisconsin, recently brought an article to my attention and I wanted to make sure you had a chance to see it. Understanding the mechanisms of brain injury is a critical aspect of being a good trucking lawyer. Randy posted this on his legal blog, and I thank him for bringing it to my attention:
A new study published in the highly-regarded Journal of Neurotrauma establishes organic brain changes, even in cases of a single mild traumatic brain injury. The study entitled “The Use of Magnetic Resonance Spectroscopy in the Subacute Evaluation of Athletes Recovering from Single and Multiple Mild Traumatic Brain Injury” used advanced imaging to analyze changes in the brain following TBIs. Magnetic Resonance Spectoscopy (MRS) is an advanced imaging technique considered a compliment to magnetic resonance imaging (MRI). While MRI forms anatomic images from the signal of hydrogen protons, MRS uses the same information to establish the concentration of brain metabolites, such as N-acetyl aspartate (NAA), choline (Cho), and creatine (Cr). MRS can be beneficial in the diagnosis of certain brain disorders and creatine deficiency disorders.
The new study looked at the concentration of certain brain metabolites in specific areas of the brain following single and multiple brain injuries. The primary focus of the study was the genu and splenium areas within the corpus collosum. 20 normal volunteers and 28 mild brain injured student athletes recovering from mild TBI were selected for the study. The TBI group was categorized based upon the number of mild TBI’s and time since injury. The results of the imaging study were astounding.
Decreased concentrations of N-acetyl aspartate (NAA), choline (Cho), and creatine (Cr) were seen in the genu of the corpus collosum, but not in the splenium of the corpus collosum, regardless of the number of TBI’s suffered by the individual. Interestingly, individuals recovering from their first mild TBI showed the most significant changes in NAA/Cho and NAA/Cr ratios. Since all individuals were still experiencing symptoms of mild TBI, the amount of time since the TBI to the date the imaging was performed was not a significant factor determining the ratio of brain metabolites. The authors did note a correlation between number of TBI’s and the length of symptomatology, confirming the multiple concussion effect.
The June 2012 Roadcheck results are out and they showed that more than 1 in every 5 trucks inspected were placed out of service (OOS). That means the trucks were taken off the road as unsafe, even though this was a pre-announced inspection.
The trucking industry knew about Roadcheck for months, as did I, and I have blogged multiple times on the subject. Since the inspection is announced months in advance the real numbers of unsafe trucks are much higher.
Some of the inspection results are scary, but not surprising. For example 15% of the OOS violations were for false log books. False log books are used so that drivers can drive more hours than legally allowed. False logs also result in fatigue related crashes, one of the largest causes of highway deaths in America. Some studies have shown almost one in three fatal crashes has a fatigue component.
I have blogged about Roadcheck for years and the known dangers it exposes in the trucking industry. When one out of five trucks is unsafe on an announced inspection, the trucking industry as a whole can be said to ignore safety on a daily basis.
Why aren't government officials more upset about this horrible fact? Why do they accept it year after year? Makes you think long and hard about the revolving door between the DOT, FMCSA, and the trucking industry doesn't it?
Source: Transportation Topics, August 20, 2012, P3
I am happy to announce that, after five years, I finally graduated from the Trial Lawyer's College (TLC). I am now the 4th person to have both been certified an AAJ Diplomate as well as graduate from the TLC. I am proud that I am the first truck accident lawyer to do so. This is good news for my truck accident clients as the intense continuing education required of these programs has made me a much better lawyer.
Andrew Cochran discusses how tort reform threatens your constitutional rights.
I encourage everyone to spend 15 minutes and listen to what he says. For those who don't know Andrew he's a lifelong conservative Republican, Reagan appointee and editor of the 7th Amendment Advocate.
On July 11, 2012, Federal Motor Carrier Safety Administration (FMCSA) Deputy Administrator Bill Bronrott testified about the Compliance, Safety, Accountability (CSA) program before the U.S. House of Representative’s Committee on Small Business. Deputy Bronrott’s written testimony discusses CSA’s safety benefits and its impact on small businesses, and is posted on FMCSA’s Website. Some of the key points of the testimony are listed below:
- Independent analysis indicates the CSA Safety Measurement System (SMS) is a significant improvement over prior systems to effectively meet FMCSA’s Congressional mandate to investigate high-risk carriers.
- The CSA SMS is effectively monitoring the motor carrier industry. The 200,000 carriers with sufficient data to be scored in the SMS are involved in 93% of the crashes reported to FMCSA.
- The CSA SMS is not biased against small business. While carriers with 5 or less power units make up over 85% of the industry, 93% of these small carriers do not score poorly in any area of the SMS.
- Analysis of the CSA interventions model demonstrated an overall 35% increase in the number of carriers reached per Safety Investigator. CSA uses Onsite Focused Investigations and warning letters, which are effective in improving compliance and less intrusive and time-consuming for motor carriers.
- From CSA rollout in December 2010 until the end of 2011, violations per roadside inspection declined by 8% and driver violations per inspection declined by 12%. This the most significant improvement in violation rates in the last 10 years.
The Agency is committed to continuous improvement of the CSA program. In fact, five proposed enhancements to SMS are currently being previewed by motor carriers based on specific industry and enforcement personnel feedback since SMS rollout in December 2010. These proposed enhancements are outlined in the Federal Docket Management System and were the topic of a recent public webinar series held by the Agency. Overall, 670 participants listened in, many of whom have expressed positive feedback. The presentation is now available to everyone on the CSA Website.
The CSA program has already shown many safety benefits and FMCSA will continue finding ways to make our roads safer.
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!
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.
The 7th Amendment states:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Now, some folks dont like the 7th Amendment and its guarantee to a jury trial. They want to pick and choose the Constitutional Amendments they like and disregard the rest. I imagine those are the same folks we all know that pick out the parts of the Bible they like... and disregard the rest. It is not very American to disregard parts of the Constitution, and its not very Christian to disregard parts of the Bible.
I am a conservative that believes in the Constitution, and that includes the 7th Amendment. It was easy to guess that about me if you knew I spent 22.5 years in the United States Marine Corps before retiring in 2006, however, as I am also one of those dreaded "trial lawyers," I often get tarred and feathered by folks who don't understand what I do, and why it is important .
I find those critical to the right by trial by jury have failed to have looked at the issue, and just accept media hype as fact for their position. This belief in media hype can effect conservatives as well as liberals. It is our job as citizens to do a little more work before swallowing any pundits' views hook, line and sinker. As we said in the Marine Corps, freedom isn't free. Sometimes you have to work for it, and sometimes more than just work is required.
Recently Judson Phillips, the founder of the Tea Party Nation, took a look at the 7th Amendment which guarantees our right under the Constitution to a jury trial. I believe Mr Phillips position makes sense, and his conclusion - after looking at the facts - may have even surprised him.
Mr. Phillips, stated:
What good is a right if you cannot exercise it? That is not one of those, if a tree falls in the forest and no one hears it, does it make a sound questions. Our Constitutional rights are under assault from various sources. Those who want to attack our rights have learned they can never get those rights repealed, so instead they simply try to make it impossible for those rights to be exercised.
What is the latest right that is under assault?
The left came up with an idea a while back. They realized they could never repeal the 2nd Amendment or impose gun control laws, so they came up with alternative strategies such as trying to force gun manufacturers out of business or trying to tax ammunition to the point where no one could afford to have a gun.
Now, there is another assault on our Constitutional rights. This one is on our 7th Amendment right to a civil jury trial.
Mitt Romney in his economic plan says he wants to impose Federal Tort Reform through out the nation. Ignoring the fact that is a gross violation of the 10th Amendment, since the regulation of lawyers and tort law has always been reserved for the states, let’s ask a more obvious question.
Where that has been tried, how is that working out?
It has been tried in Texas and the answer is, it is creating a hollow liberty. It does not eliminate a right but little way for the average citizen to exercise that right.
Many statists claim tort reform in Texas has been a huge success.
Unfortunately, as with so many things, they make the claim but there is no evidence to back that claim.
There is evidence to the contrary, that Texans are losing their 7th Amendment rights because they can’t get lawyers to take cases anymore.
What happened to Charles Caldwell is a terrible example of what has gone wrong. Caldwell suffered from Parkinson’s disease and went to a nursing home after surgery to recover. Among other things, a feeding tube was placed in his stomach because he could no longer swallow.
His son and daughter in law Bill and Kelly Putnam were visiting his father when the nurses at Signature Pointe Nursing home tried to give medications to Caldwell through his feeding tube. When the medicine did not go down the right way, the nurses tried the old fashioned method of “if it doesn’t go, force it.” After three tries it did not go. Finally Caldwell began to struggle and thrash. The medicine had gone into his lungs instead of going into his stomach. Caldwell drowned on medicine in front of his family.
When Putnam decided he was going to sue over his father’s death, he found the hard truth about Tort Reform. No lawyer would take the case. It was not that it was not a strong case. It was a strong case. Simply put, because of Tort Reform lawyers can no longer take those types of cases because they are no longer economically viable for the lawyers.
In plain non-lawyer English, these type cases now cost more to pursue than an attorney can make off it.
Some people are immediately outraged at the idea that lawyers are making money off of cases like this.
One of the first rules of economics is that we all operate in our enlightened self-interest. We wall all act for what we perceive as personal gain.
Doctors do the same thing. Most doctors become doctors because it remains the highest paid occupation in the United States.
By imposing caps on so-called “non-economic” damages, lawyers can no longer take these types of cases. Lawyers have staffs they have to pay. They have expenses such as the costs of their offices. Plus in cases such as these, the lawyer will advance the costs for expenses such as the required experts who must review cases before a suit is filed.
Without a lawyer, the 7th Amendment Right to a jury trial is effectively gone.
The right to a jury trial is arguably the right our founding fathers thought was the most important.
Because our founding fathers decide to included it in not one but two amendments to the Bill of Rights. The 7th Amendment, the right to a civil jury trial, was the only amendment to the Constitution that was approved unanimously by our founding fathers at the Constitutional Convention in 1787.
Recently in Texas, a horrible story came to light. A doctor, Ricardo Rocha, how had previously had his medical license suspended, was accused of “butchering” a patient.. He decided to perform a hernia surgery on a man in his office, without an anesthesiologist present.
In this “operation,” the doctor instead of repairing the hernia, the doctor severed the patient’s colon. It caused the patient extreme pain, spilled fecal matter into his body, cause the loss of a testicle and required emergency surgery to save the man’s life.
Here is the question for each of you. If you go through something like that, what is your pain and suffering worth? In Texas, those kind of non-economic damages are limited to $250,000.
If that happened to you, is it worth $250,000?
The myth of tort reform is that it will reduce costs and will attract doctors to the profession. Unfortunately as with all myths, that one is untrue. Healthcare costs in Texas have not been reduced, nor are doctors flocking to Texas.
What has happened is that another right has been lost. Freedom is reduced and liberty has taken another step towards becoming simply a hollow shell.
The 7th Amendment right to a jury trial IS a Constitutional right. It is easy to say that the jury system has been abused, but when you need it, if you need it, you want your full rights. EVERY right. You want justice based on your facts and what has happened to you, not the facts pre-judged by a legislature in some far away capital. Legislators who have been swayed by some high dollar corporate lobbyist who decided in advance what is best for the corporation, not the citizen. Big jury awards only happen in the worst of all cases, and happen rarely. When you need help the most is when this insidious attack on your rights impacts you, your friends, and your family. Become informed and fight for your rights, fight for your children's rights, and support ALL the Amendments to the Constitution.
The post by Mr. Phillips can be found HERE
Recently a conservative Hamilton County Jury returned a record 9.25 Million dollar verdict against a drunk driver who injured one of my clients. This 4th of July think before you drink! If the police don't scare you we should. I would rather everyone get home safely than have more clients who have been injured by DUI drivers. Even one case is too many. EVERY DUI wreck is preventable! The National Highway Safety Administration (NHTSA) states the following about the 4th of July holiday:
- Most Americans don’t realize July 4th is one of the deadliest holidays of the year due to alcohol-impaired driving crashes.
- To save lives on our roadways this Fourth of July, local law enforcement will be cracking down on impaired driving through increased sobriety checkpoints, roving and saturation patrols, and other enforcement methods.
- Impaired-driving crashes killed 10,228 people in 2010, accounting for 31 percent of all traffic-related deaths in the United States. That’s an average of one alcohol-impaired driving fatality every 51 minutes.
- The Fourth of July holiday period (6:00pm July 2- 5:59am July 6) is deadly. In 2010 during the holiday, 392 people were killed in motor vehicle traffic crashes. Of those fatalities - 39 percent were in crashes that involved at least one driver or motorcycle operator with a blood alcohol concentration (BAC) of .08 higher.
- Nighttime is particularly dangerous. Across the country, impaired driving fatalities spike during the nighttime hours. During the 2010 July 4th holiday period (6:00pm July 2 - 5:59am July 6), more than 80 percent of alcohol-impaired driving fatalities took place at nighttime (6 p.m. and 5:59 a.m.)
- The proportion of alcohol impairment among drivers involved in fatal crashes in 2010 was almost five times higher at night (6 p.m. to 5:59 a.m.) than during the day (6a.m. to 5:59 p.m.) for the July 4th holiday period (6:00pm July 2 - 5:59am July 6).
- Young (18 to 34 year old) people still don’t get the message that drinking and driving kills. During the 2010 Fourth of July holiday period (6:00pm July 2 - 5:59am July 6), 50 percent of young drivers killed in motor vehicle traffic crashes were alcohol impaired (BAC of .08 or higher).
Don’t Start the Celebration Without Planning Ahead. Remember to “Drive Sober or Get Pulled Over.”
· Death is not the only consequence from impaired driving. Often, people have a hard time recuperating financially from the cost of an arrest or the crash itself.
· Violators often face jail time, the loss of their driver licenses, higher insurance rates,and dozens of other unanticipated expenses from attorney fees, fines and court costs, car towing and repairs, lost time at work, etc.
· Here are a few simple tips to avoid a drunk-driving disaster:
· Plan a safe way home before the fun begins;
· Before drinking, designate a sober driver;
· If you’re impaired, use a taxi, call a sober friend or family member, or use public transportation so you are sure to get home safely;
· Use you community’s sober ride program;
· If you happen to see a drunk driver on the road, don’t hesitate to contact Local Law Enforcement;
· And remember, “Drive Sober or Get Pulled Over.” If you know someone who is about to drive or ride while impaired, take their keys and help them make other arrangements to get to where they are going safely.
· Remember, whether you’ve had way too many or just one too many it’s never worth the risk to drive impaired. If law enforcement pulls you over for drunk driving, you will be arrested. So remember, “Drive Sober or Get Pulled Over.”
· More information on the “Drive Sober or Get Pulled Over” enforcement crackdown can be found on www.nhtsa.gov/drivesober.
Truck drivers often ask me how to report motor carriers that require them to drive over hours, with unsafe equipment, and in violation of one or more of the Federal Motor Carrier Safety Regulations. I had just such a call yesterday, regarding a Florida company, from a driver.
The FMCSA understands how tricky this is for a driver and allows anonymous reporting of safety violations. You can go to the website and review the system by clicking HERE. The phone number, toll free, to report an unsafe trucking company is found here: 1-888-DOT-SAFT (368-7238)
After this weeks historic 9.25 Million Dollar Record Drunk Driving Tennessee Verdict.I have had a number of lawyers ask me "how do you get a multi-million dollar verdict?" The answer is simple: with friends.
First there is my client, a wonderful young lady with poise, presence, and desire to do what was right even if it cost her time, some money, and her comfort. She had to overcome her fear of trial in order to ask a jury to "help me tell people it isn't OK to drink and drive, and even get the drinkers' friends, family members, and hosts to pull keys, call a cab, find a spot in a bed or on a floor, or give someone a ride home rather than let them drive." Without her desire to send a message about drunk driving the verdict would not have been possible.
Second, the jury. The jury was a conservative panel who stated, in the only way possible under the law, that you must not drink and drive. One of the decisions that they had to make was what amount would "deter others" from drinking and driving. They sent the strongest possible message.
I think with all the press surrounding the verdict that some folks will pay attention and stop drinking and driving (even if it doesn't make the drunk happy), or stop someone from drinking and driving. In Tennessee there may be fewer EMT's, ambulance personnel, police, fire fighters, nurses, and doctors that have to deal with the grizzly after effects of a drunk driving collision. If the verdict stops even one person from getting behind the wheel of a car drunk I know my client will say it was all worthwhile.
In my work as a lawyer on the case, I have had many lawyers over the years help me, as well as consultants. Being a lawyer is a skilled trade, and I have been very lucky to learn from, and surround myself with, superb teachers. So knowing in advance I will leave some of you out, let me thank:
Josh Karton - Who was willing to take my call - at the last hour - and in his delightful, unassuming, brilliant (why didn't I see that!) way was able to key me into elements of my clients' story that needed a little sunshine, a little nourishment, and a lot of polish. Thanks Josh.
Eddie Ciariamboli - Who also had a case against a drunk driver (the week before mine -settled during trial for an undisclosed amount [but knowing how hard nosed Eddie is, and his skills as a lawyer, the client must have been EXTREMELY satisfied]). Ed graciously gave me the benefit of his hard work, brains, and time.
The TAOS Group - A group of some of the finest legal minds in the country. I learn from each of you every year.
The Trial Lawyer's College - You have helped bring my clients' stories to life.
American Association for Justice - For all the educational programs and hard work you do on behalf of victims.
The Truck Litigation Group - American Association for Justice - Some of the finest legal minds in America are members of this group and they all keep me on my toes!
The Tennessee Association for Justice - For all the ways in which you keep the doors of justice open for the citizens' of Tennessee, even as others try to close them.
There were many individuals who, in various cases even if not this one, have molded my efforts, my way of thinking, and my skills and thus deserve credit. These are the lawyers that also worry about thier clients at midnight... and later. They often have provided help to me in the wee hours of the morning when worry and concern about my clients' cases sits in the brain and keeps me awake while everyone else is comfortably asleep. I am honored to be able to call on these lawyers and count them as friends. These masterful lawyers, many of whom are mentors and would likely have done a far better job at trial than I, include (in no particular order):
Gary Gober, Paul Scoptur, Phillip Miller, Steve Gursten, Joe Fried, Jen Ojeda, Rodney Jew, Michael Leizerman, Robert Collins, Ken Shigley, Tom Metier, Diane Wyzga, Richard Jensen, Eddie Davidson, Greg Cusimano, John Romano, Ira Long, Jason Studinski, Ken Levinson, Adam Malone, Tommy Malone, Richard Traulsen, Marion Munley, Jeff Burns, Larry Simon, Dan Buba, Pete Kestner, Dennis Hennen, amongst many others.
Finally, none of this is possible without my wonderful family. Thanks for your support and putting up with the hours, stress, and moods. It means the world to me.
I am pleased to announce that at the annual convention of the Tennessee Association of Justice (TAJ) I was elected by my peers to another term to on the TAJ Board of Governors. I was first elected in 2002, making this my tenth year serving on the Board.
The goal of the TAJ is to defend the principles of the Constitutions of the United States and of the State of Tennessee; to advance the science of jurisprudence; to train in all fields and phases of advocacy; to promote the administration of justice for the public good; to uphold the honor and dignity of the profession of law; and especially to advance the cause of those who are damaged in person or property or who must seek redress therefore; to encourage mutual support and cooperation among members of the bar; and, to uphold and improve the adversary system and trial by jury.
I am honored to be elected a member of the TAJ Board of Governors and look forward to another year working to protect the rights of the citizens of Tennessee.
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!
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.
The American Transportation Association (ATA) was recently quoted as telling the FMCSA that it needed to be "more responsive" to the trucking industry. Isn't enough that there is a revolving door between the FMCSA and the Trucking industry? Trucking officials haul off to DC for a few years, ensure legislation is passed favorable to the industry and try to kill legislation and regulations that safety organizations pray for, and then head back to the trucking industry for higher pay and accolades. I cant imagine the frustration of dedicated public servants who are actively trying to balance industry needs and public safety. They work so hard to be fair only to be told they are insensitive to industry needs.
For those out there in the FMCSA that are putting public safety over perceived industry needs let me state, as a member of the public who isn't driving an 80,000 pound truck, THANK YOU!
The truck industry "Roadcheck" is in process. That means from June 5-7 there will be more roadside inspectors looking at trucks - to ensure they are safe and legal - than at any other time of the year. Correspondingly, as those inspectors take a day off after the big push, the following three days have some of the fewest truck inspectors on the road. This makes June 8-10 some of the most dangerous days to be on a road in the US as dangerous truck drivers get back on the roadways and try to make up for lost time.
I have previously blogged about how ridiculous it is to announce a high period of inspections over a three day period (because all the drivers that know they are unsafe and running illegally take a vacation for those three days) but the trucking industry keeps doing it. The trucking industry then brags about the fact that almost 1 in every 5 trucks is unsafe (based on prior years inspection results), like this is an acceptable number AFTER you tell all the trucking companies and drivers you will be holding the inspection!
The Roadcheck inspection is widely published every year, months in advance, and you have to be a complete idiot not to know when these inspections take place. Anyone truly interested in safety would ensure these inspections were unannounced. Drivers might think twice about getting on the road with an unsafe truck.
I will look forward to seeing how Roadcheck turns out this year. I will hope for some improvement, I am not holding my breath... and I am not getting on a highway June 8-10.
To find prior posts on this please search the term "Roadcheck" on my blog.
I was pleased to see that Transportation Topics, a leading trucking industry publication, published my letter to the Editor in its April 23, 2012 edition on page 9. My letter on why plaintiff lawyer's are having to pursue brokers for full restitution for their clients is as follows:
This is in reference to the story “TIA Pushes Broad Offensive to Lower Brokers’ Liability” (4-2, p. 4).
The Motor Carrier Act of 1980 set minimum insurance limits for carriers at $750,000. Those limits have not been raised in 32 years. If you go to any present-value calculator on the Internet and use a 4% inflation rate, you will find that the present value of $750,000 after 32 years, is about $213,000 in today’s dollars. To put it another way, you would need $2.6 million in today’s dollars to equal $750,000 in 1980.
Many carriers are still only carrying $750,000 in coverage, and when a truly catastrophic wreck occurs, $750,000 is clearly inadequate.
Lawyers facing an inadequate recovery for their clients then look at other parties to make up the difference. Brokers easily could decrease their exposure to liability simply by making sure the carriers they use have adequate insurance.
I have been fortunate to work with many great lawyers around the country on Truck Accident, Spinal Cord and Brain Injury cases. One such lawyer is Pete Everett of Fairfax, Virginia. Pete Everett, a great trucking lawyer who has a breathtaking knowledge of traumatic brain injuries, sent me the following information on a new sleep apnea study in the Australian trucking industry.
Sleep apnea is a huge issue in the US trucking industry, and is willfully, knowingly, and glaringly ignored by most trucking companies. As a result it is a problem I have posted on frequently (Dangers of Truck Drivers with Sleep Apnea, Sleep Apnea increase Risk of Accident Two to Seven Hundred Percent; 25% of Truck Drivers Should Not be Driving Due to Fatigue; and Fatigued Drivers 2.5 Times More Likely to be in a Collision amongst others). The new study shows what we have known in the US for decades. TRUCK DRIVERS WITH UNTREATED SLEEP APNEA KILL INNOCENT VICTIMS ON OUR ROADS. The actual report states:
TruckingInfo.com; Wednesday, April 4, 2012
41% of Australian Truck Drivers Have Sleep Apnea, Study Says
A new sleep study found that 41% of Australian truck drivers have obstructive sleep apnea.
The study, published in the journal "Sleep," found that although only 4.4% of drivers reported a previous diagnosis of sleep apnea, an at-home diagnostic test found that 41% of the 517 drivers who participated likely had sleep apnea.
The study also found that 36% of drivers were overweight, 50% obese an 49% were cigarette smokers.
"Sleep apnea remains a significant and unrecognized problem in CMV drivers, who we found to have multiple health risks," the study says. "Objective testing for this sleep disorder needs to be considered, as symptom reports and self-identification appear insufficient to accurately identify those at risk."
Although the study focused only on Australian drivers, NPR reported that as much as 30% of American drivers are believed to have sleep apnea, a condition that causes a person to stop breathing for short periods of time during sleep, which results in daytime drowsiness.
A trucking company's driver manual tells its drivers all about the company's safety policies and procedures. Generally, these manuals just recite Chapter 2 (the safety chapter) of the state's CDL manual, and occasionally they includes material from a defensive driving course for truck Drivers such as the Smith System. Not a lot of difference in these manuals other than they do show the standards a driver is expected to follow, and that the company knew its driver's should follow these rules. Frankly, driving safely is something we all learn and, for the most part, it involves basic physics we all know. Big things in motion (trucks) take longer to stop than little things in motion (cars). Thus trucks need more stopping distance than cars and better have good brakes! Not a lot of different ways you can discuss safe following distances and how to brake a tractor trailer.
Recently, however, I have found I have had to fight for a copies of trucking companies' driver's manuals as the companies have suddenly started to say they are "secret." I have even had to file motions with judges to get this information [see my blog here]. More and more trucking company defense lawyers apparently believe there is some litigation advantage in keeping this information confidential, out of the public eye, and have put out and email telling all the other trucking defense lawyers not to turn over the driver's manual. This is a bad trend, doesn't make sense, and should be stopped.
Of course "this gives us an unfair advantage in litigation" is not what the trucking company lawyers are saying in court. In court they claim that their ability to keep the public safe is a "competitive advantage" that they don't want leaked to other trucking companies. How to drive an 80,000 pound tractor trailer on our highways and streets without killing people should never be a competitive advantage for a trucking company.
I find it outrageous that a trucking company can claim that the the public's (that is you and me my friends) safety is a competitive advantage (we kill less people than they do) worthy of a court's protection. The fact they KILL less people on the road is, in fact, a good thing, but that they wont share that information to keep everyone on the road safe is appalling. It stinks to the high heavens. Luckily, some lawyers fight back on this issue, and some judges have common sense.
Recently attorney Ed Ciarimboli, at Fellerman & Ciarimboli in Kingston, PA, took this issue (and several others) in front of judge in Pennsylvania and received an Order telling the trucking company, A. Duie Pyle (a very large trucking company with over 800 drivers and over 36 Million miles on the roadways in 2010) that they had to turn over the manual without a secrecy Order. This type of hard work makes us all much safer when we drive. My hats off to Mr. Ciarimboli and the judge in that case (I would list his name but I cant read his signature!). A copy of the judge's Order can be found HERE.
January 25, 2012
House Transportation and Infrastructure (T&I) Committee Chairman Mica is expected to release the multi-year surface transportation reauthorization bill (H.R. 7) imminently. Congressman Jimmy Duncan is the Chairman of the Subcommittee on Highways and Transit on that Committee and is very influential as such.
Trucking interests are lobbying for increases to federal truck sizes and weights as well as a "state option" of allowing states to control size and weight limits on Interstates. A "state option" is a de facto increase because some states will immediately increase their limits, economically pressuring neighboring states to increase theirs - until the entire country will have 100,000 lb trucks on our roads.
TAKE ACTION NOW:
Please call Chairman Duncan NOW and urge him to oppose ANY truck size or weight increases or "state option" in H.R. 7.
Chairman Jimmy Duncan (R-2nd TN) 202-225-5435. If you are a constituent of his district - the 2nd district, you can also send an email http://duncan.house.gov/services/zip-auth.shtml
TALKING POINTS: (You can cut and paste these into an email but please personalize your email as well.)
- I urge you to oppose any increase in truck size and weight-either nationally or as a "state option"- in the surface transportation reauthorization bill.
- In 2010 overall traffic fatalities declined but truck crash fatalities increased by nearly nine percent to 3,675. Increasing truck size and weights would be a significant setback to safety.
- Large trucks are more dangerous and more destructive. In fatal crashes involving a large truck and a passenger vehicle, 97 percent of the deaths occur to the occupants of the car.
· Overweight trucks create a disproportionate level of damage to our roads and bridges. Increasing the weight of a heavy truck by only 10 percent increases bridge damage by 33 percent.
· A "state option" allowing truck weights to be determined individually by each state is a de facto nationwide increase because states will be forced to allow heavier trucks to stay economically competitive if adjoining states allow them.
· Overly heavy trucks, particularly 100,000 lbs. trucks, dramatically underpay their fair share of taxes and user fees for the repair of U.S. roads and bridges. States and Congress are already struggling to find funds to address the backlog of road and bridge needs across the country.
· More than 26%, or 1 in 4, of our nation's bridges are structurally deficient or functionally obsolete according to the American Society of Civil Engineers (ASCE).
· Poor road conditions cost Americans $67 billion in repairs and operating costs. (ASCE)
· One third of America's major roads are in poor or mediocre condition. (ASCE)
Heavier Trucks Mean Bigger Safety Problems
NHTSA stated that both injuries and deaths from trucks increased almost 10% in 2010, a surprise since the economy has kept people, and trucks off the roads. Combine the economy with the fact that cars are (generally speaking) safer every year - and there were the fewest overall deaths on the road in 60 years in 2010 - the increase becomes both surprising and disturbing. You can see all the reports on the NHTSA website here.
In past years the trucking companies have claimed sole credit for any reduction in deaths on the highways, not crediting safer cars, fewer cars on the road with the current economy, or safer and more alert drivers. I wish they then be consistent and take responsibility for the increase in deaths and injuries in 2010 but that is not the case.
The American Trucking Association President and CEO Bill Graves said, while concerned about the increase, that: "Even with this increase, 2010 was the among the safest years on record for the trucking industry thanks in large part to the good faith efforts of America's truck drivers, vehicle manufacturers, truck fleet safety directors, law enforcement officers and true safety advocates." With this spin on the tragic increase in injuries and fatalities from truck wrecks it appears we can count on a future run for congress from Mr. Graves.
I post frequently on the danger of impaired drivers, and specifically the dangers from impaired truck drivers. Not much surprises me anymore, this one did:
State police report finding meth labs in truck
A Mississippi truck driver was arrested Thursday morning after Kentucky State Police found two active methamphetamine labs in the sleeper portion of his truck during a traffic stop on Interstate 71 in Carroll County.
Bobby K. Mitchell, of Myrtle, Miss., was charged with speeding, driving under the influence, manufacturing methamphetamine, unlawful possession of methamphetamine precursors, possession of a controlled substance and drug paraphernalia, according to a release from Kentucky State Police in Campbellsburg.
Police received erratic driving reports about the northbound truck around 10:30 a.m.
After a trooper pulled the vehicle over at the 43-mile marker, Mitchell was determined to be under the influence and a search of the truck followed. Police said Mitchell was cooking methamphetamine while he was driving.
The truck was hauling furniture, police said.
A state police hazardous materials technician responded to the scene and seized the labs.
Mitchell is being held in the Carroll County Detention Center, police said.
The Commercial Motor Vehicle Safety Alliance (CMVSA) held its Roadcheck 2011 event in June this year. This event asks for all states to inspect trucks on the road. Less than 1% of trucks are inspected. By announcing the inspections 4 months in advance, the CMVSA gives drivers and trucking companies four months to prepare, or if the problems are serious enough, to simply stay off the road for a few days.
Despite the huge publicity of the inspections in the trucking industry, the 3 day inspection in 2011 found almost 20% of the inspected vehicles and drivers failed a Level 1 inspection. The fact that truck drivers are on the road in an unsafe condition, knowing that this special inspection will be run, shows how drivers believe the chances of being inspected are so rare that they believe they won't be caught, or that they are so ill trained that they think they are safe.
Nationwide data show that in 2010, log book violations (logs are designed to keep tired drivers off the road) were the most common reasons for drivers being placed out-of-service at 29.5 percent of driver out-of-service violations. The most frequent out-of-service item for trucks was unsafe brakes comprising 25.5 percent of all vehicle out-of-service violations.
Thus the real danger: tired truckers, driving trucks with bad brakes, who don’t realize they are falling asleep until it is too late and who cant stop when they realize what is going on.
Roadcheck was in June and results are starting to be reported. So how did Texas do? On an ANNOUNCED inspection OVER 1 in 4 trucks was deemed to be so unsafe they were told to stop operating until they fixed a safety issue. The reported numbers from KMOO can be found HERE . The article stated in part:
During the 72-hour Roadcheck 2011 program last week, DPS and other Texas law enforcement agencies inspected 7,993 commercial vehicles. Of the vehicles inspected, 26.5 percent were placed out of service for safety violations. (emphasis added)
Is it any wonder that people are scared of 18 wheelers? Given the recent attempts by the Texas legislature to kill more Texans with trucks (see my prior blog on the impact of higher truck speed limits in Texas HERE) Texans have every reason to be scared.
I thought the new Hours of Service (HOS) Regulations made sense, and that there wouldn't be much controversy about the new regulations. After all, the new regulation just put back into place the old rule. The old rule required drivers of 80,000 pound tractor trailers to stop after driving 10 hours. The law was changed under President Bush to allow truckers to drive 11 hours, an extra hour over the prior regulations. So the proposed regulations just put things back the way they were. No harm, no foul, the government gets a do over because they messed up when they extended the HOS to 11 hours. Not a controversial move I thought when I first read it. WOW was I wrong! The trucking companies hate this proposal.
But why? Studies, such as the Penn State study (“On the Relationship of Crash Risk and Driver Hours of Service”) presented by Dr. Paul Jovanisat the 2005 International Truck & Bus Safety Security Symposium in Alexandria, Va. have shown that " the crash risk is statistically similar for the first six hours of driving and then increases in significant steps thereafter. The 11th hour has a crash risk more than three times the first hour." The 11th hour of driving is therefore 300 percent more dangerous than the first hour of driving. Of course the longer a truck is in motion the more money the trucking company makes. Should those profits really come at our, the public's, expense?
Don Schneider was able to make the Forbes 400 list as a Billionaire as the owner of Schneider trucking. Perhaps an industry that creates BILLIONAIRES can think about public safety... at least this once? Most drivers would also appreciate being limited to 10 hours of driving. They know that 11 hours is to long to be on the road. There is a reason they call trucks rolling sweatshops.
Here is hoping that the industry outcry doesn't overcome common sense on this. The 10 hour rule is far safer and simply puts the industry back where they were before the Bush expansion. It should be the law.
The FMCSA and the trucking industry knows how dangerous sleep apnea is for a truck driver. The FMCSA states HERE that:
Staying awake means staying alive. Sleep apnea is a major contributor to daytime drowsiness—a condition that could prove deadly for commercial truck drivers and everyone sharing the road with them. It is a condition where, during sleep, a narrowing or closure of the upper airway causes repeated sleep disturbances leading to poor sleep quality and excessive daytime sleepiness. Since excessive sleepiness can impact a driver’s ability to safely operate the commercial vehicle, it is important that drivers with sleep apnea are aware of the warning signs.
The research arm of the American Trucking Association (ATA), American Transportation Research Institute (ATRI), states that sleep apnea exists in almost 1/3 of commercial driver and contributes to wrecks. See the white paper HERE.
The 2011 Roadcheck is underway. This is the pre-announced "high inspection rate" period for tractor trailers. Over these few days almost 2% of the tractor trailers on the road have a chance of getting inspected. Despite being woefully inadequate, this is almost double the normal rate of daily inspections. This is when the smart unsafe truckers take a vacation. That is why you and I are safer than at other times during the year.
Note I have nothing against the inspectors. These folks are incredibly understaffed and overwhelmed by the task in front of them. I do have a problem with how the trucking industry spins the results. The industry could be shocked that 1 in every 5 trucks is found to have safety violations and do something about it. Instead they crow about how it is only 1 in 5 trucks and it is better than last year. AGAIN, ON AN ANNOUNCED INSPECTION! The one people prepare for!
Ringgold, Ga., widow Cindy Whitaker lost her husband, brother and niece in 2009 when a bucket truck hit their vehicle head-on.
Now she’s pushing for tighter federal regulations for truckers, even as the trucking industry points to federal statistics indicating that America’s roads are safer than ever.
Whitaker, in conjunction with the Truck Safety Coalition, threw her support Tuesday behind the newly reintroduced Safe Highways and Infrastructure Protection Act during a press conference in Washington, D.C.
The bill would freeze current federal truck size and weight limits, disallow the operation of overweight trucks and establish an enforcement program, the organization said.
The coalition released poll results that said 74 percent of Americans oppose heavier trucks and 79 percent favor lowering the maximum number of hours truckers may drive daily.
But a spokesman for the American Trucking Associations slammed the Truck Safety Coalition’s poll results, calling them slanted and misleading.
The questions begin with a sentence or statistic from a safety advocate point of view before getting to the questions, according to the methodology posted on trucksafety.org.
“This is a push poll of the worst kind, and proves that while figures don’t lie, liars can figure,” said ATA spokesman Sean McNally.
Bill Graves, president of the American Trucking Associations, accused the bill’s backers of co-opting the grief of Americans who have lost family members in accidents “to advance an agenda designed to hurt our economy and our industry, and benefit trucking’s competitors and well-heeled union interests.”
Trucking has improved its fatality and injury crash rate by 30 percent since the current rules were implemented in 2004, Graves said.
The rate of trucking accident fatalities fell to 1.17 per 100 million miles in 2009, the safest year since the government began tracking the statistics in 1975, according to data from the Federal Highway Administration and National Highway Safety Administration.
However, the Truck Safety Coalition released statistics showing that 4,000 people are still killed each year and 100,000 more are injured in truck crashes, according to Joan Claybrook, chairwoman of the Citizens for Reliable and Safe Highways.
“Families and truck drivers are being slaughtered on our highways because of the trucking industry’s relentless push for bigger, overweight trucks operated by drivers who are exhausted and pressured to meet unreasonable delivery deadlines,” Claybrook said.
Morgan Adams, a Chattanooga-based lawyer who specializes in truck accident cases, called for restructuring driver pay to an hourly rate instead of by the mile as an incentive toward safety.
“Truck drivers are the last sweatshop industry in America,” Adams said.
“Almost 20 percent of the trucks and drivers have a safety violation every year,” he said. “Two percent of the drivers have alcohol and drug safety violations.”
I am pleased to report that my blog on trucking litigation has been selected as one of the Top 75 Truck Sites on the internet! The selection criteria states:
Truck Injury Lawyer Blog It’s all fun and games until you or your truck gets hurt, and if that’s the case then this is the guy you want to talk to.
I am pleased that my hard work over the years to inform the public of trucking issues has been recognized. For a full list of the Top 75 Truck Sites see the original posting here.
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.
Every so often I need to revise and update my standard spoliation letter (a letter telling the trucking company to save evidence). In part because of changes in the industry, in part because it can always be made better.
In this latest version I fix some typo's, add in some FMCSR cites, and I added a section about the truck and trailer inspection. For those of you counting, here is version 4!
Do you have a good tractor trailer lawyer? If your lawyer has not sent a spoliation letter within a month I suggest you strongly consider hiring another lawyer unless he can articulate why they didn't send a spoliation letter.
If we know the trucking company and driver involved we typically send our spoliation letter out the same day we are hired, or the next day if the mail has run. In some cases our clients are hospitalized or worse and we have to wait till the police report is available to identify the trucking company and driver so we know to whom we need to send the letter.
I was happy to learn that a local paper, The Hamilton County Herald ( www.hamiltoncountyherald.com ), wanted to do an article on my practice, the full article published December 31, 2010 can be found here and is pasted below:
Locally based truck accident lawyer helps nationwide
If there’s one thing attorney Morgan Adams doesn’t need, it’s more work. As a nationally recognized trucking litigation expert who represents victims of accidents involving large commercial vehicles, he has more than enough cases to keep him busy. So he spends a lot of time trying to prevent accidents from happening.
“People think it’s funny that I give out tips to help them avoid being hit by a tractor trailer, but I don’t need more work. There are enough trucking cases, and there will continue to be plenty of them, even if everyone does everything as close to right as humanly possible,” he says.
Some of the tips Adams doles out might seem unconventional, but make sense, including a tidbit that could save lives in rush hour traffic.
“One of the top causes of truck accidents is fatigued drivers. You might think having your foot on your brakes will tell everyone behind you you’re stopped, but when a truck driver has been on the road too long, a solid light doesn’t register as well as blinking lights, so if you’re going less than the minimum speed on the interstate, turn on your emergency lights until at least five cars behind you have slowed down or stopped. Blinking lights help to alert a fatigued truck driver that there’s a problem up ahead,” he says.
Adams hopes his advice has the same effect on those who hear it.
“I consult on hundreds of cases a year, and none of my clients woke up that morning and said, ‘Hot diggity dang, I’m going to be in a car wreck today!’ They had lives with focus and direction, and a truck wreck decimated their plans,” he says.
Case in point: a young Smith County, Tenn., woman whose life was changed when the van in which she was a passenger collided with a commercial vehicle and she suffered a mild traumatic brain injury. Adams helped her to secure the largest recovery for a living plaintiff to date in the county.
“We had experts from around the country diagnose and explain how she hit her head when the wreck occurred, and that as a result, her future changed dramatically in an instant. So one of the things she’s going to be able to do, since she can’t work full time, is provide medical care for herself for the rest of her life,” he says.
Adams’ work has also impacted how certain laws are interpreted. For example, he argued the first reported case in federal court in Tennessee that found that a violation of the Federal Motor Carrier Safety Regulations is negligence per se.
“I’m pretty proud of that legal victory and of the fact that it was deemed important enough to report,” he says.
Adams decided to focus on trucking accidents when he was involved in a case in which a cement mixer rolled over a family in a minivan. A baby suffered brain damage from the wreck and was in intensive care for several days.
“The mixer driver, who was a caring man with children of his own, had never been told by his company that a loaded cement mixer could roll over at 12 mph on a turn. Had the company properly trained the driver, I believe he would have followed his training and the wreck never would have happened,” he says, adding that the company now has a training program for new drivers.
Adams has not always fought on behalf of victims. When he started focusing on truck accident litigation ten years ago, he was on the opposite side of the battle. He says his work for major insurance companies cost him a lot of sleep.
“I’d gotten distressed that a great verdict for my clients meant I’d robbed people who deserved recovery, whether that was because they hadn’t dotted all of their I’s and crossed all of their T’s or some other reason. I knew I’d represented my client well, but I didn’t feel good about what I was doing to individuals,” he says.
The turning point for Adams came when he was asked to formalize a settlement and hand a $5,000 check to a father and the sole supporter of a family. Adams asked the man how he was doing, and the man described symptoms that made it clear he had a bulging disc and would likely need surgery. Since Adams was not the man’s representative, he couldn’t tell the man he was settling for much less than his case was worth.
“I knew he was crazy to settle for $5,000, and the insurance company knew it, but didn’t care. I stopped doing insurance defense work shortly thereafter. And I’d never slept better,” he says.
Adams needed the rest, as he would devote thousands of hours to learning the ins and outs of commercial vehicle accident litigation. His work in the area became his passion, and as he represented more and more victims of catastrophic accidents, he developed a national reputation. Today, he has offices in Nashville and Chattanooga, and is known across the country as “The Truck Accident Lawyer.”
In addition to representing his own clients, Adams helps attorneys across the U.S. understand the liability and damage issues in their trucking cases. His current workload includes cases in California, Nebraska and other states, many of which he handles in person due to their complex nature. Adams also lectures across the country on how to properly handle tractor-trailer cases. Over the next four months, he’s slated to teach CLE courses in New York, Rhode Island, Louisiana and Idaho.
In addition to his lecture work, Adams has written a chapter titled “Trucking Accident Litigation” for the 2010-2011 edition of “Handling Motor Vehicle Accident Cases.” For lawyers who wish to digest similar material in smaller chunks, Adams publishes a blog, accessible at www.truckinjurylawyerblog.com.
While Adams is happy to share his expertise, keeping up with the latest developments in his field requires a significant investment of time.
“It’s an incredibly technical field. To be equipped to handle a trucking case, you have to be constantly involved in the changing safety regulations and dealing with the physics and dynamics and experts involved. It requires a lot of time and effort to stay on top of what’s happening,” he says.
Adams became a lawyer while serving in the U.S. Marine Corps. Following Desert Storm in the early ’90s, he returned to the private sector and took a job with Luther Anderson in Chattanooga. Two years later, he moved over to what was then Hatfield, VanCleave & Akers.
When Akers left to become Hamilton County’s clerk and master, Adams struck out on his own. For a time, he concentrated on family law, and specifically father’s custody. Adams was the first lawyer to convince a Hamilton County judge to allow a father to have his child on Christmas morning.
There’s a touch of irony in Adams’ history with family law, because if there’s one thing he needs more of, it’s time with his wife and three sons. He says he tries to “get home as many nights a year” as he can, but that his work is demanding.
“My wife would not be shy in saying I work too much. But I’m passionate about representing the people who have entrusted this once-in-a-lifetime event to my care,” he says, adding that his wife is “not the better half, but the better nine-tenths,” and that his boys are “smarter than he is, even if they’re not old enough to read [this article] in print.”
When discussing his life and career, Adams seems honest and forthright. But he’s concerned people have the wrong idea about his work: He’s not anti-trucking, he says, but anti-negligence.
“There are a lot of good truck drivers out there, and a lot of good trucking companies. But some trucking companies abuse their drivers, and some truck drivers choose to skirt safety regulations. When they do that, I tend to get involved and try to hold the companies and the drivers accountable.”
That’s bad news for negligent truck drivers and trucking companies, because if there’s one thing they need, besides a willingness to follow the rules, it’s less of Morgan Adams.
I am happy to announce that my book chapter "Trucking Accident Litigation" has been published by West Publishing, the nations largest and most respected legal publisher. The chapter is published in the multi-volume set Handling Motor Vehicle Accident Cases, 2d.
West allows one author per topic and I was chosen to write the chapter on commercial truck and bus litigation.
Interested in hiring a truck accident lawyer? While there are thousands of lawyers advertising for truck and bus accident victims, consider how much of that lawyer's practice is actually devoted to handling commercial motor vehicle accident cases before hiring them. For more information on this subject I previously posted on how to hire a great truck and bus accident lawyer here, here, here, and here.
A picture of the four volume treatise, with CD, is below, and you can order a copy here.
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?
- Controlled Substances (Drugs and Alcohol)
- 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)
- Improper training.
- Negligent Hiring of an unqualified driver
- Distracted driving - Cell Phones and Texting
- 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.
Driver distraction, to include cell phone use, is a major cause of wrecks. This is a huge issue in the trucking industry as truck drivers are required to frequently update their company and are on the road weeks at a time, leaving the cell phone their only means of communication with vendors, friends, and family.
Proving that a truck or bus driver was actually texting while driving, or on a cell phone, is difficult and generally requires a lawyer. Records must be subpoened from the service provider. These records are often destroyed after a few months, thus having a lawyer fighting for you in a serious truck or bus accident case is critical.
Paralegal superstar Janabeth Fleming Taylor recently sent me the link to the Insurance Institute for Highway Safety's list of cell phone laws in the US. The list can be seen here and is pasted below for your convenience.
A jurisdiction-wide ban on driving while talking on a hand-held cellphone is in place in 9 states (California, Connecticut, Delaware, Maryland, New Jersey, New York, Oregon, Utah, and Washington) and the District of Columbia. Utah has named the offense careless driving. Under the Utah law, no one commits an offense when speaking on a cellphone unless they are also committing some other moving violation other than speeding.
Local jurisdictions may or may not need specific state statutory authority to ban cellphones. Localities that have enacted restrictions on cellphone use include: Oahu, HI; Chicago, IL; Brookline, MA; Detroit, MI; Santa Fe, NM; Brooklyn, North Olmstead, and Walton Hills, OH; Conshohocken, Lebanon, and West Conshohocken, PA; Waupaca County, WI; and Cheyenne, WY.
The use of all cellphones while driving a school bus is prohibited in 19 states and the District of Columbia.
The use of all cellphones by novice drivers is restricted in 28 states and the District of Columbia.
Text messaging is banned for all drivers in 30 states and the District of Columbia. In addition, novice drivers are banned from texting in 8 states (Alabama, Indiana, Maine, Mississippi, Missouri, Oklahoma, Texas, and West Virginia) and school bus drivers are banned from text messaging in 2 states (Oklahoma, and Texas).
The table below shows the states that have cellphone laws, whether they specifically ban text messaging, and whether they are enforced as primary or secondary laws. Under secondary laws, an officer must have some other reason to stop a vehicle before citing a driver for using a cellphone. Laws without this restriction are called primary.
|Laws restricting cellphone use and texting|
|State||Hand-held ban||Young drivers all cellphone ban||Bus drivers all cellphone ban||Texting ban||Enforcement|
|Alabama||no||drivers age 16 and 17-year-old drivers who have held an intermediate license for fewer than 6 months||no||drivers age 16 and 17-year-old drivers who have held an intermediate license for fewer than 6 months||primary|
|Arizona||no||no||school bus drivers||no||primary|
|Arkansas||drivers 18 or older but younger than 21||drivers younger than 18||school bus drivers||all drivers||primary: texting by all drivers and cellphone use by school bus drivers; secondary: cellphone use by young drivers1|
|California||all drivers||drivers younger than 18||school and transit bus drivers||all drivers||primary; secondary for hands-free cellphone use by young drivers1|
|Colorado||no||drivers younger than 18||no||all drivers||primary|
|Connecticut||all drivers||drivers younger than 18||school bus drivers||all drivers||primary|
|Delaware||all drivers (effective 01/02/11)||learner's permit and intermediate license holders||school bus drivers||all drivers (effective 01/02/11)||primary|
|District of Columbia||all drivers||learner's permit holders||school bus drivers||all drivers||primary|
|Georgia||no||drivers younger than 18||school bus drivers||all drivers||primary|
|Illinois||drivers in construction and school speed zones||drivers younger than 19 and learner's permit holders younger than 19||school bus drivers||all drivers||primary|
|Indiana||no||drivers younger than 18||no||drivers younger than 18||primary|
|Iowa||no||learner's permit and intermediate license holders||no||all drivers||primary for learner's permit and intermediate license holders; secondary for texting|
|Kansas||no||learner's permit and intermediate license holders||no||all drivers||primary|
|Kentucky||no||drivers younger than 18||school bus drivers||all drivers||primary|
|Louisiana||with respect to novice drivers, see footnote2||with respect to novice drivers, see footnote2||school bus drivers||all drivers||primary2 (effective 08/15/10)|
|Maine||no||learner's permit and intermediate license holders||no||learner's permit and intermediate license holders||primary|
|Maryland||all drivers (effective 10/01/10)||learner's permit and provisional license holders younger than 18 (effective 10/01/10)||school bus drivers (hand-held ban) (effective 10/01/10)||all drivers||secondary; primary for texting|
|Massachusetts||no||drivers younger than 18 (effective 09/30/10)||school bus drivers (effective since 4/12/01) and passenger bus drivers (effective 09/30/10)||all drivers (effective 09/30/10)||primary|
|Minnesota||no||learner's permit holders and provisional license holders during the first 12 months after licensing||school bus drivers||all drivers||primary|
|Mississippi||no||no||no||learner's permit and intermediate license holders||primary|
|Missouri||no||no||no||drivers 21 and younger||primary|
|Nebraska||no||learner's permit and intermediate license holders younger than 18||no||all drivers||secondary|
|New Hampshire||no||no||no||all drivers||primary|
|New Jersey||all drivers||learner's permit and intermediate license holders||school bus drivers||all drivers||primary|
|New Mexico||no||no||no||no||not applicable|
|New York||all drivers||no||no||all drivers||primary; secondary for text messaging|
|North Carolina||no||drivers younger than 18||school bus drivers||all drivers||primary|
|North Dakota||no||no||no||no||not applicable|
|Oklahoma||learner's permit and intermediate license holders (effective 11/01/10)||no3||school bus drivers and public transit drivers (effective 11/01/10)||learner's permit holders, intermediate license holders, school bus drivers and public transit drivers (effective 11/01/10)||primary (effective 11/01/10)|
|Oregon||all drivers||drivers younger than 18||no||all drivers||primary|
|Rhode Island||no||drivers younger than 18||school bus drivers||all drivers||primary|
|South Carolina||no||no||no||no||not applicable|
|South Dakota||no||no||no||no||not applicable|
|Tennessee||no||learner's permit and intermediate license holders||school bus drivers||all drivers||primary|
|Texas||drivers in school crossing zones||intermediate license holders for the first twelve months||bus drivers when a passenger 17 and younger is present||bus drivers when a passenger 17 and younger is present; intermediate license holders for first twelve months; drivers in school crossing zones||primary|
|Utah||all drivers||no||no||all drivers||primary for texting; secondary for talking on a hand-held cellphone4|
|Vermont||no||drivers younger than 18||no||all drivers||primary|
|Virginia||no||drivers younger than 18||school bus drivers||all drivers||secondary; primary for school bus drivers|
|Washington||all drivers||learner's permit and intermediate license holders||no||all drivers||primary|
|West Virginia||no||drivers younger than 18 who hold either a learner's permit or an intermediate license||no||drivers younger than 18 who hold either a learner's permit or an intermediate license||primary|
|Wisconsin||no||no||no||all drivers (effective 12/01/10)||primary (effective 12/01/10)|
1The laws in Arkansas and California prohibit police from stopping a vehicle to determine if a driver is in compliance with the law. Clearly, that language prohibits the use of checkpoints to enforce the law, but it has been interpreted as the functional equivalent of secondary provisions that typically state the officer may not stop someone suspected of a violation unless there is other, independent, cause for a stop.
2In Louisiana, all learner's permit holders, irrespective of age, and all intermediate license holders are prohibited from driving while using a hand-held cellphone and all drivers younger than 18 are prohibited from using any cellphone. Effective April 1, 2010 all drivers, irrespective of age, issued a first driver’s license will be prohibited from using a cellphone for one year. The cellphone ban is secondary for novice drivers age 18 and older.
Spoliation letters require trucking companies to preserve evidence that shouldn't be, but often is, destroyed after a wreck. While the trucking companies know they should put a litigation hold on documents that will show whether they caused a wreck, they generally destroy this evidence if they know they are negligent. I have blogged repeatedly on this subject in past posts.
Why do trucking companies allow this evidence to be destroyed? Trucking companies have found that juries will often believe them when they say the damaging documents were "destroyed accidentally" or destroyed or purged in keeping with "DOT Regulations." Spoliation letters help the jury see that the trucking company knew not to destroy evidence but chose to do so anyway.
What if the documents prove a trucking company's innocence you ask? Well, those they always seem to be able to find when they need them and they never get destroyed.
You, or your lawyer, should make sure a spoliation letter is sent as soon as possible after a wreck. You can use mine, downloadable here, as a form for what should be sent. As no case is identical to another, this form letter is modified for every case we handle. It may not be exactly what is needed in your case but should be a great starting point.
Do you have an experienced trucking lawyer as your attorney? You should ask for a copy of the spoliation letter sent in your case.Remember, you can send this letter to a trucking company even if you don't have a lawyer, but if you need to send this letter, you need to hire a lawyer ASAP!
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:
- 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.
- 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.
- 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.
- Leave Yourself An Out - Surround yourself with space and always leave yourself an escape route in case the unexpected happens.
- 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.
Ken Shigley recently posted an entry on his trucking blog entitled "Five common sense ideas for reducing the risk of truck driver fatigue." Ken has a lot of things right with this post but one thing I believe is wrong is not asking for a 6th common sense reform, and that is simply to have drivers paid by the hour instead of by the mile.
Driving by the mile encourages drivers to push to make a few more dollars. Drivers are encouraged to push to exceed the hours of service requirements and push past the limits of safety. In fact trucking companies know this, government studies prove this, but companies still pay by the mile so that it is the driver that takes the risk of any slow down in on the highway due to construction or rush hour congestion. If the truck breaks down, the driver isn't paid until the problem is fixed.
Perhaps because courts have held drivers who are paid hourly are entitled to overtime (Bostain v. Food Express, Inc.---P3d---, 2007 WL 611259 (Wash March 1, 2007), the Washington Supreme Court held that interstate truck drivers are entitled to overtime compensation for any hours worked in excess of 40 hours per week) trucking companies don't want to pay by the hour. Do you know that truck drivers have been exempted from the federal law that protects almost every other American worker from being overworked without fair pay, the Fair Labor Standards Act?
Paying by the mile also encourages speeding. After all, if you just go a bit faster you can travel more hours in your allotted number of driving hours and earn more money. Drivers also speed to make up the miles that were missed due to traffic, mechanical problems, or other delays.
If truck drivers were paid by the hour then the trucking company would assume the risk of any delay. The driver will get paid the same regardless so he is not given an incentive to speed or drive over his hours of service. Until the trucking industry faces this fact drivers will both continue to speed and drive past their hours of service. The wrecks due to speed and fatigue that could easily be prevented will continue, leading to more tragedies on our roads.
There are several myths about Traumatic Brain Injuries (TBI's), all of which can be explained when you understand the science and medicine involved in the causation and treatment of TBI's. One of the most popular myths is "You can't have a TBI if you don't lose consciousness."
The Center for Disease Control, an arm of the federal government, dispels this myth on its web site. The CDC defines what constitutes a mild TBI and states: That a mild traumatic brain injury is "caused by a blow or jolt to the head that disrupts the function of the brain. This disruption of the brain function is typically associated with NORMAL structural neuroimaging findings (i.e. CAT scan, MRI) ... and may or MAY NOT involve a loss of consciousness." (emphasis added) See here for the full definition. This definition is accepted in the medical and scientific community. Thus you can have changes in personality, temperament, and memory with a mild TBI, and all the other consequences, even though the imaging tests are normal and the victim cant identify a loss of consciousness.
There is nothing worse than a brain injury. It robs us of our souls and sense of self. In fact it kills the old you, and you become someone else. If you know someone who has one you know what I mean.
I see lots of TBI's as a result of handling truck wreck cases across the country. This week I spent several days in Chicago with members of the Traumatic Brain Injury Lawyer Network, including program chair Gordon Johnson, keeping up on the latest medical advances in diagnosing, treating, and litigating TBI cases. I was fortunate to have dinner with some great trial lawyers, Ken Levinson from Chicago and Steve Gursten from Detroit. It is always great to discuss and work on significant complicated cases with phenomenal lawyers like Ken and Steve.
The United States Supreme Court recently held that the principle place of business for a corporation, for purposes of determining whether a federal court has diversity jurisdiction under 42 U.S.C. Sec. 1332(c)(1), is that place where:
a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).
Determining the proper "principle place of business" for a trucking company is critical because it tells an experienced truck accident lawyer where the proper place to file a truck injury lawsuit.
Read the full opinion in Hertz v. Friend, No. 08-1107 (USSC 2/23/10) here.
I was speaking to my friend Leigh May in Atlanta, a great products liability lawyer who has handled a number of defective tire cases with major results, and she was kind enough to review my blog on old and defective tires. She made an excellent point that the spare tire is often overlooked when people change their tires. I have always looked at tire issues from the standpoint of a truck accident attorney and how the tire defect contributed to truck rollovers and loss of control by drivers. However, from my own experience, I can tell you I used to change out all my tires - except the spare - as routine practice! The fact is that by the time the spare is actually used, it is often way beyond its safe shelf life.
The lesson to be learned is that, for safety, when you change out your tires make sure you include the spare! The few extra dollars it costs you to replace a spare tire are worth it to prevent some of the horrible tragedies that Leigh and I have seen over the years.
One of the most common errors in the depositions of truck drivers is failing to determine how they stopped their tractor trailer. Unlike a car, there is more than one way to brake a tractor trailer. Inexperienced lawyers fail to realize this and allow a tractor trailer driver to say "I braked the truck" prior to impact. Consider that a tractor trailer driver can brake his rig by:
- Jake Brake (engine retarder)
- Parking Brakes
- Trailer Brakes
- Tractor Brakes
- Tractor and Trailer brakes
- Emergency Brakes (disconnect)
- Hitting a car
Depending on what brake, or brakes, that was used by the driver you will get different stopping distances, a critical factor in determining cause in any truck accident case.
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 800-580-4878 or by email to learn more at a free, confidential consultation.
Some of the best trucking lawyers in the country recently got together in Atlanta and spent a week teaching other lawyers the tricks and traps of handling a truck, bus or other commercial motor vehicle case. I have not been posting for the last month as my time has been consumed by getting this program together. Robert Collins, from Texas, was the co-moderator and as much time as I put into this program, he put in more. All the TEACHERS were pleased with how much they learned, the students were ecstatic!
The AAJ Advanced Trucking Litigation College is exactly the type of program you want a lawyer handling your trucking case to attend. Hiring a competent lawyer to handle your case is the most critical thing you can do to get a good result in your case. The facts won't change, but gathering those facts, and making sure they are presented to a judge or jury, is critical. Not everyone knows which rocks to look under at a trucking company headquarters.
Before you hire a lawyer for any type of case make sure they are educated on the subject and not a "one size fits all" lawyer. If you have a good case you can hire the best lawyer, from in state or out of state, to handle it and it won't cost you any more money. If the lawyer you want to hire can't take your case he or she can frequently get you to someone in your area that focus' on the specific area involved in your case.
My firm has referral lawyers for trucking cases in every state. In addition to the cases I have handled in Tennessee and Georgia, I recently resolved a case in Nebraska and just finished consulting in trucking cases in California and New York city. If my firm can't get involved in a case (we don't take every case), we always try to get the case to a lawyer with trucking experience in the appropriate state.
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 800-580-4878 or by email to learn more at a free, confidential consultation.
I just returned from the American Association for Justice's 2008 Trucking Litigation Seminar where, with hundred's of lawyers from around the country, we gathered together to talk about the complicated world of tractor trailer litigation. The program was designed to teach lawyers new to the area of trucking litigation how to handle cases and to give experienced lawyers new tips and insights to take their practices to a new level. It was a great seminar and I would like to thank all the staff at AAJ who made it possible as well as this year's chair of AAJ's Interstate Trucking Litigation Group Steven Gursten from Michigan. So what did we discuss?
I presented a program on the Direct Examination of the Accident Reconstructionist, a critical witness in a trucking case that can make sense of conflicting witness statements and the physical evidence left at a crash scene. Other speakers and their topics included:
- Michael Leizerman - How to Discover Service Violations and What to do With Them
- Edward Hershewe - Convincing Arguments fro Damages in Trucking Cases
- Steven Friedman - Spoliation of Evidence
- Stephen Gorney - Technology Update in Trucking Cases (GPS, Black Boxes, and On Board Computer Operating Systems)
- Emily Hawk Raley - Truck Driver Training and Standards
- Sylvester James - Themes in Trucking Cases
- Eddie Davidson - Jury Selection in a Trucking Case
- James Sloan - Investigating the Crash and Accident Reconstruction
- Kenneth Shigley - Understanding NHTSA
- Robert Bailey - Crafting the Trial Story for Trucking Cases
- Richard Holmes - Common Pitfalls in Handling Trucking Cases - The Defense Perspective
Specialized programs like this make a huge difference in a lawyer's ability to handle trucking cases. It puts the sharpest legal minds together in one room talking about one thing, how to handle those tragic cases where someone was injured or killed from a crash with a tractor trailer. The faculty did an outstanding job and are to be commended for all their hard work. I was honored to be asked to speak and be a part of such a highly respected group.
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:
- Failure to keep in proper lane
- Driving too fast for Conditions
- Failure to yield right of way
- Erratic or reckless driving
- Illegal Drug use (By experience this would also include prescription and over the counter drug use)
- Illegal maneuver, improper turn
- Failure to obey Traffic signs
- Cell phones
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.
Founding partner Morgan G. Adams established the Law Offices of Morgan Adams in 1997, and later opened offices in Chicago, San Francisco, and Nashville, TN to support his clients nationally. He is often referred to as "The Truck Accident Attorney." In 2012 he received the first "Lifetime Achievement Award" ever given by the American Association for Justice's Trucking Litigation Group.
Morgan has represented a host of seriously and permanently injured men, women and children, in cases ranging from brain and spinal cord injuries to burn injuries, as well as the families of those killed by tragedy. He has achieved record verdicts and settlements in the millions and millions of dollars for his clients and has multiple million dollar plus recoveries. In 2012 he received, on behalf of his client, the largest drunk driving jury verdict ever rendered against an individual defendant in the history of the state of Tennessee, $9.25 Million dollars.
Morgan says his firm’s success has been built upon aggressively pursuing wrongdoers who refuse to take responsibility for injuring innocent people. Because of his national reputation Morgan has been hired to handle truck and bus cases by lawyers and families throughout the country. He has handled or consulted on trucking cases in over 30 states, from California to New York, from Michigan to Florida and Texas.
Morgan G. Adams
The Adams Building
1419 Market Street
Chattanooga, Tennessee 37402
TOLL FREE 866-580-4878
Practice limited to truck accident litigation. Cases handled nationally.
Morgan Adams is the founding Partner of The Law Offices of Morgan Adams, a multi-lawyer firm. The firm handles trucking cases across the United States. He has recovered millions and millions of dollars for his clients and their families. He is a member of the Million Dollar Advocates Association, having secured multiple million plus dollar recoveries. He has been selected as one of the top 100 trial attorneys in Tennessee and has been repeatedly designated as a MidSouth Superlawyer. He has achieved a 10/10 ranking on www.Avvo.com
Typical cases involve matters in which his clients have either been killed or seriously injured from tractor trailer, bus and other commercial motor vehicle collisions.
PUBLICATIONS AND LECTURES OF MORGAN ADAMS
Morgan has been published extensively on how to handle truck accident cases. The American Bar Association invited him to be an author in its text book, Truck Accident Litigation, (3rd Ed.).
Morgan has lectured from coast to coast and in foreign countries. He has been consistently given highest marks from the lawyers he teaches. Some of the many seminars Morgan has given over the years include: Trying the Wrongful Death Case in Tennessee: Strategies in Preparation and Valuation; Trying the Automobile Injury Case in Tennessee; Advanced Trial Advocacy; Trucking Liability in Tennessee; Trucking Litigation 101; Federal Motor Carrier Regulations in Tractor Trailer Collisions; Understanding the Role and Planning the Cross of the Trucking Company Safety Director; Shooting Fish in a Barrel - The Truck Driver’s Deposition; Catastrophic Injuries in Tennessee Trucking Cases; An Update on MCS-90 Litigation From Around the Country. Various other lectures on legal and litigation topics.
CIVIC AND MEMBERSHIPS
President, Chattanooga Trial Lawyers Association 2002-3; Member, Board of Governors, American Association for Justice, 2009-2011; Chair, AAJ Interstate Trucking Litigation Group 2009-2010; Member, Board of Governors, Tennessee Association for Justice, 2002 to present; Life Member, Tennessee Association for Justice; Program Chair, Tennessee Trucking Litigation Seminar, Tennessee Association for Justice, 2004 to present; Board of Governors, Southern Trial Lawyers Association, 2009 to present; Member, The Taos Group; Member, The Melvin Belli Society.
MORGAN ADAMS' PARTIAL MILITARY RECORD:
Lieutenant Colonel, United States Marine Corps Reserve, Retired Aug 1, 2006.
Staff Judge Advocate, 4th Anti-Terrorism Battalion, Bessemer, Alabama 2005- Aug 2006
Staff Judge Advocate, 4th Battalion, 14th Marines, Bessemer, Alabama 2001- 2005.
Officer In Charge - Peacetime Wartime Support Team, “M” Battery, 4th Battalion, 14th Marines 1999- February 2001.
Commanding Officer, Headquarters’ Battery, 4th Battalion, 14th Marines, September 1997 to 1999.
Forward Observer, “M” Battery, 4th Battalion, 14th Marines