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. 

  

Why?

  

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. 

  

Why?

 

 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)

2017 Update: There is now a Department of Transportation National Consumer Complaint Database (NCCDB) for complaints about unsafe truck and bus companies. The complaints can be made by by consumers, drivers and employees, and industry members (Shippers, Brokers, Freight Forwarders, etc…). The online anonymous complaint forms that can be found HERE

 

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.

 

Law Offices of Morgan Adams Receives
Record $9.25 Million Dollar Drunk Driving Verdict

Drunk driving collision results in largest punitive damages verdict against a drunk driver in Tennessee history.

June 19, 2012 a Chattanooga jury ordered a drunk driver to pay a combined award of $9.25 Million Dollars to a woman he injured in a collision on Mountain View Road in Ooltewah, Tennessee.

The Hamilton County jury unanimously ordered Kevin Davis to pay $500,000 in compensatory damages and $8.75 Million Dollars in punitive damages. It is the largest punitive damages drunk driving verdict in Tennessee history. One of the purposes of punitive damages is to “deter others” from “similar activity.” The jury of twelve Hamilton County citizens wanted to send the strongest possible message, in the only way that the law allows, that drunk driving will not be tolerated in Tennessee.

The collision occurred on Tuesday, November 25, 2008. It was two days before Thanksgiving. Kevin Davis drank half a bottle of Southern Comfort whiskey over a 30 minute period, waited ten minutes, and then got behind the wheel of his car. Mr. Davis had two prior DUIs and had been ordered by a judge to have an interlock device, or a breath analyzer for cars, on his car which would have prevented him from driving while drunk. Had he followed the Court’s order and had an interlock device on his car, the wreck never would have happened. 

Instead, Mr. Davis was able to drive down Mountain View Road drunk, towards Ooltewah High School. While driving towards the high school, Mr. Davis began to pass out from the effects of the alcohol. Rather than pulling into one of the many parking lots he was passing, a driveway, or just pulling off alongside the road, he rolled down his window hoping the cold air would revive him. Shortly thereafter, he passed out completely, drifted into the other lane and slammed head-on into a car driven by an 18 year-old honor roll Ooltewah High School student and cheerleader coming home from a high school basketball game.

After the horrific collision, the Jaws of Life were used to extract the young student from her car. She was placed on a backboard and rushed to Erlanger Hospital where she was found to have no feeling in her legs. Fortunately, the feeling in her legs, and her ability to use her legs, was restored and she was able to leave the hospital. Unfortunately, she continued to have foot problems, which eventually required multiple surgeries and years of physical therapy. She now walks with permanent pain and is no longer able to exercise or participate in those activities that once caused her great joy.

Mr. Davis was convicted of his third DUI as a result of this collision.

Morgan Adams was hired to represent the young lady. The only directive given Morgan Adams by his client was to “send a message so that other people think twice before they drink and drive, or allow their friends or family to drink and drive.”

Morgan Adams took the case on that condition and pushed it to trial. Prior to the trial, Mr. Davis had not paid any bills for the totaled car, the ambulance, the emergency room, or any of the other medical bills or damages suffered by the young woman.

The jury found Mr. Davis negligent and reckless in causing the collision. They were asked to send the strongest possible message to Mr. Davis, and to every other person in Tennessee, that drinking and driving will not be tolerated. The twelve-person unanimous jury carefully deliberated before returning a verdict for $350,000 in past damages, $150,000 for future damages and $8.75 Million Dollars in punitive damages against Mr. Davis. The verdict is the largest punitive damages drunk driving verdict in the history of the State of Tennessee. The purpose of the punitive damages verdict was to deter others from drinking and driving and to remind friends and family members of the need to stop individuals from driving after drinking.

The Law Offices of Morgan G. Adams is nationally known for its representation of individuals hurt or killed through the fault of others. The firm concentrates on cases involving tractor-trailer accidents involving catastrophic brain and spinal cord injuries and wrongful death. Morgan Adams has the highest possible ratings from multiple professional organizations including: an AV rating from Martindale-Hubbell, 10/10 from AVVO.com, designated multiple years as a Mid-South SuperLawyer, and has been found to be one of the Top One Hundred Trial Lawyers in the State of Tennessee by the American Trial Lawyers Association. 

Morgan Adams is a past president of the Chattanooga Trial Lawyers Association, a life and Board of Governors member of the Tennessee Association of Justice, and a past chair of the Trucking Litigation Section of the American Association for Justice.

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!

 

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

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

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