How will the Tracy Morgan Crash Affect Hours of Service Regulations?

First, I would like to add my condolences to the family of James McNair and my prayers for Tracy Morgan’s recovery. Mainstream media, along with truck industry outlets such trucking blogs, newspapers and radio stations have given us many opinion on this crash, in which a WalMart driver apparently rear-ended a Sprinter when the tractor trailer driver had gone 25 hours without sleep.

For those of you who are not safety advocates nor involved in the trucking industry or its lobby, I can tell you that an unfortunate crash redefines ongoing safety issues that were going on well before this crash. On the safety advocacy side–and I am a safety advocate–there are many of us who point out that this is exactly what happens all the time but doesn’t get publicity beyond local media when it doesn’t involve a celebrity.

At the same time, I have heard the responses of truck drivers and the industry who cringe and say this is not representative of the industry. Who’s right? I would like to suggest that both “sides” are and that, in fact, there are no sides. Trucking is essential to the lifestyle we all enjoy in the United States. Most truck drivers are professionals who take safety seriously and who should be proud to be part of the backbone of our nation. However, out of the roughly half million motor carriers and 3 million truck drivers, there are a minority who give a bad name to the rest of the industry and who should be taken off the road for the sake of safety and because they reflect poorly on other truck drivers.

Disclaimer: I handle high profile and catastrophic truck accident cases across the country on behalf of families and victims of truck crashes, so I see some of the worst of the worst drivers and companies–drivers on crystal meth behind the wheel of gas tankers, motor carriers who refuse to keep log books and so on. There are some people in the industry who believe there should be no regulations. I took the deposition of a trucking expert hired by a motor carrier last week who told me under oath that he believes there should be no restrictions on hours of service and that truck drivers should be able to drive as long as they want.

I don’t blame safety advocates for using the Tracy Morgan crash to advocate for safety. I certainly will. Hopefully, there will be some good that can come from this collision if it can help save others’ lives. At the same time, we must always be careful to remember not to paint all truck drivers with the same brush. I am very curious how a large company like WalMart ends up with a driver with so little sleep. Do their dispatchers track hours of service? Do they have a fatigue management program that is effective and consistent with the standards in the North American Fatigue Management Program? Their are many questions yet to be answered.

I have always maintained that one of the most important trucking safety items are electronic log devices, also know as electronic log books. Before implementing new safety regulations, it is important to be able to monitor and enforce the current hours of service rules and to give motor carriers and the FMCSA the tools necessary to spot the truck drivers who cheat and differentiate them from those who follow the rules. I speak to many safe truck drivers and companies who are in favor of electronic log books because they, too, want to get the unsafe drivers off the road who jeopardize everybody’s safety, including other truck drivers–because there are many “truck on truck” collisions that occur every year.

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FMCSA Advisory Committee Recommends $4.4M Minimum Insurance Limits

Michael at MCSACI am proud to have been selected by the American Association for Justice to address the Motor Carrier Safety Advisory Committee (MCSAC) yesterday, May 19, about the need to adjust the minimum federal trucking insurance limits to at least keep pace with the cost of inflation. The current financial minimums are $750,000 per collision, which was passed in 1980. Adjusting this number by the Medical Consumer Price Index (CPI) results in a present day value of $4,422,000.

This afternoon, May 20, the MCSAC voted to adopt my conclusions and recommend the FMCSA begin rulemaking to change the financial minimum responsibility limits to $4.422 million, with some phase-in period and with automatic adjustment to the medical CPI every four years.

Thanks to the MCSAC members for their work on this issue. As a result, I believe the roads will be safer. If ultimately adopted, I know that this regulation will make a difference to the thousands of people and their families who are catastrophically injured or killed in large truck crashes every year and whose medical bills and losses exceed the current minimums. This inflationary adjustment will help pay lost wages to a widow. It will allow for victims to pay for life care plans when there is brain damage or paralysis, instead of relying on Medicaid or other government programs to pay the tab.

In the coming months and years, I predict that we will see advanced notice of rulemaking on this issue from the FMCSA, with a public commentary period, then the rulemaking process along with public commentary period. While I’d like it to be sooner, I foresee phased-in inflationary-adjusted limits going into effect in 2017.

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FAMILY OF SLAIN ARIZONA POLICE OFFICER FILES SUIT AGAINST TRUCK DRIVER, TRUCKING COMPANY

Caught on tape, driver surfs the ‘net’ as he plows into Officer Tim Huffman.

YUMA, AZ — The shocking video has been seen worldwide and continues to trend across social media. Jorge Espinosa, a gas tanker driver for Evans Dedicated Systems, looking at his cell phone while obliviously plowing into Arizona State Trooper Tim Huffman.

Huffman, engagTim Huffmaned in a road-side accident investigation, was killed.

Now, noted truck accident attorney Michael Leizerman has filed suit against Espinoza and Evans Dedicated Systems in the Superior Court of Arizona, representing Officer Huffman’s identical twin brother Warren Huffman, Jr. and his father Warren Huffman, Sr.

“The family has many questions about how a truck driver could be allowed to surf the web while driving a gas tanker, let alone any vehicle,” said Leizerman. “I hope to provide Officer Huffman’s family with the answers, and closure, they deserve.”

The complaint alleges that Espinoza violated federal regulations by using his cell phone while driving and that he “intentionally covered the in-cab dash camera with his wallet” to hide what he was doing. The stunning dash cam video shows the cell phone flying from Espinosa’s hand at the moment of the collision. Click HERE to read the complaint.

The police report reveals that Espinoza was looking at photographs of “several women in provocative positions, wearing little clothing.” Police also reveal that Espinosa “accessed adult sexual sites, female escort services and other social networking sites while driving the gas tanker” a day earlier.

Espinoza, of Yuma, is charged with one count of second degree murder, thirteen counts of endangerment and seven counts of criminal damage.

Officer Huffman is survived by his father Warren Huffman, Sr., and his siblings Paul Huffman, Tom Huffman, Warren Huffman Jr. and Lisa Huffman-Medina.

ABOUT MICHAEL LEIZERMAN
Michael Leizerman is respected as one of the nation’s leading truck accident attorneys. His passion is seeking justice for victims of commercial trucking accidents. Leizerman is the author of the West Legal Treatise “Litigating Truck Accident Cases” and is the founding chairman of the Trucking Litigation Group of the American Association of Justice.

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“Highway Hypnosis” blamed for deadly New York Commuter Train Derailment

Hypnoswirl.thumbnail          The New York Times reported yesterday that the engineer operating the Metro-North Railroad train that derailed this past weekend claimed to have been dazed and zoned out in the moments before the derailment, suffering from “Highway Hypnosis”. “Highway Hypnosis” is a form of fatigued driving where  drivers minds are lulled by the monotonous routines of driving and their attention wanders off and they are no longer fully engaged in safe driving and being aware of nearby hazards.

            Locomotive engineers and commercial truck drivers can attest to the risk and dangers of being lulled into a zoned out dazed state when travelling a long boring stretch of road or rail line. In fact, the risks are so great with locomotives that most locomotives now have an alerter system that requires the engineer to actively press a button every so often. If the engineer fails to do so, an alarm sounds to alert the engineer; and, with some systems, the alerter system will even apply the brakes if an engineer fails to engage the alerter in time.

            While various systems for monitoring and aiding driver alertness are starting to find their way into commercial truck cabs, most tractor-trailers still have no alerter systems in place. In our firm, we’ve handled numerous cases on behalf of victims who have been injured or killed as a result of commercial truck drivers driving while zoned out due to “Highway Hypnosis.”

            Distracted and fatigued driving is every bit as dangerous as drunk driving. If you find yourself feeling drowsy or dazed while driving, please find the nearest safe and legal place to park your car and get some rest.

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$16 million verdict in Warren County, Ohio

Michael Leizerman received a jury verdict of $16 million this week on behalf of the estate of a young woman who was killed on I-75 near Cincinnati, Ohio. The case centered around the poor construction protocols that permitted dump trucks to enter the fast lane of I-75 in the middle of the night with inadequate warning. On October 17, 2009, a dump truck pulled out and was rear-ended by a car occupied by Mr. and Mrs. Poe.

The trial was held before Judge Flannery in Lebanon, Ohio from October 9 to October 16. Much of the argument centered around alternative construction and traffic methods and warnings that should and could have been used to protect the public driving on the interstate.

Michael Leizerman handles truck accident litigation across the country on behalf of injured people and their families.

 

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Sleep Apnea Legislation will Harm FMCSA’s Attempts to Make Our Roads Safer

House Resolution 3095 is aHouse floor new bill that requires the FMCSA to go through full rulemaking and cost-benefit analysis when addressing screening, testing or treatment of sleep apnea. If passed, the FMCSA will not be able to provide immediate guidance to help address the very real problem of sleep apnea. The FMCSA has taken the very important educational step of publishing the online Fatigue Management Training program and has many simple and inexpensive ideas to make fatigue awareness part of a motor carrier’s safety culture. I do not know the basis for the Owner Operator Independent Driver’s Association’s (OOIDA) claim that guidance in this area could cost the industry more than $1 billion, but it appears to be hyperbole based on the inexpensive tests and screening questionnaires available for free or minimal cost. (See previous blog entries for an overview.) I am all for studying problems and conducting cost-benefit analyses, however sleep apnea is a problem that kills people (truck drivers and car drivers), that is easily identified, and for which there are easy fixes.

OOIDA issued a press release statement in the past few days that there is “no statistical evidence to suggest that the presence of sleep apnea significantly increases the likelihood or the risk of motor vehicle crashes.” This is bunk. I suffer from sleep apnea. My life has been changed since getting my BiPAP machine last year. I used to hire drivers to drive me because I could fall asleep literally within a minute anytime of the day. I now am much more awake and alert through the day. This is more than anecdotal evidence. Any sleep doctor will tell you that my experience is common for people treated for sleep apnea.

Given all we know about sleep apnea, the industry is making a statement with this legislation that dollars trump safety. I understand the feeling of the industry that it is over-regulated. I believe there is room for dialogue on many of the safety issues that have been and will be addressed by the FMCSA. However, diagnosing a truck driver, using a simple 5-question test, costs nothing. Providing a BiPAP, CPAP or other apnea-reducing device to truck drivers can improve the quality of their lives and keep the roads safer. I am against this legislation because it will delay simple solutions that will save lives.

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Truck and Bus Brake Safety Week September 8-14

Of course, air brake hoseevery week should be brake safety week, but this coming week is the Commercial Vehicle Safety Alliance (CVSA)’s official Brake Safety Week. As a truck accident lawyer, I see some of the worst examples of trucks with bad brakes. I have required in some of my settlements that the truck company provide specific brake training to its drivers and mechanics.

There are several types of systemic failings that I have seen in my cases. The first is technical–simply not paying for the right equipment. All trucks since 1994 have been required to have automatic slack adjustors. This is a mechanism that is part of the brake system that automatically compensates for wear and tear in the system, including the drum and liners. I have handled many cases in which a motor carrier has chosen to illegally install old manual slack adjustors on trucks to save money.

Another systemic problem I have seen repeatedly is not having a preventative maintenance program or one person or department who is clearly responsible for brake maintenance. It is frightening how many drivers say that they relay entirely on the mechanics to maintain brakes and mechanics in the same company who say that don’t do anything with the brakes unless the driver complains about them. Often that has resulted in a truck on the road with no brakes and the first notice the mechanic gets is after my client is badly injured or killed.

Air brakes are complicated. I highly recommend CVSA’s air brake program for all drivers, mechanics and companies. It I successfully completed it years ago and refer back to it often.  It takes approximately 10-15 hours to complete.

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Fatigue Management Program Module 7 – Motor Carrier Responsibility

Module 7 of the North American Fatigue Management Program (NAFMP) discusses corporate motor carrier responsibilities for identifying, treating and managing sleep disorders. To avoid legal risk, carriers should develop policies and procedures, educate managers about fatigue, document implementation of a Fatigue Management Plan (FMP) and communicate with drivers with sleep disorders.

Schneider National Inc. implemented and Obstructive Sleep Apnea (OSA) program in 2006. Initial reports showed a positive return on investment, including a 73% reduction in preventable crashes for drivers treated for OSA.

Crashes by a driver with OSA could lead to claims that 1) the carrier should have known the driver had OSA; 2) the carrier di not monitor or follow up with an OSA-diagnosed driver prescribed CPAP treatment; or 3) the carrier’s FMP was inappropriate, incomplete or not implemented. Under federal regulations, a driver with a condition likely to interfere with their ability to driver safely are not qualified to operate a commercial motor vehicle. Moderate or severe OSA may disqualify the driver until treated properly.

The motor carrier should educate executives, management, staff and drivers about OSA and sleep disorders through newsletters, videos, programs and publicizing company success stories. Since OSA is largely related to being overweight, health education should be provided along with sleep disorder treatment education.

The Medical Expert Panel (MEP) of the Federal Motor Carrier Safety Administration has given recommendations on medical standards and certification of commercial motor vehicle drivers, including educating drivers with OSA about:

  • The importance of adequate sleep
  • Life changes (weight loss, exercise)
  • Consequences of OSA
  • Effects of respiratory and central nervous system depressants on OSA

Carriers can screen drivers with a variety of questionnaires, including the Epworth Sleepiness Scale, Berlin Questionnaire, Functional Outcomes of Sleep Questionnaire and the Pittsburgh Sleep Quality Index. Physical objective signs that may indicate sleep disorders include BMI>30kg/m2, neck size> 17”, waist >40” and high blood pressure.

Once a person is screened as high risk for OSA, it is recommended they undergo immediate testing for diagnosis. Laboratory polysomnography, or PSG, is considered the gold standard for diagnosing sleep disorders. PSG requires an overnight stay at a sleep center and it is expensive.

Portable monitoring is more affordable and can be done in the sleeper berth. MEP recommends PSG in an overnight lab, but accepts PM as an alternative if there is a minimum 5 hours recording time, the device is validate against PSG and device records oxygen saturation, nasal pressure, sleep time and wake time.

OSA is usually treated with a PAP (CPAP, BiPAP, APAP) or positive airway pressure machine. A 2008 study showed 83% of adults on PAP do not comply with PAP treatment. Drivers must comply adequately to permit them to continue to legally drive a commercial motor vehicle. Carriers can monitor PAP usage by reviewing data cards and web-based monitoring.

Carriers should take action with non-compliant drivers, including giving warning, identifying reason for non-compliance, restricting driving, coaching and supporting and ultimately joy termination. Carriers can help drivers by installing inverters in the cab to power PAP machines and organizing PAP-user groups.

The transportation industry has a responsibility to address sleep disorders in employees as a matter of health, safety, and legal consequence.

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Fatigue Management Program Module 6 – Shippers, Brokers and Receivers

Module 6 of the North American Fatigue Management Program (NAFMP) includes three lessons designed to make shippers, brokers and receivers aware of fatigue concerns and implement safe practices related to fatigue management.

Lesson 1: Shippers and brokers may be sued and questioned about loading practices, driver treatment, routing practices and other actions. The Hours of Service (HOS) regulations are a countermeasure to fatigue. There is a huge shortage of parking available to truck drivers. A 2003 study found availability of truck parking was one-half of demand.

Lesson 2: Limited access to parking and restrooms and lounges can force drivers to park on the shoulder of the road and other undesirable locations. Schedule pressure set by shipper, broker or receiver and can give incentive to the driver to speed, violate HOS and drive while fatigued. A 2011 Government Accountability Office (GAO) study found that 68% of drivers had been detained more than 2 hours (some more than 8 hours!) while waiting for loading and unloading. 80% of these drivers said it affected their HOS compliance. This may be due to inadequate warehouse space, slow service, product not really ready to be shipped or actually using the waiting truck trailers and supplemental warehouse space.

Lesson 3: Voluntary guidelines called “Code of Ethics” established by the Truckload Carriers Association (TCA) and National Industrial Transport League (NITL) with 29 shipper/receiver and 25 carrier/driver guidelines (see Form § 7:19). It includes establishing reasonable transit time requirements so drivers can comply with HOS and speed limits. It also has a guideline to provide for prompt loading/unloading of trucks and providing drivers restrooms, water and other facilities.

We can look to Australia which has included in the Chain of Responsibility drivers, shippers, consignors, loaders, weighbridge operators, equipment vendors and third-party auditors. All who bear responsibility for conduct which affects compliance should be made accountable for failure to discharge that responsibility.

Shippers, brokers and receivers should strive to set realistic trip schedules, reduce loading and unloading delays, and assign waiting drivers time slots so that they can have uninterrupted sleep or naps in their sleeper berth. Detention fees for waiting more than 2 hours are becoming an industry standard. Receivers should consider allowing off-hour parking access to yards.

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When must a truck company randomly drug and alcohol test a driver after hiring?

A motor carrier must randomly givedice alcohol tests to 10% of its drivers and must randomly drug test 50% of its drivers. These percentages can be increased or decreased by the Federal Motor Carrier Safety Administration publishing a new percentage rate in the Federal Register. The new percentage requirement would then take place beginning January 1 of the following year.

The tests must be scientifically random, such as using a computer program that randomly chooses based on an employee identification number. The dates for random tests must not be announced and should be spaced randomly throughout the year. If a driver is chosen during the random testing for one period, that driver must still be included in all future random screens. That is, a driver is not “safe” from being chosen for a random screen simply because he was selected during the last screening period.

These regulations are found in Title 49 of the Code of Federal Regulations in Part 382.305.

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