Posted On: February 24, 2009

Seven deadly sins for new motor carriers

The Federal Motor Carrier Safety Administration determined that a 99% pass rate in safety audits of new motor carrier entrants might be missing something, since new entrants were still involved in a higher percentage of trucking accidents.

The initial grant of authority to operate as an interstate motor carrier is provisional. For the first 18 months the new carrier is subject to stricter scrutiny than other carriers. Provisional authority to operate may be revoked immediately if any of the following "seven deadly sins" are found in a roadside inspection:

1. Using a driver who does not have a valid CDL (commercial drivers license). This includes drivers with falsified, revoked licenses, or one missing a required endorsement.
2. Operating a vehicle placed out of service for violations of safety regulations without taking necessary corrective action.
3. Involvement in a hazardous materials reportable incident involving radioactive material, certain explosives, and poison inhalation hazard materials.
4. Involvement in two or more hazardous materials reportable incidents.
5. Using a driver who tests positive for controlled substances or alcohol or who refuses to test for those substances.
6. Operating a commercial motor vehicle without the required levels of financial responsibility (insurance or approved self-insurance).
7. Having a driver or vehicle out of service rate of 50% or more based on at least three inspections within a 90 day period.

Any of these will trigger an immediate safety audit if there has not yet been an audit. If there has been an audit, there will be a notice requiring corrective action within 30 days. Failure to respond within 30 days will result in revocation of the new entrant's registration.

I will post more later about safety audits and penalties for failing safety audits.

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Posted On: February 23, 2009

New federal regulation cracks down on "chameleon carriers"

It is not uncommon for a carrier with a bad safety record to shut down one corporate entity and open a new company involving the same individuals. By changing corporate entities and getting a new DOT number the company could effectively hide the bad safety record. When an existing motor carrier seeks to register as a new carrier to get a new DOT number, it is known as a "chameleon carrier."

Now, however, the adoption of 49 CFR 385.306 seeks an end to this shell game. If a company provides false or misleading information in the application process any new applicant registration is subject to revocation. The application requires disclosure of related companies and individuals, and these are to be scrutinized for outstanding orders to cease operations. The new entrant registration will be linked to the history of any related old motor carrier in the FMCSA database.

When we have cases against companies with new DOT numbers, we normally conduct discovery about the relationship of the owners to former companies with bad safety records.

And when we have had cases against unsafe motor carriers with minimum insurance coverage, thinking we can seize their assets to collect a judgment in excess of policy limits, we have been alert to the possibility that the owners would shut down their corporation and open up the next day under a new name and DOT number.

The new regulation is a step in the right direction to protect the safety of the traveling public.

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Posted On: February 22, 2009

What medical conditions disqualify a commercial truck driver?

Trucking companies are required to obtain a medical examination by licensed medical examiner of each truck driver. Here are the physical conditions that disqualify a truck driver from obtaining a CDL (commercial drivers license) and operating a commercial motor vehicle.

1. Loss of use of extremity. Loss of use of a foot, leg or arm, subject to a Skill Performance Evaluation of ability to safety control and operate a commercial motor vehicle even with a prosthetic limb.

2. Diabetes. Medical history of clinical diagnosis of diabetes currently requiring insulin. Diabetics whose condition is controlled with oral medication and diet may qualify.

3. Cardiovascular. Current clinical diagnosis of myocardial infarction, angina pectoris, coronary insufficiency, thrombosis, or any other cardiovascular disease of a variety known to be accompanied by syncope, dyspnea, collapse, or congestive cardiac failure. Coronary artery bypasses are not disqualifying, but implanted pacemakers are disqualifying.

4. Respiratory. Established medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with the ability to control and drive a commercial motor vehicle safely. Examples of disqualifying respiratory conditions are emphysema, chronic asthma, carcinoma, tuberculosis, chronic bronchitis and sleep apnea.

5. Hyptertension. Any detection of hypertension requires frequent rechecks. A blood pressure of 180 (systolic) and 110 (diastolic) or higher is considered Stage 3, at high risk for an acute event such as a stroke. The driver with Stage 3 hypertension may not be qualified, even temporarily, until reduced to equal to or less than 140/90 and treatment is well tolerated, and thereafter rechecked every six months.

6. Other physical limitations. Clinical diagnosis of rheumatic, arthritic, orthopedic or vascular disease which interferes with ability to control and operate a motor vehicle. This would include, for example, known to have acute episodes of transient muscle weakness, poor muscular coordination (ataxia), abnormal sensations (paresthesia), decreased muscle tone (hypotonia), visual disturbances and pain which may be suddenly incapacitating. Medical examiners must evaluate the severity and the likelihood of impairment affecting safe operation.

7. Epilepsy. Established medical history or clinical diagnosis of epilepsy or other condition known to cause loss of consciousness. Single episodes of non-epileptic seizure or loss of consciousness are evaluated regarding likelihood of recurrence, with a six month waiting period highly recommended. Drivers with a history of epilepsy/seizures off antiseizure medication and seizure-free for 10 years may be qualified to operate a CMV in interstate commerce. Interstate drivers with a history of a single unprovoked seizure may be qualified to drive a CMV in interstate commerce if seizure-free and off antiseizure medication for a 5-year period or more.

8. Psychiatric. Mental, nervous or functional disease or psychiatric disorder. This is often a subjective evaluation and easily overlooked by medical examiners.

9. Vision. Must have corrected vision of at least 20/40 in both eyes. One who is blind in one eye cannot qualify. My wife, who is functionally blind in one eye, would not qualify.

10. Hearing. Must be able to perceives a forced whispered voice in the better ear at not less than five feet with or without the use of a hearing aid. If tested by use of an audiometric device, must have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz and 2,000 Hz with or without a hearing aid. I wonder whether my daughter, who is deaf but has an Auditory Brainstem Implant that enables her to hear environmental sounds and understand some speech would qualify.

11. Uses a Schedule I drug or other narcotic, with a narrow exception for prescribed medications.

12. Current diagnosis of alcoholism.

While the Federal Motor Carrier Safety Administration has taken steps to tighten up on medical examinations and certifications, there is still likely to be a problem with drivers avoiding going to doctors and avoid reporting dangerous symptoms to medical examiners. I have taken depositions of truckers who fell asleep while driving, looked like medical textbook illustrations of likely candidates for obstructive sleep apnea, and who had great knowledge of sleep apnea, but who denied ever having consulted a physician regarding any sleep related ailment.

There is also a problem with drivers who do get treatment for their disqualifying conditions but neither comply with their doctors directions nor reported their conditions. In one case, I took the deposition of a truck driver's personal physician who testified that the driver had confirmed obstructive pulmonary obstructive disorder (COPD), required use of an oxyen tank 24/7, and was unfit to operate a large truck. However, the trucker had never told the medical examiner or his employer of this condition.

The next step in reforming the medical qualification process may be to adjust the incentives. Right now the incentive for truck drivers to to avoid seeking treatment for problems that could be disqualifying, and to conceal insofar as possible any medical problems they may have. How can the rules be modified to to encourage drivers who have problems to seek the medical care they need?

And how can truck stop chains be encouraged to provide better access to healthy food and exercise facilities in order to help truck drivers maintain healthier lifestyles?


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Posted On: February 22, 2009

Medical certification rules for interstate truck drivers tightening

The health of truck drivers operating 80,000 pound vehicles on the highways for long hours is a matter of great concern for safety of both the truckers and others on the road. The lifestyle of long-haul truckers is hardly conducive to maintaining good habits of diet and exercise. Obesity, sleep apnea, and related ailments are too common, and ultimately affect safety.

The Federal Motor Carrier Safety Administration has taken two new steps toward improving the supervision of medical certifications of drivers.

First, effective 1/30/09, regulations require states to maintain records linking medical certifications, medical examiner certifications, and CDL (commercial drivers license) records. A copy of these documents must be maintained in the motor carrier's driver qualification file. There will be a three-year phase-in of the new rule until 1/30/12.

Second, the FMCSA has published for comment a proposed rule to establish a national registry of medical examiners, who would be required to complete training about truck driver physical qualification regulations. Only those doctors who complete and maintain their certifications would be allowed to certify the fitness of truck drivers.

These are steps in the right direction. Now I would like to see truck stop chains do their part by installing exercise facilities and offering healthier food options.

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Posted On: February 22, 2009

Electronic record keeping and discovery in interstate trucking

Effective 12/19/08, the Federal Motor Carrier Safety Administration rescinded a 1997 policy in order to permit motor carriers to use electronic systems in lieu of paper logs. The change of policy recognizes the reality that most motor carriers now use some sort of technology to trace, route and manage their business. This is good in that it is difficult to falsify a GPS log and it is difficult for a motor carrier to claim it could not have known of violations of hours of service rules when it is using software designed to automatically check for such problems.

However, discovery of the electronic records may be difficult. Motor carriers are obligated to preserve electronically stored information just like paper records. But they and their lawyers are likely to claim that the information was inadvertent, that no backups exist, and that hard copies that do not include all the information are just as good. For example, software used by the motor carrier may allow for comments to be typed in a pop-up box,, but reports may be printed out without the comments that were entered.

The move toward electronic record keeping is a net positive, but it will require a more sophisticated approach to discovery in the litigation of serious trucking accident cases.

Those of us who handle serious trucking accident cases are gearing up for a much tougher approach to electronic discovery.

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Posted On: February 22, 2009

Interstate Trucking Litigation Group seminar in Las Vegas

In a few hours I will fly home to Atlanta after speaking at the American Association for Justice Interstate Trucking Litigation Group continuing legal education seminar.

The faculty at these national seminars form an invaluable nationwide network of knowledge, contacts and resources. If you are a lawyer seeking to handle any trucking cases for plaintiffs, I urge you to join the ITLG. Whenever I speak at these programs, I learn a great deal more from others than I can possibly teach them. While I learn something from almost every speaker, the faculty dinners may be the most valuable part of my participation.

Las Vegas -- "Sin City" -- has never been my cup of tea. But I can walk through that environment without finding it particularly tempting, and jog down Las Vegas Boulevard at dawn (as I did Saturday morning) while there are still plenty of people wandering in and out of casinos with drinks in their hands. It will be good to et home to Atlanta tonight.

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Posted On: February 13, 2009

Tractor trailer rear-ends car near Furman campus, woman airlifted to hospital

Today a tractor trailer rear-ended a car near the campus of my undergraduate alma mater, Furman University in Greenville, SC. The lady in the car was airlifted by helicopter to Greenville Memorial Hospital.

How many hundred times have I passed that spot?

I'm scheduled to help judge the collegiate mock trial competition at Furman in late March.

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Posted On: February 9, 2009

NTSB suggests requiring fatigue monitoring technology in trucking

The National Transportation Safety Board has recommended that the DOT explore requiring fatigue monitoring systems. Those could include included lane departure warning systems, driver monitoring systems such as PERCLOS (which measures the rate of eyelid closure), and electronic onboard recorders. In addition, the NTSB spokesman said that "Both active braking and ESC technologies represent opportunities for significant enhancement of CWSs' capabilities to prevent (or mitigate) commercial vehicle accidents."

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Posted On: February 7, 2009

Truck drivers required to speak and read English, so how do some of these guys get CDL licenses??

Federal Motor Carrier Safety Administration, at 49 CFR 391.11, requires that in order to get a Commercial Driver's License, an applicant must be able to "read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records."

A news story from West Virginia tells about a Russian truck driver who wrecked and spilled a truckload of cocoa. He could not speak English, but somehow had obtained a Maryland CDL.

There have been occasional stories about people essentially buying CDL licenses in various states although they did not qualify. I won't guess what may have happened with this guy.

However, we have seen cases in which immigrant truck drivers who did not speak or read English obtained CDL licenses contrary to the federal rule. In one case a year or so ago, I took the deposition in Kansas City -- through an interpreter -- of a Croatian truck driver who was taught to drive a tractor trailer by "some Russian guy in North Carolina. He said his study of the CDL manual and rules was accomplished by having his 10-year-old daughter translate it for him.

By the time I took his deposition he had learned enough English to have a little conversation, though we had to work through an interpreter. Can you imagine how hard it is to get a Croatian interpreter at all. Forget about getting one who knows the nuances of court interpreting.

You just can't make this stuff up.

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Posted On: February 3, 2009

Trucking safety not at top of priority list for new DOT Secretary

Ray LaHood, the new US Secretary of Transportation, is apparently focused on infrastructure and air traffic control, but not so much on trucking safety.

According to an Associated Press article by Michael Tarm, LaHood is preparing to meet with the state DOT chiefs from all 50 states about plans for road and mass transit projects with funds from the economic stimulus legislation. That seems certain to consume most of his energy and attention.

A strong second priority is replacement of the radar-based national air traffic control system with a satellite-based system called NextGen.

I have not yet seen any announcement of who may be the new head of the Federal Motor Carrier Safety Administration. Stay tuned.


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