2015 transportation course book materials
TRANSCRIPT
ALFA International 2015 Transportation Seminar Course Book
Course Book
ALFA InternationalThe Premier Global Legal Network
Where You Need Us. When You Need Us.
www.alfainternational.com
FACTS
Complete Name ALFA International
Business International Network of Law Firms
Legal Status Non-Profit Delaware Corporation (501(c)(6))
Headquarters Chicago, Illinois
# Staff 10
Website www.alfainternational.com
Date of Formation 1980 (first legal network in the U.S.)
# Member Law Firms 150
# U.S. Member Firms 80
# Countries with a Member Firm 65
# Lawyers within Network 10,000
# Support Staff 10,000
# Offices 400
U.S. Coverage 95 of 100 largest metro areas
Average Member Firm Size 75 lawyers
# Members Per Metro Area One (Exclusivity)
# Subject Matter Practice Areas 27
# of Seminars/Events Per Year 15 –20
# of Publications Per Year 30+
ALFA International
OVERVIEW
Basics: ALFA International is the premier network of independent law firms. Founded in 1980, ALFA International was the first and continues to be one of the largest and strongest legal networks. We have 150 member firms throughout the world. Our 80 U.S. firms maintain offices in 95 of the 100 largest metropolitan areas. Our 70 international firms are located throughout Europe, Asia, Australia/New Zealand, Africa, Canada, Mexico and South America.
Mission: ALFA International’s mission is to provide high quality, cost-efficient legal services wherever our clients need them. The ALFA model enables our members to use their local expertise to deliver highly effective legal solutions, often drawing upon the collective wisdom and experience of other member firms. ALFA clients benefit from a geographically comprehensive network of exceptional law firms and accomplished trial and business counsel. Our member firms meet high standards to be part of the ALFA network and are well respected by their peers in the legal and business community.
The ALFA International Difference: While ALFA International is an association of independent law firms, our members establish broad, deep relationships with each other by attending ALFA International CLE seminars throughout the year and working together on compendia, seminar programming, and most importantly, client matters. As a result, referrals among ALFA firms represent partnerships between trusted friends and colleagues rather than one-off engagements. Similarly, our many events provide corporate counsel with the opportunity to network among ALFA International lawyers and their peer in-house lawyers.
Practice Areas: ALFA International attorneys have expertise across a full array of legal practice areas, a subset of which are supported through our ALFA International Practice Groups. As part of our Practice Groups, the attorneys work together to deliver excellent educational programming, including seminars, webinars, client site mini-seminars, reference materials, speakers, newsletters and more. The ALFA International Practice Groups referred to above include:
• Business Litigation• Construction• Health Care• Hospitality• Insurance• International Law• IP/Technology
• Labor & Employment• Product Liability & Complex Torts• Professional Liability• Retail/Real Estate• Transportation• Women’s Initiative• Workers’ Compensation
Additionally, our member firms have expertise in:
• Admiralty & Maritime• Alternative Dispute Resolution Services• Antitrust & Trade Regulation• Bankruptcy• Corporate & Securities• Environmental Law• Estate Planning & Wealth Transfer• Foreign Investment
• Government Relations, Lobbying & Administrative Law
• Immigration• Mergers & Acquisitions• Oil, Gas, & Energy• Tax• Venture Capital & Financing
www.alfainternational.com
For more information about upcoming seminars, webinars or other educational opportunities, please contact: (312) 642-2532 [email protected]
980 N. Michigan Ave., Suite 1180 Chicago, IL 60611 Tel: (312) 642-ALFA (2532) Fax: (312) 642-5346
Please join ALFA International on
Please follow ALFA International @ALFAIntLaw
www.alfainternational.com
ofTransportation Practice GroupMember Firms
April 2015
DirectoryFor further information and a directory of the full membership, please contact ALFA International.
980 N. Michigan Avenue, Suite 1180Chicago, Illinois 60611Tel: 1-312-642-ALFA (2532)Fax: 1-312-642-5346www.alfainternational.com
© 2015 ALFA INTERNATIONAL GLOBAL LEGAL NETWORK, INC. ALL RIGHTS RESERVED.
ALFA International
The Global Legal NetworkLocal Relationships Worldwide
ALFA International
The Global Legal NetworkLocal Relationships Worldwide
Transportation Practice Group Pocket Directory of Member Firms
980 N. Michigan Avenue, Suite 1180 Chicago, Illinois 60611 312/642-ALFA (2532) FAX: 312/642-5346 www.alfainternational.com
ALFA International
The Global Legal NetworkLocal Relationships Worldwide
ALFA International also publishes an electronic version of this guide. Copies may be obtained by contacting ALFA International’s Chicago headquarters.
REVISED APRIL 2015 © COPYRIGHT 2014 ALFA INTERNATIONAL GLOBAL LEGAL NETWORK, INC. ALL RIGHTS RESERVED.
2
ABOUT ALFA INTERNATIONAL
ALFA International is a premier network of independent law firms. Founded in 1980, ALFA is the first and continues to be one of the largest and strongest legal networks. We have 145 member firms throughout the world. Our 80 U.S. firms represent 92 of the 100 largest American metropolitan areas. Our 65 international firms are located throughout Europe, Asia, Australia/ New Zealand, Africa, Canada, Mexico and South America.
ALFA International’s mission is to provide high quality, cost efficient legal services wherever our clients need them. The ALFA model enables our members to use their local expertise to deliver highly effective legal solutions, often drawing upon the collective wisdom and experience of other member firms. Our law firms meet high standards to be part of the ALFA network and are well-respected by their peers in the legal and business community.
ALFA clients benefit from a geographically comprehensive network of exceptional law firms and accomplished trial and business counsel. Our clients also have access to a wide range of educational programs and publications produced by ALFA International’s member firms, including conferences, on-site seminars, tele-seminars, a speaker’s bureau, and numerous reference publications (digests, compendia, manuals, etc).
Our Practice Groups include:
• Business Litigation • Labor & Employment • Construction • Product Liability • Health Care • Professional Liability • Hospitality • Retail/Real Estate • Insurance • Transportation • International Law • Women’s Initiative • IP/Technology • Worker’s Compensation
Please feel free to contact ALFA International’s Chicago headquarters or any of the ALFA member firms listed in this directory for assistance. Learn more about ALFA International at www.alfainternational.com.
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U . S . M E M B E R F I R M S
ALABAMA
MOB I L E
McDowell Knight Roedder & Sledge, L.L.C.RSA Battle House Tower 11 North Water Street, Suite 13290 Mobile, AL 36602
Tel: (251) 432-5300 Fax: (251) 432-5303 www.mcdowellknight.com
Brian P. McCarthy Cell: (251) 510-5069([email protected])
Jonathan Lieb Cell: (251) 656-4330([email protected])
AR I ZONA
PHO EN I X
Renaud Cook Drury Mesaros, PAOne North Central Avenue Suite 900 Phoenix, AZ 85004
Tel: (602) 307-9900 Fax: (602) 307-5853 www.rcdmlaw.com
Tamara N. Cook Cell: (602) 320-6395([email protected])
William W. Drury Cell: (602) 501-4992([email protected])
TUCSON
Renaud Cook Drury Mesaros, PA177 North Church Avenue Suite 815 Tucson, AZ 85701
Tel: (520) 792-1554 Fax: (602) 307-5853 www.rcdmlaw.com
Tamara N. Cook Cell: (602) 320-6395([email protected])
William W. Drury Cell: (602) 501-4992([email protected])
4
U . S . M E M B E R F I R M S
ARKANSAS
F A Y E T T E V I L L E
Everett Wales & Comstock1944 East Joyce Boulevard POB 8370 Fayetteville, AR 72703
Tel: (479) 443-0292 Fax: (479) 443-0564
Christy Comstock Cell: (479) 790-2348([email protected])
L I T T L E ROCK
Wright, Lindsey & Jennings LLP200 West Capitol Avenue Suite 2300 Little Rock, AR 72201
Tel: (501) 371-0808 Fax: (501) 376-9442 www.wlj.com
Michael D. Barnes Cell: (501) 681-9190([email protected])
Greg T. Jones Cell: (501) 993-2978([email protected])
Jerry J. Sallings Cell: (501) 231-1064 ([email protected])
CAL I FORN IA
LO S ANG E L E S
Haight Brown & Bonesteel LLP555 South Flower Street Forty-Fifth Floor Los Angeles, CA 90071
Tel: (213) 542-8000 Fax: (213) 542-8100 www.hbblaw.com
Peter A. Dubrawski Cell: (310) 488-8898([email protected])
Krsto Mijanovic Cell: (310) 480-7466([email protected])
5
CAL I FORN IA ( C O N T ’ D )
S ACRAMENTO
Matheny Sears Linkert & Jaime LLP3638 American River Drive Sacramento, CA 95864
Tel: (916) 978-3434 Fax: (916) 978-3430 www.mathenysears.com
Matthew C. Jaime Cell: (916) 541-7980([email protected])
Richard S. Linkert Cell: (916) 952-2251([email protected])
Douglas A. Sears Cell: (916) 717-2663([email protected])
S AN D I E GO
Higgs Fletcher & Mack, LLP401 West A Street Suite 2600 San Diego, CA 92101
Tel: (619) 236-1551 Fax: (619) 696-1410 www.higgsfletchermack.com
Peter S. Doody Cell: (858) 414-6317([email protected])
Virginia Price Cell: (619) 322-1946([email protected])
COLORADO
D ENV ER
Hall & Evans, LLC1125 17th Street Suite 600 Denver, CO 80202
Tel: (303) 628-3300 Fax: (303) 628-3368 www.hallevans.com
Lance G. Eberhart Cell: (303) 915-5149([email protected])
Bruce A. Menk Cell: (303) 885-5058([email protected])
Paul T. Yarbrough Cell: (505) 238-7828([email protected])
6
U . S . M E M B E R F I R M S
CONNECT ICUT
HART FORD
Halloran & Sage LLPOne Goodwin Square 225 Asylum Street Hartford, CT 6103
Tel: (860) 522-6103 Fax: (860) 548-0006 www.halloransage.com
Frederick J. Trotta, Jr. Cell: (203) 410-5641([email protected])
Richard C. Tynan Cell: (860) 944-2357([email protected])
WESTPORT
Halloran & Sage LLP315 Post Road West Westport, Connecticut 06880
Tel: (203) 227-2855 Fax: (203) 227-6992 www.halloransage.com
Stephen Fogerty Cell: (203) 247-9299([email protected])
F LOR IDA
FORT L AUD ERDA L E
Fowler White Burnett P.A.100 Southwest Third Avenue Fort Lauderdale, FL 33394
Tel: (954) 377-8100 Fax: (954) 377-8101 www.fowler-white.com
Edward J. Briscoe Cell: (305) 321-8096([email protected])
Michael J. Drahos Cell: (954) 881-4278([email protected])
Christopher E. Knight Cell: (305) 607-2624([email protected])
MI AM I
Fowler White Burnett P.A.1395 Brickell Avenue 14th Floor Miami, FL 33131
Tel: (305) 789-9200 Fax: (305) 789-9201 www.fowler-white.com
Edward J. Briscoe Cell: (305) 321-8096([email protected])
Christopher E. Knight Cell: (305) 607-2624([email protected])
J. Michael Pennekamp Cell: (305) 608-0770([email protected])
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F LOR IDA ( C O N T ’ D )
S ARASOTA
Dickinson & Gibbons, P.A.401 North Cattlemen Road Suite 300 Sarasota, FL 34232
Tel: (941) 366-4680 Fax: (941) 365-2923 www.dglawyers.com
Jeffrey Peairs Cell: (941) 356-1059([email protected])
A. James Rolfes Cell: (941) 356-1079([email protected])
WEST P A LM B E ACH
Fowler White Burnett P.A.777 South Flagler Drive Suite 901 West Palm Beach, FL 33401
Tel: (561) 802-9044 Fax: (305) 789-9201 www.fowler-white.com
Michael J. Drahos Cell: (954) 881-4278([email protected])
Christopher E. Knight Cell: (305) 607-2624([email protected])
GEORG IA
A T L ANTA
Hawkins Parnell Thackston & Young LLP4000 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 30308
Tel: (404) 614-7400 Fax: (404) 614-7500 www.hptylaw.com
Warner S. Fox Cell: (404) 422 1878([email protected])
Alan F. Herman Cell: (404) 281-5866([email protected])
William H. Major Cell: (404) 626-1072([email protected])
David H. Wilson Cell: (404) 414-4226([email protected])
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U . S . M E M B E R F I R M S
GEORG IA ( C O N T ’ D )
S A V ANNAH
Hunter Maclean Exley & Dunn, P.C.200 East Saint Julian Street Savannah, GA 31412
Tel: (912) 236-0261 Fax: (912) 236-4936 www.huntermaclean.com
Bradley M. Harmon Cell: (912) 224-9408([email protected])
Nicholas J. Laybourn Cell: (912) 704-8518([email protected])
I DAHO
BO I S E
Greener Burke Shoemaker PA950 West Bannock Street Suite 900 Boise, ID 83702
Tel: (208) 319-2600 Fax: (208) 319-2601 www.greenerlaw.com
Christopher C. Burke Cell: (208) 284-9262([email protected])
Fredric V. Shoemaker Cell: (208) 859-4683([email protected])
COEUR D ‘ A L E N E
Paine Hamblen LLP701 Front Avenue Suite 101 Coeur d’Alene, ID 83814
Tel: (208) 664-8815 Fax: (208) 664-6338 www.painehamblen.com
Scott C. CifreseCell: (509) 879-7270([email protected])
I L L INO IS
B E L L E V I L L E
Brown & James, P.C.Richland Plaza 1 525 West Main Street Suite 200 Belleville, IL 62220
Tel: (618) 235-5590 Fax: (618) 235-5591 www.brownjames.com
Beth Kamp Veath Cell: (314) 517-4286([email protected])
CH I C AGO
Johnson & Bell, Ltd.33 West Monroe Street Suite 2700 Chicago, IL 60603
Tel: (312) 372-0770 Fax: (312) 372-9818 www.johnsonandbell.com
Robert M. Burke Cell: (708) 217-7406([email protected])
Gregory D. Conforti Cell: (312) 371-8963([email protected])
9
I ND IANA
CROWN PO I N T
Johnson & Bell, Ltd.11051 Broadway Suite B Crown Point, IN 46307
Tel: (219) 791-1900 Fax: (219) 791-1901 www.johnsonandbell.com
Edward Hearn Cell: (219) 246-6884([email protected])
I N D I A N A PO L I S
Lewis Wagner501 Indiana Avenue Suite 200 Indianapolis, IN 46202
Tel: (317) 237-0500 Fax: (317) 630-2790 www.lewiswagner.com
Robert R. Foos, Jr.Cell: (317) 418-9187([email protected])
John C. TrimbleCell: (317) 258-2139([email protected])
Lesley PflegingCell: (317) 753-7069([email protected])
I OWA
D E S MO I N E S
Whitfield & Eddy, P.L.C.317 Sixth Avenue Suite 1200 Des Moines, IA 50309
Tel: (515) 288-6041 Fax: (515) 246-1474 www.whitfieldlaw.com
Bernard L. “Jerry” Spaeth Cell: (515) 229-9504([email protected])
Kimberly S. Bartosh Cell: (515) 422-4252([email protected])
Matthew D. Jacobson Cell: (515) 473-8038([email protected])
10
U . S . M E M B E R F I R M S
KANSAS
OV ER L AND P ARK
Baker Sterchi Cowden & Rice L.L.C.51 Corporate Woods 9393 West 110th Street Suite 500 Overland Park, KS 66210
Tel: (913) 451-6752 Fax: (816) 472-0288 www.bscr-law.com
James R. Jarrow Cell: (816) 560-6123([email protected])
Shawn M. Rogers Cell: (816) 392-2491([email protected])
Hal D. Meltzer Cell: (913) 486-7864([email protected])
Marcos A. Barbosa Cell: (913) 488-0366([email protected])
W ICH I T A
Hinkle Law Firm LLC301 North Main Street Suite 2000 Wichita, KS 67202
Tel: (316) 267-2000 Fax: (316) 264-1556 www.hinklaw.com
J. Philip Davidson Cell: (316) 644-1455([email protected])
Jay Skolaut Cell: (316) 833-1196([email protected])
KENTUCKY
BOWL I NG GR E EN
Harlin Parker519 East Tenth Street Bowling Green, KY 42101
Tel: (270) 842-5611 Fax: (270) 842-2607 www.harlinparker.com
Marc A. Lovell Cell: (270) 991-8063([email protected])
11
KENTUCKY ( C O N T ’ D )
L E X I N G TON
Dinsmore & Shohl LLP250 West Main Street Suite 1400 Lexington, Kentucky 40507
Tel: (859) 425-1000 Fax: (859) 425-1099 www.dinsmore.com
Colleen P. Lewis Cell: (859) 512-3033([email protected])
James T. Lewis Cell: (502) 417-6594([email protected])
Lee A. RosenthalCell: (859) 361-1181 ([email protected])
LOU I S V I L L E
Dinsmore & Shohl LLP101 South Fifth Street Suite 2500 Louisville, KY 40202
Tel: (502) 581-8000 Fax: (502) 581-8111 www.dinsmore.com
James T. Lewis Cell: (502) 417-6594([email protected])
LOU IS IANA
NEW OR L E ANS
Leake & Andersson, L.L.P.1100 Poydras Street Suite 1700 New Orleans, LA 70163
Tel: (504) 585-7500 Fax: (504) 585-7775 www.leakeandersson.com
Louis P. Bonnaffons Cell: (504) 400-7611([email protected])
Craig M. Cousins Cell: (504) 650-8820([email protected])
Stanton E. Shuler Cell: (504) 400-7620([email protected])
12
U . S . M E M B E R F I R M S
MAINE
PORT L AND
Norman Hnson & DeTroy, LLCTwo Canal Street Portland, ME 04112
Tel: (207) 774-7000 Fax: (207) 775-0806 www.semmes.com
Jonathan W. BroganCell: (207) 318-6959([email protected] )
MARYLAND
BA L T IMOR E
Semmes, Bowen & Semmes25 South Charles Street Suite 1400 Baltimore, MD 21201
Tel: (410) 539-5040 Fax: (410) 539-5223 www.semmes.com
Thomas V. McCarron Cell: (410) 960-6743([email protected])
MASSACHUSETTS
BOSTON
Morrison Mahoney LLP250 Summer Street Boston, MA 2210
Tel: (617) 439-7500 Fax: (617) 439-7590 www.morrisonmahoney.com
Sean F. McDonough Cell: (617) 335-7221(smcdonough@ morrisonmahoney.com)
Gareth W. Notis Cell: (617) 548-6777([email protected])
13
MICH IGAN
B LOOMF I E L D H I L L S
Plunkett Cooney38505 Woodward Avenue Suite 2000 Bloomfield Hills, MI 48304
Tel: (248) 594-6357 Fax: (248) 901-4020 www.plunkettcooney.com
Robert A. Marzano Cell: (586) 246-6222([email protected])
D E TRO I T
Plunkett Cooney535 Griswold Street Suite 2400 Detroit, MI 48226
Tel: (313) 965-3900 Fax: (313) 983-4350 www.plunkettcooney.com
Michael K. Sheehy Cell: (248) 953-5964([email protected])
GRAND R A P I D S
Plunkett CooneyBridgewater Place 333 Bridge N.W. Suite 530 Grand Rapids, MI 49504
Tel: (616) 752-4600 Fax: (616) 752-4607 www.plunkettcooney.com
Timothy F. Sheridan Cell: (616) 745-4300([email protected])
MINNESOTA
MINN E A PO L I S
Nilan Johnson Lewis PA120 South Sixth Street Suite 400 Minneapolis, MN 55402
Tel: (612) 305-7500 Fax: (612) 305-7501 www.nilanjohnson.com
Sheila T. Kerwin Cell: (612) 386-7232([email protected])
Stanley E. Siegel Cell: (612) 865-1533([email protected])
14
U . S . M E M B E R F I R M S
MISS ISS IPP I
GU L F PORT
Daniel Coker Horton & Bell, P.A.1712 15th Street Suite 400 Gulfport, MS 39501
Tel: (228) 864-8117 Fax: (228) 864-6331 www.danielcoker.com
Edward C. Taylor Cell: (228) 547-7520([email protected])
J ACKSON
Daniel Coker Horton & Bell, P.A.4400 Old Canton Road Suite 400 Jackson, MS 39211
Tel: (601) 969-7607 Fax: (601) 969-1116 www.danielcoker.com
Jackson H. Ables Cell: (601) 946-1289([email protected])
Jason Strong Cell: (601) 672-3834([email protected])
OX FORD
Daniel Coker Horton & Bell, P.A.265 North Lamar Boulevard Suite R Oxford, MS 38655
Tel: (662) 232-8979 Fax: (662) 232-8940 www.danielcoker.com
Luke Benedict Cell: (662) 816-3945([email protected])
Mitchell Driskell Cell: (662) 816-6261([email protected])
15
MISSOUR I
KANSAS C I T Y
Baker Sterchi Cowden & Rice L.L.C.Crown Center 2400 Pershing Road Suite 500 Kansas City, MO 64108
Tel: (816) 471-2121 Fax: (816) 472-0288 www.bscr-law.com
James R. Jarrow Cell: (816) 560-6123([email protected])
Shawn M. Rogers Cell: (816) 392-2491([email protected])
Hal D. Meltzer Cell: (913) 486-7864([email protected])
Marcos A. Barbosa Cell: (913) 488-0366([email protected])
S T . L OU I S
Brown & James, P.C.1010 Market Street 20th Floor St. Louis, MO 63101
Tel: (314) 421-3400 Fax: (314) 421-3128 www.brownjames.com
Kurt A. Schmid Cell: (314) 503-8942([email protected])
Joseph R. Swift Cell: (314) 517-4277([email protected])
MONTANA
BO Z EMAN
Axilon Law Group, PLLC895 Technology Drive Bozeman, MT 59718
Tel: (406) 922-4777 Fax: (406) 294-9468 www.axilonlaw.com
Gary D. Hermann Cell: (216) 408-4085([email protected])
B I L L I N G S
Axilon Law Group, PLLCElectric Building Suite 310 Billings, MT 59101
Tel: (406) 294-9466 Fax: (406) 294-9468 www.axilonlaw.com
Thomas Singer Cell: (406) 294-9468([email protected])
16
U . S . M E M B E R F I R M S
MONTANA ( C O N T ’ D )
M I S SOU L A
Axilon Law Group, PLLC3117 Humble Road Missoula, MT 59804
Tel: (406) 532-2635 Fax: (406) 294-9468 www.axilonlaw.com
Jill GerdrumCell: (406) 546-6686([email protected])
NEBRASKA
L I NCO LN
Baylor, Evnen, Curtiss, Grimit & Witt, LLP1248 “0” Street Suite 600 Lincoln, NE 68508
Tel: (402) 475-1075 Fax: (402) 475-9515 www.baylorevnen.com
Stephen S. Gealy Cell: (402) 432-5879([email protected])
Jarrod P. CrouseCell: (402) 314-1456([email protected])
NEVADA
L A S V E G A S
Alverson Taylor Mortensen & Sanderrs7401 W. Charleston Boulevard Las Vegas, NV 89117
Tel: (702) 384-7000 Fax: (702) 385-7000 www.alversontaylor.com
Katie Wilson ([email protected])
17
NEW HAMPSH IRE
MANCH E S T E R
Wadleigh, Starr & Peters, P.L.L.C.95 Market Street Manchester, NH 03101
Tel: (603) 669-4140 Fax: (603) 626-4808 www.wadleighlaw.com
Marc R. Scheer Cell: (603) 494-4018([email protected])
NEW MEX ICO
A L BUQU ERQU E
Butt Thornton & Baehr PC4101 Indian School Road, NE Suite 300 South Albuquerque, NM 87110
Tel: (505) 884-0777 Fax: (505) 889-8870 www.btblaw.com
S. Carolyn Ramos Cell: (505) 238-6986([email protected])
Raul Sedillo Cell: (505) 235-5954([email protected])
NEW YORK
A L B ANY
Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C.20 Corporate Woods Boulevard Albany, NY 12211
Tel: (518) 465-3484 Fax: (518) 465-1843 www.carterconboy.com
Brian CarrCell: (518) 312-3875([email protected])
William J. Decaire Cell: (518) 428-8707([email protected])
Edward D. Laird Cell: (518) 396-6394([email protected])
18
U . S . M E M B E R F I R M S
NEW YORK ( C O N T ’ D )
BU F F A LO
Damon Morey LLPThe Avant Building Suite 1200 200 Delaware Avenue Buffalo, NY 14202
Tel: (716) 856-5500 Fax: (716) 856-5510 www.damonmorey.com
Joseph W. Dunbar Cell: (716) 812-0871([email protected])
Thomas A. Drury Cell: (716) 983-3845([email protected])
Vincent G. Saccomando Cell: (716) 491-2417([email protected])
NEW YORK
Lester Schwab Katz & Dwyer, LLP100 Wall Street New York, NY 10005
Tel: (212) 964-6611 Fax: (212) 267-5916 www.lskdnylaw.com
Felice J. Cotignola Cell: (973) 214-0344([email protected])
Robert N. Dunn Cell: (347) 613-5783([email protected])
Melvin Katz Cell: (561) 212-6717([email protected])
S YRACUS E
Hancock Estabrook, LLP1500 AXA Tower 100 Madison Street Syracuse, NY 13202
Tel: (315) 565-4500 Fax: (315) 565-4600 www.hancocklaw.com
Maureen E. Maney Cell: (315) 569-1648([email protected])
Timothy P. Murphy Cell: (315) 289-5315([email protected])
Mark J. Schulte Cell: (315) 378-2131([email protected])
19
NORTH CAROL INA
RA L E I G H
Young Moore and Henderson P.A.3101 Glenwood Ave Suite 200 Raleigh, NC 27612
Tel: (919) 782-6860 Fax: (919) 782-6753 www.youngmoorelaw.com
David M. Duke Cell: (919) 218-3844([email protected])
Shannon S. Frankel Cell: (919) 815-6696([email protected])
NORTH DAKOTA
F A RGO
Vogel Law Firm218 NP Avenue Fargo, ND 58102
Tel: (701) 237-6983 Fax: (701) 356-6395 www.vogellaw.com
Robert B. Stock Cell: (701) 261-7893([email protected])
M. Daniel Vogel Cell: (701) 799-8831([email protected])
OH IO
C I NC I NNAT I
Dinsmore & Shohl LLP255 East Fifth Street Suite 1900 Cincinnati, OH 45202
Tel: (513) 977-8426 Fax: (513) 977-8141 www.dinsmore.com
Colleen P. Lewis Cell: (859) 512-3033([email protected])
20
U . S . M E M B E R F I R M S
OH IO ( C O N T ’ D )
C L E V E L AND
Frantz Ward LLP200 Public Square Suite 3000 Cleveland, OH 44114
Tel: (216) 515-1660 Fax: (216) 515-1650 www.frantzward.com
Brett K. Bacon Cell: (216) 225-6095([email protected])
T. Merritt Bumpass Cell: (216) 780-7761([email protected])
Christopher G. Keim Cell: (216) 337-3970([email protected])
COLUMBUS
Crabbe, Brown & James LLP500 South Front St. Suite 1200 Columbus, OH 43215
Tel: (614) 228-5511 Fax: (614) 229-4559 www.cbjlawyers.com
Robert C. Buchbinder Cell: 614) 746-4111([email protected])
Vincent J. Lodico Cell: (614) 296-1746([email protected])
DAYTON
Dinsmore & Shohl LLPOne South Main Street Suite 1300 Dayton, Ohio 45402
Tel: (937) 449-6400 Fax: (937) 449-6405 www.dinsmore.com
Colleen P. Lewis Cell: (859) 512-3033([email protected]
OKLAHOMA
OK L AHOMA C I T Y
Phillips Murrah P.C.101 North Robinson 13th Floor Oklahoma City, OK 73102
Tel: (405) 235-4100 Fax: (405) 235-4133 www.phillipsmurrah.com
Lyndon W. Whitmire Cell: (405) 820-6337 ([email protected])
21
OKLAHOMA ( C O N T ’ D )
TU L S A
Franden Farris Quillin Goodnight & Roberts900 Williams Center Tower II Two West Second Street Tulsa, OK 74103
Tel: (918) 583-7129 Fax: (918) 584-3814 www.tulsalawyer.com
Joseph R. Farris Cell: (918) 697-7205([email protected])
F. Jason Goodnight Cell: (918) 698-0926([email protected])
Curtis Roberts Cell: (918) 697-6394([email protected])
OREGON
PORT L AND
Cosgrave Vergeer Kester LLP500 Pioneer Tower 888 SW Fifth Avenue Portland, OR 97204
Tel: (503) 323-9000 Fax: (503) 323-9019 www.cosgravelaw.com
Derek J. Ashton Cell: (503) 887 4500([email protected])
Robert E. Barton Cell: (503) 704 4730([email protected])
Walter H. Sweek Cell: (503) 789 5041([email protected])
PENNSYLVAN IA
HARR I S BURG
McNees Wallace & Nurick LLC100 Pine Street P.O. Box 1166 Harrisburg, PA 17101
Tel: (717) 232-8000 Fax: (717) 237-5300 www.mwn.com
Barbara A. Darkes Cell: (717) 421-9653([email protected])
Jim Franklin Cell: (717) 576-5887([email protected])
22
U . S . M E M B E R F I R M S
PENNSYLVAN IA ( C O N T ’ D )
P H I L A D E L PH I A
German, Gallagher & Murtagh, P.C.The Bellevue 200 South Broad Street Suite 500 Philadelphia, PA 19102
Tel: (215) 545-7700 Fax: (215) 732-4182 www.ggmfirm.com
Robert P. Corbin Cell: (609) 410-4399([email protected])
Gary R. Gremminger Cell: (484) 557-0427([email protected])
P I T T SBURGH
Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C.U.S. Steel Tower 600 Grant Street Suite 4850 Pittsburgh, PA 15219
Tel: (412) 261-6600 Fax: (412) 471-2754 www.mdbbe.com
Paul R. Robinson Cell: (412) 760-9754([email protected])
Edward Brandenstein Cell: (412) 916-9116([email protected])
David Meredith Cell: (517) 410-9267([email protected])
RHODE I S LAND
PROV I D ENC E
Higgins, Cavanagh & Cooney, LLPThe Hay Building 123 Dyer Street Providence, RI 2903
Tel: (401) 272-3500 Fax: (401) 273-8780 www.hcc-law.com
John F. Kelleher Cell: (508) 667-2750([email protected])
Stephen B. Lang Cell: (401) 524-4993([email protected])
James A. Ruggieri Cell: (401) 527-9326([email protected])
23
SOUTH CAROL INA
CHAR L E S TON
Young Clement Rivers LLP25 Calhoun Street Suite 400 Charleston, SC 29401
Tel: (843) 720-5456 Fax: (843) 579-1330 www.ycrlaw.com
Duke R. Highfield Cell: (843) 709-7211([email protected])
Stephen L. BrownCell: (843) 607-3450([email protected])
COLUMB I A
Nelson Mullins Riley & Scarborough LLP1320 Main Street Meridian Building 17th Floor Columbia, SC 29201
Tel: (803) 255-9457 Fax: (803) 255-9106 www.nelsonmullins.com
Christopher J. Daniels Cell: (803) 331-9766([email protected])
Jay Thompson Cell: (803) 331-9766([email protected])
GR E ENV I L L E
Nelson Mullins Riley & Scarborough LLP104 South Main Street Suite 900 Greenville, SC 29601
Tel: (864) 250-2300 Fax: (864) 232-2925 www.nelsonmullins.com
William S. Brown Cell: (864) 884-0771([email protected])
24
U . S . M E M B E R F I R M S
TENNESSEE
CHATTANOOGA
Leitner, Williams, Dooley & Napolitan, PLLC200 W. Martin Luther King Boulevard Suite 500 Chattanooga, TN 37402
Tel: (423) 265-0214 Fax: (423) 267-6625 www.leitnerfirm.com
Alan B. Easterly Cell: (423) 667-9670([email protected])
Marc H. Harwell Cell: (423) 505-5595([email protected])
Benjamin T. Reese Cell: (423) 802-9212([email protected])
KNOXV I L L E
Lewis, Thomason, King, Krieg & Waldrop, P.C.One Centre Square 5th Floor 620 Market Street Knoxville, TN 37902
Tel: (865) 546-4646 Fax: (865) 523-6529 www.lewisthomason.com
Benjamin W. Jones Cell: (865) 466-9090([email protected])
Richard W. Krieg Cell: (865) 548-5220([email protected])
Mary A. Stackhouse Cell: (865) 806-8835([email protected])
MEMPH I S
Burch, Porter & Johnson, PLLC130 North Court Avenue Memphis, TN 38103
Tel: (901) 524-5000 Fax: (901) 524-5024 www.bpjlaw.com
Melissa A. Maravich
Cell: (901) 485-8135([email protected])
Eric J. PlumleyCell: (901) 338-3335([email protected])
25
TENNESSEE ( C O N T ’ D )
N A SHV I L L E
Leitner, Williams, Dooley & Napolitan, PLLC414 Union Street Bank of America Building Suite 1900 Nashville, TN 37219
Tel: (615) 255-7722 Fax: (615) 780-2210 www.leitnerfirm.com
R. Chuck. Mangelsdorf Cell: (615) 351-1019(chuck.mangelsdorf@ leitnerfirm.com)
D. Randall Mantooth Cell: (615) 948-1651([email protected])
Thomas J. Dement Cell: (615) 202-0634([email protected])
J. Paul Brewer Cell: (615) 480-7610([email protected])
Lewis, Thomason, King, Krieg & Waldrop, P.C.424 Church Street Suite 2500 Nashville, TN 37219
Tel: (615) 259-1366 Fax: (615) 259-1389 www.lewisthomason.com
John R. Tarpley Cell: (615) 330-2714([email protected])
Mary Beth Haltom WhiteCell: (615) 477-8549([email protected])
David A. Changas Cell: (615) 477-8542([email protected])
TEXAS
AMAR I L L O
Mullin Hoard & Brown, L.L.P.500 S. Taylor Suite 800, LB 213 Amarillo, TX 79120
Tel: (806) 372-5050 Fax: (806) 372-5086 www.mullinhoard.com
Danny M. Needham Cell: (806) 236-7523([email protected])
Christopher W. Weber Cell: (806) 681-5980([email protected])
26
U . S . M E M B E R F I R M S
TEXAS ( C O N T ’ D )
AUST I N
Naman, Howell, Smith & Lee, P.L.L.C.8310 Capital of Texas Highway North Suite 490 Austin, TX 78731
Tel: (512) 479-0300 Fax: (512) 474-1901 www.namanhowell.com
P. Clark Aspy Cell: (512) 413-6876([email protected])
Jay P. Lea Cell: (512) 705-3877([email protected])
Michael A. Thomas Cell: (512) 705-2946([email protected])
DA L L A S
Strasburger & Price, LLP901 Main Street Suite 4400 Dallas, TX 75202
Tel: (214) 651-4300 Fax: (214) 651-4330 www.strasburger.com
Mark S. Scudder Cell: (214) 632-4739([email protected])
Annie J. Jacobs Cell: (214) 460-3115([email protected])
Samuel J. Hallman Cell: (214) 632-8430([email protected])
E L P A SO
Mounce, Green, Myers, Safi, Paxson & Galatzan, P.C.100 North Stanton Suite 1000 El Paso, TX 79901
Tel: (915) 532-2000 Fax: (915) 541-1597 www.mgmsg.com
Carl H. Green Cell: (915) 203-2275([email protected])
Darryl S. Vereen Cell: (915) 204-4440([email protected])
27
TEXAS ( C O N T ’ D )
HOUSTON
Lorance & Thompson, P.C.2900 North Loop West Suite 500 Houston, TX 77092
Tel: (713) 868-5560 Fax: (713) 864-4671 www.lorancethompson.com
Eric R. Benton Cell: (713) 410-8150([email protected])
Melanie R. Cheairs Cell: (281) 703-0969([email protected])
Brian T. Coolidge Cell: (281) 798-6067([email protected])
Daniel L. Fulkerson Cell: (832) 423-5222([email protected])
Ryan T. Hand Cell: (832) 512-2225([email protected])
Roger D. Oppenheim Cell: (832) 878-6707([email protected])
David W. Prasifka Cell: (713) 703-3796([email protected])
Walter F. Williams Cell: (713) 862-7590([email protected])
S AN ANTON I O
Naman, Howell, Smith & Lee, P.L.L.C.10001 Reunion Place Suite 600 San Antonio, TX 78216
Tel: (210) 731-6350 Fax: (210) 785-2950 www.namanhowell.com
David L. Ortega Cell: (210) 383-0621([email protected])
Larry D. Warren Cell: (210) 445-8818([email protected])
28
U . S . M E M B E R F I R M S
TEXAS ( C O N T ’ D )
WACO
Naman, Howell, Smith & Lee, P.L.L.C.400 Austin Avenue Suite 800 Suite 800 Waco, TX 76701
Tel: (254) 755-4100 Fax: (254) 754-6331 www.namanhowell.com
Jordan A. Mayfield Cell: (254) 495-6243([email protected])
P. Clark Aspy Cell: (512) 413-6876([email protected])
Jerry P. Campbell Cell: (254) 744-9236([email protected])
UTAH
S A L T L A K E C I T Y
Christensen & Jensen, P.C.15 West South Temple Suite 800 Salt Lake City, UT 84101
Tel: (801) 323-5000 Fax: (801) 355-3472 www.chrisjen.com
Geoff Haslam Cell: (801) 891-1823([email protected])
Dale J. Lambert Cell: (801) 598-4070([email protected])
VERMONT
RUT L AND
Ryan Smith & Carbine, Ltd.Mead Building 98 Merchants Row Rutland, VT 5702
Tel: (802) 786-1000 Fax: (802) 786-1100 www.rsclaw.com
Andrew H. Maass Direct: (802) 786-1028([email protected])
Mark F. Werle Direct: (802) 786-1022([email protected])
John J. Zawistoski Direct: (802) 786-1015([email protected])
29
V IRG IN IA
R I CHMOND
Morris & Morris, P.C.11 South 12th Street Fifth Floor Richmond, VA 23219
Tel: (804) 344-8300 Fax: (804) 344-8359 www.morrismorris.com
D. Cameron Beck Cell: (804) 514-7606([email protected])
Joseph M. Moore Cell: (804) 307-1912([email protected])
WASHINGTON
S E A T T L E
Merrick, Hofstedt & Lindsey, P.S.3101 Western Avenue Suite 200 Seattle, WA 98121
Tel: (206) 682-0610 Fax: (206) 467-2689 www.mhlseattle.com
Thomas J. Collins Cell: (206) 650-6583([email protected])
Aaron Dean Cell: (425) 478-4062([email protected])
Andrew C. Gauen Cell: (206) 910-9911([email protected])
S POKAN E
Paine Hamblen LLP717 West Sprague Avenue Suite 1200 Spokane, WA 99201
Tel: (509) 455-6000 Fax: (509) 838-0007 www.painehamblen.com
Scott C. Cifrese Cell: (509) 879-7270([email protected])
30
U . S . M E M B E R F I R M S
WEST V IRG IN IA
CHAR L E S TON
Robinson & McElwee PLLC400 Fifth Third Center 700 Virginia Street East Charleston, WV 25301
Tel: (304) 344-5800 Fax: (304) 344-9566 www.ramlaw.com
Edward J. George Cell: (304) 545-6525([email protected])
CL ARKSBURG
Robinson & McElwee PLLC140 West Main Street Suite 300 Clarksburg, WV 26301
Tel: (304) 622-5022 Fax: (304) 622-5065 www.ramlaw.com
Stephen F. Gandee Cell: (304) 695-0838([email protected])
WISCONS IN
MI LWAUK E E
Whyte Hirschboeck Dudek S.C.555 East Wells Street Suite 1900 Milwaukee, WI 53202
Tel: (414) 273-2100 Fax: (414) 223-5000 www.whdlaw.com
Thmoas Gonzalez Cell: (414) 687-7995([email protected])
Jack Laffey Cell: (414) 881-3539([email protected])
WYOMING
CASP ER
Murane & Bostwick, LLC201 North Wolcott Casper, WY 82601
Tel: (307) 234-9345 Fax: (307) 237-5110 www.murane.com
Jeff S. Meyer Cell: (307) 262-6202([email protected])
CH E Y ENN E
Murane & Bostwick, LLC508 West 27th Street
Cheyenne, WY 82001
Tel: (307) 634-7500 Fax: (307) 638-7882 www.murane.com
Loyd E. Smith Cell: (307) 631-6338([email protected])
Greg Greenlee Cell: (307) 421-3307([email protected])
31
AUSTRAL IA
MELBOURN E
Cornwall Stodart Level 10 114 William Street Melbourne, Victoria 03000
Tel: 61-3-9608-2000 Fax: 61-3-9608-2222 www.cornwalls.com.au
Levent Shevki ([email protected] )
CANADA
CA LGARY
Borden Ladner Gervais LLPCentennial Place East Tower 1900, 520 - 3rd Avenue Southwest Calgary, AB T2P OR3
Tel: (403) 232-9669 Fax: (403) 266-1395 www.blg.com
Bruce Churchill-Smith Cell: (403) 605-7019([email protected])
S A I N T J OHN
Stewart McKelveySuite 1000 Brunswick House 44 Chipman Hill St. John, NB E2L 2A9
Tel: (506) 632-8313 Fax: (506) 634-3579 www.stewartmckelvey.com
J. Paul M. Harquail Cell: (506) 639-0974([email protected])
*Providing bilingual legal services in English and French
V ANCOUV ER
Fasken Martineau DuMoulin LLP2900 - 550 Burrard Street Vancouver, BC V6C OA3
Tel: (604) 631-3155 Fax: (604) 631-3232 www.fasken.com
William Westeringh ([email protected])
I N T E R N A T I O N A L F I R M S
ofTransportation Practice GroupMember Firms
April 2015
DirectoryFor further information and a directory of the full membership, please contact ALFA International.
980 N. Michigan Avenue, Suite 1180Chicago, Illinois 60611Tel: 1-312-642-ALFA (2532)Fax: 1-312-642-5346www.alfainternational.com
© 2015 ALFA INTERNATIONAL GLOBAL LEGAL NETWORK, INC. ALL RIGHTS RESERVED.
ALFA International
The Global Legal NetworkLocal Relationships Worldwide
ALFA International
The Global Legal NetworkLocal Relationships Worldwide
Please click on session titles to view contents:TABLE OF CONTENTS
ALFA International Overview
Transportation Practice Group Member Firms
One Way or the Other, We Are Watching You:Successes and Pitfalls of Surveillance and Social Media Invetsigations
The Drive CamFleet Management Perspective V. Driver Perspective
The Fatigued Driver:Sleep Apnea, Hours of Service and the DOT Medical Exam
A Morning in the Life:Responding to Plaintiffs' Day-in-the-Life Videos in Mediation
Driving Under the Influence - Or Not?(Drugs, Alcohol and Transportation)
Minimizing Jury Distractions:Strategies to Preclude Admissibility of Preventability
Determines and CSA / SMS Data
Third Party Liens:How to Manage the Detrimental Impact Liens
Impose Upon Settlment Negotiations
PROGRAM SESSIONS
Traumatic Brain injury Claims:Use of Neuropsychology Expert to Evaluate if Real or Bogus
Crash Avoidance Technology: Can You Afford (Not to Have) It?
Stone Cold Locks -Ideas on Closing Arguments
ALFA INTERNATIONAL 2015 TRANSPORTATION SEMINAR
April 29 – May 1, 2015 – The Hotel Del Coronado – Coronado, California
STONE COLD LOCKS—IDEAS ON CLOSING ARGUMENTS
Larry Warren Moderator
NAMAN, HOWELL, SMITH & LEE San Antonio, Texas
Edward George ROBINSON & MCELWEE PLLC
Charleston, West Virginia [email protected]
Darryl Vereen
MOUNCE, GREEN, MYERS, SAFI, PAXSON, & GALATZAN, P.C. El Paso, Texas
Fact Pattern for 2015 ALFA Transportation Program Estate of Chuck Manson v. Fast Forward Freight Incorporated, and Rocky Knievel
This case involves a tragic interstate accident which occurred at approximately 1:30 p.m.
July 5, 2010, at the 178 mile marker on Interstate 84, eastbound, in Baker County, Oregon.
Chuck Manson (age 61) had just been released from the Oregon State Penitentiary after
serving a nine-year sentence for armed robbery and assault with a deadly weapon. Manson
was on his way to Boise to care for his 77-year-old mother who was on public assistance.
Manson thought his Toyota had experienced a sudden acceleration event. As a result, he
pulled out of the travel lane and onto the shoulder of I-84. The spot he chose to pull over
was on the immediate downhill side of a sharp rise in the highway. After pulling over,
Manson propped the hood of his Toyota open while checking the acceleration linkage.
While checking the linkage, he heard the tell-tale hissing of a flat tire in progress. He did not
have any flares, but he had a bag of fresh oranges. Manson opened the bag of oranges and
placed six oranges in a line approximately 50 yards behind his parked car to warn oncoming
drivers of his presence.
While Manson was working on the flat tire on the right shoulder, an eastbound commercial
motor vehicle driven by Rocky Kneivel (age 50) drifted onto the right shoulder of the road.
Knievel was employed by Fast Forward Freight Incorporated (Fast Forward) as a long haul
driver. Knievel was headed east on I-84 towards Boise en route to his next stop in Salt Lake
City, Utah.
There is no dispute that Knievel’s eighteen-wheeler drifted over the white line onto the right
shoulder just prior to the accident. Knievel may have experienced a microsleep event which
was precipitated by a medical condition known as sleep apnea (see discussion below). The
evidence suggests that Knievel spotted Manson’s Toyota just in time to attempt to take
evasive action to avoid colliding with the rear of the Manson Toyota which was parked
approximately 12” inches away from the white line on the right shoulder. Evidence suggests
that Manson had parked close to the white line so that he had enough room to bend over
and work on the flat right rear tire, given that there was a thick row of prickly cactus lining
the edge of the asphalt.
2
The tractor-trailer unit driven by Knievel knocked the rearview mirror off of the Larkins'
vehicle, and the right rear tires of the trailer unit scrubbed up against the side of the driver's
door. The glancing impact knocked the Toyota off of the jack being used by Manson to
change the tire. As it fell off the jack, the Toyota struck the crouched over Manson, causing
compression injuries to his chest which led to his eventual death on the side of the road
approximately three hours later.
Manson had apparently turned on the emergency hazard lights of his Toyota before exiting
his vehicle to inspect the acceleration linkage and to change his flat tire. Depending on
one’s viewpoint, there are several possible explanations for Knievel’s failure to see, observe
and drive safely by Manson. As explained below, Knievel could have been experiencing a
micro-sleep event precipitated by his medical/respiratory condition known as sleep apnea.
He also could have been suffering from garden variety fatigue – given his eight hour
commute from Whistler, British Columbia to the Portland terminal where he began driving at
8:00 am on the day of the fatal crash.
Knievel was arrested and charged with vehicular homicide in connection with the death of
Manson. Knievel was transported to the Baker County Jail where he was charged with
vehicular homicide and held in lieu of $1 million bond. Fast Forward terminated Knievel one
week after he was taken into custody. Unable to make bond, Knievel remained in jail
throughout the months of July, August and into September. Eventually, Knievel’s public
defender negotiated a plea with the prosecutor’s office. Knievel pled “no contest” to
criminally negligent homicide. He was sentenced to six months in jail with credit for time
served. Knievel now works as a trainer for Friendly Fido, a non-profit that provides
Labradors to handicapped adults in need of animal-assisted therapy.
Manson died a hero in the eyes of his family and his colleagues back at the penitentiary. He
had turned his life around in the state pen and was headed back to Boise where he planned
to be a state-paid caregiver for his elderly mother. According to plaintiff’s counsel, Manson’s
new life was cut short due to the negligent hiring, training, and supervision of Kneivel by
Fast Forward, coupled by the negligent operation of the CMV by Knievel. The Estate of
Manson’s trial team has undertaken a comprehensive effort to discredit Fast Forward and
portray the corporation as indifferent to safety, indifferent to the regulations embodied in the
3
Federal Motor Carrier Safety Regulations, and grossly negligent for knowingly hiring driver’s
with sleep apnea. Fast Forward takes issue with these assertions and will be prepared to
defend itself at trial with respect to its method of operation, hiring of drivers, supervision of
drivers, enforcement of hours of service regulations and in particular, the supervision of
Knievel as a commercial vehicle driver for Fast Forward. Fast Forward also raises the issue
of Manson’s comparative fault for choosing to pull over on the immediate downside of a
sharp rise in the highway, his failure to have and use conventional traffic flares, and his
failure to pull far enough off of the roadway.
Manson was 61 years old when he died. He was expected to live until the age of 80.
Manson’s trial team projected Manson to work until age 75 at a salary of $36,000 per year.
An economist has made a preliminary assessment that the Estate’s loss of earnings has a
present day value of $500,000 (after deductions for consumption required by Oregon law).
As noted above, Manson lingered for approximately three hours after impact while in and
out of consciousness, therefore, pain and suffering prior before death is an issue. According
to the autopsy, Manson could have been conscious for 90 minutes. The other primary loss
classification for this wrongful death claim will be loss of companionship and services
damages for Manson’s 78-year-old mother. Manson’s grandmother was still alive and in
good health at the age of 94. While Manson had not been in her life for the past nine years,
and had been in/out of prison since the age of 17, his mother testified that he wrote her
beautiful letters on a weekly basis from the state pen. In addition, he sent her paintings of
clowns which he did in the pen’s artist workshop. Plaintiffs seek damages against Fast
Forward and Knievel, as an individual.
EMPLOYMENT WITH FAST FORWARD FREIGHT Kneivel was a long-haul driver for Fast Forward. He had been so employed for five years.
Before hiring Kneivel, Fast Forward had a policy of refusing to hire anyone with sleep
apnea. However, a local union learned about this policy and began picketing Fast Forward’s
headquarters. Ultimately, Fast Forward management consulted with medical experts and
were advised that drivers with sleep apnea, if properly treated, were not inherently
dangerous. In order to get rid of the picketers, Fast Forward changed its policy. Shortly
thereafter, Knievel was hired. Unfortunately, Kneivel only provided an Oregon post office
box as an address on his application and this went unnoticed by Fast Forward’s human
4
resources department. As a result, Fast Forward was not aware that Kneivel had an 8 hour
commute from Whistler, BC before beginning his week-long routes from the Portland,
Oregon terminal.
Kneivel possessed a current D.O.T. physical card indicating he has successfully passed a
medical/physical exanimation and was physically qualified to operate a commercial motor
vehicle as defined by the Federal Motors Carrier Safety Regulations. Kneievel had a regular
D.O.T. physical examination done every two (2) years in order to keep his commercial
driver’s license current, as required by the Federal D.O.T. regulations.
Before Fast Forward, Kneivel had been an intrastate day driver for Minute Men, a deliverer
of small business packages in Vancouver, British Columbia. Kneivel was fired by Minute
Men after two rear-end accidents that were determined to be “preventable” by Minute Men
management. Fast Forward had made a good faith effort to obtain Kneivel’s personnel file
from Minute Men, but Minute Men failed to respond and Fast Forward didn’t pursue it further
in accordance with FMSCR regs. Kneivel did not mention the rear-end accidents during his
job interview with Fast Forward and Fast Forward only ordered Kneivel’s Oregon driving
record, which did not show his British Columbia CMV accidents. Additionally, Fast Forward
did not inquire and Kneivel did not volunteer that Kneivel discovered his sleep apnea during
a Canadian Department of Motor Vehicles investigation into a single car accident that
occurred when Kneivel fell asleep at the wheel of his private vehicle one afternoon in 2003.
Canada suspended his driver’s license for one year. His license was reinstated when he
produced a doctor’s note stating his sleep apnea was correctable by regular use of a CPAP
machine.
Prior to the subject accident, Kneivel was off work on July 2, 3, and 4. It came out in
discovery that Kneivel had partied hard on July 4th, before falling asleep on his neighbor’s
lawn at 8 pm on July 4. Kneivel was not there when his neighbor woke up the next morning.
Kneivel’s memory is hazy, but he testified he slept on the lawn from 8 pm to midnight,
before leaving Whistler for Fast Freight’s Portland terminal.
In addition, Kneivel had been off work on vacation from June 18, 2010, until June 26, 2010,
a total of nine days. During these nine days, Kneivel worked on his cousin’s crab-fishing
5
boat off the coast of Alaska. Due to ribbing from his fellow crew members, he did not use
his CPAP machine while crabbing. He worked night and day on the crab vessel and
returned exhausted but flush with cash. After his crabbing vacation, Kneivel worked five
days for Fast Forward (from June 27 through July 1). Accordingly, Kneivel was off-work
twelve (12) out of the seventeen (17) days preceding this accident. Fast Forward does not
dictate how its drivers spend their off-duty time. However, it expects its drivers to be well-
rested and alert while driving its vehicles.
Fast Forward required each driver to check in personally with a dispatcher and to obtain
his/her CMV keys from a supervisor before heading out on the road. Both the dispatcher
and supervisor were responsible for observing all drivers for visible signs of fatigue. Both
the dispatcher and supervisor testified that Kneivel appeared fine when he obtained his
truck keys at 8 am on July 5.
Fast Forward maintains that when Kneivel was off-duty and not working as a truck driver it
had every right to assume Kneivel was getting adequate rest and sleep on his days off.
Moreover, Fast Forward expected Kneivel to religiously use his CPAP machine.
Accordingly, the company had every right to assume Kneivel would not report to work ill or
fatigued but ready to work and rested. The company obviously must depend on their
professional drivers in this regard, as related by Don Spacy, Driver Manager and direct
supervisor for Knievel:
Q: In your opinion as the manager, drivers' manager, is it important for a driver to
receive training on fatigue awareness?
A: You are asking me if I think it?
Q: You are the manager. Yes, sir.
A: Well, I think-think it's important that a driver understands that he needs to get
his rest and use his time adequately when he's off duty.
Q: Well what about is it important for a driver to recognize signs of fatigue when
he is on the road?
A: Yeah, yes, sir.
Q: And is it important for a driver to know what to do when he recognizes signs
of fatigue on the road?
6
A: It's just like any other driver, they can pull off. I have never, ever told a driver
or anybody that they could not pull that vehicle over at any time get out of that
vehicle and get their rest, get a-take a nap or whatever they want to do. I
have never disciplined a driver for doing so or told them that they could not do
it.
(Depo. of Don Spacy, p. 122).
Plaintiff asserts that there is a factual predicate for an award of punitive damages because
Fast Forward failed to educate its drivers regarding fatigue awareness. The company did in
fact address driver fatigue on a daily basis with all of its drivers based upon the company's
adherence to the Federal Motor Carriers Safety Administration Hours of Service
Regulations for over-the-road truck drivers. The hours of service requirements of FMCSR §
395.3 are designed to help eliminate fatigue by over-the-road truck drivers. Fast Forward
knows that hours of service regulations were created to help prevent driver fatigue. (See
Depo. of Don Spacy, p. 8). In addition, Fast Forward monitored all of their drivers by means
of an electronic monitoring system contained in the on-board XATA system which tracks the
number of hours and minutes a vehicle is driven by each company truck driver. Fast
Forward’s drivers, including Kneivel, were given updated training with respect to hours of
service regulations when the new hours of service requirements were amended under the
FMCSR in January, 2004. Fast Forward did take affirmative steps to address driver fatigue,
as follows:
1. Demanding adherence to the hours of service regulations or the Federal
Motor Carriers Safety Regulations;
2. Managing the hours of service for commercial vehicle drivers;
3. Implementing an on-board computer system (XATA system) to monitor driver
hours;
4. Educating drivers with respect to being well-rested and keeping physically fit
during the driver orientation process via driver trainers and the driver trainer
checklist;
5. Requiring professional motor vehicle drivers to log their hours of service both
driving and on-duty not driving each and every day throughout the year.
Professional drivers are expected to know how to deal with the issue of driver
7
fatigue, since it is addressed on a daily basis under the hours of service
regulations; and
6. Implementing a five-day work week for interstate drivers.
In 2009, Fast Forward considered installing Drive-Cam in its interstate vehicles. However,
the plan was tabled due to cost considerations. According to intercompany emails, there
was a commitment to install Drive-Cam beginning in 2011. (See generally Depo. of Don
Spacy, pp. 66-71).
In December, 2009, Kneivel was given a level one discipline for exceeding his hours of
service. The discipline included a written warning and an on-line course regarding driver
fatigue and the relationship between driver fatigue and accidents.
Fast Forward’s driver managers at the Portland, Oregon, distribution center had daily
interactions by cell phone with Kneival when he was working. (Depo. of Don Spacy, p. 35,
lines 8-13). Spacy explained that Kneivel was making improvement based upon the daily
management and counseling extended to him by the driver managers at the distribution
center. Spacy testified as follows:
Q: Why wasn't he taken off the road and suspended in December?
A: Because it was only his fourth hours of service violation. We were checking
his hours regularly and he was conforming to the federal regulations.
Q: How many times did he violate D.O.T. regs for hours of service which you
said were very important, and not be at least suspended?
A: The violations that he had were violation of a ten hour-what you want to call
the ten hour or the eleven hour rule. And those violations were because he
was 10 to 14 minutes minutes early. And if he would have been on any other
system besides XATA, he would have been on paper log, you never would
have seen it anyways because the paper log is in fifteen minute increments.
Q: But he was still in violation, wasn't he?
A: He was still in violation.
Q: And you are supposed to address those violations, aren't you?
8
A: Yes, sir, I am. We did give him one written warning. And required an on-line
class. But he was showing up-he was showing improvement. We was talking
to him daily about-we was talking to him daily about his hours of service. And
he was showing improvement.
Q: So you were aware on a daily basis that he was subject to an out-of-service
order if he was stopped?
A: Not every day, he wasn't.
Q: Well, the days that you talked to him about his hours of service?
A: The day-when we would get the trip back and Patricia would notate or find out
that he didn't take his ten hours off in between shifts, she would call him and
talk to him about, hey, you clocked in four minutes early.
Q: So you knew he was violating hours of service whenever you talked to him?
A: Oh, yes, sir. And that's the reason we started calling him on a daily basis.
Q: And you didn't give him any type of counseling did you?
A: I did on December 5, because he had four violations.
Q: And from December 6 through July 5, 2010?
A: His violations came down. It showed that, with our day to day communication
with Rocky, he was getting better.
Q: Were you aware he had sleep apnea?
A: At one time I think I was. I must have been because it shows we discussed it
during his job application.
Q: Did you ever discuss it again with him?
A: No. He gave us a doctor’s note. And he passed his D.O.T. physicals. That’s
what Federal law requires.
Q: Do you agree that Federal law is the bare minimum?
OBJECTION(witness instructed not to answer) Court ordered the witness to answer.
A: I think Federal law is a very high standard. The rules are called FMCSR
(Federal Motor Carrier Safety Regulations). Intelligent people spent a lot of
time getting those rules right and the rules are there to ensure maximum
safety. So, no, I would not describe federal law as “the bare minimum.”
Q: Why didn’t you ask him about his CPAP machine?
9
A: I assumed that was something between him and his doctors.
Q: Did you know he was working night and day on a crab vessel for 9 straight
days approximately one week before my client was killed?
A: No.
Q: Why not?
A: Didn’t ask.
Q: You didn’t ask him what he did on his vacation?
A: Nope.
Q: Were you aware he was not using his CPAP machine while he was crabbing
for nine days?
A: No I wasn’t.
Q: Don’t you want to know stuff like that before you give drivers the keys to an
18-wheeler?
A: We expect our drivers to come to work well-rested and alert. We discuss that
all the time in safety meetings.
Q: Why didn’t you know he had an eight-hour commute every time he showed
up for work?
A: I can’t answer that. I guess, I didn’t ask.
Q: Did you ever walk outside to the employee parking lot and take a look at his
British Columbia license plate and then ask him why his car was licensed in
another country?
A: No I didn’t.
Q: Wouldn’t that be good to know about a driver who had sleep apnea and four
hours of service violations?
A: Maybe.
(Depo. of Don Spacy, pp. 34-36).
The Plaintiff has filed a Second Amended Complaint alleging reckless conduct and seeking
punitive damages totaling $5,000,000 on the part of Fast Forward with respect to enforcing
hours of service regulations for Rocky Kneivel. The Second Amended Complaint asserts
that Fast Forward is liable for negligent supervision, negligent retention and had a cavalier
attitude with respect to the enforcement of hours of service regulation spelled out by the
Federal Motor Carriers Safety Regulations. The evidence shows that the company was
10
addressing this driver and his hours of service. The evidence shows Kneivel was improving
in this area.
Fast Forward disputes that it acted recklessly or maliciously or willfully and wantonly. Since
Knievel was off-work twelve (12) out of seventeen (17) days preceding this accident, there
is no relevance between the technical of hours of service violations by this truck driver and
the accident of July 5, 2010. It is well settled that an allegation of negligence per se must
include an element of proximate cause between the alleged statutory violation (or violation
of regulation) and the accident at issue. Fast Forward maintains that Plaintiff cannot prove
proximate cause or cause in fact relative to Knievel’s previous minor hours of service
violations and this accident.
In the Complaints, the Plaintiff asserts Kneivel was not properly managed under the
company's progressive discipline policy. Fast Forward defends its discipline regarding the
hours of service issue.
While working for Fast Forward, Knievel was written up for backing into and damaging a
sign of a Pilot's Station in Cookeville, Tennessee. He was issued a reprimand for
insubordinate conduct based upon his refusal to drive during a snowfall in Montana. Kneivel
was also reprimanded for improper use of the company's cell phone when 250 texts were
discovered between him and his girlfriend. Mr. Bowers was reprimanded by the company
for failing to disclose a speeding ticket, which he had been issued during the time he
worked for Minute Men. As noted above, Mr. Bowers was reprimanded for his hours of
service violations on December 5, 2009. Fast Forward disputes plaintiff’s assertions that it
did not adequately supervise and discipline Knievel.
Fast Forward maintains that it complied with the dictates of the Federal Motor Carrier Safety
Regulations by insuring that Knievel possessed a valid CDL, was trained under the dictates
of the Federal Motor Carriers Safety Regulations, possessed a valid D.O.T. physical, was
instructed in the hours of service regulations, and reprimanded and counseled when he
violated them.
11
Plaintiff maintains that Fast Forward was negligent for failing to reasonably and regularly
inquire about Kneivel’s sleep apnea, his use or non-use of his CPAP machine, his lengthy
commute to work and, on the day of the accident, failed to adequately observe Kneivel for
signs of fatigue before handing him the keys to the tractor-trailer.
Witnesses at the Portland terminal testified that Kneivel had bags under his eyes, his eyes
appeared “raccoon-like,” his hair was “messed up,” his clothes were disheveled, his breath
stunk, and he had an “odd grin” on July 5, 2010.
Fast Forward has retained a “human factors” expert who will testify that it is very difficult to
detect fatigue during short interactions.
Fast Forward can show that it monitored Kneivel daily by means of an electronic on-board
computer information system which tracked movements of his vehicle, and his work day, to
the minute. By starting to work several minutes early on multiple occasions during 2009,
Kneivel placed himself in technical violation of the "ten hour off' rule.
Plaintiffs point out that Fast Forward chose not to install Drive-Cam in Kneivel’s vehicle
before the fatal accident. Plaintiffs have retained a CMV safety expert who will testify that
had Drive-Cam been installed, Fast Forward would have noticed signs of fatigue about
Knievel on the video feed during the five and one half hours he drove from the Portland
terminal to the accident location. Fast Forward’s human factors expert will dispute this.
There were no drugs or alcohol involved in this accident. While Kneivel crossed the white
line onto the right shoulder – he did so by only 18-24 inches. However, this was enough to
knock Manson’s Toyota off the jack and cause the fatal injuries. There is no evidence
Knievel was speeding at the time of this accident.
Fast Forward has stated in a press release that this was an unfortunate and tragic highway
accident which was unavoidable due to a combination of roadway design factors, lack of
adequate warning devices, and vehicle placement on the part of Manson.
12
THIS ACCIDENT MAY HAVE BEEN UNFORESEEABLE DUE TO A PREVIOUSLY UNDIAGNOSED MEDICAL CONDITION
In addition to what is set forth above, Fast Forward has retained a sleep apnea/fatigue
expert who will opine that this accident was probably caused by a sudden, unforeseeable
physical and mental incapacitation of Kneivel.
Under federal regulations Knievel was required to have a valid D.O.T. physical/medical
examination every two years. Respiratory conditions, including sleep apnea, is listed on the
D.O.T. physical as an area of examination by the physician.
After this accident, Kneivel was referred for a polysomnogram study (sleep study) on July 5,
2011. Dr. Ron McDonald reviewed the results of the sleep study and prepared a report. Dr.
McDonald’s report indicated that Knievel gave a history consistent with underlying sleep
pathology. The patient's respiratory summary indicated the patient had oxygen saturation as
low as 70%; in addition, during 18% of the sleep time the saturation level was less than
89%. Dr. McDonald's impression of the test was "significant hypopnea of obstructive type".
Kneivel was recommended to regularly use his CPAP (continuous positive airway pressure)
device during sleep.
Mitch Bowers was seen and examined by Dr. Varmint, director of Washington Forensic
Psychiatry, on December 13-19, 2011. Dr. Varmint conducted an extensive forensic
psychiatric evaluation of Kneivel. Dr. Varmint referred Kneivel for evaluation by James S.
Kook, Ph.D., a neuropsychologist who also collaborated with Mary Sandman, Ph.D., a
psychologist and expert on sleep disorders.
Dr. Varmint is expected to render the following opinions within a reasonable degree of
medical certainty:
1. At the time of the accident Kneivel had a serious psychiatric and medical
condition, "breathing-related sleep disorder." This breathing-related sleep
disorder is defined by The Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (DSM-IV) as "sleep disruption, leading to excessive
sleepiness or insomnia that is judged to be due to a sleep-related breathing
13
condition (e.g., obstructive or central sleep apnea syndrome or central
alveolar hypoventilation syndrome).
2. One of the primary symptoms of breathing-related sleep disorder is daytime
drowsiness and frequent, brief episodes of daytime sleeping. Excessive
daytime sleepiness may be manifest in several ways: feelings of drowsiness;
a tendency towards short sleep latency, or falling asleep very quickly;
repeated short periods of sleep ("microsleep" that lasts from several seconds
to several minutes). The person may not be aware that microsleep has
occurred. While in a microsleep, a person fails to respond to outside
information. Microsleeps are most likely to occur at certain times of the day,
such as pre-dawn hours and mid-afternoon hours when the body is
"programmed" to sleep.
3. On the day of the accident, Knievel was experiencing brief episodes of
daytime sleeping.
4. On the day of the accident, Kneivel was not aware he was falling asleep while
driving his tractor-trailer unit on Interstate 84.
Dr. Sandman will testify as an expert witness for the Defendants in this action. Dr. Sandman
holds the position of Administrative Team Leader, Systems and Cognitive Neuroscience
Cluster at the National Institute of Neurological Disorders and Stroke, National Institutes of
Health at Portland State University. Dr. Sandman holds a Ph.D. in developmental and
physiological psychology from Oregon State University.
Dr. Sandman was asked to review extensive information from the Oregon State Police
investigation into this accident and the criminal charges pending against Knievel. Dr.
Sandman has also reviewed witness statements and deposition testimony from accident
eyewitnesses, and the transcript of testimony from the accident reconstructionist from the
Oregon State Police. Dr. Sandman also reviewed the medical records of Knievel, the
neuropsychological testing by Dr. Varmint, a head MRI scan report, the report of EEG and
the sleep testing Knievel had in December, 2011.
Dr. Sandman’ review of this evidence and documentation led her to summarize the
following facts which she believes are relevant to her opinions in this case:
14
FACTS 1. Ms. Karen Whisky, another motorist, observed Knievel to have been driving in
an erratic and inattentive manner approximately two hours before the crash.
2. The State Police Reconstructionist's Report concluded that, immediately
before striking the Manson Toyota, Knievel’s vehicle ran off the right side of
the roadway. Knievels' vehicle struck the Manson Toyota during Knievel’s
attempt to steer the vehicle back into the right hand travel lane.
3. The first signs of braking by Knievel were noted 100 feet beyond the point of
impact with the Manson Toyota.
4. On a police videotape (filmed inside a police vehicle while Knievel was being
driven to jail three hours after the accident) Knievel can be seen to fall asleep
repeatedly while riding in the back seat of the police vehicle.
5. In December, 2011, Knievel underwent a nighttime sleep study and was
diagnosed with obstructive sleep apnea and prescribed treatment with a
nasal continuous positive airway pressure device (CPAP).
6. During a daytime EEG procedure performed on February 1, 2012, Mr. Knievel
was documented to have fallen asleep quickly and repeatedly.
Dr. Sandman has arrived at the following opinions which are expressed in her
report dated March 1, 2012.
OPINIONS 1. At the time of the collision, Knievel was excessively sleepy due to his medical
condition and due to sleep deprivation.
2. Fatigue due to sleep apnea and long work periods adversely affected the
attention and driving abilities of Knievel.
3. Knievel was unaware of the presence of his sleep apnea and the impairment
to his driving ability caused by this sleep disorder.
Dr. Sandman’s basis for her opinion that Knievel was unaware of the presence of sleep
apnea and the impairment to his driving ability is based upon the following items:
15
a. Sleep apnea is a medical condition characterized by repetitive airway
obstruction during sleep. This condition develops gradually over months and
years, leading to poor sleep and excessive sleepiness.
b. Excessive sleepiness leads to progressive loss in the ability to sustain
attention and perform tasks such as driving. Because these effects develop
slowly, they are often not recognized by the patient.
c. Knievel underwent evaluation for sleep apnea after this fatal accident and at
the direction of his civil defense attorney. Being prompted by others to seek
medical evaluation is a frequent feature in the medical histories of patients
with sleep apnea.
d. The adverse effects of sleep apnea on attention and performance are
biologically based and cannot be reversed by attempts to increase motivation
to stay awake, remain alert, and perform well. Commonly tried counter
measures such as opening a window and playing loud music are ineffective.
Fast Forward will argue that because Knievel suffered from a medical condition the severity
of which it/he was unaware, and because the medical condition in this instance caused
Knievel to suffer mental and physical incapacitation, Fast Forward and Knievel may not be
held legally responsible for causing this accident under Oregon law.
In a recent case, Bullitt v. Gross, the Oregon Supreme Court established the rule in Oregon
that deals with loss of consciousness or physical incapacity experienced by the operator of
a motor vehicle while driving. In Bullitt, the Court adopted the rule that when a sudden loss
of consciousness or physical capacity, not reasonably foreseeable, is experienced while
driving, a defendant has a defense to negligence.
For this defense to apply, a defendant must establish that the sudden loss of consciousness
or physical capacity to control the vehicle was not reasonably foreseeable to a prudent
person. To determine whether the loss of capacity or consciousness is foreseeable, the
Court listed the following non-exclusive set of factors which should be taken into
consideration: (1) the extent of the driver's awareness or knowledge of the condition that
caused the sudden incapacity; (2) whether the driver had sought medical advice or was
under a physician's care for the condition when the accident occurred; (3) whether the
16
driver had been prescribed, and had taken, medication for the condition; (4) whether a
sudden incapacity had previously occurred when driving; (5) the number, frequency, extent
and duration of incapacitating episodes prior to the accident while driving and otherwise; (6)
the temporal relationship of the prior incapacitated episodes to the accident; (7) a
physician's guidance or advice regarding driving to the driver, if any; and (8) medical
opinions regarding the nature of the driver's condition, adherence to treatment,
foreseeability of the incapacitation, and potential advance warnings which the driver would
have experienced immediately prior to the accident.
At Fast Forward, Knievel was punctual and possessed an excellent attendance record. He
rarely missed a day of work. From all outward appearances, Knievel was healthy. He was
not the type of employee who appeared to suffer from any apparent illness.
According to Fast Forward, since neither it nor Kneivel were aware that Kneivel suffered
from this medical condition which could and apparently did cause him to become
incapacitated while driving his commercial motor vehicle, there is a chance that the jury may
conclude that this accident was not reasonably foreseeable and was not the fault of it or
Knievel. Therefore, legal liability for this accident may not attach to the Defendants.
STANDARD IN THE INDUSTRY FOR SLEEP APNEA TESTING
The Plaintiff will use its safety and human factors experts to argue that Fast Forward and
Knievel should have taken proactive steps to test Knievel and other drivers for sleep apnea.
Fast Forward counters that such testing is not required under the Federal Motor Carriers
Safety Regulations. Plaintiff points out that sleep testing is apparently required for pilots
who operate in the airline industry. Sleep disorders, loud snoring and daytime sleepiness
are set forth under the checklist for the long form D.O.T. physical/medical examination. As
noted above, Knievel disclosed the fact he had sleep apnea and used a CPAP machine,
which apparently motivated him to check the box for "loud snoring", etc. during his D.O.T.
physical examination in 2005. This box was not checked on any subsequent medical
evaluations. There is no mention of sleep apnea in any of Kneivel’s performance reviews
after his initial application.
17
None of the Safety Materials produced by Fast Forward deal with sleep apnea as it relates
to fatigue and driver safety.
18
CAUSE NO. 13-03-11939-DCVAJA ESTATE OF CHUCK MANSON § IN THE DISTRICT COURT § § VS. § 365th JUDICIAL DISTRICT § FAST FORWARD FREIGHT INC § ROCKY KNIEVAL § BAKER COUNTY, OREGON
JURY CHARGE LADIES AND GENTLEMEN OF THE JURY: This case is submitted to you by asking questions about the facts, which you must
decide from the evidence you have heard in this trial. You are the sole judges of the
credibility of the witnesses and the weight to be given their testimony, but in matters of law,
you must be governed by the instructions in this charge. In discharging your responsibility
on this jury, you will observe all the instructions which have previously been given you. I
shall now give you additional instructions which you should carefully and strictly follow
during your deliberations.
1. Do not let bias, prejudice or sympathy play any part in your deliberations.
2. In arriving at your answers, consider only the evidence introduced here under
oath and such exhibits, if any, as have been introduced for your consideration under
the rulings of the Court, that is, what you have seen and heard in this courtroom,
together with the law as given you by the court. In your deliberations, you will not
consider or discuss anything that is not represented by the evidence in this case.
3. Since every answer that is required by the charge is important, no juror
should state or consider that any required answer is not important.
4. You must not decide who you think should win, and then try to answer the
questions accordingly. Simply answer the questions, and do not discuss nor concern
yourselves with the effect of your answers.
19
5. You will not decide the answer to a question by lot or by drawing straws, or by
any other method of chance. Do not return a quotient verdict. A quotient verdict
means that the jurors agree to abide by the result to be reached by adding together
each juror’s figures and dividing by the number of jurors to get an average. Do not
do any trading on your answers; that is, one juror should not agree to answer a
certain question one way if others will agree to answer another question another
way.
6. Unless otherwise instructed, you may answer a question upon the vote of ten
or more jurors. If you answer more than one question upon the vote of ten or more
jurors, the same group of at least ten of you must agree upon the answers to each of
those questions.
These instructions are given you because your conduct is subject to review the
same as that of the witnesses, parties, attorneys and the judge. If it should be found that
you have disregarded any of these instructions, it will be jury misconduct and it may require
another trial by another jury; then all of our time will have been wasted.
The Presiding Juror or any other who observes a violation of the court’s instructions
shall immediately warn the one who is violating the same and caution the juror not to do it
again.
When words are used in this charge in a sense that varies from the meaning
commonly understood, you are given a proper legal definition which you are bound to
accept in place of any other meaning.
Answer “Yes” or “No” to all questions unless otherwise instructed. A “Yes” answer
must be based on a preponderance of the evidence unless you are otherwise instructed. If
you do not find that a preponderance of the evidence supports a “Yes” answer, then answer
“No.” The term “preponderance of the evidence” means the greater weight of credible
20
evidence admitted in this case. A preponderance of the evidence is not measured by the
number of witnesses or by the number of documents admitted in evidence. For a fact to be
proved by the preponderance of the evidence, you must find that the fact is more likely true
than not true. Whenever a question requires an answer other than “Yes” or “No,” your
answer must be based on a preponderance of the evidence unless you are otherwise
instructed.
A fact may be established by direct evidence or by circumstantial evidence or both.
A fact is established by direct evidence when proved by documentary evidence or by
witnesses who saw the act done or heard the words spoken. A fact is established by
circumstantial evidence when it may be fairly and reasonably inferred from other facts
proved.
[IF APPLICABLE] During trial it was permissible for you to take notes. You may carry
those notes to the jury room for your personal use during deliberation on the court’s charge.
You may not share these notes with other jurors. A juror may not rely on the notes of
another juror. If you disagree about the evidence, the presiding juror may apply to the court
and have the court reporter’s notes read to the jury.
21
PROPOSED QUESTIONS QUESTION NO. 1: Did the negligence, if any, of the persons named below proximately cause the occurrence in question? “Occurrence” means the events which took place at Mile marker 178 on IH – 84 in Baker County, Oregon at or around 1:30 p.m. on July 5, 2010. "Negligence," when used with respect to the conduct of CHUCK MANSON, FAST FORWARD FREIGHT INC. and ROCKY KNIEVEL means a failure to use ordinary care; that is, failing to do that which a person or company of ordinary prudence would have done under the same or similar circumstances, or doing that which a person or company of ordinary prudence would not have done under the same or similar circumstances. "Ordinary care," when used with respect to the conduct of CHUCK MANSON, FAST FORWARD FREIGHT INC. and ROCKY KNIEVEL means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. “Proximate cause” means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event. Source: OPJC 2.1, 2.4, 4.1 ANSWER “YES” OR “NO.” FAST FORWARD FREIGHT, INC. ROCKY KNIEVEL CHUCK MANSON _________________
22
If you answered “Yes” to Question 1 for more than one of those named below, then answer the following question. Otherwise, do not answer the following question. Assign percentages of responsibility only to those you found caused or contributed to cause the injury. The percentages you find must total 100 percent. The percentages must be expressed in whole numbers. The percentage of responsibility attributable to any one is not necessarily measured by the number of acts or omissions found. The percentage attributable to any one need not be the same percentage attributed to that one in answering another question. QUESTION NO. 2: For each party found by you to have caused the occurrence in question, find the percentage caused by: FAST FORWARD FREIGHT, INC. % ROCKY KNIEVEL % CHUCK MANSON % Total: 100 % Source: OPJC 4.3 QUESTION NO. 3: What sum of money would have fairly and reasonably compensated CHUCK MANSON for — a. Funeral and burial expenses “Funeral and burial expenses” means the reasonable amount of expenses for funeral and burial for CHUCK MANSON reasonably suitable to his station in life. Answer in dollars and cents for damages, if any. Answer: _______________
23
QUESTION NO. 4: What sum of money, if paid now in cash, would fairly and reasonably compensate Diana Laura Manson for her damages, if any, resulting from the death of CHUCK MANSON? Consider the elements of damages listed below and none other. Consider each element separately. In answering this question, you shall not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any amount of damages you find. Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts, if any, in your answers because of the negligence, if any, of CHUCK MANSON You are instructed that any monetary recovery for ____ is subject to federal income taxes. Any recovery for ___ is not subject to federal income taxes. a. Pecuniary loss “Pecuniary loss” means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value that Diana Laura Manson, in reasonable probability, would have received from Martin Chavez Manson had he lived. Answer, with respect to this element, in dollars and cents for damages, if any, that— were sustained in the past by Diana Laura Manson: Answer: __________________ in reasonable probability will be sustained in the future by Diana Laura Manson: Answer: __________________ b. Loss of companionship and society “Loss of companionship and society” means the loss of the positive benefits flowing from the love, comfort, companionship, and society that Diana Laura Manson, in reasonable probability, would have received from CHUCK MANSON, had he lived.
24
c. Mental anguish “Mental anguish” means the emotional pain, torment, and suffering experienced by Diana Laura Manson because of the death of CHUCK MANSON. In determining damages for elements b and c, you may consider the relationship between Diana Laura Manson and, CHUCK MANSON their living arrangements, any extended absences from one another, the harmony of their family relations, and their common interests and activities. You are reminded that elements b and c, like the other elements of damages, are separate, and, in awarding damages for one element, you shall not include damages for the other. Answer, with respect to elements b and c listed above, in dollars and cents for damages, if any, that— were sustained in the past by Diana Laura Manson: Answer: __________________ in reasonable probability will be sustained in the future by Diana Laura Manson: Answer: __________________ d. Loss of inheritance “Loss of inheritance” means the loss of the present value of the assets that the deceased, in reasonable probability, would have added to the estate and left at natural death to Diana Laura Manson. Answer in dollars and cents for damages, if any. Answer: _________________
25
QUESTION NO. 5: What sum of money, if paid now in cash, would fairly and reasonably compensate Jonathan Manson for his damages, if any, resulting from the death of CHUCK MANSON? Consider the elements of damages listed below and none other. Consider each element separately. In answering this question, you shall not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Do not include interest on any amount of damages you find. Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts, if any, in your answers because of the negligence, if any, of CHUCK MANSON You are instructed that any monetary recovery for ____ is subject to federal income taxes. Any recovery for ___ is not subject to federal income taxes. a. Pecuniary loss. “Pecuniary loss” means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value that Jonathan Manson, in reasonable probability, would have received from CHUCK MANSON had he lived. Answer, with respect to this element, in dollars and cents for damages, if any, that— were sustained in the past by CHUCK MANSON. Answer: __________________ in reasonable probability will be sustained in the future by Jonathan Manson: Answer: __________________ b. Loss of companionship and society. “Loss of companionship and society” means the loss of the positive benefits flowing from the love, comfort, companionship, and society that Jonathan Manson, in reasonable probability, would have received from CHUCK MANSON, had he lived. c. Mental anguish. “Mental anguish” means the emotional pain, torment, and suffering experienced by Jonathan Manson because of the death of CHUCK MANSON In determining damages for elements b and c, you may consider the relationship between Jonathan Manson and CHUCK MANSON, their living arrangements, any extended absences from one another, the harmony of their family relations, and their common interests and activities. You are reminded that elements b and c, like the other elements of
26
damages, are separate, and, in awarding damages for one element, you shall not include damages for the other. Answer, with respect to elements b and c listed above, in dollars and cents for damages, if any, that— were sustained in the past by Jonathan Manson: Answer: __________________ in reasonable probability will be sustained in the future by Jonathan Manson: Answer: __________________ d. Loss of inheritance. “Loss of inheritance” means the loss of the present value of the assets that the deceased, in reasonable probability, would have added to the estate and left at natural death to Jonathan Manson. Answer in dollars and cents for damages, if any. Answer: _________________ When you have answered all of the foregoing special issues which you are required to answer under the instructions of the judge, you will advise the bailiff at the door of the jury room that you have reached a verdict, and then you will return into Court with your verdict.
27
JUDGE
CERTIFICATE We the Jury, have answered the above and foregoing special issues as herein indicated, and herewith return same into Court as our Verdict. (To be signed by the presiding juror if unanimous.) PRESIDING JUROR (To be signed by those rendering the Verdict if not unanimous.)
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ALFA INTERNATIONAL
2015 TRANSPORTATION SEMINAR April 29 – May 1, 2015 – The Hotel Del Coronado – Coronado, California
TRAUMATIC BRAIN INJURY CLAIMS: USE OF NEUROPSYCHOLOGY EXPERT TO EVALUATE IF REAL OR
BOGUS
Craig Cousins Moderator
LEAKE & ANDERSSON LLP New Orleans, Louisiana
Clark Aspy NAMAN HOWELL SMITH & LEE, PLLC
Austin, Texas [email protected]
Cam Beck
MORRIS & MORRIS, P.C. Richmond, Virginia
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TRAUMATIC BRAIN INJURY CLAIMS: USE OF NEUROPSYCHOLOGY EXPERT
TO EVALUATE REAL OR BOGUS CLAIMS
Cases involving severe to moderate traumatic brain injuries are generally easy to identify soon after the accident. The company driver may report that the claimant was unconscious or seriously injured. In such cases the claimant will be taken from the scene of the accident by ambulance and the EMS attendant, and/or emergency room physicians will document problems suggestive of brain injury (such as loss of consciousness, lack of responsiveness and low Glasgow Coma). The company may even call for an emergency response team to go to the scene of the accident. In these cases, the company or insurer knows they are probably dealing with a brain injury case and can prepare their defense of the claim accordingly.
Cases involving mild traumatic brain injuries are harder for companies and insurers to identify. The company driver may report this as a minor accident. The driver may have spoken to the claimant at the scene of the accident and reported back to the company or the insurer that the claimant did not appear to be hurt. Based on this initial report, the trucking company or insurer may or may not conduct an emergency response to gather more information at the scene of the accident. Despite the lack of early indicators, companies and insurers sometimes find themselves facing a mild traumatic brain injury case once the lawsuit is filed a year after the accident.
This panel will explore ways to identify mild traumatic brain injury cases soon after the accident. Further, the panel will identify and discuss some of the available diagnostic testing and discovery options, including the use of the neuropsychology expert, to try to distinguish the true mild traumatic brain from the bogus claim.
How are mild TBI’s defined
The attached chart shows categories of mild TBI’s. A mild TBI has been called the invisible injury because it can be diagnosed when the claimant may not have even suffered direct trauma to his head. The initial treating doctors may not even consider whether the claimant suffered a concussion. As such, cognitive assessments or diagnostic testing, if even performed, may be reported as normal. Yet, the claimant still complains of headaches, or other issues such as memory problems, confusion, forgetfulness or dizziness since the accident.
How to identify the mild TBI claim before the lawsuit
Studies show that 95% of mild traumatic brain injuries resolve within 3 months.
Delayed onset of symptoms does not happen with a true traumatic brain injury. In true mild traumatic brain injury cases, chemicals affecting the brain are released immediately after the injury.
The scenario that we are exploring is when the company driver reports the accident as minor with no identifiable injury to the claimant. The police report does not list any injuries at the scene.
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The first contact with the claimant is usually through a phone call to request an interview. What should the company representative ask the plaintiff in the interview to look for as an indicator of a possible mild TBI claim in the future?
• Mechanism of injury • Any striking of the head • Any loss of consciousness or altered state • If so, how long • We you interviewed by EMS • Were you taken to the hospital emergency room • Was any testing done on your head • What symptoms did you have • What symptoms are you currently having • Are symptoms improving or worsening • Does the Claimant have a history of any head trauma or TBI
Positive answers to any of these questions by the claimant should indicate to the company representative that further steps need to be taken to protect against the claimant later claiming a mild TBI.
The next step is gathering medical records. Typically, the company representative starts to receive medical records from claimant’s counsel or requests records through authorizations provided by the claimant.
In addition to the medical providers identified by the claimant, the company representative should request EMS and ER records as they provide the first information on any reporting of head trauma, loss of consciousness or complaints. They have information on functionality of the claimant at the scene and shortly thereafter. The adjuster should conduct an initial social media search to preserve any information and photos that may later be deleted.
As the records come in the adjusters should look for:
• Direct trauma to Claimant’s head, including impact with the windshield • Brief loss of consciousness or altered state • Any reports of confusion at the scene • Any records containing a Glasgow Coma Score registered at the scene and/or
hospital • Diagnosis of concussion or PTSD • Complaints of depression, memory problems, headaches, dizziness • Still reporting symptoms of headaches, memory or concentration issues, are
symptoms getting worse. • Claimant’s reporting of any prior history of mental or emotional difficulties • Claimant’s medical history, including stroke, diabetes, migraines, etc…
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What to do when indicators of a possible mild TBI claim are found
Retain counsel and order surveillance if the claimant and counsel are not providing information and not cooperating – may be hiding something.
Hire experts - benefits:
• You get your choice of the best experts prior to claimant’s counsel • Experts can review medicals to assist in rooting out if TBI claim being set up • Experts can guide you in when to conduct IMEs by a neuropsychologist and
medical doctor.
What to do when the lawsuit is filed
Now, lawsuit is filed, what to do next:
Take Plaintiff’s Videotaped Deposition as soon as possible.
Depose the plaintiff quickly to minimize plaintiff’s opportunity to review records and pick up terminology. Plaintiffs fabricating claims often learn more as the case progresses and can mimic symptoms their doctors identify as “typical” of brain injuries. By documenting their status early, it is less likely they have perfected their craft and you have a “baseline” to compare later conduct. In addition, because brain injuries do not get worse with time, documenting plaintiff’s status as early as possible either serves as a “floor” for their presentation, or provides a useful point of comparison if they try to increase their symptoms as the case progresses. For these reasons, it is highly recommended that the plaintiff’s deposition be videotaped. Other advantages of video-taping the plaintiff’s deposition are:
• The video will preserve Plaintiff’s current appearance and testimony in case he attempts to exaggerate his injuries at trial
• Your client’s decision makers will have an opportunity to view and assess the Plaintiff’s appearance, testimony and cognitive condition prior to mediation and trial
• The video can be used for a focus group or mock trial
Document requests are now available. More records are now available, consult with expert on records to assist in preparation for deposition of plaintiff and medical providers and opposing Neuropsychologist, such as:
• Underlying documentation and test results for neuropsychological testing • Answers to individual questions on MMPI and personality testing • School records – transcripts and any documentation of performance testing • Employment testing and attendance records
Receipt of the Plaintiff’s Neuropsychology Report – What to look for:
• Validity Testing (to check for magnification if symptoms) • Embedded test, i.e., memory etc.
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Review with expert the Neuropsychology report from plaintiff’s expert
• What testing to look for • Obtain a preview of your expert’s opinions • Do we need a neuropsychology IME? • Do we need to redo the testing? Testing may confirm plaintiff’s case • Make sure to obtain the underlying data from the testing • Should and can we do retesting on the plaintiff? 18 mo. – 2years later?
Declines should not occur. If declines are found during the retesting then other factors are in play, i.e. dementia in older claimants
• Can testing show a road map of the injury? Does the injury claim need to correlate to a certain part of the brain being injured?
Issues to consider in IME doctor testing of plaintiff:
• practice effect • taking tests for the second time • what tests and when given • give alternate tests
Exacerbating factors to TBI claims to look for in the records:
• substance abuse • concurrent health problems • treatable health issues • preexisting brain injury • preexisting psychological or psychiatric difficulties • preexisting learning difficulties • Does claimant fall into a known risk group that makes recovery more
difficult, such groups include: o Individuals over 65 o Victims of prior or subsequent head trauma
What testing other than neuropsychological testing is relevant?
• Is baseline testing for athletes available?
New technology and tests are being introduced. The battle ground in many cases is the accepted testing versus the new technologies.
• Diffusion Tensor Imaging • Diffusion Kurtosis Imaging • Quantitative MRI • Functional MRI • Eye Tracking Synchronization Devise • Tesla MRI • PET/SPECT Scans
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If testing not available, how do we get baseline of plaintiff’s functionality before the accident? School records, employment records, disability records mental health records. Depose, teachers, co-workers, boss, family and friends.
Retain a private investigator specializing in social media investigation. Social media searches should be performed as soon as possible after the injury occurs. Then, the investigator should conduct regular follow up investigations. Once discovery commences, the defendant should issue a request for production for electronic files of Plaintiff’s social media accounts. In certain situations, defense counsel may want to seek production of the Claimants hard drive(s). .
In cases with no objective findings, look to other reasons for subjective complaints. For example, complaints of lack of concentration are found higher in college student populations. Therefore, the complaints may be caused by factors other than a brain injury.
Consider other experts than just a neuropsychologist and medical doctor on TBI claims.
• You will frequently need a neuro-radiologist to review diagnostic tests that Plaintiff claims prove a TBI, or this expert may be able to explain why objective testing does not show any physical injuries or abnormalities that support Plaintiff’s complaints.
• Life care planners – consult first. Then decide if you want to hire to do report. Problem is, you are often suggesting a number that may be significant even if significantly less than plaintiff’s expert. Do you want to just defend against their expert?
• You may also need a vocational rehabilitation expert. Similar to a life care expert, this expert may serve to legitimate a portion of the Plaintiff’s damages.
Procedural battle grounds with plaintiff counsel
• Trends toward two full days of evaluation: Plaintiff counsel objects (see how long their expert tested the plaintiff. Courts have generally allowed this if plaintiff’s expert tested for 2 days.
• Plaintiff bar is requesting to video tape the neuropsychology IME. Court rulings hinge on whether the plaintiff’s expert video-taped their testing.
• Plaintiff bar is asking to allow a family member to be present during the testing. Courts have not allowed if the presence of the third party may affect the reliability of the testing. May allow them to be present for interview portion.
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ALFA INTERNATIONAL 2015 TRANSPORTATION SEMINAR
April 29 – May 1, 2015 – The Hotel Del Coronado – Coronado, California
ONE WAY OR THE OTHER, WE ARE WATCHING YOU: SUCCESSES AND PITFALLS OF SURVEILLANCE AND
SOCIAL MEDIA INVESTIGATIONS
Kurt Schmid Moderator
BROWN & JAMES St. Louis, Missouri [email protected]
Jason Goodnight
FRANDEN, FARRIS, QUILLIN, GOODNIGHT & ROBERTS Tulsa, Oklahoma
Paul Robinson MEYER, DARRAGH, BUCKLER, BEBENEK & ECK, P.L.LC.
Pittsburgh, Pennsylvania [email protected]
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Authenticating Social-Networking Evidence at Trial
Kurt A. Schmid
BROWN & JAMES P.C. 800 Market Street, Suite 1100
St. Louis, Missouri 63101 Phone: (314) 421-3400
Fax: (314) 421-3128 [email protected]
In order for any item to be admissible into evidence at trial, there needs to be some
attempt by the proponent of the evidence to prove that the item is what the proponent says it is,
i.e., that the item is authentic. Most courts allow a photograph into evidence only after there is
some testimony from a witness that the photograph fairly and accurately shows what the
proponent of the photograph wants it to show. The jury can choose to believe or disbelieve that
testimony, but that testimony must exist for the jury to consider the photograph at all.
Evidence from social networking sites, like Facebook and Twitter, are fraught with
authentication problems. First, this evidence is digital. How do we prove that this piece of paper
we are showing the jury is a print-out of what actually appeared digitally on the plaintiff’s
Facebook page when we say it did? Second, social networking sites can be accessed from
anywhere and by anyone. Just because something is on someone’s Facebook page does not
mean the page’s “owner” posted it, right? Any hacker with an axe to grind or just some free time
can ruin a Facebook feed. So, how can we expect that a court is going to admit into evidence a
plaintiff’s tweet that she was, “N (sic) Hawaii playin (sic) beach v-ball with my besties!!!” when
she was supposed to be hobbled by a knee injury caused in the motor vehicle accident you are
defending against? Jurisdictions differ on what authentication is required before such evidence
can be considered by a jury. The following case summaries give us some idea of what judges
will be looking for.
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Generally, an item of evidence is sufficiently authenticated when there is sufficient
evidence that the jury might find that the evidence is what the evidence’s proponent claims.
Courts that have wrestled with the authenticity of digital communications have come up with
several standards the evidence proponents must meet before a jury can consider such evidence.
In Griffin v. State, 995 A.2d 791 (Md. 2010), the trial court allowed into evidence several pages
of print outs of the defendant’s girlfriend’s MySpace page (to the millennials who read this:
MySpace was a proto-Facebook that was popular in the early 2000’s. Now, only bots and
defunct music bands have MySpace pages). One of the posts on the page, attributed to the
defendant’s girlfriend, said, “Free [Defendant]!!!! Just remember snitches get stitches!! U (sic)
know who you are!!”
When the State called plaintiff’s girlfriend as a witness, it did not question her about the
pages allegedly printed from her MySpace profile. Rather, the State attempted to authenticate
the pages through the testimony of the lead investigator on the case. The investigator testified
that he knew the MySpace page belonged to defendant’s girlfriend because it had a photograph
of the defendant and his girlfriend at the top of the page. Further, the girlfriend made reference
to the defendant on the page, and the girlfriend’s birth date was on the page. The trial court
agreed that the testimony provided to authenticate the print out was weak, but recognizing a low
bar, the judge ruled that the print out was properly authenticated.
On appeal, Maryland’s supreme court recognized the perils of proving the authenticity of
evidence from social media sites. It points out there is no law that prevents someone from
establishing a fake account under someone else’s name. With some humor, the court cited the
example of an internet security company creating a Facebook profile for a toy frog named
“Freddi Staur,” and nearly 200 Facebook users chose to add the frog as a “friend.” Ultimately,
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the supreme court reversed the trial court’s decision and remanded for a new trial. It held that
the trial court did not require a high enough bar so that concerns that another user could have
created the MySpace account or posted the incriminating statement could be alleviated.
The court went on to offer recommendations as to how such evidence can be properly
authenticated. Most obviously, the court pointed out that the state could have asked the
purported “owner” of the MySpace site whether or not it was in fact hers, and whether the
alleged post was authored by her. Another option would be to search the user’s computer and
examine its internet history and hard drive. A third option given was to obtain information
directly from a representative of the social networking site that links the establishment of the
profile to the person who allegedly created it and also links the posting sought to be introduced
to the person who initiated it. This author says good luck trying to obtain the cooperation of any
representative of any social networking site to obtain this foundation.
In People v. Clevenstine, 68 A.D.3d 1448 (N.Y. 2010), the court set forth the rule as
authenticity is established by proof that the offered evidence is genuine and that there has been
no tampering with it. In Clevenstine, the prosecution sought the admission of messages between
the defendant and two victims on MySpace. To authenticate those messages, the prosecution got
testimony from the victims that the messages were between them and the defendant, testimony
from a police officer that he had retrieved those messages from the victims’ computer, testimony
from a representative of the social networking site that the messages were between accounts
created by the defendant and the vicitms (there must have been someone at MySpace with
nothing to do and was looking to earn some witness fees), and testimony from the defendant’s
wife that she saw the messages on her and her husband’s computer.
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The court held this level of authentication was sufficient. (One should hope so). The
court noted that the defendant rightly pointed out that it was possible someone else accessed his
account and sent message under his name, but the likelihood of such a scenario presented a
factual issue for the jury to decide.
There are other opinions from across the country which speak to the authenticity of social
media evidence at trial. This author recommends Com. v. Williams, 926 N.E.2d 1162 (Mass.
2010), U.S. v. Vayner, 769 F.3d 125 (2d Cir. 2014), U.S. v. Hassan, 742 F.3d 104 (4th Cir.
2014), Moore v. State, 763 S.E.2d 670 (Ga. 2014), and Burgess v. State, 742 S.E.2d 464 (Ga.
2013) for other examples of ways courts have handled the admission of social media evidence at
trial. Obviously, this area of the law is new and fluid. As litigants’ and court’s understandings
of the complexities of social media grow, authentication issues will hopefully become easier to
tackle.
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ALFA INTERNATIONAL 2015 TRANSPORTATION SEMINAR
April 29 – May 1, 2015 – The Hotel Del Coronado – Coronado, California
THE DRIVE CAM FLEET MANAGEMENT PERSPECTIVE V. DRIVER PERSPECTIVE
Bob Barton Moderator
COSGRAVE VERGEER KESTER LLP Portland, Oregon
J. Phillip Davidson HINKLE LAW FIRM LLC
Wichita, Kansas [email protected]
THE DRIVER CAM FLEET MANAGEMENT PERSPECTIVE V. DRIVER PERSPECTIVE
You’ve heard the statistics. Globally, hundreds of thousands of lives are lost each year
because of motor vehicle accidents. Many more are injured. In the United States alone, a motor
vehicle accident occurs every 5 seconds. Every 12 minutes, a fatality occurs as a result of a
motor vehicle accident. These statistics are largely made up of accidents that were not the result
of isolated driving errors or mistakes. Frankly, we all get away with isolated mistakes caused by
risky behavior. Instead, the statistics, by and large, represent the ultimate consequence of
repeated risky driving habits that occur over and over.
Accidents cause down time, worker’s compensation losses, litigation expenses, and
liability exposures – costs that exceed $1 trillion worldwide. In order to succeed financially and
as corporate citizens, motor carriers must continually look for ways to reduce risk.
How can motor carriers predict and correct risky driving behavior before the risk is
realized in a loss? Today, motor carriers can enlist video event recorder technology to assist
them with this task.
A. A BRIEF OVERVIEW OF VIDEO EVENT RECORDER TECHNOLOGY
Video event recorders are small devices that are mounted in the cab of a tractor and
record the activities inside and outside of the cab. Typically utilizing a cellular upload process,
video event recorders provide motor carriers and their employees feedback concerning critical
occurrences (e.g., hard braking, air bag deployment, swerving) as well as the general driving
habits of the driver.
While there are products on the market that allow for video event recorders to collect
hours of data, most systems marketed to motor carriers capture and store video for seconds
before and after a recordable event. Although video event recorders are continuously collecting
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data, the audio and video from the video event recorder is only automatically stored when the
vehicle exceeds a preset g-force threshold or when it recognizes a fault code (e.g., airbag
deployment, brake failure, etc.) Most vehicle event recorders also contain a manual button that
can be used by the driver to activate the recorder in case of an event that warrants its use.
The audio and video captured by the vehicle event recorder cannot be viewed in real-time
by the employer. However, devices with GPS can transmit real-time location as well as
immediate notice to the employer of critical occurrences. In addition to audio and video, event
recorders also show the time of the accident, the speed prior to the accident, and are a useful tool
to observe driver distractions other than those solely related to electronic devices, including
eating and drinking while driving, failing to wear a seatbelt, cell phone use, etc.
B. THE BENEFITS OF VIDEO EVENT RECORDER TECHNOLOGY
1. Looking Back in Time: Analyzing Accidents and Protecting Motor Carriers from Fraudulent Claims
Video event recorders have many benefits. At their simplest, video event recorders
protect motor carriers from fraudulent claims and provide information which can exonerate the
driver of a commercial motor vehicle where their behavior was not the sole cause of a loss. In
the past, crash investigation, no matter how thorough and in-depth, was limited by its very
nature. The reconstruction occurred “after-the-fact” and relied on eye witness evidence provided
by the drivers or by third-party witnesses who may be less than truthful about what they were
doing prior to the crash or who may have limited recall due to the time that had passed since the
accident or the injuries he or she received in the accident. Even drivers with accurate
recollections of events were often left to exonerate themselves and their employer while law
enforcement and/or opposing counsel attempted to discredit the driver’s statement or his version
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of the occurrence facts. Video event recorder technology provides direct observation of the
occurrence, proving to be the ultimate concrete and unbiased witness to the occurrence.
Due to the power of this evidence to exonerate or implicate, companies utilizing video
event recorder technology should work with the manufacturer of that technology to establish a
specific protocol or company policy related to video retention and storage to avoid spoliation
claims. In addition, companies should consider when to produce video event recorder
technology following an accident. One key consideration is that information provided to local
law enforcement following an accident absent a subpoena and protective order could be provided
by that law enforcement agency to the media, to other counsel, or to any other person who seeks
this information pursuant to a Freedom of Information Act (“FOIA”) request.
2. A Glimpse into the Future: Identifying Issues and Coaching to Correct
The benefits of video event recorder technology go well beyond accident investigations
and preventability analysis. In fact, empirical studies have concluded that the use of video event
recorder technology can actually prevent accidents by effectively reducing risk to the public and
to motor carriers posed by unsafe drivers. How so? First, according to the FMCSA, there are
five key driver-related factors in large truck fatal crashes:
Speed Failure to keep Failure to yield Distraction/inattention Operating the vehicle Related in proper lane right-of-way in an erratic manner
Video event recorder technology provides continuous monitoring of these driving behaviors
which can then be studied to identify potential unsafe drivers. This includes, but is not limited to
drivers who are in violation of policies related to the use of electronic devices while driving,
drivers who exhibit behaviors consistent with fatigue, drivers who fail to obey traffic controls,
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and drivers who are failing to appropriately maintain their logbooks. Motor carriers who observe
these behaviors can coach drivers to avoid driving behavior that increases the risk of accidents or
terminate the driver if they feel the behavior cannot be corrected.
Similar to nearly every other profession – from job hiring to professional sports – motor
carriers can also use the data obtained from vehicle event recorders to analytically study its risk
and develop ways to address it. Nationally, the push for analytic analysis of crash data began in
earnest in 2006. At that time, the Federal Motor Carrier Safety Administration (FMCSA) and
the National Highway Traffic Safety Administration (NHTSA) collaborated on conducting the
Large Truck Crash Causation Study (LTCCS) to investigate large truck crash genesis.1 The
LTCCS was based on a national sample of almost 1,000 injury and fatal crashes involving large
trucks that occurred between April 2001 and December 2003. For each crash, detailed
information was collected on nearly 1,000 factors related to the vehicles involved in the accident
(vehicle type, weight, brake condition, air bag status), the drivers (driving history, fatigue,
seatbelt use), the environment (weather, road conditions, lighting conditions), as well as
information about passengers and non-motorists involved in the large truck crashes. The LTCCS
was the first national database that contained information detailing the contributing factors for
large truck crashes.
Since the LTCCS, studies have confirmed that while the relationship between crashes and
near-crashes is complex and dependent on not a single set of circumstances, the causal
mechanisms for crashes and near-crashes are similar. Because there is a strong frequency
relationship between crash and near-crash data, motor carriers can effectively use near-crash data
1 U.S. Department of Transportation. Report to Congress on the Large truck Crash Causation Study (2006).
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to significantly improve their ability to predict future behavior by helping motor carriers identify
those factors that have a significant impact on traffic factors and accidents.2
A smaller study from the University of Iowa also found that combining video event
recorder technology with a weekly review of safety-relevant incidents resulted in a significant
decrease in safety-relevant events.3 Some of the results from this study are below:
Average number of safety-relevant events and incidents (including near-crashes and crashes) per 1000 miles for all drivers during the baseline and intervention phases.
Average number of safety-relevant events per 1000 miles for the ‘high’ and ‘low frequency’ driver groups.
2 Feng Guo, Sheila G. Klauer, Michael T. McGill, and Thomas A. Dingus. Evaluating the Relationship Between Near-Crashes and Crashes: Can Near-Crashes Serve as a Surrogate Safety Metric for Crashes? DOT HS 811 382 (Oct. 2010). 3 Daniel V. McGehee, Mireille Raby, Cher Carney, John D. Lee, and Michelle L. Reyes. Extending parental mentoring using an event-triggered video intervention in rural teen drivers. 38 Journal of Safety Research 215 (March 2007).
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The Virginia Tech Transportation Institute recently modeled the potential reduction in
fatal and injury crashes in large trucks and buses in the United States had these fleets been
participating in a vehicle recording technology program. The final data set included a total of
10,648 fatal truck and bus crashes (resulting in 11,993 fatalities) and 213,000 injurious truck and
bus crashes (resulting in 330,000 injuries). The study found that the beneficial effects of a
program based on vehicle video event recorder technology had the potential to eliminate an
average of 727 fatal truck and bus crashes – a 20.5% reduction of the total fatal crashes – and
save 801 lives each year. Similarly, the predicted driver improvement related to the institution of
a video recorder technology program had the potential to reduce an average of 25,007 truck and
bus injury crashes – a 35.2% reduction – and save 39,066 injuries each year.
Stated differently, providing a platform for a motor carrier’s safety professionals to
provide both real-time and periodic feedback to the driver regarding the driver’s habits behind
the wheel – even without a critical occurrence – can lead to a significant reduction in a motor
carrier’s risk. For example, a 2009 study of 203 drivers over 3 million miles identified the
following non-driving tasks/behaviors that drivers engaged in immediately prior to critical
occurrences:
Task
Odds Ratio
Safety- Critical
Events (n)
Text message on cell phone 23.24 31
Interact with/look at dispatching device 9.93
155
Write on pad, notebook, etc.
8.98
28
Use calculator
8.21
11
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Look at map
7.02
56
Dial cell phone
5.93
132
Talk or listen to hand-held phone
1.04
195
Talk or listen to hands-free phone
0.44
91
Talk or listen to CB radio
0.55
50
In total, 60% of the safety-critical events had some type of non-driving task being
performed just prior to the occurrence. Through coaching, drivers are engaged before an
accident and instructed on potentially dangerous driving behavior so that they can immediately
self-correct the behavior. This real-time feedback can build driver confidence by letting drivers
know how they are performing against required policies and standards. Conversely, video event
recorders can be used to identify drivers for positive recognition based on their performance and
reinforce safe driving techniques.
3. Increasing Fleet Efficiency
Finally, motor carriers installing video event recorder technology can also reap a net
savings related to increased fuel efficiency. One such program boasts that it can improve fuel
efficiency by up to 12%. In addition to reducing motor carriers’ largest expense, improved fuel
efficiency lowers vehicle emissions. To achieve this result, the aforementioned program focuses
on three driving behaviors that have the greatest impact on fuel efficiency: efficient or “smooth”
driving, idling, and speeding. The program provides drivers with in-cab feedback on efficient
driving and measures the driving behaviors to arrive at a fuel score ranking.
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C. VIDEO EVENT RECORDER TECHNOLOGY IS NOT PERFECT
While there are tangible benefits to video event recorder technology, there is a risk that
video of your driver could be used in the courtroom or be the leading story for the nightly news.
In addition, the video event recorder technology comes at a real cost. Above and beyond the cost
to purchase the recorders and for the vendor to manage the program, motor carriers have to
overcome internal resistance within their organizations and the “get that camera out of my face”
response from drivers. This is particularly concerning in an industry struggling to find enough
drivers to fill its tractors.
In addressing this issue, driver education is an important component. The primary
concern expressed by drivers is that the recorder could be misused. This includes fear that the
recorders will be used to “spy” on off-duty drivers or that the recorders could be hacked to
invade the driver’s privacy. As such, motor carriers need to be prepared to convince their drivers
that the video event recorders are there to protect them, not spy on them. Most systems do not
allow a “live” look-in on drivers or real-time monitoring. This is generally because the video
event recorder cannot be triggered remotely. Rather, the recorder is only activated by critical
occurrences and other abrupt movements. Regardless, motor carriers should be completely frank
with their drivers with respect to what the video event recorders will and will not record.
Drivers are also wary that the technology will be used for punishment, rather than
education. To minimize this concern, motor carriers should institute specific policies setting
forth how it will use video event recorders to coach the driver to correct unwanted behavior.
Rather than discipline, motor carriers should use onboard cameras in training, and talk in terms
of coaching to correct driver problems, as opposed to firing drivers.
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D. CONCLUDING THOUGHTS
In 2000, the very first camera phone was introduced to the public. Ten years later, the
number of camera phones worldwide totaled more than one billion. The proliferation of cameras
and video recorder technology – in conjunction with smart phones, apps, social media, etc. – has
fostered a culture in which events are captured and broadcast to the public not just by law
enforcement and news agencies, but by persons of all walks of life. High risk professions –
including the transportation industry – have been exposed as a result of the pervasiveness of
video recorder technology, but they have also been exonerated. While questions regarding the
capabilities of this technology and the authorized use of this technology are to be expected and
must be addressed in order to maximize the benefit of this technology for those implementing it,
there is no doubt the use of this technology can result in better behavior on both sides.
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ALFA INTERNATIONAL 2015 TRANSPORTATION SEMINAR
April 29 – May 1, 2015 – The Hotel Del Coronado – Coronado, California
THE FATIGUED DRIVER: SLEEP APNEA, HOURS OF SERVICE AND THE DOT MEDICAL EXAM
Benjamin T. Reese
Moderator LEITNER, WILLIAMS, DOOLEY & NAPOLITAN, PLLC
Chattanooga, Tennessee [email protected]
Scott Cifrese
PAINE HAMBLEN LLP Spokane, Washington
Barbara Darkes MCNEES WALLACE & NURICK LLC
Harrisburg, Pennsylvania [email protected]
Mark Scudder
STRASSBURGER & PRICE, LLP Dallas, Texas
PLAINTIFFS' THEORIES OF DIRECT TORT LIABILITY AGAINST THE MOTOR CARRIER/TRUCKING COMPANY
What Plaintiff's Counsel Says on Fatigue:
• Consider fatigue as a factor in every crash, until it is ruled out. • Always retain a qualified expert to examine the motor carrier's system of
monitoring its drivers' hours of service. • The world's leading sleep experts agree that fatigue is the largest identifiable and
preventable cause of accidents in the transportation operation. • Because of poor investigation in the area of fatigue, and because of the lack of
documentation regarding involvement of fatigue in crashes, we still have no solid statistics regarding how many or what percentage of truck crashes are caused or contributed to by driver fatigue.
• The fact of the matter is that driver fatigue is a significant cause of losses in the trucking industry and should be investigated as a possible factor in catastrophic truck crashes.
Vicarious Liability of Motor Carrier: Theory
• Motor Carrier is liable for its driver's general negligence, negligence per se, and recklessness under agency and respondeat superior principles.
• Driver was acting as an agent, servant or employee of the motor carrier, and was acting in the ordinary course of driver's employment.
• Motor carrier's liability extends to owner-operators who are leased - The Federal Motor Carrier Safety Regulations require motor carriers/trucking companies that are leasing equipment and vehicles to have exclusive possession, control and use of the equipment and driver. Courts have used this exclusivity factor to hold motor carrier/trucking company's liable for the driver's actions. The theory is that it is the motor carrier/trucking company that has put the leased equipment and driver into the stream of commerce.
What the Pleadings Will Assert
• At all times, driver was acting as an agent, servant, or employee of Motor Carrier, and was acting in the ordinary court of employment for the Motor Carrier. As such, under the principles of agency and respondeat superior, Motor Carrier is vicariously liable for its driver's negligence, recklessness, and violations of common law and regulatory and statutory requirements.
• At all relevant times, driver operated the Motor Carrier's tractor-trailer with the knowledge, consent and permission of the Motor Carrier.
• At all relevant times, Motor Carrier controlled or had the right to control the operation and use of its tractor trailer and the actions of its driver.
• At all relevant times, the tractor-trailer operated by driver had displayed on it the logo, name and DOT number of Motor Carrier, with knowledge and consent of Motor Carrier.
Causes of Action for Direct Liability of Motor Carrier:
1. Negligent hiring Theory: The motor carrier had information or knowledge (direct or indirect) at the time of hiring the driver that the driver was incompetent. What the pleadings will assert:
• The Motor Carrier failed in its duty to make sure the driver had no established medical history or diagnosis of respiratory dysfunction that is likely to interfere with the driver's ability to control/drive a motor vehicle safely.
2. Negligent entrustment Theory: The motor carrier should not have entrusted the driver with a truck due to the driver's inexperience and/or inability to safely operate a commercial motor vehicle. What the pleadings will assert:
• Motor Carrier is liable for injuries that resulted from the fact that Motor Carrier entrusted driver with an eighteen wheel tractor trailer with instructions for driver to drive for many hours when Motor Carrier had adequate information that driver suffered from sleep disorder, but failed to send driver for testing or further evaluation.
3. Negligent retention Theory: The motor carrier should not have allowed the driver to remain in its employ as a driver because they learned things during the course of the driver's employment identifying that the driver was incompetent/unsafe. What the pleadings will assert:
• The records available to the Motor Carrier showed chronic and repeated hours of service violations, and the Motor Carrier's failure to effectively counsel the driver and impose appropriate discipline (including termination) evidences a conscious disregard by the Motor Carrier of a dangerous condition.
4. Negligent supervision
Theory: The motor carrier failed to discipline a driver for incompetent actions or failed to intervene when the driver showed signs of incompetence. What the pleadings will assert:
• The Motor Carrier failed to exercise reasonable care in meeting its duties in failing to train, instruct, supervise and monitor its driver to make sure the driver was not too fatigued or ill, or not likely to become too fatigued or ill, to safely operate a commercial motor vehicle.
• The Motor Carrier failed to exercise reasonable care in meeting its duties by permitting its driver to operate a commercial motor vehicle when the driver was too fatigued or ill, or likely to become to fatigued or ill, to safely operate a commercial motor vehicle.
• The Motor Carrier has a duty to monitor driver logs and to establish proper controls of driving time to ensure compliance with hours of service regulations.
• The Motor Carrier has a duty to review its driver's hours of service logs on a regular basis and to react to hours of service violations, including implementing appropriate discipline so that such dangerous activity did not continue.
• The Motor Carrier's failure to educate and train its drivers on driver fatigue shows the Motor Carrier's conscious disregard for public safety.
5. Negligence per se Theory: A Motor Carrier is liable for injuries resulting because its driver violated the Federal Motor Carrier Safety Regulations or driver and vehicle related state. What the pleadings will assert:
• Motor Carrier was negligent per se in violating particular federal regulations, including, but not limited to,
49 C.F.R. §391.11, which states that a motor carrier shall not
require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle; and
49 C.F.R. §392.3, which states that a motor carrier shall not require or permit a driver to operate a commercial motor vehicle while a driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate the commercial motor vehicle.
Recklessness: If Plaintiff can show that the motor carrier/trucking company's actions were reckless, this provides grounds for seeking punitive damages.
Driver Fatigueand the
DOT Medical Examination
Chuck Mangelsdort, Esq./Vashville office
ILL OR FATIGUED OPERATOR
G SEGTION 392.3No driver shall operate a commercial motorvehicle, and a motor carrier shall not require orpermit a driver to operate a commercial motorvehicle, while the driver's ability or alertness isso impaired, or so likely to become impaired,through fatigue, illness, or any other cause, âs\
to make ¡t unsafe for him/her to begin orcontinue to operate the commercial motorvehicle.
PHYSICAL AUALI FICATIONSFOR DRIVERS
x sEcTloN 39 1.41x (a) a person shall not drive a commercial motor
vehicle unless he/she is physically qualified to do soand, except as provided in section 391 .67, has onhis/her person the original, or a photographic copy,of a medical examiner's certificate that he/she isphysically qualified to drive a commercial motorvehicle.
x (b) a person is physically qualified to drive acommercial motor vehicle if that person-
- (5) has no established medical history or clinicaldiagnosis of a respiratory dysfunction likely tointerfere with his/her ability to control and drive acommercial motor vehicle safely
Med ical Adviso ry Criteria
ß SECTION 39.41 (BX5)
- To function adequately the cells of the bodyrequire a continuous supply of oxygen andremoval of carbon dioxide. Proper functioningof the respiratory system insures this adequategaseous exchange. Any interrupt¡on inrespiration for more than a few minutes willresult in irreversible brain damage andultimately death.
Medical Adviso ry Criteria
G Since a driver must be alert at all times,any change in his or her mental state is indirect confl ict with highway safety. Eventhe slightest impairment in respiratoryfunction under emergency conditions(when greater oxygen supply is necessaryfor performance) may be detri mental tosafe driving.
Medical Adviso ry Criteria
å There are many conditions that interferewith oxygen exchange and may result inincapacitation, including :
- emphyseffiâ,
- chronic asthffiâ,
- carcinoffiâ,
- tuberculosis,
- chronic bronchitis and
- sleep apnea.
Fatigue & Sleep Apnea
rcFatigue due to sleep apnea andlong work periods adverselytt
effects attention and drivingabillties.
Fatigue & Sleep Apnea
c, Activities that require sustained attentiof ,
adverse effects can manifest as unanticipatedand uncontrolled lapses in attention or as briefperiods of involuntary sleep
æ Scientific literature and testing has establishedthat fatigue and sleep deprivation increasesleep¡ness (the need to sleep) and impairneurocognitive performance. This impairment ismost evident in persons performing tasks thatrequire sustained attention while relativelyimmobile in a sitting position.
Fatigue & Sleep Apnea
re Driving a motor vehicle is often cited as atask subject to the performance-impairi ngeffects of fatigue and sleep deprivation.
G Scientific studies have shown that theeffects of going without sleep for 17-24hours is as impairing to performance asethanol intoxication.
Diagnosis of Sleep Apnea
re Sleep apnea is a medical condition characterizedby repetitive ainruay obstruction during sleep.
x This condition develops gradually over monthsand years, leading to poor sleep and excessivesleepiness.
fr Excessive sleep¡ness leads to progressive loss inthe ability to sustain attention and perform taskssuch as driving.
re Because these effects develop slowly, they areoften not recognized by the patient.
Diagnosis of S|eep Apneaß The adverse effects of sleep apnea on attention
and performance are biologically based andcannot be reversed by attempts to increasemotivation to stay awake, remain alert, andperform well.
rc Commonly tried counter-measures such asopening a window and playing loud music areineffective.
re, The symptoms of sleep apnea are often notrecognized by the patient but by others.Prompting by family members or co-workers toseek medical attention is a frequent feature in themedical histories of patients with sleep apnea.
BREATHING-RELATEDSLEEP DISORDER
fr,,SLEEP DISRUPTION, LEADING TOEXCESSIVE SLEEPINESS ORINSOMNIA, THAT IS JUDGED TO BEDUE TO A SLEEP-RELATED BREATINGcoNDtIoN (E.G. OBSTRUCTIVE ORCENTRAL SLEEP APNEA SYNDROME)''
BREATHING-RELATEDSLEEP DISORDER
According to the DSM-IV-TR.re "Excessive sleep¡ness" is the most common
presenting complaint of individuals withbreath¡ng-related sleep disorder.
ru Sleepiness results from frequent arousals duringnocturnal sleep as the individual attempts tobreath normally. The sleep¡ness is most evidentin relaxing situations, such as when the individualis reading or watching television.
m When sleep¡ness is extreme the person may fallasleep while actively conversing, eating, wâlkingor driving".
Daytime Sleepinessrc Excessive daytime sleep¡ness may be
manifested several ways:
(1) feelings of drowsiness;
(2) a tendency towards short sleep latency, orfalling asleep very quickly;
- (3) repeated short periods of sleep, or microsleep, that last from several seconds to severalminutes;
(4) falling asleep for an extended period oftime, i.e. napp¡ng.
Daytime Sleepiness
å M¡cro-sleeps are most likely to occur atcertain times of the day, such as pre-dawnhours and mid-afternoon hours when thebody is "programmed" to sleep.
m M¡cro-sleeps increase with cumulativesleep debt.
re In other words, the more sleep deprived theperson is the greater the chance a microsleep episode will occur.
DRIVER FATIGUE:THE SCIENCE
re 1. While driver drowsiness lfatigue is cited onpolice accident reports as a causal factor in arelatively small percentage of truck accidents, ¡t isbelieved to play a larger role than cited due tounderreporting and to subtle effects on driverperformance. Case studies suggest that ¡t plays as¡gnificant role in accidents that result in fatalitiesand injuries.
ü 2. Although there is some disagreement aboutthe definition of driver fatigue, most investigatorsagree that a reasonable operations definitionincludes time-correlated deterioration in drivingperformance, physiological state of arousal, andsubjective feelings of sleep¡ness or tiredness.
DRIVER FATIGUE:THE SGIENGE
fi 3. The consequences of driver fatigue arebelieved to include:
n lncreased lapses of attentionI Increased information processing and decision
making timex lncreased reaction time to critical eventsx More variable and less effective control responsesx Decreased motivation to sustain performancex, Decreased psychophysiological arousal (e.9., brain
waves, heart action); lncreased subjective feelings of drowsiness or fatiguet Decreased vigilance (e.9., watchfulness)x Decreased alertness (e.9., readiness)
DRIVER FATIGUE:THE SCIENCE
ß 4. The primary causes of driver fatigue are longperiods of driving, circadian low points and sleepdebt.Fatigue effects have also been associated with:
I Rotating schedulesr Two-person or team "sleeper" operationsI Monotonous driving environmentsx Driving in darkness¡ Adverse weather conditionsx Alcohol and drugs* Physical work, in addition to drivingN Noise, vibration and heat
DRIVER FATIGUE:THE SCIENCE
rc 5. Much recent research on driver fatigue hasbeen performed in driving simulators. While thispermits a degree of experimental control notpossible in over-the-road studies, many variablesthat affect driver fatigue may operate differently inthe real world than in simulators (¡f they arerepresented in simulators at all).
Thereforê, significant findings about driver fatiguefrom simulator studies require real-worldvalidation.
DRIVER FATIGUE:THE SCIENCE
3 6. Many countermeasures aimed at minimizingfatigue-related accidents have been proposed,although few have been the subject of operationaltesting. Countermeasures fall into the followingcategones:
r Alarm systems, based on changes in driverperformance, or level of psychophysiological arousal,or both;
r Alertness maintainers, in the form of driving hourregulations, obligatory rest stops, napp¡ng, trainingabout factors that cause driver fatigue, and certaindevices installed in the driving environment.
Medical Examination ReportFon con¡MERcTAL DRTvER FtrNESs DETERMINAT¡oN
64e-F (6045)
Driver completes this section
Driver completes this section, but medical examiner is encouraged to discuss with driver
I certify that the above information is complete and true. I understand that haccurate, false or missing information may invalidate the examination and myMedical Examiner's Certificate.
Driver's Sionafrlre ñafa
,Medical Examiner's Gomments on Health History (The medical examiner must review and discuss with the driver any "yes" answers and potential hazards ofmedications, including over-the-counter medications, while driving. This discussion must be documented below. )
Date of Exam
State of lssueLicense ClassEA TCNB ED
E Other
Fa¡nting, dizzinessSleep disorders, pauses ¡n breathingwhile asleep, daytime sleepiness, loudsnoring
Stroke or paralysisMissing or impaired hand, arm, foot, leg,finger, toe
! Sninal ¡njuryord¡sease
f-l Chron¡c low back pain
I Regular, frequent alcohol use
- Narcotic or habit forming drug use
Yes No
New Certification nRecertification -Follow-up fl
SexNM!r
Age
Driver License No.
Birthdate
M/D/YWork Tel: ( )
Home Tel: ( )
Lung disease, emphysema, asthma, chronic bronchitisKidney disease, dialysisLiver diseaseDigestive problemsDiabetes or elevated blood sugar controlled by:
! diet! piilsll insulin
-__-.1
--- ¡lãrvous or psychiatric disorders, e.g., severe depression
f_l f_l medication
[ ]t-oss of, oraltered consciousness
Yes No
Social Security No
City, State, Zip Code
For any YES answer, indicate onset date, diagnosis, treating physician's name and address, and any current limitation. List all medications (includingmedications) used regularly or recently.
1
Drive/s Name (Last, First, Middle)
Address
2
Eye d¡sorders or ¡mpa¡red vision (except conective lenses)Ear disorders, loss of hearing or balanceHeart d¡sease or heart attack; other cardiovascular condition
fl medication
Heart surgery (valve replacemenVbypass, ang¡oplasty,
Yes No
D
Any illness or injury ¡n the last 5 years?Head/Bra¡n injuries, disorders or illnessesSeizures, ep¡lepsy
pacemaker) flHigh blood pressureMuscular d¡seaseShortness of breath
DRIVER'S INFORMATION
HEALTH HISTORY
STI N G ( dical cq¡np!glqg*Sectio¡ th h- 7) ru"r", L?sJ,-j.: ::'-- * i¡p-ç3ner,ExameM
VISION At least 20/40 ãcuity{Snellen) in each èyé with or without có At least 70 degrees peripheral in meridian:ln€ãsured in each eye.:.The use of corrective lenses should be noted on the Medical Examiner's Gertificate.
. Numerical readings must be provided. Applicant can recognize and distinguish among traffic controlsignals and devices showing standard red, green, and amber colors ?
HORIZONTAL FIELD OF VISION
Right Eye O
Left EyeO
CORRECTED
201
20t
20t
UNCORRECTED
201
20t
201
ACUITY
Right Eye
Left Eye
Both Eyes
Complete next line only if vision testing is done by an opthalmologist or optonetrist
Date of Examination Name of Ophth almologist or Optometrist (print)
Standard: a) Must first perceive forced whispered voice 2 5 ft., with or without hearing aid, or b) average hearing loss in better ear < 40 dBI Chect< if hearing aid used for tests. I Chect if hearing aid required to meet standard.
INSTRUCTIONS: To convert audiometric test results from ISO to ANSI, -14 dB from ISO for 500H2, -10d8 for 1,000 Hz, -8.5 dB for 2000 Hz. To average, add the readings for 3frequencies tested and divide by 3.
Numerical read must be recorded. Left Ear
2O0OHz
Average:
1000 Hz500 Hz
Right Ear
2O0O Hz
Average:
1000 Hz500 Hzb) lf audiometer is used, record hearing loss indecibels. (acc. to ANSI 224.5-1951)
Numerical readings must be recorded. Medical Examiner should take at least two readings to confirm BP
Systolic DiastolicBloodPressure
. -Driver qualified if <140/90
Numerical readings must be recorded. BLooD] SUGARPROTEINSP. GR.URINE SPECIMEN
Urinalysis is required. Protein, blood or sugar in the urine may be an indicalion for further testing torule out any underlying medical problem.
YesNo
Applicant meets visual acuity requirement only when wearingf] Corrective Lenses
Monocular Vision: I Yes E No
4. HEARING
Left Ear\ Feet
a) Record distance from individual at which¡forced whispered voice can first be heard.
¡
Right ear, \ Feet
5 BLOOD PRESSURE/ PULSE RATE
P¡!se. Ratq: -[l Regular E !¡¡gg¡rlar
Record Pulse Rate:
Recertification1 year if <140/90.One-time certificate for 3 months if141-159/91-99.
l, ygar from !a!9- gf exam if <140190
6 months if <140/90
Expiration Date
1 year
One-time certificate for 3 months.
6 months from date of exam ¡f <140/90
CateqorvStage 1
Stage 2 -. ..
Stage 3
Readinq
140-159/90-99
160-179/100.109
>'180/110
6. LABORATORY AND OTHER TEST FINDINGS
Other Testing (Describe and record)
PHYSICAL EXAMINAÏIONE
See lnstructions to the Medical Examiner for guidance.
CHECK FOR:
Enlarged liver, enlarged spleen, masses, bruits,hernia, significant abdominal wall muscleweakness.
Abnormal pulse and amplitude, cartoid orarterial bruits, varicose veins.
Hemias.
Loss or impairment of leg, foot, toe, arm, hand,finger, Perceptible limp, deformities, atrophy,weakness, paralysis; clubbing, edema,hypotonia. lnsuff¡cicent gÍasp and prehensionin upper limb to maintain steering wheel grip.lnsufficient mobility and strength in lower limbto operate pedals properly.
Previous surgery, deformities, limitation ofmotion, tendemess.
lmpaired equilibrium, coordination or speechpattern; asymmetric deep tendon reflexes,sensory or positional abnormalities, abnormalpatellar and Babinki's ieflexes, ataxia.
YES* NO rNO BODY SYSTEM
7. Abdomen and Viscera
8. Vascular System
9. Genito-urinary System
10. Extremities- Limbimpaired. Driver maybe subject to SPEcertifìcate if otherwisequalified.
1 1. Spine, othermusculoskeletal
12. Neurological
YES*CHECK FOR:Marked overweight, tremor, signs of alcoholism, problemdrinking, or drug abuse.
Pupillary equality, reaction to light, accommodation, ocularmotility, ocular muscle imbalance, extraocular movement,nystagmus, exophthalmos. Ask about retinopathy, cataracts,aphakia, glaucoma, macular degeneration and refer to aspecialist if appropriate.
Scarring of tympanic membrane, occlus¡on of external canal,perforated eardrums.
lnemediable deformities likely to interfere with breathing orswallowing.
Murmurs, extra sounds, enlarged heart, pacemaker,implantable defibrillator.
Abnormal chest wall expansion, abnormal respiratory rate,abnormal breath sounds including wheezes or alveolar rales,impaired respiratory function, cyanosis. Abnormal findings onphysical exam may requ¡re further testing such as pulmonarytests and/ or xray of chest.
BODY SYSTEM1. General Appearance
2. Eyes
3. Ears
4. Mouth ahd Throat
5. Heart
6. Lungs and chest,not including breastexamination
"COMMENTS:
! Meets standards in 49 CFR 391:41; qualifies for 2 year certificate! Does not meet standards! Meets
Wearing hearing aÌdAccompanied by a exemption. Driver must present -
exemption at time of certification.n Skill Performance Evaluation (SPE) CertificateÛ Driving within an exempt intracity zone (See 49 CFR 391.62)D Qualified by operation of 49 CFR 391.64
Driverstandards, but periodic monitoring requiredqualifìed only for: n3 months n6 months
due to!1year ! other
Medical Examiner's signatureTemporarily disqualified due to (condition or medication): Medical Examiner's name
AddressReturn to medical examiner's office for follow up on Telephone Number
lf meets standards, complete a Medical Examiner's Certificate as stated in 49 CFR 391.43(h). (Driver must carry certifìcate when operating a commercial vehicle.)
- -' ::::1,:,'i! t: t.::i: - .-,rI ' . :":r:€|rærE¡G';:j.:;l -:F.. ---.-.+.:êr;^
"îëæË-;â,.'. r..'.,
THE DRTVER'S ROLEResponsibilities, work schedules, physical and emotional demands, and lifestyles among commercial drivers vary by the type of driving that they do. Some of the main types of
a driver beginning a trip in a fatigued condition; long hows; extended time away from family and fiends, which may result in lack of social support; tight pickup and deliver
materials may add to tle demands on the commercial driver.
the tractor, loading and unloading trailer(s) (sometimes a driver may lift a healy load or unload as much as 50,000 lbs. of feight afer sitting for a long period of time without any
of the vehicle, frequent entering and exiting of the cab, and the ability to climb ladders on the tractor and/or trailer(s).In addition, a driver must have the perceptual skills to monitor a sometimes complex driving situatior¡ the judgment skills to make quick decisions, when necessary, and the
manipulative skills to control an oversize steering wheel, shift gears using a manual transmission, and maneuver a vehicle in crowded areas.
$391.41 PTTSICAL QUALIFICATIONS FORDRIVERS(a) A person shall not drive a con¡nercial motor vehicleunless he is physically qualiñed to do so and, except as
provided in $391.67, has on his person the original, or aphotographic copy, of a medical examiner's certificate thathe is physically qualified to drive a comrnercial motorvehicle.(b) A person is physically qualified to drive a motor vehicle
. ifthat person:(l) Has no loss ofa foot, a leg, á hand, or an arm, or has
been granted a Skill Performance Evaluation (SPE)Certificate (formerly Limb Waiver Program) pursuant to
$391-49.(2) Has no impairment of: (i) A hand or finger whichinterferes with prehension or power grasping; or (ii) Anarrn" foot, or leg which interferes with the abilþ to performnormal tasks associated with operating a commercial motorvehicle; or any other significant limb defect or limitation,which interferes with the ability to perform normal tasks. associated with operating a commercial motor vehicle; orhas been granted a SPE Certificate pursuant to $391.49.(3) Has no established medical history or clinical diagnosisofdiabetes mellitus currently requiring insulin for control;(4) Has no cunent clinical diagnosis ofmyocardialinfarction, angina pectoris, coronary insufficiency,thrombosis, or any other cardiovascular disease ofa variet¡rknown to be accompanied by syncope, dyspnea, collapse,or congestive cardiac failure.(5) Has no established medical history or clinical diagnosis
of a respiratory dysfunction likely to interfere with hisability to control and drive a commercial motor vehiclesafely.(6) Has no current clinical diagnosis ofhigh blood pressurelikely to interfere with his ability to operate a commercialmotor vehicle safely.(7) Has no established medical history or clinical diagnosisof rheumatic, arthritic, orthopedic, muscular,neuromuscula¡, or vascular disease which interferes withhis ability to control and operate a commercial motorvehicle safely.(8) Has no established medical history or ciinical diagnosisofepilepsy or any other condition which is likely to causeloss ofconsciousness or any loss ofability to control acommercial motor vehicle;(9) Has no mental, nervous, organic, or functional diseaseor psychiatic disorder likeiy to interfere with his ability todrive a commercial motor vehicle safely;(l 0) Has dist¿nt visual acuity ofat least 20/40 (Snellen) ineach eye without corrective lenses or visual acuity :-j .
separately cor¡ected to 20140 (Snellen) or better with . ,.
corrective lenses, distant binocular acuity ofat least 20140(Snellen) in both eyes with or without corrective lenses,field ofvision ofat least T0degrees in the horizontalmeridian in each eye, and the ability to recognize the colorsoftrâffic signals and devices showing standard red, greenand amber;(1 1) First perceives a forced whispered voice in the betterear not less than 5 feet with or without the use of a hearingaid, or, iftested by use ofan audiometric device, does not
have an average hearing loss in the better ear greater than40 decibels at 500 Hz, 1,000 FIz and 2,000 Hz with orwithout a hearing device when the audiometric device iscalibrated to the American National St¿ndard (formerlyASA Standard) 224.5-1951 ;(12)(i) Does not use any drug or substance identified in 2lCFR 1308.1 1 Schedule I, an amphetamine, a narcotic, orother habit-forming drug.(ii) Does not use any non-Schedule I drug or substance thatis identified in the other Schedules in 21 part 1308 exceptwhen the use is prescribed by a licensed medicalpractitioner, as defined in $ 382.107, who is familiar withthe driver's rnedical history and has advised the driver thatthe subst¿nce will not adversely affect the driver's ability tosafely operate a commercial motor vehicle.(13) Has no current clinical diagnosis of
alcoholism.
General lnformationThe purpose of this examination is to determine a driver's physical
Federal Motor Carrier Safety Regulations- -Advisory Criteria-qualifìcation to operate a commercial motor vehicle (CMV) in ¡nterstate Diabetes .
commerce according to the requirements in 49 CFR 391.41-49. Therefore, Loss of Limb:
the medical examiner must be knowledgeable of these requirements and S391'41(bX1) S391'41(bX3)
referred to rhe section on the form, rhe Driver,s Rore. !il:::,r,:gl1;{{:uîri*;'ltii' ispa cá',¡fl"ø '"t;'::;.i:"lzñtiffi?t'ä:::ï'tr"ä:'åt;:fJÍi:*"ln addition to reviewing the Health History section with the driver and result in a loss of consciousness or disorientation in time
conducting the physical examination, the medical examiner should discuss Limb lmpairment: and space' lndividuals who require insulin for control have
the need for additional laboratory tests or more stringent examination wh¡ch ¡nterferes with the ab¡t¡ti to-pe¡ò¡ín normaltasks - snocK)'
driving. performance of normat tasks associated with operatingì *cl:i:1i1"^:f the FMCSRS'
regulations, the certificate is valid for two years, untess the driver nu" eguiÞment modifications have been developed to compensate ":''
---: "'? '
a medicarcondition that does not prohibit driving but does require Bji':lilrt'¡*, ¿Xi:iri"*:U:::,;lg*"- iîËüi'%8i;iJ-iffiffif:;fii*ffi:?:'åmå.more frequent monitoring. ln such situations, the medical certificate personsw¡th the toss of a footôr timb or with tunctionat ÎIÎTttll?^-^-.
attached form. Contact the FMCSA al (202)366-4001 for: further equ-ipment mbdifications which enãbl" th"r to safely Vehicle Drivers at:
etc')' . - ' , :ii''',?l::ä:iiJïi::åiä1iiå'åï'ü:ïi,,i3ååìTìo,li'"", .c::Í¡?yiÌ:.rrarcondition
SPE certificates when a State D¡recior for the FMCSA determ'nes 5391 '41 (ÞX4) .
qualifications for commercial driving. These recommendations have been accompanied by a SPE certificate. The driver and the employing ;;;;;;;;i;;;r;":
it,s reference by section is highlighted. cardiovascular condition which has not fully stabilizedregardless of the time limit The lerm"known to be
INSTRUCTIONS TO THE MEDICAL EXAMINER
.:
a''::''- - -. *:symptoms of syncope,-dyspnea, collapse or congestive --- ' - Commercial Driversat:
and
htto://www.fm6ä. dot.qov/rulesreqs/medreports.htm
Hypertensions3e1.41(bX6)A person is physically qualified to dr¡ve a commercial motorvehicle if that person:Has no current clinical diagnosis of high blood pressuie likelyto inte¡fere with ability to operate a commercial motor vehíclesafely.
Hypertension alone ¡s unlikely to cause suddencollapse; however, the likelihood increases when target organdamage, particularly cerebral vascular disease, is present.This regulatory criteria is based on FMCSA's CardiovascularAdvisory Guidelines for the Examination of CMV Drivers,which used the Sixth Report of the Joint National Committeeon Detection, Evaluation, and Treatment of High BloodPressure (1997).
Stage t hyperiension corresponds to a systolic BP of140-159 mmHg andior a diastolic BP of 90-99 mmHg- Thedriver with a BP in this range is at low risk for hypertension-related acute incapacitation and may be medically certified todrive for a one-year period. Certification examinations shouldbe done annually thereafter and should be at or less than140/90. lf less than 160/100, certification may be efendedone time for 3 months.
A blood pressure of 160-179 systolic and/or 100-109diastolic is considered Stage 2 hypertension, and the driver isnot necessarily unqualified during evaluation and institution oftreatment. The driver is given a one time certification of threemonths to reduce his or her blood pressure to less than orequal to 140/90. A blood pressure ¡n this range is an absoluteindication for anti-hypertensive drug therapy. Providedtreatment is well tolerated and the driver demonstrates a BPvalue of 140/90 or less, he or she may be certified for oneyear from date of the initial exam. The driver is certifiedannually thereafter.
A blood pressure at or greater than 'lB0 (systolic) and1 l0 (diastolic) is considered Stage 3, high risk for an acuteBP+elated event. The dr¡ver may not be qualified, eventemporarily, until reduced to 140/90 or less and treatment iswell tolerated. The driver may be certified for 6 months andbiannually (every 6 months) thereafter, if at recheck BP is140/90 or less.
Annual recertification is recommênded if the medicalexaminei does hot know the severity of hypertension prior totreatment.
An elevated blood pressure fìnding should be confirmedby at least two subsequent measurements on different days.
Treatment includes nonpharmacologic andpharmacologic modalities as well as counseling to reduceother risk factors. Most ant¡hypertens¡ve medications alsohave side effects, the importance of which must be judged onan individual basis. lndividuals must be alerted to the hazardsof these medications while driving. S¡de effects ofsomnolence or syncope are particulary undesirable incommercial drivers.
Secondary hypertension is based on the above stages.Evaluation is wananted if patient is persistently hypertensive
of may' -amenable to surgical intervention or sþecific pharmacologic -
drsease.(See Cardiovascular Advisory Panel Guidelines for theMedical Examination of Commercial Motor Vehicle Drivers at:http://www.fmcsa.dot.gov/rulesreqs/medreports.htm )
Rheumatíc, Arthritic, Orthopedic, Muscular,Neuromuscular or Vascular D¡sease 5391.41(bX7)A person is physically qualified to drive a commercial motorvehicle if that person:Has no esfab/rshed medicat history or ctinical diagnosrs ofrheumatic, añhrit¡c, otfhoped¡c, muscular, neuromuscular orvascular disease which inteíeres with the ability to controland operate a commercial motor vehicle safely.
Certain diseases are known to have acute episodes oftransient muscle weakness, poor muscular coordination(ataxia), abnormal sensations (paresthesia), decreasedmuscular tone (hypotonia), visual disturbances and painwhich may be suddenly incapacitating. With each recurringepisode, these symptoms may become more pronouncedand remain for longer periods of time. Other diseases havemore insidious onsets and display symptoms of muscle
' wasting (atrophy), swelling and paresthesia which may not "
suddenly incapacitate a person but may restrict his/hermovements and eventually interfere with the ability to safelyoperate a motor vehicle. ln many ¡nstances these d¡seasesare degenerative in nature or may result in deterioration ofthe involved area.
Once the individual has been diagnosed as having arheumatic, arthritic, orthopedic, muscular, neuromuscular orvascular disease, then he/she has an established history ofthat disease. The physician, when examining an individual,should consider the following: (1) the nature and severity of
,,: - the individual's condition {suchas sensory loss or loss of ._....-,. :,
: strength); (2) the degree of limitation present (such as rangeof motion); (3) the likelihood of progressive limitation (notalways present initially but may manifest itself over time); and(4) the likelihood of sudden ìncapacitation. lf severefunctional impairment exists, the driver does not qualify. lncases where more frequent monitoring is required, acertificate for a shorter period of time may be issued. (SeeConference on Neurological Disorders and CommercialDrivers at:
cardiac failure; andipf {2) which is likely to cause syñcôpe,dyspnea, collapse or congest¡ve cardiac failure.
It is the intent of the FMCSRS to render unqualifìed, adriver who has a current cardiovascular disease which isaccompanied by and/or likely to cause symptoms of syncope,dyspnea, collapse, or congestive cardiac failure.'However, the subjective decision of whether the nature andseverity of an individual's condition will likely causesymptoms of cardiovascular insufficiency is on an individualbasis and qualification rests with the medical examiner andthe motor canier. ln those cases where there is anoccurrence of cardiovascular insufficiency (myocardialinfarction, thrombosis, etc.), it is suggested before a driver iscertified that he or she have a normalelectrocardiogram (ECG), no residual
resting and stresscomplications and no
physical limitations, and is taking no medication likely tointerfere with safe driving.
Coronary artery bypass surgery and pacemakerimplantation are remedial procedures and thus, notunqualifying. lmplantable cardioverter defìbrillators aredisqualifying due to risk of syncope" Coumadin is a medicaltreatment which can improve the health and safety of thedriver and should not, by its use, medically disqualify thecommercial driver. The emphasis should be on the underlyingmedical condition(s) which require treatment and the generalhealth of the driver. The FMCSA should be contacted al (202)366-4001 for additional recommendations regarding thephysical qualifìcation of drivers on coumadin.(See Cardiovasular Advisory Panel Guidelines for theMedical examination of Commercial Motor Vehicle Driversat: http J/www.fmcsa.dot.gov/rulesregs/medreports. htm )
Respiratory Dysfunction$e1.4r(bxs)
. A person is physically qualified to drive a commercial motorvehicle if that person:Has no esfab/íshed medical hîstory or clinical diagnosis of arespiratory dysfunction likely to interfere with ability to controland dive a commercial motor vehicle safely.
Since a driver must be alert at all times, any change inhis or her mental state is in direct conflict with highway safety.Even the slightest impairment in respiratory function underemergency conditions (when greater oxygen supply isnecessary for performance) may be detrimental to safedriving.
There are many condit¡ons that interfere with oxygenexchange and may result in incapacitation, includingemphysema, chronic asthma, carcinoma, tuberculosis,chronic bronchitis and sleep apnea. lf the medical examinerdetects a respiratory dysfunction, that in any way is likely tointerfere with the drive/s ability to safely control and drive acommercial motor vehicle, the driver must be refened to aspecialist for further evaluation and therapy. Anticoagulationtherapy for deep vein thrombosis and/or pulmonarythromboembolism is not unqualifying once optimum dose isachieved, provided lower extremiÇ venous examinationsremain normal and the treating physician gives a favorablerecommendation-
consclousness ör'áiy loss of ability to control a motor veh¡cle.Epilepsy is a chronic functional disease characterized by
seizures or episodes that occur without warning, resulting in loss ofvoluntary control which may lead to loss of consciousness and/orseizures. Therefore, the following drivers cannot be qualified: (1) adriver who has a medical history of epilepsy; (2) a driver who has acurrent clinical diagnosis of epilepsy; or (3) a driver who is takingantiseizure medication.
lf an individual has had a sudden episode of a nonepilept¡cseizure or loss of consciousness of unknown cause which did notrequire antiseizure medication, the decis¡on as to whether thatperson's condition will likely cause loss of consciousness or loss ofability to control a motor vehicle is made on an individual basis bythe medical examiner in consultation with the treating physician.Before certification is considered, it is suggested that a 6 monthwaiting period elapse from the time of the ep¡sode. Following thewaiting period, it is suggested that the individual have a completeneurological examination. lf the results of the examination arenegative and antiseizure medication is not requ¡red, then the drivermay be qualified.
ln those individual cases where a driver has a seizure or anep¡sode of loss of consciousness that resulted from a knownmedical condition (e.9., drug reaction, high temperature, acuteinfectious disease, dehydration or acute metabolic disturbance),certification should be deferred until the driver has fully recoveredfrom that condition and has no existing residual complications, andnot taking antiseizure medication.
Drivers with a h¡story of epilepsy/seizures off antiseizuremedication and seizure-free for 10 years may be qualified to drivea CMV in interstate commerce. lnterstate drivers with a history ofa single unprovoked seizure may be qualified to drive a CMV ininterstate commerce if seizure-free and off antiseizure medicationfor a S-year period or more.(See Conference on Neurological Disorders and CommercialDrivers at:http://www.fmcsa.dot. gov/rulesregs/medreports.htm)
. -. - MentalDisorders,.. : -.,: -:-!::;i;: : :' :
-"'.--.-s391.4:r(bx9) - - --- --::--- .
,:i,{ pgrsgn is physically qualified t9 driygg commercial motor. ¡. veìiçlg if lhat person: .. .. " .
Has.no mental, nervous, organîc or functíonal disease or. psychiatrîc disorder likely to inte¡ferè with ability to drive a motorvehicle safely.
Emotional or adjustment problems contribute directly to anindividual's level of memory, reasoning, attention, and judgment.
, These problems often underlie physical disorders. A variety offunctional disorders can cause drowsiness, dizziness,confusion, weakness or paralysis that may lead toincoordination, inattention, loss of functional control andsusceptibility to accidents while driving. Physical fatigue,headache, impaired coordination, recurring physical a¡lmentsand chronic'nagging" pain may be present to such a degreethat certification for commercial driving is inadvisable. Somaticand psychosomatic complaints should be thoroughly examinedwhen determining an individual's overall fìtness to drive.Disorders of a periodically incapacítating nature, even in theearly stages of development, may warrant disqualification.
Many bus and truck drivers have documented that "nervoustrouble" related to neurotic, personallty, or emotional oradjustment problems is responsible for a significant fraction oftheir preventable accidents. The degree to which an individualis able to appreciaie, evaluate and adequately respond toenvironmental strain and emot¡onal stress is critical whenassessing an individual's mental alertness and flexibility to copewith the stresses of commercial motor vehicle driving.
When examining the driver, it should be kept in mind thatindividuals who live under chronic emot¡onal upsets may havedeeply ingrained maladaptive or erratic behavior patterns.Excessively antagonistic, instinctive, impulsive, openlyaggressive, paranoid or severely depressed behavior greatlyinterfere with the driveds ability to drive safely. Thoseindividuals who are highly susceptible to frequent states ofemotional instability (schizophrenia, affective psychoses,paranoia, anxiety or depressive neuroses) may warrantd¡squalification. Careful consideration should be g¡ven to theside effects and interactions of medications in the overallqualification determination. See Psych¡atric Conference Reportfor specific recommendat¡ons on the use of medications andpotential hazards for driving.(See Conference on Psychiatric Disorders and CommercialDrivers at:http://www.fmcsa.dot.gov/rulesregs/medreports.htm)
..;iA person is physically qualifi{ i9 drive a commercial motor ;.::. -. vehicle if that person:'. Has distant visual acu¡ty of at ¡east 20/40 (Snellen) in each eye'
wíth or without conecflye /enbes or v¡sual acu¡ty separately' conected to 20/40 (Snellen) or better wíth conectíve lenses,distant binocular acuity of at least 20/40 (Snellen) in both eyeswith or without conective lenses, field of vision of at least 70degrees in the horizontal meridian in each eye, and the abilíty torecognize the colors of traffic signals and devices showingstandard red, green, and amber.
The term "ability to recognize the colors of is interpreted tomean if a person can recognize and d¡stinguish among trafficcontrol signals and devices showing standard red, green andamber, he or she meets the minimum standard, even though heor she may have some type of color perception deficiency. lfcertain color perception tests are administered, (such aslshihara, Pseudoisochromatic, Yarn) and doubtful findings arediscovered, a controlled test us¡ng signal red, green and ambermay be employed to determine the driver's ability to recognizethese colors.
Contact lenses are permissible if there is sufficient evidenceto indicate ihat the driver has good tolerance and is welladapted to their use. Use of a contact lens in one eye fordistance visual acuity and another lens in the other eye for nearvision is not acceptable, nor telescopic lenses acceptable forthe driving of commercial motor vehicles.
lf an individual meets the criteria by the use of glasses orcontact lenses, the following statement shall appear on theMedical Examiner's Certificate: "Qualified only if wearingcorrective lenses."
CMV drivers who do not meet the Federal visionstandard may call (703) 448-3094 for an applicationfor a vision exemption.(See Visual Disorders and Commercial Drivers at:http ://www.fmcsa._dot.govkulesregs/med reports. htm)
Hearings3e1.41(bX1r )A person is physically qualified to drive a commercial motorvehicle if that person:First perceives a forced whíspered voice ín the better ear at not/ess fñan 5 feet with or without the use of a hearing aíd, or, iftested by use of an audíometríc devíce, does not have anaverage hearing loss in the better ear greater than 40 decibelsat 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearíng aidwhen the audiometric device is calíbrated to American NationalStandard (formerly ADA Standard) 224.5-1951.
Since the prescribed standard under the FMCSRs is theAmerican Standards Association (ANSI), it may be necessary toconvert the audiometric results from the ISO standard to theANSI standard. lnstructions are included on the MedicalExamination report form.
lf an individual meets the criteria by using a hearing aid, thedriver must wear that hearing aid and have it in operation at alltimes while driving. Also, the driver must be in possession of aspare power source for the hearing aid.
For the whispered voice test, the individual should bestationed at least 5 feet from the examiner with the ear beingtested tumed toward the examiner. The other ear is covered.Using the breath which remains after a normal expiration, theexaminer whispers words or random numbers such as 66, 18,
-!:'. :. :::i:-: VisiOn . .:' '
--.,-,, ;,;9391.41(bX10)
I- -: :"a;:,É!'ì,-.i
23, etc. The examiner should not use onlysibilants (s sounding materials). The oppositeear should be tested in the same manner. lf theindividual fails the whispered voice test, theaudiometric test should be administered.
lf an individual meets the criteria by the useof a hearing aid, the following statement mustappear on the Medical Examiner's Certifìcate"Qualified only when wearing a hearing aid."(See Hearing Disorders and Commercial MotorVehicle Drivers at:http ://www/f mcsa.dot. gov/ru lesregs/m edreportshtm)
Drug Use
s3e1.4r (bx12)A person is physically qualified to drive acommercial motor vehicle if that person doesnot use any drug or substance identified in 21
CFR 1308.11, an amphetamine, a narcotic, orother habit-forming drug. A driver may use anon-Schedule I drug or substance that isidentified in the other Schedules in 21 part 1308if the substance or drug is prescribed by alicensed medical practitioner who: (A) is familiarwith the driver's medical history, and assignedduties; and (B) has advised the driver that theprescribed substance or drug will not adverselyaffect the driver's ability to safely operate acommercial motor vehicle.
This exception does not apply to methadone.The intent of the medical certification process is
to medically evaluate a driver to ensure that thedriver has no medical condition which interfereswith the safe performance of driving tasks on apublic road. lf a driver uses an amphetamine, a'narcotic or any other habit-forming drug, it maybe cause for the driver to be found medicallyunqualified. lf a driver uses a Schedule I drug orsubstance, it will be cause for the driver to befound medically unqualified. Motor carriers areencouraged to obtain a practitioner's writtenstatement about the effects on transportationsafety of the use of a particular drug.
A test for controlled substances is notrequired as part of this biennial certificationprocess. The FMCSA or the driver's employershould be contacted directly for information oncontrolled substances and alcohol testing underPart 382 of the FMCSRS.
The term "uses" is designed to encompassinstances of prohibited drug use determined bya physician through established medical means.This may or may not involve body fluid testing.lf body fluid testing takes place, positive testresults should be confirmed by a second test ofgreater specificity. The term "habit-forming" isintended to include any drug or medicationgenerally recognized as capable of becominghabitual, and which may impair the useds abilityto operate a commercial motor vehicle safely.
The driver is medically unqualified for theduration of the prohibited drug(s) use and until asecond examination shows the driver is free
from the prohibited drug(s) use. Recertificationmay involve a substance abuse evaluation, thesuccessful completion of a drug rehabilitationprogram, and a negative drug test result.Additionally, given that the certification period isnormally two years, the examiner has the optionto certify for a period of less than 2 years if thisexaminer determines more frequent monitoringis required.(See Conference on Neurological Disorders andCommercial Drivers and Conference onPsychiatric Disorders and Commercial Driversat:http ://www.f mcsa. dot. gov/ru lesregs/medre ports.htm)
Alcoholisms3e1.4r(bxr3),A person is physically qualified to drive acommercial motor vehicle if that person:Has no current clinical diagnosís of alcoholism.
The term "cunent clinical diagnosis of isspecifically designed to encompass a currenlalcoholic illness or those instances where theindividual's physical condition has not fullystabilized, regardless of the time elemenl lf anindividual shows signs of having an alcohol-useproblem, he or she should be refened to a :
specialist. After counseling and/or treatment, heor she may be considered for certification.
POTENTIAL EXPERT WITNESSES
SLEEP SPECIALISTS
Sleep specialists come from a variety of medical backgrounds. In addition to their primary specialty, they may also be board certified through the American Board of Sleep Medicine.
A few of the specialties follows:
• Primary Care Physicians (Family Practice/General
Practice/Internists)
• Pulmonologist (specializing in the respiratory tract)
• Otolaryngologist (specializing in ear, nose and throat issues –
ENT)
• Cardiologist (specializing in heart-related conditions)
• Neurologist (specializing in disorders of the nervous system).
• Psychiatrist (specializing in mental health)
• Alternative Medicine (Acupuncture)
• Sleep Medicine (specializing in sleep disturbances and
disorders)
BERLIN QUESTIONNAIRE
llciaht (m) Wclaht (k&) Age. __ Male / femnlc l'lenJC chooM: the com:<.: I response to each question.
CA·rtCOR>' 1 1. Do yo a snore? _a. Yes _b. No _e. Don'thow
If you'"""· 2. Your snoring is: _ "· Slightly louder than brcothina _b. As loud as tnlkina _e. louder than Wlklng _d. Very loud - ean be henrd In udjuccnt rooms
3. Jlow oftu do you In ore _ 1. Nearly every day _b. 3,... times a '~c:ck _e.l·2timeuwe<~ _d. 1·2 tim<s a month _e. Nc:'tcr Of nearly never
4. IJ1U yoursnoring ever bothert-d other l>eoplt? _ u. Yes _ b. No _c. Don't Know S. H as anyone notieed that you quit breathing &sriag your sl~p?
_ 1 'learly every day _b. 3 .... times a \\etk _c. 1-2 tirnes a week _d. 1·2 times a month _ c. Never or nearly never
CA't'£GORY 2 6. How often do you reel II red or fatigued after your lllteJ,? _1. Nearly every day _b. 3-4 times 1 "cck
c. 1·2 times a week _ d. 1·2 limes 1 month _e. Never or ntarl)' ne' cr
7. Durlac your ~•king tlnu.•,do )<OU
feel tired, fttlgutd or not UJ) to pur! _ u. Neorly evc1·y duy
b. 3-4 times 1• week e. 1·2 limes o week
_d. 1·2 times a month _e. Never or nearly never
8. ll1•• you •••r nodded ofT or f1ll•n aslotp whlk dri>lna • ••bl<lt? -•· Y<>
b.No
Jfy•s· 9. flow of!e11 do<-• thl• ue<ur? _a. Nemly c:vcry dtly _ b. 3-4 times fl week _c. 1-2 tirnes n week _ d. 1-2 limes" mo1Hh _e. Neve-r or nearly M\'er
C..n:CORVJ 10. Do yoo have hl&b blood prasure?
Yes _ No _ Don' l know
Berlin Questionnaire (for sleep apnea) Sconng Be1in questionnaire Adapted frcm: Table 2 lrom Netzer, et al.. 1999. (NeUe< NC, S1401ls RA, Ne<zer CM. Clark K, Sltolll KP. Using the Bed~n Oueolionneltt to l<let~llfy pot.enll ot risk for tho sleep epneo syndrome. Ann fnlern Mtd. 1999 Oct 5.131(7) •8S·GI)
The questionnaire consists of 3 categories related to the risk o f having sleep apnea.
Patients ceo be classified Into High Risk or Low Risk based on their responses to the Individual items and thtlr ovenallscores In tile symptom cetogoriea.
Catogorie• and scoring: Category 1 ~ems 1, 2, 3. 4, 5. Item 1: if 'Yes', assign 1 point Item 2: if 'c or 'd' Is the response. assign 1 point Item 3: ll 'a or 'b' ls the retponae. assign 1 point Item 4: ll 'a is tM response. assign 1 point Item 5: il'a or 'b' is the response. assign 2 points
Add points. Category 1 Ia poaltlve II the total score Is 2 or more points Category 2 items 6. 7. 8 (item 9 should be noted separately) Item 8: il 'a or 'b' is the response, assign 1 point Item 7: d '1 or 'b' Is the response, assign 1 point Item 8: W 'a Is the response, assign 1 point
Add points. Category 2 Ia positive II the total sco"' is 2 or mont points Cttegory 3 Is positive If the answer to Item 10 is 'Yes' OR If the BMI of the patient Ia greater then 30kg/mt. (BMI must be calculated. BMIIs defined as weight (kg) divided by height (m) squared, I.e .. kg/mz).
High Risk: if there are 2 or more Categories where the score is positive Low Risk: if there is only 1 or no Categories where the score is positive
Addrtional question: "em 9 should be noled separately.
STOP BANG Questionnaire
Beiahl __ in<ll<$/cm W<iahl _ lblkg Age __ Moi<IFemale BMI Coll•rsit< cfshirt: S, M, L, XL, or Inches/em Neck eirCUirfercnee• em -
I. Snoring Do you .mor: loudly (louder 1hon tolking or loud enough 10 be hcmxl through closed doors)? Y<s No
2. 11red Do ) ou oflet feel rired, faliaued. ot slttpy during da)'lime? Yes No
J . Ob•orved lias anyone observed you 51op brelllhinll during your sleep? Yes No
4. Bloodprcssur<: Do you have or are you bein& crcaced for high blood pre.ssure? Yes No
S. BMI BMI more !MnlS kllfm'? Yes No
6.Age Ai< over 50 yr old? Yes No
7. Netk elrcumrerence N~k cir<:untference g1-ca1cr chnn 40 em? Yes No
8. O.nd<r G<nder malt? Y<s 1\o
• Neck ci.n:lmferencc is meMured by staff
1/iglr risk ojOSA: answerina ye.s to thrc~ or more items /_,ow ,.{\·It oj'OSA: answering yes to less 1han thl'ei) items
Adapocd from: STOP QuaNonnafre A Tool to Screen Patients for Obstructive Sleep Apnea -· Ctotm9, F ReP. C.,' 81,. Y-M 8 B S. ! Pu Uoo, !I 0 ,t Sll1ton A Cl>iJnf, PI>.D.§ s.nthrtV-IIIJBS- S.ull<*i-IISc,.N-IIO,tc.MII- FRCP.C.o Alu .. aa .. .., ... I. I IWI~O ..... ~.....,_,-# ' )(:oeio, .............. _ ... ._ ....
The Epworth Sleepiness Scale
The Epwotlh S1eepiless Scale Is widely used in the field of sleep mediCine es 1 sullje<1ive measure of • pat4tll's sJeePne$$. The lest Is a lisr of eighl silualions in which you ra1e yow tendency 1o become o!Hpy on 1 sC<IIe of 0, no chance of dozing, 10 3, high chan<:e of dozing W1en you !Irish lhe leSI, add up lhl volueo of you· responMo. Your rouolocorels based on a ocole of 0 10 24 The scale eslimaleo wllethlr you are experiencing exceuwe oiHj)inHs lllal possibly requorfl medlcol enenrion
How Sleepy Are You? How likely are you rc doze off or fall asleep in the following siluallono? You should rare four chanoes of dozing off, not )u$1 feeling !Ired. Even If you have nor done some of rhese things reoently 1ty 10 de1ermlno how they •NOuld have affected you. For each siruation, dooldo wh-or nor you would have.
• No c:n.not of dozing •O • Slight dlanoe of~ •1 • Moderale chance ol dozJng •2 • High dlanoeofdozing •3
'Mill down lho numoer corresponding to your choloe In llle right hand column Tolol your soore below.
""Siiiinganc ~. 'of ' •
".1 TV •
:mr>Q. ton a I (I g ' I ror •
AI 1 Pl'""9"' in a car lor rwliiiOUi". • break
1 L yong O(IWn 10 resl'n me •
~and • r aner •
I'" a oar, whlle I tor a few 'In traffic •
Analyu Yout Sco,. fnltrprelldon:
0·7:lt It unlikely that you are abnotmely Reepy. 8·8:You h.ve tm everago etnOUn1 ot Olylime 16eeptness.
10·1S:You m.ey be exoet~lvoty 11oopy dtptndlng oolhe 1itu-at1on. You m•y w1nt to oontidtr tttldng medical etutntlon.
16·24:You 11e txoenively ''"PY and •nouiCI contldtr tetklng moo!o11 auenUOtt
Re!Ofenct: Johi'IS MW, A new method for me11url~ daytime s.)eepinen: The EpW'Of1h Siteplness Scale. SleSp
'"'· ••<el $OO.S.
Regulations Section Page I of3
I )( FOOetal Motor Camer Safety ActnlniSirt~lion I Published on Federal Motor Carrier Safety Administration (hl!o://www,fmcsa.dot.qov)
Part 391 QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS
• Section • Guidance
§ 391.41: Physical qualifications for drivers.
(a)(1)(i) A person subject to this part must not operate a commercial motor vehicle unless he or she is medically certified as physically qualified to do so, and, except as provided In paragraph (a)(2) of this section, when on-duty has on his or her person the original, or a copy, of a current medical examiner's certificate that he or she is physically qualified to drive a commercial motor vehicle. NOTE: Effective December 29, 1991, the FMCSA Administrator determined that the new Licencia Federal de Conductor issued by the United Mexican States is recognized as proof of medical fitness to drive a CMV. The United States and Canada entered into a Reciprocity Agreement, effective March 30, 1999, recognizing that a Canadian commercial driver's license is proof of medical fitness to drive a CMV. Therefore, Canadian and Mexican CMV drivers are not reQuired to have In their possession a medical examlnefs certificate if the driver has been issued, and possesses, a vald commercial driver license Issued by the United Mexican States, or a Canadian Provin~e or Territory and whose license and medical status, including any waiver or exemption. can be electronically verified. Drivers from any of the countries who have received a medical authorization thai deviates from the mutually accepted compatible medical standards of the resident country are not qualified to drive a CMV in the other countries. For example, Canadian drivers who do not meet the medical fttness provisions of the Canadian National Safety Code for Motor Carriers, but are Issued a waiver by one ofthe Canadian Provinces or Territories, are not qualified to drive a CMV in the Un~ed States. In addition, U.S. drivers who received a medical variance from FMCSA are not qualified to drive a CMV in Canada. (II) A person who qualifies for the medical examlnefs certificate by virtue of having obtained a medical variance from FMC SA, in the form of an exemption letter or a skill performance evaluation certificate, must have on his or her person a copy of the variance documentation when on-duty. (2) COL exception. (i) Beginning January 30, 2014, a driver required to have a commercial driver's license under part 383 of this chapter, and who submitted a current medical
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examiners certificate to the State In accordance with§ 383.71(h) of this chapter documenting that he or she meets the physical qualification requirements of this part, no longer needs to carry on his or her person the medical examiner's certificate specified at § 391.43(h), or a copy for more than 15 days after the date it was issued as •1alid proof of medical certification. (li) A COL holder required by § 383.71 (h) to obtain a medical examiners certificate, who obtained such by virtue of having obtained a medical variance from FMC SA, must continue to have in his or her possession the original or copy of that medical variance documentation at all times when on-duty. (3) A person is physicallY qualified to drive a commercial motor vehicle if: (i) That person meets the physical qualification standards in paragraph (b) of this section and has complied with the medical examination requirements in § 391.43; or (li) That pereon obtained from FMC SA a medical variance from the physical qualification standards In paragraph (b) of this section and has complied with the medical examination requirement in § 391.43. (b) A person is physically qualified to drive a commercial motor vehicle if that person-(1) Has no loss of a foot, a leg. a hand, or an arm, or has been granted a s<ill performance evaluation certificate pursuant to § 391.49; (2) Has no Impairment of: (i) A hand or finger which Interferes with prehension or power grasping; or (ii) An arm, foot, or leg which Interferes with the ability to perform normal tasks associated with operating a commercial motor vehicle; or any other significant limb detect or limitation which interferes with the ability to perform normal tasks associated with operating a commercial motor vehicle; or has been granted a skill performance evaluation certificate pursuant to§ 391.49. (3) Has no established medical history or clinical diagnosis of diabetes mellitus currenUy requiring insulin lor control; (4) Has no 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. (5) Has no established medical history or clinical diagnosis of a respiratory dysfunction likely to Interfere with his/her ability to control and drive a commercial motor vehicle safely; (6) Has no current clinical diagnosis of high blood pressure likely to Interfere with his/her ability to operate a commercial motor vehicle safely; (7) Has no established medical history or clinical diagnosis of rheumatic, arthritic, orthopedic, muscular, neuromuscular, or vascular disease which interferes with his/her ability to control and operate a commercial motor vehicle safely; (8) Has no establshed medical his lory or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a commercial motor vehicle; (9) Has no mental, nervous, organic, or funcUonal disease or psychiatric disorder likely to interfere with his/her ability to drive a commercial motor vehicle safely; (10) Has distant visual acuity of at least 20/40 (Snellen) in each eye withoul corrective tenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of at least 20/40 (Snellen) In both eyes w"h or without corrective lenses, field of vision of at least 70' In the horizonlal Meridian In each eye, and the ability to recognize the colors of traffic signals and devices showing standard red, green, and amber; (11) First perceives a forced whispered voice in the better ear at not less than 5 feet with
http://www. fine sa. dot gov/prinVrcgulations/ti tle4 9/section/3 91.4 t 31212015
Regulations Section Pagc3 of3
or without the use of a hearing aid or, If tested by use of an audiometric device, does not 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 withou1 a hearing aid when the audiometric devi<:e is calibrated to American Natonal Standard (formerly ASA Standard) Z24.5-1951. (12)(i) Does not use any drug or substance identified in 21 CFR 1308.11 Schedule I, an amphetamine, a narcotic, or other habit-fOITiling drug. (II) Does not use any non-Schedule I drug or substance that is identified in the other Schedules in 21 part 1308 except when the use is prescribed by a licensed medical practitioner, as defined in § 382.107, who is familiar with the driver's medical history and has advised the driver that the substance will not adversely affect the driver's ability to safely operate a commercial motor vehicle. (13) Has no current clinical diagnosis of alcoholism.
Citation: [35 FR 6460, Apr. 22, 1970, as amended at 35 FR 17420, Nov. 13, 1970; 36 FR 223, Jan. 7, 197t ; 36 FR 12857, July 8, 1971; 43 FR 56900, Dec. 5, 1978; 55 FR 3554, Feb. 1, 1990; 60FR38744,July28, 1995; 62 FR37152,July 11, 1997; 65 FR59389, Oct. 5, 2000; 67 FR 61824, Oct. 2, 2002; 73 FR 73127, Dec. 1, 2008, 75 FR 28502, May 21, 201 0; 76 FR 70663, Nov. 15, 2011; 77 FR 4483, Jan. 30, 2012)
Disclaimer:
Although we make every effort to assure that the information we provide is complete and accurate, it is not intended to take the place of published agency regulations. Regulations issued by the U.S. Department of Transportation and its Operating Administrations are published In the Federal Register and compiled In the U.S. Code of Federal Regulations (CFR). Copies of appropriate volumes of the CFR In book fOITilat may be purchased from the Superintendent of Documents, U.S, Government Printing Offoce, or exanlned at many libraries.
The CFR may also be viewed online at bttp;/JECFR.gpoaccess,gov.
U.S. DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
1200 NEW JERSEY AVENUE, SE
WASHINGTON, DC 20590
855-388-4200
SOurce URL: bUg'ilylww.fmcsa.dot.goWr~ulationsiJilie49fsectjgnl391 ,41
http://www, fmc.sa.doLgov/pri ntlrcgulalions/ti tlc4 9/section/391 . 41 3/2/20JS
Tho Jloll<>l'~bltAuut S. Ferro t\duliuislmtar
National Transportation Safety Board W•shlngton, 0 C. 2~
Safety Recommendation
D11o: Ocrobtr 21. 2010
In roply rotor 10: H· 10·81hroufi)J ·I I nnd H·OS· IJ nud ·1 4 (Jlcilcr•rion)
l' cdei'ftl MofOI Clu'ner sarery Ad.minjstnuion 1100 Now Jm•y Avenue, SE Suilt W60·JOO Wasluo~rou. D.C 20S90
On Jrul< 26. 2009. a multM?bicl• accidm1 oc:nomd on Jru ... r••• 44 (I~) near Miami. OklabOlUA, shortly after I tuioor- accident W the SAliM YtdnUy Ottu.rred TI»e mi.ocr a«idcut lOOk ploc• obatu I I) p m . wb<u 1 2001 Ford Foeus lrovclmp ntlbowul 11 111ilopoot 321.7 "'' l-44 dliOed luro fl lniCk·tractor .WUlJtrader parked on tbt n@)lt 1houlde1. ARer d1~ focus .sidtswiprd the senutrtJle:r. tbt cru··s dnver overcotTe<:ted to lhC! len, latl control. and l'tnKk the con<:~le center medJau barner. The focus came to mH in d1e rOAdw-ay, bl~kms. the left eastbow:td lane. As the trAil ins traffic begau to slow and stop, it fonned 11 <1ueue. Several motorists exited their vehiclcA null bJgnu to push the disabled Pocus to the rig.lll shoulder. The qun1~ of stopped Vt•hiCI\lli And Rppronchlntt bill .slowing vehic:ICN OXI~ndcd m.clc from the fiCCident .Site fi J>t>l'<lximnlcly I.SOO feel 10 noou1urilcpo11 321 .S.
MCtlllW.Ile. nbout I; J 9 v.\1)., A 76·)'eAI'•Oid II\ICk d•·iver OJK.'I'IIt in~ ll 2008 Volvo rmek~ICI'ICIOr i11 comblualioo wirb 1m empty 2009 Oreat l)auo rd}.'igc•"atcd semitrailer was rr•volins eosrlx!rUld in lhe oulside (right) lane of l-44 01 OllJlroxiUllllely 69 mjir (Th< posred ipc('d limit waa 75 mph.) Tite tmd:: driver did not rc~cl 10 the queue of .slowi1g and stopped vebiciH and e<llidod wrlh the reM of • 2003 Utnd Rove• Jpoll uhllty vehicle (SUV). As lx!lh whiclcs mov« fOIW31d, rb• l.ruld Rover 01ruck • 1003 lly.urdal SoiiAII And 1h<u d<porl<d Ill< nslll 111ue aod ol10Uick1. CQIIllllJ 10 ml off rbc ""'dway Tho Volvo courwu<d fo"'ozd. struck aod ovmodt llw H!1Jlldoi Souala. slrUCk aod ovcnode • 200.1 Koa Sp<di'L aod dl<n nuck !he,_ of o 2000 Ford 1\Wdsw miruvan. The \'oh'O ovmodt a JIOrliou of !be Wwdslar while pushing i1 into !he r<lt of a Hv.s1od: rrailer bting IOW<d by a 200.1 fO<d fJSO prd:up Ind. Tho FO<d p1clcup m1<k ••• poslwd forward IUd 11nrct a 2008 Cb<VI'ol<l Tobo< S!JV. The Volvo COIUbUI~hOII tUUI Cllll~ 10 rt'Sl approximlttly 270 fHt pJII the J)OUJI Wht'ft II 1niUIJy SmiCk lhe t.a.od Rovtr. AJ a rt.suJt of t.lw Volvo «~mbntahon mut'a llnkh~@ tbe 11lowfl.lnnd •topped vtb1clt
8H7A
2
queue on l-44, 10 passt'DgrT veb!dt occupwmrs eli~ S retttwd 011001"-to-.serious injuries. and tbe dn\-'tf of tbe Vcl\'o combinahOO 1ulit WIIS NriOtasly iujured..1
Tile Notiowll Tmn.lpo110tiou sarety Boord detennined thor the prob.,blt COII3t or this "ccideot was dl! \tlvo tnK"k drivtr'• fsul,gut. caused by the eoaubl1K"<l effe\'itl of ~~eutt slc:~p loss. ciJC:IIditul d.lsn.,tiou associ11tod with bJs sblft work sclu:dulc, Rud uuld s1CtJ1 3Jmca. wbJc.h l'e5ultcxl in lbe <lrivet•s folhu>e to !'fACt to sJowiJIS aud stopped IJAffic Aheltd by applying tbc brakes or pcrfonuins ru1y evRSivc IUAnL·uver to avoid colliding with tbe traffic q-ueue. Conrribuliug 10 the severity of rbc ttceidtlll wei'e the Volvo tmd::~h·actor combin.ttiou unit's high IIUJWIIpeed Aid its IU\ICI\U'III IUOOillplhbJitry with I he paUtUS.tf vehiclts.
Amon3 lbe intl<'l ditcu .. ed in the NoiiOOAI Trampof1olloo SoCery Boord (NTSO) ..,.Jdeul repor1 ar< 11 .. 1J<'Od Cor upcillfd oud COIJipi<MOmt COIIJ'II tdiiC-11100. Ollltsulls mel raupe managemenr prO{tfa-ms. and tbt latk of Federal ~we~ueots for VJdto e-vuu recorders oo btavy tODliiXrtia1 vducles.
Fatl&ut i:dDntion and lnform.1Uion
11te NTS.B hns lontt bccu concet'Ued 11bout bow ((lliguc 11ffec1s rt ll lrlm&J'K>I'Iahou OJlCI'ntors, jucludiug cowu1cJ~int tnt<:k IUid bus drivers. I.11 l990, the NTSH COillploted a study of 182 beavy tnu.ic ttcddents rhar were f1Ut1 l to !he truck driver 2 1l1e NTSB 's priaaf)' ptuvose iu iuve&ti@,81iog filra1·IO·Iht·l1lltk:-d:rivcr "ccidcuts was 10 assess the role of olcobol wd orber drugs in these acddeots. Tbe study fow:Kt. however. tb.at the mosr fff'(lueotly c-•tt"d pc'Obable esuse in sucb Acctdtots wu faust~. lu a aubt«~unn •afel)' study that focnnd ou &uigut • role in heavy trod: IIC<IdentJ.' lht NTSD rtror1unendtd IIIII the Federal Hi&lrwoy i\duumSh'ttlion (FH\VA), 111 <OOp<ntroo wa·b tbe Amm<•u Tru<lwtjt Asto<iariom. biC (ATA). the Pror ... ,OIIll Truck Onver lmtitUit. tbe Co~~~~D<t<ial V<h1d< Sofery AlliNIC<: (CVSA), and tht No1101w Pnvate Tru<k Council. take tft following acmon:
Develop and disuminare. in cousuhaaion wirh rht U.S. l.)cpltMincut of Trau.sponanon lhuuan Facrors Coonliu~trlntt Conunbtc:o, a tntmin& nnd ('ducnuon modult' ro infom1 lmt:k dJMil Of lhC haZIUd'J of driving wlaile BltiJUCd, It $IKM1hl illcltutc lnfOIUWIIiOflllbOUI rbe: need for'"' ade(lUI\te mnou111 or qunlhy sl~p. i U'alt'(lics for 1\vordlus \ lttJ) bss sucb U Slf111t§k oappmg. con~kttiiUiOu Of Uu: bc-bavioral t~nd llh~tOIOfi.ICII I COUSC(II:c:"IICCS of MtepiDei$, and Ill 11warrnns that si"P can occur suddenly and wllbout WArning •o all dnvtn rtt;ardlm of their asc Ol' experi<tltt. (H·95·5)
The FIIWA Office of Motot Camm dmriburtd pourplllets; wO!l<.td wub the Ow!ICr·Openuor ~Ddepfttdenr Om'\"ro i\JJO<,.IIOO, the CVSA. ond the No11oool Prime Truck
1 Fo. tddiriotlal in.fonrwltwn, Mt ~t·T'rnffl)r Sctmllroi/4r Rzu,..£JN( Collmon /Iff() Pm.fi"P' YtiUde$ Olf
fillll'lltfl~ JJ, N«.r Mumn, 0*/ohuN•o, J1m1 16, 1009, HJ@bway Attid~tl IWpot1 NTSSI.-IAR·I :tl02 (Wasbi11pon. OC: N1rional Tnwport;ul~lfl ~(Itt)' Do111d, 2010}, whie1l is 1\'llilai.Jit on 11w NTSB we-bsite at <~_"W\\' .ll!tb aorlwthJ"twlO J OIUAR l 001.00 f>,
1 J.•ou1r1t, t4/rolwl, Olltf'l l>ftlJil, IJII(/ M~/11-nl Fa(tors 1t1 Ftllni-To ff•• ·lh'l'"'' 111-f''Y Trurk Crn1h~J (IIOI!Imt I), S11fet1 Study 'NTSil/SS-90/0) {Wathln,.ton,. DC. 'N'11tio1lAI Tnu~Atkltt $Jifft)' rio111d, 1990)
t Fnrtot'l Ttr#t A/fM>t FntlfH* m Jl~w 1>'Htk A«id~tt~. Yt>IJtiM I AIMh'lll , S11fcf)' Study Nl'SDI$$·9.5/01 <"'•~bu~JIOIL IX> NJ~Iiorul T1'ltlip0t'talio.t Safl:ty Dcwlrd.. J99S).
3
Council oo !hi! issue; .00 $J>On«<td tb< U.S. J)epartmont ofT..wportlllOD (001) 199S Trude and Bus Swnnit. It also futtdcd the ATA to adapl tb< sleep tducahoo and t:ainio$ modul< ckveloped by IDe Na11ooal AtrOUJUIItct 111nd Spat'e Administration to the u101or zamer mdtutry nud to ldeurify, evnhuue, nod lflvcl recommended tMn~mJeol t'rachCt'l fo• dtttml.lnina which <IIIVCrl l\J-.e At bi@)Jt~r risk of ft~idtUil Rud safety vioJntiOli.'J "Ud for devtJopi.ng Ql4:1UI:t of nppt'OJlli&lcly modifying dJ lver btluwiot·. 11lc development nnd distt•ibuliou of brochures. utl\oual.!.l. Mul ,ideotapes. ruch M '''J'lw Alc_l't Driver. A Trucket·•a Guide to Sleep. Fati~e. and Rttl in Otu· 2.<1-Hour Society," "Awake at tbe Wheel," "FAtis:ue and lhe Tmck Drivtl'," alld "Dealillf with Tnlc:k Olivtr fat i(I.\IC:' publicized the imponAnce or lbe isstle :>f ffl tig.ue. nte PIIWA st"led tluu it would coobnue ils ednc:atiOMI acuvilles ftnd duu lbe stnucgit plan for iu OOt<t of Motor CIITiell would ut<hlde tdttcotiODAI •od infonn•hon•l API'fO"Chel Safety Re«ltWll<<>datuo H-9S·S w .. clauof...S "Ciooed-A«q>tllbl• Achon" 011 July 7. 1998. due to lit< 1$fttcy's "ort wotb vanotos orpnuattoOJ to ednool< ""' .... abotot ............ or drowsy driYUJjL
When NTSB invtslipton l't'Vi.:w\.·d the ttalmng m:~trrial th11t tbt mo«or carrier in thi'.l cft&O, Atsocirued \VboltSIIIt O•"OCen. l11c. (AWG). provided it1 dnvta'S on fatap1e, they fo•uad only lbt VI IS videotnfl" "The Alert Orivor· A Trucker's Ouodc 10 Sl••l'· Ftll i~ue. ond R•sl in Otu' 24-l lour Society,'' which wn• rclenscd in 1996 by I he ATA. in p:u1not• ltip with 1110 FHWA Offico of Motor Canitrs. Although the vidl"' provides valuable guide lineR (OJ' 11\ltk drivel'$ r~garding tlu: importa.J.K'e of sleep, the cognihve eiTe-cts of sleepineiS, and the best strategies to rt>duce fatigue rela«ed to shift w01t. sorne of the infonwuion provided is outd..'l tcd, and tbc video doti not indudc vital fati,_ue .. rtlAt.d fatll and guida.nce. For txamplo. the vi~ ref«ences obsolete ltouro.of·""'icr (HOS) rti!Uioli""'; lit< ftdoral Motor C•rrior Saf<ly Admimotntioa (FMCSA) lltuUft<llllly ...--! tbcto r<jt)olatoocll Ul Apnl 2003. limohl)$ dnvuo~ to 11 boon witluo a l4·heur. -·•teodabl• period aft or <Otlllttj! 00 duty foUOWllli I 0 C:Oil'I<C\lh\'0 boon orr duty (known 1s tbt ll·hour rult) 4 The video also does ool mention the nsl:: facron for obstrucliH sleq> apoea (05A). wbith is a si(tWfkaol omis5iou. t0vr1~ the prevalence of lh~ factors among eommerciRl drivers 5 Fun her, the d.rivt'r fnligur video doe$ not meution rhc unpo.nance or runintninmg one's health nud diet to reduce fnli~uc.' RtstiUCh hru JeveAied hO\V a llf'allh 1\nd wellnc:n l~@lllli!'U can reduce tbe ri•k filt'IO I'S thl\1 IUJty JeRd to nui[(IIO nnd <howsi.ee.ss. 1 A booklet thnt nt.-compautts the video include• 10me infonnntiou on hta1llh tHAluteot'mce :tu<l OSA rask
• Ahbou@b tbt- n&lel concemiiiJI wttU)' hm.its b oo-dl.ll)· tOne ~~ned Ut~C'Iwlfed, dn'-ers we~ aUowed to , . .,...., lht ••'l'tkl) bmit Qkloll.a.on dlft' thty 1ool; J• «»Qsecuth"'! boun off cht()' (bq\1111 •• •)e l4·boar rdiiMt poo.•"-l Tbc: n.k aiJ,o c:~ lbt ftqultttc off..,. hnw 6om 110 10 lllot.n prO\ld.Qf dn"m O'lOR rime* ,..,..., .. ,....
t (alll. SNob ..t olbcn .. ..,.,. ...d S .... O..O.dered Bn.lhant • c .. ,.,MtC.al Lollf·Haj Tnd: Dn\ifft. ..
C1w:t,, \'01 107. 110. S (1991). pp 117,_Uil. (b) ll Hltbllco JOd H Sw•v•l. "'SiftP'll'N •• WOJit AIOOI:II C'OttllllUio::tal Tiud Driv~n. .. SIHp, \'OI 2J. no I (1000). J."P • .C9-j7,
• (a) J. a .'Oekt:ki otbdl, ComN,.fflffl T'rri tfltd Blt.t Stljery S)·'Jt~IS 1· /tfoiOt«xteh I,NfMJtJy HOtll'$ ()/.'ittniu nml Ft~ttgu• M(UJI!f.M/#111 Terltntqu~' (W,ubiJif,IOI\, DC: Trrmsportation Rnc-•n:b Ooud. 200S). •;b) Fo#p« $""*'' ~/ BC Trurk /)Jil'W'* (WotkS..f•BC, Dtumbtr 2005),
(A«~~ JuneS, 2010). (CI 1), Wlej~.a~}Cj, Jl, Ht.~.ow•k, 1111d S, Mcl)o.~ld. Commmtnl MOIOI' YIIIH"fl Jli•nlth mfd fl'riiNIIII Sf11d)• Fmof R'JIOII. 00·\JF..OO'l (Biffl;kfbt.ltln Virrc:bt.IA: N111.ounl Surf•c~ 'l"rnmponaalou Safely C'enlfr It>• lk~cllcu(:e. ft•bi\W)' 11 .2009),
1 (I) R. Stoolls MOd odu.-n. (b) H Hlkkll~~tn aod H. Suumal. (c:) FMtr~ Snr't .. 'oj BC T'hd IJmw-..
(oc:lotS. boWev!S", ._..... lhe vicJ<o d dJe primary modo o( iu(onnaboo cbs.'<'mioarioo, lh< ltleplloo o( !lis infOilllariOIIIO 0 snppl<m<t~llUy booldel makn Illest hl:oly IMI il will be S«U
oud h<od<d by 11'11Ck drive11.
lu Rdd1tton, the J 996 video J.wovidos qutslionable stnllej.ius fOt' lllltk dJ iwrs to follow m cotubntlnlt sleepine-ss. such 111 chewiuif. gum, t"atlng sunflower seeds, Hu ulng on (be radjo, and rollill,Jl dowu the window.1 11owcvt-r. on hs website. tbc FMC SA hAa disCOUJ'ngcd tbc lL':IC or tmch "'alertness tricb:• slating du11 1bey Arc not .. real ewes foJ' dtowsmess nnd IUft)' Fi\' t' you a false sense of sectuity."'
lbt NTSB couctudet th1111 tbt provts.aon of new And updlttd infonmtiou on ilt~. tausue. and altnDtss by oho FMCSA. bANd oo ••••••IJlOI'li'Y ..,,.,,,n. ,.......,h. 11 eos<uualoo eosnrina lbal ~oal dnven bavell~< .....wy snodao<e lo enable obow 10 b: aim and well resled wbm opmotin@ ob•tr velucles Upckoing Ill< informahoo boons P<ovided lo lruCk driven 011 C.li&\1< and (al:i'l< conooern,..st.-.., HOS. and OSA may help 10 reduce ac<odeniS caused by f.atigut, tberefcn, the NTSB recommends that tbe FMCSA c:rtRit educ11tiooal materials tbat J>tovide C1111\"'r infomu11ion on f11tlgut and fati,aue countenutMurts nud mnkt the nll'ltf'nnls IIV11113b l~ in d~fcr<:nt l'onnt111, lnc:ludinJ UJxt.lltius tmd te<llstrlbllllllJ II• ll, l c:k~dtiVtl'·focused drivet fotigue 'ltdco. l'i .1J1hcr, the J1MCSA should Ull\kc tho video IIVAiltlble c ltC:Il'OIIiCliH)I for quicker d1sse.miu.·uiou. And il tbould illJJJicmeol a pl:tu ro l'tf!.ulnl'ly UJ)dnlc jb.: educational matcri11lsllnd tlle video with the lfttest acienlif'le information and to reguhuly tedjstribute them.
Yati&ll~ J\1ana&~mut Procram'
AltbouPI employee educahoo <011Cfl111l13 ra~igne ,. <xllfllltly \'oluable, doe provo11oo of m(onnariou akue IS msuffictftlt to C:OUJhtutt All adtquatt C,.tJJUC UlAtUI$C'Int'lll propmn, wbJC:b abouJd ID\'Ol~ all aspetts of 1 carrin'a OSX-'faiJOO.. A farigut manasnntut .,.-o,.ra:u IS 1 sysJrau11
designed to take a corupreberuive. lsilorrd approach (0 the issue or faiJ{tt~ Withal an industry or a workplace ao:J to addrr.s.s che problem of fatigue in an opeom.rional envirouauetL Commonly, :. fnh8Ue mAmtp.ement PfOSJ'IUll would incotporntc individual propAm~focused efforts to heiJJ UIM1t8!1." fn tigue (ror exn1111)lo, J)()lic:lea 11nd JH'Acticcs ~tddretttllB sched11lms; 11 anendnne•: CIIIJ>Ioycc education. medicaiHCI'et:nln,p., nnd trentwcul: p~t-.ounl a'CSJ>Onsibility during nouwo1t 1Jt1iods: tnskArorkJood is.+.~uc"; 1'fSI euvU'Oum~uts; mad rotrunutiJl,S rwcVor III'IJJJJin') as well 1.1s AU O\'f1'all or(Utnitatioual stt-ates,y for iiUJ)Icuaeuting, supervising, 1md evAluatlug the pima. Maaly motor C"arricrs have developed and JMU into ac1ion their own f"''£tue management proparus. alli10t1gla lh~ exte:nr and nann oft be f)IAni vary wjdeJy
1 A VIIDtU s;llkd .... dw Voh'O c• 't *"'ft .... tn.tow \lo"l' lOlled down et dw IK<'Mk .. t«<W . ... C' tk M.,..,.run bno( .tlo\'W' UlO •F 'l1la1 WM <afinonf • pcbla«tdtal tc_, pilot~ ll0'+11'f\CI. II K 1110'1 tDlrMi •lwtbcr Cbc .....,.. ••s opeued tw-rore Ot i...wdlolltl'ly roi!OWUII dw ..:c:adeht
• See <hfrp;/l 'lliWW.fiiiC'M dot t0\·ltb9t•r.·ou~:teb!~atioav'*jxs<tpltlr!)JC•61rim )an> (aceii!SH'd 'NO\~n1be:r J. 2CKX).
10 JfAiii'te rtwaagtmenc ' )111111111 4011n alto be rtfnred to fi.S (IIIIIJUC nllmllj.flllitlll pbu.. fslif.\W 1111.: 1uMl.t8tlllttM
J1101}JlUIU, r11if;lte IIUinllJ.tmoant ldWIIlV\. (!UI.IIt COILIIItnuc.s-UrU f'l\ljrfiUl,, lind IICI1ncn UliiiW,.Illelll f)MilfiPl,, POl' lilt VUI'JIOUl of lhi t lciiC'I , tho 1¥1111 " (ll li i UII l li*!~j.tll!lrlll pi'OtJ.IIIIII" Will bt UMd when rtfei'I'UII !tl~otnUIIy IO ~~~~~ •y~t•m•.
II $(bco&;lliuJ poll.Cie$ and t>r.toebC~ ( Qu)d Wcludc \\1lllen pol Kin aod/01 d1t UM of (Mt~l.lf'-'lllOdtling r;oftwwc toob to tl!ii.M in rucn de'\'\'lopmeut.
AWG q>eral .. arotoldll,. clod aod ill ~us wOO< 011 •tun •clt<dul<S. yet lbe NTSB fOWid oo evide-1ce abat lhi¢ camtr bad tabu any C'OIJ1P6U}'Widt atiJOO 10 uunuuize tbe occurrenN or (<t~tigutd drh·nlf:- Apan from in(luchu~ fht omd;ued ··Alen Drh·cr·· video '" IIJ "UIIUID(t Htnry, AWO dad not luwe noy pro~1uu 111 plll<.'e' to prtpart nod tdU(tllt.1 ilt chtpnrehen. OHUl~tJm, And dtlver' IO d~ul witll the (tiii{UIC'-I ('IOied COll~tqueoc" o r ••• thin WOik ~rAtiOO$. The NTSB concludes that AWG did oot l11wo n lnc:wha(tful farig.ue wmlB!lCIIIeni JWO(:I.ntUllll place at tbe time or the accident.
'Jbe FM'CSA is cmrcutly coiJabomllog with Trouspon Cnnftda and others on the dovelovmenl of 1he North Amencllll Foliguo MonaJ!.tlll<nl l'ro(!I~IU (NAFMP). which will provide cmupMywide (t:Uidelintl for the IUIIUI.S.ttuetlt Of f'a ii(Uif in 8 lllotOt Camet opf'nUiUIJ envir....,..,l. The NAF111P guo<I<IUlM ore envosiooed lo ptottlOCe II>< followtll{t <lemmiS. (I) COIJ>OI1I" ~ .,._., .. , mdudwg u.. W\'"""'"""" aud Sllppol1 or OIA!ta$l'Ol('UI, (2) modiJicalioos to scbcduiiOJ!. pobctts aud practices. (3) oonlpiJtywt<lt forigoc nWII~<meDI tnmiu.(t, (4) steep disorder ~recnin@: and ueatmeut for drh•en, and (S) fatlgue-mooitorintt t~hnolo2-ies a:od ttlenness stl'fttt~.lct. The NAfMP fatigue ma.nAs,emeut pidelinc:s are nuhcip1Ued to be iWililable Within t il~ next 2 yeArs: they will be npphcnble to a'J motor c~am~r optnuioru~. iodn!fll')'\'iich:, re~nl'dles! ofslto .
BecaulSf of the complex: tinhu'O of tbc tl.ctors chat contl'ibtne to ratitr.uc, Hot only has the NTSB issued safety reconuncodatiom t'tp.arding f~tigtte iu all modes. but il bas also s.uppot1ed industry initiatives Jed by tli111 DOT to develop pracaical faugue mNJagcuu:d tools for tbe ttansp<M1ation ilidustry. u For exau1.ple, LO tht late 1990s. lht DOT's liuu:mu fiiC"IOtl Coordiruuio~ Conumllt't •• BJOup c:otlJiShnt or rqM'tU'lUtii\'H from abe F'~'ll AvutttOD Admmu~trtHOU (PAA) aud ocher lnW>pollatiou ulOdal oclmuti>lllllionJ, •potttc<cd Ill ~lor Fah(!l'l< MA111(1<W<UI (OFM) Prow•m." Tht ptOpnm resullcd w ,.~1 prodtt<la, tucln.ltll{t a poteltcal JUKft adc:lttsS:n(t fatigue UWI3@:tllk'tlt a.od CountenDeMUI'(' UII~IA aod work .scbeduJ-t f't'prrsrn1ali0tlllld analysis software to aad ruana,gen and schcdulcrs in evaluati.QA and desi~uill,p; wOtk schedules and IJroc:edures for vt•Hd..-,fi.ns the ourpu1 of fatipue·nlodehng: toob. tu response to Snftl)' Reconmc:nd!\lion A.06~ It, which the NTSB lSSHe<l 10 the FM iu au report on the KIJk.eville. Missouri, oit'CmO nccldenl," on Atnil28, 2006. lhe FAA '" ""' Stt/11!' Aim fo,. Opt!t'fltorl 06004. which iufuruicd nvlnuon OJ)(!l'ato•'S of the fnt lsuc· r•lr11cd info11Unl'ion Jn 1ltc
u (•> C'bHlfHif .,,. nw • .,. F,.., A,..otlt. F.dmtl &pr~S• FI,M l<~'t ,.,._, .'!1·1JJ. ,vnJFE. Tctl,_.,n,_, Flolfdtt. .hJ) 16. 1001, Ailt:taft Acctdnu Repoc1 N'TS81M.Jl4U02 (W ...... ~ N.t~~OIIill T~U~pGNhoo Safl'f)' 80tttd. 1004) ()) Collmott "uA Tibb tUiid Crcut SIKJft qf M~·. COipotQN Atrbnn Flrrhl J966. BnU3Ir A'~* BA.E.JJ!OJ, NI1SIX. Knbd/1,, MmoHn, Ot-10/wr /0, J(J()4. A&rttat Acc*nl Report I"M'SUIAAk-06/01 (Wa,hingron. DC" N11t1ol'llll Tuu~.atioct Sakly O.O.rd, 1006)
u 11•U prognm \\'11!1 t!6111b1 1~hcd 118 Plitt of tbe ''ON'EOOT"'' JlfOinllll tu cooulmntt! rttor""' "-'llOfiJ DOT Alfu<:i tl. Q,,. of the fOil~ O( tha •ff«MI Wilt IU U!d U« lho mnliiC'I• of ll'"«:tdi.'111\ •nd ll'l,)WIH Mln.t¢el IO Qpft'IIIOI fillf!lil1t.
I ' ConmtrtruJ n•miJJiO'UWtHI 0/UN'ntol' '~'"'"' MnflltJlt!NU'_f/1 Rllfotlltc~ (WI\hhtJ.,OII. IX.' . u.s. D¢J)llr11l1C"nl of TnU ... Kif1Ati.cxl. lttHAtdt fllld Spoci11l Prow11m• Adurluo~iiUIJioo. 200J).
u N'1'S8/AA.FA~IOI.
6
DOT OFM progmn. A.,_du>S 10 DOT aod iudustry ponot~~~<l, tho Fodtr.ll Railroad AdmiJUJII'alioo bas lesled aod applied some or 111< OFM program IOOb 1D lb< nlibmd iudmtty 16
IJI fKidai.OD. tbe RAil SAruty Jmprovemtnl Act or 200811 IIDitl llmt lht SecretAry of Tunut>Ot1Dtiou. by rep;uhtlion, •hhll •t<tuire e&eb Nlilroad Ctl11'1el tluu 15 n ('lAs.! I •·nilro~d.11 ft
I'IUIJ'O.nd canier that bns iu~dt.!q\m te 1U1fety perfotm:wco (Rs <lel(aanultd by tbe Srel'tUU)'). or " J'AIIJ'oad cRnicr that p1'0V1dts imerdty rnil J>I'S..IIellger or oouunutcr milpoucuger trausporlation 10 dcvciOJ) and update, at least once evc1y 2 yl."ars, A fatigue nmnAgcmcnt plnn designed to re<lni.-e the fAtigue txpet'ienced by SAfcty·relt~ ted railroad etDJ)IoyeeJ, '" well AS the likeJibood of Aecadent.t, incidtnts, in~\UiCt, aud fRtali tin caused by fat1p:ne. F'U1htr. the Ala lute Safery Md FAA Extf1uion Act at 2010 t wall rtquare 11JI PN1121 air carum 10 iubmir ro the fAA • Carigne ri.d: UUI!UI{ttuttut plau Cor ttt p1lolt 10 tha1tbt fAA can re:vu.•w aud a«epl 11 'The plu mwr ~..DC tude ll>nUAI rail !I"" .,._elll<'lll ln11111U8 for palots. a wort/rn1 policy 10 b<lp DWII!< pilol ran suo. aod a mtlbodology IO asseu lhe <lf«IIV<II ... of lb< JliOIUIIIII- Air ClmffS will also b< requited to update and resubmit thetr plan~ 10th~ FAA rVt.'t')' 2 yean.
TI1e Ffi.1CSA hl\t not )'Cit ~tvvluxl such fuid:mcc or requueautnls concerning ftllt$1•t IUtllut8CUltut pl'o~runs iu the n •OII>t' CIUTiet' mdmlllry. However, until I lie 1-'MCSA iuu~s gmdance 10 opcrr\1011 ou lhe best pmchcts h> AJJJJI)' m developiu"- A fruig.110 uumA$CliiN11 protunm. olhet• resources ~co available 10 help lllOtOI' c"niers create cowprchcnsiw tmu,auywide policirs tutd processes for re:lucing fatigur-t~lated accidents. For instance .• organivuiouJ such as the Nation~ I lnstiltllo ror Cccuparional SAfely and Heahb Md lhe Narionol Highway Traffic Safely AdllliuU:trarioo (NlrrSA) provtde updated iufonualion aud prunphle11 relttlcd IO dljft wod: thr\1 could be used OS I SIAillll$ J)OUII ror dovcloplll$ a flligtrtllll!IIIJCIIM'III(.-O[UA1n.
10 Jl AddilioU, lbt DOT UIUCS ovorlablt stoonl r ....... IIIIIII$01Dt01 r<SOW'<ft and loob III'OIIPI Ito olfon• or ill IIWJWI for:ron Coord!nall"' Conwnll«'"
It YMNINHM W OII._,IJM oj d FdRf" Ann""""' Tool /tJI RMirW lt~t ~h s.a...v A#pt1111. DOT.o6121(W.._DC U S o.,..m-o(Tr--ollloolroodAA_'"_l006)
" For a!Ckbho•l •*-•lllltoa.. Soft <~UP h tbMM.ISSJ» •!0 10\ W• b1uudos cq"'dt..lllrtlir'"" II 0 ton& btJii&dpcaJ: ( la209'-mr m .pd t> (Ktc-Mold Auautt 12. 20 I 0).
u A Cbu I railroad i!. 01M thllt lw lllltUritol c:ani.u opuatlnf TC'\"¢1li.JCI lbllt ultt'd ctw ~boW ~moun! b C'l:tS4 I CIUnth b dttenuiud by tbc Surl'.ltcc Tr.,ktp(lf'Qtioa 8oanl Ulldcr 49 Cod• rtf FNfntll R•fiii(JIIOfJS 120l.l -1.
19 For •ddltiOt..-1 lu(omuuion. u~ o(h[!Q;/i((wsbM!!I"''cdt.!!PO.I!:Ql'lca.t~ b!ut~\I09·S1tiNl'rnnrlll 'mJM billt&:doc;id·•'[: I~20Qrdt .Ji'51·(1dl" (ae~ued A11J\Ift 19. 1010)
• For t!Sdilionnl iufo111111llou, '" <httw/rn I&'""·C'''' i!Q\'Inio\lw'lpUIO n(!!ktdt!Ntulu,l'> 1tln;:lfwmt.nldto aor/pc,,vlc6!)1!gl"'4! OWJY dtbj na IOtunynldt o"- sh hlnalrt)OW,tbCWIM cc.tu•ll ;a. acetntd Allfmt l-4, 2010),
:• SH <bnpjliLfsulplan\·,'e(ul'i•r1n b!ml> (acce5sed Ausut.l 19. 2010).
7
Tile gool of a £·uigue uuu•agement progrnm is to trutJgate htuun,u fatip,ue. lheteby reducill(t the prob{lbility of h•uurm·error-caused incidents mtd accidents. Pilot 11tudies conducted for the NAFJ..1P have shown positive rctn~hs with l'trpec:t to dJlvtr sleep lensdu ~lld ,'e(l,ucriou In critical drwiHlo e\ftiUI n Other model or U'AtUporlfttiOn-in Jm111CUIIU', avifttion •nd 11111- have mo,·od toward Jlandaltn3 fa11poo uWli~OOJ<tll prowomJ for tbe11 wodlll comm Tilt NTSB cooctudes that .K' ~ or fall""~ IMU3,C1lK'IIl JKOSfllllS by molar c:arnm hat IM polctlhal 10 reduct acddtuiJ call$td by farigutd couunercial dti\o'ttt.
To be 111ost effective, t1 ftlt isue managemenc IJfopnm should he comJlrebeusi\re And antboril~tt ivo, W1thiu the next 2 yettrl, the NAFMl' Is "XJ.~«IC'd to J)t OVId\1 flttign: uumag.ement prognun gutddmtl SJ*i0c~lly dcti8'led for U.lt ln the UlOIOt' CIUTirr f'IW'lrOI\Ule OI Uuplttutnlahon of rbe:se guidehntt by ev"Y anotor camtr would be a OliJCI scrp 1owMd addrtssan8 W. probl~m o(f'allgut •IUOOI couWltt--c:Jal dnvtn on lbc-lUihoo's luP••>"· Bul afdte NAThiP guiclclin<s rt'1llaill volunt•ry-and lftusod by lOIII< carri.,. but,,.,..... by ochers-thiJ impot1aut SAfer/ tool mittJ'It have only a limit«! etfect in reducing fau~ue--related hi¢1\vay ~tccideut.! , Com~:ctucnc ly, rhc NTSB recommends lluu tb~ FMCSA rtqlurc- nil ~noror <'Afl"itrs 10 11dop1 1\ ftuip,\ut nuuu1gcmeur prop:mm l"ued on che NAFMP guidelines for eire IU(IIIAgemenr of fAtjp.\lc iu fiJUOI>)t <:AlTier opomlinB. cuvUoruncul
n .. N'TSB refereu<ed lbt NAR>iP iu il> r<poo1 .., ao early momuo~ coW>iou beiW«u • truclc•lrliCIO< I<:Uilnliltt lllld a n>Otorcoodt n.ar Ossto, Wi.coosiu. n Allhou(ll> !be NTSB lw suppontd tbe NAFM"P df01110 crenle fatigue lllanaatweut ttuidelines. in the Outt> repon, it also e~pres.sed conc~m thAt motor ctu'l'icrs hnve been ovl'lltutt ill~ tbeir own rnii@:Ut manngem<.'1ll 1""11'""" without CXI"'''' ovmtpbt. 11oe NTSO cool!idcrcd tlull th~ I'MCSA. •• the Federol ll@tucy I'C.!iponsllle ror motor cAtTiC!r anfety, mllil aiJo bo involved in lhc evnhuuio11 of the fntil{ne management progrAms used by canit:n to detem1ine whrth~ they succntfhlly tllllt(tate fati,suco The NTSB oooduclcd !bot r.,.. f•ti~~ UlllllOgewem pro[U•uu to be .,...,..,rut, FMCSA overso(ll>t i• U«<k'<l. tb<fffore. tbe NTSB •Widt lbe foUowing r«<>llllll<Udatioo to tbe FIIICSA:
Develop IIKI USC I IUtlhodolo,:y that "ill COntiJIUaUy 3SK$S cbi:' tft"CCtiV'ftli:U of tht t'llugue [email protected] pi11JI5 nntJlcruewucd by n10101 carncn. indudm~ thtlr 1bllny to ht~>t'OVC slcc:p and ll l ttu~~es~t, mhlg~~tt' perforuumce Cl1'01\ , 1u1d prt\'CUI nK'Idctll's Au(l ll<<idcull. (H.08·14)
8os<d CD the FMCSA'$ cootuming wod; wilb !be NAR>4P, Safety R<W!lDnendation H~·l4 ,. cuautly cJamfood "'pm-A<«pl•ble R .. pou ... " n .. NTSB <OOOid<rs duu tbe cirtWJl$fAOCH of the Mim1u l«'tdeut again demonurarr the &eriou.s n~nn of farigue-r~bted nccideols nnd lhf need for offerellve fati~l.e mAnap:emenr prO[U'ftDl1 r~ud ov,'t"Sig.bt of aucb profb1'u~-t; tlu,lrefOJC, the Bontd rotiCrtlles SAfely R\-conuuendniiOU H·OS~III. and u ro1H1tln'i classjtierl"O)K•II- Accepfable RcsV()ulie."
n C•J A. MOK0\1Ida aod Olben.. C.,~ of , .Vonit A~ FtJtlp4 NoMniMntt ProgrfHI for c.,.wn.~ /alolv Ottrun. 1'1tltt._// t"'- $1wt1]-J. TP l"fJ•t (QIIa'lll':a,. Ollurio Tf1IMPOI' c.a.&. J._., 2006) (b) A S1r11lry *ld odlltn. E.lf«~t fl/ • Fliii,W J.lo,.....,, /'t~Ht ()llf FD1i6W Nt 1M C~ltll MNol' OJ""'"/~"'' tumltfatv RfiHII'I. TP 1"'91 1 G (01'141wt. Onnano I fltll'pot't C't:Mdl, S.pcttlibef l(09)
11 Tnwri•J);HIOI' Smlltr(ll/~r RtJIW•~r mrd MoiQt"NHPCh Ct#IW~r W11h ();·,ullutttd Tl'llfi, lifl4'111m•
Hig/nm,l' 94, l'lmtrO.t.tffO~ IJ'isrorni11, OfW/Hr 16, JOQj, Hit!f1WII)' A(Cide:ut R.epoi1 .N'l'SAiliAR..Olt'Ol (Wa_,.JWn8Jon, DC: N111ion•l 'ffiiJ~1.al.i.oo Sa(¢1y IJ.o11r<l. 2008),
8
Also iu the Osseo accident teport, the NTSB coucluded. tl1.11 b:.d tbt trucJc ... tractOI' semitmilcr been cqujp~d with tcc:lmolosies: to detect f1\l iguc, 1he systems mighl l,ave prevented or mitigRttd the severity of the ratigue--related c1m h. Consequently, lho NTSB 1ssued aoothc1' recommcmcbtlo1.1 reprdUJ.ll ft~tittue to the 1-'MCSA, •• follows
Dow lop lDd Ullpktumr 1 plio 10 deploy l<thllo~ ,. <OIIllncrml wine~ 10 r<du<c lbc O«l1f"<<l« offatigue-rclllcd O<<idcDIS. (H .()I.J J)
On Mny l I. 2009, the PMCSA respotlded to this tecouweud..nion 111td iucljcated that th~ devtlopm~ut of !'Ill advm1c.1ed 0I'OWIY Driver \V11miug Systcu1 Wfl~ mlde1wl\y And would movo inro prln<ot>olo'Ol<or<h •nd proiOI)'PO development In 2009. 11oe FMC SA JMojccocd rhotthi• J>b"e would I••• 2 )'em. after wbitb • couwoOJ<oaliuoriot> deciolooo wo.~d be mode. '111< f'MCSA hat aclo:oowlcd. ed U.t dmw drowsiu ... pooos • Dl3}0r llllftl IO W,hway sarooy. (I.OVW !he 24-looou opm~lions, hi~ AOOual mileascs. tholletlging environn>n~lol coocbtions, and do:nandiog W<><k scMdtdtJ r .. eed by CODll:uercial dnvers today.2,. However, in its response to the" NTSB, the FMCSA sr:.ecifically stated 11\At it wns unaware of Any nVIulable tcchnolo!Y th:.t could be used by comtuetciAI drivers for both dny ft.ud night d.rivinjl. Tile NTSB resr>onded 11m1 nhhonp.h tho FMCSA w''8 COI1'f'C1 t_hl\1 no producta wcl'e enrrenlly twnilnblc eonuncrcllllly tht\1 could bt used effectively bolh dAy aod uighl, the s,p.eocy't re«ntly publ_iJbed rcviewn of A<'ltVthes \Utde.way lo de'•elop W)()bCJUSt\-e. in·vrbiclt. real-h!De. drowsy dnvtt detcc:tto.• and td~rtueJS systems disci.ISSed II ltM1 five sepanUt S)"'lc:tU.S capable of funchoo.in$ uoc:ler I vandy cf coodirious.M TheterO<e, lbc NrSB <L'Wifi<d s.rery Reronunend•hou H.08·13 "Opeto-Uuacccpt•ble Response'" on Octol:w:r 2, 2009. The NTSB c:ou.siders tbrH the circutR,IRDC~'I of rhe Mitunl 11ccideut Apnlu demonstrate the S<'l'ious consc.-tuences of fi•tis.u~·a·elattd 11ccidents nud the need rol' iu-vehiclt ltchuolog.ics 10 roduco till.' iucicWnco of such liCCldCnls: COIIIC:llllt'UIIy. tlto NTSD reiterate~ SAfety RecouuneudtU10U l-f..08·13, and the l'eCOnlJneudrtuon remains classified ''()pcn-Uua«tplobk R.-spous• ."
VidN Ev~nf Rf'C'orde:rs-
n lt dntn !J.Aibered by the NTSB during this JllVt.,tisx.tiou stronp.ly indi(Mted that 3 loa;,., or drivtJ' nle•tneu due to f11tip.ue wtls tho moat likely cnusc oJ' this ACcide11t. l lowevel', e,ivou tlh: limited iufonuAiiou nvailllblc. tlus could uot be continued witb absolute ce•'1ahuy n uu. driver distraction rould uot be ruled our.
A 2009 NIITSA rq>O<I, An E:mmlnatim1 of Drlo-u Dlsmr<li<Hr m Rrrom..t in NIITS.~ Dntnlxuos. 11ottd 1blo1, in 2008. oloour $,870 people loor rb•or bv•s onct on .. til»lcd 515,000 PfOJ)Ie Wtrt injured in poh(t-rcpor1ed cms.hes HI which IU leaS I OUt fonn o( dJ Vtr distncllon ~1ppenred on tl1c nccidtm rvs>or1. NIITSA funher n.J8ttled lbtH. " While 11teu omnbc1'8 are
_,. A1t £,YJI.nrton of EN•tl"l DJII't!r' F(JI(gJrl I».JN'fiDn Mea¥uret tmd Ttll'hll6/oJ~6. TNb Bnr( FMCSA·IUUt~-oo6 (Wa~OL 0C: US ()cpNt~•lnM of li~U... Ftdtral Mocw C'arTitr Sa(~y Admiluscr•hOA. 1u.w %009). p. -1
n t. Rwr S ropbll. and H ttO\\wnb. Alf ~'*'II/ EiPwJt'fl Drnw FflftJW Dt~ Jl«trwrn ttttd r«lwololi~J Fm.1l lttpcn, FMC'SA·RkR..o9.00S (W..tu&:ltton, DC~ US ~fllWlll o( TmJl ... UIC._, F.ct.ral MotOr C.n1tr S*'f~ry Adnu.nblnt~'· Jww 'l009)
1• 1'h;Jat fh•t ~YSI~lUl :n'f: all illumlnllfiOI\ couditiont (from f\111 •·unligbt to oott ,>hltt cWk"n). eye(lbuH. cautact leitSfi., 1\M:KI •w•p.lauti. acid \'llliablc •ub;iett distllncts.
9
aljni6oanl, obey may uoo mot oho 11\10 me of lhe problem. •inc:• IlK' odtolloolloo of disuxtioo llnCl its role iu di~ cnsb by law mfortt'llleot can be vny difficuiL ..n II IllS been esti.motted that 80 percent of a1Jc11'1Shts and 65 perte11t or uear-cnsbes involve aocn• ">'JW of clrtvt'l' maneur.oo..11
Dlttmctaon is ooe Conn or mnllt11hOn, Acld~ accordinp 10 Nt-ITSA Fat&lhty Analys•s Repor1in~: Syatem dntn. drivel' distri\ctiou wns rtJXU1ed 10 brtve beeu involv~d iu 16 vcsctur of all fattll Cl'llllhe!l iu 2008. Acoordiu1- to NIJ"rSA's Ocue11tl E51iuuues Sysi('JU iufonuatjon "" estimattd 21 JK'l'«tll of inJUY ctasbes involve dislr3Cicd drivht(t. 29
One possible solution 10 the JH'Obltm of dnver disuoorion umy be the video evel\t reeonler (VE.R), A device dei!Jtned to ('.II)Jture video and ocher Jlft!ftUltttra related 10 opentlor and VC'hicle rK'rfOnmnct. A VER may ft('()rd fOIWIIrd·looking vadto, iniMOr video. intC1ior tnwito. loom! •«<l<nloou. oud lon!UouduiAI .... IMIIIOII VER $)'$1tnll n,.y ho eoufi~ 10 .. , •• II•• video lllld Olber daoo ofter o ul@@tflll$ t\'tol lS deo<dod VER '""'"'fa<fw<n off« systems for we i.n private. ptd.>lic, and couunert"tal \'~hides.
For cotn.11errial vehicle use, the: systellls are marketed 111 tool11 10 rtduce operntm,_ and ulSUf'rlllee costs while iucr.;~-:ts iull- lt~fety, by Allowing cotnl>nhlts to IIIOIIIhll' IIIKI tnodi(y driVfr b(lltWIOt. Wilb :es1>eCI IO opumhiiM rmd imurouce COSIS, COJHL)N1iet WJHI(:l lheiC wsteu" hnv~ hlJ)Ol'IOd l'eduecd t'ud CCniSUllli)tlou, rower colli.~ious. :uul iu~umnec clnnn~ 8A\1lU['$ CouteftinlS Hftrc: ty. the cowpauie.s 1epot1 t'Cduelious in collisions. velt1cle dt\ll\llgc, nud injury/wotkel''s corupeusation d1i.ms.
tn Janna.')' 2008, 1he NTSB in\'ettigRied •n Becidenr ntar Mlf<ICtm H~t. Utah, iu Wb1cb the utvolved ruol()l"e().cb wat eq\IIVIMMI wi1b • VER. Jl TIM: iutomu.hon tn>tu the VER •llowed invt>llPIO<J 10 doc:wn<~ll velh<le moc1011. use of beodlisJ>IJ. dmw 1<110111. and poutns<r lllltwtUI$ and "'ac:oioos B«M,.. of lbe wformoboo =ord<d by lilt VI!R on lbe Muic:au H11 mocom>:~<b. in,...tigalon were able 10 deomwne lbal ohe dnv<r was dnVUI$ 100 foso (23 wph above I he poMed speed lnni1 of 65 mpb) :md was uot disrracted or usio(l n cellular 1eltpbone. lbe VER provided \'tt1fied infonuRiioo uoswaiJaiJie by other 1HtAU.S ruKI lu:IJled prove truu 1be 11ccid~ru WftJ ct1use<l by lht dJivtr 't dlmini!lhed Blertness.
11te PMC'SA luu evahullt'<l VEJl8 in n driving bchJWIOI' uu,nnscmcttt •)'Item srudy.l2
VJ~R.s w~ae aoSialled in the flcel.a of two <.'Ouuueorcjal carriers. Ourins lho atudy's evahmtjou
11 AJt EJ,.~ of Dmvr Dtswtllt'fioll 1U RH'tllrtkd 1J1 .\11'TSA DnHJ/Jnsa, DOT ItS t l 1 ~16 (WaWD.p'*" OC' N'UTSA N11.oaal C..ll« b Swi•rkl IQCI AMt,..\. S.W~t~nlbtt 2009) See <hi• ....... - .......... ,....,.....,.,m, p41> c..-...s ~- '· 2oo0)
• S+t 4rMl )Om Mb-gwiMf••ll\ub U!OC)I Ntbplutis pmpa SlwiX U1'9?0 •p> (.cce$Md S.,....obu 21. 201~~
rt An E.m1JII1tt180'1 ~ f)myr Outrm•tion tu R«<rd«f m NHTS.t [)QraAn'' 00T liS Ill 216. 10 S« Md <bttuJtwwy.·.d!w5'1!ULsprQ>' (both Kc~d
F•llnM.ry J. 11 MoJQIY'«fr-.1 Rollo•'" ' NMI M«'.IMn Jlat, Uttrh, Jmuml'' 6, }(JM, Ht,.hwny Ao:1:itl~11 fltJlOt,
NTSUIIIAR..0$:1101 ~VMI•anatou. DC: N~!low~I Tnm~ot)()ttM.On Sflfef)' Board, 2009} » Stt <liltp 1/www Cmgo.dgt.w\·aitcta•tUt-<ftrdll'tHtllfCb•Sa:lluQlpay/lccM'MCSA·J:.!{Jt·I0:9J2.&.!d1>
(K«'il>td SC'pttmbtt 23. 2-0 10) and <htrpJlwww.ru'ltlll doL~r.:m'fattNC'&tareMnedi.ll\\obd~o~~t'-09-07·l2·.s.lidts pdf> (.cet•trtd Febnwy.l. 20 10).
10
phase. data co]ectcd !row the VERs were st"D.t to the system pc-ovidtr for review. aod aafety-rvL.1ted eYaUs were focwarded to the- canie-r Dli\Dagtmml 10 an .. utttrvtohoo" could be rouduc:ctd. An iuervention C'()on'ted of the 1wutag:er and drh ft' watch.uJ!l the viceo, dimassm$ the cause, nnd dcCf:mJ.iuio(l followup ateps: ( tnuuin~. discapliue, rewtud, ~tc) to prevent fl1TU1't iuu(.tS, 111f results from tbu two ~:1mien mdic."ted a reduc1ion m anft~ty·tuln ted evcnb per lO,OOO mileA of over ]8 p~rceru nt one Cl-m4.'t' tmd ov~r S2 pe1X:t'ltt At tile othel', .IJJ additioo . .severe ~wfety·rc:Lued ir.d dents decrel\scd by more tlum 59 percent rutd 44 JJCJ'CCnt, rc"l'« lively. Based 011 tbe l ludy resuJts, the NTSS concludes that VERs bAvc the pOINIIiAI ro iocrem s~fe bclmvior flnlOng comruen-iAJ driven tbroush stmt-hll'cd SRfety pr rfonnance n\Omtoring, whi:b may lead to d«re;:ues in accidculs aud UIJiu·ies
Ou Mllf<b 19. 2009. the FMC'SA tnu<d • not>« of fino I dispoolllonaod @JIIIt<d • 2·y<or <A<IDptiOO to ~ybouod Lu>es. In< • to <lllble th< oompany to DIOOIJI VElte oo tts bus<s lower 10
the wu>dslueld 1hao is ctneutly p<mun<d by F<detal regularioos Accordwg k the fMC'SA. GNybouud rl"ql.C'sttd lhe enm.plloo to Uun the cowpany could u!of' rht VERs ro 1ncttase safety tluougb (I) i<kfltificarioo and rtmtdJI'Itioo of risky drlvm,tt behav1on. such ttt dinacred drivinJ nnd drow1inen. (2) enh!'uce<t monitonn~ of patsen.ger bell~tv ior~ nnd (3) l;!nhnnced coJiasJon review nnd nn:tlysis. One or the ren11011J tluu the FMCSA g.~·anted the tXCIII()ti ou lo Greyhound wn.! tllnt it "believes tbnl the potent in I .!lflf"l)' g.alus from the use or vii leo cvc111 recorders to iiHJ>I'OVe driver behavior will i111prOVC tlH~ Ovemll level o[ $8fcty 10 I he lllOIOrin,p. J>tlblic. "33
As demonstrated by the Mexican Hal ac:cidcnr [email protected]. VERt eatl provide u1romU1IIOil 001 rypicaiJy IIVAIIable tluootth other inv~.stigallvt lllt"UJ, pot"~:ntil'lll)' allowill{l a mor. IC'C.U111C dtlt"llllUIII.Oit or IJroblblc cause. l.o lhe C:8W or lht Mumu acc:idcnt. II
forward~loobu~ vtdeo could bavo pnwt<kod Utvt.Shp1011 more iuronutll04 OU tbt ftdiOlll or tbt v.lticl<s ab<ftd of the aoctdoot tmc:k aud 1M II' Y>Stbllity. and Nl '"'"""' VIdeo c:oul4 have allow«< WWS'fl~fOl$ 1Q cntirdy rule Otlt rutdic:al iuc-apacilahOil Of diJtriCUOU AUd 1demfy periods Of redt....S >ig:ilan«. Tl>• NTSB <on<lud•• that bad d>e accideut tru<k h<a1 equtpped with aVER, • mort' detiuilive assessment of rbe <b·iver·s precfllsh eo1Khtion 11nd l>eluwior wadd have been I)OJ!Iible.
11u~ NTSB bmJ long ~dv~>CtltCd tbc use of recordanlt devtceJ "" n mcn11s of qnanlifyiug OiJCI'fllor and \1t b.icle beluwior1 in othc:l' modes of traoSJ>OI'I I\Iion.l~ NTSB [email protected]•L'I lu1Vt
b('Ue~ilted from the presence of cbtft. video. end audio recorders in ulosr modes oftranspOJ1ahoo. aud h is e'~de01 from FMCSA·fundt'd research thai VER dAta Are be ins, used ouA routine basis by h'JIUIJ011tlioo s.afety nunagn 10 rf'duc~ nsky bebavton by lhtu dnvtn lhrcugh itnleh.u·ed safeiY·t~ttformauct·nN)tulorina JKOVft.IUS:
Another bwefit of USIJII VERt for utooitOfins op<rator bdtov100 ll!ld pro•~ """'deut mron.uAtton has bet-n demomlrattd in d1t fae1d operational tests (or forwaud co8J110D wanuJ'I~
systcuu aDd Lht ttSe-arch tesr:s or integnuC'd vt-bicJe·based safety systtms. Such safety systems 1cly heavily on driver perception and reaction timfl to ptovide tht best wRmi112- and alerting iute1vnls for accident prcveutiou. Addllioual infonuMiou on d1 iver bel~viors )Jtwided by an
u 1"ttd1.MI Rtii'Sf~·. \'OJ 7<4,110 $2 (Mt.~dll9, 2009).pp J 1807 .. 11 ¥01. M Jo' or ~X&IIfllt, sec NTSD S~t(ffy !UtOt.riOMtld8110115 R•Sl-6,. R·JI I~7. R-84·3!, k· $7·21, <·90-17. M-9'5·'·
M·9$-6, H.()7..A1. )1...07·7, A·09·90, R· IO.I .... ·2. A·I0.27. and A·I0-29.
II
inct't'ased vohu:ae ofV£R data couJd be used co help impro"e lhtse S:ystenu. AJtecdotal tvidenec of savinp in fu:l ADd ill$~ C'OI1S also 5UU'"SI11bal CODl.O'K"fC&al mofot vehxl~ carrif'ft could W.J<fil fin•ncitlly by inst•mng ond usin$ VFRs ohrougbouo ohoir Oeeu Down. ooo, «Mold benefit by '151118 1hc 5)'11e11'1.1IO )>t'ovide evidence o( I heir ~fc tift VI up behAvior.
11Je MatJUJ Mcideut uwesti~uttjou shows not onJy the VAlue of llavitt,S sctcolific. unblaitd dlta available wbcu iuvesri1t.3tiug and recons:uuctang highway traus.pottation ArodetUs bul aiJo oh< \'alue of hwitl$ ~ <Vftll dot• to oorrelate with analog ond d>j!>lal • ....,, dota recorder data to estabhsb a driver's coodition and state or atttnhon. Heavy conwercial vehideiuduatJy anembe11 could Rlso ronlitt: ""rcty. co11t, ruul ochet 1>tltc£ils by ius tAiling VER., it\ all their vt:hlch:t. 11lertforo. the NTSB nJcouw1endl Uuu !lie J!'J\1CSA n~quirc f'll h\'H'IY commcrcil'l v.W<Ia to h< eqoupped wotb VI!JU tbllt ••pturt dot• in oowo .. hoo with doe drj,..,. and tbt OUtride C.OVirOUlltt:it and roadway 1.D tb~t tWtlt O( It mdb 01 Sudden ~ftratiOO C\'ettl l'bt device should aeatt recordings that &re cas1ly Mcessible fot rtview wbm tonducti.np: efl'ic•tncy teshng. and systemwide perfomumoe .. monitorin,g. p1ograms. Furl1•tr, the NTSR rtronunend.'i 1hn1 I he FMCSA require JIIOior carriers 10 review l'lnd use VER infonu111ion in COUJIIlltllou with other s~rfon.alAnce dl,tll 10 verify lh~tl d.! ivei' action• fll'~ in a«ordlucc: W1th comp,.ny And result~ lory ml., aud prooo.lur•• •n•tlltalto .. r,;y.
As a result of the luve611JillhOtt, rbe N"tional Transponnllon Safety Oorud makes the following new :econuueud.Rtious to the Fed~1'Rl Motor Carrier SAfety Adnliliistt"uiou:
Cmte ednct~tiom~l Jnattriab that provide curretll infonl)l'ltion 0t1 fahJnt and f•u,gut eouultru-.nsures Md make tbt uaa1mAls IYIUiftble in dafTtmu !onwus, ulcluch•!8 upd.tUuJI. 1md Jt<httribtthng your tnaek-dr•vcr-focuteod d11wr fnlltl\Jt video; :unke tbe video ftVI\HRble e)t"CCIOUJcnlJy r01 quicker diSll:tmiUAiion; aud implement a plan to rcguln.rly update rhe educarioual rnnlerials and the VJd~o-o with the latest SC"itsuific itlfom)Ation and to regula• ly redistribute them. (H-10.8)
Rtquirt all mOfor c11rriers to adopt a fllll(lue muu•g~tlk'UI program bnw4 on the Nonh Anwricttn Fa1iauc MIIUI\{tt'lUOnl Prosram gmd•hHfS fol' the: mnua{ltmeul or fruigm~ iu" motor cnrTicl' OJ>CI'Rilug cnvlr'onmout. (H·l0..9)
Require all bea"y conwlftt'ial vehieles 10 be: equipped wJtb video e\'eul ~Jders th3t captur• clala in con..,.toon with th< driver and the outsJde enV110WKDI and roadwa>• m tl:te evalt of" cmsh or sudden dtceleration eve11t. The dcvact should ce-cllfe recordings thAI nrc tl\sily "ccessiblc for review wbcu conducting cll'idency ttating; •nd t)'slcmwidt ptt fonnftoC:t•Jnonltorintt prOttJliiUI, (B-10·10)
Re<1u•n UlOfOr carrim 10 nvirw aud USt vtdoo t\'t'lll I"K''fCCtr mfonutiou w ronjwl.;1101l wilb othet pnfomlafl« data ro venfy rhar drh'ff acnoru 1ft m accorck.uce witb company nud regulatol'y rules :md procedures t.":Sstnnal 1Q safet)'. (l'l· IO·ll)
f'w1lltt. tbt NotoOilll TriiUIIOilltioo S.fdy lloard tcitOJ11ot ... sor,;y R«''UllllOiodoll0111
ll-08·1 J and -t4 to tbe fedend MotU< Carri<r s.roty A<hwniotrollotL
•• • • .::!' . ·I ZS?94 Feder-al RP,gllt ~tr/ Vol. 77, No. 77/F'rldty, AJ>rll 20, 20U/NotM:II
tolit. Mouwc.m.~yaad An~•utl Rc!ports (Fona. t.lP-1) !.hal proride fl•aoc:aal and O~lie& data 1 ... 41 U.S. C. l 4 l 2l; •ni l.dlplemetultll f'MC:SA h!!lllll llont a t 4l CF'R p11.rt $69). The ._.,,.,cy '"" thlf lnfotmotlon to IIUfllltl th• httl1hl\ Of tht h d U6U)' lind ld(lu tU)' lnduMtry eht ngtH that filii)' 11froct ootlon ~tl ltiUIIpOfltUon policy 1'ho d1111 ~tl•o tl&ow ~ompa11y fin.nnci~~ol i lflblllly nnd tntrtlc patteros. Motor CfttTI(IU Of p &SIIUfliOI'$ roquited to compl_y wltb the rogulations ilrt tla.1IOod on tho ba1it orthtir 11.nnu11l lfO•• Clrl ~~·· opintl nc l'e\'OII lli!. Vn lltor th• Plnt.~Kial a Optrlhftl Statbtla IF•OSI 1"01' ... 11Ht FMCSA <OII«u baienee thoM ud locom. f-.lftll"'' dlta •)o"' wt\llllRfOfliNiiloo on tonup. nlil .... ~~~nplqyeos.. tnniporulion tqufp~n~~~nt, and qe}M:r rebted d.rt.11.
Tho d11t• •nd in(onnat on colklcu!d I• mnde pt.~bhdy flv•iltlltle ' ' pretcJibtd In " t) CPR 1)1111 :J69 Tlllt n>tfULII,IOM ~.,. ronuorly udmlnl~ let'\'td bv tl'o lrll(ll'lllto Co•nmunct Comnllu lun iiCC), lhu ln tcc,. tl h.l Comnu!rt.c A<:l. <1 9 U.S C. 1114l, 40 U.S.c. tlltla(d){l) nnd tho Du1 Rcsul111tory AL'1 of19!12 and later lltllllf(lrwcf 10 lho u.s. Otparlm~J\1 or 'fl"'nlpol1tllon on J•nuary 1, 1996, by lhO JCCTtrmlna1ion Ac:tor 199S IICCTA) (Pub L U)4 ..... 108 Sc•t IOJ 1o.t. 21. lttSfi. IIOW m41nfd •• •• u s.c 14 12l n. Stc:r.wyot Tr.n•JK~N~Ion IStuM•rJI tnnden'fd dw auta.or.ty to •dmi.lliwr tiM F.t~OS proptua to tb• fOC'Def B•rNu of TnntpoNtion Stii!t cstiaon Sept.embeor 30, 1001 ~63 FR 12192). PllN"uant 10 thiJ lllllhCM'Ity, tho UTS, now ptHI of tho AMcmrch and lnuuvf tl\'t 1'1!C:hnoloa;y lltl tulnllltl'\llllon (RrrA), Iut<:luno lh• cu•Jl<llltlblo OOT motl•l adllllnh ll .. tlon for ltiiJ)Itlmcntlug t lln F&OS program and roqulrom('utt 111 49 QIR pnr1 t420 On Scptemb'-" l 9. 2004. the Socrecary ll"'lltlorred tht! rc!IOpaniiHiity roc the FIIO$ prosram Jrum UTS, to FMCS.o\ {&g F'R 1100i): {).\ Au&uit 11, 2006 (71 FR 4J740~ tt.. S.UWC..y pu'IIII!Md a OMI ,.., •• hac lllllltlfn'fd ••d~ llw IIIOiol urr• ftneocltl Mel ttttiJIKtl NpOIUAI recu•tions ol BTS lhtC WHe formerly klc:attd •I c;Npter XI olthlo0 4tCF'R to FMCSA in 49c.hn.ptw nr or title if9 CFR part 300.
fMCSA plaps fO irullaJe. resuiM.Ot)' pt~ In the...., Ntundwl w:.U ~Ut~h In the ehminaaion ot rwo qukiHiy ntp;~rtina r.ll"imnents th;at are curtt'-ntly report«11o OMB under ti'ICI PlptrworJ.. "cd\lcho«< Act (PKA) of t ns (4o4 US C. 3501· 3520). Thtto lorntt t.u:hul": Itt Porm Qf'R Quarterly lor propctrly Qfln lerll, nuthC)fflU!d by OMB undvr lnrormal.ion coll~lion 2 126-00:Jl: 11nd (2) the Class ( passenger Oln'(OT nn11ncial qunrtedy survfl}' fMP-1 Quirtody), 11uthoriud b)• OMDundcr lnl01m•tloncolloction 2126-oOSI The fMCSA d0t1 not h1v.thil flll"loty •111h0tuy 10 eUmlnelt d)O aM-.el ..,.. ................... "" _., .. .,....,......_ fMCSA wlll lie Jl'IWishu'la dhat liMI nde that bill btdude addll~nal information, including the Nduoed p~perwor\: bv,rdnf,, resullin.s. hn1thlt future ac-tion Trtl~. AnuuBI ond Quarc.orly Rtpon or
Cln . .u I Motor C~~trl ttrl of l'lliMin8~fll (0Mll 2130· 000>).
OMIJ L"vnlrol Numl>t!r; 2 J'ltHlOJ t . 'I'J'P'f of ifftrtJIII\'~f: Exltutslon or a
~~urr~ntly •pproved inform<~ lion oolleCtlon ll!(pt~l.
/f('Jpomlftnl¥' Clau 1 Motor CaiYitrt: of PI••Nt.Ptt
W•dNWHI /lh,,.,_.ofR~m• J ,
11tlnNfld nm. ,_ ifefpoMr·1t
"''""'et,.~. ~pii'Olk>n Or.H~.St-pttlllbef 30. 1012
Frr.qutt.flcy of &sponstt; .hnnuaJiy a.nd Q.cMI~tly.
gftlrrmtfld ToJol Amwul 8urdil~t,' tu}l.ll'll ( 10 f l\tojl(l fltcl. k l ll mhiUIOJ piH rtllpucnoiOO mlmclntc l
Pt1bllc Common11 lrn·iced: Yuu IIJ il nshd to t:ommunl on any aspect of lhl.i informotlon colh:c:tior~ . il~Ciudlng: II) Wh•ther the proposed coUoccior~ is n«»t•lrf fOJ the agency to peJfom ns Mlmo•: C2) the IIOI:UfliCJ oftht .u ... t.ec~ bwdtn. (3) WilY. u f).tCSA 1o ...... ,..,. d~t qui.Ky, u•Ful.._, e111d dlritJ of 1ht coUtdt"d lafotm.llon. and ( 4) W1)'.t thAt the tKudtca muJd be mmhnlud .-Jtbout redudqlhe qunllty of the c:ollo..:tud infonn•tie.o. The asoncy wlll •um~ru~~rbe or include )'O\It oommcul.s In thu tequest Cor OMO's • loarnnou of th l .t~ln fornllllicm colloci!M,
luuml11o11 t\j)fil tlt , lt012 Kt•llr LAitlrll/, Aum ((1/4' AdtJIIIUtllut~, /Dt Officrt of R~li,.IUd on.dhtJ<IrnltJtiOII T«hnQIQIY tr11 Dot. 20U-•»1 hid 4-J .. U • 1-u - 1 111.&.114 oooc 4t1...U~
~PAA~lNTOFTRAHSPORTAnoH
,..,.. "<*!r Qwrier satety A~ion
11MCIA...t012....,ll21
Ptopottd flltcoruntnd•t~na Oft ()t)ettuctl~ ttttp ApnM
AOIIHOV! ,(lderel Motor Cmlur Snfoty Admlr'lll lh•tloo IPMCSAJ. 001'. ACTION: Notice: request for publi<: c:omm.:•::":::":..._ _______ _
JUWAAR'f: PMCS.o\ annou001.11 ptOJIOIIC!d ~~ornnu.·ndiho•.• from •ht MO'or c.r.l<tf S•I"Y AhiiOI)' Committeo fMC..\AQ -.ad &811 Modk:.al ReYk-w Uowd IMitUJ on0bstntd1" ~_, AJ""" (OSA) ani ~e mtdiW ce,.Jr~ of ~i~t motor .-.hklCI (Q.(VJ drivas. Tho- MCSAC aftd tho MRB IUO PM::SA adv iuuy conunlttoetunrl operate- in accord•fl(t W11h dto rcdc111lAd¥110ry Comm~uee llc:t iPACAJ At lhc AgoAcy'• 11)()11 .. 1, thl,) oommlttnC!IIilull lK!c .. ted and JJrovldctlt l•clr flnalhwd roconuuondlllio• ~~~ to f'MCSA on I~ObN~ry 0. 201 ~ . i he A$t!JlC)' ptof>OiieJ IO •dopl tht roccmmcmd11tiOnli at 1\JtWittory suidllf\QII:' arter reoviewln.JI. .nd t\'l lu• Hna c.olll~:~ents mc1•h••d (I'Oilllhe pwbUt OAfll: C:O..fMf!l • ..... bf rKt '\'tld 011 Of beMMa) 21. ZOIZ AOOMUII; You .. y submit c;om.ments t.r1"1 Uw Fed•• l Docbt ~ba.4i:;cmttrlt Syteotn (FOMSJ l)ock et No. FMCSA 2012--0102 u•ittt an y of the followln1 mflhorll
• l't~<ff!ml !fltull mokrng Pmtal , Co to lcllp:/llt'IVW,IYliJifltrliOII1,8tlV, fo'OitOW dtV on-ll ttlt ln8U\IC:tl , u¥ for •\lbnllttlnQ tOI!lfll(Ui t•
• Mail: Docl.c1 Marl!t.ij.CuiiHII P11clllty; U.S. Dupt11mun1 oiTran!lportatlon. 1200 Ntw Jortey ~veaue S£ .. West Bulldln.s Cround F'IOCif, R)Out W12-140, W•thlnston, OC20590-0001,
• lksttd lkll'n")'. Wtit Bu1kU01 Crou•d nuu.. ltlc:wa wn ... J.tO. IiOO hew,_...,. A"-t.lt $1,, \Vfl.'thiiiJIOR. OC. -....,... ta ra. and a p-• hJo11c&.y lhr~ F'rhlly. ucept Federal tlolid"Y'
• Fax, t -l<rl-493-2l$t. lltl/roctiofl6 hch &l •bmin ion ftluit
J"cludo the Agu1cy n01me nn•l th<l doct.ut munbun for thit~ notil:t, Noto thllt lflll r..omnum• rc<:oiYcd will bu pOIIhltl whhoul t lu1ngc to IIHP'II www "'lllllrltlom -$0V, irleludlng • ny J>Ottlonnl lufomlllltm j)toVIdod, PhtllMI .t1t110 the Prl¥a~y Ac:t ltee.ding below fo. furl her informal OA.
Dodl!f. For aa:est 10 lhe dod;el to r...d bad.&lOiol.n4 d.ocu..tneftts Of
Federallh•gl•tflr/Vol. ''·No. 77/Frld•y. I\JU11 20, 2:0ta/Nollc(!l 2379&
COIIUMDU, fO 11o #!,up.;}/ .,.., ... "'*'ons p etlQ)' ti.IH or ltc:IMi WU-140 on tbepwnd kwtl o( thl \V .. I Bllllldlq.llOONtwJeney II\'INUICI SE, Washlnctoo. DC, b.twnn 9 11m """ 1 p m, Mondiithrooth r.tll•y, uctpt Fedtrlll tol1dny• Tb11 1-'0M.IJ 11 !1Yiill!1blo 14 h(ttrt t .acl• d~1y, :1~1 dll)'l II..Ch your. I f )'0\1 wnnl ncknOh'lt.!di:lment lh;11 wu rtteivr.d yo1u' commenu. plt!tl5U ind wle 11 self· ndclN!ulltl ,llt••mped enwtope or (lOIIf.llrtiQr prim I he 11Cluow100Qillf!J\I tJ.-,c th•t•Jipellrtafl er fllhmlllln~ tomtlll"l'lll un-liru~
J•n\'Ocy Att Atlyont nay •rch tht •lkttonk;; luor1111 of •II eGftiMntt 11IQI'I'td ~1110.07 olowdod.MJ by th1 n.ttiM ol dtlolrwli•ldMl ,.Qnittl"& the: com.lbOIM lor ottt.. pcmo £plUf11tt. COinlnOM, 1f sutmntted oo 'behalf of an auoclflt•on. bv"'""· l..t~or ~;~nion. e1~.). You m•y NYi(lw OO'i• Privacy Act StAtllmont tot tl'lt~ POMS publbhd In tl'lt r1uduut R•sl~t•r on J'nu.nry 11, :t.OOIJ (1J rR 3310), Ot )"CCU Ill•)' YIJII l!llp.·llt~(fOC-hl r~rxrtsll SI·O·H"'II2001tlpdf/ 88-?BJ pdf. FOA 'UI'n4rA .. ORMATIC.N CONTACT: Anao1a Ward. l\'1.1r5e Conlnlllll:!l Medical Proar•m•. (202J 3(16-4on. /~m..tiC4JJCrdOt.JO"'I.FMCS.'\, ~IIU\K\t"flt of Tr•n .. »>OIttliOII, t !00 New fotwr A\<wl\141 SB.. Room \\1&4 .. 224. W•••h.-on. DC l<&90-0001 Otnc. lrrtows aN lrom 8 JO I m IO t p,. \loodoyl""""" Fridoy •• ,.,..,. Fedo..t holldo,... IUII'f'\,I(M(HT AllY .. R)fltu,fiCIH:
R.-ekvt..,ncl 4Q (:JIK 39 1 t1 tfb)f5) p-ovtde11 1hat "
PI"' II(UI I• 111111IIOud phyi110fl11)' to drSvo o t :MY ll tlml fMIOOn lli1.t no 06tllbllllhttd •uurllcul )•l•tOI}I 01 t:Un l c~al dlagno•111 of • •c•pirlltory dy•l\uu:Uo:• likoly to lntc•ic10 wllh tho llbiiiiJ to conuol•nd drivf a CMY saJely.
1bo lnf.tNchons to TLc Medic:~J £"•"''* on lhl Mtdictl Wm•n•uon Rl'pCN1. (40 a1t Jtl 43) idcn11R" OSA M ono of""'"' rwpi'*"J ct,.fltnttfON Itt-liN)' lift dttraiM!Oit.l ~ .. ,. dr•v1..., .. tbt•corK.tJon ..,., lnt~rfer• with driYtt aM:toess and m•y c•u•• .,.du.ol or tudde.r. tnc:epecltaclon
f'MCSA directed hs tvo advi$0ly t.OmmiUtlhl, lhe MCSAC and the MRB, IJIIII"Ijolntly •nd eubllcdly to deliOONtt cut lht.~toplc or O!iA nnd wluUhltl' Q.{V dd ycu'll whl• OSA thoul.t b€1 m(ldlchlly cnrtlfl,•d.
IIM(.;SA lt~k!ldthtt MCSAC lind th11 MRB with IOhHI)' pl'(lviC..:ins lnfo•·melion. conct~plll. and idc11s 1he A.atney ~bovld wn5:ider in dew:loping ftlCUlMory 1uid4nce f'or lWioratnleu, Q.CV dlivera. ... d medical eumii'IH• Gil
OSA lad wbelbtr *'"en w1dt this oondiUoa dloukf ~ Dedkally <*'tln.d Ia opec•a. O.CVs 'n lntersW• totnD~rn FMCSA tmlruded the MCSAC and to.·IRIIto provkle tnformatloon •boul ho~~~o hl •ddrwu drhltn with OSA '"the 1h~t '""" uullltht A;enty tan I.'M•Idur •tftttal•• for •lof\1·14lrnl •"tlQullltot)' •t.tl<ut, "' I)O.Il or thu <:ommiiii.'C$' pt~)OOd rur
dovoloplng II.'Commend illtil)n$ I() btl COIIfidOrod tor reguhiiOr)" gu"it!tuiOO on OSA.th11 Nl)vemfler 2001 £vidence R••1)1>11 w1" upd111ed hl NoVflmbar 2011 '"d l~ffK!ntell •• thf Dlofnilxrt 2.011 lohll "'~~~~~ ot th• MCS.AC and th• MRIJ
Aftfll the Ololmbtr 2011iol ... ~te:SAC.MJtB fHeCios. 1 MCSAC...MKU tubcc:lllidllt.e wu foriDed in IICCIOIIdlnc. with FACA rccpinJR~t:I'IJ. TM twbtommHW.'• wk w~ 10 brine roco1nmend11lion• b.cl to 1h~ fulljclnt ccwnmiuo• for dolibctulion. Tho lubcummltt«~ m(!t,,ublicty on Ji mHHy 4- t, 2012, hJ cll~~~;u .. thl•t"tk • nd l)rU t)lltlld fOOOntiiU!illlatlon~ tor the rult MCSAC'f und Ml<B'II consldetntlon aud doUbotbllon al du: February 20 12 lolnt MCSAC..MRD mooting. In ~dJ1"UIIf')' 2.1)U dte lolnt committee dr.lit.e1-.t1ed 1nd nntlir.od ilJ reoo+mm~ndatiOili 00 OSA 1nd mcodi<;al tt!f11ne.tlon of~V dfi¥"1!1J
la.-.1• ... P~ C.Wift!C»" OSA 'f'be bJIC.iftlallfYboryaf.m.. for lhe
Rfllptntory 01thlnction requift.IDHII (391 41(bJ('JI Jlak!J lhat -rt~ere ate mony condition~ tMt intHfHe w1th O:ll)'p:IM IUI(;h.108~ IIJld tlliiY t"ellll l!ln ln<'llpu(llnti(ln, lucludlnslamona Olhtntl ttoop 11p1w11 If •he modlcnl u1mlncr llo•oot•• r~ph .. to•'Y dydllnctlon,lhlll ln '"'Y w11y I• tO.clly to lnto., fofo with tho drlvu,·• 11blllly to ••rely control 1111d drlvu 11 co•runt!rc:iiiJ motor Yehlc.lo, the d'l"" mW;t be nele•Tt'd to a s-pociall!it fot f'un ht!t ti\'AiuiUon and lbOnlpy "
CumntJy. fMCS!t reJieJ on medical fXUJ~Jnon to ~.pply profcmonal 1•-llo tppiJIIll I'>ICSA·o tdvlt«J utt.to Dn 0SA 10 clewrmiN -~"- • dnYW t.t • ..... pr,.lory d1'fllirkUon tocl1 • OSJ\ I.Ml rMJ afftcl hi' or h~r.ttilJI)' lO operate a CMV 10 r(l:l y. The motCM" carrier communlt y and mtdic•l Cll.1miners hllw requl!stcd thiJt J1MCSA hnpr0\•1! •he exisUn.a advltory trilurln lind prOI/ido moro unlrorrn l l'IJIIItltOry ~uldance em OSA 10 lho mo10r otmie• ln<halry and modlool uxnmlnr•., 1'h•l•rupu1ied kec:otnme.ndalhml
/ntrodiiC'f.JOit
Tho MCSAC •Rd MRS dcvdoped a.nd dlttuuecl...-..1 by questinns i+ll
, ._. .. ldtttwta,..., 11-GS to provide 111r.n...1oo. cruaopt.s..aod kiMs n.tCSA should COIUidet lo cfen.toplnc ,..ulMOrf 1-uiclu.ce klr ft)I)(OI' c:amen CMV drnrrs. aad ftled1eal •xatalnen on O.';A •11d whltthH dnvotJ w11h thb condition •l•ou\1 Lu •l:llld!C;Oll)l .. orUO\ld to OIHII'fll~ C:MVt II' lnlOtllfl&t41 COinllllliC"U Tltttl\l CIUIHitlont &rii ll.!lllld billOw
• AltJ lndh•idu,1l:t with OSA at an llltofQffi."CC till~ rtr II motOr VflhlcJO C'l ll$h \\'hcu cc.uupiLI~ to compafable hulividu•l• who d o not h&\'t\ OSAt
• Wbal dilltlll..,·rtlall!d fatlart 41"\1 •••oclatod wub 1111 incr.,.sod 1l'loto• \"l•hk I• a .. h n•k emotiJ hKIIvld'*'l' wlth05Af
• At• tndn·MiuiJJ with OSA uuw•re of tht .,._.not ;C lht IM:IQQ tk.a •PP"' to b. utOCJaMdwithwa incre&Md mGCOt Wlhklt aub n:ll?
• Are allen tcreeni:ngldi~k. tNt:. ••t~ll•ble dUll w,u enable eumum•• to lcle,ult') tho••••diViduals with OSA WhO IUtiiiiii'III!CfNtlfd tifk ror II IIIOtnt ¥(1il lcllt CIIIJI\V
• Wlt fr,h ht.o~ll tncut• haYu !Joon •h<~~vn 10 ull ttll lvtl)• 1t!Jucu Chl.Sh rb k flrnong htdlvldu•l• with OSA!
• What '" lho Jcmglb of time fl)q 11ir~rl rCI II<nvlng ln\t)a ion of an effotth•o ttHIIlW! I\1 ror lnJivlduali with OSA to nHKh I dt!ttee d lmprovetnt"nt IIIII "'oold 1..wmttJ.tfo dm·•naT
• llow M1+11n kiiiOWUII C*M\1411 ol u ... ,,.,.. \'alii hdlvtchath ·~Ill OSA cl.-• ..,,.~ l'ltuc:lld dm-er No'-'ty (le . ., • Corutqutoc.e of non<empliaaoe1t ~.CMSluou ohhe abo,.. questions
rormcd tbtt buiJ of the foln• MCSAC. MRB t.c:ommerda•Jons lor f.OIHid~tthtlon bJ FMCSA whon dov.,tup1111\ l'flg:~lat ory suidancu rue11ullns [)8A.1'ho ~lnt MCSAC.Mnn fiKIIJ!Illlll'l llll'ltiOII.f lUI) IUillnt llrllOll bcrluw I tffllt!JYJJ H~oolll/lltmdotion$ Retgordms OSA
A OSA dn1gi"IQIJ:i• precludN "noo+nd111on•l cr.rtif.a.tiOa.
0 A drhw '' t.b an 0SA cti.,IUWb ... ,. btc.t~r!HtftMioftow~-a t.ondtUon• •r• nca.
I Ttt. clrt~ hu u..,...Md OSA with •n 11pn•• hypofnH lude-ll; (AHJJ or IC~N thu cw vqual to zo {I.e-. mild-~&modtttlllfl OSA), ond
2 Tho drlvl!f doC$ nol ndrnit to oxporlonclng fi)Qiill s luepin1111- d1•rinSI thfl mnJor wakoperlod, or
3 ·n .. , tl rlv~.-.,·. O~A it 001na 11lftttllvu ly l l'tl!l l ~d .
C Nato• on llllllhr~lt.,l•l: 1 '11111 AHI tl~tellhold Is used to
pliorlllr.e drh•e1s witl1 OS!t who neoct 11mn1odia1e I!'NII(Ie!U.
2 n.. AH I tlresho'd iueut 10 boa tiM cmll ,.. .. in the mod.eu,..o-
237UO I~Ciderol Re,shtur/ Vol. 77. No. 7'7/f'rldoy, AJ)fll 20, 2012/Nolloo•
W\'t.ue OSA range Ia &1e!hllcally higher lhan fo r drivers with m ld OS/\.
l. Ahhous h :m AHI ti 1' i11 lil:cl)· a .afur lhrtt~hold, th !'!l'(l i.,n Q rhthiiO $upporlthis tuHI ~uc:h 1i thrlllllu>l•l muy bo lou 1waetl<:ul ln lllwtt Cl! t:tut!lllt~,g t)llliC!III.!I fr.W II'(!IUrn<tnt
• · l)d vort whh mild OSA (A HI hwols as low a!l 5) lnll)' bltnonr fl'om OSA tnt~tlm11nt , and should 00 encouruged to cJC:ploril ltootmont optio.1s.
5. Ori\•e.tS with 1111 Al-.1 between !5 ~mel 20 should be (!!'l COun:~sOO !<> !lOOk tNullment lf they ha,·e fl hi~IOt)' lnvolvlns n foHsuo·rolotfld CYB!h at" OOT·dorlnod t ln_alo vohl<:lo «ruh.• o•· If lhoy ro,,or1 11looplnott ..-hllo oponulng a motor vultlcle.
0 . A t.lrivet with llll 0'M dio•gnt'IJill nwty br. rec;ertificd tlnnu:•lly. balil!d (m dcmon~trnting"Complin~cc wilh 1re.11mcnt.
1. MinlmtiU)• &ot:eptn\ le compliance wtlh POJiilive Airway Pceume (PAP) ltoatment c:onll&tJ of •t l(llut lllll)urt J)l)r day of u~o oo 70 porcou1 or dny•.
2. l)l'ivc•l 11hould bo •aodo uwuro ll11_11 cnt1re hours llf PAP use h:1 JIN!femblc: 11nd t11al Op1imal1nlatmenl tffi<:acy c>ccurll wilh 7 a~ more howl! of daily u!le durin$ sleep.
tl. lmmedlola Dlsq•mlljkotlon or CetrJJjicolion D6nlol
11. Oliven• ,:hould btl cllt~qu&llnu-d lmml)lllll t e~ly c1r donh.-d <ettlfiCAIIon If ;•n)' o r tht! followiua eotdilion:t llre ule4:
1. iho drlv(!r admits b I!Xpllflencln.g 11xcesslve s loeplness during 1he OUijor wake period ,,·hila dt l\''lng: or
2. The drh•orc.xpurittncod n crMh unoclmod with fallingusleep; or
:1, T ho d1 h•or hfli IJOOf fo und M l\• compllllnl wllh lrOOttnO-nt t>er ltftOOmmilftdttllon 1.0. Ill, Condlflonal Certi{Jrxlion
A. l)rivcrs m;•y Le ,srllntecl c:onclilil)nal c:1..'1'til'i~~ion it ;my Qf (hr fe>llowing <:l)ndition$ nr~; met:
1. Tho driver hos &n IIHI or gfootor thnn :ao until oompllam with PAP;. or
2. ·nu, drlvt~r lut~ nndtrtJOnO 11ursury 11nd ile llc•1dhtK (*l•o1> llndlnss l"tr Reocoenm.:ndfltlon¥ VI-VIII~ or
3, 1'ho drlvor has a Dod)' Mus fndex (BMll of grealer than or iCJUIIIlo 3S kgfm1 pending a slocp lPtudy.
8 . Not~!:! on HMIIhN:!I!mld:
' I'"'_..} r.fR )110.3. •• .. ·ocod•m •• lllo .. fMI-(111011 CO:I"'II'I\IO!/)f hH1;iiii'IO!Ij• !lfoi"\!OIIin,holl!!i!l!lf .... h!o:f>l
''l~>fllllilltl 1111 tlll,l!W.O)' l•lnl•tlohlloOot IILII• II..Itl ( llllllllifl'l OJ oo'll!o h l'(mfh 1111 (I)!\ 1~1•111 t• (II) l!od II)' hoj11.ry lll• l•tt'l" ' wh"' "'" """-1! \lflh~r lnfi•'Y• l"""" ol lotl•lly ,.,11i-.-.ro m'!llio:dhllihot'!tol '""'1 ln1m ' " " ~·~~~.,. ulllot•~J~;io:ltnt: Q( fli\1 Oloo:o '" ~ Ol!ltl~lf .,,hl•.lllt ino;mtillljdi» o!oll,_,ll!n•"' OJ"-'"'" ttf t llio ..,:.;ht..ool, roocj11itl"''l llloo ""'olor w:hii:l.-(..)1() '"' ~'"" "90f"'d'"•"Y ft .. ml ... .,.,,.h)' II hlw lmo:l 4r mlorr oullll)f- .,.,.;,:~.,
1. The MRS is In agreement that a BMJ threshold or33 is e;upported by s-tudies.
2. MCSAC mQmlx~r Rolu:rt P¢1mnce)~ln ICon· Wid 1trci8hlt ;I$$C!rtc:d ttu•t • llMI lhr<!~hol should bo objoctiwly ~luh:d IO Ct111h rillk.
C. Ccuulltlonnl 0011lfleutlcm should hu:luJc th~t rollowlng Qlcnutllhl!
1. A driver with a BMI or g1aater than or equal to 35 kglmll may be eordfiod ror 60 days pend ing sloop study and treatment (If the driver Is diagnosed wilh OSA).
2. Wi1l1in BO dny11. if 11 dri vt~r htllns: IN!IIIt!d wilh OSA I• Clllnplh•nl w£1h trtlll lnuml (~w RocommondatiOUJ I. D. :uul V-IX). llut ch'ivflr muy 1'(!1:clvn 1u1 addilion1il 90·day conditional C€wti(knlion.
3. Aftet 90 days. tr lhe dtlver Is still complifml wilh lfOfiltnOill, the drlvl!f may be COf(lfled ror no more than 1 year. Fuhml t&•tiflClfltiOI\ ahQuld bo dOJ)Oildont on COI\t lnuod c:ompiiMu;o.
o. OSA Screonlng tl.o .. ld or~ tlfylna lndlvidufllll with undl~nt111ud OSA)
1. In addition to • IJMI q f 3' or abov11, lhc tollowing info-mmtiOfl lila)' hd1, a din ic;i;m diagnO:IC! OSA:
a. Symptoms or OSA may lndude le-ud snoring, wUnoasod 11pnens. or s lonplnoaJ during tho mo)or wake porlod:
b. TUsk (bci OI'I ofOSA tnl.ly lnt:J11do thu rollowing rnolors. Howu\'cr, U 11i118lo risk f~M:tor alone tnlfy not in for ri:sl.: , t~nd a oombioation of mulliplo factors should be o..xamined.
i. factors MsociOIIed 1.-dth high ri$1.:: - Smillll Of n~~-ffl(l jillw - SmAll oirwny (Malhlrllpnll Sc:alo j(.fu'(l
of Cllllllil !lu•• 4) -"'f!Ck IIZO (~J l?lnChot (n'Utlu), 18,$
lnc:ho11 (romul<r) - Hypertension (truatud Of u.ntroalod) -Typo 2 dJabotos (tntlltcd or \lllt«:il tt~d) - llypod•p-oidism (untnmll:d)
iL Olher fucto-11: - OMI Srflll ler than or equ1111o 26 k.&fmt - Ago "z and abO\'O - r:onllly hla1ory - \i11l0 Qf J)QIII•1111111U!JIIU8al fcnuiiO --lilt(Jaricnc.:cd a 11i113 o •vnl1idc cra;h
I V. M~lhm/ oj l)iCI}Jnt»'(.t fuul Sf!l!t<tJiy
11.. Methods or dlagnostslncludo In· laboralory polysomnosraphy, at-home polysomnogrophy, or an FDA·IIpprovod limited channei JunbulbiOry leMins dovlco which ont~ute.$ dtuin of cu•tody.
1. ln·labollltory poly,ornnttJVII j>ley, whldt is ml)ro comtnclum•h·o.' 1ould bu tonsldorcd whun the clinician suspects anothur sloop disord« in addition to s leep apnc.1.
2. New OSA llc:roening t~,oc.:hnologh!ll witt li'kt!l)' t~nlttrs<~-
0 'Ote- d.rlvor should bu testod whJiu on usual chron <: medit:lltions.
C. Tho MCSf.C and MRB did n<M ooo11fder lt.Hl lwei& rtom unattended (ttl., ln·ltomuJ ttudim~. only in· lnbcn11-IC>r)' 5h:Qp 11tudi~ that dutoct tho llt0\11(11 c:ompo11cm or ltrtJOJmullt, .-11 w"ll •• Mturutl?•'
J, lin ln·honl.laloop &tudy may underostlmole Mil whon ~omparud to an Jn-laborttlor1 slucp s tudy boc.:ae>se the In-home stud)' ike))' docs nul consider totnl sloop limo
2. Tho modic tl o.xamlnor shoutd ~· ~c cllnltol Ju<l$lncot wh11n lnlt,-tpn .. 11ng 1hu retult• of 1.111 unllttcndud 11lonp 11111dy.
a . 1f Uto olht iclo11 bcllu,•ot dtu l t~\'QI or tlpllOO is erc.1tcr lhnn I he lev.~) n.lp(lrlnd by the in~omu$1udy, I he dinid.tm 11h0\1ld <:O tl$idc: f\."C(IftlftiMdinglul iu• laboratory sloop s tudy.
V. Tr~almtmt· f-osi!it'C Airwvy Plv:$$un: /PAP/
A Alllodlvlth.ll•lt wilh OS/\ 1hould bo wfl!ITUd «<I ll cllnlcltn whh rclov1111t WCI)Crtiao.
B. PAP Is thu prufo~tud OSA thur;•py. C. Adequate PAP pressuro $hould be
es.tabllshud th.rwgl1 one ol'tht~ roiiQwing methods:
1. T ilNrtinn ll'•d)' wid1 1)0 lytl<lm nnsrn pi• y
0 Auto·tllr.t1on ll)'lllem A drlvVI' who hot btl(rn ~ll &<f \ll•llfhrd
may be tondltiN\DIIy oo1'llliod (J"'r t<ucommendathm Ill) lfthv followina condition!! are mot:
1. The dti\'erlssuccessfully tn:atud fot one h·eok: ond
2. 11to drh•ercan demonstrate al l01111t mhtlmnl ooml)l lnnoo (Lo., 4 houn1 por 118et ou?O p01ou11t of ''fJllnl1) ~ Qfld
3. ·rh6 drh•N do~• llOI I'(IJIOil cli.W!lslvu !llooplnl.lf4 during tho metor Wl•l:e pt,'flod.
VI. Treatmt?nt: Boriolrlc Smgcty
A. Af1or barlli!tlc surgory. a driver mny be ct~rllned II the following cond!llona <11'41 mot·
1. Sill mon•htt havo J)ll.iJ(fd 11lnco d1u ~uta.<ny (ror wftfJin ION): ttnd
2. 1'h(l d l'lv<ll' hfl~ bcton compllent with PAP for alx morth11: Olld
3. The dr1ver has bet.'n cleered by thO; l.footJng pbyslcitn: ond
11. The dri\'et :loe!l nol rupor1 fi.XOO!IS\\'o slouplnoss duting I he omJor· \\'llh period,
0 . A Our 1liX .n11n1111i ltll\'0 pouod ~in011 IUI'$;U1)'• If thO llpntlll 8J)P'UUII IC) )141\'0 rotolvod, a rUJh.\lt •luOJ) 11udy 1hould bo considered 10 tl~l for lhll pregonoo qr ongoin& sloop ;~pnea.
C. Arumnii"CC!!I1ificnlion: 1. 1f dinicallylndlcoted. ~poot 1ho
sloop lltudy.
J'edor11l Reglahtr I Vol. 11, No. 11/ Prldny. t\ t)tll 20, 2012/ Nollt:oll 2J?O?
VI/, 'l'too/metl/ ! Otophttryllgea/ Surgery, Facial Bonf! Sutgf!ty
A AAor oropharyngool or facl11 l bone surgor)•, 11 drh•cr ma)' bit oertlfled H the rollmYing condition~ nm nt!HJ
I Onu month 1tM I)IU&od 11lnoo lllugury; tmd
2. 'I'J1n tlrlvcr lu1 ~ \Nie:1 ..:l~rtd b)' 1ho tre~~oling Jlb)'!li~o:i :m: Qm/
3. The dri'lflr d ous 1111 re1)011 excessive s leepiness during Lhe uuljor wake period.
8. AAet OM month h )ll llUSI:d llincu su tS,OI')!, if 1ha Allrlfl..'\ apptmr~ 10 )l.fl\'0 ro~olvftd 3 rt!j)lliilllloup nud)• ~hould hu C:Cllulldercd 10 te.:l lor lhti i)I"Ct•em)IJ or un~nlns •'~'P " 1)11(111,
(.;. A1\nufll tc!tlUtlil icnliQn: t. lf.;J init411}' inflicllk:d, rept:;.,llh.,
sl11ep .o~!udy. Vlll. 1it!Ollllf!ld: 1'rodreostomy
A. Aflerr fl tti!.ChllOS!Ot'ly, a dr ivUI' lllll_\'
bo carttnod U the following oondiiiOnll aro mott
1. Onu month 1wt I)DMC!d 1lnco 1urgury: and
2 . The driver ha~ beet cleared b)• the tl'flatlng physician: otld
3. Tho driver does no: repor1 e.xcesslve s leepiness dur{ng the m11jor wake Jl(!rlod.
0. AfiOf onu month hu patoiiOd thu.:o ll'lfij.Oty, lr th(l O;l) llllt lll)l)lt1U11 10 llllVIl rc11olvcd a rcpoQt sloup 11\ld)' t.h(JIIhl bu COII-llidcro(i lO {(151 for lhU pro\11!1100 or c.mgoing sleep apr~tm.
C. Annual rf!C.'trlific:alion: t. If dinie&Uy h\dica.tt~d, rl~peat theo
.tlecll .tludy.
IX, ?'rootmtttll Allnnurlft'.~
A. 1"hftt0 lfllhnl16(1 d rttn ro.wu~llng <:Ompllan<:u IIJ\lllong•tltfm ofllCitC_\' o( dontol llppllauco!l ru1d ti•Qlill tocl\nologle:~ ore not op~roved altornatlvos at tblsllme,t
B. Surgical uootmont Is acoeptable (5(!o Rocommondations VI-VIII),
Rcq\wllt for Comment!'
fMCSA r.,qu(llll!l <:Om'l'lulltll em tho ut~<.•vo jolnl rooommondui<.HIIII)I'Ovltlud to tim Agom;y by itf MQor Qmier ~~~rllt}' Advitory CommitiOI: ;md Mctlictll Hc\•iQw 1J.o.1rd "On Ob$tnt:th•o Sleep Apnc:N.l. Oommonlcrs OJcrcqt•csted to piVvido supporting dol<1 whcl"((vcr .epp!Vpriate.
11u.> 1\.&Wit)' will cnn~idcr all 0011\niiHihl fi!C:ulvetd br,r~u I he c:lo~l! ur bll~lncu&ll M11y 21, 20\2. Comn11u1h1 will bo llYillliibiU roi' IIXIWIInutlon In tho
•1)-d Oil p11bllti': ._I'MUttlf'to~d Ill liM f'11l•,..•r MC'.$AC-tlli~~t~, ..,., .. ~, (0wmy Sd"'""lil, Oari: F.-..t>t t.i- •, ..,._,, t'ln.dt"", TXJ ouQbo'*ll<l lbol lh• ~m(:~to.y Ill dmtd Oll'flifom•t mi•Y .. ..til tot.. .... ~111 .... 1.
docket fit the loclltion llst~d uudur the AOOM.SS!S lle<:UO!l of lhh tlOiiOC!. ihll AS,.:>11cy will file comments r<lOOh•ed aftet the comment ciO.tine, date ill the public docket, 11nd w ill oonslde•· thorn I() tho CX10nt (UII(ttiCtllbl~. fn Additll'.lll tO l ate (lOfiU'IlOI\111, F'MCSA wlllllll(l continuo IQ nlo, In lbQ pub)lo dockot. IOhl\'tUlt inronntllion lhllt bocomo• Gvl!jiJJblcuJwr du: ~:omrncnt d(l$ing c.J;1tc, Jnlc!rUI'IC!tl pcrson~ $hould mfll\itllr ttu! Jhlhlic; d()(!.,CI for new ma.tt!dal
lut:l)d o.n. Apr!! Hi , lOll ..
l,nrry \\!, Mln(lt, ,o\-.,roc(l'/1" Adm/Mm'tJIDr &j 1\lllr.y Jfl n., •. ~111:t~r.1.u t lt.,d •• , .. n: u~.ml ft!U.IIIO 00011 •t~O•Ill""
DEPARTMENT OF TRANSPORTATION
FedOrJI l.tolor Co1m1otr S.fety Admlnlttr~ion
IOOCkt l No, f/~8~1t""'f4to: FM<:8AZ00t .. t l42t; FMCSA-.2002,.f2844l 'MC8A-2003-t6SM; FMC8Jo .. 200S..2111t; FMCSo\oo. 200542727; Ft.ICSA-4110&-2,773; F,.tCS~ 2007-4017: FMC$A-2008..Q021; Ft.tC$A-20W-<1303; FMC$A-20ot-02tl)
Qt41ifleation of Orlvert.: Extmplion AppJKoal!ons; VIsiOn
AQCNCV; Ft:dt..,ll l M~Cif C.ITiet S!lfttt)' Adlnh\llltrAiion WMCSI\I, UO'I'. ACTIOfol: Not iUII of NlllliWII1 ~If ~Xll111p1iCHI!I: l'ftqUt!lll kll C0/1\U)I:Illl,
SUt.U.IARY: PMC.'i:A a n.1tounoos its deci:tion to 1'1!ncw tho exemptions from tho \• it ion ~l'!(l uii'Cinlmt in the Federal Mt1tC1r Cl.rrlllr Sflferty ROS,\IIfltlont for 29 lndividllnl•. FMCSA l1n~ litllllltOI'}' tl\l thori ty tO i!XI'IIIptlndlvidlllll~ ri'Cllll the \'llliOfl t;t<lulwmunl U lhu tlXCillptlon.t /lhllltOd WUJ llOt compromise iidety. The Agoncy has concludod lJlat granting lhc:se exemption renewals will provldo o level or lialoty thot is oquh•~~olcnt to or 8Jt."e1Cf tlum the luvol of snfcty rntti nt~~;inorl with0\11 tho o)(omption' ror thtt11o oommun:lt,l motor vehlclnlCM\') dri\•enl.
DATES: This tlocision is l;(l(ll!tiv(! Mny 12. 2012'. (:Qmmr.ntli mulit be! ceceiv~tl l)n l)r bcfQtl! M;:~)' 21 , 2012. AOORE$SES: Yqu mOl}' $Ubmit <:ommcn ls OO;a,rin$ the Fudcr11l Oockut Mannsemcnt S)'lltom (PDMS) 1111111l>ttr.t~: FMCSA-t ~80; I'MC.'ji\ ... 200 l .. tl428; FMCSA .. 2002-t28 ••. 1~MCSA-2PO!It6S64: PMCSA- 200!3t-217J l . I~MCSAZOO!i-201727: FMCSA-2006-23773~ FMCSA-2007-0017; FMCSA-:t()()I'J-00~ 1 ; FMCS:\- 200!) .. 0303: FMCSA-2009--0291, ll.$ing any Qrtllt! rollowin.S, mel hod$:
• fL'(Iffml elfLl lemokit'8 PorltJI: Co to h((p://wwu·.rt!~IMion.\·.so•'· Follow th~ On·line ili.~I111L'I.i(lll$ rm s·ul:nnlttill8 OCllllliUm t~.
• Mai11 Oookn1 Mana£(1mom Faciloty: U.S. OrflpartmCII t ofTmn.;pono.tlon. 1~00 Now JCJN41)' Avtnuo S6 .. Wtnlt Oulldlng C:ruund PIO<H,Itoon\ Wt2- t40, wn,hinstqn.l')G 20!190-0001.
• Ho11d DeUlt•Jy orCoorier: Wast Building Groucd Floor. Room Wl2-HO, t WO New Ieney Ave-nueSE., Washinglon, DC, beth·oon 0 a.m and 5 p.m., Monda)·throu,gh ltrlday, oxoopt Podl)tnl holidays.
• Fox.• J .. 20Z..o4Q3 ... ~~0 I /n#riiCiicmJ: lt~~CII tl\lbmh&~iuu must im;lvdc thll' Agtncy mut1c amllhn doc.:}:ct ntunbcdQr tt1is mllit:e. NOit! dull O(n' ~~~ ~u wmmt:ntj; re<:t i\'t!d withoul t hlmgu h ) http:// 1""-'\l'.l'l!SU/QiiQI'$ • .f1(W, indudin,S tin)' fWr.connl hlrcmll fl.th)n lnclud.:d in a OOIIIIIHIIII. I)IOIUO tOO lh(} Ptiwu;y AC:I h(illdll'lg tWIIOw,
Doc;k(lf, For lltODIUi to 1h~ dv<:kct tc> road beckgrouruJ documont5 or COffinl(lllC$, go t>) llflp:// MO'\v,regulafiots go1• at any tim~J or Room W 12-l ~(.l on lh(l ground Jc,·cl of tho Wolit Building. 1200 New jc!ll(~)' Avonuo SF.., Wuhingtnn, llC. b~w~n 1) u.m. rmd S 1).1!1 •• Monduy througl• lfrldny, I!XOI!JII l'lidur11l hallduyt, T'hv VL-d•m•l Ood:ct Mnnfltlumont Systom WOMSt lt ~wullnble 24 hour:J uac:h duy, 365 da)'ll «utch )oar. lryou went acknowledgmaflt lhal w~ rot:Givcd your comments, plollSIII inc:lude a self· addrossod, slaw pod envelopo or postcard or prl11ltha ac:knawlodgomont poae thatappon nAor &uhmhtln,a oommuttt• o11·llno.
Prh'or:r Act: Anyone muy !lcdl~:h thu lllcctltiii iC rnnn IJr :til (;Olllmlmlt rc~;c!in~d inta tu.y of our dockoti by the nan:!! of lh~ in<l,•ldual submitting tho c:ommem (or or the person signing the comment. If sut•mllted on behalf or an a~soclntlon, business, labor union, otc.), You may ruv1w OO'f"il Prlvtcy I\C1 Suuomont ro,, tl•o POMS IJttblhhod In tho Fudural tte.atlr 011 J~tllllllff 17, 2008 (73 FR :1316), or y«>u IJtil}' vit.l t hllp.l/edockel11Ceess gJ1o.govf2()QIJ /pdfl EIJ·JIJS.pdf. FOR FVRTHER tNFQfiMATION CONTACT: Elaine M- Pupp.Chief. M~;•di.;-.1 Programi OiviJion, 202 .. )66--4()01, /tm:_-omtdiooiO·Ior.-ov. J1MCSA. bcrpbrtmunt or'rl'lUl~f)011&tlon. 1:!00 Nuw JOr~)' Avenue se, Room WCI4 ... 2Z4, Wrt.Shlngton, OC 2059U-UOIH , Office hours are rrom 8:30a.m. to 5 p.m. Monda)' tbrougb Frid3y, u>:oopl Fl!dl)rnl holid3)'1· SUPR.E.MEHTAAY INA>RtiATtON:
Medical Examination Report FOR COMMERCIAL DRIVER RTNESS DETERMINATION
Social Seariy No. IV;Je •r1i6c:aboc•
Cl Cl 0
649-F (6045)
I 2.PW'' .. Driver c.orrpetes thj$ section. twA medical examiner is encouraged to cfi$CU$$ w•h driver.
IY .. No
DO /WJ*-9<"'ffl"fii'IIM'"'~'~ CJO ~telisl..,......dill:ltdo)•>~ct.._ CJCJ Ci='';;• ~·-------00 f<p"--"c:o...._jfed~_.-.~~~1«1$('$)
BCJ &>'~~~~~~or~ 0 H'O""" v~llttll<'o:oaoer~·~ ooncltlM
~a =:=r(\qM[i~tr,.-s...-;~1)'. t::j0 H91tfood~ t!ledbl•· "-------~o "'u'K ... ~ ---J S~d-..tt>
!Yes. No
R~l....-gd!W~~.~~bt'On~fl$ Kicln!y ~:t!S:e. ~s
§ Liver cfsene Oigc$~ pc:dcm$ DlabeM$ 01 ~ Dlood wgar COiaiOied W;:
Q ~i! 0 ir-.dn 0 0 N¢1V()U$ Cf ~diWIIC.I$. 4',g .• ~ <t&Pf$$$101'1
0 0 ... - ... ·""'"·---__:_-0 0 LOH Of, ~~COI"'SSOu!l.I'I!U
Ys">
8 0 F".a1Mt19,duile$!1 ::J Steep d.__., jMuMto ilt~
ooillt ..... claf-....-..lo<.>d -8 B Sllct.e 0t Fllllltf.;. loliu<nga-..~~~- foqi,~. ,;"9'f.we
0 LJ SPfll'l il!)l.., or._ oo~~kr ... ~~ oo~.~·~o C Har~c;otoeorN!trt~<h9-
fOf any YES answer. indicate onset dale, diagnosis, trealing physician's name ald address. and any curren1 limit$1ion l.i$t all medications (nc:tuding over-the-counter medications) used regula'rty or recently.
l I certify that the above infonnation is QOf'I'IPle1e and true. I understand that ttae:eurate. false or rYII$SII"'9 nlormation mayl'l'lalidate the examination and my Medical Exanw'le('s Oertif.cate.
Driver's Signature oat:.._ ____ _
Medical Examln.en Comments on Health Historv (The meeSical exam1ner rnu:st review and di'scuss wih the driver any "'yes" answers and PC'ential hazards of medica6ol\$, ~ over-tht'l<ounter medications, v.t.ile driving. This discussion muSI be documented below. )
TESTING (Medical Examiner completes Section 3 through 7) -.e: Last, First, M ......
• /.SION Standard: At k!ast 20UO acuity ~Snellen) ln each eye with or without eorrection. At least 70 degrees peripheral in horizontal meridian measured In each ey•. The U$& of corrective len.<;es should be noted on the Med:i::al Ex~mlnet"s c.ttiflcate.
INSTRUCTIONS: When of1er than the Soelen chan e used, g l\le test festAl$ 11'1 Snellei'K(lrr~ values. In recotdWlg c:istanGe visiOt\ use 20 feet as notm8l Report ....sua I acuity .ar:s a ratio ....n 20 as ntJmetatof aM the $m311C:st type reed at 20 teet as derw::mlna1or. If the a~ -.ears OO«e<:tive ~ W'le$e $hOuld tie worn v.t1il8 'Wsual acuity is *l9 .ested. It !he chief hatllualy wears contsct tenses. or tnlends to do .so v.tailt c:iiving, suflic::ier«.eW:ieoce of good~ and 9dapt3tl0tt 10 lhec" use most be cbYiOuS. MonocuiM tJrWws are not qualill«<.
Numerica1 rudings must be provided.
ACUI1Y UNCORRECTED CORRECTED ~oc:ti20NTAt- 'Jtt.O Of; 'VI$10N
Riglo Eye 201 20/ R;ght Eye 0
loll Eye 201 2()1 le~ Eye 0
BcUtEyes 201 2()/
~te next line orly if vision testing is done by an oplhatnologisl or optometOsl
Date of Ex-amin~ion Name of Ophthalmologist Ot Optome«nst (print) Tel. NO.
Applicant can recogrjze and cistinguish among uaffic coo1ro1 signals and dewces Sho!ltdng s-landard ted. gteef\. ard a~ edor$?
Applicant mee1s visual acuity requiremenl only when wearWlg: 0 Corrective lenses
Monoculor Vosion; D Yes 0 No
L•cense NOJ State of Issue s~
0 Yes 0 No
~ StanOard: a) Muu first perceive forced whispered voice~ 5 ft.. wfth or without hearing aid, or b) average hearing loss in better ear~ 40 dB 0 Check if hearing aid used f or tests. 0 Chedc. if he~ring aid requir'fld to metrt standard.
tNSTRUCTIONS: To CCII'M!It aud!c~ti¢ tat~ from ISO to ANSI. - 14 C.B from tSO fof 500Hz. ·1Dd8 for 1.000 til,. -8.5 dB lor2COO 1'4. T¢ .-ver~. adcl N Jeadi"'gs for 3 frequenc;:ie$ t'6::;t00 and 6Yitte by 3.
Numerical readin_g_s must be recorded. Risftt £a LeO£¥ a) Record distance from niMdual at whi Rqlt ear Left E¥ foc'ced whispered voice c:an tnt be he&rd. \ Feet \feet
lb) If~ IS U$o00. f$C:Cf"\f hNn"rJ ~In 500"< 1000Hl 12000 Hz 500Hz pooo Ht 12000"'-~(.;tOO. lOANS! l24~1951)
A- -Numerical rudJngs must be recorded. Medical Examiner should ~ke at least two readings to confirm BP.
~~re I Sy~~~ I Dmt~;c I Onver qualffied if ~1.40190.
Pulse Rate: 0 RegularO irregutar
Beadlo<l Cateao!): FxpiratMln Date ~erllfgtioft
140-159190-99 Stage 1 I yea< 1 year if !_1401'90. One-time c.er1ilica1e for 3 months i 141-159191·99.
16().1791100-109 I Stage2 One-time oertificate for 3 months, 1 ye3r from date ol exam if ~ 1-40190
Fteoocd Pulse Rate: ~1801110 I Soaoe 3 6 months from date of exam if <140190 6 months if< 140190
... :,•'-C"·t.J "PV /:2.~,... -,--"::::R TE'T F "-1._ ..... e: - - - r, . '-'. '"~ - ..,_ . ,'l :~ •• ~ .... . Numerical readings mu$t be recorded.
\Jnrl:attSIS IS requ.ceo. PtOIIelr\ blOOd ~ Wg;iK in h t.fine may be an indlcaion for funher lestltlg 10 rule cut arty ~ing mecXal problem.
I . SP. GR. I PROTEIN IBLOOOI SUGAR URINE SPECIMEN
'
O<ho< T~ (Oescrile and recold)
a _.Hy::_~ ·Cf,L lX.,.::.r: ~~;.-l::f~ I Height. (in.) Weghl, (lbs.) I Name: Last. First. MOdle,
The presence o f a oenain con::lifion may not neoessanty diS<M'''f't a ~. ~ if the QOI .-oe. i$ <Xlntr<lled ~. i$ nOt likely 110 l!loQ"Mn q is readily amenable to trea1menl E"'E!n 4 a oonditlot\ does nc1 diSqu~lify a dtivor. th8 medical examiner may c:on9def' defening 1he drwer semporarily. Also,. Ohe driver Should be 8IMsed to take the neo=ssaty steps to correct 1he .....,. adition ;as soon as po:s.siJie particularty d ihe oondibon_ l.f neglected. c:cd:i re$l.l• ir\ rnQtt; tet.O.IS illnt$$ t~ megN attec:t dri~.
Chock YES ir lf'lerc car• arry abnormalities. Chedt NO if the body s-ystem as nonTial. DIScuss any YES an$wEus in de!8l tn 1t1e space below, and .r'ldiea1e wheltletit wcdd atrec:t u-.e drive($ ~ 10 operate a commen:aal molor \'ehlele satet,o. Entes' 3pplicabte ~nunber befOfe each c:c:nmenL I f ~anic. ~ is present. note llat il has been oom~ for. See btll.ICI't00$10 lhe ~E!pr?!'im!rfor ~
BODY SYSTEM I CHECK FOR: YES' NO 1. General Appearance Marked ovtmeight tremor. signs of altohob'n. probtam
omklng. or orug souse.
2. EJO$ Pupillaory equality. reac6on to light, 8CCOti'IIJlOdst ocular motility, ocular musde .mbalanot, OJC~ ~ment ~1.1$, exQ9hlh~. Ask about retinopathy, cotarac1s, aphakla, glauooma. r1'I80Jiar ~t1on and feb to~ spec:i31li$1 1t ~l)l)fOpri ..
3.Ews SceiMg of lymp.:rie: ~c. ooclusion ol exiemal canal, ~eardrums.
4. a.touh and Throat lnetnedi;)ble defo~ li!:eiy to interfere ~ breathing or
~ .. ,_, Mvrmurs. extra scum. enlarged heM, paoernai:ef, tmplantable defibrillator.
6 I.A.Ings and <::hest Abnormal cOO:st wal expansion, abnormal !e5pl'8tOI)' rate, not~ breast abnonna1 breath sound$ .nc:tuding wheezes or ~ar rakls. ......,. ... irnp;aired respiratory fu"dion., cyanosis. Abnofmail findings on
onysc;a~ exam may reqJiire fulther te!t.ng: sueh as J)UIMOMty 1I!:SIS andfor xr¥Yofdt!CR
•cow.ENTS:
Noft CIU'Iifie~tian $btla t..a. Scm lnstn!Qinrp;, J() ;ba Meet~~ F'!?!!'!"!!"!!' fr'lt (ptirull'lt'"'
BODY SYSTEM CHECK FOR:
7 Abdomen ancs Vi$Ctr;) tinl¥;80 .....-. enlilrgea $rAeen. ~ tii'IJts. hetnia. ~ aiXIominal ¥0811 fl'll;ll5de ..........
8. Vascular $)$tern Atnot!NII pA;c: •nc:l ;arn!'fiiUCie. (;I1CJfld Cit anen.t tlrUU.. \'ilrieo&e ~-
9. GeQ,'!O-urinary Systam -10. Exuernifies- t.mb 1.0$$ Of .l!mCf'll of ltg. fool ......... ~. lmpaifed. Drfvef may nnQor.~blolmp,<le~~.
be siA:I;ect to SPE WE!8filftHa.I>'UiySi$, dubbit\g. edi!IN.
cenif.cr.e l Olherwise hypotcria. tnsu!f>CClcnt 91Hp wd ~ion
QuOlllil!led. tn upper '"*' 110 rnainuin steerir.g .ned grip, ·~m::!Oilqo 0)1'1\1 ~ .... a:;..... trnb to~'** propetly,
11. Spine, oe. Prto.i::us sugey, clekll"'lrilioes, liir:ilallbn of roos,CI.6;:)s~al mcticn, limcllemess.
12.~ lrn~•~t~n~Jm.oo~or~ pattem::" ~deep 1Ef'ldOII; fdeor;ea • sensory ot pc$iti0nal 3tlneri'Mili!s. abnormal p:~~ ..S Bai:JClliTs re&exes,. atuia.
0 ~Nii!t"'t".t:tl.t>~ 0 YleMng hearing aid
ves~ NO
'
0 Meets standanfs-. 49 CFR 391,.111, q~ for 2 ) 'Cal' ~ 0 Doe$ n<>1 meet~
0 ~ by a .-:-c-:-:::;,-,::::-:--""'iverl exempooh. Driver must presen;: exemp:Km a1 time ot cerd6c:alion.
0 Moots standards,. WI periodic morwronng .-~ulred due 10 --=-,-----Otlverquald\edcriJ tor' 0 3mon1hs 03 months D 1 )'ear O Otner
Temporatity cbqualfied du" lo (~or mecication);c_ ______ _
Return to medical examl'let's otfloe JOe **'w up art
0 Skill ~e e."-''~ (SPE) Cetliliea:te 0 ~ wittin an exempc.Rracity zone (See 49 Cffl 391.62) 0 Ouallllied by oper81lon cJ 49 CFtt 391.6 4
Modic::JI Elr.Jminds signt~ture Mecical Ex~s name
Address-----T--l• ....ts s.Qnd•rds. ~.a Mtc!IC4!1 Eu••fNM"& Ctrd'!Cet• as-stalled • .tt CFR 351.~1'1). (C:Wtr.oeurv~ wry certifleabe Vltlen operaJing t <XII'N'II!Efd ahetiiefe.) J
49 CFR 391.41 Physical Qualifications for Drivers
THE DRIVER'S ROU: Responsibilities. ""ut 'Sdlodulcs. pbysicalafld emotional demands. ~ hfestyiC$ a.moog comme:m:)l drivm "3l'Y by th~ ~·pe of dri'Yic1 that 1hey do. Sor.u- oftht msin types of
dri\o'ei'S include tbe followirts;: rum around or shaft rtJ:ay (dri,~rS retlJr'ft 50 thcit hotne b3Se e:aeh t"\'tning): long relay (dri\~rs drive 9-11 bouts and then hive at k:asl a 10·bour olf4
dat)' period), stflligflllbroll.gh haul (c;ross cOWJU)• drivers): iinc:l ~ driYCI'S (drh'(rs shMe lhe drwi~ by alttm2ti:ftt lht:ir 5-how dtivi.n& ptriods and 5-bour l'tSl periods.) Tbt following fx10n may be- i1wolwd in. a dmds perfortJ)~ of dutits: abrup~ scbtduk c:ha.nges and rotating wort ~llcduks. t\ildl IIWI)' result in irregvtar s)cep patterM and
a dth'C:r beginning a trip • a fatigued oondicx.: Jon& bours: extended time away from Wnil)' aOO friends. wfl:ich nuy rtSull in lack or tocial supp011; tisht pi.ebp '&ftd deli"'~r'Y $Chtdules, with irrq.ubrit)• in ..votic, reSt, and t:~~tin& p:mems, 3(1\Yf# mid. '"'e<~ther and tnff.c c:oDditjons, which IIU)' cause dclays and kad to burTiodly ioadioc or unloading o;1111ll" in Ofdl:l l\1' o.V.~C' rv1 11•<: lul>l «i .. IIC: • .,.) cu .. •i..u.uuuc:ul¥l .. voJFtMc. ,..~,~~;ll l» C'~~ ~-ibt<Jtkm, o-..;.i~ ..... c.,o;toc:uoC;$ in lo:>'oo~c.. 'f',, ... ,~-lioo& ~~&C'U •)<o- lo.A~AoJ~
~Mal$ may lldd 10 tbt demands on the- ctJm(IX:fcial dri,•er, There may be duties ia addition to tbc dri~ laSk for \\iljcb a dm:oef is responsible aod oeed:s to be Iii. Some: o(t.bese re~bilitics are: coupling and WICCitlplint trailer{s) hom
1!K tnK:tor, loadina -.d wdo:uling. lr:tikr(s) ($0mdim.es a driver ~· lift a he:avy load ()f u:aload as much as 50,000 lbs.. of freight after sining for a long period of time without any szmcbing period): inspcctin& the operating «<lldition of uactor andlor u-aikt(s) before:. dttrifl& and after dcl"''C'ryol c:argo; li.Oing. insWI•-c,. ~ ~mo~ing. hea:''Y lirt cbaiJJs; and., liftia.g ~Y)' 1a~1.1hn:s to wvc:r open top tJ:aikn., 1Dc.11bove Wks demmd agilit)'. the abili(y to bend 'nd Sloop. the' "abiJit)' to l'l'l3inl3i.A 2 erooehing positioo ro itlsp«c tbt undtrs.idt oftht vehid t, fr-tqueat m1erins and -txititl:& of tht cab, and 1he 3hillry 10 climb laddt'rs oe tht-ttactor and/or traib(s).
In additM>n. a drner muse have thoe perc<pnzal ski:lls to monitor a sometimes oomplex c1nvv1c sit~• ion, dut judgment !Okill.s I() ruakt quiet ckcisio•tS. wbtn ~.and t.J\(:
tl'l;:lfti:pulalivc skills 10 OOCittOI an oversiZt" s'miflt whttl, sltifl 8.f!'31S ~!Sift& a •nanual transmission. and maneuver a ''Chicle in crowded veas.
§,»I AI PHYSICAL Ql'AUFICATIONS fOR DRIVERS (a) A~ Shall QIIC l!n-1: "«<rrlmi:n-ul w..o!Cr ,d.dt w.b$ he is physiafl)· quli(X'd 10 do so and.~ • "''O''i6od ill §391 61.-- llis pc:tSOOtl~~-. fb:wlof}'ltP1U.C ~py. of :a mcdtal cx:aminds «rti6ak that he i5 phy:siu.lly qu;di:ficd to driw a c.ommerdal mo50t
~c. (It) A p:rson i.' ph)~ q;Wif.::d 1D dri~·c a nldOf 1>'0bick if d!:u pcr$1)n:
(I) Has t10 lossofa G:loL a k&- a band. or aa aJ1a. Ilk Ala$ bem tnentcd l'l Skill P~ Ev11tumioft (Sl"E) Ccn~~(f,)rmerly a..-V.'ai"¢r ftro~) ,..__ .o 1391.49. (lllb$ no impairment of· (i) A h;u,d or finec:r •l!iclt *1c11tS \\oi tb ~01 po.,.,>tt ~taS~:O. (li)All am. btL. tn k a .... t.icb illk.tferes wilh thc.l'lhil:ily 10 pcriorm aormal nsk..$ $SSO.:i;Med •icll operating o co~ MOior ,.dltdc-~ 01 31))' oltlc:r ~t limb de IC.:t « lilla&llion Yo.bic:b inlcsfctcs .,;m llv .lbif.ty tQ perform I)Of'INI cash ~co \\11b ~ a(l(!llftmtrtlal t'I'IOO)f ,"ddktc: or bas btnJ gra11Ud a Sf"£ Cmibc puriuanl ~ Jl91.49. (3) li:u no c!:!:~blabcd medical hisl.c.w)· nc clinical diag:flo$i$ of illilbcl.¢5. mc:lld.IIS <viJCII.b• r~uitin.t; insuJia b CIOIDWOI: (-4 ) Has no e!JITt'nt dliQQidlag;no~softn}'Oc-dAI irlfatction, IVll!,iiU pcd!Oris. comn:uy il't$utncimcy, llll011•k's. or lillY oilier ca-dio\'JoS«II<If ~of a ,..-;cty ~ 10 bt 11ctornpan.tdby S)r'l~. dyJpnn .. ~. « COCI!',O:Siio.l: at'CIQc ~ ( $) H<~~S 1'0 C$1:Klli!hed nlt'dical h.iS'IOIY or dir~ic~ ..,..,!tis
of 2 JIC$I)ioo.")l')' <lys{unction litdy to intnfa\" '-'1lb his ·~·10 <:Onll'OIIln.d dr~'C' • ~rcitJ mo•or ''diCk .U.Jy. i6) l:bs 1110 cwrem cliniul d'~ or high blond~
lll.dJ 10 .nniht ""i:th h.$11lllicyto opc:t111¢: 3 <OQIIl'lefCiiJ mo1ot 1>-eb.ick a .fc ly. (1) l-Ias no es~~li~d medial •isloty 01' cl iniClll dArp:ts:is f>f ~ :utlllll.ie, orlliOpodic:. tllfii90UW. nc~. or \ ':Lo;c:ubr 6sezle •hith it•ltffcm ..,..,.. bi:s tl>ility 110 oomrolsad oca-e • commercUI molelr 'dixie safely. (') "-r-o~i$ll<'d medial ilis5ocy 01 d init:d ~ oi tpkpsy 01 aey olbtr OOI'MiilioG ,.,bicb i:s lil:ely tQ ~
)oss or o.::an:sc:-iownns « :~n:r!oss of abiUzy .o <:Otlll'Oia ~mow ''""'ic::k; C9) Jbs .o mtnllll. """-oos.. ~. OC' fuDCijoDal d~ or ~iwic: dip.:kr GkcJy to ~t witb hi:l ablf.._,.IO ~ a CIOI:'I'III'IetN.I fi\Oio)t 'dick s;afeJr. ( 10) Ibis d!SW1t visual acuity .t'. kast 20/-40 (Sntb) • ext. C')'C: •itho .. col'f'«<tiw k:llsa « viR~:.I ar:uity sq4rtld) cotft'Ct«< ~ 201'10 \Sf~¢~~~) 0t l:lefl<f\\o1llt COUt<:li\C' ~.$..distant t.noad;w ~il)'OfM kas( 2QI:tf (Saelea) in. bo1h ere~ .,..itb « .-itbo~Jt co~ttcli~ lema. Grid .t, JMO of at least ~ ifl1he horilonul mcnthul in nth ey<. atKl tt.: _.IY 10 1eoog•tize me cobs or rn:fTJC: $ign:ah :and dcvicii'S .,_ing :i.1:~ndard red. !1fta ... -. (II) f""a:'d percth•ts ;a !On:td •iusptttd voltt In d'le bcacr t¥ no1 ku ttun Sf«'' with o.-,.,iibocit 1~ I.I.SI.' or a~ ai4.. 01. • 1c:st«1 by gse of • -.diomc:uic rle\•icc:, dOC$ ta
ll:a~oe :.:n •'"U11£" bearins l~s in !he-bttler <'fll &ft".111:r th.M <tOdtc~ls• 500 1-1~ 1,000 lh lllldl..OOO Jb: \~i thar witho-.M a ~ de\'ioe wbc:ft tb¢ ...riOillelJic de,•i«: is a lillr:ab:d to lbe Amnicun Na!JOGIII Stuld:ud C IOrmcrfy ASA Stlrlb-d)l.24.S•I9S l ~ t l2)ll) Oocs.ot U9C au-y drugot~ identified ill! 21 Cf'R 1.301.11 Sdleduk I. :m ~a n;m:ol.ic. or odta lltbil-foc'qA"i drug, (il) Ood .oc Pe any e~on-Sdltdlilk I chC 0.1 substantt tb::ll los idc:!!ltiflltd ill e.c: olbt:f Scltcdlrics • ll pvt 1308 C'JCC~F' ""be~ die est: is prC$Cribtd by~ I~ modictll prlld1'tlloc:la.. at dtfmcd in f 332.107, ~IS f:~tnil.ia1 .,.,,th the rlrivd-' $ .ncdieal hi~ lind &. ~ the driver tlull l.he ~ •ill 1101 .:~~uselytlfea 1hc drivtt"'s 3b1Ji'Y• :raf-dy opnW: a comm1:1citd mo1ur ,-d:kJe. til) Hu•cwn:o~cl in'eAI d~of ....... , ....
~~ I, .! ia~~~~ §l! ~a~~~~~! ~ ~~ i~sJgit
it •• 11. "'11 Uzo. ~ - 8 '3: &!f s • 3 ~ a , i ~ t ~ .$ ~· » t f -$ k ~. I~ a ~hili • ~~ il l~ -lUI i J : ! F· t If ~· iJh&l i lf
ll!liiilfjiilil!liit~~~~~~fllljillitf~!l! lli!lli lliil!i l!!!lllj!!lllllli!lljli!ili:'' l !jjll' hU1H 1•IUth~dHlfih~~ ~•trl!li l ~ ~~ t ~=h!.lj 'hhtPi·I·JU :U~ 1!1f ·li{ ! h ~· I
I • '1"1 ll'i " ,• .,, .ll I I II
i~~ i 1 ~~~ n ~~!~ ~~~i~~~~~~ J ! Ji I'" ii ~a 151tlif1l t I~ :!~i!itiiJUnH .til' f=Jll i 11 I .J, i 11 Jil Ji I , I I . . f I
' ~ ' ' I ~! I ~ • 8 i J1 fIg ~ I
"' ~~a.s.fn ! U -rul8s HiUIJiat Hgt~i~ ~*lUU }afp~~ ir hi!lhur~~l~d~IHUUi!~!iH !i!H ihi~U !iH~r li Hi!· ~u
fj !111i!l'il !1 l!!lii l!lli!liil l!!lfl! tii~1111 1! I I I .g l s Ill ~ i.... ss I i d
23, e4C. The exatn•ner Sbo1.11d not U!$e onty Sibil <~nts ($~materials)._ The opposite ear shoold be tested in the same manner. If the IIX1MCI141 tal$ r.c whi~ voice test. the audic:metric. test &bcdd be ad"ninis<esed.
If an indMd.cal meets the er1tena by N use or <' hearing aid'. the lc:~wing statlameol tnPSt ~ppe-ar on ~toe~~ l:xArtunet'.=o Oenolc.bte ~ouald\ed <:riJ ..nen we3ting a ~aid."
(See~ Oi&ofdal$ and CommM:ial Mo1or Vehicle OnvetS at http;ll'wwwtfrna;a.dot.gov/rules.regsA'nedreoorts. hlm)
D<ugtm §391.A11bM1ll A pet$0n IS~ ~aified IO~a oommetciaf rt1010t vehicte if that person does not use any «vg or subslanoe lclenLied 1n 21 CFR 1 308. 11, an .-:nphetamine. a recc:oiic. or other hab~ Mig. A driver mat use a noo-Sehedtle 1 ~ orsubs~noe lbJt 1S i<len~ilied ., h OCher Schedules in 2-1 part 1308 if the s.Wstance or drug is presO'lt!Ed by a bcensed tneck::lll practil.iOrter \\t10 (A) 1$ '*""m~r with the driww"$ mecical history. ard assigned duties~ and (8) has adVIsed the dr'l'W!IIbaa the prescribed $Ub$Uin~ or drog ~ not ~rwly affect the driver'$ ability to safety~ a eommerciat mo10t ....ehtc::le,
lhi$ e~•docs not ar;ply k»~.
The in~nt of fte medical oeniftcatiOI'I process is
10 mcclically evaluate a dti¥es to enSUte thM 1t'l8 dfM!r has no medical condition v.tlich interferes "" tht sar. ped¢c'man0e 01 driving ~k$ on a Pttllic road. If a driver uses an amphetamine, a nartC:IIlc or 8fr'/ o1her habl-lion'nlng drug, 11 may be eau&e- lot the drivet to be louncf med'"tealty ~allied. If a driver uses a $chedtje I drug« ~' iC w'oll l)ol: ~ t,:w 1hC; ~Y¢f'0 ~
fourd medically unQuaMecl Motor carrie1s are encouraged to obialo a prac:Uionefs wrilten $11' 1 ·~~the elleds on tr.-nspo~on sale;y of the use of a panio.dar drug.
A tes.t lor conltOUed ~I$ not requin!d as part of ttisl:lierrial certif~t.a6on ptOCle!.S. The FMCSA 011be drivef'r. efTIIJIOYer $hould be contacted <firiec:ty b information on controlled substances and a1oohot testW\g under Pan 382 o( the f MCSRs.
The tenn ~us.es:~ i$ <0-.,..,.~:d tQ cnoompa$$ ~of prohibited m.g use de~rmined by a ,:ttvs.e~an through e5!8l*shed medleal muns. Tlil may or may not imdve body lluid testinv If body fluid testing take$ place, positive leSt restas ShotM be conln'ned bV 31 $eoond test 01 ~ 5J)ecifltity, The 181m "habit-l'tlrming" is ircended to incltJOe any drug or medication ~ fecognllecl as~ 01 beoomil'l9 habi;ual, and which may~ the U&er's ebity to oper:a1e a commet'QSI fi'IOGOI' vehicle safely.
The drivef i$ medic::aal ~liiicd for h c:Uaiion of the prohibied«ug(s} use and unda second eumlnabOn ShotwrrS lhe dn'Yer iS tree
from tne prohtited drug(s) use. Rec:eljica(-on may invefl.te a stbstance abuse ev&Jaaon, the suOCC$$1\i con....,tio;• ot a drug~ Pf'C9'811l, and a negatrve drug test restAt Addi!ion:.ny. ~ tMt the cettific;:;lliOn pe60d is nonna!ly ~ J6CIIS, the examiner t.as fle option to certtfy for a period of less than 2 years II thl!i ~"<oo"l'loiol$( (,lc!lci"a~ o"o)Q(• kli:I4V'i:" oC. t ........ \11 ifo!jl is reQuired. (See conteter'lce ott. Neui'Oiogie:;tl flii$Ofttel'$ 3nd Commen;ial Orrivers and Conference Qn
Psychia1ric Otsorders and CcwnmetOSI Drivets
••• http://wwN.fmaa.Oot.gov/rulesreg~eports.
him)
Alcoholism §391A1(bX13) A. person is ~ QUalifiEd to c:fri,te a commeraal tiiOk)( vehiCle If th3t petson
HIJs no OJ(fl!IW dit»cal &~ ct ab)l'a06'f,m, The tenn •euten1 clinical ciagno:sis of' is
specrfic:aly desagned to encompass a cutte01 ()Jcoholic; iltte$$ or those in$t:clnce$ -M18re t11e individuars physical ocnctilion ha$ not tay stablli2ec, regatdleSs ollhe time eiii!!MeOt. 11 all'l in(liviOJ~ .$how$ sign$ of t~avn; an all:ohoJ-use problem. be or She should t:E re-fened 10 a sped31iSZ. Air« c:aun~ ancvot treatment. he or she may be c:ons;ctered kx certiicaion.
t) Symptoms
a) Chancte~stla I) Loud snoring II) Morning lw"dnchos Ill) Gasping or choking while sleeping iv) Lossofscxdrfvt!/impotence v) Excessivt! dll)lllme sleepiness vi) lrrln•~llfty ondjor feelings of depression vfi)Conctmrntlonrmd memory (Jroblems viii) Frequent nighttime urlniliiOII
b) Risk Groups I) BM/=30 or above II) LII~P neck size· 1 71nches for n,.n. 16 inches for women Ill) MidtCe Age met~ post·menop.>usnl women lv) Etlwlrity v) Po•opJe with nbnOn11alities of tho bony and son tissue strucruros of the heat/"""
neck 'e.g. re<:essed chin. small jaw. or large overbite) vi) FamJiy history ofOSA vii) Smozers viii) Ptople wfrh ondomne d1sordtrs such .sll<romeply .1nd HyporhyrrJitlism
c) Effects I) lncreJsetllwnrr rtllo II) Chronic e/evnt/on of daytime blood pressure ill) Impaired glucose tolerance and Insulin resistance lv) Moot! changes
2) OSA Ica~. lllaanosls. ~c~
a) Questionnaires & Sleep Study (•)lkrlm (~) Stop & Stop &ng (<) Epworth Sleepiness Seal• (c) Poiysomllo8r.>phy
b) OSA Testing (1) Sleep study (lo) Home Slet!p Study
c) Diagnosis I} Medicare
(8) AHI or ROI gre1ter than orl!qua/ to JS e~nts ~r/wuror~aterlhan oreqwl to S ~wna per hour11nd Jess chan 14 events perhourwtth docu:n61ti!d symfJ(oms of t=ssl~ d1ytime slttplness; lmp611'11d CO(JIIftlon; mood dlsord,rs. lnsomnl:~: or documttnted hyJ*rttnslon: l.srhemlr he:Jf't; or h1'srory of stroktJ
II) MSM (a) Th<• patie11t ropOJ'tS daytime sleepiness, Ullrdrt•slllri!J •·loop, fatigue,
lnsomnlit and/or unlntenrlonal slet.~p episotles during wakefulness. The patienr awllkOn$ with breath holding, gasping or chokf11g. The patient's bed pnrrnor roports loud snoring, breathing lmerm11tions. or both, during rhe pat/tnt's sleep.
(t)Pof}'S()nlllogrtJphy (PSG) shows more than five scor.Jblc resplrarory eventt (e./? apne11s. hypopneas. RERAs) per hour of sleep andjor evidence of respfrtJtory effort during all or a pOrtiOn of eJc~ f"I!Spfracory event
(c) PSG shows moro cha11 IS scorab/e respiratory events (e.g. apneas. hypoprwns, Rlill/ls) p<•r hour of sleep andjor ovltfonce of rtsplratory ctrorT tlurtnu all or n portion of each rosptrmory event
(d)Arwther curro11r sleep tffsordcr; nwdical or ncurofog/c,11 tfltorder. medication use, or sub.ftance use tloes not b€.'ttt.'r IIC:COtmr /Qr the patient's cone/it/on.
d) OSA Typts f) Mlfd(AHiofS·JS) ff) Moduate (All/ of 15·30) Iff} Sl!l't!te (AHI•more thRn 30)
3) Trcatment·Severe O$A
a) CPAP. APAP. BIPAB, b) 01'111 8/Jt>!lonccs c) Surg~ry d) Other
f) Wefgilt foss (beMvlornl cllange·mild OSA) If) Posicon Thernpy
{I)Iuise he.•d whfle s/t('pfnl (Z)AYOfd s/t('pfng 011 one's back
4) Is this condition comga!lble with over the road drivintl
a) DOT's pcsfrlon f) FMCSA regulations do not specfflcaf/y atftfress sleep npnca, they do prescribe
thur • personw/rll n merffcnl 11/srory or cflnfCfll dlngnosls uf1my condition likely ro tnrorferc with tilofr abfllty ro drive snfo/y can nor bo modlml/y c;u111fflod to oper.re .1 <YJmmcrcfal motor voir/ell! (CMV) In fntorstntc commer<'O. (see also FMCSR 391.41 (b) (5))
ii} A motor carrier may not require or permit .a driver to operate a OIV if the driver has a condition, i11rludf11g sft't'p apnea, chat would affect his or her ability ro
safety operate the Ill' hid~. Ills critical that persons with sleep a{Jie.t fully use the matment provided by their doctor. They should not drive lfL~ey are not being treated. Being effecrive/y treated, and complying with that l1l!atment offen the best ho{XI of11 rommurial driver With sleep 11pnea to se:ure the ability to do his or her job snfvly ""'' bo fitlly alert.
Ill) FMCSII cur.rently relies on Mcdlclll Examiners to apply profvssloml judgment In applying FMCSA s advisory cr/toria on OSA to dewrm/110 w/letherr1 rlrlver has a respiratory dysfunction such as OSA that might affccr his or her aMity to opcr;.re a CMV safely.
b) Adhm!nre is key I) IJt~omclal swndard {MedlcRre)
(1) IJse ~ -# houn 011 ?(liN of nights (S of7. which mmslates /11ro 11 of 30 daJI$) dMril!/f 30 consemtlve dll)l$ W1thin the pnor 90·day period.
ii) Usag• Prob/em·Non adherenre estimated at 4696-8396 (J)Fit
(a) leaks (b) 1J11romfortnblo sloop positioning due
(2) MOIIIIOr/1/g (a) 1/efi/1 mtes on CPAP .1ccessor/e,; (e.g. mnsk, chin >ll'llpS, hos<•s, filrers,
machines) (b) Device data dow11/oads
Acrooyms=deco41D& crt!lcal n:fcrcow
CPAP=Continuous positive airway pressure APAP•Auto·titrarlng posit/~ nirway pressure 8/PIIP• BI·ievel positive nin~.IY prossure NCPIIP•Nnsal cont/miOus poslrlve nlriVi/Y fJIYJssuro 11/ff•Ap//C.?·flypopm·n lnrlox ROf•Respiratory Dislllrbance Index SOB=Sfeep Disordered Brearll/11g EOS•Exct!ssive daytime sleepiness PSC•Potysommgraphy RERA•Respirorory -re/arcd aro11sJ/1 MSM•Amerlan Ac;~demyofSIIN!p Medid11e
lotemet source! Government Sites
hl Lg: L /www. rm ;s a.dot .go v /d I' I ver·. Q fQ tJ([sl cc u·a p 0 ~0 /del ~lou. wbc !l• xou. have ·S I eep· illli).I:JI
hnp;[twww.mulations.eov/ll!doc:u,ncmDetai!;D-EMCSA·2012·0102·000\
Medic~ I Examlne-·s Handbook:
http: II nrcmo.fmcsa.dot. gov I documQnts/fMCSAMedlcpiEMmlnerHarJdbook· 2014MAR 18. pd!
llldusa:y SltrJ
American Sleep Foundation
btl p: /Is ICC D (g u ndatj aD ,org £
American Acudemy ofSieep Medicine
http:/fwww.aawneto!]!/
Mayo Clinic
h rtp: £ lww w,mayodl n jc,o ra /<1 I seas C$·Condl tlon s I sl cop· o on ~~/m u It I mod I o /o bst ructivc· sleep·apa~a/vld· 2 00841 I 1
North American Fatigue Management Program
hrrp.jjwww.nafmp.com/enj
Befenmcc MlltfltJIII
• B~rlln Qutsrionnal~ • Stop/SlOp &ng Questlonn•lr. • Th• Epwtmh SIN>pin.ss Sto•le • FMC$R P.rt 39 I • Nnrion.?/ rnwsportadon SnftJty Rottrd Snfocy HtJrommendrJtlon JI·J 0·8· J I • Apr/120. llil 1 Ft•dernl liraistm•Proposed Rommmu11tlatlons on ObstmctivtJ Slllf!p 11pne.1 • Medlr:JII EKomluac/on Rt-pol't For Commercial Orlvor 1-'ltntt$$ Oett*rmlnnrlon ($ample)
ALFA INTERNATIONAL 2015 TRANSPORTATION SEMINAR
April 29 – May 1, 2015 – The Hotel Del Coronado – Coronado, California
A MORNING IN THE LIFE: RESPONDING TO PLAINTIFFS’ DAY-IN-THE-LIFE VIDEOS IN MEDIATION
Duke Highfield Moderator
YOUNG CLEMENT RIVERS, LLP Charleston, South Carolina
Carolyn Ramos BUTT THORNTON & BAEHR
Albuquerque, New Mexico [email protected]
A MORNING IN THE LIFE: RESPONDING TO PLAINTIFFS’ DAY-IN-THE-LIFE VIDEOS IN MEDIATION
Defense Plan for Mediation
• Highlight benefits of mediation • Highlight benefits of settlement
• Break into groups without inflaming
Plaintiff
Trial Expectations
But then… A Day in the Life?
Plaintiff’s Day in the Life Strategy
• Bolster credibility of damages claim
• Influence mediator and appeal to emotions of adjuster
• Accentuate degree of injuries
• Increase value of consortium claims
• Demonstrate preparedness
• Invite defense to “show hand”
Day in the Life: Behind the Scenes: Just how accurate is the information in a day-in-the-life video??
Day in the Life: Behind the Scenes And what kind of coaching goes on behind the scenes?
Combating the Bias at Mediation
• Focuses solely on strongest aspects of plaintiff’s damages claim
• Video is not evidence
• Damages described may not be recoverable
• Cannot settle without compromise
Need for Live Testimony Because this is what they present…
Need for Live Testimony And this is what happens on cross…
Admissible at Trial?
• Edited and choreographed to incite sympathy and emotion
• Hearsay
• Due process
• Cumulative Evidence
Plan of Action for Unsuccessful Mediation
Briefcase justice… • Request all source material and communications
• Don’t take assertion of privilege at face value
• Be prepared for last minute attempt to waive privilege
ALFA INTERNATIONAL 2015 TRANSPORTATION SEMINAR
April 29 – May 1, 2015 – The Hotel Del Coronado – Coronado, California
DRIVING UNDER THE INFLUENCE – OR NOT? (DRUGS, ALCOHOL AND TRANSPORTATION)
Sean McDonough Moderator
MORRISON MAHONEY, LLP Boston, Massachusetts
Jerry Sallings WRIGHT, LINDSEY & JENNINGS, LLP
Little Rock, Arkansas [email protected]
ALFA INTERNATIONAL 2015 TRANSPORTATION SEMINAR
April 29 – May 1, 2015 – The Hotel Del Coronado – Coronado, California
MINIMIZING JURY DISTRACTIONS: STRATEGIES TO PRECLUDE ADMISSIBILITY OF PREVENTABILITY DETERMINES AND CSA/SMS
DATA
Christy Comstock Moderator
EVERETT WALES & COMSTOCK Fayetteville, Arkansas
Ryan Hand LORANCE & THOMPSON
Houston, Texas [email protected]
A. Overview Regarding Preventability Determinations While motor carriers conduct accident reviews for many reasons, the general focus of the preventability determination is safety. Preventability determinations are used by the transportation industry to analyze and understand accidents and serve as a tool for risk managers to aid in accident prevention. Criteria governing the process employed to reach a preventability determination vary. A motor carrier may have developed their own internal processes and directive to employ in accident reviews; however, many motor carriers utilize the preventability standard of the National Safety Council or the American Trucking Association while others use the DOT definition and appendices.
National Safety Council definition: “A preventable collision is one in which the driver failed to do everything that reasonably could have been done to avoid the accident.” The Council clarifies that its preventability standard “is not solely based on or determined by legal liability. American Trucking Association inquiry: “Was the vehicle driven in such a way to make due allowance for the conditions of the road, weather and traffic and also to assure that the mistakes of other drivers did not involve the driver in a collision? Section 385.3 Federal Motor Carrier regulation: “A preventable accident on the part of the motor carrier is an accident (1) the involved a commercial motor vehicle and (2) that could have been averted but for an act, or failure to act, by the motor carrier or the driver.” Appendix A to §385 Explanation of Safety Audit Evaluation Criteria states “Preventability will be determined according to the following standard: if a driver, who exercises normal judgment and foresight, could have foreseen the possibility of the accident that in fact occurred, and avoided it by taking steps within his/her control which would not have risked causing another kind of mishap, the accident was preventable.”
Each of these preventability inquiries focuses on what the commercial driver could have done to avoid an accident, which effectively imposes a different standard of care on the commercial driver than the standard imposed by common law negligence (failure to act as a reasonably careful and/or prudent driver). While a driver may not be at fault under the common law standard for negligence, the driver may be deemed to have been involved in a preventable accident. And although preventability determinations are not meant to be used to assign blame, fault or liability for an accident, these determinations are very often the centerpiece of accident litigation, and the distinction between the negligence and preventable accident standard may be lost on the jury at trial.
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B. Best Practices in Accident Litigation As you will be reminded by the case summaries below, there are a number of tactics which can be employed when seeking to exclude an accident investigation and preventability determination both during discovery and during trial. The answer of admissibility largely may be determined by the motor carrier’s policy and protocols before an accident occurs. Where the motor carrier’s preventability standard mimics or is substantially similar to the standard imposed by the law of the jurisdiction where litigation is pending, there is an increased risk that the Court will permit the motor carrier’s preventability determination into evidence at trial. On the other hand, where a motor carrier has carefully created its policies and delineated that the preventability determination is not an assessment of fault or liability; that many factors are taken into consideration, some of which would not be considered by a court or jury; that a heightened standard is being employed with the goal of improving driver performance, enhancing safety and preventing future accidents; and that the determination is not intended to be used in litigation, a stronger argument for exclusion of the evidence exists. Although the Federal Motor Carrier Safety Regulations do not explicitly require that motor carriers engage in the preventability analysis, preventability of accidents is one factor considered by the FMCSA in evaluating a motor carrier’s safety rating under 49 C.F.R. §385.7(f). If a motor carrier is engaging in preventability analysis for this purpose, then the policy should tie the practice to the requirements of the FMCSA in order to maximize potential applicability of the protections of 49 U.S.C. §504(f) (Recall that Section 504(f) precludes admissibility of a motor carrier’s accident register, Sajda v. Brewton, 265 F.R.D. 334, 340 (2009). Following an accident – particularly a serious accident or an accident that could develop into a serious matter -- a motor carrier should consider whether its internal policies require that a preventability determination be made in each instance, and might consider the following: If the policy requires a preventability determination, are there exceptions? Does an exception apply here? If we make an exception to the policy requiring preventability determinations, how is that exception documented? Are there timing requirements, and if there is no required timeframe, why is a preventability determination being made at this time? If a preventability determination is required, document the process employed, the persons engaged and the information considered. When counsel is hired by a motor carrier following an accident, it is typically because there is a reasonable anticipation of litigation. Use the anticipation of litigation as a springboard to work closely with your counsel and develop a sound basis for asserting the work product privilege for materials developed during the course of the investigation, many of which may be utilized in the preventability determination. Investigative materials may qualify to be excluded from discovery and admissibility under the work product doctrine even if the ultimate preventability determination comes into evidence. Consider including your general counsel or in-house attorneys in the investigative/preventability determination process.
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Build your objections and develop assertions of privilege during the written discovery phase, identifying investigative materials developed as work product in a privilege log. Use motions to quash and motions for protective orders to preclude deposition questions about investigations and preventability determinations, particularly with respect to Rule 30(b)(6) corporate depositions. If depositions cannot be avoided, prepare your motor carrier witnesses to explain that the preventability standard is not the same as the negligence standard, and explain why the standard is different. You are laying the groundwork for in limine motions and other evidentiary motions based on common arguments such as the attorney client privilege/work product doctrine; imposition of a higher standard of care for commercial drivers; relevancy under Rule 401; confusion/risk of unfair prejudice under Rule 403; subsequent remedial measures under Rule 407; self-critical analysis privilege where recognized; and depending on the investigative documentation, lack of foundation and hearsay objections. While the following list is not exhaustive, we have included many of the often-cited decisions regarding preventability, and where available, we have referenced key facts supporting the Court’s decisions.
C. Discovery of Preventability Determinations Laws v. Stevens Transport, Inc., 2013 WL 941435 (S. District Ohio, March 8, 2013) Preventability determination is discoverable where no evidence that defense counsel was involved in making the preventability determination but rather, the preventability decision was made by the motor carrier in the normal course of business pursuant to the regulations of the Federal Motor Carrier Safety Administration. Same: Smith v. Marten Transport, 2010 WL 5313537 (D. Colorado Dec. 17, 2010) Sajda v. Brewton, 265 F.R.D. 334, 340 (N.D. Indiana 2009) Carlson v. Freightliner, 226 F.R.D. 343 (D. Nebraska 2004) Heartland Express v. Torres, 90 So.3rd 365 (Florida, June 25, 2012) On appeal, the Court held that Plaintiff could not obtain discovery from Heartland’s corporate representative during a Rule 30(b)(6) deposition concerning the preventability determination as this information concerned Heartland’s risk management investigation, and the investigation was conducted in the anticipation of litigation and thus, the findings are protected work-product. Byrd v. Wal-Mart Transportation, 2009 WL 3055303 (S. District Georgia, Sept. 23. 2009) Where Wal-Mart employed its Serious Accident Review Committee following a fatality accident, Wal-Mart’s subjective evaluation of its legal responsibility for the accident (preventable vs non-preventable) was a protected mental impression of the merits of the anticipated litigation (i.e., work product) which was shielded from discovery. The Court noted, however, that had Plaintiff sought the unprotected facts discussed in the SAR committee or the criteria/uniform methodology used by the SAR committee, this information would have been discoverable.
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Gruenbaum v. Werner Enterprises, 270 F.R.D. 298 (2010) Following a fatality accident, Werner’s general counsel implemented Werner’s Catastrophic Loss Team protocol for serious accidents in the anticipation of litigation, and the Court held that the work product doctrine protected the investigative file from discovery. Although a preventability decision had not been made at the time the motion to compel was filed (and there was some evidence that general counsel made the preventability determination), the Court stated that “even if such a preventability determination had been made, information regarding this CAT Loss investigation would be privileged.” The Court did note that persons other than general counsel (those in the “risk department”) might have knowledge of the factors reviewed by general counsel in making a preventability determination.
D. Admissibility of Preventability Determinations
Jeffrey Rogge v. Estes Express Lines, 2014 WL 5824766 (N. D. Ohio, Nov. 10, 2014) Preventability determination ruled not admissible as it is not relevant. “There is no evidence in the record as to the basis on which the person expressed that rather vague and indefinite opinion. There is no indication that the opinion is based on national, company or personal standards. The opinion is, therefore, unreliable and the jury should not and will not hear it.” Asbury v. MNT, Inc., 2014 WL 6674475 (D. New Mexico Aug. 6, 2014) An expert witness cannot testify about preventability by using a definition of preventability which differs from the definition in the FMCSR, 49 C.F.R. §385.3. Cockerline v. UPS, 2013 WL 5539064 (Superior Court of New Jersey, Oct. 9, 2013) Preventability determination was not an admission of fault, and was not admissible as the preventability determination was substantially more prejudicial than probative. The preventability determination made by UPS contained no admissions by UPS about how the accident occurred, and the preventability determination could only be probative after an “entirely collateral” proceeding about how it had been conducted. The Court concluded the preventability determination “was a matter entirely separate from the circumstances of the accident itself” and “could only confuse, take an undue consumption of time and mislead a jury.” There was no evidence that “UPS attempted to determine [the driver’s] blame or legal responsibility for striking [Plaintiff’s vehicle] or that UPS attempted to investigate subsequent aspects of the accident, much less assign liability.” McLane v. Rich Transport, 2012 WL 3996832 (E.D. Arkansas, Sept. 7, 2012) Preventability determination by Plaintiff’s expert using FMCSA definition of preventable accident at 49 C.F.R. §385.3 was not admissible as it “will not assist the jury.” Brosette v. Swift Transportation, 2008 WL 4809651 (W. District Louisiana, Oct. 30, 2008) Preventability determination ruled admissible. The Court concluded that Swift applied 49 C.F.R. §385.3 to assess the preventability of the accident. Section 385.3 defines a preventable accident as “an accident (1) that involved a commercial motor vehicle; and (2) that could have been averted but for an act, or failure to act, by the motor carrier or the
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driver.” Ruling that the preventability determination could come into evidence stated that “the meaning of preventable embodied in the [DOT] regulation is no different from the meaning of the term in ordinary usage” and “no confusion or prejudice would result from the introduction” of the preventability determination. Harper v. Griggs, 2006 WL 2604663 (U.S.D.C. W. District Kentucky Sept. 11, 2006) Pursuant to Rule 407 (subsequent remedial measures), the Court precluded evidence generated by Crete Carrier’s Accident Review Board which was “of a conclusory nature” such as ARB’s thoughts, analyses, inferences or deductions based on the factual circumstances of the accident and their recommendations and employment decisions in light of the accident. However, the ARB evidence relating to the causes, circumstances or damages caused by the accident was admissible. Ferguson v. Martin Brower, 2006 WL 964796 (N. Dist. Oklahoma, April 12, 2006) Preventability determination ruled admissible. “Defendants admit that Martin Brower investigates any accidents involving its vehicles to determine if they were preventable. Such information is clearly relevant to the claims at issue here. To the extent that these investigations are conducted and recorded as part of Martin Brower’s regular business practice, information contained herein is also admissible. Defendants argue that jurors would not understand the difference between “preventability” and “liability” and thus, that such information would be more prejudicial than probative. The Court disagrees and finds that any misapprehension or prejudice can be adequately addressed on cross-examination and/or in the jury instructions.”
• A favored response to the curative instruction: Instructing the jury to consider the evidence only for its admissible purpose is “often an admonition to perform a mental gymnastic beyond its powers.” Bruton v. United States, 391 U.S. 123 (1968).
Tyson v. Old Dominion Freight Line, Inc., 270 Ga.App. 897 (April 26, 2005) Preventability determination reached by Old Dominion’s Accident Review Committee ruled inadmissible as “the evidence shows that Old Dominion’s definition of preventable is different from the standard of liability.” Old Dominion’s internal review policy provided as follows:
“Responsibility for accidents is based on whether or not the accident was preventable and not on who was primarily responsible or at fault. Responsibility to prevent accidents goes beyond careful observance of traffic rules and regulations. Drivers must drive in a manner to prevent accidents, regardless of the other fellow’s faulty driving or failure to observe traffic regulations. This standard has been set for internal purposes only and shall not be considered to impose a greater burden of blame than that required by law in the event of an accident whose cause is disputed or where litigation arises.”
Inman v. Sacramento Regional Transit, 2003 WL 1611214 (Ca. Ct. Appeal, March 28, 2003) Preventability determination ruled inadmissible. The Court found important the fact that the preventability analysis employed a higher standard than the negligence standard, that the
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preventability analysis considered less evidence than the evidence presented at trial, and that the transit board would have to conduct a trial within a trial to illustrate the preventability determination is entitled to less weight in the negligence analysis. The transit board had offered this proof regarding its investigation: “The accident grading board is convened after a collision occurs, and the idea behind the grading board is to grade these accidents, assess preventable or unpreventable for two purposes. One, a preventable accident leads to discipline of an operator and the hearing is designed to educate and keep these kinds of accidents from happening again….” “The standard – it is not the standard that is used in a civil lawsuit.” “It is not the reasonably prudent person’s standard that the jury’s going to be applying in this case.” Villaba v. Consolidated Freightways, 2000 WL 1154073 (N. Dist. Illinois, Aug. 14, 2000) Consolidated Freightways conducted an accident review pursuant to the company’s fleet safety program for the sole purpose of increasing the driver’s understanding of how to prevent accidents, and Consolidated utilized the National Safety Council rules to determine accident preventability. While Villaba argued that the standard for preventability is the same as the standard for negligence under Illinois law, the Court found that the National Safety Council definition of preventability makes clear that it “is not solely based on or determined by legal liability.” The Court found that having two standards – the Illinois standard for negligence and the NSC definition of preventability – “may confuse and mislead the jury and result in a mini-trial regarding the different standards and the significance of the preventability finding, diverting attention away from the real issue of negligence. Consolidated’s finding of preventability could lead the jury to decide the issue of negligence by improper reference to the preventability standard and Consolidated’s finding of preventability.”
NSC Definition of Preventability: The NSC definition appears to be the same 15 years after the Villaba decision.
E. Discovery of CSA/SMS/PCP Data
There continue to be relatively few reported decisions concerning the discovery and admissibility of data generated through the Compliance Safety Accountability (“CSA”), Safety Measurement System (“SMS”) and Pre-Employment Screening Program (“PSP”) data. One helpful approach may to be to get acquainted with the articles written about the statistical meaningfulness of the CSA scores and crashes. A 2012 study by the American Transportation Research Institute (“ATRI”) suggests a possible relationship between the SMS data and carrier safety. See Compliance Safety Accountability: Analyzing the Relationship of Scores to Crash Risk, October 2012. A 2013 American Trucking Association white paper (The Reliability of CSA Data and Scores, http://www.trucking.org/ATA%20Docs/Waht%20We%20Do/Trucking%20Issues/Documents/Safety/Are%20CSA%20Scores%20Reliable%20Dec%202013Final.pdf) is critical of the ATRI paper and references two studies that found there was little, if any, statistical correlation between a motor carrier’s SMS scores and crash risk. A study by Wells Fargo Securities in
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2012 found that of the 4,600 largest carriers, there was no meaningful relationship between BASCI scores and accident history, and concluded that the scores should not be relied upon as an indicator of safety performance or crash risk. See Gallow, A.P. & Busche, M., CSA: Another Look with Similar Conclusions, Wells Fargo Securities Equity Research (July 12, 2012). A similar study conducted by University of Maryland Professor James Gimpel found that the “association between crash risk and the BASIC scores is so low as to be irrelevant.” See Statistical Issues in the Safety Measurement and Inspection of Motor Carriers, Alliance for Safe, Efficient, and Competitive Truck Transportation (July 10, 2012). In addition to evidentiary objections on the grounds of relevance, confusion of the issues, unfair prejudice, hearsay, prior bad acts/dissimilar occurrences, character attack, objections to production of CMS/SMS data should note that the data is generally unreliable, along with the DOT’s website disclaimer:
“Readers should not draw conclusions about a carrier’s overall safety condition based on the data displayed on this system. Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 40 CFR Part 385, or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation’s roadways.”
A comprehensive set of discovery is circulating among the Plaintiffs’ bar regarding “violations” of the BASICs so it is also good to keep in mind that BASICs (“Behavioral Analysis Safety Improvement Categories”) are measurements, not regulations and thus, they cannot be violated. Objections to disclosing PSP data may include statements that a motor carrier cannot disclose this data without written authorization and several federal statutory schemes protect unauthorized disclosure, including the Privacy Act of 1974, the Drivers Privacy Protection Act of 1994, and the Fair Credit Reporting Act; however, as illustrated below, a narrowly drawn discovery request may defeat these objections. Vanduser v. Purdy Brothers Trucking, 2011 WL 5025732 (Oct. 21, 2011) The Court held that documents from the Driver Safety Measurement System (“DSMS”) or any pre-employment screening program (“PSP”), the driver profile from the Motor Carrier Management Information System (“MCMIS”) are discoverable as they may relate to potential claims for negligent hiring, training, retention and supervision. The Court did not address the motor carrier’s privacy issues but presumably did not find them meritorious as the Court directed the motor carrier to respond to the subpoena duces tecum for the documents’ production.
F. Admissibility of CSA/SMS Data Riffey v. CRST Expedited, 2013 WL 6836665 (E.D. Arkansas Dec. 20, 2013) The Court granted summary judgment in favor of the motor carrier on the issue of punitive damages despite CSA data reflecting that the motor carrier had a 92.8% score on the BASIC of unsafe driving. The Court noted that Plaintiff had not shown that the driver involved in the
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accident was among the pool of drivers which constitute the 92.8%; that the 92.8% BASIC score appears to carry little weight with the FMCSA in light of the fact that the motor carrier had a satisfactory safety rating. The Court further premised its decision on the fact that the motor carrier had implemented monitoring and safety systems and equipped its trucks with on-board communication systems which are not required by the FMCSA. McLane v. Rich Transport, 2012 WL 3996832 E.D. Arkansas, Sept. 7, 2012) The Court denied a motion in limine to exclude a motor carrier’s CSA scores and percentiles at the time of the accident, permitting an expert to offer testimony about the motor carriers’ safety practices. Relevant to the Court’s decision (although not included in the decision) was evidence that the motor carrier did not have a cell phone or texting policy, that the driver had been engaged in voluminous texting prior to the accident and that the driver had submitted false driver’s logs. Grosek v. Panther Transportation, 2009 WL 905035 (M.D. Pa. 2009) The Court permitted a motor carrier’s expert to testify regarding the motor carrier’s favorable federal government data and safety statistics, stating that references “to federal law and statistics and industry standards will not confuse the jury or prejudice the plaintiffs, since the report is brief and the information and statistics objected to are not complicated.” The Court further noted that such information by experts on both sides “will help the jury assess whether Defendant Panther violated the standard of care in training [its driver].” Although the evidence was favorable to the motor carrier in this instance, the same wisdom could be applied to support the admission of unfavorable CSA/SMS data. Frederick v. Swift Transportation, 591 F.Supp.2d 1156 (D. Kansas Nov. 5, 2008) Although the decision did not address CSA/SMS data, the Court’s holding that a compliance review occurring five (5) years prior to the accident was not relevant to the accident, has some potential applicability to the CSA/SMS admissibility issue. FCCI Ins. Group v. Rodgers Metal Craft, 2008 WL 4185997 (M.D. Ga. 2008) Although the decision did not address CSA/SMS data, the Court’s decision declining to take judicial notice of a motor carrier’s Safestat data because it was not the type of reliable or scientific evidence contemplated by Federal Rule of Evidence 201 has potential applicability.
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ALFA INTERNATIONAL 2015 TRANSPORTATION SEMINAR
April 29 – May 1, 2015 – The Hotel Del Coronado – Coronado, California
THIRD PARTY LIENS: HOW TO MANAGE THE DETRIMENTAL IMPACT LIENS IMPOSE UPON SETTLEMENT NEGOTIATIONS
Matthew D. Jacobson Moderator
Whitfield & Eddy, PLC Des Moines, Iowa
Mary Beth Haltom White LEWIS, THOMASON, KING, KRIEG & WALDROP, PC
Nashville, Tennessee [email protected]
I. Overview There are many competing interests for potential recovery in a personal injury lawsuit. If it is a workplace accident, the worker’s compensation insurance carrier for the employer will be interested in recouping payments made under the policy against a third party tortfeasor. Medical insurers which have paid medical bills for injured parties also desire to recover those payments from third party tortfeasors. And, as we are all painfully aware, the federal government is extremely interested in recovering any payments made to someone whose injuries may have been caused by a third party. Finally, the attorney for the injured party will typically claim 25% to 40% of an injured party’s tort recovery in the form of contingency fee recovery. The sum of all these claims often add up to a rather disheartening “bottom line” recovery to an injured plaintiff. Quite frequently, the injured plaintiff faces a situation in which he or she recovers less than 50% of the settlement amount and is dismayed by the fact that other “non-injured” entities walk away with a significant portion of the settlement amount. While some plaintiff’s counsel are up-front with their clients about this possibility from the outset of a lawsuit, it is not infrequent that settlement discussions are slowed due to comments such as “my client was expecting to net more out of the lawsuit” or “my client won’t settle unless she receives $X out of the settlement.” Navigating through potential lien claims can be a torturous exercise for defendants and their counsel when they are looking to resolve a lawsuit via settlement. In deciding to settle a case, a defendant is weighing the risks of exposure if the case were to go to trial, the costs of going forward with trial and the cost-certainty associated with a settlement. Efforts to settle a case can be scuttled quite quickly by an injured plaintiff who is unprepared to face the ramifications of existing liens or who is unprepared for the amount of liens that may exist. Similarly, it is important for defense counsel to fully understand what liens may exist and how those liens might be compromised and/or exploited during the settlement process. The breakout session will focus on the impact that various liens may have upon the settlement process and offer some practical advice and/or guidance as to how to best manage the existence of those liens.
II. Medicare Liens The Medicare Secondary Payer Act (“MSPA”) has caused significant headaches in the settlement process. Whenever a Medicare recipient receives settlement funds, the MSPA creates an obligation to not only reimburse Medicare for the care it paid for related to the claim but also, in certain situations, to set aside certain amounts of a settlement to pay for future medical care. Thus, the process of resolving a liability claim involving medical treatment paid by Medicare requires the parties to consider Medicare’s interests with regard to the settlement of the medical portion of the claim. The intent of the MSPA is to prevent settling parties from shifting the responsibility for payment of medical expenses to Medicare. This is a two-step analysis, requiring the parties to consider both (1) medical expenses already incurred and paid by Medicare, which are known as conditional payments, and (2) the possibility of future medical expenses yet to be incurred that may be payable by Medicare, which are sometimes referred to under the catch-all phrase “Medicare Set Asides.” The Center for Medicare and Medicaid Services (“CMS”) is charged with the responsibility of identifying the amount of Medicare liens and enforcing Medicare lien rights. Although the MSPA statute and related federal regulations can be difficult to interpret, it is very clear that CMS can pursue recovery from anyone who receives payment from a settlement resolving medical liability where the burden is improperly shifted to Medicare. Such recovery efforts may be directed not only towards the Medicare beneficiary and the insurance carrier, but also to self-insureds, attorneys who are paid fees from the settlement, medical providers, or anyone else who has received a portion of a third-party payment. Because Medicare is not a party to the settlement, it does not consider itself bound by the terms of settlement. Therefore, Medicare may pursue recovery, regardless of the amount of the settlement, if it does not believe the parties adequately considered Medicare’s interests. It is important to note, however, that CMS has no legal right to seek reimbursement or pursue subrogation until the medical portion of the claim settles. Thus, until the parties either reach a settlement agreement or the Court renders a final decision, there can technically be no overpayment by Medicare. When trying to settle a case involving a Medicare eligible plaintiff, it is incredibly important that plaintiff’s counsel has crossed his/her “t”s and dotted his/her “i”s with respect to notifying Medicare of the potential for recovery from a third party. Defense counsel should remind Plaintiff’s counsel of the need to contact Medicare’s Secondary Payer Recovery Center (“MSPRC”) to start the process of identifying what “conditional” payments for which Medicare may seek reimbursement out of any settlement proceeds. The process of indentifying “conditional” payments takes approximately two months and obtaining a final listing of “conditional” payments can take even longer if there is a dispute over whether a particular “conditional” payment is related to the underlying lawsuit. Attempting to settle a lawsuit involving a Medicare recipient when opposing counsel does not have a Conditional Payment Letter from the MSPRC is fraught with peril.
Given that the process of identifying the amounts sought to be repaid by the MSPRC may take several months, it is impractical for any settlement to be finalized (i.e. check issued to the plaintiff’s lawyer) until the lien amount is finalized. The settlement documentation should identify that the plaintiff’s counsel has obtained a lien amount from MSPRC, that the lien will be paid from settlement proceeds and that Medicare’s present and future interests have been considered when reaching the final settlement. Consequently, in order to best ensure that settlement efforts are fruitful, a defendant and its counsel should ensure that opposing counsel has fully satisfied all requirements imposed by Medicare before any settlement efforts are pursued. After a settlement has been reached, the MSPA requires plaintiff’s counsel to contact the MSPRC to provide information regarding (1) date and amount of settlement; (2) attorney’s fees and costs; and (3) copy of settlement agreement. After this information is received, the MSPRC will issue a Final Demand Letter. Plaintiff’s counsel will then pay the final amount demanded by the MSPRC. An issue that can arise post-settlement and which should be addressed during settlement discussions is the timing for issuing the settlement check. Will the settlement check be issued only after the Final Demand Letter is received from the MSPRC or will the settlement check be issued immediately? If the latter, it is likely the best practice to secure a written agreement from plaintiff’s counsel that it will hold a specified amount in plaintiff’s counsel’s trust account to cover claims for reimbursement by the MSPRC. Addressing those issues at the time of settlement as opposed to weeks after the settlement negotiations have concluded will avoid potentially difficult disputes and uncomfortable motion practice in court. III. Worker’s Compensation Liens Plaintiffs who are injured during the course of employment will, in most instances, receive compensation through their employer’s worker’s compensation insurance policy. The injured party will have medical bills paid; receive lost income and compensation for the type of injury (including temporary total disability (“TTD”) and/or permanent partial disability (“PPD”). The amount of compensation will depend upon the state in which the person was injured or employed. Recovery available to an injured person under worker’s compensation statutes is generally less than what could be obtained in a civil lawsuit against a potentially at-fault third party. In general, potential compensation to an injured person in a civil lawsuit for non-economic damages such as pain and suffering and loss of normal life exceeds compensation for TTD and/or PPD in a worker’s compensation action. Consequently, financial motivation exists for an injured person (and an injured person’s attorney) to pursue additional recovery against any potentially at-fault third party. Where an injured plaintiff files a lawsuit against a third party after receiving worker’s compensation benefits, the worker’s compensation insurance carrier will almost
certainly claim a lien on any settlement proceeds received from the third party. All states incorporate subrogation provisions into their worker’s compensation statutes and generally provide for allocation of how attorney’s fees are to be paid from any recovery on a worker’s compensation lien. For example, in Pennsylvania, Section 319 of the Worker’s Compensation Act reads, in relevant part, as follows: Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of his employee . . . against such third party to the extent of the compensation payable . . . [R]easonable attorney’s fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employee . . . the employer shall pay that proportion of attorney’s fees [and costs] that the amount of compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement. Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employee . . . and shall be treated as an advance payment by the employer on account of any future installments of compensation. With notable exceptions where an employer’s conduct can be characterized as intentional, willful or wanton or reckless, an injured employee’s sole recourse against his or her employer is through the applicable worker’s compensation statute. Unfortunately, in many states, an employer’s protections are absolute and an employer cannot be brought into the case as an additional defendant – even if the employer’s conduct may have caused some or all of the alleged injury. In contrast, some states allow for an employer to be named as a third party defendant for contribution purposes. (I.e. Illinois) In those states, the employer’s potential liability is limited to what was paid to the injured employee in the worker’s compensation action. In those instances, while the employer does not face potential additional liability, an employer found to be at fault will have its recoverable lien reduced, or in some cases, eliminated. This could prove to be a valuable tool for settlement purposes in that it provides a mechanism to obtain lien waivers. However, it is also important to fully grasp the strategy implications of bringing an employer into a lawsuit as a third party when the employer’s potential liability is capped and the employer’s liability must flow through a defendant’s liability. You do not want to be caught in a situation where the defendant is left paying a large verdict because (1) the jury is mad at the employer’s conduct; (2) the jury allocates most fault to the employer but (3) the employer’s damages are capped by the amounts paid through worker’s compensation. In those instances, it may be much a much wiser strategy to keep the employer in the case through settlement discussions but to dismiss the employer before trial and adopt the “point at the empty chair” defense at trial. When it comes time to begin serious settlement negotiations, you will want specific information pertaining to the actual lien claimed by the worker’s compensation carrier. It
is often best practice to obtain information about the employer’s worker’s compensation carrier and, if possible, subpoena information from the insurance carrier to obtain as much information as possible (without opposing counsel sanitizing the information). Unless and until you have definitive information pertaining to the worker’s compensation lien, it will be difficult to formulate a settlement strategy. If you are going to be participating in mediation or a court-sponsored settlement conference, it is incredibly helpful to require the participation of the worker’s compensation insurer’s “decision-maker” at the conference. Quite often, a settlement will hinge not only on the plaintiff being flexible with his/her demands, but will require compromise on the worker’s compensation carrier’s part. Having the lien holder’s “decision-maker” actively participate in the mediation or settlement conference likely increases the chances that a compromise can be reached. While it is always better to have the insurer’s “decision-maker” attend in person, that is not always practical or even possible. In those cases, you should insist that the lien holder’s “decision-maker” be available by phone to speak directly with the mediator or the judge presiding over the settlement conference. When facing a situation where the plaintiff is an injured employee and there is a worker’s compensation lien, there are some key issues to address which will help manage/ease the settlement process:
• What does the venue’s statute provide for recovery of worker’s compensation payments?
• Does the venue allow for a defendant to name the employer as a third party defendant?
• Does the venue allow or require a worker’s compensation lien holder to intervene into a lawsuit brought by the injured employee against a third party?
• Is the injured plaintiff’s lawyer “in charge of” recovering the worker’s compensation lien or is there outside counsel working for the worker’s compensation insurance carrier?
• Is the worker’s compensation lawsuit still proceeding? • If not, what are the terms of the settlement? Is there a provision for future
payments? • If the case is still pending, what payments have been made to date and for what
types of compensation (TTD/PPD, etc.)? What is holding up the worker’s compensation resolution? (Future medical care? Extent of disability?)
Having a firm grasp on all of these issues will only assist in the settlement process and minimize the potential headaches which could arise as the parties try to reach an accord.
IV. Physician/Hospital/Health Insurance Liens In just about every personal injury lawsuit, the injured plaintiff will have incurred medical treatment and associated medical bills. If the injured plaintiff possesses medical
insurance coverage, there will be a lien asserted by the insurer. If the injured plaintiff is uninsured, the health care provider will likely seek to recover all medical bills by asserting a lien on the injured person’s recovery. As part of the discovery process, you will quickly learn not only the specifics of the medical care provided to the injured plaintiff but also (1) the amount billed by health care providers; (2) the amount paid to the health care providers by an insurer or the plaintiff and (3) whether any balance exists that must be paid by the plaintiff or whether the health care provided “wrote off” the balance pursuant to an agreement with the plaintiff’s insurance provider. When analyzing the potential exposure that may be faced by a defendant at trial in a particular lawsuit, it is important to understand whether you are in a venue that allows for a plaintiff to recover the value of medical charges that were “billed” (i.e. Illinois) or whether the plaintiff is limited to recover the value of medical bills that were actually “paid.” (i.e. Iowa). Just as important, when analyzing the potential settlement value of a particular lawsuit, it is necessary to have a firm grasp on all of the potential liens that may have arisen as a result of insurance payments or unpaid medical bills. Once you have ascertained all of the liens that are being claimed by insurers or health care providers, you can start to formulate a settlement strategy. Unfortunately, “access” to the health care providers or health care insurers is usually controlled by plaintiff’s counsel. Consequently, a defendant and its counsel must, in large part, rely upon plaintiff’s counsel to directly negotiate liens with health care providers or health care insurers. However, despite not having “access” to the health care providers or health care insurers, there are some methods by which a defendant can best position itself when it comes to settlement negotiations where medical liens may present an impediment to settlement. When dealing with health care liens, it is important to understanding the particular state’s approach to health care liens. A defendant and its counsel must understand how a particular state provides for “perfection” of a enforceable health care lien. Next, if there is a valid lien, it is important to have a thorough understanding of how does the particular state or venue handle enforceability of those liens. For example, in the Illinois Healthcare Services Lien Act provides that all health care provider lien holders may not recover more than 40% of an injured person’s total recovery – including verdict, judgment or settlement. No single health care provider can recover more than one-third of any verdict, judgment or settlement. Further, case law interpreting the Illinois Healthcare Services Lien Act holds that the 40% “cap” applies after attorney’s fees and litigation costs are deducted from the injured person’s recovery. Thus, in appropriate situations and venues, where there are large health care liens which will greatly undermine an injured plaintiff’s “net” recovery, a defendant and its counsel can use their understanding of the underlying statutory scheme to greatly diminish the amount of the lien being claimed.
With respect to health care insurance liens, a similar approach applies. Having a thorough understanding of what statutory limits may be placed on what a health care insurer seeking to recover on a lien. For example, in California, a health insurer’s lien may be no more than the cost to perfect the lien (i.e. lien less reasonable attorney’s fees) and an insurer’s lien claim may not be exceed one-third of the total recovery. Further, in Illinois, an insurer’s lien claim must be reduced by the amount of the injured person’s comparative fault. In short, when preparing to engage in settlement negotiations with opposing counsel, a defendant and its counsel should not only know the health care parties that are asserting liens and the amount of the liens being asserted, they should be well-versed in what amounts may be recoverable and what amounts may not be recoverable. Having a firm grasp on the enforceability of lien claims will greatly assist a defendant and its counsel trying to reach an advantageous and acceptable settlement of the injured person’s claims. V. Attorney’s Liens Perhaps one of the most frustrating liens faced by a defendant and its counsel is the attorney’s lien claimed by the plaintiff. In almost every circumstance, a plaintiff’s lawyer will seek between 25% and 33.3% of any settlement – regardless of the stage of the litigation or the amount of time or work invested by plaintiff’s counsel. Because the attorney’s lien is a matter of contract between a plaintiff and his/her attorney, there is often very little that can be done by a defendant and its counsel to impact the amount of the fees claimed by plaintiff’s counsel. Preparing a solid defense and raising the risk of a defense verdict may be the best way to convince plaintiff’s counsel that he/she may want to reduce his/her percentage of recovery in order to secure a settlement with a “net recovery” acceptable to the plaintiff. There may be nothing more convincing to a plaintiff’s lawyer to compromise his/her fees than running the risk of not getting paid for his/her efforts in the case. In certain high damage or death cases, perhaps the best method for limiting fees claimed is seeking an early mediation or settlement conference. In those situations, the plaintiff’s lawyer may not have significant time into the case and, at the appropriate time in the mediation, you can approach the mediator to suggest that it is better for the plaintiffs to settle for the amounts being offered rather than pursuing prolonged litigation. You can also point out that the plaintiff’s attorney’s fee claim may be the largest “hurdle” to achieving settlement and that, given the amount of time that is likely invested in the case and the amount of the settlement offer, the mediator should approach plaintiff’s counsel about the possibility of reducing the percentage of recovery. However, the amount of plaintiff’s counsel’s fees is usually a “prickly” issue that should be handled with great care. If handled inappropriately, it may only serve to hinder settlement discussions.
ALFA INTERNATIONAL 2015 TRANSPORTATION SEMINAR
April 29 – May 1, 2015 – The Hotel Del Coronado – Coronado, California
CRASH AVOIDANCE TECHNOLOGY CAN YOU AFFORD (NOT TO HAVE) IT?
Robert Foos Moderator
LEWIS WAGNER Indianapolis, Indiana
Peter Doody HIGGS FLETCHER & MACK. LLP
San Diego, California [email protected]
Danny Needham
MULLIN HOARD & BROWN, LLP Amarillo, Texas
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I. What is Crash Avoidance Technology? a. There are two main manufacturers of the crash avoidance technology,
Meritor (On Guard) and Bendix (Wingman Advanced). b. Crash Avoidance Technology is designed to be a driver-assistance
system to help the driver quickly recognize and respond to potentially dangerous driving situations such as rear-end collisions or following too closely. It is not intended to replace driver control of the vehicle at any time. The driver maintains control of the vehicle and must ultimately determine the actions necessary for safe operation.
c. Forward Collision Avoidance & Mitigation (FCAM) systems: i. Includes Forward Collision Warning (FCW); Adaptive Cruise
Control (ACC); and collision imminent braking (CIB) 1. The Collision Warning System (CWS) will generate an
audible and visible alert when the vehicle’s following distance may result in a collision. CWS provides only a warning and will not control vehicle speed unless ACC is engaged or a CMS event is detected. CWS cannot be turned off and is always active at vehicle speeds above 15 mph.
2. Adaptive Cruise Control works in conjunction with conventional cruise control to maintain the set cruise speed when no vehicle is being tracked and maintains a minimum following interval when a target vehicle is being tracked. The minimum following interval is achieved by controlling engine throttle, engine retarder and the foundation brakes without driver intervention. When the target vehicle is no longer being tracked, the set cruise speed resumes automatically. Maximum deceleration is .025G’s (equivalent to 1/3 full brake power).
a. When the ACC is active, the driver can override the system braking, engine throttle and engine retarder controls by manually depressing the accelerator pedal. ACC can also be deactivated by pressing the brake pedal, similar to standard cruise control.
3. Collision Mitigation System (CMS) will provide driver alerts with both visual and audible alarms through an in-cab dash display when the vehicle’s following distance could result in a rear-end collision. If a potential rear-end collision is developing and the driver does not take action
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to decelerate the vehicle, the system automatically de-throttles the engine and applies the engine retarder and foundation brakes to provide up to .35G’s of braking power (approximately ½ the full power of the braking system).
a. The following-distance alert will emit an audible alert and the in-cab dash display screen will turn yellow if the driver is following too closely behind another vehicle at a steady driving speed. This alert will end when the vehicle speed drops below the speed of the lead vehicle and the following distance is increased.
b. If the lead vehicle is decelerating or the commercial vehicle is driving much faster than the lead vehicle, the system will display a collision warning symbol on the in-cab display, sound an audible alarm, turn the display screen red and activate the braking, engine and retarder control to reduce the vehicle speed.
d. Lane Departure Warning (LDW) Systems e. Enhanced Visibility systems (Blind Spot Monitoring) f. Vehicle to Vehicle (V2V) based safety systems.
II. A Look at the Numbers a. The FMCSA Commercial Motor Vehicle Facts—March 2013
determined that in 2011 there were: i. 3,568 fatal crashes involving large trucks or buses resulting in
$39 Billion in estimated crash costs1. ii. 73,000 personal injury crashes involving large trucks or buses
resulting in $32 Billion in estimated crash costs. iii. 252,000 property damage only crashes involving large trucks or
buses resulting in $16 Billion in estimated crash costs. iv. Total of $87 Billion dollars in estimated crash costs in 2011
alone. b. The National Highway Transportation Safety Administration in
conjunction with University of Michigan Traffic Research Institute (UMTI) performed a controlled study in 2013 and released its NHTSA Heavy Vehicle Crash Avoidance Research Overview in January of 2014:
1 T. Miller, E. Zaloshnja, and R. Spicer, Revised Cost of Large Truck and Bus Involved Crashes (2002), adjusted to 2012 dollars and 2013 value of a statistical life (VSL), and updated to reflect new guidance on valuing injuries from the Office of the Secretary of Transportation.
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i. Three fleets were examined after having operated a portion of their fleet equipped with FCAM systems for a year or more.
1. Results from two fleets were statistically valid. 2. Insufficient data was available from the third fleet.
ii. Results from both fleets were consistent—the FCAM system had protective effect against rear-end crashes:
1. In Fleet A, trucks without the FCAM system were 2.2 times more likely to be the striking vehicle in a rear-end crash than trucks with the system.
2. In Fleet B the odds ratio was very similar at 1.96. iii. Based on the results of the survey, the NHTSA has initiated an
FOT focused on Crash Avoidance systems for heavy vehicles. 1. The full results will not be available until mid-March of
2015 but they expect “notable and statistically verifiable reduction” in all types of collisions.
c. Engineers and vendors expect even greater returns on second and third generation technologies
i. Newer/better sensor technology and sensor fusion ii. More refined detection algorithms (e.g.; reduced nuisance and
false alarms) III. What does it Cost to Outfit a Fleet with Crash Avoidance Technology?
a. Trucks are now coming factory equipped with Crash Avoidance Technology
b. Cost depends upon the size of the fleet i. Roughly $3,000 per tractor
IV. What are some potential problems? a. Does it encourage drivers to be less attentive? b. Will rapid deceleration cause the CMV to be rear-ended by traffic? c. Do you run the risk of keeping potentially damaging data as a fleet, or
per driver? d. Can the data be worked into a driver training/retention program?
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Crash Avoidance Technology—Can you afford (not to have) it?
Bendix Wingman Advanced
Bendix Wingman Advanced
Bendix Wingman Advanced
Bendix Wingman Advanced
Heavy vehicle crashes by crash type
Data for truck tractors only, and, truck was striking vehicle (or otherwise “at fault”) Based on data from Volpe Report Heavy Vehicle Pre‐Crash Scenario Typology for
Crash Avoidance Research
Off Roadway, 16%
Rear End, 21%
Lane Change, 23%
Opposite Direction,
7%
Crossing Paths, 15%
Backing, 6%
Fwd impact with Ped, Animal, or
Object 8%
Other 4%
Early Adopter Analysis
Crash records from three fleets were examined after having operated a portion of their fleet equipped with FCAM systems for a year or more. Results from 2 of the fleets were statistically valid. Insufficient data was available from the third fleet.
Results from both fleets were consistent. The FCAM system had a protective effect
against rear‐end crashes: In the case of Fleet A, trucks without the FCAM system were
• 2.2 times more likely to be the striking vehicle in a rear‐end crash than trucks with the system.
The result for Fleet B was very similar, with an odds ratio 1.96.
CMV Facts—FMCSR 2013
CMV Facts—FMCSR 2013
The Bottom Line
•21% of all accidents are rear-end accidents
•21% of $87 Billion is more than $18.2 Billion