Fatal Wal-Mart Truck Crash Case in NJ Case Moving Forward

In June, a Wal-Mart truck driver who had been awake 24 hours caused a deadly pileup in New Jersey. The Wal-Mart truck driver’s Twitter profile included the phrase, “move or get hit.”

Since that crash, most of the attention has been centered on comedian Tracy Morgan because he is most well-known. However he is not the only one that was affected by the incident.

The adult children of James McNair, killed in the June crash in Cranbury that injured comedian Tracy Morgan and others, are moving forward with their suit against Wal-Mart and its truck driver. Wal-Mart owned the truck that authorities said caused the crash and employed Kevin Roper, the driver that had been awake for 24 hours when the crash occurred.

While Wal-Mart claims that its driver was within the legal hours of service, the Federal Motor Carrier Safety Regulations go beyond just a mechanical application of the hours of service rules.

49 C.F.R. § 392.3 provides that, “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the 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/her to begin or continue to operate the commercial motor vehicle.”

Thus, if a driver has been awake for 24 consecutive hours, the impairment from fatigue may trump an assertion that he was only driving 11 hours and on duty 13 of those hours.

49 C.F.R. § 390.3 requires that “every employer shall be knowledgeable of and comply with all regulations . . .  applicable to that motor carrier’s operations” and just as importantly, “every driver and employee shall be instructed regarding, and shall comply with, all applicable regulations….”

So a company is responsible for making sure its driver know the rules and comply with them.

49 CFR 390.13 mandates that companies not “aid, abet or encourage drivers’ violations of regulations.” Therefore, if a company pushes drivers to perform beyond the limits of fatigue, it has a problem.

There seems to be no limit to the ways a company can make a show of conforming to safety rules while actually turning a blind eye to safety. The reality of a company’s safety management and culture is always subject to scrutiny. While Wal-Mart has cultivated an image of a relatively safe trucking operation, investigation of this case will probably turn over a lot of rocks.

In cases we have had with Wal-Mart in the premises liability context, we have found an interesting contrast between pretense and reality regarding safety practices.

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Ken Shigley is a past president of the State Bar of Georgia and currently chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Author of Georgia Law of Torts: Trial Preparation & Practice, he is a board certified civil trial attorney of the National Board of Trial Advocacy.

 

Inflation Adjustment of Interstate Truck and Bus Insurance Moving Forward

Several times recently, I have written about the projected inflation adjustment to minimum liability insurance coverage for interstate commercial vehicles. The process continues.

A few days ago, the Federal Motor Carrier Safety Administration issued a 14-page Report to Congress, concluding the following:

1.    Current limits are inadequate in covering catastrophic crashes.

2.    Simply adjusting existing limits to adjust for healthcare inflation would require raising limits:

  • a.    From the current $750,000 to $3,188,250 for general tractor-trailers, rather than the $4.2 million that was discussed for inflation adjustment since the $750,000 minimum was first set in 1980.
  • b.    From the current $1 million to $4,251,000 for low-hazard hazmat tractor-trailers, e.g., fuel trucks, rather than $4.4 million that was discussed.
  • c.    From the current $5 million to $21,255,000 for high-hazard hazmat tractor-trailers;
  • d.    From the current $1.5 million to $6,376,500 for small buses; and
  • e.    From the current $5 million to $21,255,000 for large buses.

3.    “The Agency has formed a rulemaking team to further evaluate the appropriate level of financial responsibility for the motor carrier industry and has placed this rulemaking among the Agency’s high priority rules.”

I figured there would be some political compromise in the process, and apparently there has been some.

It still would be an advantage to leased “independent contractor” drivers to also require uninsured / underinsured (UM / UIM) coverage on these vehicles, as these driver work in a highly dangerous occupation, often with no medical insurance, no workers compensation insurance  and no UM / UIM insurance to protect themselves and their families if they are injured on the job.

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Ken Shigley is a past president of the State Bar of Georgia and currently chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Author of Georgia Law of Torts: Trial Practice & Procedure, he is a board certified civil trial attorney of the National Board of Trial Advocacy. His regional litigation law practice is based in Atlanta, GA.

FMCSA Should Require Uninsured / Underinsured Motorist Coverage for Truck Drivers

Trucking has inherent dangers, both for other motorists hit by big trucks and for truck drivers who are underpaid and underinsured for their labor in one of the most dangerous of occupations. More truckers and delivery men, die on the job than any other vocation, according to the Bureau of Labor Statistics.

 

The current proposal to adjust trucking liability insurance requirements for three decades of inflation should be expanded to include mandatory uninsured / underinsured motorist coverage to protect truck drivers, many of whom are independent contractors who lack even the most basic workers compensation protection.

I have represented numerous truck drivers over the years who themselves have been seriously injured in crashes for which they often have had little or no insurance protection. They work hard to take care of their families, and most of them are very safety conscious.

Many of them have been employed as “independent contractors” for motor carriers, lacking decent medical insurance, workers compensation or uninsured motorist coverage.

Some have been seriously injured by a drunk or drugged driver of a passenger vehicle causing a catastrophic crash. One was a gasoline truck driver badly injured when a teenager who had been drinking and smoking marijuana hit him in the fuel tank, causing him to jackknife on a rain slick freeway. Fortunately, the rain may have helped prevent a deadly explosion. Another was a truck driver who had a bad back injury when an SUV towing a motorcycle trailer lost control right in front of him on an Atlanta area freeway.

The current minimum liability insurance requirements for interstate commercial trucks and buses have been in place unchanged since 1985.  The insurance level for general freight trucking has been $750,000 since 1980, and for all other categories of interstate truck and bus operations have stayed the same since 1985. There has been a tremendous amount of medical inflation since then.

A couple of months ago, the Federal Motor Carrier Safety Administration (FMCSA) Motor Carrier Safety Advisory Committee (MCSAC) recommended adjusting the minimum coverages for three decades of inflation, just to catch up on the loss of purchasing power of the insurance amounts. The categories are as follows:

Category

Minimum Insurance Since 1985

Recommended Adjustment for Medical Inflation

General Freight (unchanged since 1980)

$750,000

$4.2 million
Low hazardous (fuel, etc.)

$1,000,000

$4.4 million
Small Buses (up to 15 passengers)

$1,500,000

$6.3 million
Hazardous materials& large buses (16+ passengers)

$5,000,000

$21.2 million

 

The stiffest opposition to this inflation adjustment appears to come from the Owner Operator Independent Drivers Association, an insurance company presenting itself as a trade association representing small trucking operators. One hypothesis is that OOIDA Insurance Company sells only minimum limits $750,000 trucking policies and may have insufficient reserves to be competitive in the market for larger policies.

But the interests of individual truck drivers of leased trucks, working under the authority of motor carriers without having motor carrier authority themselves, may diverge from the interests of OOIDA Insurance Company.

Those drivers, concerned about the security of their own families, might see the advantage of having mandatory UM / UIM coverage equal to liability limits for protection of themselves and their families.

Uninsured / underinsured motorist insurance coverage provides protection for a person injured due to the negligence of another driver who has inadequate liability insurance. The minimum liability coverage for passenger cars and small private trucks varies from state to state, but those minimums generally range from $15,000 to $30,000. In Georgia, the minimum is $25,000. That is a drop in the bucket if you have a serious injury, have huge medical bills and are unable to work for any significant period of time. It is practically nothing if you don’t have medical insurance or workers compensation.

In addition, there are many drivers on the roads who operate with no liability insurance at all – 28% in Mississippi, 26% in New Mexico, 24% in Tennessee, Florida and Oklahoma, 22% in Alabama, 19% in Michigan, 18% in Kentucky and Rhode Island, 16% in Georgia, Ohio, Indiana, Arkansas and Washington.

I have always assumed that if some idiot causes serious harm to me, a member of my family or a friend riding with us, he will have minimum or no liability coverage. That is why for decades I have carried the high levels liability and UM / UIM coverage on my family vehicles, with umbrella policies up to $2 million. Better to have it and not need it than to need it and not have it.

If leased drivers in one of the most dangerous occupations had UM / UIM had the benefit of UM / UIM coverages equal to the proposed minimum liability coverages for the trucks they drive, it would be an enormous benefit for their peace of mind and the security of their families.

 

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Ken Shigley is a past president of the State Bar of Georgia and currently chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Author of Georgia Law of Torts: Trial Practice & Procedure, he is a certified civil trial attorney of the National Board of Trial Advocacy. His law practice is based in Atlanta, GA.

 

What Is a Chameleon Trucking Company and How Does It Keep Doing Dangerous Stuff?

Safety records matter, especially in the trucking industry in which 80,000 vehicles share the highway with your family and mine. If a trucking company builds a deplorable safety record there can be consequences in terms of fines, suspension, loss of operating authority, insurance rates, etc.

So what happens when a persistently unsafe trucking company encounters the natural and logical consequences of unsafe operation?

Too often in our law practice, we see cases involving newly authorized trucking companies with largely the same officers, owners, equipment and personnel as an earlier company that had a bad record. “Reincarnated” carriers, also known as “chameleon carriers,” are companies that artificially shut down their business and resurrect operations as a new legal entity.  Many companies fly under the radar this way to cleanse themselves of regulatory compliance and public safety penalties that fall under the FMCSA’s oversight.

Kelly Linhart, a professional truck driver, stopped on the side of the road to do a routine truck inspection in September 2008. Moments later, the father of four lay dead on the road. He was struck and killed by another trucker who veered out of his lane, according to the police report.

According to the Linhart’s family attorney, my friend Michael Leizerman in Ohio, the truck driver admitted that he fell asleep behind the wheel, ran off the road, and ran over Kelly Linhart. In a deposition, Clarey admitted to being under the influence of methamphetamine at the time of the crash and to previous criminal record for methamphetamine and marijuana. Clarey pleaded guilty to criminally negligent homicide and driving under the influence of intoxicants. According to court documents, he was sentenced to 40 months.

You might be wondering how a driver with a drug history could be behind the wheel of a commercial vehicle. Leizerman said Clarey’s employer, Forrest Rangeloff, was operating as a “chameleon carrier.”

“I see too often in this case and other cases that I handle where the owner of the company simply closes down, refuses to pay the fines, and starts another company,” Leizerman said.

In a deposition, Rangleoff said he opened a new trucking company because he could not get a satisfactory rating, which is something Federal Motor Carrier Safety Administration gives to companies to show they are in compliance with regulations.

Rangeloff’s second company, Range Transportation, received a conditional rating, a warning that improvement was needed. Even after the crash that killed Linhart, Rangeloff was able to file for a new trucking company, which he called Range-It Express. That company was later shut down for not paying fines, according to motor carrier agency’s website.

According to the Government Accountability Office’s (GAO) most recent report, there were 1,136 new applicants in 2010 alone that were suspected chameleon carriers. The GAO found that 18 percent of suspected chameleon carriers were involved in severe accidents, like the crash that killed Linhart, compared with 6 percent of non-chameleon carriers.

“I see them disproportionately being involved in deaths and significant injuries,” Leizerman said.

As of the March 2012 report, the GAO said federal motor carrier agency was screening only bus companies and moving companies, 2 percent of new applicants, to make sure they didn’t have any problem records.

“What we have done is created a system we call vetting. Are there patterns in this company’s operations that show they actually are sharing an address with a company we’ve shut down before?” said FMCSA chief Anne Ferro, who is stepping down on August 25.

Ferro also said there are a series of penalties for chameleon carriers, including the entire company being shut down.

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Ken Shigley is a past president of the State Bar of Georgia and currently chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Author of Georgia Law of Torts: Trial Preparation & Practice, he is a board certified civil trial attorney of the National Board of Trial Advocacy. 

Blood Alcohol Scores After Death Can Be “False Positive” Up To 0.20

In handling wrongful death and life insurance claims for clients, I learned years ago that blood alcohol tests after a person dies may not be reliable. Due to postmortem fermentation when a body is not kept cool after death, there can be “false positive” blood alcohol reports up to 0.20 grams/% — 2 ½ times the legal limit of 0.08 for drivers and boaters in Georgia.

Years ago, I was hired by the widow of a retired Army officer who drowned on a fishing trip. A life insurance policy excluded coverage if the insured was intoxicated at the time of death. An autopsy by the state medical examiner reported blood alcohol of 0.20 gr/%. But both the widow and her late husband’s fishing partner swore he had had nothing to drink. At first we thought the county coroner, on whose property the drowning occurred, might have messed with blood samples.

When I contacted an independent pathologist, I learned that fermentation could have produced the blood alcohol score. The body had been retrieved from a lake in south Georgia on a hot August day, laid out in the sun for a while, and then was transported by hearse in uncertain temperature conditions on an hours-long drive to the state medical examiner’s office in Atlanta.

That was enough for fermentation to occur. With that knowledge, we won.

Why is that?

As discussed in a recent article by forensic scientist Jim Wigmore, over half of postmortem blood is not sterile, and contains bacteria, yeast or fungi. In addition, postmortem blood sugar (glucose) concentration can be 7 to 10 times greater than blood before death.

Fermentation is the formation of alcohol from sugar.  Yeasts can convert 100 milligrams of glucose into approximately 40 to 50 milligrams of alcohol.  Bacteria and fungi generally can convert 100 milligrams of sugar into 10 – 20 milligrams of alcohol.

During fermentation other volatile compounds such as acetaldehyde and n-propanol are produced and may assist in the determination of elevated blood alcohol scores due to fermentation or putrefaction.

It has been well established for many years that:

  1. Blood alcohol levels at autopsy are valid up to 48 hours after death when solid protocols are observed in the collection and storage of samples.
  2. Alcohol levels in samples of blood taken from the intact heart are as significant as levels of blood from the femoral veins.
  3.  False blood alcohol levels greater than 0.200% can be generated in autopsy blood samples which are not correctly stored.
  4.  High blood alcohol levels may develop during putrefaction and levels up to 0.200% do not necessarily indicate that alcohol was imbibed before death.
  5. Significant false high blood alcohol levels do not develop during incineration in absence of putrefaction.

We have to be alert to this scientific knowledge in handling cases where any person after death is accused of having been drunk at the time of death.

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Ken Shigley is a board certified trial lawyer based in Atlanta. He is a past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle, Highway & Premises Liability Section, and a Certified Civil Trial Advocate of the National Board of Trial Advocacy.

 

 

The challenges of a long haul trucker: another 4 AM Spaghetti Junction truck crash

Most long haul truck drivers are decent, hardworking folks who chose truck driving as a way to support their families even though it keeps them on the road away from home most of the time.

At my childhood home in rural Alabama, a lot of my friends’ dads were over the road truck drivers because it was one of the few ways a guy living there, without a college education, could make enough to keep the family in the rural community they loved.

Paid by the mile and under pressure from employers and shippers to make “just in time deliveries,” truck drivers look for ways to cut the time from pickup to delivery points. Over the years, truck drivers have told me – both confidentially over coffee at truck stops and Waffle Houses and reluctantly in depositions around the country — of how they are pushed to get the load there despite speed limits and fatigue.

Truck drivers have told me of arriving to pick up a load at, for example, 5 PM, the shipper not having it ready to go until 8 PM, and insisting that it must be delivered a thousand miles away by the next morning. The truck driver knows that while legally he can’t be fired for refusing, he may not get future work if he doesn’t comply.

Time pressure on truck drivers often results in driving through the night when traffic is less than during the day. You may have seen 18 wheelers barreling through the night at or above the 70 MPH speed limit. Dissecting their timelines after bad stuff happened, I’ve often found they were beyond the limits of human stamina while pushing to make an early morning delivery.

In one case, a trucker had driven from Ohio to Atlanta, back to Ohio, and was almost back to Atlanta when he struck a family returning from vacation. He had had only a couple of brief naps on a roadside in West Virginia and in a shipper’s parking lot in Ohio.

Often we see incidents where a trucker had driven through the night, then hit the Atlanta freeway system in early morning when dead tired and reaction times are diminished due to fatigue. Then, when bad things happen, their employers’ insurance companies try to keep the jury from hearing about how it was the company’s policies and practices that put the driver in the position of being dead tired behind the wheel.

This morning at 4 AM, a tractor trailer jackknifed in Spaghetti Junction at I-85 and I-285 on the north side of Atlanta. It punched through a concrete barrier and blocked all traffic in the area for hours. Blessedly, there are no reports of injuries. I don’t know what happened, but it appears to fit the common pattern of a trucker driving through the night and hitting metro area before dawn.

In interstate trucking, there are national standards governing driving time and fatigue. There has been a lot of work on fatigue management, confirming the common sense conclusion that working long daily and weekly hours on a continuing basis is associated with chronic fatigue, a high risk of crashes, and a number of serious chronic health conditions in drivers.

I have certainly experienced severe fatigue in working long hours as a lawyer – especially the year I was also State Bar president – but I was not piloting an 80,000 pound truck through traffic.

The Federal Motor Carrier Safety Regulations include:

-          “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the 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/her to begin or continue to operate the commercial motor vehicle.” (Federal Motor Carrier Safety Regulations Section 392.3)

-          The hours of service rule in interstate trucking sets specific limits to limit fatigue:

  • 11-hour daily driving limit and 14-hour work day limit.
  • 70 hours maximum work week
  • After reaching 70 hour weekly limit, must rest for 34 consecutive hours, including at least two nights when their body clock demands sleep the most – from 1-5 a.m.
  • Truck drivers must get a 30-minute break during the first eight hours of a shift. (Federal Motor Carrier Safety Regulations Section 395.3)

-          Truck drivers must maintain logs recording their work and driving hours.  Traditionally those have been on paper and easily finagled to look legal despite driving way over legal hours. I have spent a lot of time deconstructing those with the mass of electronic time-stamped records that are generated in the course of travel. There is a lot of effort now to move to electronic logs which would require a lot more sophistication to falsify

-          Legally, no one can fire, discipline or discriminate against a trucker for refusing to operate a truck in violation of these rules. But it happens anyway. (49 U.S.C. 31105)

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Ken Shigley is a board certified trial lawyer based in Atlanta who has been trying cases before Georgia juries since 1977. He is past president of the 45,000 member State Bar of Georgia and chair-elect of the American Association for Justice Motor Vehicle, Highway and Premises Liability Section.

 

Summer Break: Shigley’s Swimming Hole in Alabama

Folks, this post has nothing to do with law.  Appreciating the simple joys of a Southern summer, I just want to share a video someone posted of the “Shigley Hole,” an old swimming hole on land my great-grandparents homesteaded in the late 1800s near Little River Canyon in northeast Alabama.

I can just imagine my late grandfather and his siblings jumping off those rocks and plunging into that pool as children well over a century ago.

Enjoy some down time with you family this summer. If you want to find the trail to the “Shigley Hole” see http://www.secretfalls.com/hiking/desoto-scout-trail.

9 Tips to Prevent Child Heat Stroke

Recent news stories of tragedies when young children were left in hot cars have generated passionate debate in metro Atlanta and across the country.child asleep in car seat

Certainly any parent who intentionally leaves a child in a hot car to suffer and die should be prosecuted and harshly punished. As a former prosecutor, I find myself wondering whether, if I were the District Attorney in Cobb County,  I would seek a sentence harsher than life without parole. Certainly I envy any prosecutor who tries such a case with strong forensic science to back up the charge.

Some people cannot understand how any parent could possibly forget that a child is sleeping in a rear facing infant seat in the back seat of a vehicle. Others reflect on their own incidents of distraction and forgetfulness and think, “There but for the grace of God go I.” As a parent for the past 27 years, I am aware of my own fallibility as I recall my moments of horror over lapses of attention when busy or distracted.

Whatever may be determined to be the truth of the recent tragic incident in Cobb County – and it looks increasingly bad —  there is a nationwide problem of distracted parents forgetting that children are in a vehicle and unintentionally leaving them subject to extreme summer heat. Parents are especially vulnerable to this when on “automatic pilot” going about a routine that usually does not include the child. If a normal workaday routine is altered, such a change in who drops off or picks up a child at day care, and the child is sleeping in a rear facing carrier in the back seat, it is too easy for even the most loving parent to forget the child is in the vehicle.

When my kids were little, we did not have passenger side air bags forcing child safety seats to the back seat. Our infant seats faced forward rather than backward a quarter century ago. Even when we got that first permanently mounted car phone it was rarely used, so we did not have cell phones buzzing demanding attention as we pulled into a parking space. While life seemed incredibly hectic, in some ways it was a simpler, less distracted time.

Growing up before the days before universal air conditioning, seat belts or child safety seats, I normally stood in the middle of the front seat between my parents while going down the road and endured unabated heat throughout the summer. I was left waiting in a hot car many times with the windows open under a shade tree. It was a different time with a different set of risks.

So when my kids were little, like many people I did not recognize the danger of leaving a child in a car while running even a brief errand.

Back then, I did not realize that the interior of a car can heat up 20 degrees in 10 minutes. Or that even with an outside temperature in the 60s, the interior of a car can reach 110 degrees. I did not know that a child’s body can heat up 7 times faster than an adult, that heat stroke can occur in a car even when the outside temperature is as low as 57 degrees, or that a child will likely die of heat stroke at 107 degrees.

I was lucky. Not everyone’s luck can hold.

Here are 7 tips – from the National Safety Council and other sources – on how parents can safeguard against lapses that could lead to tragedy.

  1. Never leave a child alone in a car, even with the windows partially open. It is certainly tempting to think you can just quickly dash into a store, complete a transaction in a couple of minutes and come right back without the hassle of dealing with kids in a store. But Murphy’s Law is in full force and effect. Anything that can go wrong, sooner or later will go wrong. Even if you are as quick as you expect to be and your child is perfectly safe, a concerned bystander may call 911, setting off a nightmare of dealings with police and Child Protective Services. Just don’t do it. Ever.
  2. Keep a large stuffed animal in the child seat, and move it to the front passenger seat when you place the child in the seat. This simple visual cue can remind you that the child is in the car when you park.
  3. Always put the child’s diaper bag in the front passenger seat. Another failsafe visual reminder can help.
  4. Always put your cell phone, briefcase, purse – or one or both of your shoes — in the back seat. That will force you to always look in the back seat – and see the child if one is there – before leaving the vehicle.
  5. If you have a change of routine about dropping off a child at day care, establish a pattern of having the other parent — or a grandparent or friend — call to check in after drop-off time. It doesn’t have to be nagging, but a sweet, simple call or text message to ask how the child handled the change of routine can be a valuable backup for fallible parental memory.
  6. Ask day care to call both parents if the child is not dropped off at the usual time. That backup can save a life. Having been chairman of the board of a church-based child development center, I am confident most would want to help in that way, but they get busy too so that should not be your sole backup.
  7. Always glance in each seat before leaving the vehicle. If you are retrieving your cell phone, briefcase or purse from the back seat, the visual check will become automatic. Just a quick scan is all it takes.
  8. Never let children play in and around cars. Heat stroke is only one of the ways kids can get hurt. When I was five, my very caring grandfather left me in his car while he checked on a crew at a construction site. I moved to the driver’s seat to play like I was driving, released the parking brake and rolled downhill into a ditch. Granddaddy was more scared than I was.
  9. Consider new devices to remind drivers of children in car seats. An 11-year-old in Tennessee invented a simple device for this purpose, made of rubber bands and duct tape.  With rising awareness of the problem, I expect entrepreneurs will get other devices to market.

 

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Ken Shigley is a board certified civil trial attorney and past president of the State Bar of Georgia. His Atlanta-based law practice focuses on cases of wrongful death and catastrophic injury, including those involving young children.

Olympic Swimming Champ Paralyzed After Suffering Spinal Cord Injury in ATV Accident

Former Olympic swimming champion Amy Van Dyken-Rouen is recovering following surgery to stabilize her spine after her spinal cord was severed at the T-11 vertebra during an all-terrain vehicle accident in Scottsdale, Arizona last week.

The latest report is that she is out of ICU and looking forward to rehab in Denver. Demonstrating a resilient spirit like most of the spinal cord injury survivors we have represented.

Following the accident, the 41 year-old six-time Olympic gold medalist told emergency personnel she had no feeling in her legs or toes, according to The Associated Press, which reported that she severed her spine. She is said to be in good condition despite the seriousness of her injury.

Her husband, Tom Rouen, a punter for the Denver Broncos pro football team, said they are unsure whether she will be able to walk again, and are taking it “day by day.”

Undoubtedly her athleticism will aid her recovery, both physically and mentally. The grit and discipline developed in becoming an Olympic champion will serve her well in the rigors of rehab. Even if she does not walk again, I look forward to seeing her compete in a future Paralympics.

Coincidentally, this week a paraplegic equipped with a brain-controlled exoskeleton kicked off the World Cup soccer competition in Brazil.

The injury occurred when Van Dyken-Rouen struck a curb while riding the ATV in a parking lot outside of a restaurant. The impact sent her over a five- to seven-foot drop-off according to a police report, and she was not wearing a helmet at the time. She was found unresponsive and had to be airlifted to Scottsdale Healthcare Osborn Medical Center.

According to a letter from her family, Van Dyken-Rouen severed her spine at the T11 vertebrae, which came just a few millimeters from potentially rupturing her aorta.

Perhaps the worst physical injury one can suffer is damage to the spinal cord. The most prominent example is Christopher Reeve, who one day was “Superman” and the next was a quadriplegic.  We see some of our clients who have spinal cord injuries as super men and women too.

With our convenient to both the Shepherd Center and Emory, two of the top rehabilitation hospitals in the nation, we are often called by family members of spinal cord injury victims.   In working with people who have such injuries, we have been inspired by the resilience of the human spirit. Both physical and emotional aspects of spinal cord injury are devastating. However, one may work through the depression accompanying spinal cord injury to see that even under such adverse circumstances sometimes still the “glass is half full.”

Although most people know this type of injury can be a devastating diagnosis, not everyone knows there are many different types of spinal cord injuries. The location of the injury along the spinal cord determines what parts of the body are affected. Different types of spinal cord injuries include:

  • Cervical Spinal Cord Injury: Affects vertebrae C1-C8 and causes paralysis or weakness in both arms and legs. This is also known as quadriplegia or tetraplegia.
  • Thoracic Spinal Cord Injury: Affects vertebrae T1-T12. These injuries can cause paralysis or weakness of the legs along with loss of physical sensation, bowel, bladder and sexual function.
  • Lumbar Spinal Cord Injury: Affects vertebrae L1-L5 and result in weakness or paralysis of the legs. This is also known as paraplegia.
  • Sacral Spinal Cord Injury: Affects vertebrae S1-S5. Sacral level injuries mainly cause loss of bowel and bladder function as well as sexual dysfunction. They can also cause weakness of paralysis of the hips and legs.

Injuries can also be complete or incomplete. Complete injuries are indicated by a total lack of sensory and motor function below the level of injury, whereas incomplete injuries are marked by some remaining sensation and movement.

While much is taken, often much remains. Many people with spinal cord injuries surmount extreme adversity to lead productive lives. Jim Langevin became a quadriplegic at 16, and is now a Congressman from Rhode Island. Brooke Ellison has been a vent-dependent quad since age 11, but graduated from Harvard with honors. One of our spinal cord injury clients became Ms. Wheelchair California, did adaptive surfing with a movie star, and works with Free Wheelchair Mission providing wheelchairs for people in third world countries. While these are exceptional people, they illustrate the fact that a useful life is still possible after spinal cord injury.

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.

“Move or get hit” reported on Wal-Mart truck driver’s Twitter profile after fatal crash

The Atlanta Journal-Constitution has reported that the Twitter profile of Kevin Roper, the Wal-Mart truck driver who had been awake 24 straight hours before a fatal crash in New Jersey, had included the phrase, “move or get hit.”

This illustrates what my friend Andy Young in Ohio pointed out to me last year about the practical values of Twitter in trucking accident litigation.

A Wal-Mart public relations spokesperson was quoted saying, “It is our belief that Mr. Roper was operating within the federal hours of service regulations.” I don’t know what the evidence will show regarding driver logs or electronic monitoring, both of which can manipulated.

But the Federal Motor Carrier Safety Regulations go beyond the hours of service rules.

49 C.F.R. § 392.3 provides that, “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the 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/her to begin or continue to operate the commercial motor vehicle.”

49 C.F.R. § 390.3 requires that “every employer shall be knowledgeable of and comply with all regulations . . .  applicable to that motor carrier’s operations” and just as importantly, “every driver and employee shall be instructed regarding, and shall comply with, all applicable regulations….”

49 CFR 390.13 mandates that companies not “aid, abet or encourage drivers’ violations of regulations.”

There are many ways that a company can make a show of conforming to safety rules while quietly turning a blind eye to safety. The reality of the company’s safety management and culture is always subject to scrutiny. While Wal-Mart has cultivated an image of a relatively safe trucking operation, investigation of this case will undoubtedly put that to the test.

Walmart U.S. President and CEO Bill Simon released a statement about the crash, promising the company will take “full responsibility” if investigators determine the truck caused the crash. “We can’t change what happened, but we will do what’s right for the family of the victim and the survivors in the days and weeks ahead.”

That’s good PR, but my observation of Wal-Mart’s conduct in other litigation, including but not limited to cases I have handled, leads me to suspect that Wal-Mart will “do what’s right” only when all other avenues are exhausted, when the families have been dragged through years of scorched earth litigation, when Wal-Mart’s defense lawyers have deposed every survivor for seven nasty and insulting hours each, and when a court forces them to “do what’s right.”   It is naïve to think that any case with Wal-Mart will ever be fairly resolved without vigorous, protracted advocacy.

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Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of catastrophic personal injury and wrongful death.