Paralyzed Man Can Walk Again Thanks to Cell Transplant

Over years of representing clients with spinal cord injuries resulting in paraplegia or quadriplegia, I seize upon any new development that offers hope for improving the quality of their lives and function.

For several years I have seen articles about the use of stem cells to mend damaged spinal cords. One of the most promising ideas has been the use of olfactory nerve stem cells from the patient’s own nose.

Now there is a report of this idea moving from animal research to clinical implementation with a human patient. The effect on our representation of paralyzed clients is that we have a new item of potential medical expense to seek that provides hope from recovery.

A Polish paralyzed man is able to walk again after a new therapy that involved transplanting cells from his nasal cavity into his spinal cord.

Derek Fidyka, 40, was paralyzed from the chest down when he was stabbed repeatedly in the back in a knife attack in 2010. Thanks to a pioneering therapy, he can now walk using a frame. The treatment, a world first, was carried out by surgeons in Poland who worked with scientists in London.

He said walking with the support of a walker was “an incredible feeling”, adding: “When you can’t feel almost half your body you are helpless, but when it starts coming back it’s like you were born again.

Professor Geoff Raisman, chair of neural regeneration at University College London Institute of Neurology, led the London research team. He said what had been achieved was “more impressive than man walking on the moon.”

The treatment used olfactory ensheathing cells (OECs) that are specialist cells that form part of the sense of smell. OECs act as pathway cells that enable nerve fibers in the olfactory system to be continually renewed. In the first two operations, surgeons removed one of the patient’s olfactory bulbs and grew the cells in culture.

Two weeks later they transplanted the OECs into the spinal cord, which has been cut through in the knife attach apart from a thin strip of scar tissue on the right. They had just a drop of material to work with- about 500,000 cells.

About 100 micro-injections of OECs were made above and below the injury. Four thin strips of nerve tissue were taken from the patient’s ankle and placed across an 8mm (0.3 inch) gap on the left side of the cord.

The scientists believe the OECs provided a pathway to enable fibers above and below the injury to reconnect, using the nerve grafts to bridge the gap in the cord.

Before the treatment, Mr. Fidyka had been paralyzed for nearly two years and had shown no sign of recovery despite many months of intensive physiotherapy. He has also been going through an exercise program for five hours per day, five days a week. Fidyka first notices that the treatment had been successful after about three months when his left thigh began to put on muscle.

Six months after surgery, Fidyka was able to take his first tentative steps along parallel bars, using leg braces and the support of a physiotherapist. Two years after the treatment, he can now walk outside the rehabilitation center using a frame. He has also recovered some bladder and bowel sensation and sexual function.

Dr. Pawel Tabakow, consultant neurosurgeon at Wroclaw University Hospital, who led the Polish research team, said “It’s amazing to see how regeneration of the spinal cord, something that was though impossible for many years, is becoming a reality.”

This has not yet been approved by regulatory agencies in the US, but it is an advance that gives hope for the future.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy.

3D Printing Is Latest Advance in Vertebra Replacement

Since 1992, I have watched with great interest the development of 3D printing. When I first read about the concept at the dawn of the Internet, I was fascinated with the futuristic example of downloading the digital design for a replacement part for a sailboat in the middle of the ocean, and printing the part thousands of miles from port. It took a while for the technology and economic feasibility to catch up with the idea. Now my nephew in New York City is doing very well selling industrial 3D printers to companies around the world. This week a 3D printer was delivered to the International Space Station in order to demonstrate the feasibility of printing spare parts for spacecraft, not just in earth orbit but on future voyages to Mars and beyond.

In the medical context, doctors and scientists have worked to implement custom-printed materials into the medical world for the past several years we have seen for a while 3D printing of artificial hands and other bony structures.

The first spinal procedure using a 3D-printed vertebra replaced the second vertebra in a 12 year old boy’s neck. The boy had cancer, which was discovered after a traumatic soccer injury. After the procedure, the patient’s head was framed with pins and will remain that way for three months. Dr. Liu Zhongjun, the surgeon who performed the procedure, said the customized 3D printing technology made the disc replacement stronger and more convenient than other procedureNow comes new of another big advancement has come in recent weeks. Surgeons in China performed the first spinal disc replacement implanting a three-dimensional printed vertebra, according to a CNTV report.

The 3D printing technology uses digital models of a patient’s anatomy to construct a “printed”, customizable implant made out of almost any material. While 3D printing isn’t exactly new, using 3D printing to create an orthopedic device could make these expensive items more readily available for the general public.

In June, French spine surgeon Vincent Fiere, MD, performed the first spine surgery using spine device company Medicrea’s customized spine cages created with a 3D printer. The company’s UniD ALIF customized cage is made with polyetherketoneketone and printed to reproduce the anatomical details of the patient’s vertebral plates. When the procedure was performed, the 3D printing technology and applications were still patent-pending.

It has been estimated that the 3D printing market for healthcare alone with generate more than $4 billion by 2018, according to Information Week.  The 3D printed medical costs models could also reduce surgical time, which is significant when average surgery costs $100 per minute.

Bigger medical device companies are also getting into the 3D printing game. Johnson & Johnson’s DePuy Synthes recently partnered with Tissue Regeneration Systems to develop 3D printing technologies as part of Johnson & Johnson’s long-term strategy to grow the company. The partners are working on implants for the large bone segmental defect treatment in trauma and orthopedic oncology. Johnson & Johnson is also putting more funding behind research and development collaborations after investing nearly $1.8 billion in research and development last year.

In a healthcare market that prizes quality outcomes for lower costs, technology such as computer navigation comes with a high price tag whereas 3D printing could become a relatively economical investment. However, it will still be awhile until we can expect hospitals across the nation to house something like a 3D printer capable of printing medical devices.

Most hospitals don’t currently have the technology or the staff to be able to implement this new type of technology. Even advancements with the most promising clinical outcomes take years to really become the standard of care.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. 

New App Guards Against Texting and Driving

If you are the parent of a teenage driver, the idea of your “invulnerable” teen texting while driving may be among your greatest fears. Now “there’s an app for that.”

Although texting and driving is not illegal in all states yet, it certainly is a dangerous activity anywhere you go especially on touchscreen phones that require more attention to hit the correct key. There are currently 43 states that ban text messaging for all drivers. Of the 7 states without an all driver texting ban, 4 prohibit text messaging by novice drivers. While some drivers can resist the urge to use their phone while behind the wheel, it is not always so easy for some. An app called SafeCell makes it easier to stop texting while driving by offering a cash-equivalent rewards at many retailers.

SafeCell also takes the guesswork out of complying with calling and texting laws that can vary by state, county and city by pushing current cell phone use laws to your phone using GPS and a proprietary database of all the cell phone use and texting laws. This means in addition to earning rewards you can avoid getting a ticket for a local law you didn’t know about.

When the app detect that you are traveling over five miles per hour and in a zone with applicable distracted driving laws it will disable phone, texting, and email capabilities. If you need to make an emergency call you can click the “Place Emergency Call button” to interrupt the app. While using the app you have the option of sending an auto text message to people who call or text stating that, “The person you are trying to reach is driving and will receive your message upon reaching their destination.”

The rewards accrue for every mile driven while obeying any applicable laws. If there are no laws in effect, but you practice safe driving you will still earn rewards. Not obeying laws while driving will take points from your rewards. If you need to use your phone or are a passenger you can pause or stop the app, but no reward points will be earned during this time.

500 miles logged equals $5 in rewards available for redemption at more than 300 retailers including Apple, Amazon, Cabela’s, Macy’s and many more. The rewards are issued in $5 increments and max out at $250 a year.

In addition to keeping you in line with the law and giving rewards, SafeCell creates driving logs for parents or employers to use in monitoring their kids or employees’ driving habits. These detailed trip reports provide added incentive to obey the law and safety concerns regarding cell phone use while driving.

The app is currently available for Apple and Android devices.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. 

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.