Atlanta Injury Law Blog

Truck driving is a hard, dangerous job that many people find less desirable than jobs such as  construction work  that enable  them to be home with their families every night.  Two  years ago, when economic conditions were better, I wrote about  how the truck driver shortage led trucking companies to offer better benefits and recruit more  women, retirees and  immigrants.

But now,  with the economy in terrible shape, the trucking industry is systematically recruiting displaced auto workers.

Maybe next trucking companies will start recruiting newly unemployed  Wall Street investment bankers and bond traders who will be unable to land find new jobs in finance.  If they can handle a trading desk, they should be able to handle a tractor trailer.  Can't you just see it now?

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In my trucking litigation law practice based in Atlanta, I see plenty of instances where drug use -- including prescription medications -- appears to be a contributing factor in trucking accidents. Now the Government Accountability Office (GAO) has issued a report on truckers' drug tests that helps explain how and why.

Oregon Congressman Peter DeFazio is quoted in today's Atlanta Journal Constitution, warning people driving on the Memorial Day holiday weekend "check your rearview mirror early and often because the driver of that aproaching 18-wheeler may have failed one or more drug tests."

The GAO report describing a flawed oversight system that allows truckers to fail a drug test and yet move on to driving for another company. Fewer than half of the estimated 85,000 truck drivers who test positive in random drug tests each year are believed to complete the required treatment and follow-up testing to return to their jobs, according to a news report by Gregg Jones of the Dallas Morning News.

The GAO report found that some trucking companies don't bother to conduct the required pre-employment and random drug tests and have limited incentives to do so. According to the report, only about 2 percent of all trucking companies undergo checks each year by state agencies and the Federal Motor Carrier Safety Administration, which regulates interstate traffic.

In addition, truckers who choose to do so can beat the testing system by using false IDs and chemicals to alter their urine for drug tests. If caught, they easily move on to other trucking companies, which the GAO described as "job-hopping."  

If they fail both at beating the test and job-hopping, they can  "state-hop," since the states don't talk to each other. Among the report's recommendations is the creation of a national database of truckers who fail drug tests.

The report concluded that drug use could be significantly higher among truck drivers than what the random test data indicates because not all companies actually test, urinalysis can be unreliable and results can be altered. For example, GAO investigators who posed as truckers appearing for drug tests weren't required to empty their pant pockets at 10 of 24 sites. The requirement is designed to prevent a driver from using drug-concealing agents or substituting clean urine samples.

In 2006, 4,995 people were killed nationwide and 106,000 injured in crashes involving large trucks, the report noted. Statewide, about 500 people are killed each year in crashes involving large trucks. Although mechanical problems, speeding and driver fatigue are the most frequent factors in fatal accidents involving big rigs, studies have also found that drugs or alcohol substantially increase the risk of accidents. The trucking industry blames passenger cars for causing the majority of accidents.

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As a trial lawyer representing injury victims in trucking accident cases in Georgia, I'm always on the lookout for medications affecting driver alertness.  Another suspect medication has been added to the list.

The Federal Motor Carrier Safety Administration issued a warning Thursday on the anti-smoking drug Chantix, advising medical examiners "to not qualify anyone currently using this medication for commercial motor vehicle licenses." Chantix, made by Pfizer, Inc., was attacked in a study by a non-profit group on Wednesday for possible links to seizures, dizziness, heart irregularity, diabetes and more than 100 accidents. The U.S. Department of Transportation warned all of its agencies almost immediately after seeing the report which reported that Chantix was linked to 988 serious events in the last quarter of 2007.

For more information, see this article by Alicia Mundy and Avery Johnson of the Wall Street Journal.


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While my trucking litigation law practice is in Atlanta, Georgia, I know that long haul trucking safety is not just an American issue.  With the long distances between populations centers in Australia, all the challenges facing American truckers are big deals there too.  Driver fatigue, for example, is every bit as big a problem for Aussie "truckies" as for American truckers.

At the Australian Trucking Convention this week in Canberra, which includes the ATA Safety Summit,  FleetSafe is exhibiting a range of trucking safety technologies, including:

•  video based event recorders
• in-vehicle black box monitoring systems
• trailer reversing cameras
• wireless CCTV systems
• electronic tire inspection tools
• RFID tire tracking and fuel management systems.

A FleetSafe spokesman said, “Safety is great for business. Safe working conditions mean reduced costs associated with accidents and down time which ultimately increases efficiency and profit. In the transport industry safety means more than simply compliance. It is about creating a culture of safety that saves the lives of drivers and other people on the roads. These are issues that affect us all.”



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Handling trucking accident injury cases in Georgia, I see the aftermath of plenty of crashes that could have been avoided if drivers had a timely "wakeup call."  Now the National Highway Transportation Safety Administration, Federal Motor Carrier Safety Administration and several corporations are funding  a University of Michigan study of  a high-tech system to help car and truck drivers avoid crashes by warning them of potential road dangers and assessing their options.  The Integrated Vehicle-Based Safety System being tested is designed to "warn drivers when they are about to leave the roadway, are in danger of colliding with another vehicle while attempting a lane change, or are at risk of colliding with the vehicle ahead."  See David Goodman's AP report on Mlive.com.

 

 

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As a Georgia lawyer representing people who are hurt in trucking accidents – and the families of those who are killed – I see too many cases where it appeared that a truck driver was deeply fatigued, was over the legal hours of service, and had a paper log that was not accurate.

A study by the Federal Motor Carrier Safety Administration showed 13% of large truck drivers were fatigued at the time of an accident. Of the 141,000 estimated crashes, that's 18,000 fatigued truck drivers causing crashes. According to a report by Brian Shapleigh at KJCT television in Grand Junction, Colorado, the Colorado Motor Carriers Association supports installation of on-board computers to track driving hours. Many in the trucking industry, however, oppose any such requirement. 

The spokesman for the CMCA was quoted as saying truckers "need to go above and beyond actually what most drivers are" because of the size of the vehicle their driving. Continue Reading Questions & comments 0

Interstate motor carriers and their drivers are required to make and maintain logs showing the driver's hours of operation, activities and locations of stops. The potential for abuse is so legendary that paper logs are often referred to as "comic books." 

Many truck drivers have told me, off the record, of the impossible pressure on them from carriers and shippers to make legally impossible delivery schedules. In one recent case, a truck driver confessed to me in his deposition that he had destroyed log pages for several previous days and replaced them with pages showing he was "off duty" and falsified the log for the trip he was on, so that he would look legal if stopped. In fact, he had been driving for 20 of the previous 24 hours -- double the legal limit at the time -- when he ran over a family and killed one of the children.

As reported by Robert L. Mitchell in ComputerWorld, electronic driver logs, also known as electronic on-board recorders (EOBR), do away with paper logbooks. The devices typically include a screen and a keyboard where the driver can input activity. That data is matched to a GPS device and vehicle sensors that continuously monitor the vehicle's location and operation and can transmit that data back to the carrier's operations center.  It's impossible to fudge the numbers. A driver can't claim he's resting when the truck is moving.

But carriers make money by delivering the maximum number of loads in the minimum time. Enforcing hours-of-service rules more tightly could reduce per-truck revenues -- and profitability -- if drivers are breaking the rules. Some drivers complain that with the current per-mile compensation levels, they can't make a living without bending the rules. Adopting EOBRs not only might reduce revenue per truck, but also could require an increase in driver compensation.

But when a carrier adopts electronic driver logs and other safety- and performance-related technologies it may use technology to competitive advantage to reduce costs and improve profitability. A carrier is able to more efficiently schedule its fleet when it can better track the number of hours its drivers are available.

Requiring EOBRs would force carriers to move forward in lock step, achieving safety goals without putting any carrier at a competitive disadvantage. Despite industry resistance, that is the direction the Federal Motor Carrier Safety Administration should be heading.

But if EOBRs are required, they should be tamper proof.  There is much history of falsified driver logs, and deactivation of other electronic recording devices, and GPS system downloads in formats subject to manipulation. In order for the EOBR data to be trustworthy, the systems must be tamper proof.

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Here's an intriguing video about the problem of side underride and the lack of side underride guards on trailers in the US. In viewing this, imagine what happens when a driver comes upon a tractor-trailer pulling out of a side road or driveway at night at highway speed. I showed this at a trucking litigation seminar in New Orleans last Saturday, and several people asked where they could get copies.
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This week in several states, the Commercial Vehicle Safety Alliance (CVSA) and the Federal Motor Carrier Safety Administration (FMCSA) are sponsoring “Operation Safe Driver.” This involves increased enforcement roadside enforcement on commercial motor vehicle rules, including fatigued drivers, seatbelts, etc., and educate non-commercial drivers about sharing the road with trucks.

Unfortunately, there can never be enough enforcement officers to effectively deter safety violations by trucking companies and drivers who have powerful economic incentives to break the rules.  A requirement of electronic monitoring devices on trucks would help, but the industry strongly resists that.  Lawyers like me provide after-the-tragedy enforcement, but it would be far better if the trucking industry and the FMCSA would embrace the technology that is now available to deter safety rule violations.

 

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The latest twist in the controversy over opening US highways to Mexican trucking companies is that Qualcomm has contracted with the FMCSA to provide participating companies free access to its satellite tracking system for one year under NAFTA. The systems will be installed at no cost to the trucking companies and will be used to enforce safety requirements, including hours of service and direct shipping standards.  The system will relay the location, speed, trip details, mileage and other data of the vehicles back to an operations center. The trucks will be tracked by vehicle number and company, and no driver information will be collected. The fly in the ointment is that Congress has cut off funding for the pilot project. 

After hearing U.S. truck drivers' tales about how confused they were trying to follow French language road signs in Quebec, I will be interested to see how Mexican truck drivers handle English road signs, maps and directions once this project cranks up.

 

 

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I have written several times this year about proposals for toll lanes for trucks on metro Atlanta interstate highways.  An article this week shows another reason why this may become a necessity.

The Georgia Department of Transportation expects to spend $160 billion on road construction projects between 2005 and 2035. But revenues from the motor fuel tax that funds road improvement are projected to bring in only $86 billion during the same period. That leaves a $74 billion funding gap.  In addition, federal funding for highway construction has declined sharply in real terms because the federal motor fuel tax is set at 18.4 cents per gallon and is not indexed to inflation, Studstill told the more than 300-hundred attendees at the event. “This shortfall could result in a complete drawdown of the Federal Highway Trust Fund in 2009,” Studstill said. If this occurred, federal highway funds would be exhausted in three years. That leaves a $74 billion funding gap for Georgia roads.

At the same time, increasing road construction costs, population growth and more truck traffic through the state and from the booming port of Savannah increasing pressure on Georgia’s roads.

Three fiscal solutions have been proposed.  One is project-specific Special Purpose Local Option Sales Tax, or SPLOST, on a statewide or regional basis. Another is a statewide 1% sales tax  to replace the fuel tax.  The official estimate is that this would generate $1.5 billion per year, compared with $850 million from the fuel tax.

The third approach would involve public-private partnerships such as toll roads. Georgia law allows GDOT to partner with private or corporate businesses to help finance, design, construct, operate and/or maintain transportation projects. Four are under now consideration in Georgia.

There is also the possibility of rail or other transit relieving commuter pressure on metro Atlanta expressways, while we add another 2 million or more people in the next 25 years. Transit makes good sense in densely populated areas, and the area inside I-285 is rapidly becoming a much more densely packed urban environment.

As with moth things, there are no easy answers.  The tough choices are seldom if ever between good and bad, but between good and good, and between bad and bad.  My hunch is that the federal, state and local government officials will incrementally cobble together some imperfect combination of all these approaches, but we will stay perpetually behind the growth curve until something -- either good (e.g., fantastic new energy technology, etc. spurring stronger economic growth)  or bad (environmental, demographic and/or economic collapse)  -- causes a dramatic discontinuity in our current patterns.

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TheFederal Motor Carrier Safety Administration is providing to motor carriers a guide to available onboard safety and security products.  The guide has been published on the FMCSA  website (www.fmcsa.dot.gov). Safety systems highlighted are collision warning systems with adaptive cruise control, lane departure warning systems, rear object detection systems, tire pressure monitoring systems and vehicle stability systems.

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The American Transportation Research Institute, the research arm of the American Trucking Associations, released the results Sept. 12 of its industry analysis of using the recorders to monitor driver hours. The ATRI research does contradict perceptions that the devices would hurt driver morale and retention. A surprising 76 percent of users said the recorders had improved driver morale, and 19 percent said they had improved driver retention. No users said driver retention had been harmed by the devices. The report did not explain why the improvements in morale and driver retention occur.

There was considerable consensus among users, non-users and vendors that recorders are effective at managing and monitoring hours compliance, but more research is needed to document the role that hours compliance plays in fatigue management and safety improvements, ATRI reported.  “As a compliance tool, it appears that EOBRs can meet FMCSA’s need for improved HOS monitoring," said Al Koenig, president of Midwest Specialized Transportation. "But we still need to address certain safety loopholes, such as improved confirmation of who is driving and whether EOBRs will increase speeding to offset potential productivity losses.”
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The libertarian Reason Foundation think tank is promoting, among other things, privately funded toll roads and toll lanes for trucking:

Buoyed by the advent of real-time inventories and Internet commerce, truck traffic grew by over 45 percent in the last decade and is projected to grow another 39 percent in the next 10 years. Trucks need their own lanes. There are over 5,000 deaths a year in car-truck collisions. And most trucking companies would gladly pay tolls to drive in truck-only lanes that allowed them to carry more goods -- by using larger rigs than are currently allowed in most of the country -- and kept them separated from cars. Los Angeles, home to both the nation's worst traffic and busiest shipping ports, has plans for truck-only lanes to reduce congestion and keep goods, and the economy, moving.

See Reason.org for articles about free enterprise approaches to a variety of infrastructure and education issues.
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Reuters reports today that global positioning system, or GPS, technology is enabling larger trucking companies to grow and take market share from small companies.  Such technology enables trucking companies to know where all their trucks and trailers are at any moment, providing shippers with complete supply chain visibility.  The article predicts this trend will continue as retailers simplify their supply chains by opting for a few, big carriers instead of hundreds of smaller carriers. Clicking on a blue dot on a computer screen map, a trucking company manager can bring up a screen showing the exact location of a truck, its load, starting point, destination, cash advances, miles covered by the driver and comments from supervisors and customers. Companies using state of the art technology use handheld computers carried by every single driver to manage and plan freight flows across the United States. Trucking companies that utilize such technology will continue to take market share and increase revenue by focusing on software and tools that smaller companies often cannot afford.

The technology that enables trucking companies to boost profits can also contribute greatly to the cause of safety, as it enables companies with safety-conscious management to closely monitor driver performance, speed, and rest periods. Continue Reading Questions & comments 2

An experimental Driver Fatigue Monitor may help truck drivers from dozing off behind the wheel. The system uses infrared light to determine when drivers are too tired to be driving. It measures how "heavy" eyes are becoming by monitoring the eyelids. If the eyes are closed for three or four seconds several times in a minute, then an alarm sounds. According to the Federal Motor Carrier Safety Administration, 375 people were killed and 7,500 others were injured each year between 1997 and 2000 - all because of accidents caused by tired truck drivers.

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A DriveCam camera mounted inside a passenger bus captured a horrifying crash when a tractor trailer lost control, ran over a car, and collided with the median barrier and the bus on the Long Island Expressway in New York. The camera records both the driver and the driver's view when sensors detect erratic driving behavior. My hunch is that the more accident prone trucking companies won't be in a rush to acquire this technology that would show their sleepy truck drivers running over innocent motorists. On the other hand, trucking companies that are conscientious about playing by the rules could use this to prove it when they are in the right, thus saving themselves much trouble and expense in litigation. See WCBS story.

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Washington, DC, 2/9/06. The National Transportation Safety Board adopted a final report of a runaway truck accident in Pennsylvania that has shown the consequences of improper maintenance on automatic slack adjusters for air brake systems. The board issued 11 safety recommendations aimed at improving training for drivers and mechanics that work with air brakes.

These recommendations arose from a 2003 incident in Pennsylvania in which a dump truck going downhill was unable to stop, resulting in the death of both the truck driver and a child in a car as well as injuries to several pedestrians. The NTSB determined that the probable cause of the accident was the lack of oversight by the truck's owner, which resulted in an untrained driver improperly operating an overloaded, air brake-equipped vehicle with inadequately maintained brakes. Contributing to the accident was the misdiagnosis of the truck's underlying brake problems by mechanics involved with the truck's maintenance, a lack of readily available and accurate information about automatic slack adjusters, and inadequate warnings about safety problems caused by manually adjusting them.

"We believe that more than 500,000 vehicles equipped with air brakes may be operated by drivers who, like the Glen Rock driver, have no air brake training and therefore may not be able to operate their vehicles safely," said NTSB acting chairman Mark V. Rosenker. "This situation needs to change, and change quickly."

The 21-year-old driver had been working for the trucking company for less than two weeks and had never driven an air brake-equipped. He has received no training on how to drive an air brake-equipped vehicle, which operate differently from hydraulic brakes on passenger cars. In addition, the rear brakes on the accident truck were out of adjustment.

Mechanics who worked on this truck and the driver who worked on a truck involved in a similar accident that occurred in California in 2003 did not look for underlying problems with the slack adjusters or other brake components. Therefore, they misdiagnosed the brake problems, probably because they were not properly educated on the function and care of automatic slack adjusters and how they relate to foundation brake systems. "The warnings in existing materials available to owners, drivers, mechanics and inspectors of air-braked vehicles equipped with automatic slack adjusters have not been successful in communicating the inherent dangers of manually adjusting automatic slack adjusters to correct out-of-adjustment brakes," the board stated.

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Washington, 12/2/05.

The Federal Motor Carrier Safety Administration's regulations governing minimum standards for entry-level truck driver training are inadequate based on the record developed during the rulemaking process, a federal appeals court ruled today.

The minimum requirements adopted last May by the Federal Motor Carrier Safety Administration involve only classroom education and in only four areas: medical qualification and drug and alcohol testing; hours-of-service regulations; wellness; and whistleblower protection.

The court said: "The (FMCSR staff's) Adequacy Report determined that effective training for CMV drivers required practical, on-the-road instruction on how to operate a heavy vehicle. But FMCSA ignored this evidence and opted for a program that focuses on areas unrelated to the practical demands of operating a commercial motor vehicle."

The appeals court agreed with Advocates that the sharp contrast between FMCSA's earlier conclusions and the terms of the final rule shows the agency's actions to be "arbitrary and capricious" and in violation of the Administrative Procedure Act. "The agency, without coherent explanation, has promulgated a rule that is so at odds with the record assembled by DOT that the action cannot stand. Accordingly, we grant the petitions for review and remand the final rule to the agency for further rulemaking consistent with this opinion."

It does seem incredible that the FMCSA would adopt truck driver minimum training standards that do not include having to actually drive a truck on the highway. But, hey, new lawyers have been admitted to practice law for generations without ever actually trying a case or counseling a client.

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Chattanooga-based U.S. Express has announced that it is now equipping its trucks with "smart cruise." According to an article in The Chattanoogan, this technology automatically keeps other drivers at a safe distance because it is able to detect vehicles in front of the truck. When a truck driver comes too close to a car, it is supposed to alert the driver to slow down and automatically decelerate the engine when necessary. According U.S. Express, this system acts as a "behavioral device" by changing "drivers' habits."

Hopefully, the alarm is loud enough and early enough to alert a tired driver who is drifting into "microsleep," decelerate the truck and prevent impact.

If it works as described, this technology would have prevented two of the truck wreck cases we are working on now, in which tired trucks southbound on I-75 in the middle of the night, en route from the Midwest to Florida, ran right over smaller vehicles. In one of those crashes a 16-year-old boy was killed. It might also have saved the life of my daughter's friend who was killed when a tractor trailer plowed into the rear of her family's vehicle on I-20 in Alabama.

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A developer of Global Positioning System (GPS) software has developed a time-tracking system that would let truckers use a cell phone to log their Hours of Service. However, the FMCSA requires tracking systems for HOS purposes to be connected to the truck's engine. Xora, a Mountain View, Calif.-based developer of wireless technology software, has requested a waiver. According to data on Xora's Web site, some carriers are interested in using such a system to let drivers go "paperless" as an alternative to Qualcomm or black boxes. Xora spokesmen say it would be a simpler solution for truckers, since more than 90 percent of them use cell phones already. The deadline for the 30-day comment period on the waiver request was July 8. DOT officials are now considering the comments before making a decision.

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Corporate Counsel has an article about hte use of "black box" electronic data recorders tracking truckers' driving hours, speed, etc., and the resistance of truckers to having an "electronic spy" in the truck cab. Thanks to John Day for pointing it out.

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A lawyer cannot effectively investigate and conduct discovery in a trucking accident case without basic understanding of current technology. When such advanced systems are utilized, electronic operation records are created which may be helpful to either the plaintiff or defense in the event of a crash.

Counsel for both sides in truck wreck litigation must seek to obtain and properly interpret such records. Qualcomm is the leader in providing communication, tracking and management technology for the trucking industry, which companies can use to assure driver compliance with hours of service, speed, and other FMCSR mandates. OmniTRACS® includes two-way text messaging between driver and dispatcher, automatic tracking of truck locations by Global Position Satellite (GPS), while TrailerTRACS® uses GPS to monitor positions of trailers. OmniEXPRESS® provides a more affordable version of digital wireless communication with trucks, TruckMAIL™ an Internet-based mobile communication system, and OmniOne™ a voice and data communication system between dispatchers and drivers. JTRACSPro® monitors engine operation to detect maintenance issues early, while SensorTRACS® monitors speed, RPM's and idling, enabling a trucking company to supervise driver performance and compliance.

In addition, truck manufacturers have begun to incorporate computerized lane guidance, rollover advisor and collision avoidance systems in order to improve safety. Plaintiffs' counsel should send a detailed records preservation letter to the trucking company, rather than to the insurer.

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4/12/05 - U.S. Senate members heard testimony that if electronic on-board recording devices are not eventually required, stronger deterrents are necessary to deter "egregious" hour-of-service violations.

Kenneth Mead, U.S. Transportation Department inspector general, testified April 5 before the Senate Commerce Committee on transportation safety programs. "We have conducted criminal investigations of egregious cases in which trucking company officials have been prosecuted for systematically forcing their drivers to drive well in excess of the limits," Mead testified.

Log book and hours rules need strengthening because unscrupulous carriers and drivers view violations as "the cost of doing business," he said.

See eTrucker article.

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One of the many common scenarios in tractor trailer crashes involves the lost truck driver looking for a destination, making turns across traffic, attempting to turn around in inadequate locations, blocking roadways in the dark, etc. One of the many new technological solutions being offered to trucking companies seeks to reduce the problem of lost truckers, while making the company operations more efficient and profitable.

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In Nashville, TN, Continental Express is seeking return of a road tractor-trailer and cargo of paper that was involved in a 7/19/04 crash that killed a police officer. Police say the truck driver was speeding on Interstate 40 and driving recklessly when he crashed into the officer's cruiser. A stranded motorist the officer was helping was seriously injured. The truck driver's lawyer said a data recorder on the truck proves that his defendant was not speeding. See article.

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