The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Chair of the Southeastern Motor Carrier Liability Institute and Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

SUPPLEMENT TO APRIL 10, 2008 ORDER

As Defendants note, I did state that I was “as confident as a Christian with four aces” with respect to my FDA preemption ruling. In view of the United States Supreme Court’s decision in Riegel v. Medtronic, Inc., 1128 S. Ct. 999 (2008). and other recent appellate decisions, my confidence, while still in place, is at a lower level.

It appears to me that an expansive reading of preemption is a part of the overall “assault upon the citadel of the right to trial by jury” (to paraphrase Cardozo). The finer points of the vice of too much preemption are well presented in Justice Ginsberg’s dissent in Riegel, and by Judge Thomas Ambro in his dissent in Colacicco v. Apotex, 22008 WL 927848, at *18-26 (3d Cir. April 8, 2008).  The thought underlying expansive preemption (“backdoor federalization”, Id. at 25.) is that bureaucratic experts are better at determining what is reasonable, what is too dangerous, etc., than are juries.
Over the past several years I believe all three branches of government have become more and more distrustful of juries. They seem to forget that a jury is a cross section of the citizens who elected them to office (or elected those who appointed them). In political campaigns these citizens are paragons of virtue; but when they are called for jury service, they somehow become
incapable of making important decisions. The language in the decisions favoring preemption is high flown; but, at bottom, it reflects distrust of the randomly selected citizens who sit on juries.

Perhaps our public officials, including judges, have read too much Plato and too little Alexis de Tocqueville. Trial by jury is the essence of government reposed in the people. We should trust this institution in fact, not just in word.

IT IS SO ORDERED this 16th day of April, 2008.
/s/ Wm. R. Wilson, Jr.
UNITED STATES DISTRICT JUDGE

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  A "lawyers' lawyer" recently elected Secretary of the State Bar of Georgia, Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

The truck driver had less than the required amount of rest the night before, according to subpoenaed cell phone records, and  was on eight prescribed medications that warned of possible drowsiness.   Witnesses said he was falling asleep at the wheel before he sped past warning signs and a flagman, slammed into a long line of cars, crossed the median and jackknifed on the opposite side of the highway.

According to a report by Joe Meyer of the Columbia Tribune, a family member said, "The money wasn’t something that we were after.  It was just a way to give a message in this part of town that the truckers should not be out there like that."

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of the Chair of the Southeastern Motor Carrier Liability Institute and Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

Types of Out-Of-Service Violations in Arizona in 2006:
False Report of Driver Record of Duty Status - 2,818
Inspection/Repair & Maintenance - 2,674
Driver Fail to Retain Previous 7 Days Logs - 1,500
No Driver's Record of Duty Status - 1,396
15 Hour Rule Violation - 1,357
Brake Out of Adjustment - 1,194
Inoperative/Defective Brakes - 980
10 Hour Rule Violation - 921
No or Improper Load Securement - 717
Flat Tire or Fabric Exposed - 708
Stop Lamp Violations - 706
No/Improper Breakaway/Emergency Braking - 684
Tire Flat/Audible Air Leak - 590
Brakes-General - 582
Failing to Secure Vehicle Equipment - 546

Companies with Most Out-Of-Service Violations in 2006:
Swift Transportation Company Inc - 148 (out of 611 total violations)
Knight Transportation Inc - 51 (of out 137 total violations)
San Luis International Freight Services LLC - 50 (out of 259 total violations)

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

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.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

When you see a turtle on a fence post, you know somebody put him there.  A lot of hard working Georgia lawyers put me on this fence post.  For them, I will keep my focus on practical, nuts and bolts matters affecting the everyday practice of law.

My opponent, Nancy Whaley, ran a strong race and really made me work for it. I commend her hard work and willingness to serve. She has a bright future.

I look forward to several years of service, seeking to improve our profession and court system.

I certainly sympathize with the owner-operator truckers who are having to pay the higher fuel prices, while the trucking companies pocket the fuel surcharges. That's wrong.

Fuel prices may also impact safety. Over the next year, I expect to see an increase in tragic trucking accidents in which truckers have scrimped on maintenance and stretched driving hours in order to make ends meet, while cutting corners on insurance coverage beyond the barest minimum. 

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

Leaving Atlanta for the weekend with my wife, we were on I-285 approaching I-85 at "Spaghetti Junction" when traffic in our lane designated for I-85 North ground to a halt. I had been sitting there for maybe 15 to 30 seconds, about a car length behind a tractor trailer with my hazard flashers on to alert drivers behind me.  Having seen so many cases of rear end collisions when freeway traffic stalls, I always hit the hazard flasher button in these situations.  I know we were sitting there long enough to wonder why just our late was stopped, read the writing on the back of the trailer in front, and to note that it had the older style of rear underride bar. 

Then I heard tires screeching.  Looking in my rear view mirror I saw a tractor trailer with tires smoking, angling from my lane into the lane to my right.

Conservatively estimating the speed of the flow of traffic before the stoppage at 40 miles per hour and the time I had been stopped at 15 seconds, the trucker behind me would have traveled 879 feet – nearly the length of three football fields -- with a clear view of traffic stopped and my flashing hazard lights, before he stopped inches from my rear bumper.

Fortunately, he was able to stop.  But not before the image of a car pushed through the rear underride bar of a trailer in front flashed through my mind. That's not how I want to die.

Was the truck driver behind me fatigued, inattentive, or both? Was he in the 11th hour or more of driving that day?  Fortunately, no one will have occasion to ask. And fortunately, there will be no occasion for the surviving truck driver to falsely claim that the person he killed had suddenly slammed on brakes without warning, hoping that no accident reconstruction would prove otherwise.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

The FMCSA's proposal calls for an EOBRs mandate only for "repeat violators" of hours-of-service rules.  Earlier the National Transportation Safety Board, expressed concern that the rule currently on the table lacks the "resources or processes necessary to identify and discipline all carriers and drivers who are pattern violators." "The only way in which EOBRs can effectively help stem hours-of-service violations, and thereby reduce accidents involving a commercial driver’s reduced alertness or fatigue, is for the FMCSA to mandate EOBR installation and use by all operators," the NTSB said.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

This incident highlights a couple of categories of safety issues I have recently encountered in my law practice. Last year I tried a case in Macon in which our safety expert was able to identify a host of safety violations in a dump truck that rear-ended our client on a bridge. The violations included broken springs and frame elements consistent with long-term wear and tear bouncing in and out of quarries. In another case, we have seen the hazards related to the lack of seat belts in school buses and tour buses.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

The cause arose out of the failure of doctors at the hospital in my hometown, Douglasville, to diagnose a broken neck, resulting is the patient becoming a quadriplegic.

Judge Arrington ruled that limiting the caps meant that in many cases, large jury awards would be issued only to would be issued only to wealthy people who could point to the loss of large incomes. "The statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy," Arrington said. "The disabled manager of a hedge fund, a corporate CEO, an entertainer or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering."

The Medical Association of Georgia placed primary importance on the damages cap as the centerpiece of its tort "reform" legislation in 2005. I expect this ruling will stir the political pot again, putting renewed pressure on the Georgia Supreme Court. My hunch, for  better or worse, is that even though several other state supreme courts have held such damages caps unconstitutional, Judge Arrington's ruling may be reversed in the Georgia Supreme Court.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

According to a report in the East Oregonian, the Oregon enforcement operation had four goals: find equipment violations; determine if drivers are working under the influence of drugs or alcohol; determine if fatigue is impairing drivers; and find any driver engaging in criminal activity in conjunction with operating a commercial vehicle.

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The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

 

]]> Trucking Rules Ken Shigley 2008-05-01T21:53:03-05:00 http://www.atlantainjurylawblog.com/trucking-rules-sleep-apnea-testing-for-heavyweight-truckers-proposed.html The Medical Review Board of the Federal Motor Carrier Safety Administration has recommended that CDL holders with a body mass index of 30 or higher be referred for sleep apnea testing. There is no timetable for action on this recommendation.

Sleep apnea is a serious disorder that interrupts a person’s breathing during sleep.  It can cause sleeplessness, fatigue, excessive snoring, acid reflux and other health problems, and can aggravate any existing heart or lung trouble. Certain physical features, such as excessive weight, are common to people with sleep apnea, although people who aren’t obese can suffer it as well. A BMI of 30 or greater – 220 pounds for a 6-foot-tall person – puts people at risk for developing obesity-related medical conditions such as sleep apnea.

My anecdotal observation, as a trial lawyer in Atlanta handling catastrophic tractor trailer accident cases and interviewing a great many truck drivers, is that sleep apnea is a substantial hazard in the trucking industry, that a significant number of drivers are very much at risk, and that many of them may be motivated to avoid the sort of medical consultation that would lead to diagnosis and treatment because of the perceived risk of loss of income.

To require sleep apnea testing for the group of drivers most at risk could be a positive measure for both the safety of the traveling public and the health of the truck drivers.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck  and bus accidents.  Click here for a free consultation with no obligation.

]]> Trucking Rules Ken Shigley 2008-04-22T15:36:41-05:00 http://www.atlantainjurylawblog.com/bar-organizations-247365-legal-culture-detracts-from-lawyers-roles-in-family-community.html Lawyers who are accessible to their firms and clients 24/7/365 lead more stressful lives, burn out faster, and too often fail in their important roles in families and communities.  That is the essence of a report from the New York State Bar Association's Special Committee on Balanced Lives in the Law.

When young lawyers are frequently at their desks on Saturdays,  they are not spending free time with their families. And too often they are not making time for the citizenship activities that have been the traditional obligation of lawyers. One contributing factor is technology. E-mail, BlackBerrys, cell phones and other devices make it possible for lawyers to be always on call to their firms and clients.

After 30 years practicing law in the trenches, I have seen pretty much all sides of this.  I spent way too many Saturdays at the office as a young lawyer in a firm where everyone was expected to "show the flag" on Saturday. However, I made it to most of my kids' sports events and a lot of Boy Scout weekend trips. However, to my everlasting regret, I remained chained to the desk when I should have accompanied my son on Boy Scout trips rafting through the Grand Canyon and canoeing through a Canadian wilderness.  Those opportunities do not come twice.

The flip side of the coin is that technology enables us to respond to client needs away from the office.  There have been times when I was able to use a PDA to quickly deal with a question from home or on vacation, and get back to family matters.  The challenge is to remain the master of the technology, and not to let it master you.  For me, one positive change has been the switch from an intrusive Blackberry to another device that lets me check for messages when I choose rather than constantly vibrating in my pocket.

I know lawyers in firms both large and small who have done an admirable job of being there for their families on a regular basis.  My brother-in-law, who is in charge of the business and real estate practice at a large firm in another state, comes to mind as an example.  He found the time to be there for his son's sports and Scouting activities, including a lot of weekend travel, chaired major projects in the church, and has served on numerous significant boards in his city. 

On the other hand, I know lawyers in firms both large and small who have been chained to their desks almost every Saturday and Sunday, missing out on much that is important in life.

When I was coming up, in the days before rampant lawyer advertising, the only way a lawyer could advertise was to be active in the community.  Therefore, lawyers were drawn to service in civic clubs, service organizations, and in public office.  Now too often those roles are seen as unnecessary burdens and distractions. Our profession and our communities are poorer in many ways because so many people with the intelligence, energy and training that it takes to become successful in the legal profession have been withdrawn from those roles.

But there are cautionary examples of lawyers who launch so deeply into the outside roles that they are overwhelmed by economics.  I once knew a young lawyer whose legislative service was making it too hard to make a living practicing law.  When the commission chairman of a large urban county resigned, this young lawyer quit the legislature to run for chairman against a high profile candidate with a famous family name.  I thought he would go down to defeat in a blaze of publicity, and get back to practicing law.  However, he "won" a full-time, high profile public office with a salary of $17,000 a year that precluded any significant law practice. The sad end of that story is that in need of funds for his growing family, he stepped on to a slippery slope that led to a term in "Club Fed."

One of the challenges for Bar leaders is to find ways to alter the dynamic so that lawyers and law firms might find ways to meld  family and community involvement with law practice in ways that contribute to  their own long term professional and financial success.  Nobody said it would be easy.