December 2006

In the case of Zeier v. Zimmer, Inc.,  2006 Ok. 98 (12/19/06), the Oklahoma Supreme Court has held that a medical malpractice affidavit pleading requirement similar to the one adopted in Georgia violates a "special law" provision of the Oklahoma constitution similar to a provision of the Georgia constitution. The Oklahoma case is summarized by John Day in his great blog.

the Oklahoma Constitution that provides that ""The Legislature shall not except as otherwise provided in this Constitution, pass any local or special law … Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts."  Similarly, the Georgia Constitution, Art. 3, § 6, ¶ IV, provides in part as follows: " Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, . . . No special law relating to the rights or status of private persons shall be enacted."

Recent articles in the New York Times and Chicago Tribune critique the causes of safety problems in the current trucking industry.  Much of the focus of the Chicago Tribune article is on the Bush Administration’s decision to increase the permissible driving hours and working hours for truck drivers.  The New York Times article digs a little deeper, going back to the deregulation of the trucking industry in the 1980’s.  Most truckers are now paid by the mile or the trip so that the time they spend waiting to be loaded or unloaded or doing maintenance unpaid. Counting all their time on the job, some earn as little as $8 an hour., often with no medical insurance or pension plan. 

According to John Siebert, an official with the Owner-Operator Independent Drivers Association, his review of members’ obituaries revealed their average age at death was 55 and a high rate of suicide.  Surveys of truck drivers reveal 90% are overweight and nearly two-thirds expect to rely solely upon Social Security when they retire. Under extreme scheduling pressure from shippers and trucking companies as well as financial stress, they sacrifice physical needs including sleep in order to work 100 to 120 hours per week. 

According to Mike Belzer, a one-time Chicago trucker and now a Wayne State University professor and trucking industry expert, ever since deregulation it has been a "race to the bottom" in the trucking industry.  Truckers’ income, adjusted for inflation, has dropped steadily as the market has been flooded with new companies, new drivers, and pressures from shippers and manufacturers to keep freight costs down.  The number of interstate trucking companies went from 20,000 to 564,000, with nearly 90% operating six trucks or less, a highly fragmented industry with thin profit margins.  

For more, see the Confined Space blog.

All this is consistent with my own observations, both in investigations and depositions of truck drivers whose fatigue contributed to tragic incidents, and in interviews with truck driver clients and witnesses. I’ve heard truck  drivers describe  incidents of  being required to complete trips by a deadline even though the shippers loaded the trailers several hours late, under circumstances where they could not possibly get the legally required rest and still deliver by their deadlines. I’ve seen too many instances of truckers napping an hour in a cab between nation-crossing trips that result in them driving 20 out of 24 hours.  The risks to their health and to public safety are all too obvious.

                                                                                        – Ken Shigley

In a petition filed in court on Dec.5, five groups – The Truck Safety Coalition, comprised of the Teamsters; Citizens for Reliable and Safe Highways; Parents Against Tired Truckers; Advocates for Highway and Auto Safety; and Public Citizen – asked the court to review the revised hours-of-service (HOS) rule that was issued by FMCSA on August 25, 2005.  They complain that the revised rule increases both the number of hours that truckers may drive without a break and the number of hours truckers may drive per week.

Under the current hours of service rule, truckers may drive 77 hours in 7 days or 88 hours in 8 days – a more than 25 percent increase from the previous rule. On-duty hours during which truckers may drive also have increased, allowing a truck driver working 14-hour shifts to work as many as 84 hours in 7 days or 98 hours in 8 days – a 40 percent increase over the old limits.

Safety advocates also oppose the provision for a 34-hour restart period, which resets the driver’s clock after a 34-hour rest period. According to the Teamsters, this puts drivers behind the wheel 14 hours longer with considerably less rest than the old rules.They express concern that the rules force drivers to work more hours with less rest over the course of a given week., putting the at risk the safety of both truck drivers and members of the public  with whom they share the roads.

FMCSA had issued a similar HOS rule in April 2003. However, Public Citizen and two other advocacy groups filed a lawsuit challenging the 2003 rule, and the U.S. Court of Appeals for the District of Columbia Circuit struck down the HOS rule in a July 16, 2004, opinion. The appeals court ruled that FMCSA’s 2003 HOS rule "is arbitrary and capricious because the agency neglected to consider a statutorily mandated factor the impact of the rule on the health of drivers." The appeals court then ordered FMCSA to rewrite the rule.

Even so, many of the provisions in the revised HOS rule are the same as the 2003 rule. The 2003 rule increased truckers’ maximum daily driving time from 10 to 11 hours, decreased the maximum daily shift from 15 to 14 hours and established a mandatory rest period of 10 hours per shift (up from 8 hours in the old rule.) All of those provisions carry over to the revised HOS rule.

Until 2003, truckers were permitted to drive no more than 10 consecutive hours before taking a break and drivers were barred from driving after they had worked 60 hours in the previous 7 days or 70 hours in the previous 8, depending on the company schedule.

According to an article on the Occupational Hazards web site, "more than 5,000 people are killed each year in large truck-related crashes and more than 110,000 are injured," Public Citizen President (and former head of the National Highway Transportation Safety Adminsitration) Joan Claybrook said. "That FMCSA chose in both rules to expand driving hours is astounding given its statutory mandate to make safety its highest priority and Congress’s specific directive to the agency to reduce fatigue-related incidents."

Driver fatigue is a major cause of highway accidents, including those involving long-haul truckers.  However, it can be difficult to prove fatigue was the cause of a crash since the crash itself wakes up the driver, despite the occasional confession and the strong inferences that can be drawn from truck driver logs that are not "comic books."  Now, however, there is scientific research pointing toward the possibility of a "fatigue-alyzer." A research group at Washington University in St. Louis recently stumbled upon a connection between the digestive enzyme amylase and drowsiness.  For an effective real-world test, researchers need to find a half-dozen or so markers that correlate with drowsiness.   While we may be years from having a working "fatigue-alyzer," the feasibility of such a test points the way to a deterrent to overly tired drivers, just as blood alcohol tests help to deter people from driving while intoxcated.

As of today, the Association of Trial Lawyers of America is no more.  The new name of the organization is the American Association for Justice.  After a vigorous debate, it was determined that rebranding the organization would help to reframe the debate about the role of the civil justice system by taking the focus off the lawyers and putting it on what we try to do.  The mission statement of the AAJ is as follows: "The Mission of the American Association for Justice is to promote a fair and effective justice system – and to support the work of attorneys in their efforts to ensure that any person who is injured by the misconduct or negligence of others can obtain justice in America’s courtrooms, even when taking on the most powerful interests."

 Of 953 truckers faulted in fatal crashes from 2000 through 2005, a  Dallas Morning News investigative report found, at least one in four had been convicted of a criminal offense or received deferred adjudication before the crash.  Over 14 percent had committed drug or alcohol offenses prior to their accidents, and more than one in 10 were felons.  At least 137 truckers had one or more criminal offenses in the 10 years prior to their fatal accident. At least 72 had an offense within five years, and 28 truckers had at least one offense in the two years before their fatal accident.  A shortage of qualified truck drivers  leads trucking companies to hire more drivers with serious criminal records.  In Texas, according to the report, there were 80 truckers faulted in accidents from 2000 through 2005 who received their commercial driver’s licenses at the two prisons where the truck-driver training program is offered.

The report notes that while most trucking companies will not hire a driver with a DUI conviction in the past five years, they do not otherwise exclude drivers with criminal records.  Employers have an incentive for hiring felons —  a federal tax credit of $2,400 on the first $6,000 an ex-offender earns under a provision established to encourage employers to hire individuals from groups with a high unemployment rate. The report  tracks the  apparently disproportionate safety problems of truck drivers who earned their CDL in Texas prisons.

While it is important that former offenders have opportunities for legal and gainful employment, felony records may be admissible in evidence. Both Federal Rule of Evidence 609 and Georgia Code Section 24-9-84.1 (enacted in 2005) include similar provisions to the effect that a witness, other than a criminal defendant, can be impeached with evidence of a conviction punishable by death or imprisonment of one year or more, essentially a felony, if the "probative value of admitting the evidence outweighs its prejudicial effect to the witness." A witness can be impeached with evidence of conviction of a crime involving "dishonestly or false statement."  Both Federal and Georgia law prohibits the use of a conviction that is more than ten years old unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect.

In light of the Texas study, lawyers representing plaintiffs in commercial motor vehicle collision cases may find it worthwhile to conduct independent investigations of the criminal histories of truck drivers, at least for the previous ten years.  Such inquiry should go beyond merely asking the question of the defendant.

For several years in Georgia and across the country, there has been a quiet debate about whether trial courts should allow or encourage jurors to submit questions to be asked of witnesses.  A 2003 article in Kent Law Review summarizes the issues on both sides of the debate. Maybe I’m a "control freak" (as a certain teenager in my house has occasionally suggested) but I’ve always been a bit skeptical about that innovation in trials.

Now, however, I’ve become a convert.  Three weeks into a products liability trial in Nevada, which recently adopted this change, I have begun to see the value of allowing jurors to submit written questions. 

We have seen several juror questions for nearly all witnesses.  The judge screens the questions with the lawyers at the bench (with a "white noise" machine masking the colloquy), determines which  questions are legally objectionable, and then the judge asks the permissible juror questions of the witness.  Points that trouble jurors are both revealed and addressed immediately, rather than leaving them to fester.  Lawyers can see what the jurors’ concerns are, and how individual jurors are processing the evidence. Even during examination of a witness the lawyer can see when jurors begin to write questions and pass them to the bailiff.  Presentation of evidence can be modified accordingly. Moreover, I suspect that some jurors are more actively engaged in the search for truth when they can submit their own questions of each witness.