Trucking companies (surprise!) oppose limits on driving time

According to, the trucking industry opposes new limits on driving hours and is worried these limits will derease revenue by as much as $470 million dollars a year industry wide.  In support of their opposition, the industry blames the Obama administration for “exagerating” data related to fatigue-caused crashes.

The target of the opposition is a rule proposed to go in effect that would require truckers to take at least 34 hours or two consecutive nights of rest each week to combat fatigue-related driver errors.  The American Trucking Association filed and argued their opposition to safety rules to the U.S. Court of Appeals for the District of Columbia.  Proponents of the mandatory rest believe the data supports a corresponding increase in safety and reduction in fatigue-related collisions.  In support of this conclusion, the Obama administration cites data that indicates 13 percent of truck-related crashes are caused by fatigue.  The trucking industry, on the other hand, argued that the data cited by the administration only establishes that fatigue was “present” at the time of these crashes and did not establish fatigue caused the collisions.  Therefore, they argue, trucking companies should be able to allow drivers to continue to operate large trucks without a mandatory 34 hour rest every week.

The case is styled, American Trucking Associations, Inc. v. FMSCA, 12-01092, (D.C. App.).


Fatigued driving is unsafe driving

File:Hours of service FMCSA study.svgAs is show in the above graph, the increase in trucking accidents increases significantly the longer a truck driver has driven on a trip.  In order to reduce the number of serious accidents caused by fatigued driving by truckers on our interstates, the government administration has established maximum hours truckers can drive before they must take a break.  The maximum hours are designed to ensure truckers are alert and have adequate rest similar to naturally occuring sleep cylces. 
One challenge for government is enforecement of these limits.  Because of budget constraints, there aren’t enough government employees to conduct comprehensive log audits and, therefore, infractions are typically found AFTER serious collisons have already occured.  Therefore, the civil justice system is an important institution in keeping our roads and insterstates safe.  Instead of small fines, Plaintiff lawyers may bring claims for punitive damages where trucking companies have consciously disregarded these important safety rules.  The threat of a substantial verdict may sometimes be the only thing that keeps the trucking companies in check.  

How trucking and insurance companies respond to serious collisions

It may or may not be surprising that most large trucking companies and the insurance companies that insure the trucking companies have formal policies and procedures that dictate how they will respond when a truck is involved in a serious collision.  First, they instruct the drivers immediately to call the company to notifiy them of the wreck before anything else so the company can send over investigators.  They instruct the drivers not to give any statements to anyone but the company and when they send the investigators, they will arrive immediately on the scene even by helicopter if the collision is far enough away.  These investigators have one goal: to gather facts to help the insurance company deny paying the claim to the people hurt or killed by the trucking company.

Shouldn’t you have the same resources on your side?  The truck accident lawyers in Jackson, Tennessee at Hardee, Martin & Donahoe have the knowledge, skills and resources to go head-to-head with the big insurance companies and know how to preserve and gather the evidence injured people will need to help ensure they are not taken advantage of by those insurance companies for those injuries.  For example, to understand if a driver was driving while fatigued, one needs to examine and perform a log audit of the hours of service or the number of hours driven.  Event data recorders also need to be examined by a knowledgeable expert to determine how the wreck occurred – the EDR is a computer module that records key data at or near the time of crash.  Most importanly, you need to look at the policies and procedures of the trucking company and see what safety measure were in place or whether it had policies that tended to reward drivers for unsafe driving and imposed unrealistic expectations for delivery schedules.  These policies can lead to fatigued driving, drug use and loss of human life on our nation’s highways.






Medicaid – Supreme Court interjects some clarity to the rights to proceeds

Many people who have been injured are surprised to learn their health insurance companies, Medicare, Medicaid and TennCare (State administered Medicaid) can legally claim ownership to much of the settlement or trial proceeds that were intended to compensate victims of negligence.  State laws have been passed to entitle them to do this.

Lawyers and their clients can be personally sued if they fail to satisfy these liens and those who received Medicare or Medicaid can lose those benefits altogehter.  How these liens are satisifed has long been a big headache to lawyers, courts and injured people because the law has not provided enough clarity on how to do so.  Resolution of these liens can substantially deplete compensation to victims of negligence who are not made whole.  This occurs because many States enacted laws that dictate State-administered programs are automatically entitled to a certain portion of settlement or judgment proceeds without consideration regardless of the circumtances of each individual situation.

This past week, the United States Supreme Court issued an opinion styled Wos v. E.M.A., 468 U.S.__(2013) that holds a state lien law cannot arbitrarily designate the state can recover a fixed amount of the settlement.  It can only recover the amount of the settlement that is “designated as payments for medical care.”   If injured person was compensated for and can prove compensation for things other than past medical care, the liens cannot reach these proceeds.

This is a minor victory for injured people who live in states where these similar lien laws exist and should provide some clarity to a dysfunctional system.

March is National Brain Injury Awareness Month

March is National Brain Injury Awareness Month.  Approximately 275,000 people this year will be admitted to hospitals for treatment of brain injuries and another 1.365 million will be seen and released from emergency departments for injuries to the head.   There are 3.1 million persons living in the United States who are dealing with the challenges of living with traumatic brain injuries.

According to the Centers for Disease Control and Prevention, the direct medical costs and indirect costs of traumatic brain injuries is estimated to be $76.3 billion each year.

Please take a few moments to consider and reflect on those suffering from these debilitating injuries.  Maybe you know someone who does suffer.

One of the most frustrating things a TBI- afflicted person goes through is the lack of understanding and empathy from the public.  You can help change that.

First DePuy ASR Jury Verdict

First DePuy ASR Jury Verdict

March 13, 2013
DePuy, a division of the large Fortune 500 conglomorate Johnson and Johnson, sold about 93,000 of the ASR hip implants.  These hip implants were marketed by DePuy as a safe and revolutionary alternative to traditional hip implants in they would last longer and allow patients to do more rigorous physical activity withour fear of failure of the implant.


After high failure rates, DePuy issued a recall in 2010 because doctors complained the ASR was shedding metal debris that could harm patients.  There was evidence presented at the first trial that DePuy had actual knowledge of the likelihood of high failure rates, but insisted on bringing the product to market wtihout rigorous testing.


The company is now facing nearly 11,000 lawsuits over the implants and its marketing practices. Kransky’s lawsuit was the first one to reach a verdict in March, 2013.  It has been shown through studies that the metal-on-metal design of the hip implant has caused the release of metal ions into patients’ bloodstreams, including chromium and cobalt.  These ions may cause serious adverse health consequences and warrant immediate replacement of the hip implant with a safer model.


Kransky v. DePury was the first case against DePuy to go to trial and the jury returned a verdict of $8.3 million against the DePuy defendants.  The jury declined to award punitive damages.