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David Brose
David Brose
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Litigation Tips Related to Truck Driver Fatigue

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In our practice litigating high-stakes matters against large trucking companies, we have seen what damage fatigued truckers can do to the average auto on American highways.  When you’re looking for an attorney experienced in truck accident litigation, the science of sleep disorders and the proper detection of fatigue in your truck accident can play integral parts in the case’s success or failure.Semi Truck

Identifying Evidence of Fatigue

The easiest place to start in this process is usually the accident report, which provides the time of day when the accident occurred, allowing a comparison to what is known about circadian rhythms as discussed above.  A skilled truck accident lawyer would also consider the manner in which the accident happened, as the actions of the truck driver, such as a failure to make an avoidance maneuver in circumstance without visual restrictions, may be consistent with an individual experiencing microsleep or an impaired reaction not otherwise explained.

In most fatality accidents, and often in crashes resulting in serious injury, a commercial motor vehicle examination will also occur. As part of this examination, a driver’s record of duty status will be reviewed. If the driver has exceeded the hours of allowable driving or on-duty time, she will be issued a citation that you can use as evidence of negligence.  At the very least, you can begin to reconstruct the activities and work hours of the truck driver in the days leading up to the accident.

When a driver changes her duty status, she is also required to identify her location at that time, and if not in a municipality, identify the highway and nearest mile marker, service post or intersecting street. The driver’s record of duty status is required to be kept current by the driver, further providing the number of total miles driven in the 24-hour period, the name of the carrier and the name of the shipper, among other information.

Electronic data in truck accident cases

Other documents that can be used to evaluate the veracity of these records. The items that can be used to check a driver’s logs take multiple forms. The bill of lading is a document that the FMCSR require be prepared before freight is loaded. It must identify the motor carrier(s) involved, shipper and date of pick-up, among other items.  Other items such as gas, meal and toll receipts can be used to track the movement of the truck over the trip preceding the collision. With these materials in hand, you can reconstruct and time the trip using publicly available sources such as MapQuest or specialized transportation and logistics software.

When available, electronic information can be the ultimate check of a driver’s written logs because it is less prone to alteration or destruction; for example, many motor carriers equip their trucks with Qualcomm communication devices. These devices allow drivers and motor carriers to communicate electronically, similar to e-mail or texting. If enabled, the Qualcomm system also serves to create an electronic version of a driver’s daily logs, often with geographical markers of the location of the truck at the time the driver changes his duty status. Other electronic devices, such as GPS tracking, serve a similar function, as they record the location of the truck at specific points throughout the day.

Medical Health and the Truck Accident Case

You simply cannot accept the production of the medical card as conclusive of the driver’s medical well-being sufficient to safely operate a commercial motor vehicle. The medical card does nothing more than stand for the proposition that on the day of the exam, which could be any point in the preceding two years, the medical examiner determined the driver fit to drive. Moreover, you should not accept the ultimate determination of the medical examiner – often hired by the motor carrier to which it sends hundreds if not thousands of drivers – to be accurate.

To start your evaluation of a driver’s medical health, you need to review the driver’s long-form DOT Medical Examination Report. Although the FMCSR require that a driver’s qualification file include a copy of this medical card, motor carriers are not required to include the completed DOT Medical Examination Report as part of the driver qualification file. Further, to fully and independently evaluate a truck driver’s health, you need all of the driver’s medical records, including those following the accident. Thus, it is important to obtain a medical authorization from the driver. In those states that do not generally allow discovery of the medical health of a defendant driver, you must focus on the medical aspects of driver qualification under the FMCSR to provide an exception.

Another place to develop evidence of fatigue is with the driver. First, you can compare this testimony of activity/rest to what is established by the truck company’s documents. You may very well find that they do not match up, providing a basis for impeachment at trial. Second, you can take this testimony and place it in the form of a demonstrative exhibit, allowing a jury to see a pattern that you would naturally expect to result in driver fatigue.

The truck driver’s deposition is also a place to inquire about his or her medical background. This includes questions about information that may have been provided in connection with the required DOT medical examination. This should be compared to the long form report to find areas that are ripe for impeachment. This should also include questions that serve to open the door to the truck driver’s general medical background.

Excessive on-duty times create substantial safety problems. Too many hours behind the wheel can lead to dangerous fatigue in truck drivers. The U.S. DOT Driver Fatigue and Alertness Study found that driver fatigue is the leading factor in heavy truck accidents. Yet, regulations to address driver fatigue remain in flux.

truckOf course, there can be signals to counsel that a driver did or failed to do something that caused or contributed to cause the collision; however, these signals are not always immediately present when fatigue is the culprit, so it pays to be familiar with the science of sleep, the effect it has on operators and the resources that are called into play in these types of cases. Though it is not an argument that is always easy to illustrate, the analysis of this potential cause of the accident can provide additional claims and sources of recovery beyond simple negligence of the driver and vicarious liability.

Though not exhaustive, these are some of the key ingredients to a foundation of a strong truck accident case. When fatigue is a suspected claim, the above standards are effective approaches to how the accident may have occurred.