The Real Cause of the Litigation Crisis
THE REAL CAUSE OF THE LITIGATION CRISIS – INSURANCE COMPANIES
Susan Clarke was on her way to visit an elderly personal services client in Northern Virginia when she was struck from behind during rush hour, pushing her into the car in front of her. The cars were not extensively damaged, but her seat back did collapse in the collision.
Susan’s low back was sore, but she had a history of low back strains and did not think she was badly hurt. After several days of bed rest, hoping the back pain would resolve, she awoke in extreme pain. Her doctors eventually diagnosed a herniated disc. She treated conservatively and was significantly better within 8 months. She incurred about $4,500 in medical bills.
She tried to resolve the claim with State Farm without a lawyer. State Farm refused to even talk with her about settlement, claiming that the rear-end crash was her own fault and that her herniated disc was pre-existing condition.
NOVEL FEE ARRANGEMENT
Susan came to me for a consult. I evaluated her case as being worth $15-20,000 in settlement. I explained that it was too expensive for a lawyer to try such a case and that she should make another attempt to settle on her own. She asked State Farm to simply pay her medical bills. The insurance giant refused. Susan’s case is typical of modest injury claims.
Once or twice a year for the past decade or so, I have agreed to help people like Susan for no fee. Instead, the client agrees that when the case resolves, they will take a portion of the settlement and make a donation to Legal Aid, which provides civil legal help to the poor. Typically, the case is a small case that I would not normally take; liability is clear; but the damages are modest. The client gets appropriate recovery for a small injury; Legal Aid gets a modest donation; and I sleep well at night.
After State Farm refused to even discuss settlement with her, Susan came back to see me and I agreed to help her in exchange for a voluntary donation. In every Legal Aid case I have done before Susan’s case, the insurance company settled the case without trial once they knew a lawyer was involved and was serious.
Susan’s case did not follow the pattern. Indeed, State Farm went out of its way to increase the cost of the case and trial to try to punish Susan for taking it to trial.
THE EVIDENCE
Susan had a history of prior back problems, which was a blessing in a backhanded way, as she had an MRI that provided a snapshot of her back before the crash. We sent her prior MRI and a post-crash MRI to Dr. Charles Citrin for evaluation. Dr. Citrin is a neuroradiologist whose sole job is to interpret MRI and x-rays of the back. He often testifies for insurance companies and I expected that if he found causation, State Farm would resolve the case for its proper value. Dr. Citrin is conservative and states his mind, so it seemed clear that if he found causation, the insurance company would agree that the herniation was caused by the crash.
Dr. Citrin opined that it was not a close call – the comparison of the MRI clearly demonstrated that the herniation was caused by the crash. It simply did not exist in the earlier MRI. Despite the clear opinion of its own preferred doctor, State Farm offered less than $2,000 to settle the case (It cost Susan more than $2,000 simply to have Dr. Citrin take the second MRI and compare it to the older film).
JACKING UP THE COSTS
Even though my fee was a donation to Legal Aid, Susan still had to pay out of pocket costs, such as court reporter fees and expert costs. The insurance company went out of its way to make those costs as high as possible. Because State Farm claimed that the crash was Susan’s fault, I had to depose both the defendant and the driver in the lead car, who had subsequently moved to South Carolina. The costs of the depositions exceeded $1,000. State Farm denied that any of Susan’s medical bills were caused by the crash, so she had to designate Dr. Citrin to testify at trial and pay him to take a day off work to talk to the jury, which cost her over $6,000. State Farm hired another of its favorite doctors, Robert Gordon, to opine that Dr. Citrin misinterpreted the MRIs and that the earlier MRI was identical to the post crash MRI, so we had to depose Dr. Gordon at a cost of about $1,500.
During the deposition of Dr. Gordon, he revealed that insurance companies pay him over $200,000 a year for his testimony favoring them and have done so for more than two decades. In the past 5 years, he has testified live in court 66 times – 100% for the defense and 100% opining that the plaintiff was not hurt as claimed. State Farm aggressively resisted providing the documentation that would reveal precisely how much State Farm itself paid Dr. Gordon, although a 1099 from another case indicated that in 2009, State Farm itself paid him over $212,000. State Farm’s efforts to suppress the scope of Dr. Gordon’s entanglement with State Farm cost Susan hundreds of dollars in additional costs.
TRIAL TACTICS
By the time of trial, Susan had spent more than $10,000 in costs simply to counter the defenses that State Farm insisted it was going to present to the jury. A week before trial, State Farm raised its offer to $5,000 – and that was the most it ever offered.
In opening, State Farm’s lawyer told the jury that Dr. Gordon would refute the doctor “plaintiff’s counsel hand-picked for her” and would testify that she was not hurt at all in the cash. He also promised the jury that the Defendant would testify that Susan was following too close and hit the car in front of her before she was struck.
Although State Farm knew I was receiving no fee, it repeatedly insinuated that the case was manufactured by a “greedy plaintiff’s lawyer” because I sent Susan to Dr. Citrin for evaluation. The second time he did this, the Court allowed Susan to re-take the stand and explain to the jury the fee arrangement.
After forcing Susan to prove her medical bills; forcing Dr. Citrin to testify live; and requiring testimony of the South Carolina man in the lead car that the crash was caused by the Defendant, State Farm abandoned its threatened defense evidence and did not call Dr. Gordon to testify. It also abandoned any testimony by the Defendant that Susan hit the car in front of her before he struck Susan.
RESULT
The jury returned a verdict for the Plaintiff for $25,000, slightly more than I thought the case should have settled for, but certainly within the reasonable range of a proper amount to compensate Susan for her injuries. But it cost Susan almost $14,000 in costs to force State Farm to take responsibility. Although Susan did not pay my legal fees, I spent tens of thousands of dollars in time to prepare and try the case. Presumably, State Farm spent a similar sum. A Fairfax judge, clerk, bailiff, and other court personnel wasted two full days hearing the case and seven citizens were forced to take two days out of their lives as jurors to force the insurance company to take basic responsibility.
Susan has a pending a bill of costs and expenses s to try and recover some of the expenses she incurred because of the insurance company’s tactics. But, she will still have to pay most of the costs out of the verdict. She still plans on making the donation to Legal Aid, which will leave her with little net recovery. As a footnote, Dr. Citrin plans to donate $2,000 of his fee to several of his favorite charities, including St. Jude’s and Doctors without Borders.
State Farm is threatening to appeal the verdict.
WHY DO INSURANCE COMPANIES BEHAVE LIKE THIS?
Insurance companies make their money by taking in premiums and not paying claims. The simple truth is that the fewer claims they pay, the higher their profits. They know that if they make the process difficult, unpleasant and expensive, they will discourage people (and their lawyers) from pursuing legitimate claims. Susan, for example, simply could not have taken the case to trial if she had to pay a lawyer to pursue the case.
Beginning in the 1980s, the insurance industry appears to have embarked on a systematic campaign to vilify those seeking compensation for injury or loss and to make recovery of losses are difficult as possible.
Some industry leaders train adjusters to make low offers and if accepted, treat the claimant nicely, but if the claimant requests full compensation to “bring out the boxing gloves.” A training power point attributed to Allstate, for example displays an alligator with the caption "Sit and Wait." The slide advises that adjusters can discourage claimants by delaying settlements and stalling legal proceedings.
Insurance companies defend these tactics by claiming that if they paid claims such as Susan’s, premiums would go up. This is stupid-talk. In 2006, casualty insurers, of which Sate Farm is the largest, reported profits of $73 billion. This was an increase of 49 percent over 2005 profits. The industry raked in these historic profits in the wake of Hurricane Katrina. Of course, the insurance industry’s abuses of claimants in that disaster were a model of how not to treat customers. In 2008, State Farm itself amassed $5.463 billion in profits. These profit margins belie any legitimate reason to deny proper claims.
Until the public understands that the tort reform “movement” is in reality a slick marketing campaign designed to vilify people seeking legitimate compensation for injuries caused by others, the insurance industry will have the cover it needs to routinely delay, discourage and deny responsibility for paying proper claims.
Insurance companies are like bookies – you lay your money down and make a bet with them. They take your money and take your bet. If your side of the bet comes to pass, they are supposed to pay out. In Atlantic City, there are consequences when a crooked bookie does not pay his bets. It is time to hold the insurance industry to the same standards and any other bookie.
[Back to Top]
WSJ: Op-Ed Why We Need Trial Lawyers
http://online.wsj.com/article/SB10001424052748704804204575069100858780106.html
Why We Need Trial Lawyers
Toyota is only the latest example of lethal defects gone unaddressed by regulators.
By MARK ROBINSON AND KEVIN CALCAGNIE
The alleged need for "tort reform" has become a refrain in American political life. Yet for all the demonizing of trial lawyers, the reality is that product-liability litigation has become an ever more important means of keeping consumers safe.
Case in point: the current Toyota Motor Corp. recalls, with their attendant revelations of corporate obfuscation. This is only the most recent situation in which lethal defects have gone uncorrected for years at least in part because of insufficient government oversight.
In model after model, as we've now learned, car owner complaints were either minimized or ignored altogether by Toyota and by the regulatory agencies that were supposed to police the company. In one review of federal records, the Los Angeles Times found 2,600 complaints of sudden acceleration from 2000 to 2010 by Toyota and Lexus owners. And according to CBS, recently released internal company documents indicate that as far back as 2005 Toyota was tracing its sudden acceleration problem to its software—not to floor mats.
Yet for nearly a decade, neither Toyota nor federal regulators aggressively addressed the problem. Toyota is now likely to face a rising tide of class action lawsuits as consumers look to their historic fallback: the courts.
Regulation is crucial to the creation of a level playing field for consumers, particularly in this era of growing corporate power. But regulation alone has never been enough. Federal agencies such as the Food and Drug Administration (FDA), the Consumer Product Safety Commission and the National Highway Traffic Safety Administration have long been swamped by large work loads. And lobbyists are adept at weakening and fending off regulations.
WSJ Toyota Stories
•In the News:
Toyota Probes Other Causes of Acceleration, U.S. Chief Says
Toyota Document Cited Savings From Limited Recall
•On the Editorial Page:
Akio Toyoda: Back to Basics for Toyota
Michael Dunne: Toyota's Loss Isn't Quite China's Gain
The laissez-faire policies of the Bush administration only further weakened regulatory agencies by cutting funding and personnel, since such agencies were viewed as an impediment to private-sector growth. Government watchdogs soon found themselves so overwhelmed and undermanned that they could scarcely do their jobs.
Consider the FDA. By the mid-2000s, the FDA's caseload extended to more than 11,000 existing drugs, some 100 new drugs a year, and a breadth of products from food to vaccines to medical devices that comprise approximately 25% of all consumer spending.
Resources were stretched so thin that a 2006 report on drug safety by the Institute of Medicine of the National Academies found that the FDA simply couldn't ensure the safety of new prescription drugs. The reasons given? Inadequate funds, cultural and structural problems, and "unclear and insufficient regulatory authorities."
The FDA is just one example. Until April 2009, federal motor vehicle safety standards were so weak that many vehicles could comply and still sustain severe roof collapse from a force equivalent to a 5 mph parking lot collision. Similarly, drivers and passengers are far too frequently ejected in rear-end collisions because the minimum standard for automobile seatback strength is so low that many folding lawn chairs can pass the test.
The recession threatens to further starve the agencies responsible for consumer safety, even as the tough economic climate subjects manufacturers to brutal competition and discourages them from investing in product safety on their own.
As a result, consumers are increasingly left with the courts not only to compensate them when the regulatory system fails to protect them, but also to deter manufacturers from cutting corners in the future.
Product liability lawsuits have played a crucial role in ensuring public safety, encouraging—and sometimes compelling—manufacturers to put safety first. A 1988 survey of 264 CEOS of manufacturing companies found that a third had improved their product lines as a result of the threat of litigation, 35% had improved product safety, and 47% had improved warnings to consumers.
At the same time, such lawsuits have provided important assistance to agencies overseeing product safety. Litigation involving defective products has increased access by regulators and the public to critical safety information about particular products. This has resulted in stronger regulations, safer new products, and the removal of dangerous products from the market. Just last year, in Wyeth v. Levine, the Supreme Court noted that state tort suits "can serve as a catalyst" for regulatory action.
Litigation has not only advanced public safety, but has encouraged improvement in products almost too numerous to mention: air bags, seat belts, child safety seats, tires, minivan doors, hot water vaporizers, children's pajamas, farm machinery, firearms, building materials, tobacco products, intra-uterine contraceptive devices, tampons, sleeping pills, anti-depressants, pain medication, appetite suppressants and many more. Toyota is just another sign of how much work remains to be done.
Strong product liability laws remain vital to public health and safety—no matter how passionate the political debate on tort reform.
Mr. Robinson, managing partner at Robinson, Calcagnie & Robinson in Newport Beach, Calif., has represented plaintiffs in the Ford Pinto, Vioxx, major tobacco and other cases. Mr. Calcagnie is a senior partner at the firm.
[Back to Top]
U.S. Transportation Secretary Ray LaHood Announces Federal Ban on Texting for Commercial Truck Drivers
http://www.dot.gov/affairs/2010/dot1410.htm
U.S Transportation Secretary Ray LaHood today announced federal guidance to expressly prohibit texting by drivers of commercial vehicles such as large trucks and buses. The prohibition is effective immediately and is the latest in a series of actions taken by the Department to combat distracted driving since the Secretary convened a national summit on the issue last September.
“We want the drivers of big rigs and buses and those who share the roads with them to be safe,” said Secretary LaHood. “This is an important safety step and we will be taking more to eliminate the threat of distracted driving.”
The action is the result of the Department’s interpretation of standing rules. Truck and bus drivers who text while driving commercial vehicles may be subject to civil or criminal penalties of up to $2,750.
"Our regulations will help prevent unsafe activity within the cab,” said Anne Ferro, Administrator for the Federal Motor Carrier Safety Administration (FMCSA). “We want to make it crystal clear to operators and their employers that texting while driving is the type of unsafe activity that these regulations are intended to prohibit."
FMCSA research shows that drivers who send and receive text messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting. At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road. Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers. Because of the safety risks associated with the use of electronic devices while driving, FMCSA is also working on additional regulatory measures that will be announced in the coming months.
During the September 2009 Distracted Driving Summit, the Secretary announced the Department’s plan to pursue this regulatory action, as well as rulemakings to reduce the risks posed by distracted driving. President Obama also signed an Executive Order directing federal employees not to engage in text messaging while driving government-owned vehicles or with government-owned equipment. Federal employees were required to comply with the ban starting on December 30, 2009.
The regulatory guidance on today’s announcement will be on public display in the Federal Register January 26 and will appear in print in the Federal Register on January 27.
The public can follow the progress of the U.S. Department of Transportation in working to combat distracted driving www.distraction.gov.
[Back to Top]
Large Truck and Bus Crash Facts 2008: Early Release
http://www.fmcsa.dot.gov/facts-research/art-analysis_Large-Truck-and-Bus-Crash-Facts-2008.aspx
Introduction
The complete Large Truck and Bus Crash Facts annual reports contain vehicle miles traveled (VMT) and vehicle registration data that are made available only in the late autumn or early winter. For the 2008 report, the Federal Motor Carrier Safety Administration FMCSA) is publishing this online Early Release of the annual report, based solely on crash data from the National Highway Traffic Safety Administration and FMCSA. These data are enough to complete most of the tables in the published annual report; however, any tables that depend on VMT and vehicle registration data for the calculation of crash rates will be missing 2008 data for some of the rows and columns. In these early release tables, missing data are indicated by dashes.
When VMT and vehicle registration data become available, FMCSA will revise the tables in this report that depend on those data, add additional tables, and publish the final version of the full 2008 report in print and online (PDF and HTML) editions.
Final online versions of the Large Truck and Bus Crash Facts 2007 report are available on FMCSA's A&I web site at:
LargeTruckCrashFacts2007.pdf (.PDF) and 2007LargeTruckCrashFacts.htm.(HTM)
Reports
The links below will open Microsoft Excel files for the four data chapters of the Large Truck and Bus Crash Facts 2008 report. The Trends chapter shows data for 2008 in the context of available historical data for past years. In the other chapters, the 2008 data are shown in different ways, according to what is being counted. The Crashes chapter counts numbers of crashes; the Vehicles chapter counts vehicles in crashes; and the People chapter counts persons of all types involved in crashes.
Four different types of counts are shown:
Crashes: Numbers of crashes involving various vehicle types.
Vehicles in Crashes: Numbers of vehicles involved in crashes. These counts may be larger than the number of crashes (fatal, injury, or property damage only), because more than one vehicle may be involved in a single crash.
People in Crashes: Numbers of people killed or injured in crashes. These counts generally are larger than the number of crashes (fatal or injury), because more than one person may be killed or injured in a single crash. People killed or injured may be occupants of a truck or bus, occupants of another vehicle, or nonmotorists (pedestrians or pedalcyclists).
Drivers in Crashes: Numbers of vehicle drivers involved in crashes. These counts generally are equal to the numbers of vehicles involved in crashes.
Attachments:
Large-Truck-and-Bus-Crash-Facts-2008_LTCF2008-People1.xls
Large-Truck-and-Bus-Crash-Facts-2008_LTCF2008-Vehicles1.xls
Large-Truck-Bus-Crash-Facts-2008-LTCF2008-Crashes1.xls
Truck-and-Bus-Crash-Facts-2008_LTCF2008-Trends1.xls
[Back to Top]
Toyota Accused of Hiding Evidence
http://www.cbsnews.com/stories/2009/08/29/cbsnews_investigates/main5273636.shtml
A former attorney for Toyota has accused the automaker of illegally withholding evidence in hundreds of rollover death and injury cases, in a "ruthless conspiracy" to keep evidence "of its vehicles' structural shortcomings from becoming known."
The explosive allegations are contained in a federal racketeering suit filed in Los Angeles by Dimitrios P. Biller, former managing counsel for Toyota Motor Sales, USA, Inc., who claims his complaints about the company's legal misconduct cost him his job.
Toyota, which is second to General Motors in car and truck sales in the U.S., called Biller's charges "inaccurate and misleading," in a statement issued late Friday to CBS News. "Toyota takes its legal obligations seriously and works to uphold the highest professional and ethical standards," the company said.
Company lawyers have not filed an answer to Biller's lawsuit, but have brought a motion to seal the complaint, claiming it is "rife with privileged and confidential information" that Biller, as a former Toyota lawyer, has no right to divulge.
A hearing on the motion has been set for September 14.
Biller, who did not return phone calls, worked for Toyota Motor Sales, based in Torrance, Calif., from 2003 to 2007. He was involved in defending rollover lawsuits that blamed injuries and deaths on instability and weak roofs of the company's SUVs and pickups. Along with Toyota Motor Sales and Japanese parent Toyota Motor Corp., his suit names five senior executives and lawyers of Motor Sales. The case was filed July 24 in U.S. District Court in Los Angeles, but has not been publicized until now.
Biller's 75-page complaint says that when he came to Toyota after nearly 15 years in private practice, he was "surprised and alarmed" to discover that the company was not producing e-mails and other electronically stored information to plaintiffs as he said was required. According to the lawsuit, Biller repeatedly complained to supervisors that the company was illegally withholding evidence.
The lawsuit further states that the resulting conflicts ultimately caused Biller to suffer a mental breakdown and led to his forced resignation in September 2007. He left with a $3.7 million severance agreement, court records show.
The complaint charges that in a pair of lawsuits in Colorado and Texas, Toyota failed to fully disclose electronic data (such as e-mails) in defiance of court orders to do so. It states that when Biller learned of the company's failure to produce design and test data from an engineering subsidiary, he attempted to collect and preserve the information.
Despite these efforts, the engineering unit "was allowed to destroy relevant information and documents that should have been produced in, approximately, over 300 rollover accidents involving roof crush issues," the lawsuit claims.
It further charges that Toyota regularly, and improperly, withheld records on design and testing of vehicle roofs. For example, it says that Toyota never produced a document showing that the company's internal standard for roof strength was tougher than the federal requirement. Toyota engineers and witnesses repeatedly testified that the internal standard did not exist, the lawsuit says, adding that there are vehicles on the road today that do not meet the standard.
Word of the case has electrified the plaintiffs' bar, where some lawyers involved in vehicle cases have long voiced suspicions about foreign automakers withholding evidence.
Stuart Ollanik of the Denver firm of Gilbert, Ollanik and Komyatte, which has settled dozens of Toyota rollover cases, said he was "blown away" by the allegations, and wondered aloud if his cases "were resolved based on honest information or not." Ollanik said he had no "independent information about whether the things alleged in Mr. Biller's lawsuit are true, but if they are they're extremely serious."
With grim memories of Toyota's May 2004 courtroom victory over his quadriplegic client in a Toyota 4Runner rollover case, San Jose lawyer James McManis said he, too, was riveted by the charges. In the 4Runner case, everything with Toyota "was a big fight - and I mean everything - but I never suspected they were behaving dishonestly or concealing or withholding evidence," McManis said. "So I'm very interested in knowing whether we got all the discovery we should have got."
Biller is no stranger to litigation, and even before the lawsuit his battles with Toyota were exceedingly bitter. After leaving Toyota in 2007, he set up a consulting firm to provide attorneys with continuing education on such subjects as trial preparation and discovery of electronic records. But Toyota claimed that information provided on the firm's Web site and in class sessions violated the confidentiality clause of his severance agreement. Toyota obtained a restraining order against Biller, court records show.
Biller's lawsuit also notes that he has a separate wrongful termination claim against the Los Angeles County District Attorney's office, where he briefly worked from May to August 2008, as an assistant district attorney. Biller said he was fired over what he described as a dispute over sheriff's deputies failing to show up for hearings or failing to bring evidence.
In its statement Friday, Toyota said it was "disappointed" that Biller has attempted "to avoid what we believe are his obligations as an attorney formerly employed by Toyota. In our view, Mr. Biller has repeatedly breached his ethical and professional obligations, both as an attorney and in his commitments to us, by violating attorney-client privilege."
In the lawsuit, however, lawyers for Biller described Toyota's effort to silence him as "illegal and against public policy in that it is intended to conceal information from plaintiffs and obstruct justice."
©MMIX, CBS Interactive Inc.. All Rights Reserved.
[Back to Top]
AAJ: Warning! Safety Violations Ahead
http://www.justice.org/cps/rde/xchg/justice/hs.xsl/10247.htm
Warning! Safety Violations Ahead
Motor Carrier Companies Keep Unsafe Trucks on U.S. Roads
As nearly 30 million Americans travel U.S. roads during the Labor Day holiday, a new analysis of government data reveals that more than 28,000 motor carrier companies, representing more than 200,000 trucks, are currently operating in violation of federal safety laws.
In an original analysis of data not previously available to the public, AAJ found commuters are sharing roads with trucks that have incurred thousands of safety violations – such as defective brakes, bad tires, loads that dangerously exceeded weight limits and drivers with little or no training or drug and alcohol dependencies.
AAJ obtained data on the safety performance of U.S. trucking companies through the Motor Carrier Management Information System (MCMIS), which is maintained by the Federal Motor Carrier Safety Administration (FMCSA). Over a million lines of data were analyzed in an effort to pinpoint just how many unsafe trucks might be on the road.
West Virginia, North Dakota, Nebraska, Vermont and Iowa had the highest rate of companies in violation of federal safety requirements. The effects of these violations are deadly. While truck accidents occur for a variety of reasons, many are preventable, and often a direct result of trucking companies violating safety standards to cut corners and maximize profits.
Read AAJ's Entire Report Here
Attachments:
aaj-logo-sm.gif
trucksign.jpg
Truck_Report_Final_082109.pdf
[Back to Top]
WashPost: On Interstate 81, Fear Comes Along for the Ride
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/31/AR2009073101958.html
On Interstate 81, Fear Comes Along for the Ride
Once Known Mainly for Spectacular Views, Va. Highway Makes Headlines for Grisly Crashes
By Christian Davenport
Washington Post Staff Writer
Saturday, August 1, 2009
Interstate 81 is a beautiful highway, running along Virginia's western edge in Shenandoah Valley, full of picturesque curves and hills, offering stunning views of the mountains in the distance.
Yet I-81 scares Frank Parsons to death. Yes, the interstate is quicker, but if he has, say, a doctor's appointment down the road, the 81-year-old retiree from Lexington will take two-lane Route 11, thank you very much. No tractor-trailers filling his rearview mirror at 65 mph. No big rigs screaming by, their wheels almost at eye level, making his Volkswagen shudder.
"There's nothing more frightening than to see one of those things barreling up behind me," he said. "It's unnerving."
Trucks own I-81. They account for one of every four vehicles on the highway, and, in some stretches, there is nearly one truck for every passenger car, according to the Virginia Department of Transportation. That's the highest ratio on any of Virginia's major highways and well above what I-81 was designed for. And when the trucks -- which can weigh up to 80,000 pounds -- are involved in crashes, the result is often spectacular -- and deadly.
In Virginia, the more heavily used Interstate 95 bears more crashes; between 2003 and 2007, it had more than twice as many wrecks as its country cousin, I-81. But a Washington Post analysis of state data shows that the fatality rate for crashes on I-81 was nearly double that of I-95.
"To be blunt: If you're driving a car and you have a truck in front and a truck behind and a truck passing you, it's not difficult to determine who the jelly in the sandwich is if things go bad," said Lon Anderson, spokesman for AAA Mid-Atlantic. "It's very frightening."
Last week was particularly bad. On a 15-mile stretch near the intersection with Interstate 66, there were four crashes in less than 10 hours between Thursday evening and Friday morning. The crashes involved nine tractor-trailers and two passenger vehicles and left two people dead and several injured. The first incident came at 7:20 p.m., when a tractor-trailer ran off the road and overturned in the median, spilling its load of watermelons. Police had to divert traffic off the highway, creating a jam that hours later was backed up for miles.
Traffic was barely moving after 10 p.m., when Stone Taylor Weeks, 24, and William Holt Weeks, 20, came along in their 2007 Honda Civic, which weighed 2,600 pounds. The brothers -- sons of National Public Radio correspondent Linton Weeks, a former Washington Post reporter and editor, and Jan Weeks, an artist -- were on their way from Houston to their parents' home in Rockville.
Their Honda was stuck in the traffic when a tractor-trailer rammed it from behind, forcing their car underneath the truck in front of it. A side gas tank on one of the trucks ruptured, and "a fire spread rapidly through the vehicles, burning the passenger vehicle beyond recognition," according to a police news release. Both brothers were killed.
The crash came after a similarly harrowing one in April in which three people died after three tractor-trailers and a passenger vehicle collided, setting off a fire. The highway was closed for about 16 hours.
There are so many crashes, "we don't even try to cover all the interstate wrecks," said Darryl Woodson, editor of the Lexington News-Gazette in Virginia. "For every one we hear about and publish, there's got to be 15 that we don't."
The highway, which stretches from central Tennessee to the Canadian border, has long been popular among truckers as a north-south alternative to I-95 that lets big rigs avoid tolls and skirt massive tie-ups around cities such as Richmond, Washington and Baltimore. But since the North American Free Trade Agreement went into effect in 1994, the highway has become even more densely populated with trucks ferrying goods from the border to U.S. marketplaces.
It's not only tractor-trailers that fill the road. The interstate is popular among tourists exploring the Shenandoah Valley. And with Virginia Tech and James Madison University situated along the corridor, I-81 also carries one-third of the state's college students, according to the Transportation Department.
Faced with public outcry about the death toll, the fear many motorists experience driving amid so many trucks and the loss of the highway's once-bucolic character, Virginia transportation officials during the last decade considered building a parallel highway for trucks only. But the idea was shot down after officials determined it would create sufficient space for trucks but wouldn't ease congestion for other vehicles. More recently, officials looked at widening the highway from two lanes in each direction to four. But with the state in a financial crisis and tolls considered politically unfeasible, that is not going to happen anytime soon.
The result has been incremental fixes here and there -- the state is adding truck-climbing lanes at two spots near Blacksburg and Lexington, and it has extended some on-ramps to create more room to merge. But the large-scale improvements that officials say are needed are nowhere in sight.
"The fact is, nothing is going to happen because there is no revenue," said Fred Altizer Jr., I-81 program manager for Virginia's Transportation Department.
Environmental groups and preservationists have lobbied for more investment in rail, arguing that it is a more cost-effective and environmentally friendly way to move freight and get trucks off the road. But that, too, has stalled because of shortfalls.
Meanwhile, I-81 traffic has tripled in the past 20 years in the Winchester and Roanoke regions, from 20,000 to 60,000 vehicles a day. And trucks still rule the road, which makes people such as Sarah Tschiggfrie very nervous. On the inclines, trucks, often traveling side by side, slow dramatically, sometimes to well below the speed limit. Then, as they crest the hill, they barrel down. With only two lanes, there is simply no way to avoid the trucks and their constantly shifting speeds.
A tractor-trailer once tailgated Tschiggfrie's little two-door Toyota Paseo so badly that she wondered whether the truck driver could even see her from his elevated perch. "I pulled over and called police and gave him his license plate because I thought, 'That guy is going to kill me,' " said Tschiggfrie, who commutes 40 minutes each way from Staunton to her job at Washington and Lee University in Lexington.
Not that truckers are solely to blame. Other drivers often don't give trucks enough room and aren't aware that a tractor-trailer moving at 60 mph can require the length of a football field to come to a complete stop.
"They'll cut in front of you all the time," said James Sine, a trucker who stopped at the Flying J Travel Plaza in Winchester on a run between Houston and Philadelphia. "They pay no attention whatsoever. You blink, and there's a car right in front of you."
Bill Oss, who's been driving I-81 since 1970, said he would much rather have his rig surrounded by trucks, whose drivers are professionally trained, than cars, whose drivers buzz around seemingly oblivious to the fact that "we can hit one of these people and not even feel it except for a thump."
"I hate to say it," he said. "These cars, they don't have a chance."
© 2009 The Washington Post Company
[Back to Top]
VTTI: New Data Provides Insight into Cell Phone Use and Driving Distraction
http://www.vtti.vt.edu/PDF/7-22-09-VTTI-Press_Release_Cell_phones_and_Driver_Distraction.pdf
New Data from VTTI Provides Insight into Cell Phone Use and Driving Distraction
Blacksburg, Va., July 27, 2009 – Several large‐scale, naturalistic driving studies (using sophisticated cameras and instrumentation in participants’ personal vehicles) conducted by the Virginia Tech Transportation Institute (VTTI), provide a clear picture of driver distraction and cell phone use under real‐world driving conditions. Combined, these studies continuously observed drivers for more than 6 million miles of driving. A snapshot of risk estimates from these studies is shown in the table below.
“Given recent catastrophic crash events and disturbing trends, there is an alarming amount of misinformation and confusion regarding cell phone and texting use while behind the wheel of a vehicle. The findings from our research at VTTI can help begin to clear up these misconceptions as it is based on real‐world driving data. We conduct transportation safety research in an effort to equip the public with information that can save lives,” says Dr. Tom Dingus, director of the Virginia Tech Transportation Institute.
In VTTI’s studies that included light vehicle drivers and truck drivers, manual manipulation of phones such as dialing and texting of the cell phone lead to a substantial increase in the risk of being involved in a safety‐critical event (e.g., crash or near crash). However, talking or listening increased risk much less for light vehicles and not at all for trucks. Text messaging on a cell phone was associated with the highest risk of all cell phone related tasks.
CELL PHONE TASK
Risk of Crash or Near Crash event
Light Vehicle/Cars
Dialing Cell Phone
2.8 times as high as non‐distracted driving
Talking/Listening to Cell Phone
1.3 times as high as non‐distracted driving
Reaching for object (i.e. electronic device and other)
1.4 times as high as non‐distracted driving
Heavy Vehicles/Trucks
Dialing Cell phone
5.9 times as high as non‐distracted driving
Talking/Listening to Cell Phone
1.0 times as high as non‐distracted driving
Use/Reach for electronic device
6.7 times as high as non‐distracted driving
Text messaging
23.2 times as high as non‐distracted driving
Explanation of Findings
Eye glance analyses were conducted to assess where drivers were looking while involved in a safety‐critical event and performing cell phone tasks. The tasks that draw the driver’s eyes away from the forward roadway were those with the highest risk.
Several recent high visibility trucking and transit crashes have been directly linked to texting from a cell phone. VTTI’s research showed that text messaging, which had the highest risk of over 20 times worse than driving while not using a phone, also had the longest duration of eyes off road time (4.6 s over a 6‐s interval). This equates to a driver traveling the length of a football field at 55 mph without looking at the roadway. Talking/listening to a cell phone allowed drivers to maintain eyes on the road and were not associated with an increased safety risk to nearly the same degree.
Recent results from other researchers using driving simulators suggest that talking and listening is as dangerous as visually distracting cell phone tasks. The results from VTTI’s naturalistic driving studies clearly indicate that this is not the case. For example, talking and listening to a cell phone is not nearly as risky as driving while drunk at the legal limit of alcohol. Recent comparisons made in the literature greatly exaggerate the cell phone risk relative to the very serious effects of alcohol use, which increases the risk of a fatal crash approximately seven times that of sober driving. Using simple fatal crash and phone use statistics, if talking on cell phones was as risky as driving while drunk, the number of fatal crashes would have increased roughly 50% in the last decade instead of remaining largely unchanged.
These results show conclusively that a real key to significantly improving safety is keeping your eyes on the road. In contrast, “cognitively intense” tasks (e.g., emotional conversations, “books‐on‐tape”, etc.) can have a measurable effect in the laboratory, but the actual driving risks are much lower in comparison.
VTTI’s recommendations (based on findings from research studies)
• Driving is a visual task and non‐driving activities that draw the driver’s eyes away from the roadway, such as texting and dialing, should always be avoided.
• Texting should be banned in moving vehicles for all drivers. As shown in the table, this cell phone task has the potential to create a true crash epidemic if texting‐type tasks continue to grow in popularity and the generation of frequent text message senders reach driving age in large numbers.
• “Headset” cell phone use is not substantially safer than “hand‐held” use because the primary risk is associated with both tasks is answering, dialing, and other tasks that require your eyes to be off the road. In contrast, “true hands‐free” phone use, such as voice activated systems, are less risky if they are designed well enough so the driver does not have to take their eyes off the road often or for long periods.
• All cell phone use should be banned for newly licensed teen drivers. Our research has shown that teens tend to engage in cell phone tasks much more frequently, and in much more risky situations, than adults. Thus, our studies indicate that teens are four times more likely to get into a related crash or near crash event than their adult counterparts.
The Disconnect Between Naturalistic and Simulator Research
It is important to keep in mind that a driving simulator is not actual driving. Driving simulators engage participants in tracking tasks in a laboratory. As such, researchers that conduct simulator studies must be cautious when suggesting that conclusions based on simulator studies are applicable to actual driving. With the introduction of naturalistic driving studies that record drivers (through continuous video and kinematic sensors) in actual driving situations, we now have a scientific method to study driver behavior in real‐world driving conditions in the presence of real‐world daily pressures. As such, if the point of transportation safety research is to understand driver behavior in the real‐world (e.g., increase crash risk due to cell phone use), and when conflicting findings occur between naturalistic studies and simulator studies, findings from the real‐world, and not the simulator‐world, must be considered the gold standard.
It is also critical to note that some results of recent naturalistic driving studies, including those highlighted here as well as others (e.g., Sayer, Devonshire and Flanagan, 2007) are at odds with results obtained from simulator studies. Future research is necessary to explore the reasons why simulator studies sometimes do not reflect studies conducted in actual driving conditions (i.e., the full context of the driving environment). It may be, as Sayer, Devonshire and Flanagan (2007) note, that controlled investigations cannot account for driver choice behavior and risk perception as it actually occurs in real‐world driving. If this assessment is accurate, the generalizability of simulator findings, at least in some cases, may be greatly limited outside of the simulated environment.
NOTE: Dr. Rich Hanowski, Director of the Center for Truck and Bus Safety at VTTI, will be presenting the results of his study directed at Driver Distraction in Commercial Motor Vehicle Operations, at the First International Conference on Driver Distraction and Inattention in Gothenburg, Sweden, September 28‐29, 2009.
References
Blanco, M., Bocanegra, J.L., Morgan, J.F., Fitch, G.M., Medina, Olson, R.L., Hanowski, R.J., Daily, B., & Zimmermann, R.P. (April, 2009). Assessment of a Drowsy Driver Warning System for Heavy Vehicle Drivers: Final Report. Report No. DOT HS 811 117. Washington, DC: National Highway Traffic Safety Administration. http://www.trb.org/news/blurb_detail.asp?id=10451&utm_medium=etmail&utm_source=Transportation%20Research%20Board&utm_campaign=TRB+E‐Newsletter+‐+05‐27‐2009&utm_content=Customer&utm_term
Blanco, M., Hickman, J.S. Olson, R.L., Bocanegra, J.L., Hanowski, R.J., Nakata, A., Greening, M., Madison, P., Holbrook, G.T., and Bowman, D. (in press). Investigating Critical Incidents, Driver Restart Period, Sleep Quantity, and Crash Countermeasures in Commercial Operations Using Naturalistic Data Collection: Final Report (Contract No. DTFH61‐01‐C‐00049, Task Order # 23). Washington, DC: Federal Motor Carrier Safety Administration.
Dingus, T. A., Klauer, S. G., Neale, V. L., Petersen, A., Lee, S. E., Sudweeks, J., Perez, M. A.,
Hankey, J., Ramsey, D., Gupta, S., Bucher, C., Doerzaph, Z. R., Jermeland, J., and Knipling, R.R. (2006). The 100‐Car Naturalistic Driving Study: Phase II – Results of the 100‐Car Field Experiment. (Interim Project Report for DTNH22‐00‐C‐07007, Task Order 6; Report No. DOT HS 810 593). Washington, D.C.: National Highway Traffic Safety Administration.
http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/Driver%20Distraction/100CarMain.pdf
Driver Distraction in Commercial Motor Vehicles Project Webinar
http://www.fmcsa.dot.gov/facts‐research/art‐webinars‐desc.asp?webID=32
Federal Motor Carrier Safety Administration Driving Tips Website:
http://www.fmcsa.dot.gov/about/outreach/education/driverTips/index.htm
Hanowski, R.J., Blanco, M., Nakata, A., Hickman, J.S., Schaudt, W.A., Fumero, M.C., Olson, R.L., Jermeland, J., Greening, M., Holbrook, G.T., Knipling, R.R., & Madison, P. (September, 2008). The drowsy driver warning system field operational test, data collection methods final report. Report No. DOT HS 810 035. Washington, DC: National Highway Traffic Safety Administration. URL:http://nhtsa.com/staticfiles/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/2008/810035.pdf
Hanowski, R.J., Olson, R.L., Hickman, J.S., and Bocanegra, J. (in press). Driver distraction in
commercial vehicle operations. Paper to be presented at the First International Conference on Driver Distraction and Inattention in Gothenburg, Sweden, September 28‐29, 2009 (http://www.chalmers.se/safer/driverdistraction‐en) .
Klauer, S. G., Dingus, T. A., Neale, V. L., Sudweeks, J.D., and Ramsey, D. J. (2006). The
Impact on Driver Inattention on Near Crash/Crash Risk: An Analysis Using the 100 Car Naturalistic Driving Study Data (Report No. DOT HS 810 594). Washington, DC: National Highway Traffic Safety Administration.
http://www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/Driver%20Distraction/810594.pdf
Sayer, J. R, Devonshire, J. M., and Flanagan, C. A. (2007). Naturalistic driving performance during secondary tasks. Proceedings of the Fourth International Driving Symposium on Human Factors in Driver Assessment, Training and Vehicle Design. http://ppc.uiowa.edu/driving‐assessment/2007/proceedings/papers/039_SayerDevonshire.pdf
Driving Transportation with Technology
Sherri Box
PR & Marketing Manager
3500 Transportation Research Plaza (0536)
Blacksburg, Virginia 24061
540/231-1549 Fax: 540/231-1555
E-mail: sbox@vtti.vt.edu
www.vtti.vt.edu
Attachments:
7-22-09-VTTI-Press_Release_Cell_phones_and_Driver_Distraction.pdf
vtti_logo.gif
[Back to Top]
Removing Speed Bumps to Consumer Safety on the Road
Washington, DC ─ Today, as lawmakers focus on the nation’s ailing transportation system, Congress must strengthen its commitment to reducing highway fatalities and injuries by focusing on enhancing critical safety measures for the commercial vehicle industry, according to the American Association for Justice (AAJ).
Both the U.S. House and Senate will hold hearings today relating to transportation policy and the reauthorization of highway funds.
According to the U.S. Department of Transportation there were 4,808 fatalities in crashes involving large trucks and 322 fatalities in crashes involving buses in 2007, the latest data available. Additionally, there were approximately 100,000 injuries in crashes involving both large trucks and buses.
“Stricter safety standards, including roof crush resistance, added seatbelt standards and enhanced driver fatigue monitoring, could protect consumers by reducing the severity of motor carrier accidents,” said AAJ Director of Regulatory Affairs Gerie Voss. “The brakes have been on vehicle safety standards for too long. Safety features are not a luxury, we hope this administration will accelerate consumer safety to reduce fatalities and injuries.”
For example, there are no roof crush standards for commercial motor vehicles, including trucks and buses, and the standard for automobiles has not been updated in nearly 30 years. The auto-standard was slated for April 30, 2009 by the Bush administration. It is estimated by the Federal Motor Carriers Safety Administration (FMCSA) more than 12,000 lives could be saved by having commercial vehicle roof crush standards.
Another issue of concern to consumers is out of date insurance requirements. The minimum insurance requirements for trucks and buses were set nearly three decades ago and have never been raised. Today, those minimum levels of insurance are inadequate to compensate those who have been seriously injured in a collision involving multiple vehicles or multiple injured individuals. Adjusting the minimum insurance requirements for inflation would ensure increased coverage for the significant health care costs injured individuals can incur.
“Insurance is a safety feature like air bags and seatbelts, you don’t think about it until you are in an accident and need the protection,” added Voss. “The current minimum insurance requirements are woefully inadequate and punish injured consumers twice by leaving them to bear the burden of uncovered health care costs.”
###
As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org/newsroom.
http://www.justice.org/cps/rde/xchg/justice/hs.xsl/8942.htm
[Back to Top]
AAJ: Transportation Agencies Need to Quickly Enact Safety Standards
Washington, DC — The National Transportation Safety Board (NTSB) recently concluded driver fatigue, and the lack of federal safety standards protecting passengers on buses, contributed to the death and severity of the injuries sustained in the 2008 Utah bus rollover which killed nine and injured 43. In response, the American Association for Justice (AAJ) is calling on transportation regulators to review pending pre-Obama administration regulations and open new rulemaking proceedings to enhance commercial transportation safety measures for both trucks and buses.
The NTSB cited the National Highway Traffic Safety Administration’s (NHTSA) slowness in failing to implement new safety standards as a factor contributing to the Utah crash. Pending safety regulations in the transportation industry include on-board electronic recorders to monitor a driver’s hours of operation and prevent fatigue, seatbelts, and stronger roofs and windows; all recommendations NTSB has been calling on the agency to enact for nearly a decade.
“The finding from the NTSB shows how the public is endangered when federal agencies drag their feet,” said AAJ Director of Regulatory Affairs Gerie Voss. “The Obama administration must make updating transportation safety standards a priority.”
Commercial buses are not the only dangers on the nation’s roads. According to NTSB, large commercial trucks also lack similar safety measures to protect drivers and the public. Currently, there are no roof crush standards for commercial motor vehicles, including trucks and buses, and a prevalent safety problem in the trucking industry is companies ignoring driver fatigue.
For example, on March 12 the NTSB sent a letter to the American Trucking Associations (ATA) asking the industry group to raise awareness about the dangers of driver fatigue. The letter was in response to another investigation by NTSB that determined a 2005 fatal trucking accident occurred after the driver fell asleep at the wheel.
“The transportation industry has been aware of these problems for years, if not decades, and they have done nothing about it. Current federal standards are needed to save lives,” said Tennessee attorney Morgan Adams, a leading expert on commercial vehicle safety. “Driver fatigue is a killer and it will continue to kill until the government takes action. There is no question some corporations will overwork employees, and ignore problems, in order to earn another dollar.”
According to a March 2009 study in the Journal of Occupational and Environmental Medicine, 3.9 million of the nation’s 14 million commercial vehicle drivers could be affected by sleep apnea, a leading cause of driver fatigue.
###
As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org/newsroom.
http://www.justice.org/cps/rde/xchg/justice/hs.xsl/8822.htm
[Back to Top]
Tort Reform?
Please read this interesting article in the Washington Post about Tort Reform
[Back to Top]
New Hours of Service rules for truckers struck down
The Court of Appeals for the District of Columbia Circuit held on July 16th that the new HOS (Hours of Service) rules for truckers were arbitrary and capricious for not taking into account their effect on driver's health--specifically sleep deprivation. The court ordered the new rules vacated and ordered the agency to revise the rules consistent with the opinion.
Click here to read the opinion (pdf format).
[Back to Top]
Bus driver settles claim for $5 million
A bus driver who lost a leg in a collision in Northern Virginia has settled his lawsuit for $5 million.
Terry Shoemaker, 56, was driving 48 high school seniors from Berkley, W.Va., in a motor coach to Disney World when the left front of his bus clipped the right rear of a tractor-trailer in April 2006 on U.S. 17 between Warrenton and Fredericksburg.
Shoemaker lost his lower left leg and foot in the crash and also suffered a shattered right hip and knee. He sued, and while a Richmond Circuit Court jury was deliberating the case last Tuesday, his attorney, Robert J. Stoney of Fairfax, and the owner of the tractor-trailer, Eastern Sleep Products Co. of Richmond, agreed to settle it for $5 million.
Stoney, who tried the case with colleagues Peter Everett and Mark A. Towery, said the collision occurred when traffic in the right lane slowed in front of the tractor-trailer, and the driver pulled from the right lane into the left in front of Shoemaker’s bus, which was in the left lane.
Because vehicles were in a turn lane to his left, Shoemaker turned to the right in an effort to fill the spot in the right lane that the tractor-trailer had vacated.
The collision between the front of the bus and the rear of the tractor-trailer peeled the sheet metal from the front of the bus over Shoemaker’s legs.
Rescue workers took 2 1/2 hours to extract Shoemaker from the wreck, and he first learned of the extent of his injuries when he heard a paramedic say, “His leg’s gone.”
Four students and a chaperone were treated at a hospital and released. Stoney said he represents one of those students in a personal injury case against the mattress manufacturer, but her injuries are not nearly as serious as those of Shoemaker.
The defense contended that Shoemaker’s bus was partly in the right lane and partly in the left lane when the tractor-trailer driver slammed on his brakes.
That meant Shoemaker was following too close and therefore was contributorily negligent, the defense contended. It retained an accident reconstruction expert to support that contention, but Judge Richard D. Taylor excluded his testimony because it did not account for all the variables in the crash, Stoney said.
A student testified in rebuttal that the collision occurred as Shoemaker had described it.
The jury heard testimony that Shoemaker has arthritis in both knees and hips from the crash and will have to have hip and knee replacements on his right leg. His past and future medical expenses total $457,000, and he has past and future wage losses of $350,000.
Stoney said Shoemaker still drives about 15 days a month for Wolf’s Bus Lines, which is based in southeastern Pennsylvania where Shoemaker lives. He has an artificial left leg, but he can’t work in the winter when snow and ice is on the ground and has difficulty walking on uneven ground, Stoney said.
When he was in the hospital after the crash, Shoemaker told his physicians that he intended to escort his daughter at her wedding three months later, Stoney said.
The jury saw a video of him walking her down the aisle on crutches with his son behind him in case he lost his balance.
http://www.valawyersweekly.com/weeklyedition/2009/02/23/bus-driver-settles-claim-for-5-million/
[Back to Top]
