Companions on the Journey
Feb 26, 2020


The Bureau of Labor Statistics identified truck transport as the country’s most dangerous job, with 28 deaths per 100,000 full-time-equivalent workers.  Considering the 1.5 million employees in the trucking industry and more than 1.8 million workers operating tractor trailers in other industries, truck driving represents 2.3% of the workforce but some 18.4% of all occupational fatalities.  What’s more, 80% of fatalities in heavy truck accidents involve people outside the cab.  We take a closer look this week at some of the ways regulators and lawmakers are working to improve trucking safety on the roads.



To help fleets learn about a growing list of devices designed to improve commercial vehicle safety, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration  launched “Tech-Celerate Now,” a public/ private initiative to accelerate Advanced Driver Assistance System (ADAS) adoption. The initiative brings together government agencies and leading trucking industry organizations to advance several ADAS technology performance categories including steering and braking systems, vehicle monitoring systems, and camera-based mirror systems.



The Federal Motor Carrier Safety Administration (FMCSA) announced “encouraging results” from its launch of the new Drug and Alcohol Clearinghouse.  Data show that the clearinghouse has detected and identified nearly 8,000 positive substance abuse tests of commercial drivers since January 6.  The clearinghouse now has more than 650,000 registrants. The FMCSA Acting Administrator Jim Mullen said of the launch, “the clearinghouse is a positive step, and the agency continues to work closely with industry, law enforcement, and our state partners to ensure its implementation is effective.”



The U.S. DOT issued a bulletin to address growing concerns regarding cannabidiol (CBD) use by commercial drivers. The bulletin clarified that the DOT requires testing for marijuana, but not CBD products.   According to the bulletin, “The Department of Transportation’s Drug and Alcohol Testing Regulation, Part 40, does not authorize the use of Schedule I drugs, including marijuana, for any reason. It remains unacceptable for any safety-sensitive employee subject to the Department of Transportation’s drug testing regulations to use marijuana.  Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”



The National Highway Transportation Safety Administration (NHTSA) announced $562 million in grants for highway safety programs to offices of highway safety across the country. U.S. Transportation Secretary Elaine L. Chao said, “these highway safety grants will help save lives by addressing impaired driving, promoting seat belt use, improving pedestrian and bicyclist safety, and funding other important traffic safety efforts.” The full grant list is available on the NHTSA website, but California led the way with grants totaling $50 million and Texas and New York followed with nearly $40 million and $30 million each.  Be well on your journey, and remember your Cervantes: “the road is always better than the inn.”   


The Nuclear Age


Several pieces of legislation are moving across the country to address litigation funding, a mechanism to infuse capital into the prosecution of civil cases.  Some industry pundits point to litigation funding as means to “social inflation” and so-called “nuclear verdicts.”  Today, there are over 40 litigation funding firms in the U.S. controlling $9.5 billion in assets.  Supporters of litigation funding around the globe view the practice as a pathway for marginalized victims of tortious conduct to seek justice.  Lawmakers and regulators are beginning to weight the merits of the practice. 



In Congress, Senate Bill 471 would obligate litigation funding companies pursuing federal class actions to make full disclosure to the court.  State legislation measures are going a bit further.  The Florida House of Representatives Justice Subcommittee approved a bill that would require litigation funding companies to register with the state, place a $500 cap on fees, limit interest to 30 percent, and require them to fully disclose all terms of funding agreements to the court. The bill in the New York Assembly would require funding contracts to include a right of rescission clause, written acknowledgment from the plaintiff’s counsel, and a clearly-delineated schedule of all fees.  In Utah, the proposed measure would give the state regulatory authority over litigation funding companies and require them to pay an annual $700 licensing fee to the state Department of Commerce and establish new rules of conduct for the industry.  The jury is still out on these measures.


Making Our Way Around the Country


Speaking of jury verdicts, the Pennsylvania Supreme Court has issued a tort decision with potentially far-reaching implications for all manufacturers and sellers of products in the Keystone State.  The Pennsylvania Supreme Court ruled that defendants found liable in a strict, product liability lawsuit for personal injuries or death must pay a per capita amount of the awarded damages, regardless of how much the defendant’s product actually affected the plaintiff’s disease process.  The case at bar involved a 30-year smoker who contended that his lung cancer resulted not solely from cigarettes, but also from exposure to a variety of asbestos exposure events. A Pennsylvania mid-level appellate court ruled that damages should be allocated according to the extent to which each of the liable manufacturers’ product caused harm.  Clarifying the state’s 2011 Fair Share Act, the Supreme Court disagreed.  The court stated that in strict liability cases each defendant would be wholly liable for the harm, therefore it is improper to introduce concepts of fault in the damage-apportionment process.  



In a case of first impression, a county judge in San Diego ruled that an app-based shopping service misclassified its California workforce as “independent contractors.”  Commentators view this injunction as a first step to enforcing the new state law known as “AB5.” Under state law, workers deemed “employees” are eligible for consideration benefits, including workers’ compensation, unemployment, and unionization rights.  The San Diego City Attorney and the defendant tech company anticipate an appeal



The U.S. Labor Relations Board (NLRB) finalized a rule that will make it more difficult to hold companies liable for unlawful labor practices by franchisees and contractors, reversing the rule promulgated during the Obama administration.  The rule now requires companies to exert direct control over the working conditions of franchise and contract workers in order to be considered their "joint employers."  Related, the Department of Labor announced its final rule earlier this year.  That measure would more narrowly define joint employer status under the Fair Labor Standards Act (FLSA).  The DOL’s final joint employer rule will become effective on March 16th.



Lawmakers in Hartford introduced legislation to expand the reach of the state’s first responder post-traumatic stress disorder presumption law. The measure would enable corrections employees and telecommunications dispatchers who “witness” a qualifying event first hand or over the phone to claim workers’ compensation for emotional distress.  Qualifying events include those events after July 1, 2019, that occur in the line of duty, and involve a deceased minor, or traumatic physical injury that results in death or the loss of a vital body part or permanent disfigurement.



Back to our main story this week, we’re checking to make sure that all the pancakes of Fastnacht, the king cakes of Mardi Gras, and our hometown favorite, jelly-filled Paczkis are safely in the rear view mirror.  We wish you the best of the Lenten Season and may you find peace, inspiration, and rejuvenation along the way.


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