Trial Magazine

A Child Protective Services (CPS) worker is driving on a lonely stretch of Texas highway late at night on her way to evaluate a child in distress at a rural hospital. The 62-year-old driver of an 18-wheeler drifts across the lane and hits the CPS worker’s car, pinning her vehicle between his truck and the concrete highway divider. After dragging her car along the concrete divider for several hundred feet, the truck finally pushes it over the concrete median, and the car falls to the opposite lane of the highway.¹

These facts may tempt you to conclude that the truck driver was simply inattentive. But by asking the right ­questions, you may learn several things: The truck driver treated chronic pain with long-term opioid use, the investigating officer was not trained to screen for prescription opioid use, and the U.S. Department of Transportation’s (DOT) post-accident drug panel (which the motor carrier administered to the driver) did not test for all types of opioids.²

Systemic policy failures such as these contribute to our nation’s highway death epidemic.³ You can give a voice to this silent epidemic—and help make our highways safer—if you know what to look for.

Opioids are a class of highly addictive substances, many forms of which—such as Vicodin and Percocet—are ­prescribed for pain relief. Opiates are derived from the poppy seed,⁴ while opioids are synthetic substances chemically manufactured to work like an opiate.⁵ Either form can impair a person’s ability to safely drive or operate machinery—side effects include slower reaction time, reduced coordination, blurred vision, and drowsiness.⁶

Currently, almost half of the nation’s truck drivers are over 50.⁷ Decades of sitting behind the wheel of a truck and driving for long periods of time can lead to joint disease, back pain, ­arthritis, and many other medical conditions for which opioids are often prescribed.⁸ Although federal regulations prohibit truck drivers from using opioids and driving unless a doctor has advised it is safe to do so,⁹ some drivers do not disclose their opioid use. The combination of opioids and operation of a motor vehicle—particularly a commercial vehicle like an 18-wheeler, which can be up to 20,000 pounds—can be catastrophic.¹⁰

A Lack of Regulation

Despite the obvious safety hazard, federal regulations do not include opioids in their drug testing panels for ­pre-employment­, post-accident, random, follow-up, or return-to-duty testing.¹¹ This hazard is compounded by the fact that some truck drivers, motor carriers, and even ­physicians fail to fully appreciate the risks associated with opioid use.¹²

The Federal Motor Carrier Safety Administration (FMCSA) and the DOT have physical qualification requirements for drivers of commercial motor vehicles (CMV), found in 49 C.F.R. §391.41.

Although the regulations state that a driver must be examined to ensure he or she is not using amphetamines, narcotics, or another habit-forming drug, they also state that a prescription drug may be used when prescribed by a licensed medical practitioner who is familiar with the driver’s medical history and who has advised the driver that the substance will not adversely affect his or her ability to safely operate a CMV.¹³ But this may pose a public safety problem if, for example, a driver has an adverse ­reaction while using the drugs.¹⁴ It also creates an issue when prescribing doctors are unfamiliar with CMV regulations or the patient’s work functions.

The regulations also require truck drivers to obtain a health certificate by undergoing a medical examination by a licensed medical practitioner.¹⁵ Before the exam, the driver discloses his or her health history—including any physical ailments; use of any habit-forming­ drugs or narcotics; and a list of all ­prescription, over-the-counter, or herbal medications.¹⁶

Self-reporting, however, is problematic: Drivers may not know their prescription drug is habit-forming, or they may not report certain drug use to avoid failing the medical exam. And because the medical examiner does not have access to the truck driver’s medical records, he or she must depend solely on the driver’s self-reporting.¹⁷

Many motor carrier companies also don’t have a prescription drug policy—they don’t ask employees about prescription drug use, and the employees don’t tell. The DOT’s ­current drug testing is limited to marijuana, amphetamines, phencyclidine, cocaine, and ­opiates—and opiate testing often excludes common prescription opioids.¹⁸

Investigate Potential Opioid Use

It often is up to you, the injured party’s lawyer, to discover whether prescription opioids played a role in the crash. Begin by requesting the driver’s qualification file and personnel records.¹⁹ The driver qualification file should contain the medical examiner’s certificate, including the name and location of the medical examiner who performed the DOT physical.

These documents offer information about medical conditions that may lead to a prescription for pain medication. You also should review the personnel file for drug and alcohol test reports, as well as for past or extended absences commonly associated with treatment for conditions involving chronic pain, such as joint arthritis or back injuries.

Send interrogatories to the driver’s employer asking about the driver’s past injuries, surgeries, or ongoing physical conditions. Discover any prescriptions the driver had at or near the time of the crash. The names of the prescribing doctor and the pharmacy that filled the prescriptions are important—they can confirm that the driver has provided accurate and complete information about his or her medications.

To avoid defense objections of irrelevance, you may wish to make the discovery specific to opioids. But as a practical matter, the defense may object to any request, no matter how tightly worded. In my experience, a defendant’s objection or refusal to answer questions about prescription drug use often is a sign that you are on the right path. But be prepared to file motions to compel the information you need.

You also should subpoena

•     all records from the DOT medical examiner, including any documents that were provided at the time of the examination.
•     all records from the providers who treated the truck driver for injuries arising out of the crash.
•     all workers’ compensation and insurance carrier records pertaining to the truck driver.
•     records from the truck driver’s family doctor or primary care provider.
•     urgent care, emergency room, and hospital records.

These records can be valuable sources of information for determining whether opioid use is associated with the crash that injured your client.

Establishing Causation

A 2014 study of large truck and bus crashes involving 3,697 drivers revealed that 63 percent were never drug tested after a fatal crash.²⁰

Don’t expect a post-accident toxicology report showing evidence of opioid use—you will have to link opioid use to the crash by establishing that the driver used the drug before the crash. First, find out whether the driver had an active prescription. Then, ask the driver to take a position: Was he or she using opioids at the time of the crash? 

Most often, the driver denies active use. It is then for you to determine when he or she last took the drugs. In some instances, you will need to dig deeper and obtain pharmacy records to identify the type and amount of drugs the driver purchased and when.

If the driver was a regular user and claims he or she stopped taking the drugs shortly before the crash, consider taking the position that the driver was experiencing withdrawal symptoms—including low energy, agitation, irritability, dizziness, yawning, cravings, muscle aches, or insomnia—from opioid use.²¹

Studies show that opioid withdrawal symptoms may also increase the risk of a crash.²² To form a reliable opinion about withdrawal, an expert will need to know how often the driver used opioids, when opioids were first ingested, and when opioids were last ingested.

Then, pose the following question to the jury: “It’s up to you to decide: Was the driver actively taking narcotic pain medication at the time of the crash or suffering from withdrawal symptoms?” 

Punitive Damages

Motor carriers’ corporate policies for prescription drug use may support punitive damages. The DOT five-panel test sets the stage for minimum standards. Last revised in 2010,²³ it is outdated and does not contemplate that legally prescribed opioids are abused in the same way as illicit drugs.²⁴ Some questions you could ask the motor carrier are:

•     What is the policy for disclosure of prescribed opioids and other drugs?
•     What is the policy for testing for opioids and other drugs that are not on the DOT drug panel?
•     Who created the policies in place?
•     When were the policies first implemented? Were the policies set before the opioid epidemic?

Often, you will find that policies do not exist, have not been updated since the 1970s, and do not include common drugs that truck drivers currently take.

To obtain punitive damages, most states require a showing of gross negligence or willful misconduct. Showing that a motor carrier turned a blind eye to the opioid epidemic or chose to exclude the most commonly abused drugs in the workplace from its drug testing policy should help you meet that burden—especially if this is not the first time one of the company’s drivers was taking opioids and caused a crash.

Truck drivers’ opioid abuse and its effects on highway safety do not have to remain hidden—or untreated. More education and implementation of drug policies at the federal, state, and corporate levels can eliminate this epidemic. It also is important to discover its involvement in our clients’ cases. Only by doing so can we, as trial lawyers, do our part to promote highway safety.

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Robert E. Ammons is a partner with the Ammons Law Firm in Houston. He can be reached at rob@ammonslaw.com.

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Notes

1. See Zoë Kirsch, Semi Stoned: It’s Not Illegal to Take Opioids if You’re Behind the Wheel of a Big Rig, Houston Press (July 14, 2015), www.houstonpress.com/news/semi-stoned-its-not-illegal-to-take-opioids-if-youre-behind-the-wheel-of-a-big-rig-7588747.
2. See Drug & Alcohol Testing Indus. Ass’n, Workplace Drug Testing, www.datia.org/datia-resources/27-credentialing/cpc-and-cpct/931-workplace-drug-testing.html#q10.
3. See Nat’l Highway Traffic Safety Admin., NHTSA Data Shows Traffic Deaths Up 7.7 Percent in 2015 (July 1, 2016), www.nhtsa.gov/About-NHTSA/Press-Releases/nhtsa_2015_traffic_deaths_up_07012016.
4. See generally Seyed Adel Moallem et al., Opioids and Opiates, in Handbook of Drug Interactions 159–191 (Ashraf Mozayani & Lionel Raymon eds., 2d ed. 2012), dx.doi.org/10.1007/978-1-61779-222-9_4.
5. Id.
6. Alcohol & Drug Foundation, Druginfo: How Do Heroin and Other Opioids Affect Driving? (June 7, 2016), www.druginfo.adf.org.au/topics/how-do-heroin-and-other-opioids-affect-driving; see also Nat’l Inst. on Drug Abuse, Misuse of Prescription Drugs (Aug. 2016), www.drugabuse.gov/publications/research-reports/misuse-prescription-drugs/which-classes-prescription-drugs-are-commonly-misused.
7. U.S. Dep’t of Transp., National Survey of Long-Haul Truck Driver Health and Injury 45 (Jan. 2014), www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/National%20Survey%20of%20Long-aul%20Truck%20Driver%20Health%20and%20Injury.pdf.
8. Id. at 9–14.
9. 49 C.F.R. §391.41(b)(12)(i)&(ii) (2016).
10. In 2011, 3,757 fatalities from motor vehicle collisions resulted from crashes with tractor-trailers and other commercial trucks. Trucks caused 12 percent of deaths, and 72 percent of those killed were in the smaller vehicle. William K. Berenson, 18 Wheeler Crash Statistics Are Shocking, Tex. Truck Accident Lawyer Blog (June 24, 2013), www.texastruckaccidentlawyerblog.com/2013/06/18-wheeler-crash-statistics.html.
11. The DOT tests for marijuana metabolites/THC; cocaine metabolites; amphetamines, including methamphetamine, MDMA; opiates, including codeine, heroin (6-AM), and morphine; and phencyclidine (PCP). U.S. Dept. of Transp., What Employees Need to Know About DOT Drug & Alcohol Testing 3 (Apr. 2014), www.transportation.gov/sites/dot.gov/files/docs/Employee_Handbook_Eng_2014_A.pdf.
12. “Opioids have been regarded for millennia as among the most effective drugs for the treatment of pain.” Andrew Rosenblum et al., Opioids and the Treatment of Chronic Pain: Controversies, Current Status, and Future Directions, 16 Experimental & Clinical Psychopharmacology 405 (Oct. 2008), www.ncbi.nlm.nih.gov/pmc/articles/PMC2711509/.
13. 49 C.F.R. §391.41(b)(12)(ii).
14. See Stanley Chapman, The Effects of Opioids on Driving Ability in Patients With Chronic Pain, Am. Pain Soc’y Bulletin (Jan./Feb. 2001), rsds.org/wp-content/uploads/2015/02/chapman.pdf.
15. See Fed. Motor Carrier Safety Admin., National Registry of Certified Medical Examiners (Dec. 18, 2014), www.fmcsa.dot.gov/medical/driver-medical-requirements/national-registry-certified-medical-examiners.
16. See Fed. Motor Carrier Safety Admin., Medical Examination Report (MER) Form, MCSA-5875, www.fmcsa.dot.gov/regulations/medical/medical-examination-report-form-commercial-driver-medical-certification.
17. The regulations were modified to allow only certified medical practitioners who are found on the FMCSA’s website, but there is no requirement that it be the driver’s primary care physician. See 49 C.F.R. pts. 383, 384, and 391 (2016).
18. Andrew Powell, Prescription for a Hazardous Workplace, Occupational Health & Safety (Sept. 1, 2013), ohsonline.com/Articles/2013/09/01/Prescription-for-a-Hazardous-Workplace.aspx.
19. A “Driver’s Qualification File” contains documents and information such as licenses, road test results, annual review of his or her driving record, any violations of motor vehicle laws, the medical examiner’s certificate, the skill performance evaluation certification, and a note certifying the medical examiner. The requirements of the file can be found in 49 C.F.R. §391.51.
20. Fed. Motor Carrier Safety Admin., Large Truck and Bus Crash Facts 2014, People Table 27, www.fmcsa.dot.gov/safety/data-and-statistics/large-truck-and-bus-crash-facts-2014.
21. Mental Health Daily, Opiate Withdrawal Symptoms and Timeline, mentalhealthdaily.com/2014/05/06/opiate-withdrawal-symptoms-timeline/.
22. Christine Brittle et al., Schedule II Opioids and Stimulants & CMV Crash Risk and Driver Performance (Mar. 21, 2014), https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/ScheduleIIEvidence_Final.pdf.
23. Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 75 Fed. Reg. 49,850 (Aug. 16, 2010); see also U.S. Dep’t of Transp., Part 40 DOT 5-Panel Notice, www.transportation.gov/odapc/part-40-dot-5-panel-notice.
24. In 2010, federal regulators considered expanding their test panel to target hydrocodone and oxycodone, but as of mid-2016, this change remains pending. Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 75 Fed. Reg. 49,850, 49,853–64 (Aug. 16, 2010).