Zarwin Attorneys Secure Dismissal of Catastrophic Injury and Wrongful Death Claim
July 13, 2022 • Source: Ted Schaer, Zarwin Baum DeVito Kaplan Schaer Toddy
Ted Schaer, and Noah Shapiro of the regional law firm of Zarwin Baum, recently secured dismissal of a Philadelphia civil action against their client, a local Fortune 100 Company (the “Company”), involving multiple catastrophic personal injury and wrongful death claims.
The action arose out of a motor vehicle accident on I-95 in late 2019 that occurred when a former employee of a subsidiary of the Company operated his personal vehicle while intoxicated, having a blood alcohol level nearly twice the legal limit. The former employee rear-ended another vehicle while traveling close to 100 mph, killing two and severely injuring two others. Prior to the accident, the former employee had attended a holiday party held by a vendor of the Company at a restaurant where he consumed alcohol. Following the holiday party, the former employee continued to drink, first at the restaurant, then at a nearby local bar. The Plaintiffs sued the former employee for negligence and the restaurant and bar for violations of the Pennsylvania Dram Shop Act, alleging the former employee was visibly intoxicated when served. Plaintiffs brought suit against the Company and its vendor, alleging that both had co-sponsored the holiday party and were therefore liable for serving the former employee while visibly intoxicated, for failing to monitor his consumption of alcohol, and for failing to prevent him from driving while intoxicated.
Zarwin was retained shortly after the accident, prior to suit, to coordinate an investigation and develop a litigation strategy. When suit was filed, Zarwin filed preliminary objections in the form of a demurrer, seeking dismissal of the Plaintiffs’ claims against the Company for failure to state a claim for which relief could be granted. Zarwin’s arguments on behalf of the Company were: (1) that under Pennsylvania law a non-liquor licensee could not be held liable under the Pennsylvania Dram Shop Act; and (2) that Pennsylvania courts do not recognize social host liability for the service of alcohol to non-minors. In support of its arguments on behalf of the Company, Zarwin relied on a long line of Pennsylvania case law beginning with the Supreme Court’s holding in Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973) and ending with the recent Superior Court holding in Klar v. Dairy Farmers of America, Inc., et al, 2021 PA Super 252 (2021). In response, the Plaintiffs argued that the issue was one of vicarious liability and common law negligence for failure to monitor and control an employee’s consumption of alcohol. The court rejected Plaintiff’s arguments and granted the Company’s preliminary objections in full, dismissing all claims against them.
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DOT Proposes Oral Fluid Testing For Controlled Substances
Source: Gallagher Sharp LLP
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On February 28, 2022, The United States Department of Transportation (DOT) published a proposed rule for new drug testing guidelines, to include the use of oral fluid samples as an alternative to urine testing for controlled substances. The proposed rule does not affect alcohol testing, which must be conducted by blood or breath samples. The proposed rule covers all testing situations, generally described as Pre-Employment, Random, Reasonable Suspicion, and Post Accident testing.
If accepted, the Rule will revise part 40 of title 49 of the Code of Federal Regulations, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs.” The comment period for this proposal ends March 30, 2022.
According to the DOT announcement in the Federal Register, which can be viewed in its entirety at federalregister.gov/d/2022-02364, “[t]his will give employers a choice that will help combat employee cheating on urine drug tests and provide a more economical, less intrusive means of achieving the safety goals of the program.” Unfortunately some employees have figured out how to use fake urine and prostheses, both readily available.
Notably, the Department is not proposing the elimination of urine drug testing, but only that oral fluid testing be offered as an alternative. “Each specimen type offers different benefits to assist employers in detecting and deterring illegal drug use, and no single specimen type is perfect for every situation.” Further, according to the proposal, the U.S. Department of Health and Human Services (“HHS”) has determined that proper oral fluid testing provides “the same scientific and forensic supportability of drug test results as the Mandatory Guidelines for Federal Workplace Drug Testing Programs using urine.”
The proposal is in large part purposed with seeking a balance between the safety concerns of trucking companies, the motoring public and safety advocates on the one hand, and the driver’s right to privacy, which may be invaded by a company’s need to directly observe urine sample collection to ensure against cheating, on the other. The proposal expresses a concern that urine collections “are potentially invasive searches and seizures of private citizens, subject to scrutiny under the Fourth Amendment of the United States Constitution.” The DOT has sought to protect individual rights by ensuring visual and aural privacy, except for “cause”, such as “suspicious activity at the collection site or as determined by the laboratory testing of a specimen.”
The proposal describes additional policy considerations. Oral fluid testing is generally more cost effective than urine testing. The collection of oral fluid may be conducted at the scene of an accident. The proposal notes that it also provides windows of detection distinct from urine sampling. Oral fluids generally allow for effective detection of more recent drug use, while urine, which allows for more delayed detection, is likely more appropriately suited to detect intermittent drug use through pre-employment, random, return-to-duty, and follow-up testing.
The proposed rule does not address hair testing, which is used by some employers as a condition of employment and is generally viewed as far more accurate than other testing methods. It is not mandatory, however, and currently is not permitted as satisfying any testing prescribed by the FMCSRs.
The addition of oral fluid testing is a major step forward in that it permits flexibility and convenience. It is expected that the trucking industry will welcome this rule if it goes into effect. Indeed, the American Trucking Associations said, “We are elated that DOT is proposing the inclusion of oral fluids as an approved testing method for DOT purposes, ATA has long advocated for its inclusion, and the notice today is another step closer in getting it done.”
As always, we will continue to monitor this update and provide additional information as it is disseminated.
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New Legislation Could Be A Game Changer For The Trucking Industry
Source: Gallagher Sharp LLP
In what many hope will be a new trend around the country, Iowa’s state legislature recently proposed three significant bills that would curb the unfortunate trend of “nuclear” verdicts that have been plaguing many industries and sectors – none more so than the trucking industry.
Iowa’s state Senate recently proposed a bill that would cap noneconomic damages awards at $1,000,000 for personal injury and death claims specifically against “commercial motor vehicle owner and operators,” while Iowa’s state House of Representatives separately proposed a bill that would cap noneconomic damages awards at $750,000 for any civil action involving personal injury or death “regardless of the number of plaintiffs, derivative claims, theories of liability, or defendants in the civil action.”
Notably, Iowa’s proposed laws provide no exceptions to the noneconomic damages caps, which is noteworthy as many states with laws capping noneconomic damages typically include exceptions. For instance, Ohio’s noneconomic damages caps do not apply if a plaintiff suffers from a “permanent and substantial physical deformity,” “loss of use of a limb,” “loss of a bodily organ system,” “a permanent physical functional injury that permanently prevents the injured party from being able to independently care for himself or herself and perform life-sustaining activities,” or the claim involves a wrongful death. These exceptions, like those around the country, leave the trucking industry and their insurers susceptible to “nuclear” verdicts, whereas Iowa’s proposed bills—which are supported by Iowa Governor Kim Reynolds and the Iowa Motor Truck Association—effectively thwart the possibility of a runaway verdict (unless punitive damages are alleged and justified).
Iowa’s Senate has also proposed a bill that would render all litigation funding contracts void and unenforceable. As the trucking industry is acutely aware, litigation funding has resulted in plaintiffs’ attorneys and their clients to more aggressively prosecuting their claims since they are funded by outside sources and treated as an investment—instead of what they should be—a means for their clients to receive a fair and equitable verdict or settlement. Critics of third-party litigation funding have long recognized that treating claims like investments leads to litigation abuses and slows the settlement of valid claims.
It is clear Iowa’s legislature has recognized the abuses trucking companies and their insurers have been long facing and are taking the lead in stopping the unfortunate tide of inequitable, “nuclear” verdicts. While the above bills have not yet been signed into law, we hope this will indeed occur and that more states around the country will follow in Iowa’s footsteps.
As always, we will continue tracking Iowa’s bills, and hopefully others proposed around the country, and provide additional information as it is disseminated. |
FMCSA Withdraws Proposals Impacting Efficiency of CDL Tests for Aspiring Truck Drivers
Source: Gallagher Sharp LLP
On March 9, 2022, the Federal Motor Carrier Safety Administration (“FMCSA”) withdrew two rule-making proposals that would have streamlined the testing process for driver applicants seeking a Commercial Driver’s License (CDL).
Under current regulations, states cannot allow a third-party skills test examiner to administer the CDL skills test to applicants with whom the examiner has also provided skills training. But a proposal published by the FMCSA in 2019 would have lifted this restriction on states. The proposed rule change was to alleviate testing delays, lower licensing costs, and reduce inconvenience for CDL applicants and third-party examiners, without hindering safety.
Following the proposal’s publication, FMCSA received 95 public comments from a mix of individuals, corporations, State agencies, and industry trade organizations.
Opponents of the change expressed concerns over fraud, conflict of interest, and examiner bias. Specifically, the concern was that “allowing the same individual to train and test the applicant could undermine the integrity of the skills testing process, thereby negatively impacting safety.” This concern was shared by all five States who commented (Virginia, Oregon, Washington, Minnesota, and Missouri).
Supporters of the proposal, however, believe safety will not be compromised. They point to extensive measures already in place by state agencies to detect fraud. They argue the proposal would increase efficiency and flexibility of the skills testing process and reduce delays.
FMCSA was persuaded by the proposal’s opponents, stating concern over the integrity of the CDL skills testing process and negatively impacting highway safety. As such, FMCSA has withdrawn the skills testing proposal.
FMCSA also withdrew a second proposal. This proposal would have allowed a state to administer general and specialized knowledge tests to an out-of-state applicant, and require the applicant’s state of domicile to accept knowledge test results from the testing state. The rule change was intended to promote efficiency and flexibility in CDL issuance without adversely effecting safety.
Proponents suggest that, in addition to promoting efficiency, the proposal would enhance access for out-of-state driver applicants. In essence, it would remove the burden on applicants who must return to their State of domicile to take the knowledge test after training in another State. Thus, a more efficient testing process encourages more drivers to apply for a CDL, and means “more opportunities to fill the gap between the supply and demand of commercially-licensed drivers.”
All states commenting on the proposal said it would require changes to current procedures for processing knowledge test results. For example, some states would have to keep an applicant’s record “open” in pending status while it waits to receive the applicant’s out-of-state knowledge test results. Other states were concerned about costs. Pennsylvania’s Department of Transportation estimated costs of approximately $525,000 to accept knowledge test results from other states. Further, costs to begin offering knowledge testing to out-of-state driver applicants would be approximately $1.6 million.
FMCSA stated, “Given states’ security and operational concerns surrounding out-of-state knowledge testing, including remote delivery of the [Commercial Learner’s Permit] credential, FMCSA concludes the proposed change is not advisable at this time.”
As always, we will continue to monitor this update and provide more information as it is disseminated. |
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