NOTE TO TRUCK DRIVERS:
Our law practice focuses on representation of people who are seriously injured, and families of those killed, in crashes with large commercial vehicles. While those are often truck drivers, we do not handle truckers’ employment law matters. For legal advice on issues with your employer or truck driving schools, see Truckers Justice Center. 

One day in Kansas City, I took the deposition testimony through an interpreter of a Bosnian immigrant truck driver. He was driving with a Florida Commercial Driver’s License (CDL) when he crashed an 18-wheeler into my client on a Georgia interstate highway.

I asked where he got his truck driver training. He said some Russian guy in North Carolina, whose name he could not recall, trained him. How did he study the Commercial Drivers License manual, published in English?   He said his 10-year-old daughter read it and translated it for him. She may have been a precocious child, but really? I didn’t think then to dig into how he was able to take and pass the Florida CDL tests.

For several years, a high percentage of our serious truck crash cases have involved immigrant truck drivers who have to testify through interpreters. They drive the highways of America in little bubbles of their home countries, talking by cell phone as they drive with people in their home countries, listening to music in a native dialect, and never really interacting with America language or culture.

When I look back over the past several years, all the truck drivers with inadequate English whom I have encountered in truck crash cases had obtained their CDL’s in either Florida or New Jersey. Perhaps that is just a coincidence. Perhaps.

I deeply respect the immigrant work ethic that leads many newcomers to this country to work hard in jobs that it is hard to find enough Americans to do. Occasionally I have represented hard-working immigrant truckers, visited in their homes and met their wives and children.  But language proficiency has real implications for safety. That is why interstate commercial truck drivers are required to be able to read and speak English well enough to read signs, make entries on records and interact with the public and police. (49 C.F.R Section 391.11)

Now FBI and Florida law enforcement officials have charged four people, including three Russian immigrants, with operating a fraudulent business to provide CDL’s to unqualified immigrants.

Ellariy Medvednik,, Natalia Dontsova, Adrian Salari, and Clarence Davis  have all been indicted for conspiracy to aid and abet the unlawful production of Florida driver licenses and commercial driver licenses. According to the indictment, they were associated with Larex, Inc., a commercial truck driving school that marketed itself online to Russian speakers.

Russian speaking people from elsewhere seeking Florida CDLs would contact Medvednik to arrange for Larex’s services at a price of $2,000 to $5,000. It only took a few days to get a license through the school. A typical truck-driving school lasts three or four weeks and costs at least $6,000.

Many of the CDL applicants were Russian-speaking immigrants living in New York, Illinois, California and Virginia. These  would travel to Florida to obtain their CDLs with the intention of returning to those states immediately afterward.

However, to obtain a Florida CDL, an individual must first possess a Florida driver license. Florida restricts its driver licenses and CDLs to Florida residents. The Russian defendants would provide false documentation that the applicants resided with them in Florida, so that the applicants could obtain Florida driver licenses.

They would then proceed to fraudulently obtain a Florida CDL.  Dontsova, using covert communication equipment, provided answers to the students during the written portion of the CDL exam, leading to issuance of a CDL permit.

Second, Larex hired Davis, a third-party tester authorized by the State of Florida, to administer vehicle inspection tests, basic control skills tests, and road tests. According to the US Attorney, Davis routinely passed and certified students who should have failed based on their test performance. Based on Davis’s certifications, these Russian applicants were able to obtain Florida CDLs. At least 600 people have been identified as utilizing Larex’s services with Davis as the third-party tester to obtain a CDL.

The FBI started investigating the school in June 2013 after the Orange County Tax Collector’s Office noticed that many people had applied for a CDL using the same home address. This led to a sting investigation in which a Russian-speaking informant posed as an applicant and went through the whole process, and ultimately a federal search warrant for the records at Larex.

The implication for public safety across the United States is that hundreds of unqualified truck drivers, who are not sufficiently proficient in English to qualify for a CDL, and who could not pass either the written or the road tests, were authorized to drive 80,000 tractor trailers on every highway in the United States. Most probably were hired for small, fly-by-night trucking companies that to turn a blind eye to  driver qualifications and compliance with safety rules.

I hope they do not run into my future clients on the road.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of the Institute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy. Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

When we share the road with semi tractor trailer drivers who pilot 80,000 pound big rigs on highways across the country, we hope they are well-qualified and safety conscious. Most are but some are not.

Among the many things I examine as a trucking accident litigation trial attorney in Georgia are the qualifications, experience and background of the truck driver.

Commercial truck and bus drivers are required to have knowledge of and comply with all government trucking safety regulations and company policies. Motor carriers operating truck and bus lines are required to make sure drivers are adequately trained and monitor drivers’ performance.

Entry level truck drivers must obtain a Commercial Driver’s License, usually referred to as a CDL. That requires training in driver qualifications, hours of service, safe operations and whistle blower protection. The CDL manuals for all states in the US are materially identical. Drivers are required to know and understand pertinent provisions of the Federal Motor Carrier Safety Regulations, so the CDL manual explains the regs in simpler, graphic terms.

Drivers of specialized commercial vehicles need additional training specific to those types of vehicles. Trade organizations and safety materials publishing companies produce training videos and manuals for a wide variety of specialized commercial vehicles such as concrete mixer trucks, crane trucks, etc.

These CDL manuals and specialized training materials are extremely useful in cross examining truck drivers after they crash.

In applying for a truck driving job, a truck driver must provide his or her CDL, employment history, driving records, record of convictions and violations, medical history, drug and alcohol history, and physical exam.

Trucking companies are required to conduct a road test of the driver, testing knowledge, skills, experience and training, using the same type vehicle the driver is expected to operate. The test must be conducted by an employee who is qualified to do so.

When representing the victims of a catastrophic semi tractor trailer crash, all this fair game for thorough and sifting examination. Any lawyer who thinks a commercial truck crash is just a bigger car wreck will be clueless and unprepared, vastly reducing the prospects for success in representing his client. That is why our years of experience in trucking litigation matters.

Source: Federal Motor Carrier Safety Regulations; Truck Accident Litigation (3d edition)

Ken Shigley is a former president of the State Bar of Georgia, which includes all lawyers licensed to practice in Georgia. His own law practice is specialized in representation of plaintiffs in cases of serious personal injury and wrongful death, especially those occurring in commercial truck and bus accidents.

Now, after years of controversy, the Federal Motor Carrier Safety Administration is proposing a new rule requiring Electronic On-Board Recorders (EOBR).

A proposed rule published published Feb. 1 that would require motor carriers that are required to maintain Records of Duty Status for Hours of Service (HOS) recordkeeping would have to use EOBRs to monitor their drivers’ compliance.

FMCSA’s proposal includes supporting documents these carriers would still be required to obtain and keep, as required by section 113(a) of the Hazardous Materials Transportation Authorization Act, but it would remove requirements to retain supporting documents to verify driving time. It would require all carriers to systematically monitor their drivers’ compliance with HOS requirements, with three years from the effective date of the final rule to comply.

The agency is accepting comments until April 4, 2011. FMCSA had issued a rule on April 5, 2010, that mandated EOBR use by June 4, 2012, by motor carriers found during a compliance review to have a 10 percent violation rate for any HOS regulation. This new rule expands that requirement, with three possible options:

Option 1 would require EOBRs for all drivers required to use paper logs.

Option 2 expands Option 1 to include all passenger-carrying commercial motor vehicles subject to the s and Federal Motor Carrier Safety Regulations shipments of bulk hazardous material, regardless whether the drivers use paper logs or are exempted from doing so.

Option 3 would include all commercial motor vehicle operations subject to the hours of service requirements.

While this is generally a step in the right direction, I’m cynical enough to note that even electronic systems are potentially subject to manipulation and cheating, though the human overrides required to cheat will require more sophistication than merely lying on a paper log, often referred to as a “comic book.” If maintenance of supporting documentation is no longer required, it will become vastly more difficult to check the accuracy of electronic records that may be subject to sophisticated cheating.

Those of us who inquire into the truth underlying hours of service reports will also have to become more sophisticated about discovery of electronically stored information in the trucking industry. That will likely require more experts and more expense.

Ken Shigley is an Atlanta, Georgia, trial attorney. He has been designated a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend), and rated “AV Preeminent” by Martindale-Hubbell Legal Directory. He is author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010), a Certified Civil Trial Attorney of the National Board of Trial Advocacy, and currently president-elect of the 42,000 member State Bar of Georgia. He has extensive experience in litigation and trial of cases involving serious personal injury, wrongful death, trucking accidents, automobile accidents, products liability, premises liability, and insurance. Mr. Shigley is a graduate of Furman University and Emory University Law School. This blog post is subject to our ethical disclaimer.

Then when we try to get driver logs, trip receipts, inspection and maintenance records, etc., in discovery, they respond that they no longer exist.

Sometimes it’s amazing that a company would have been so bold as to discard or destroy those records when they knew there was an accident with injury. If the records were favorable, one might suppose they would have kept them for use in their defense.

The duty to preserve evidence “arises not only during litigation but also extends to the period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir.2001). Therefore, once a party reasonably anticipates litigation, it has a duty to suspend any routine document purging system that might be in effect and to put in place a litigation hold to ensure the preservation of relevant documents-failure to do so constitutes spoliation. Lewy v. Remington Arms Co., Inc., 836 F.2d 1104, 1112 (8th Cir.1988); Thompson v. United States Dep’t of Hous. & Urban Dev., 219 F.R.D. 93, 101 (D.Md.2003).

And, certainly, there is a duty not to initiate a document destruction procedure if the party reasonably anticipates litigation. Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264 (E.D.Va.,2004).

Ken Shigley, of the Shigley Law Firm, LLC, in Atlanta, Georgia, served as chair of the Southeastern Motor Carrier Litigation Institute, is actively involved as a seminar speaker for the Interstate Trucking Litigation Group of the American Association for Justice, and is on the National Advisory Board and serves as a seminar speaker for the Association of Interstate Trucking Lawyers of America. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he is also a Master of the Lamar Inn of Court at Emory Law School, and Secretary of the 39,000 member State Bar of Georgia.