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Monday, December 18, 2017

Transit Employer Hears Alabama Jury’s Message to Do Better




On December 14, 2017, a Jefferson County, Alabama jury awarded $12 million to passengers injured in a 2015 Birmingham-Jefferson County Transit Authority (BJCTA-MAX) bus crash in Fairfield, Alabama; 10 of the 15 victims in the lawsuit were plaintiffs in the case. Of the $12 million verdict, six million was for compensatory damages and six million for punitive damages. The punitive damages will be split equally between each plaintiff. Link to full article http://www.al.com/news/birmingham/index.ssf/2017/12/victims_of_2015_max_bus_crash.html

Trial testimony was that: on Monday, February 9, 2015 the MAX driver started to slump over the steering wheel It was like he was having a seizure," the passenger witness said. Once she reached the driver's seat, the driver had fainted and the bus ran over a curb, falling 30-foot on its side into a ravine. The witness hit the floor, and upon impact the bus' wheelchair lift fell on top of her, trapping her leg underneath. The driver then fell on top of her. More than 100 rescue workers worked for two hours rescuing the driver and passengers.

Emergency crews arrived about 10 minutes after the crash, and all of the other 21 people on board were able to crawl out of the bus' windows, but the witness and the driver had to be pulled from the front of the bus. Once she arrived at the hospital, she learned the bones in her foot were so mangled, her leg was going to have to be amputated below the knee. Several of her foot bones were brought to the emergency room in a plastic bag. The witness who lost her leg was an elementary school cook

The trial testimony was that the bus driver had been involved in 14 accidents while driving a MAX bus. The bus driver, who had worked for the BJCTA since 1988, had a medical condition that caused him to faint, and the BJCTA was aware of that issue, was the trial testimony. But there was testimony that MAX had no policies or procedure in place to remove him, or other drivers who were unsafe to be on the road. Trial testimony was that the BJCTA's process involves supervisors on the scene visually evaluating employees when they arrive to work, before giving them a key card that allows them to access the bus, but those supervisors are not informed about the individual drivers' medical history or conditions though, and have no way to ensure they are taking care of their illnesses. In the drivers case, the supervisor had no way of knowing the driver had a history of fainting, nor that he had not taken his medication that day, according to trial testimony.

The lead plaintiff said the jury was most persuaded by the potential for the wreck to be prevented. "The law holds BJCTA to a higher standard than that, and I think the jury held them to a higher standard, tooThere was nothing sudden about this accident. This is the least sudden accidentIt's neglect," the trial attorney argued.

As to what the BJCTA can do to prevent another crash from happening, the attorneys argued they need to have stricter medical qualifications for their drivers. Someone who has a medical condition that causes a loss of consciousness should not be allowed to drive a bus, and should be transferred to another position within the BJCTA, and that the company leaders should familiarize themselves with their drivers' medical history, and make sure those drivers are complying with their careThe BJCTA needs to be challenged to do something... to ensure this does not happen againThe jury's message was, 'we expect better.'"

Common Sense Counsel: MAX as a Federal Transit Authority (FTA) covered employer that is required to have their FTA covered employees submit to a DOT certified medical examiner examination.  The Driver is also covered by the fitness for duty standards set forth in 49 CFR Part 391 and the regulations specifically empower the FTA employer to make the final fitness for duty decision for news and current drivers. FTA employers should seriously consider taking the following steps: 1) take the high ground by requiring a fitness for exam when you first become aware that an driver has a medical condition that raises a safety concern, or taking an impairing effect medication; 2) select an outside medical advisor who is a DOT certified medical examiner, MRO and occupational physician to guide your DOT fitness for duty process; and 3)  when making a conditional job offer to a DOT regulated driver, require the completion of a post offer medical questionnaire to be able to prove you are trying to do better. As a reminder, paste on your wall the jury admonition to MAX WE EXPECT BETTER.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, and can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com