Sleep Apnea: A Primer for Defense Lawyers in the Trucking Industry
In an article published in the December issue of The Transportation Lawyer, Rick Hill and Shannon Barrow provide insight into the history behind the Federal Motor Carrier Safety Administration’s (FMCSA) decision to abandon its pursuit of a regulation requiring trucking companies to test drivers and driver candidates for obstructive sleep apnea (OSA); the current regulatory status regarding OSA testing; and the trucking industry’s general approach to testing. They also discuss litigation tactics used by plaintiffs’ lawyers against the trucking industry for failure to test for OSA.
“The FMCSA has never issued a requirement that trucking companies test all drivers and driver candidates for OSA,” said Hill and Barrow, adding that the industry has historically relied on the certified medical examiner to determine whether a driver should be evaluated for OSA and whether the diagnosis should disqualify him or her from driving.
Motor carriers are not prohibited by law from testing drivers for OSA, which allows plaintiffs’ attorneys to assert that a motor carrier’s decision not to require OSA testing constitutes negligent hiring, negligent retention and / or negligent supervision. “Plaintiffs’ attorneys are increasing their efforts to hire medical experts to testify that the driver suffered from undiagnosed OSA at the time of the incident, and that this condition should have been recognized by either the employer or the examining physician,” say Hill and Barrow.
Article reprinted with permission from The Transportation Lawyer, “Sleep Apnea: A Primer for Defense Lawyers in the Trucking Industry,” by Rick Hill and Shannon Barrow, December 2018. The Transportation Lawyer, Vol. 20, No. 3, Pgs. 32 - 35. Transportation Lawyers Association. Please visit translaw.org.