January 31, 2016 BY Melody Kiella
Sleep Apnea: What Is It? Why Should You Be Concerned? And How Can You Defend Against A Claim That Your Driver's Sleep Apnea Caused The Accident?
The Greek term “apnea” literally means without breath. Obstructive sleep apnea, the more common of the two types of sleep apnea, is a syndrome characterized by sleep-disordered breathing that causes brief interruptions of breathing during sleep. Studies have linked driver fatigue resulting from sleep apnea to decreases in a driver’s reaction time, information processing, and decision making. Studies funded by the Federal Motor Carrier Safety Administration (“FMCSA”) have found that almost one-third, or 28%, of tractor trailer drivers have mild to severe sleep apnea and that 7% of accidents caused by tractor trailer drivers resulted because the driver fell asleep behind the wheel. (See A Study of Prevalence of Sleep Apnea Among Commercial Truck Drivers, Report No. DOT-RT-02-030, U.S. DOT, FMCSA (2002); see also The Large Truck Crash Causation Study, FMCSA Publication No. FMCS-RRA-07-017 (2007)).
The FMCSA has issued regulations outlining the physical qualifications for drivers of commercial motor vehicles, which regulations state that a driver is physically qualified if there is no established history or clinical diagnosis of respiratory dysfunction likely to interfere with the driver’s ability to control and operate a commercial motor vehicle safely. 49 C.F.R. § 391-41(b)(5). The federal regulations do not define “respiratory dysfunction” and do not address or refer to sleep apnea. Whether a driver is physically fit to operate a commercial motor vehicle is left to the determination of a medical examiner; however, there is confusion among medical examiners regarding the screening, diagnosis and treatment of sleep apnea in truck drivers. 49 C.F.R. § 391.43(a); see also Analysis of the FMCSA Bulletin, http://www.sleepreviewmag.com/2015/02/analysis-fmcsa-bulletin/. In January 2015, the FMCSA issued a Bulletin on obstructive sleep apnea which establishes, for the first time, that sleep apnea is among the conditions that may interfere with the ability to safely operate a commercial motor vehicle. (See FMCSA Bulletin to Medical Examiners Regarding Obstructive Sleep Apnea).
Plaintiff’s lawyers are more frequently using the terms “fatigue” and “sleep apnea” in their claims against tractor trailer drivers and are frequently seeking punitive damages against the driver and motor carrier. While there remains confusion over the actions to be taken to detect and treat sleep apnea, it is possible to successfully defend against such claims.
First, a plaintiff’s claim that your driver had an hours-of-service violation prior to the accident does not establish that your driver was fatigued or that punitive damages are warranted. In Burke v. Maassen, 904 F.2d 178 (3rd Cir. 1990), a case involving a driver who fell asleep behind the wheel, there was evidence of an hours-of-service violation and log book falsification. The court concluded that there was insufficient evidence to support an award of punitive damages because the foregoing did not establish that the driver consciously appreciated that his fatigue would lead to a fatal accident. Similarly, in Purnick v. C.R. England, Inc., 269 F.3d 851, 852-853 (7th Cir. 2001), the court held that there was insufficient evidence to support an award of punitive damage notwithstanding an hours-of-service violation and log book falsification because the foregoing did not establish that the driver consciously appreciated that his misconduct would result in injury. In contrast to Burke and Purnick, the court in Dunlap v. W.L. Logan Trucking Co., 2003 WL 1904418 (Ohio Ct. App. 2003), found that there was sufficient evidence to conclude that the driver’s fatigue caused the accident when there was evidence that the driver had knowledge that he suffered from fatigue, often slept poorly, and had previously fallen asleep behind the wheel. Id. at *5.
While neither Burke nor Purnick discuss whether an hours-of-service violation or log book falsification are sufficient to establish liability, they establish that such evidence, standing alone, is insufficient to support an award of punitive damages. Dunlap, on the other hand, held that a driver’s knowledge that he suffered from fatigue and could fall asleep behind the wheel is sufficient to support a finding of negligence.
Second, it may make sense to admit that the driver was operating within the course and scope of his employment at the time of the accident even if the driver was at fault or was in violation of federal regulations. Admitting the foregoing may prevent plaintiff’s attorney from getting evidence to the jury of the motor carrier’s alleged inadequate pre-employment screening, training of the driver, and/or monitoring of its drivers with regard to sleep disorders or fatigue. See Pace v. Nat. Union Fire Ins. Co., 2014 WL 4976773 (N.D. Ga. 2014) (“allowing claims for negligent entrustment, hiring, and retention [when the motor carrier has admitted vicarious liability] would not entitle the plaintiff to a greater recovery, but would merely serve to prejudice the employer) (citing Durben v. Am. Materials, 232 Ga. App. 750 (1998)). However, admitting the foregoing is not helpful in cases where the plaintiff has asserted a punitive damages claim. See Mastec N. Am., Inc. v. Wilson, 325 Ga. App. 863 (2014) (employer who admits vicarious liability is entitled to summary judgment on claim of negligent hiring unless punitive damages are sought). Additionally, a recent Georgia federal court decision has muddled the water with regard to whether an employer’s liability for negligent hiring or supervision is apportioned separately from that of the employee. See Little v. McClure, 2014 U.S. Dist. LEXIS 120681 (M.D. Ga. 2014) (because a jury must apportion separately the fault of each party, “an employer would be separately responsible for its degree of fault, if any, based on its independent negligence”). Thus, if the court hearing your case applies the standard in Little, then admitting that the driver was acting within the course and scope of his employment would not benefit the motor carrier.
Third, a probability that the driver suffered from sleep apnea and that such sleep apnea may have caused the accident is insufficient to establish liability. In Achey v. Crete Carrier Corp., 2009 WL 8083282, (E.D. Pa. 2009), a case involving a driver who fell asleep behind the wheel, plaintiff argued that the motor carrier was liable for punitive damages because it was aware of the driver’s sleep apnea and continued to employ the driver notwithstanding such condition. Id. at *3. The driver testified that his sleep apnea did not have any noticeable effect on his ability to drive and that he had never fallen asleep behind the wheel prior to the accident. Id. The court rejected plaintiff’s claim for punitive damages because the fact that the driver suffered from sleep apnea and had previously experienced fatigue was insufficient to establish that the driver was fatigued at the time of the accident. Id. at *4. Notably, the plaintiff in Achey did not have an expert witness to link the driver’s sleep apnea to the driver’s fatigue on the day of the incident and the court made it clear that an expert opinion may have allowed it to link the fatigue to the sleep apnea. Id. at *4. The court did not address whether an expert opinion linking fatigue to sleep apnea would have been sufficient to support an award of punitive damages.
While the court in Achey indicated that an expert opinion was probably necessary to establish a link between sleep apnea and fatigue, an expert opinion that sleep apnea may have caused the accident is insufficient. In Martinez v. CO2 Services, Inc., 12 Fed. Appx. 689 (10th Cir. 2001), a construction worker was hit when the driver lost control of the tractor trailer. Rescue personnel found the driver dead upon arrival as a result of cardiac arrest. Id at. *1. Plaintiff’s expert opined that the driver may have fallen asleep as a result of sleep apnea prior to his death. Id. at *5. The court concluded that the expert opinion regarding sleep apnea was based on assumptions that only established a possibility that the accident was caused by the driver’s sleep apnea and that such opinion was insufficient to overcome a motion for summary judgment. Id.
Lastly, requiring your driver to undergo a sleep study is not (yet) part of the trucking industry standard, and evidence that the motor carrier did not require a sleep study is insufficient to support an award of punitive damages. In Pace v. Nat. Union Fire Ins. Co., 2014 WL 4976773 (N.D. Ga. 2014), the defendant driver told a physician at a subsequent medical evaluation that he had fallen asleep behind the wheel immediately prior to the accident. Id. at *16. Plaintiff argued that the motor carrier was negligent, and that punitive damages were warranted, because the motor carrier failed to require the driver to undergo a sleep study. Id. The court found that the evidence did not support a finding that the motor carrier exercised a conscious indifference to the consequences of its decision to not require a sleep study. Id. The court further noted that a motor carrier subjecting a driver to a sleep study would be an “unusual step” that is unsupported by law, regulation, or any accepted standard in the industry. Id. at *19. The foregoing supports the position that motor carriers are not (yet) required, either by law, regulation or industry standard, to subject their drivers to a sleep study to avoid liability and/or punitive damages.
While the federal regulations do not adequately address or define the responsibility of drivers and motor carriers in diagnosing and treating sleep apnea, it is clear that more than just a claim of fatigue and a sleeping disorder are required to establish causation. It is also clear that punitive damages are only warranted if the driver or motor carrier consciously understood that allowing the driver to operate a tractor trailer would result in serious injury or death.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley