Pertinent Case Law
In a case involving a challenge to the FMCSA regulations governing assignment of safety fitness ratings of motor carriers, the Court of Appeals for the District of Columbia held that violation of regulations pertaining to alcohol use, and by implication controlled substance use, were properly designated as “acute” by the Highway Administration. Am. Trucking Assoc. v. U.S. DOT, 166 F.3d 374, 334 U.S. App. D.C. 246 (1999). The court recognized the agency’s distinction between such “acute” violations, which involve “noncompliance which is so severe as to require immediate corrective actions by a motor carrier regardless of the overall safety posture of the motor carrier” and “critical” violations, which are those which “noncompliance relates to management and/or operational controls.” ATA at 381. The court noted, “An example [of an acute violation] is 49 C.F.R. 382.201 which prohibits knowing use of a driver with a blood alcohol concentration of .04% or greater.” Id. This distinction highlights the significance of a motor carrier’s breach of these regulations, and may be helpful in persuading a court to charge the jury, even where causation may be difficult to show by direct evidence. Certainly the distinction is helpful in supporting a claim for punitive damages.
A low level positive finding of marijuana metabolites was insufficient to survive defendant’s summary judgment motion on plaintiff’s claims for breach of 382.213 by the motor carrier driver. Chubb v. Ryder Integrated Logistics, Inc., 2009 WL 2968434 (D. Kan Sept. 10, 2009). A number of factors were referenced by the court in excluding the evidence and granting summary judgment on the claim. First, defendant’s expert (plaintiff had no expert) opined that that the levels were insufficient to cause intoxication. The driver, testified he last smoked a number of days before the accident- and certainly not while driving. The levels detected were below certain cut-off points established in the regulations pertaining to workplace drug and alcohol testing programs. See 49 C.F.R. 40.87. The police at the scene saw no signs of impairment, and the court noted that the regulations “do not prohibit its [marijuana’s] off-duty use.”
The court observed that breach of a regulation in the abstract, without a showing of causation is inadmissible, while holding: “[T]he purpose of the federal regulations is to ‘establish programs designed to help prevent accidents and injuries resulting from the misuse of alcohol or use of controlled substances by drivers of commercial motor vehicles’”. Id. Obviously, a more focused effort to establish causation is necessary than that shown, especially now that prescribing of medical marijuana is legal in a number of states.
A significant ruling was made by Judge Thrash in the Northern District Court of Georgia, when he held a positive post-accident test for marijuana presented a jury issue on punitive damages. Gayton V. Trux Transportation, Inc., 2006 WL 3266488 (N.D. Ga. Nov. 9, 2006). Finding that a jury question existed on whether the CMV driver was impaired, the court held that punitive damages were likewise a jury question. The court noted authority from other states excluding evidence of a positive marijuana test where impairment was not established. However, since the question of impairment was not susceptible to summary judgment, the issue of “something more than negligence” sufficient to support a claim for punitive damages was one for the jury.
Issues involving drug use and expert testimony were examined in some detail, in the context of both a Daubert challenge to a medical opinion and trucking industry standards expert testimony in Frederick v. Swift Transportation, Inc., 591 F. Supp. 2d 1149 (D. Kan 2008) and Frederick v. Swift Transportation, Inc., 591 F. Supp. 2d 1158 (D. Kan 2008). In the earlier opinion, plaintiff’s expert survived a Daubert challenge to testimony regarding impairment caused by methamphetamines, detected in Swift’s driver’s urine in a post accident test. There, unlike Chubb, the plaintiff produced an expert who opined the driver was impaired. His opinion was challenged by the defendant’s expert, a situation which the court identified as simply a battle of the experts, for the jury to sort out. However, the case offers an excellent analysis of the strictures imposed by Daubert on experts expected to testify about drug use, and should be reviewed in preparing an expert for deposition or responding to a Daubert motion. The second appearance of Frederick addresses a challenge to testimony by a self-professed “truck industry expert.” Notably, the court held the expert would be permitted to testify regarding a “presumption of impairment” recognized by the trucking industry when any controlled substance is detected in the blood or urine of a driver. Frederick, 591 F. Supp. 2d at 1160.