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DOT Proposes Oral Fluid Testing For Controlled Substances

Source: Gallagher Sharp LLP 

On February 28, 2022, The United States Department of Transportation (DOT) published a proposed rule for new drug testing guidelines, to include the use of oral fluid samples as an alternative to urine testing for controlled substances. The proposed rule does not affect alcohol testing, which must be conducted by blood or breath samples.  The proposed rule covers all testing situations, generally described as Pre-Employment, Random, Reasonable Suspicion, and Post Accident testing.
 
If accepted, the Rule will revise part 40 of title 49 of the Code of Federal Regulations, “Procedures for Transportation Workplace Drug and Alcohol Testing Programs.”  The comment period for this proposal ends March 30, 2022.
 
According to the DOT announcement in the Federal Register, which can be viewed in its entirety at federalregister.gov/d/2022-02364, “[t]his will give employers a choice that will help combat employee cheating on urine drug tests and provide a more economical, less intrusive means of achieving the safety goals of the program.”  Unfortunately some employees have figured out how to use fake urine and prostheses, both readily available.
 
Notably, the Department is not proposing the elimination of urine drug testing, but only that oral fluid testing be offered as an alternative.  “Each specimen type offers different benefits to assist employers in detecting and deterring illegal drug use, and no single specimen type is perfect for every situation.”  Further, according to the proposal, the U.S. Department of Health and Human Services (“HHS”) has determined that proper oral fluid testing provides “the same scientific and forensic supportability of drug test results as the Mandatory Guidelines for Federal Workplace Drug Testing Programs using urine.”
 
The proposal is in large part purposed with seeking a balance between the safety concerns of trucking companies, the motoring public and safety advocates on the one hand, and the driver’s right to privacy, which may be invaded by a company’s need to directly observe urine sample collection to ensure against cheating, on the other.  The proposal expresses a concern that urine collections “are potentially invasive searches and seizures of private citizens, subject to scrutiny under the Fourth Amendment of the United States Constitution.”  The DOT has sought to protect individual rights by ensuring visual and aural privacy, except for “cause”, such as “suspicious activity at the collection site or as determined by the laboratory testing of a specimen.”
 
The proposal describes additional policy considerations.  Oral fluid testing is generally more cost effective than urine testing.  The collection of oral fluid may be conducted at the scene of an accident.  The proposal notes that it also provides windows of detection distinct from urine sampling.  Oral fluids generally allow for effective detection of more recent drug use, while urine, which allows for more delayed detection, is likely more appropriately suited to detect intermittent drug use through pre-employment, random, return-to-duty, and follow-up testing.
 
The proposed rule does not address hair testing, which is used by some employers as a condition of employment and is generally viewed as far more accurate than other testing methods.  It is not mandatory, however, and currently is not permitted as satisfying any testing prescribed by the FMCSRs.
 
The addition of oral fluid testing is a major step forward in that it permits flexibility and convenience. It is expected that the trucking industry will welcome this rule if it goes into effect. Indeed, the American Trucking Associations said, “We are elated that DOT is proposing the inclusion of oral fluids as an approved testing method for DOT purposes, ATA has long advocated for its inclusion, and the notice today is another step closer in getting it done.”
 
As always, we will continue to monitor this update and provide additional information as it is disseminated.

DOT Proposes Oral Fluid Testing For 
Controlled Substances

 

 
 

New Legislation Could Be A Game Changer For The Trucking Industry

Source: Gallagher Sharp LLP 

In what many hope will be a new trend around the country, Iowa’s state legislature recently proposed three significant bills that would curb the unfortunate trend of “nuclear” verdicts that have been plaguing many industries and sectors – none more so than the trucking industry.

Iowa’s state Senate recently proposed a bill that would cap noneconomic damages awards at $1,000,000 for personal injury and death claims specifically against “commercial motor vehicle owner and operators,” while Iowa’s state House of Representatives separately proposed a bill that would cap noneconomic damages awards at $750,000 for any civil action involving personal injury or death “regardless of the number of plaintiffs, derivative claims, theories of liability, or defendants in the civil action.”

Notably, Iowa’s proposed laws provide no exceptions to the noneconomic damages caps, which is noteworthy as many states with laws capping noneconomic damages typically include exceptions. For instance, Ohio’s noneconomic damages caps do not apply if a plaintiff suffers from a “permanent and substantial physical deformity,” “loss of use of a limb,” “loss of a bodily organ system,” “a permanent physical functional injury that permanently prevents the injured party from being able to independently care for himself or herself and perform life-sustaining activities,” or the claim involves a wrongful death. These exceptions, like those around the country, leave the trucking industry and their insurers susceptible to “nuclear” verdicts, whereas Iowa’s proposed bills—which are supported by Iowa Governor Kim Reynolds and the Iowa Motor Truck Association—effectively thwart the possibility of a runaway verdict (unless punitive damages are alleged and justified).

Iowa’s Senate has also proposed a bill that would render all litigation funding contracts void and unenforceable. As the trucking industry is acutely aware, litigation funding has resulted in plaintiffs’ attorneys and their clients to more aggressively prosecuting their claims since they are funded by outside sources and treated as an investment—instead of what they should be—a means for their clients to receive a fair and equitable verdict or settlement.  Critics of third-party litigation funding have long recognized that treating claims like investments leads to litigation abuses and slows the settlement of valid claims.

It is clear Iowa’s legislature has recognized the abuses trucking companies and their insurers have been long facing and are taking the lead in stopping the unfortunate tide of inequitable, “nuclear” verdicts. While the above bills have not yet been signed into law, we hope this will indeed occur and that more states around the country will follow in Iowa’s footsteps.

As always, we will continue tracking Iowa’s bills, and hopefully others proposed around the country, and provide additional information as it is disseminated.
 

FMCSA Withdraws Proposals Impacting Efficiency of CDL Tests for Aspiring Truck Drivers

Source: Gallagher Sharp LLP

On March 9, 2022, the Federal Motor Carrier Safety Administration (“FMCSA”) withdrew two rule-making proposals that would have streamlined the testing process for driver applicants seeking a Commercial Driver’s License (CDL).

Under current regulations, states cannot allow a third-party skills test examiner to administer the CDL skills test to applicants with whom the examiner has also provided skills training. But a proposal published by the FMCSA in 2019 would have lifted this restriction on states. The proposed rule change was to alleviate testing delays, lower licensing costs, and reduce inconvenience for CDL applicants and third-party examiners, without hindering safety.

Following the proposal’s publication, FMCSA received 95 public comments from a mix of individuals, corporations, State agencies, and industry trade organizations.

Opponents of the change expressed concerns over fraud, conflict of interest, and examiner bias. Specifically, the concern was that “allowing the same individual to train and test the applicant could undermine the integrity of the skills testing process, thereby negatively impacting safety.” This concern was shared by all five States who commented (Virginia, Oregon, Washington, Minnesota, and Missouri).

Supporters of the proposal, however, believe safety will not be compromised. They point to extensive measures already in place by state agencies to detect fraud. They argue the proposal would increase efficiency and flexibility of the skills testing process and reduce delays.

FMCSA was persuaded by the proposal’s opponents, stating concern over the integrity of the CDL skills testing process and negatively impacting highway safety. As such, FMCSA has withdrawn the skills testing proposal.

FMCSA also withdrew a second proposal. This proposal would have allowed a state to administer general and specialized knowledge tests to an out-of-state applicant, and require the applicant’s state of domicile to accept knowledge test results from the testing state. The rule change was intended to promote efficiency and flexibility in CDL issuance without adversely effecting safety.

Proponents suggest that, in addition to promoting efficiency, the proposal would enhance access for out-of-state driver applicants. In essence, it would remove the burden on applicants who must return to their State of domicile to take the knowledge test after training in another State. Thus, a more efficient testing process encourages more drivers to apply for a CDL, and means “more opportunities to fill the gap between the supply and demand of commercially-licensed drivers.”

All states commenting on the proposal said it would require changes to current procedures for processing knowledge test results. For example, some states would have to keep an applicant’s record “open” in pending status while it waits to receive the applicant’s out-of-state knowledge test results. Other states were concerned about costs. Pennsylvania’s Department of Transportation estimated costs of approximately $525,000 to accept knowledge test results from other states. Further, costs to begin offering knowledge testing to out-of-state driver applicants would be approximately $1.6 million.

FMCSA stated, “Given states’ security and operational concerns surrounding out-of-state knowledge testing, including remote delivery of the [Commercial Learner’s Permit] credential, FMCSA concludes the proposed change is not advisable at this time.”

As always, we will continue to monitor this update and provide more information as it is disseminated.
 

Forensic Investigation of Battery Failures

Source: Brad Davis, PE, Assistant Technical Director Electrical/Mechanical, Envista Forensics

With the ever-increasing use of batteries and battery-powered devices, it is becoming inevitable that a fire area of origin will include some sort of battery. The question then becomes, did the battery or battery powered device cause the fire, and how do forensic investigators approach these fires where a battery is involved? In common situations like this, there are specific steps and approaches that assist investigators in the determination of whether batteries were involved in the ignition of a fire.

The Steps to a Successful Investigation

Step 1: Determining the Correct Area of Origin

Ensuring the fire area of origin is correct is the first key component in a fire investigation and requires the involvement of a knowledgeable and experienced fire investigator. A crucial component of this step is an accurate interview of the insured and insured parties in the space for additional information that will help in the examination. This would need to include the identification of the fire’s area of origin, if known, as well as any information the insured may have on the items in the area, modifications to those items, changes in operation, and their last known condition. This could include receipts, photographs of the items, and documents on the make and model or serial number.

The early identification of all electronic components and manufactures ensures the proper parties can be place on notice. If the area of origin is incorrect or items are misidentified, pieces of evidence critical to the determination of the cause of fire may be missed.

Step 2: Collecting Sufficient Evidence

During a fire investigation, it is important to ensure that a sufficient amount of evidence is collected. Often times, when Lithium-Ion cells vent due to overcharging or overheating of the battery, they can explode and expel their contents a surprisingly long distance. If the area of origin is constrained and collection is too tight, those contents, and the evidence needed to determine if the battery cell was the cause of the fire or just a victim of a fire started elsewhere, may be missed.

The other issue is those ejected contents can sometimes appear to be the origin of the fire since the contents are hot and can ignite materials in the area that they land. In some instances, there are multiple apparent areas of origin and can be areas even over 12-feet from the battery powered device. At that point, interviews with personnel in the area at the initiation of the event are crucial to the identification of the device that caused the fire.

Step 3: Collecting the Right Evidence

When collecting evidence, investigators must be sure they are collecting the correct items. One suitable method is to grid and collect all debris in a preselected area. This will lead to a higher degree of recovery of the ejected materials and cell components but will also lead to the collection, moving, and sifting of large amounts of debris. In some cases, debris is sifted through on scene, which allows for less material and debris to be collected but generates risk of leaving small critical pieces behind.

The Make Up of Battery Cells

Now that the evidence is collected, sifted, and the battery pack and cell components are recovered and identified, how do those pieces of evidence indicate whether the battery pack, battery powered device, or cell caused the fire? To better understand and answer this common question forensic investigators have to ask themselves, let’s talk about cell construction, chemistry, and what happens when these components start operating outside of their desired design.

Battery Cell

The basic component of a battery pack is a cell – the assembly of foil, electrodes, separators, electrolytes, and containers that allows the storage of electrical energy in a chemical form. Each battery chemistry is slightly different, and the individual components may be of a different chemical composition, but each cell will have these components.

In some cases, such as with Lithium-Polymer (Li-Po), the battery cells are a subset of a more general family of Lithium-Ion. Li-Po batteries will have a polymer separator and often have a square, rectangular, or prismatic case construction, rather than a metal canister of the typical Lithium-Ion cells. A very common Lithium-Ion cell is referred to as an 18650, which refers to a cylindrical canister with a diameter of 18mm and a length of 65mm. This metal canister will have some added protective devices built into the top of the cylindrical canister.

Battery Pack

An assembly of cells is referred to as a battery pack. The common battery chemistry that forensic engineers investigate, Lithium-Ion, requires the cells to operate in a very tight set of parameters. The voltage cannot be too high or too low, the current cannot be too great, and the temperature must be controlled. All of these parameters are critical, as battery packs or cells can suffer from a thermal runaway event and start a fire if they start operating outside their safe parameters. In order to prevent this, battery management systems are put in place to ensure that a cell or collection of cells operate in their design parameters.

Battery management systems need to be designed such that all the cells are within the desired parameters. Some manufacturers put battery management systems within the battery pack, some within the device using power from the battery, some within the device charging the battery, and some in both the battery and the device. 

When shortcuts are made within a system, the state of individual cells cannot be accurately determined. Thus, it is important to determine if the failure occurred within the cell, the management system on the battery, or the management system in the device. This information is critical because it is possible that all of these components are made by different manufacturers or suppliers and the appropriate parties should be put on notice. For example, a major name brand notebook computer may have an off-brand battery purchased by the insured. This information should be known before the destructive examination.

In many cases, a battery failure is a brief event and by itself won’t cause a fire to spread. There needs to be a fuel nearby that can be ignited by the temperatures and duration of the heat from a battery failure. This nearby fuel can be almost anything and can be identified through good analysis, good interviews of the insured, and chemical analysis. In some cases, the fire’s fuel can be relatively obvious, such as a couch, but in others, a material is suspected but not necessarily known. Nearby materials suspected of being fuel to the fire can be identified using methods like FTIR. Once the material is identified, the properties of that material can be determined whether is it a sufficient fuel source to have caused the fire to spread.
 

Nuclear Verdicts: Leveraging Data-Driven Insights and Transparent Technology to Mitigate Risks

Source: Litify

Nuclear Verdicts, cases in which the jury rewards a significantly disproportionate amount to what was expected, have seen an exponential increase over the last few years thanks to plaintiffs' counsel implementation of tactics like reptile theory and social inflation. How can defense counsel fight back? What strategies and approaches can be taken to combat the rise of nuclear verdicts? 

At LitiQuest Insurance hosted by Litify, Themis's own Howard Klar joined like-minded professionals from Acceptance Insurance, Tyson & Mendes, and National General Insurance/ ClaimsTech to discuss a more analytical path forward for defense counsel. 

Catch the full session here, and check out the LitiQuest Insurance website for more engaging content from the summit. 
 
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