This article, authored by Jerry Sallings and Quinten Whiteside, appeared in the December 2021 issue of For the Defense, a publication of DRI.
A truck driver plaintiff offers fertile ground for defense counsel to plow. Recognizing those opportunities also helps defense counsel to avoid problems with the drivers you represent.
Over the last several years, we have defended several cases against commercial motor carriers in which the plaintiff was a truck driver who was operating a commercial motor vehicle in the accident. The genesis of this article comes from successes in those cases through the application of the Federal Motor Carrier Safety Regulations (FMCSRs) and its driver qualification requirements. Numerous FMCSRs governing the required conduct of drivers will come to bear in almost all trucking cases (hours of service logs, Driver Vehicle Inspection Reports (DVIRs,) etc.). This article discusses only driver qualifications.
Questioning the qualifications of the adverse driver under the FMCSRs raises important issues for liability. Those same questions can be critical on the issue of damages, such as claims for loss of earning capacity. In addition, as defense counsel you will apply knowledge of the FMCSRs in defending commercial carriers and their drivers from negligent hiring, training, retention, supervision, and entrustment claims. Plaintiffs’ counsel will most assuredly examine your driver for compliance with these same regulations. This article will discuss these driver qualification regulations and how they factor into the defense of these claims.
The minimum qualifications for commercial motor vehicle drivers are set out, for the most part, in 49 C.F.R. §391.1 through §391.15. As for the trucking companies, under 49 C.F.R. §391.51 (2021), the Federal Motor Carrier Safety Administration (FMCSA) requires trucking companies to maintain records for each of their drivers that show that they are qualified
These required records include: (1) the driver’s employment application, see id. §391.21; (2) a copy of the driver’s driving record, see id. §391.23(a)(1); (3) the driver’s road test certificate, see §391.31(e), or a copy of the driver’s CDL, see id. §391.33; (4) an annually updated copy of the driver’s driving record, see id. §391.25(a); (5) the name and date of the individual who performed the annual review of the driving record, see id. §391.25(c)(2); (6) an annually updated, driver-furnished list of the driver’s traffic violations, see id. §391.27; (7) the medical examiner’s certificate, see id. §391.43(g), including any variances; (8) a Skill Performance Evaluation Certificate for drivers who have lost or impaired limbs, see id. §391.49; and (9) verification that a Certified Medical Examiner examined the driver, see id. §391.23(m)(1). 49 C.F.R. §391.51(b) (2021).
Compliance or non-compliance with many of these requirements is readily apparent after even a cursory review of the driver qualification file. For example, either the application is in the file, or it is not. The same is true for the road test, copy of the CDL, and driving record. While there is always the possibility of fraud—which you cannot overlook—other requirements will reveal problems only after closer study.
The physical qualifications for drivers set out in 49 C.F.R. §391.41(b) (2021) address a number of conditions. Individuals are not qualified if they are missing a foot, leg, hand, or arm, or if they have an impairment of a hand, finger, arm, foot, or leg unless they pass a skill performance evaluation (discussed below). §391.41(b)(1)–(2). A diagnosis of insulin-dependent diabetes is also a disqualifier. §391.41(b)(3). Although individuals with diabetes can qualify for an exemption, they must meet the qualifications and control their diabetes with insulin without complications that would impair the individual’s ability to be a driver. §391.46. Individuals with certain heart, respiratory, high blood pressure, muscular, epileptic, or mental disorders are also disqualified. §391.41(b)(4)-(9).
The qualifications also require testing of certain abilities. Drivers must pass vision and hearing tests. §391.41(b)(10)-(11). Drivers who fail the vision test may qualify for an exemption. Potential drivers may apply for the exemption; however, they must be qualified under all the other physical standards in 49 CFR §391.41.
The qualifications also address substance abuse issues. Drivers must not use illegal drugs or be currently diagnosed with alcoholism. §391.41(12)–(13). In a recent case in Georgia, the truck driver conceded to taking Norco (hydrocodone) and Sinemet, a drug prescribed for his tremor disorder, before the accident. Herring v. Berkshire Hathaway Homestate Ins. Co., 1:18-CV-4711-WMR, 2020 WL 6135654, at *2 (N.D. Ga. Sept. 24, 2020). The court held that the truck driver was under the influence of a narcotic drug without required medical advice and that the defendants entrusted him with their vehicle even though they knew about it. Id. at *5.
The medical examination helps scrutinize drivers’ qualifications. The FMCSRs include a specific medical form that medical examiners must utilize in conducting a DOT physical. See MCSA-5875 §391.43 This form consists of a “Driver Health History” questionnaire that drivers must fill out covering thirty-two separate health issues. If drivers answer any of these questions affirmatively, they must provide further details. Once completed, drivers must sign and date a certification that the answers are “accurate and complete.” The certification also states: “I understand that inaccurate, false or misleading information may invalidate the examination and my Medical Examiner’s Certificate, that submission of fraudulent or intentionally false information is a violation of 49 CFR 390.35, and that submission of fraudulent or intentionally false information may subject me to civil or criminal penalties under 49 CFR 390.37 and 49 CFR 386.”
Typically, a medical certificate is valid for two years, but for a variety of reasons, the issuing doctor may issue—or may be required to issue—a certificate for a shorter period. Id. at 10. For example, a doctor should only certify an individual with high blood pressure between 140/90–159/99 for up to one year. Id. at 68. A doctor may choose to certify an individual with high blood pressure between 160/100–179/109 for three months. Id. at 70.
Drivers must renew the exemptions for diabetes and vision more frequently than the medical certificate. Notably, the medical examiner is not the one who issues exemptions. Dep’t of Transp., Fed. Motor Carrier Safety Admin. (FMCSA) Med. Exam’r Handbook 14 (2018). The medical examiner merely determines whether the driver is otherwise qualified. Id. An ophthalmologist or an optometrist must annually examine an individual with a vision exemption. Id. at 217. An individual with a diabetes exemption must provide quarterly evaluations to the individual’s endocrinologist. Id. at 218.
When determining whether an individual with mental disorders is qualified to be a professional driver, the medical examiner should consider things such as whether the individual has good judgment, impulse control, and problem-solving skills. Id. at 188. Thus, merely having a mental disorder does not automatically disqualify an individual. If, however, an individual is on medication that is likely to interfere with his or her driving ability, the medical examiner should not certify the individual. Id. at 189.
Answers to questions during these examinations might provide important evidence. When the driver qualifications you are reviewing relate to a plaintiff truck driver, you should have most of the driver’s medical records dating back years. Questions on the Form MCSA-5875 include: “Do you have or have you ever had: Dizziness, headaches, numbness, tingling, or memory loss; Neck or back problems; Bone, muscle, joint, or nerve problems; Have you ever had a sleep test; Have you ever spent the night in a hospital; Have you ever used or do you now use tobacco; Do you currently drink alcohol.”
These questions, and others on the form, are cast broadly enough that a search through the plaintiff’s medical records will often reveal discrepancies. Any previous diagnosis of the driver, or medical complaint from the driver, that is inconsistent with his/her answers on the MCSA-5875 are helpful, not only in defending against his/her present injury claims but also in questioning his/her credibility. In fact, because of the signed certification, any significant discrepancies between the driver’s actual medical condition and the information reported in the MCSA-5875 could potentially nullify the medical clearance.
An additional common issue under the medical form involves high blood pressure. If drivers have a blood pressure reading of 140/90 or greater then they may be certified to drive, but only for one year instead of the normal two-year certification period. See Appendix A to Part 391—Medical Advisory Criteria, Section F. Hypertension: 391.41(b)(6). The “Driver Health History” includes questions about blood pressure as well. Most physicians record blood pressure even on routine visits. Drivers’ medical records could lead to helpful information on this issue. Specifically, if medical records noted a driver to have registered blood pressure levels at or above the regulatory cutoff that were never reported, the discrepancy presents at least an opportunity to question the credibility of the driver.
While the focus above relates to instances where the plaintiff is a truck driver, the importance of examining these issues is not limited strictly to that scenario. Where the qualifications that are at issue are only those of your driver, you should also cover these potential pitfalls with your client. Awareness of these issues, exploration of the potential problems of your driver, and preparation on how to deal with the issues are critical to obtaining the best result. Your driver’s deposition is the worst time to first learn about these types of problems.
While not as controversial, FMCSA requires drivers to keep a copy of their medical certificate in their possession while on duty. §391.41. Beginning June 23, 2025, drivers will no longer be required to carry the certificate with them. §391.41(a)(2)(i)(B).
Companies can easily verify whether medical examiners are certified to administer DOT physicals. See National Registry of Certified Medical Examiners. Just because a doctor is on the list does not mean the doctor is reputable. If a driver passes a medical exam but it is clear he or she fails to meet the qualifications, investigate the matter further. There have been instances of doctors certifying drivers who do not qualify under the FMCSRs. For example, in 2016 DOT officials conducted an undercover operation on an Atlanta doctor who accepted cash payments in return for medical certificates. To avoid similar situations, companies should consider finding a reputable certified medical examiner and requiring their drivers to see their chosen examiner.
Drug and Alcohol Clearinghouse
In January 2020, the Department of Transportation rolled out the drug and alcohol clearinghouse, a database that contains driver information about drug and alcohol violations. The clearinghouse is intended to prevent violating drivers from hiding their violations by moving between companies. Before hiring drivers and at least annually thereafter, employers must check their drivers against the database. 49 C.F.R. §382.701 (2021). Employers cannot allow individuals with violations that remain unaddressed to work in a safety-sensitive role. Id. Additionally, employers must report drug and alcohol violations to the clearinghouse. §382.705.
Read and Speak English
To qualify as a commercial motor vehicle operator, individuals must be able to read and speak English. The regulation states that drivers are qualified if they “[c]an read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.” §391.11(b)(2).
This regulation has increasing importance because there are increasing numbers of drivers from different countries, many of whom have difficulty reading and speaking English. That difficulty can, at times, be glaringly obvious. And, in those instances, it should also be obvious to those drivers’ lawyers that there is a big problem with their legal position.
In other cases, a deeper investigation may be needed. An area to explore is drivers’ knowledge of the FMCSRs. All commercial motor vehicle operators must have knowledge of the FMCSRs. §§383.110 and 383.111 (“All CMV operators must have knowledge of the following 20 general areas.”). This regulation is not relaxed just because drivers lack command of the English language. Thus, to “qualify” under the regulations, drivers either must have the ability to read and understand all of the FMCSRs in English or have been provided a complete set of the regulations in their native languages, with regular updates to those regulations in the native language. Drivers that I have encountered who lack proficiency in English have rarely taken any of these measures.
Further, the FMCSRs require that “every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is operated.” §392.2. The chances of any over-the-road truckers having read the “rules of the road” for each state they traverse are slim. But the chances that drivers who cannot read English proficiently have been provided a set of translated “Rules of the Road” are close to zero. It is unconvincing for drivers who cannot read English to state under oath that they have complied with §392.2.
So even though the driver might have a CDL and driving experience, once a questioner peels back that superficial layer of compliance, problems meeting these requirements can be revealed. Whether the driver is the plaintiff or your client, the revelation of these problems can be a game-changer.
Of course, depending on your judge, you may have success excluding the non-compliance with this particular regulation where it is not causally related to the accident. A federal court in Texas recently held that the truck driver’s English proficiency was “immaterial” because there was no evidence to indicate that that the driver’s lack of language proficiency was causally related to the accident. See Rodriguez v. Transportes De Carga FEMA, S.A. de C.V., 5:18-CV-114, 2020 WL 6938330, at *12 (S.D. Tex. Sept. 30, 2020).
Along with the above requirements, a driver must also be 21 years old for interstate travel. §391.11. Most states allow for intrastate CDL holders under 21 to complete trips. And although there have been trial programs to allow 18-year-old individuals to operate a CMV, 21 is still the requirement.
Professional drivers are disqualified from operating a commercial motor vehicle if convicted of certain crimes specified, and for specified durations, set out in §391.15(c)(2). These crimes include driving under the influence of alcohol and narcotic drugs, transporting narcotic drugs, leaving the scene of the accident while operating a commercial motor vehicle, and a felony involving the use of a commercial motor vehicle. §391.15(c)(2). Commercial motor carriers must conduct a search of prospective drivers’ driving records and maintain copies of the search results. §391.23(a)(1). Employing motor carriers must repeat the driver record search at least once annually. Also, drivers must voluntarily report any convictions or bond forfeitures for motor vehicle traffic laws at least once each year. §§391.25 and 391.27.
A good practice is to use a background checking source to look for any criminal and traffic arrests. Where violations have been located, it is also a good practice to seek the charging instruments, police reports, and final dispositions of the offense, then obtain certified copies from the originating court and police agency. Any convictions not listed in the driver qualification file, or even inconsistent with the description provided by the driver, could be compelling on issues of qualifications and credibility.
Skill Performance Examination
Individuals with missing or impaired limbs may still qualify as a driver if they apply for and obtain a Skill Performance Evaluation (SPE) certificate. 49 C.F.R. §391.49 (2021). Individuals can apply for an SPE either alone or with a motor carrier co-applicant. Id. Essentially, individuals who are otherwise qualified as a driver and can demonstrate the ability to perform required tasks may obtain an SPE certificate. Id. The individual demonstrates that ability to perform by completing a road test with the vehicle and trailer the individual plans to operate. Id. Individuals requiring an SPE certificate may only operate vehicle types listed on their SPE certificates. Id. If a carrier employs a driver with an SPE certificate, the carrier must maintain a copy of the SPE.
If an employer does not maintain the required records, the employer may be liable for civil penalties. 49 USC. §521(b)(2)(B). Additionally, if the FMCSA reviews the company’s files and discovers serious issues, the FMCSA may prohibit the company from operating commercial vehicles. For example, in Sorreda Transport, LLC v. United States Dep’t of Transportation, 980 F.3d 1, 3 (1st Cir. 2020), a trucking company falsified a road test, failed to maintain medical certificates for some of its drivers, and failed to maintain accurate driver logs. The FMCSA issued an overall unsatisfactory rating, which prohibited the trucking company from operating. Id.
Exceptions to qualifications of drivers are set out in 49 C.F.R. §§391.61–391.69. The requirements of §§391.21, 391.23, and 391.33 do not apply to single-employer drivers continuously employed by a motor carrier since at least January 1, 1971. §391.61. Given that 1971 was fifty years ago, this exception will not apply in many cases. Sections 391.11 and 391.41(b)(1)–(11) do not apply to drivers who solely operate in an exempt intracity zone and qualified and operated in the exempt intracity zone throughout the one-year period ending November 18, 1988. §391.62. The employer of a multiple-employer driver need not comply with §§391.21, 391.23, 391.25(a)–(b), or 391.27. Id. §391.63. A motor carrier is not required to maintain driver qualification file requirements if the driver is a single-employer driver of another motor carrier, and the other motor carrier certifies that the driver is qualified and gives the expiration date of the driver’s medical certificate. Id. §391.65. Lastly, farm vehicle drivers and drivers of private motor carrier of passengers are not required to maintain records. §§391.67–391.68.
Proposed Changes to Regulations
The proposed changes are not major, but they do slightly affect employer recordkeeping and employee medical certification. §§391.11, 391.21, 391.23, 391.25, 391.27, and 391.51. The proposed rule would eliminate the requirement that drivers submit traffic violations to their employers. Record of Violations, 85 Fed. Reg. 80745-01 (proposed Dec. 14, 2020) (to be codified at 49 C.F.R. pt. 385 and 391). Currently, drivers must submit their traffic violations, and employers must make annual inquiries into their drivers’ traffic violations. The new rule aims to be more efficient and reduce paperwork without compromising safety. §§391.31, 391.41, and 391.51
The proposed rule changes the vision exemption process for individuals who cannot pass the vision test in one eye. Qualifications of Drivers; Vision Standard, 86 Fed. Reg. 2344-01 (proposed Jan. 12, 2021) (to be codified at 49 C.F.R. pt. 391). Specifically, the rule would replace the three-year intrastate driving requirement with a road test. Id.
While technology continues to change, at this time at least one truck driver is involved in a majority of commercial motor vehicle collisions. Like all aspects of the industry, driver qualification is highly regulated. When an accident occurs it is essential to know the regulations that may—or may not—affect a driver, whether that driver is the plaintiff or your client. We’ve added a checklist to quickly check the driver qualification file for compliance.
DRIVER FILE REQUIREMENTS
(required by 49 C.F.R. §391.51)
- Application for employment §391.21
- Request for information from previous employer:
- three years of employment history;
- three-year history of drug and alcohol testing by the previous employer. §391.23(a)
- Request for driving record. §391.23(a) and (b)
- Record and certificate of road test, or a copy of the license or certificate accepted as equivalent to the driver’s road test pursuant to §391.33 (CDL) §391.31
- Medical examiner’s certificate of driver’s physical qualification to drive a commercial motor vehicle. §391.41-43
- Record of violations and any other information regarding the driver’s qualifications or ability to drive a commercial motor vehicle safely. §391.27
- Annual review of driving record. §391.25
- Driver’s certification regarding traffic violations. §391.27
- Pre-employment drug testing (doesn’t necessarily have to be in the driver file but must be available). 382.401
- Does the driver speak English. §391.11(b)(2), §383.110 and §383.111
- Add any state requirements.
The exemptions from one or more of these requirements are found at 391.61, 391.63, 391.65, and 391.67.
Jerry Sallings, a partner of Wright Lindsey Jennings in Little Rock, Arkansas, has been engaged in active trial practice for over 35 years, trying approximately 200 jury trials to conclusion. His practice centers on including transportation defense, nursing home defense, product liability, and tort. Jerry is a member of DRI and has served as the chair of the DRI Trucking Law Committee’s Logistics Specialized Litigation Group. Quinten Whiteside, a partner of Wright Lindsey Jennings, is engaged in an active litigation practice, with a focus on personal injury defense, transportation, administrative law, and premises liability. He is a member of the DRI Young Lawyers Committee.