Opinion: The Diabetic Trucker Debate

By Mark Perkins
Perkins & Associates LLC

This Opinion piece appears in the May 28 print edition of Transport Topics. Click here to subscribe today.

The Federal Motor Carrier Safety Administration recently has been reconsidering regulations prohibiting insulin-dependent drivers with diabetes from driving.

That prompts the discussion of some ideas on defending claims of negligent supervision/retention if a driver who has tested positive for diabetes continues to be allowed to drive.

A few years ago, my firm defended an accident involving three large tractor-trailers and a passenger vehicle. The company we represented employed a driver whose rig was rear-ended by another 18-wheeler after exiting a rest area.

The rig that rear-ended him came to rest in the median of an interstate, while “our” driver pulled to the shoulder. A few minutes later a passenger car maneuvered around the debris but was rear-ended by another big rig.

The theory of liability against our driver was in causing the first accident. But when the physical evidence and eyewitness testimony did not support this, the plaintiff’s legal team turned their focus to blaming the company for retaining a driver who was found to have high blood sugar — four months after the crash.

Our strategy was to exclude any evidence not related to the specific accident — particularly regarding the driver’s diagnosis of Type II diabetes and temporary loss of medical certification, which also happened four months after the accident and lasted only one day.

The plaintiff’s attorneys tried to argue that, since the driver turned out to be diabetic later on, he probably was already suffering from the effects of insulin-dependent diabetes at the time of the accident.
These arguments were made, even though there was only limited evidence that the driver was diabetic at the time of the accident.

But more important, even if the driver was diabetic at the time of the crash, there was no evidence that it contributed to the accident. In fact, when the driver’s diabetes was diagnosed, his physician determined that he didn’t need insulin to control it.

After only one day without medical certification, the trucker was recertified to drive tractor-trailer rigs.
In a rational world, all that would have been irrelevant for the simple reason that, at the time of the accident, the driver was properly medically certified under the Code of Federal Regulations governing physical qualifications of drivers.

The only purpose of admitting information about diabetes was to confuse the jury about the cause of the crash. Allowing a jury to know the driver had even briefly lost his medical certification after the accident because of diabetes would have been unfair and misleading.

The Federal Motor Carrier Safety Regulations state that a person shall not drive a commercial motor vehicle unless he/she is physically qualified to do so and has on his/her person a medical examiner’s certificate stating he/she is physically qualified to drive a CMV.

Plaintiffs’ attorneys sometimes assert that a trucking company has failed to comply with this regulation because it did not personally monitor a driver’s medical condition.

However, FMCSA has published guidance specific to that regulation and makes it clear it is the responsibility of the medical examiner — not the trucking company — to determine medical certification. In short, trucking companies have no duty to monitor the medical condition of a driver if a medical certification is appropriate.

None of this prevents plaintiffs and their lawyers from trying to prove the opposite.

The best defense is to prevent the admissibility of a post-accident medical condition to begin with. If that doesn’t work, adequately defending pre-accident medical certification and a company’s reliance on it may require hiring an expert to evaluate that certification and show that a driver’s post-accident medical condition is irrelevant.

Given the modern tendency to sue despite the evidence, perhaps hoping for a hefty settlement just to avoid the hassle, it’s a good sign that FMCSA is reconsidering the issue of diabetes as a potentially prohibitive factor in driving 18-wheelers.

Rulemaking action would amend FMCSA’s medical qualification standards to allow even drivers with insulin-controlled diabetes to operate commercial motor vehicles in interstate commerce.

The contemplated action is in response to Section 4129 of the Safe, Accountable, Flexible and Efficient Transportation Equity Act: A Legacy for Users — SAFETEA-LU — and FMCSA should be encouraged to go forward with its amendment. Courts and medical experts have consistently questioned the viability of a blanket exclusion of insulin-dependent diabetics from positions that require driving.

Unfortunately, some courts still allow prejudicial information to be admitted under the rubric of cross-examination, and plaintiff’s attorneys doubtless will continue to develop unique theories of liability. In the case that prompted this look at medical liability, the defense was successful but not without a hard-fought battle on multiple — and sometimes very surprising — issues.

Perkins & Associates Attorneys at Law has headquarters in Shreveport, La., and primarily defends trucking companies in accident claims.