Monday, January 26, 2015

Large Truck Wheel Separation Accidents: What Are The Common Threads?

By Brian R. Wilson, Esq.

Imagine a rolling, 200 pound tractor trailer wheel careening toward you at 50-60 MPH when you're traveling at 65-70 MPH and have nowhere to go to swerve or avoid it. This is what can happen:

  (Actual photo of truck trailer wheel after impacting a pickup truck going in the opposite direction on a  four lane, major Interstate)

 Large truck tractor or trailer wheel separation is like a detonated dirty bomb: you never know the true path of destruction or how devastating the damage will be. And the damage is often done in a split second. But a wheel separating and the resulting injuries to motorists is rarely ever the product of a sudden, unexpected, split second event. To understand the reasons for a commercial truck wheel separation, one must first appreciate that a large truck is not a car and a large truck crash is not like a car crash.

Large trucks (defined as vehicles with a gross vehicle or gross combination wright rating as 10,001 pounds) are regulated by federal and state law. Specifically, The Federal Motor Carrier Safety Act (FMCSA) contains very specific regulations involving a myriad of situations affecting large trucks, from hiring of drivers to the operation and maintenance of trucks.

These regulations include obligations on drivers to inspect their rigs both before and after every trip and document that fact. Thus, by reconstructing the driver's activities via log book entries, fuel and other receipts, maintenance and repair records, and other documents, it can yield evidence and clues as to why a wheel separated.


A truck driver pulling a trailer on the Interstate suddenly notices that his rear dual trailer wheels have separated from his trailer. They smash into a car traveling the opposite direction, injuring occupants in the car. The truck driver tells the investigating officer that he had no notice of any problems. However...

Nine days before the incident, the truck driver undergoes a routine inspection by Department Of Transportation in a nearby state, and the inspection reveals the trailer's brakes are shoddy and leaking brake fluid, among other violations. The trailer is deemed "out of service" until the brakes can be replaced. A repair facility performs the brake repairs, and to do so has to remove and re-attach the wheels to the trailer.

So why did the dual trailer wheels suddenly disengage nine days later?

Because a lawsuit was filed, both the driver's paper trail, and the wheels themselves, were examined. The wheel holes (through which the bolts slide to accept the lug nuts) revealed a wear pattern that was consistent with a gradual loosening of the lug nuts. We claimed the physical evidence was such that a driver would have noticed a problem either through feeling a problem while driving. or through mandatory pre or post trip inspections, which include wheels and lug nuts.

The other problem was that the lug nuts were either under or over torqued when repairs were made (which was denied by the repair facility). The combination of these two factors led to the wheel separation, in our opinion, and took this incident out of the realm of a sudden, unexpected, "freak" occurrence.

The lawsuit was settled shortly before trial. By stepping back and re-constructing the driver's and the trailer's history before the incident, we were able to show plausible reasons for why a set of wheels could separate just nine days after they were re-attached.

One final note: many of the "retention" periods for certain aspects of a driver's paper trail under the FMCSA are as short as six months. All the more reason to contact an attorney or firm familiar with handling large truck accident cases sooner rather than later.

Sunday, January 11, 2015

Why The Lack Of A Citation Against A Nursing Home Is No Bar To A Negligence Lawsuit

By Brian R. Wilson, Esq.

Nursing homes are regulated by state and federal agencies. As part of their license, nursing homes are required to undergo an annual license certification survey. In addition, they are subject to unannounced annual inspections/surveys.

More importantly, they can be investigated after an individual complaint is filed against them. This sounds all well and good, but what is the likelihood that a preventable mistake in a nursing home will ever see the light of day in the form of a citation against the nursing home? And what effect does a citation or lack of one have on any negligence lawsuit filed against a nursing home?


Under Ohio law, nursing homes have an obligation to report incidents of abuse, neglect, and theft of residents' property to regulatory authorities. Abuse and theft appear to be obvious, but what is meant by "neglect?" Federal regulations define it as a "failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness."

In a recent nursing home case I litigated, we claimed a nursing home did not timely secure physician ordered respiratory equipment, which we claimed resulted in harm to the resident. According to them, there was no legal obligation to self-report the incident as an instance of "neglect." Assuming this to be true, what does that say about the relative weakness of the obligation to self-report adverse incidents resulting in harm to residents?

Answer: it's as weak as a cup of tea brewed with an old, used tea bag. Bottom line: if they don't report it, you have to make a formal complaint about the care your loved one received to The Ohio Department Of Health.... or hope the surveyors just happen to find it on their own in the annual survey process


What is the likelihood that a random survey will catch a nursing home error or substandard care that results in harm to a resident? To start with, there are 945 nursing homes in Ohio. Assuming a conservative number of 100 residents per home, that's almost 100,000 residents per year.

State surveyors simply don't have the time and resources to go over the medical charts of every resident to scrutinize whether their care was adequate. As a result, the surveyors will examine a random, representative sample of residents' charts. According to testimony in a recent nursing home case, it was estimated that surveyors randomly sampled approximately 20% of current residents' charts, which included past residents from that same year.

Bottom line: it's hit or miss, and perhaps largely miss, that a survey will ever discover an instance of substandard care, and that assumes the surveyors have access to all charts.


Suppose you do file a complaint against a nursing home. If the appropriate agencies investigate and do not cite or fine the nursing home, does it prohibit you from pursuing a negligence lawsuit against the nursing home? Not at all. Whether or not the nursing home was cited/fined HAS ABSOLUTELY NO BEARING on your ability to sue the nursing home. Under Ohio law, the results of any survey process are inadmissible in any lawsuit. If the nursing home was not cited, it cannot stand up in court and tout that fact. Conversely, if it was cited, the patient's family cannot introduce that fact into evidence.

Why? I've seen countless cases where the nursing home was not cited, yet it knew it handled the resident's care in a substandard manner, and chose to settle the case, or a jury decided that the nursing home was negligent. And in fairness to nursing homes, juries have concluded that a nursing home was not negligent even in cases where the nursing home was cited by a state or federal agency.

All of this proves one thing: the survey and citation process has its limitations, and any jury that decides a nursing home negligence case does so independently of any survey process.  And that's a good thing.

So D.I.Y. Report the nursing home if you suspect your loved one received inadequate care, come what may of the process. Don't be the needle.....