Car and truck accident at intersectiion.

Corporate greed, regulatory failures responsible for hundreds of deadly big rig accidents each year, BKM is fighting to make the roads safer by holding truckers accountable

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Attorney David Betras
BKM Managing Partner David Betras

Since MahoningMatters offered me the opportunity to grace their website with this column each week, I’ve addressed everything from COVID to corruption, distracted driving to democracy and dozens of topics in between. But if pressed to pick the most important subject I write about, is highlighting the role personal injury attorneys and the civil justice play in saving lives, preventing injuries, and making our nation and our world safer places to live, work, travel, and play would be numero uno on my list.  

Over the years I’ve shined a spotlight on exploding Pintos, Boeing’s fatally flawed Max 8, lethal medical devices and drugs, cigarettes, and myriad other products and practices that sowed carnage, death, and destruction across the land. As my regular readers know, there is a common thread that runs through these largely avoidable tragedies. They were all the result of corporate greed, cost-benefit analyses that placed corporate profits above the value of human life, regulatory failures, secrecy and lies, suppression and persecution of whistleblowers, as well as influence peddling and lobbying by business interests and trade groups.  

And there is one additional point of commonality: the human toll associated with each of these deplorable episodes: the number of people hurt and killed would have been exponentially higher if lawyers like me, my partners, and the other members of the trial bar had not taken on the difficult and expensive task of suing the largest corporations in the world and winning large settlements for victims and families that forced businesses to make products safer or remove them from the market altogether.

I’m revisiting the topic today because America’s Dangerous Trucks, a recent episode of PBS’ outstanding Frontline documentary series clearly shows that corporate greed and the other factors that have put Americans needlessly at risk for decades are at play in the trucking industry. The film opens at the side of the road near the spot where 16-year-old Riley Hein burned to death when his car slid under and was pinned beneath the back wheels of a 40” trailer.

After losing Riley, his father Hunter learned what we do in the course of the documentary:  Riley and the hundreds like him who perish in what are known as “underride” crashes each year did not have to die. Those killed include Marianne Karth’s daughters AnnaLeah and Mary who lost their lives when the car in which they were riding was pushed under one truck after being hit by another. In the wake of the tragedies the families found that the trucking industry had been battling against underride crash safety measures proposed by the National Highway Transportation Safety Administration (NHTSA) since 1981.

They also discovered that NHTSA, like the Federal Aviation Administration (FAA) which is responsible for aviation safety, is a captive agency controlled and dominated by the very industries it is charged with regulating and that NHTSA uses an economic formula to determine whether to impose new safety standards. If the cost equals more than $12.5 million for each life saved, it won’t be adopted. That’s the same type of cost-benefit analysis Lee Iacocca and Ford made when they decided to sell exploding Pintos.

I hope you share my disgust with the fact that the price of a human life was calculated by the government agency that is supposed to keep our highways safe rather than a profit-driven corporation. 

Which is not to say that the trucking industry and its trade group, the American Trucking Association (ATA) don’t have blood on their hands. Not only did they stop NHTSA from strengthening rear and side collision guards that would reduce the severity of underride crashes—a step that would add less than $250 to the cost of a trailer, they have kept truck safety legislation bottled up in Congress, and launched a successful campaign to convince state legislatures across the county to enact laws that will make it more difficult to hold truckers accountable for the deaths and injuries that occur when big rigs collide with passenger vehicles and motorcycles. Yes, it’s the big rig version of tort reform.

At the end of the film, we learn that the Hein’s sued the company that owned the truck that caused Riley’s death. In 2019 a jury awarded them $19 million—a figure that caught the attention of trailer makers and truckers, many of whom, in yet another demonstration of the power of the civil justice system, began installing improved rear and side underride guards.

Despite that important victory, Hunter Hein remains concerned. “You know, Riley was killed in 2015. We’re seven and a half years into this fight. It’s hard to just sit and watch and wait and hope that NHTSA will do the right thing. It’s really frustrating.”

“It’s very hard to get this agency to actually adhere to their mission to save lives. I mean, I’m an optimistic person, but I’m cautiously optimistic. I still think that the industry has a lot of power and a lot of undue influence with NHTSA. And it is incumbent, I think, upon all of us advocates and people that are very concerned about how many people are dying from side underride crashes to keep the pressure on NHTSA.”

I agree, and we should all demand that the agency free itself from the influence of the auto and trucking industries and begin to do its job.

A look back at SCOTUS’ 22-23 term, predictably conservative with a dash of surprise

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Attorney David Betras
BKM Managing Partner David Betras

On Friday, June 30, the nine learned women and men who preside over the Supreme Court of the United States (SCOTUS) issued their final decisions for the 2022-2023 term, sent their black robes to the dry cleaners, and high-tailed it out of the nation’s capital—some, perhaps on private jets, a topic I’ll address in a future column.

That means it is time for me to hand down my annual review of the justices’ work over the past 12 months, beginning with just how much work they actually did. Each year 5,000 to 7,000 cases are filed with the Court, the vast majority arrive as appeals from the federal Appellate and District Courts and the highest court in each state. In an average year SCOTUS accepts 75 to 80 cases or approximately one percent. This year the justices took up 60 and decided 58. Given the Court’s conservative majority, people on the left of the political spectrum probably wish the number had been six, those on the right would be thrilled if 600 or more had made it onto the docket.

Although a number of the 58 decisions deal with significant issues that will effect millions of Americans for decades to come, none will have the seismic impact of Dobbs v. Jackson Women’s Health Organization which reversed Roe v. Wade and gave each state the authority to regulate abortion within its borders.  The aftershocks of that ruling are still being felt across the country, including here in Ohio, where a citizen initiated constitutional amendment guaranteeing reproductive freedom and abortion access may appear on the General Election ballot later this year.

With all that as preface, let’s take a look at some of the most important and closely watched cases decided during the term:

Biden v. Nebraska. Americans owe more than $1.78 trillion in student loan debt which is more than any type of debt other than mortgages. During the 2020 presidential election Joe Biden promised to cancel up to $10,000 of that debt per borrower. Wonder of wonders, after he won, he kept his promise and signed an executive order that wiped out $10,000 in student loans for borrowers with an annual income of less than $125,000. 

Officials in Nebraska, Missouri, and three other states were not amused. They sued, arguing that the Biden Administration did not have the statutory authority to implement the loan forgiveness program. A 6-3 majority of the Court, led by Chief Justice Roberts agreed and basically said everyone who owes has to pay up. As I write this the President, who noted that the government has forgiven $757 billion in loans to businesses made under the Paycheck Protection Program, is searching for a new way to deal with the problem.

Students for Fair Admissions v. President and Fellows of Harvard College and v. University of North Carolina. In these two separate cases, Students for Fair Admissions argued that Harvard’s affirmative action admissions program violated Title VI of the Civil Rights Act of 1964 by discriminating against Asian American applicants in favor of white applicants. The same plaintiffs argued that UNC’s program violates the Fourteenth Amendment by using race as a factor in admissions. The programs were upheld by the District and Appellate courts.

SCOTUS disagreed and in a 6-3 ruling overturned the lower courts and held that the use of race in college admissions is unconstitutional. In response, a number of colleges and universities are exploring utilizing class rather than race as a factor in making higher education more accessible to a wider segment of Americans.

Moore v. Harper and Allen v. Milligan These two cases which involve legislative redistricting and gerrymandering produced decisions that were surprising in light of the fact that the Court has in recent years handed down a number of decisions that eroded the landmark Voting Rights Act of 1965 and approved partisan gerrymandering.

In Moore the Court rejected North Carolina lawmakers’ claim that the “independent state legislature” theory gave them the sole authority to draw whatever districts they wanted in any way they pleased. In a 6-3 opinion written by the Chief, the Court held that districts drawn by state authorities were subject to review by the federal courts. The ruling has special significance for Ohio that I will address next week.

In Allen, a 5-4 majority, again led by CJ Roberts, found that Alabama officials had violated Section 2 of the Voting Rights Act by packing Black voters into a single district in a way that made it nearly impossible for Black voters to elect the candidates of their choice.

The two rulings provide a glimmer of hope that at some point before the end of the 21st Century our gerrymandering will be outlawed, and our electoral process will feature a modicum of fairness. OK, I’m not holding my breath, but I can dream can’t I?

What you need to know about Ohio’s new consumer fireworks law–aside from the fact that it actually makes sense…

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If there is one thing I’ve learned during my three decades as an attorney, it’s that laws don’t always make sense. As an example, I offer into evidence, the Ohio statute that governed the purchase and use of consumer-grade fireworks by private citizens from 2008 until 2022. During that time, you or I could walk into a licensed fireworks dealer on July 4, buy a carload of what are known as 1.4G fireworks, and then swear we were going to transport our arsenal out of state within 48 hours because it was illegal to discharge them within the state.

Attorney David Betras
BKM Managing Partner David Betras

This law was ridiculous for two reasons: first, it forced Ohioans who wanted to celebrate Independence Day by firing off some fireworks in their backyard to lie and commit a crime which was more than a little ironic and absolutely un-American, and, second, it was, for all intents and purposes, unenforceable, a fact underscored by the billions of dollars in consumer pyrotechnics that lit up Ohio’s night skies and scared Ohio’s dogs each and every Fourth—prohibition or no prohibition.

After numerous attempts to erase the law and government-mandated ruse from the books, the fine folks who inhabit the Ohio House and Senate passed HB 172 by overwhelming margins on November 4, 2021. One provision of the bill which became effective on July 1, 2022 eliminated the requirement that Ohioans hightail it out of the state to demonstrate their patriotism. As a result, we are now free to shoot off roman candles, skyrockets, sparking wheels, seven-shot Beastlys, and 10-ten shot Cherry Bombers from the comfort of our homes.

In addition to permitting the use of consumer fireworks within Ohio’s borders, HB 172 also established regulations for doing so—you know rules we didn’t need when we were buying 36-shot China Dragons here and shooting them off in, I guess Pennsylvania or West Virginia. Because the law is relatively new, and the Fourth of July is rapidly approaching I thought it would be beneficial to review the rules:

Let’s start with when we can fire away:

From 4 PM to 11 PM on:

  • From 4 PM to 11 PM on July 3, 4, and 5, and the Friday, Saturday and Sunday immediately before and after the 4th.
  • From 4 PM to 11 PM on Memorial and Labor Day weekends
  • From 4 PM to 11:59 PM on New Year’s Eve and 12 AM to 1:00 AM and 4 PM to 11 PM New Year’s Day
  • From 4 PM to 11 PM on Chinese New Year
  • From 4 PM to 11 PM on Cinco de Mayo
  • From 4 PM to 11 PM on Diwali, the Hindu Festival of Lights which falls on November 12 this year.
  • From 4 PM to 11 PM on Juneteenth.

Next let’s talk about where.  You can light up the night from your own property or another person’s if the owner has given you express permission. Oh, and you can’t fire them off indoors, so no shooting Roman Candles at your siblings or friends if you’re in the kitchen or living room. You also may not discharge fireworks within 150 feet of property housing livestock unless the owner of the property is given five days’ notice. I guess that will give the livestock owner time to sedate the animals. 

Who is important. No one under the age of 18 and no person under the influence of any intoxicating liquor, beer, or controlled substance may discharge fireworks.

Finally, let’s not forget that fireworks can be dangerous if they are mishandled or used carelessly. According to a report issued by the Consumer Product Safety Commission 11,500 fireworks-related injuries were treated in U.S. hospitals in 2021. Not surprisingly, the vast majority of the injuries occurred between June 18 and July 18. To make sure your holiday isn’t marred by an accident, please follow these safety tips as you celebrate America’s 257th birthday:

  • Never allow young children to handle fireworks.
  • Anyone using fireworks or standing nearby should wear protective eyewear.
  • Never hold lit fireworks in your hands.
  • Only use fireworks away from people, houses, and flammable material.
  • Do not try to re-light or handle malfunctioning fireworks.
  • Soak both spent and unused fireworks in water for a few hours before discarding.
  • Keep water or a fire extinguisher nearby to fully douse fireworks that don’t discharge or in case of fire.

Thanks for taking the time to check out this week’s blog and Happy Fourth to you all.