Cover Story
To right a wrong
OOIDA v. Minnesota State Patrol: The trial
It's early morning in the Warren E. Burger Federal Building and the U.S. Courthouse in St. Paul, MN, and the austere marble hallways are beginning to echo with the voices of people who have business there. Some people have serious business there.

By Sandi Soendker
managing editor

 

For plaintiffs OOIDA and Member Steve House as well as named defendants of the Minnesota State Patrol, it’s trial day. Inside Courtroom 7C, the attorneys and paralegals quietly set up laptops and study fistfuls of notes, whisper to each other, consult the plaintiffs, confer with the defendants. Outside the door, a sequestered witness sits and waits. Court clerks prepare to record the day. The federal security officer takes his place inside the door.

At precisely 9 a.m., the familiar and always powerful introduction: “All rise” … and U.S. District Judge Donovan W. Frank enters, seats himself, quickly holds up a hand, and asks all to be seated. The action begins promptly.

A civil trial is a proceeding that resolves actions, brought to enforce, redress or protect private rights. For six days in September, the eyes of trucking were focused on this proceeding.

Day one
The opening day of the OOIDA and Stephen K. House v. Minnesota State Patrol trial wasted little time in delving deeply into the challenge of the agency’s alleged arbitrary fatigue enforcement program.

Paul Cullen Sr., OOIDA’s legal counsel, teed up the Association’s case by telling the court that the fatigue enforcement program is a clear sign that the Minnesota State Patrol’s regulatory compass was broken.

He was countered in opening arguments delivered by Minnesota Assistant Attorney General Marsha Eldot Devine. She said that the state patrol is merely doing the best job it can to keep the highways safe.

The first witness was OOIDA President and CEO Jim Johnston. Between questioning by OOIDA legal counsel and cross-examination by the state, he was on the stand for approximately two hours. See highlights from Johnston’s testimony on Page 20.

The Association’s second witness in the trial was OOIDA Member Stephen K. House. House’s testimony lasted approximately 90 minutes.

House recounted for the court the May 10, 2008, incident in which he was put out of service at the Red River Weigh Station, for “fatigue” after being questioned by civilian law compliance representatives Chris Norton and James Ullmer. It was during the “fatigue inspection” blitz – or what the state patrol calls a FIST saturation.

He testified that the pair asked him about his neck size and how many times he used the restroom at night, whether he had a television or computer in his cab, and if he had any Playboy magazines in his cab. He said both Norton and Ullmer used a checklist. After the inspection, the out-of-service order was issued.

House told Ullmer he didn’t believe what they were doing here was legal. Cohen asked House how Ullmer reacted.

“He kind of leaned forward in his chair,” House testified, “and he says, ‘What are you going to do to me about it?’”

Day two
The trial resumed Sept. 14 with powerful testimony from OOIDA’s expert witness on fatigue.

Dr. Philip Westbrook is a Stanford-educated sleep expert who led the sleep disorder centers at the Mayo Clinic in Rochester, MN, and at Cedars-Sinai Medical Center in Los Angeles.

He is a clinical professor of medicine at UCLA and has been actively involved with professional organizations associated with sleep disorders. He served as president of the American Sleep Disorder Association.

Westbrook’s testimony centered on his opinion of the training, procedures and tools used by the Minnesota State Patrol in the agency’s fatigue enforcement program.

OOIDA attorney Paul Cullen Jr. asked Westbrook if it was his opinion that members of the Minnesota State Patrol would be able to accurately determine fatigue on the roadside.

“It is so difficult – so difficult as to be almost impossible – to accurately determine just based on an observation alone, given the tools that they have at the roadside, whether the level of someone’s fatigue or sleepiness – and to be able to predict that they won’t be able to adequately maintain alertness so that they can safely drive,” Westbrook said.

“You simply can’t do that. There is no evidence that any of the procedures or observations or tests that they use or could use in practical manner at this point would allow them to do that.”

Cullen Jr. continued to question Westbrook on various aspects of the Minnesota State Patrol’s fatigue enforcement program. Many times, Westbrook contrasted clinical procedures with the procedures available on the roadside.

When Cullen Jr. asked if the checklist used for observing the driver and the truck was reliable, Westbrook said the fatigue driver’s checklist “absent the actual driving performance has no validity.”

Later, Westbrook also told the court that simple observation of driving performance is not a concrete determination of fatigue.

At the conclusion of Cullen Jr.’s questioning and cross-examination of Westbrook by state’s attorney Marsha Devine, Judge Donovan W. Frank questioned the doctor a bit further.

“What I hear you saying is that short of these rather sophisticated tests that are hours in length, there is no way to consistently, objectively and with any reliability, quantitatively or qualitatively measure or diagnose – and diagnose is not the right word – evaluate the issue of sleepiness or fatigue,” Judge Frank asked. “Do I understand that correctly?”

“You do, your honor; that is correct,” Westbrook responded.

The rest of the second day of trial entailed the testimony of Minnesota State Patrol law compliance representatives Norton and Ullmer. Neither are troopers, but were trained by the agency to “assess fatigue” on the roadside and place drivers out of service. They were questioned on their training and roles in placing plaintiff House out of service in May 2008.

Day three
It was pouring down rain much of the day in St. Paul. Inside the courtroom, a single bolt of lightning clearly took some off guard.

It occurred as OOIDA counsel Dan Cohen resumed questioning of defendant James Ullmer.

Cohen inquired about training Ullmer received in regard to determining fatigue in commercial vehicle drivers and what sort of questioning was permissible to determine fatigue.

The defendant acknowledged to the court that asking drivers about their families, money issues, and if they had adult reading materials such as Playboy was allowed within the program – and he had asked drivers about such topics.

Questioning then shifted to the training provided by the state patrol on the fatigue enforcement program. Ullmer acknowleged that as part of his training, he had seen PowerPoint presentations on fatigue.

When Cohen presented Ullmer with a PowerPoint presentation for review – one that included a slide outlining points of the “Driver Interview” and focused on the driver’s appearance – spectators in the courtroom were visibly surprised when the slide popped up on the screen.

The slide included a picture of Saddam Hussein, shortly after his capture, and a list of items to note on fatigue inspection reports, including bloodshot eyes, watery eyes, yawns and droopy eyelids.

The PowerPoint presentation, which had been objected to by the defense on day two of the trial, was admitted into evidence.

Throughout the afternoon, witnesses were questioned on communication from superiors within the state patrol as to permissible use of the checklist in fatigue enforcement and the status of the overall program.

Ullmer admitted to the court that, after April 2009, he continued to use the checklist when interviewing drivers. He also told the court that he did not necessarily need the checklist to ask questions using the criteria on it.

Cohen inquired about a May 5, 2010, order signed by Col. Mark Dunaski that stated the fatigue inspection report “is no longer to be used to report observations during a driver inspection.”

When Cohen specifically asked Ullmer if that order “forbids you from using the criteria of the inspection report as well,” Ullmer told the court it did not.

Testimony from Maj. Ken Urquhart also eventually confirmed that despite the May 5 order ending the use of the checklist, inspectors still used criteria outlined on the checklist when conducting inspections.

As OOIDA counsel Paul Cullen Sr. continued questioning Urquhart on how the information could be used following the May 5 order, Urquhart said that the “process should not be used” and “they should not be used as a check-off list.”

However, Cullen Sr.’s questioning eventually led to Urquhart telling the court that the criteria included on the now-prohibited checklist could still be considered during inspections.

Day four
Maj. Ken Urquhart was back on the witness stand on Sept. 16. In the cross-examination of Urquhart by OOIDA counsel Paul Cullen Sr., the line of questioning sought further details on a fatigue out-of-service order – specifically, the penalty.

He explained that the penalty for being put out of service for fatigue is 10 hours off. In questions to Urquhart, Cullen Sr. explored whether that 10 hours was to sleep, which would be a “remedial penalty,” or simply punishment, which would be “punitive.”

He went on to make the point to the court that if a driver was put out of service for being fatigued, it only made sense that the penalty be a remedy to that, not punishment.

Urquhart eventually said that the answer was “punitive,” or a punishment.

The second witness on Day Four was Denise Nichols, a longtime inspector with the Minnesota State Patrol. Her testimony was straightforward and decisive – something court spectators saw as a clear contrast from the hours of testimony in which all of the other state patrol witnesses repeatedly said they were unable to recall specifics or simply did not know answers.

During cross-examination by OOIDA counsel Paul Cullen Jr., Nichols told the court that she had, in her career, conducted 2,000 to 2,500 driver inspections. In none of those inspections had she ever placed a driver out of service for fatigue.

Nichols had put in 17 years with the state patrol’s commercial vehicle section, the past seven years as its education officer. She told the court that Urquhart wanted to develop the fatigue impaired commercial driver program and that she was tasked with the training.

Nichols testified that she did not have a “definition” for fatigue and believed it is different for everyone. Nichols is no longer with the state patrol. She is now employed by the Minnesota DOT.

Day five
The legal counsel for the state of Minnesota began the fifth day of the trial by saying the state wanted to settle the case. Attorney Vasaly indicated that the state was willing to retrain all 120 inspectors if OOIDA and member plaintiff House would agree to a settlement.

Cullen Sr. vehemently rejected the settlement offer. The Association was not interested in settling the case because Minnesota still needed to “lay its cards on the table.”

By this, he meant that the OOIDA legal team had spent the first four days of the trial determining the extent to which the state patrol still engaged in any sort of fatigue enforcement against commercial drivers.

Without a clear look at Minnesota’s case, OOIDA opted to continue with the trial. Defendant Doug Thooft was called to the stand.

Pieces of the puzzle finally began falling into place regarding the whys and wherefores of the arbitrary practices of the state patrol’s fatigue impairment program.

During the first week’s slow unraveling of facts, the endless “I don’t know” answers from witnesses seemed to create a Wizard of Oz (who’s behink the curtain?) atmosphere.

Who rescinded the checklist back on May 5? Who really pulled the plug on the entire fatigue enforcement program pending more training, just days before the trial began? And who knows what that training will include? Will that new training regimen teach inspectors to establish probable cause before putting drivers out of service for fatigue?

All of those questions went unanswered during the first week’s parade of witnesses – that is, until Maj. Kent O’Grady was called to the stand.

A 31-year veteran of the state patrol, he is currently serving in Operations Support Services, a section that oversees litigation and training, among other areas.

During his testimony, it was revealed that enforcement policies and procedure issued via a series of general orders were written by O’Grady. And who was responsible for the Sept. 2 internal memo suspending fatigue enforcement pending additional training? It was issued at O’Grady’s direction.

In questioning by Cullen Sr., O’Grady said he rescinded the fatigue enforcement checklist because all the value of the checklist would be dismissed because of the way it was being used.

Cullen Sr. asked O’Grady, while the checklist itself was no longer used, was there any item on the list that can never be used again?

After nearly a half minute of weighing his answer, O’Grady’s response was “no.”

Vasaly questioned O’Grady for the defense, asking him what his reaction was to the depositions of others in the trial.

O’Grady described concerns that civilian inspector Norton had no recollection and no documentation to jog his memory. Also, O’Grady was not comfortable with civilian inspector Ullmer’s level of probable cause understanding.

In addition, he was concerned that trucker and OOIDA member plaintiff Stephen House’s recollection of the inspection “was better than my employees.”

At Vasaly’s question, “what conclusion did you come to?” after depositions, O’Grady said that more controls were needed.

In the last question of the day, O’Grady was asked if he thought it was possible to come up with a test to determine impairment due to fatigue.

“I hope sometime in the future that the scientific community can develop that,” he said. “I know of none that exist now.”

Day seven
Maj. O’Grady returned to the witness stand for another three hours. While denying that OOIDA’s lawsuit was a motivator, the defense counsel guided O’Grady through a line of questioning revealing an urgent and sweeping training blitz.

He talked about the new training guidelines and that he planned to train all of his officers. He said during the first full week in October, he will bring those inspectors to St. Paul and put them up in a hotel as guests of the state.

“There are several parts of the program. The first part is I want our enforcement personnel to be very clear as to what the purpose is for our commercial vehicle enforcement program. I want them to be very clear what the purpose is for the inspection program,” O’Grady told the court.

“I want them to be clear about where their authority comes from in the statute. I want them to be clear about what the limits are to their authority so that they can articulate those if asked to do so in court.

“I want them to have an understanding of constitutional issues with regard to their role. I want them to have a full understanding of the federal statute with regard to illness or fatigue. I want them to know how they can detect impairment at roadside. I want them to know how they can document what they see and what they observe.

“And … I want to walk them through a policy and understand legal concepts of reasonable articulable suspicion, probable cause, eminent risk and other terms that are used in that policy to make sure that there is no misunderstanding of what our intention is.”

O’Grady was questioned on what truckers could do if they wanted to challenge a fatigue out-of-service violation – to which he answered “FMCSA’s Data Q.” Notably, when asked if Stephen House would be entitled to file a Data Q challenge “at this moment” – he said yes.

In O’Grady’s testimony on the last day of the trial, he testified that he had heard House’s testimony and seen the documentation and believes that House has a “meritorious case.”

After a break, closing arguments began, beginning with those of the defendants’ attorney.

State’s attorney Vasaly said the state patrol has recognized problems in the program, and they were fixing it.

“In a nutshell, the patrol’s program of enforcement of the federal regulations for fatigue [has] some deficiencies in it and the deficiencies needed correction. And when it was brought to the patrol’s attention, the patrol acted appropriately and corrected and is correcting the deficiencies,” he told the court in his closing argument.

Vasaly restated the offer to settle that was made on Day Five.

In his closing, OOIDA counsel Cullen Sr. addressed Vasaly’s “we’re fixing it” statement.

Cullen Sr. told the court that while “it is opposing counsel’s job to put the best face he can on some of this … with due respect, that General Order was May 5. Four months have gone by; there has been and will be no progress without the threat of court action pending. … The impending trial, which became known in late August, triggered another round of efforts. And we have training that is scheduled with teachers who are unappointed, yet curriculums which aren’t down on paper. It is just in a total state of flux.”

He hammered the point – as OOIDA attorneys have done all during the trial – that the state patrol’s actions had no authority.

“What we have here is well-intentioned and zealous freelancers with no authority,” he said.

A primary bullet point in the closing argument from Vasaly was that the state believes the patrol should continue fatigue enforcement.

The concerns in that goal were addressed fully in Cullen Sr.’s closing.

He said that in 1997 the Federal Highway Administration proposed that science had reached a point where fatigue could be determined. But in 2000, the agency rejected the regulatory option of addressing fatigue directly though an evaluation of performance and concluded that the only feasible way to do it is through hours of service.

“The Federal Register announcement in May of 2000 … said four magic words. ‘More study is needed’ before we go to that direct approach.

“Minnesota is out there by itself,” said Cullen Sr., “because there’s no real statute that authorizes it. There are no real standards established with the force and effect of law to bolster and support a performance-based fatigue evaluation.”

He asked for a moratorium on the fatigue enforcement program until the end of October, extending the state patrol’s Sept. 2 internal memo that pulled the plug on it pending further training. State’s counsel was hesitant but, after conferring with Maj. O’Grady, acceded to the suggestion as long as training plans continued.

In his wrap-up, Cullen Sr. asked the court for clear-cut declaratory judgment on the rights of drivers.

“That declaratory judgment, even though it is past, is really important. … If we don’t know how we went wrong in the past, we are simply not going to be able to get the future right,” he said. “So a declaratory order as to past conduct is very, very critical here, and it is critical to guide the patrol as to the future.”

Attorneys Cullen Sr. and Vasaly were not the only ones to have their say during closing arguments.

On the final day of trial, Judge Frank added his opinion on the unprofessionalism of the state patrol – specifically, some of their inspectors asking truckers questions and the state patrol’s use of a picture of a disheveled Saddam Hussein in training material as an example of what an unkempt trucker might look like.

“Because some of those questions really would offend most people’s sense of reasonableness. They are off the chart. I don’t know where they came from,” said Judge Frank. “I’m kind of curious about how anybody would think – ever – asking about sex partners, pornographic … With some of these questions, I’ve never actually heard of in 30 plus years of hearing hundreds of these cases at the state level. … There was something that went seriously wrong here.”

Judge Frank said if he had not seen it, he likely would not have believed it.

“It’s way out of bounds. … The fact that someone hasn’t been disciplined and reprimanded, the Saddam Hussein, if anybody in the highway patrol isn’t completely outraged that such a reference – at best it’s unprofessional, at worst it’s rank racism – it’s shocking to me when I saw that.”

Although he pointed out that this would “not send this case one way or another,” he was “truly shocked.”

WHERE WE ARE AT PRESS TIME:
The trial wrapped up on Sept. 21, with closing arguments. The court wanted written summations from both sides by Oct. 8. Judge Frank said he would rule on the issues within 30 days.

The fatigue impairment enforcement program by MSP remains shut down, as the MSP has agreed to OOIDA’s request for a moratorium on the fatigue enforcement program until the judge rules.

Watch Land Line and OOIDA’s websites and listen to Land Line Now on Sirius XM for updates.

 

sandi_soendker@landlinemag.com
Jami Jones, senior editor, contributed to this coverage.

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