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9/15/2010
DAY TWO: OOIDA v. Minnesota State Patrol

The lawsuit filed by the Owner-Operator Independent Drivers Association challenging the Minnesota State Patrol’s fatigue enforcement program moved into its second day with testimony from an expert in 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 was called to the stand by Paul Cullen Jr. with The Cullen Law Firm, OOIDA’s legal counsel.

After Cullen questioned Westbrook extensively on his academic credentials, research history and professional experience, he was certified by the court as an expert on fatigue without objection from the defense.

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.

Shortly after establishing Westbrook as an expert witness, Cullen 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 continued to question Westbrook on various aspects of the Minnesota State Patrol’s fatigue enforcement program. Many times, Westbrook contrasted the clinical procedures with the procedures available on the roadside.

When Cullen 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 told the court that simple observation of driving performance is also not a concrete determination of fatigue.

At the conclusion of Cullen’s questioning and cross-examination by state’s attorney Marsha Devine of Westbrook, 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 law compliance representatives Christopher Norton and James Ullmer. Neither are sworn officers of the Minnesota State Patrol, but both 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 Stephen K. House out of service in mid-2008.

Earlier this week, at the U.S. District Court in St. Paul, House recounted the May 10, 2008, incident in which he was placed out of service at the Red River Weigh Station, once it was decided he was fatigued after being questioned by Norton and Ullmer.

The second day of the trial ended with their testimony.

On the schedule for Wednesday, Sept. 15, was the appearance of three more witnesses, two of whom are high-ranking officers of the Minnesota State Patrol and also named defendants in their individual official capacities.

Mark Dunaski is the state patrol’s chief patrol officer. Ken Urquhart is a captain in the state patrol and was the designated operational commander of the commercial vehicle enforcement section.

The lawsuit was filed on May 13, 2009, with the U.S. District Court for the District of Minnesota on behalf of truck drivers placed out of service after members of the Minnesota State Patrol arrived at the conclusion the drivers were “fatigued.”

The Association filed suit against the Minnesota State Patrol; officers Mark Dunaski, Ken Urquhart, Doug Throoft; and law compliance representatives Norton and Ullmer – all in their individual official capacities.

– By Land Line staff

Editor’s note: Land Line Magazine will provide daily updates throughout the course of the trial. Updates will also air nightly on Land Line Now on Sirius 147, XM 171.

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