DAY FIVE UPDATE: OOIDA v. Minnesota State Patrol

| 9/21/2010

Pieces of the puzzle are finally falling into place regarding the whys and wherefores of the arbitrary practices of the Minnesota State Patrol’s fatigue impairment program.

During last week’s slow unraveling of facts, the endless “I don’t know” answers from witnesses seemed to create a Wizard of Oz 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Who rescinded the checklist back on May 5?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 have been questions that remained unanswered during last week’s parade of witnesses in OOIDA v. Minnesota State Patrol.

This week, it’s a new chapter in the civil trial, now underway in the U.S. District Court in St. Paul, and certain facts are seeing the light of day.

Major Kent O’Grady of the Minnesota State Patrol, who testified Monday, Sept. 20, for more than four hours, returned to the witness stand Tuesday morning. During yesterday afternoon’s 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.

Yesterday was the first time the court had heard from O’Grady, but’s he’s been a familiar sight in U.S. District Court Judge Donovan W. Frank’s courtroom since the beginning of the trial.

O’Grady has been seated with the team of attorneys defending the state for the entire trial, serving as an assistant to state attorneys Marsha Devine and Thomas Vasaly. O’Grady is not a named defendant in the case. He was not sequestered like the other members of the Minnesota State Patrol who testified – and, in fact, O’Grady heard the testimony of each one.

In questioning by OOIDA’s legal counsel Paul Cullen Sr., O’Grady said he rescinded the fatigue enforcement checklist because all the value of the checklist would be dismissed because of the way it was being used.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 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 Commercial Vehicle Inspector Chris Norton had no recollection and no documentation to jog his memory. Also, O’Grady was not comfortable with CVI James Ullmer’s level of probable cause understanding.

In addition, he was concerned that trucker and OOIDA Member plaintiff Stephen House’s recollection “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.”

The 31-year veteran of the State Patrol is currently serving in Operations Support Services, a section that oversees litigation and training, among other areas.

The state told the court late Monday that it did not plan to call any more witnesses. In today’s court proceedings, both sides are expected to rest their cases. Judge Frank advised attorneys to be ready to follow with oral arguments.

The schedule is tentative, but Judge Frank has advised that he expects written statements from attorneys for both plaintiffs and defendants in two weeks. After those statements are in, Frank said he would rule within 30 days.

– 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.