Jury Verdict Submission & Research

March 10, 2016 - Ruthie Allen and others were passengers on a bus owned and operated by Greyhound Lines, Inc. The bus departed Cincinnati, Ohio, on its way to Detroit, Michigan, at around 3:30 a.m. EST on Sept. 14, 2013. Less than an hour after leaving Cincinnati, the bus went off the road on Interstate 70 and flipped over, coming to rest in a cornfield. Many of the passengers sustained serious injuries, including compound fractures and neck and back injuries. Allen, who was ejected from her seat and out of the bus, was transported from the scene via air ambulance and has required numerous surgical operations since the crash. The passengers claimed that the driver, Dwayne Garrett, fell asleep at the wheel while driving at an excessive speed.  Garrett alleged that he passed out at the wheel from coughing due to choking on a sip of coffee.  

A negligence action followed in the Dallas County Court of Texas, in which the primary dispute was the cause of the accident – falling asleep at the wheel or the “choking syncope” event. Representing six of the injured passengers, including Allen, was Ryan Zehl and Kevin C. Haynes of Zehl & Associates, P.C ., and Carmen S. Mitchell of The Law Office of Carmen S. Mitchell. Representing Greyhound was Michael P. Sharp and Scott W. Self of Fee Smith Sharp & Vitullo, LLP.

Plaintiffs filed a motion to compel a Tex. R. Civ. P. 204.1 medical examination of Garrett, specifically a Type 1 nocturnal polysomnography, to confirm that he suffered from sleep apnea, a condition that plaintiffs claimed increased the risk of fatigue-related motor vehicle crashes by up to six times when left untreated. Plaintiffs claimed that a month before the crash, a Department of Transportation certified medical doctor had determined that Garrett was at risk of sleep apnea and recommended that he undergo an “in-lab” sleep study. For this reason, Garrett received a limited medical certification valid for only 3 months, but Garrett did not undergo the sleep study after a medical resident purportedly ruled out the condition.

Defendants argued that Garrett’s sleep condition was not in controversy and that there was not good cause for Garrett to submit to an intrusive, time-consuming, and personal procedure more than 20 months after the accident. Defendants also argued that a less intrusive procedure, an ambulatory in-home sleep study, was the established standard in the industry. Judge Sally L. Montgomery granted the motion on April 27, 2015. Defendants filed a petition for a writ of mandamus on May 4, 2015, in the Court of Appeals, Fifth District of Texas, arguing that Judge Montgomery abused her discretion by ordering the medical examination of Garrett.  The appellate court denied the petition on May 22, 2015. The study proceeded and allegedly confirmed that the driver had moderate to severe sleep apnea.

On March 8, 2016, it was announced that a $6,000,000 settlement had been reached. Plaintiffs' attorney Ryan Zehl, of Houston, said that the settlement "will bring needed awareness to the catastrophic consequences of untreated obstructive sleep apnea in commercial drivers." According to Zehl, this is the first time plaintiffs have obtained orders from both a trial court and appellate court requiring a commercial driver to undergo an overnight sleep study. "Our hope is that these rulings will help prevent future fatigue-related collisions by encouraging bus and trucking companies to be more proactive when screening for sleep apnea and other sleep disorders that, when untreated, place passengers and the motoring public at serious harm." As reported in Law 360, defense attorney Scott W. Self of Fee Smith Sharp & Vitullo LLP described the sleep study as suspect because it took place nearly two years after the crash, was conducted by an expert unilaterally chosen by the plaintiffs, took place in a lab instead of at home, and required Garrett to sleep on his back, a position more likely to produce sleep apnea findings. The case is Ruthie Allen, et al., v. Greyhound Lines, Inc., et al., Cause No. CC-13-05789-C in County Court at Law No. 3 in Dallas County, Texas.