17 of the 22 injury and death claims arising out of the mid-afternoon November 18, 2009 bus rollover on I-90 between Albert Lea and Rochester settled at mediation yesterday for $3.25 million, according to attorneys Paul Dahlberg and Jim Suk, both practicing in Rochester, and Richard Ruohonen (Minneapolis) who represented the injured parties and families of those who lost their lives.
Shortly after the accident, representatives of the bus company, Strain Bus Company of Rochester, which was running a casino trip to Diamond Jo Casino, advised the media that the driver, Edwin Erickson of Plainview, had suffered a sudden medical emergency due to an aneurysm, lost consciousness almost immediately and crashed the bus, killing two, seriously injuring two others and less seriously injuring at least thirteen of the 22 passengers. Law enforcement filed no charges, concluding that the accident had been caused by the sudden medical emergency and, thus, was unavoidable.
Bus passengers were incensed when no charges were filed. They indicated that Erickson had almost driven the bus off the road on the way to the casino. Three passengers claimed to have witnessed Erickson nodding, bobbing and shaking his head, as if falling asleep, for up to a minute or two before the crash on the way back from the casino. Medical evidence presented in the Court proceedings show an aneurysm was ruled out by Mayo; however, Erickson was incidentally discovered to have liver cirrhosis which had caused varicose veins to develop in his esophagus. Those varicose veins allowed a bleed into his gastrointestinal system. The bus company then claimed that, since there was no aneurysm, the “sudden medical emergency” had to have been by the esophageal bleed, which deprived Erickson’s brain of oxygen, causing him to pass out. However, the evidence showed Erickson was coherent at the scene and was found to have normal blood pressure and heart rate.
Investigation by the claimants’ attorneys disclosed that Erickson had been diagnosed with severe positional sleep apnea in 2001 at Mayo, but declined treatment. In 2002, Erickson was charged and convicted of driving while intoxicated. When making application for a commercial driver’s license to drive truck for a Rochester-area construction company in 2004, Erickson denied “frequent and habitual use of alcohol” under oath to the medical examiner, though admitting some sleep-related issues which he described as only “loud snoring”.
In 2006, when undergoing his biennial DOT exam to renew his commercial driver’s license to drive bus for Strain’s, Erickson again denied, under oath, “habitual, frequent use of alcohol”, but admitted to sleep-related issues and having undergone a sleep study at Mayo in 2001. The medical examiner demanded, as required by DOT guidelines, that Erickson produce a copy of the sleep study and proof that his sleep apnea had been resolved, giving Erickson only a 90 day license to allow him to do so.
Instead of returning to the medical examiner with the requested medical information and disregarding a follow-up request for that information, Erickson went to different medical examiner, this time denying under oath both sleep-related issues and frequent and habitual use of alcohol. Medical examiners are not allowed to look at an examinee’s medical records without permission and are required to rely upon the representations made under oath by the applicant. As a result, Erickson received a restriction-free commercial driver’s license.
In 2008, when undergoing his biennial DOT exam, Erickson again denied under oath to the examiner any sleep or alcohol problems. While hospitalized for the slow GI bleed following the bus crash caused by his esophageal varices (varicose veins in the esophagus), Erickson was found to have liver cirrhosis. Liver cirrhosis causes the development of esophageal varices by causing back pressure of blood flow in the veins of the esphophagus. Erickson continued steadfastly denied any significant use of alcohol for the past 20 and then 10 years, not disclosing his 2002 DWI. Finally, when confronted with the fact that all other medical causes of liver cirrhosis had been ruled out, Erickson admitted to still drinking on average 2-3 times each week up to the time of the accident.
A motion by the defense to dismiss the cases on the grounds of “sudden medical emergency” was denied earlier this summer by the Honorable Steven Schwab in Albert Lea, Minnesota. The Order noted that “the Court received and reviewed the following:
a) a large volume of conflicting medical evidence regarding the cause of the bus driver’s sudden loss of consciousness;
b) the fact that the bus driver was diagnosed with and suffered from obstructive sleep apnea;
c) that the bus driver lied to his physicians regarding his medical history and medical condition;
d) that the bus driver lied to the DOT examiners regarding his medical history and medical condition; and
e) that the bus driver may have been exhibiting symptoms of his prior medical condition immediately preceding the accident. “
A medical expert engaged by the claimants’ lawyers had determined that Erickson had not had a “sudden medical emergency”, but had actually lost control of the bus due to falling asleep at the wheel because of untreated sleep apnea. A commercial driving expert produced by the claimants’ attorneys stated that Erickson owed a high degree of duty to the bus passengers, that he ought to have immediately advised his employer when he almost drove off the road on the way to the casino and ought to have immediately pulled the bus off the road and taken himself out of service when he found himself falling asleep. The claimants’ accident reconstructionist stated that, had Erickson braked for as little as .7 seconds (long enough to deactivate the cruise control) the bus would have lost speed quickly enough that it would have been stopped or barely moving when it reached theembankment.
Sleep disorders are the most common source of daytime fatigue and sleepiness, increasing the risk of driving crashes. Sleep-related crashes represent up to 20% of all traffic accidents. Nodding-off crashes are most numerous in the afternoon in older drivers, making the identification of sleep disorders in commercial drivers, especially older drivers driving buses with people, crucial.