“Mark has distinguished himself and brings great credit to the firm with exceptional work and a history of substantial verdicts,” said Michael L. Slack, Managing Partner of Slack & Davis. “We are more than pleased to be announcing this news and adding him to our team of partners.”

Mr. Pierce has established himself as an outstanding advocate in major personal injury and wrongful death cases, with experience representing consumers and victims of deceptive business practices at the trial and appellate level. Similarly, he has an in-depth understanding of aviation issues representing victims of airplane and helicopter crashes. Mr. Pierce is an FAA-certified commercial pilot and flight instructor with a wealth of experience in aviation-related legal matters.

Mr. Pierce stated, “It is with great excitement that I step into my new role as partner, and I look forward to contributing to the firm’s ongoing success.”

Mr. Pierce currently serves as treasurer of the Lawyer-Pilots Bar Association and board member of the Texas Aviation Association. He also is vice chairman of the Aviation Law Section of the American Association for Justice (formerly Association of Trial Lawyers of America). In addition, he is a member of the Texas Trial Lawyers Association (TTLA), for which he has served on the board of directors; Capital Area Trial Lawyers Association; Austin Bar Association and El Paso Bar Association.

Besides aviation matters, Mr. Pierce handles a variety of major personal injury and death cases involving unsafe products, construction site and workplace disasters, automobile and truck wrecks.

Mr. Pierce graduated with honors from the University of Texas School of Law in 1979.

We don’t know yet what caused the blast, nor do we have a final count of those injured or killed.

What we do know is that the company appears to have downplayed the risks associated with plant activity. Numerous sources report that the plant had at least 50,000 pounds of anhydrous ammonia onsite, yet the site’s operators told the U.S. Environmental Protection Agency and public safety officials that it posed no risk of fire or explosion. The worst case scenario, company officials said, would entail a 10-minute release of ammonia gas that would kill or injure no one.

According to NBC News:

Last summer, the U.S. Pipeline and Hazardous Materials Safety Administration fined West Fertilizer $10,000 for safety violations, including planning to transport anhydrous ammonia without adequate security and failing to properly label ammonia tanks. The company paid a reduced fine of $5,250 after agreeing to take corrective action. The fine was reported by several news organizations.

In 2006, the company was fined $2,300 by the EPA for not having filed a risk management plan, according to the EPA’s compliance database. The EPA said it had poor employee training records, failed to document hazards and didn’t have a written maintenance program. The EPA said the company corrected the deficiencies and filed an updated plan in 2011 – making no mention of the presence of ammonium nitrate – and was then in compliance with EPA regulations.

Also in 2006, the state Department of Environmental Quality found that the company was operating without a permit for its two 12,000-gallon tanks for anhydrous ammonia, which is stored as a liquid under high pressure. The state department hadn’t known about the tanks until a neighbor complained of a “very bad” smell of ammonia at night. The chemical is used on farms directly as a fertilizer, and can be combined with nitric acid to make ammonium nitrate fertilizer. No state permit for the tanks had been required when the plant was built in 1962, and it was grandfathered in until a 2004 change in state law required even those older plants to have permits.

State environmental officials received two complaints about the company. One, in 2002, said, “This place is in the northern part of town and every day during the grain harvest season there is a cloud of dust. Particles are falling like snow around town. People are afraid to complain, however this is effecting (sic) neighbors’ health with scratchy throats, cough and sneezing.” The other was in 2006, and led to the plant getting a permit for its anhydrous ammonia tanks: “Ammonia Smell very bad last night from fertilizer plant, lingered until after they went to bed,” it said.

Meanwhile, according to the Dallas Morning News, homes and schools were built within 3,000 feet of the facility. In fact, the nearest residence was 350 feet from the plant.

As investigators from the Bureau of Alcohol, Tobacco, Firearms and Explosives, Environmental Protection Agency and Texas Commission on Environmental Quality make their way toward West, Texas, to begin their work, we find ourselves asking some questions of our own, based on prior Slack & Davis case experience:

1) Holding large stockpiles of ammonium nitrate is a known fire risk with the capacity to detonate, as our state saw in the Texas City disaster of 1947. So how and why did the West Fertilizer Company plant withhold vital information about plant activity from government regulators?

2) Who was in charge of accuracy of plant safety reports?

3) Did the omission of information pave the path for nearby development, including a nursing home and an apartment complex?

More information about this horrific explosion will be revealed in coming days and weeks. As of this writing, the explosion is still being investigated as a crime scene. But if, in the end, it comes down to a company misrepresenting plant activity, leaving people in the West, Texas, community vulnerable, company officials should take full responsibility for the overwhelming injuries and loss.

Mike Davis contributed to this post.

While rear underride guards are required for new trailers, trucking companies are not required to retrofit older trucks. Side underride guards are not required at all. And, even the underride guards that are currently used on trucks in the U.S. are inadequate and fail to do the job they were designed to do.

As the article below indicates, these devices could significantly reduce the amount of damage and injury caused during a crash by ensuring that cars do not end up under the trailer.

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Trailer Underride Guards Put to the Test
by Kelly Taylor, Truck News

A Canadian-made transport trailer is being hailed by American safety experts as the gold standard for protecting drivers and passengers of cars that crash into the trailer’s rear.

Dry vans manufactured by Quebec-based Manac and sold under trade names Manac and Trailmobile were the only trailers to pass all three tests of the trailers’ rear underride guards conducted by the Virginia-based Insurance Institute for Highway Safety (IIHS).

The trailers that failed included American trailers built to tougher Canadian standards for rear underride guards, prompting the IIHS to call for standards that more closely approximate the results of the Manac trailers.

Underride guards came into prominence after the death of actress Jayne Mansfield, who in 1967 was riding in a 1966 Buick Electra when it crashed into a stopped transport trailer near New Orleans. The greenhouse of the car was sheared off, Mansfield and the driver died instantly.

The guards, also known as Mansfield bars, transfer the structure of the trailer from deck height down to a level more compatible with cars. Without them, or when they fail, the car can ride under the deck with often-catastrophic results.

“Modern vehicles are built to handle severe frontal crashes,” said IIHS spokesman Russ Rader. “The crash-absorbing structures in the front of the vehicle are designed to crush and absorb impact and keep it away from the passenger compartment. If the car engages with the underride guard, and the guard stays in place, the front of the car crushes like it would hitting any other vehicle and people could walk away from a crash like that. But if the guard gives way and the car slides under the vehicle, then all bets are off. And you’ve missed all the important safety features in the front of the car. With the stronger Canadian standards, as we’ve seen, these kinds of underrides can be prevented,” Rader said.

The IIHS tested the bars in full-width crashes, 50% overlap (where the end of the bar is at the centre of the car) and at 30% overlap, the toughest standard. (The IIHS chose 30% because that was the minimum amount of impact that could still result in the trailer striking the head of the occupant on the side of impact).

A 2010 Chevrolet Malibu was used for all tests, chosen because it is has earned the institute’s Top Safety Pick.

Using a Top Safety Pick helps ensure the results reflect flaws in trailer design rather than flaws in the test vehicle’s safety mechanisms.

All trailers tested passed a full-width impact, sufficiently transferring crash forces to the structure of the trailer and allowing the car’s crush zones to properly protect the passengers. All but one, those build by Vanguard, passed the 50% overlap test and all but the Manac trailers failed the 30% overlap test (see chart for complete results).

The Manac trailers passed, according to the IIHS analysis, because the vertical supports that hold the bars near car bumper height are attached more closely to the outside of the trailer and to a reinforced mounting position on the trailer deck.

The typical failure resulted from horizontal bars that bent outside the vertical supports or those where the vertical support on the side of impact failed.

“What we’re trying to do is encourage the transportation industry to purchase the trailers that meet the tougher standards,” Rader said.

Bob Dolyniuk, executive director of the Manitoba Trucking Association, said the trucking industry keeps safety as a top priority, but wonders about the fairness of offloading additional equipment costs to truckers on an issue that rarely, if ever, is the trucker’s fault.

“It’s affecting our industry’s equipment costs because of the need to prevent people from hurting themselves,” Dolyniuk said. “We’re not opposed to safety. But we’d like to see some responsibility on the other side.”

“Almost all motor vehicle crashes involve drivers making mistakes, but the sentence for a mistake shouldn’t be death,” Rader countered. “Our tests demonstrate that underride in crashes can be prevented with relatively inexpensive changes to the guards on trailers. Manac made a change that added 20 lbs to the guard and cost about $20.”

Still, Dolyniuk would like to see some action by vehicle manufacturers and governments to increase the training and examination standards of drivers of passenger vehicles. It’s an issue that goes beyond underride guards and covers all aspects of how vehicles share the road.

Dolyniuk said too few passenger car drivers understand the dynamics of truck-trailer combinations, specifically, the trucker’s ability to begin moving and to stop moving. He said more work needs to be done to help drivers understand how to interact safely with transport trucks on the roadway.

David Zuby, chief research officer for the IIHS, said in a press release that a benefit to the industry from stronger underride guards is that after a crash, the underride guard is often the only part of the trailer to require repairs, helping mitigate crash costs.

“If trailer manufacturers can make guards that do a better job of protecting passenger vehicle occupants while also promising lower repair costs for their customers, that’s a win-win,” Zuby said. “While we’re counting on NHTSA to come up with a more effective regulation, we hope that in the meantime trailer buyers take note of our findings and insist on stronger guards.”

Link to story.

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Checks Find Unsafe Practices at Compounding Pharmacies
by Andrew Pollack, The New York Times
April 12, 2013

After a crash inspection program, federal regulators said Thursday that they had found numerous unsafe practices at about 30 compounding pharmacies, the same type of facility responsible for the tainted drug that caused a deadly meningitis outbreak last year.

Among the problems found were unidentified black particles floating in vials of supposedly sterile medicines, rust and mold in clean rooms where such drugs are made, improper air flow, and clothing that left workers’ skin exposed.

Howard Sklamberg, director of the office of compliance for the drug division of the Food and Drug Administration, said such unsafe practices could cause contamination of drugs. He said the number of problems found at the compounding pharmacies, which were in 18 states, was higher than what is typically seen at conventional pharmaceutical manufacturers.

F.D.A. officials also said the agency had to get a warrant from federal court to inspect one of the 30 compounding pharmacies. Four other operations resisted being inspected but gave in without a court order, agency officials said.

“It may surprise some people to know that, even in light of the recent tragic events, some of the firms we inspect still challenge our authority to conduct full inspections of their facilities,” Dr. Margaret A. Hamburg, the F.D.A. commissioner, wrote in a post on the agency’s blog on Thursday.

Mr. Sklamberg said the F.D.A. was exploring actions it might take against the pharmacies if the problems were not corrected.

More than 50 people died from fungal meningitis and another 680 were sickened after receiving injections last year of a contaminated steroid made by the New England Compounding Center. Compounding pharmacies originally made specialized formulations of drugs for patients with particular needs, like a liquid form of a medicine for someone who cannot swallow a pill. But in recent years, the number of compounders has multiplied, and some have become essentially mass manufacturers, distributing huge quantities of medicines all over the country.

A House subcommittee will hold a hearing on Tuesday at which Dr. Hamburg is expected to be questioned as to whether the F.D.A. could have prevented the meningitis outbreak by better policing the compounding pharmacies.

The agency maintains that it has limited legal authority to oversee compounders, which are regulated by state boards of pharmacy even though many ship drugs across state lines.

“Because they don’t register with us, we don’t know who they are, we don’t have a list of what products they produce,” Mr. Sklamberg said in an interview Thursday.

The F.D.A.’s disclosure of the inspection reports and of the resistance its inspectors faced could bolster its case for legislation, already under development in the Senate, to give it more authority over compounding pharmacies.

It could also backfire. Some Republicans who have expressed skepticism about the need for legislation are likely to point to the recent inspections as evidence that the F.D.A. already has the authority it needs, and that it could have done similar inspections in the past.

The F.D.A. had inspected specific compounding pharmacies only when a problem was reported or suspected. Mr. Sklamberg said that regularly inspecting compounding pharmacies in the past would have strained the agency’s resources, given the extra effort required.

Some compounding pharmacies might brush off the F.D.A. findings as being part of a push to win legislation.

“It behooves them to make sure they find observations or violations or deficiencies,” said Scott A. Livingston, a lawyer representing Olympia Compounding Pharmacy in Orlando, Fla., for which the F.D.A. said it required a warrant.

Mr. Livingston said the pharmacy allowed the inspection and access to documents. He said the warrant was required only because the pharmacy, concerned about patient privacy, did not want to provide the F.D.A. with copies of those documents to take with them.

Perhaps seeking to take some heat off the F.D.A., four Democrats on the House Energy and Commerce Committee on Thursday said the head of the compounding industry’s trade group, the International Academy of Compounding Pharmacists, should also testify at Tuesday’s hearing.

The Democrats said the trade group’s internal memos showed that it lobbied aggressively for almost two decades to restrict F.D.A. oversight.

But Representative Tim Murphy, a Pennsylvania Republican and the chairman of the Subcommittee on Oversight and Investigations, seemed inclined to keep the focus of the hearing on the F.D.A.

Link to story.

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Lethal Medicine Linked to Meningitis Outbreak

The following script is from “Lethal Medicine” which aired on CBS 60 Minutes on March 10, 2013. Scott Pelley is the correspondent. Michael Radutzky, Oriana Zill de Granados and Michael Rey, producers.

Last fall, 17,000 vials of a steroid were shipped to clinics and hospitals in 23 states. The drug had to be sterile because patients would have it injected into their joints or their spines to relieve chronic pain. What happened next is the worst pharmaceutical disaster in decades.

The steroid was contaminated with fungus. Forty-eight people have been killed, 720 are being treated for persistent fungal infections. The tragedy has exposed a failure in drug safety. And, in a moment, you will hear the commissioner of the FDA acknowledge that she can no longer guarantee the safety of many high risk drugs.

The steroid was produced by New England Compounding Center and in the six months since the first deaths, no one at New England Compounding has revealed what happened. But tonight they will. As for the victims, this has been an unrelenting horror after just one injection of lethal medicine…

Click to see full 60 Minutes story, with video.

KAMC (TV) Investigates Uncovers String of Safety Violations Tied to Monday Truck Crash
March 26, 2013

A KAMC investigation has uncovered a string of safety violations tied to a Lubbock battery company whose truck crashed off I-27 in New Deal on Monday.

According to records obtained from the Federal Motor Carrier Safety Administration, the truck owned by Battery Solutions, Inc. has failed two of its last eight vehicle inspections, four of the last eight driver inspections and two of the last hazmat inspections.

Records of safety inspections are maintained by FMCSA for the most recent 24-month period.

A truck registered to Battery Solutions, Inc. crashed Monday afternoon while driving south on I-27 between exits 15 and 14.

The truck ran off the road, through a guard rail and landed beneath an interstate overpass. The truck was carrying car batteries, which spilled across Loop 461 in New Deal.

Hazmat crews spent more than a day cleaning up leaking battery acid at the crash site.

Inspection records maintained by FMCSA show the company–which owns just one truck and employs just one driver according to federal records–failed two hazmat inspections.

The first failure came on April 23, 2012 when the company was cited for not placing a hazmat placecard on the vehicle and not securing the packaging in the truck, among other violations.

The company was cited again on June 6, 2012 for failing to place a hazmat placecard on the outside of the truck as required by law.

Federal inspection records show the company’s driver faced a series of citations in 2011, too.

According to data from the FMCSA, the company’s driver was cited for lacking a valid license type for the vehicle being operated on July 18, 2011. The company’s driver was cited for the same violation again on December 12, 2011.

Also on December 12, 2011, the company’s driver was cited for driving the truck after being declared out of service and failing to keep a proper log of his work activity.

The company’s first driver log violation came on September 26, 2011.

An attorney for Battery Solutions called KAMC Investigates late Tuesday night to dispute the federal records.

According to the company’s attorney, the owners of Battery Solutions were unaware their company’s truck had ever failed an inspection. The attorney also said the company purchased a new truck in 2012 and replaced the driver that received citations for having an improper license in 2011.

Link to story, with video.

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The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. For more information about Super Lawyers, visit SuperLawyers.com.

“We need to make our community safer by ensuring that drunk drivers and the bars that over serve them pay for the injuries they cause,” says Ms. Kaplan. “The result in the criminal case against Nestande was a slap on the wrist and is an unacceptable end to such a devastating tragedy.”

Clive Bar continued to serve Nestande alcohol despite the fact that she was noticeably intoxicated. When Nestande attempted to drive home, she hit and killed Courtney Griffin. Courtney was walking home from a friend’s house who had called Courtney earlier in the evening for help home as the friend had too much to drink.

Nestande did not stop to help Courtney or call the police. Courtney’s body was not discovered until after 5:00 am. Ms. Kaplan is demanding a jury trial on all issues.

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NTSB Chairman Highlights Importance of Restorative Rest During National Sleep Awareness Week

WASHINGTON – The National Transportation Safety Board Chairman Deborah A. P. Hersman recognizes National Sleep Awareness Week (March 3-10) and the seriousness of fatigue as a safety issue across all modes of transportation.

“In our investigations, we’ve seen truck drivers driving through the night during circadian lows, mariners navigating treacherous channels during pre-dawn hours and air traffic controllers working rotating shifts with short turnarounds,” said NTSB Chairman Hersman.

NTSB has studied operator fatigue and issued recommendations calling for improved scheduling regulations and practices, education for operators and employers concerning fatigue and sleep disorders, and research to better understand the risks associated with fatigue in transportation.

“There are too many transportation accidents where the lack of sleep and fatigue have either caused the accident or been a contributory factor,” Hersman added. “Sleep Awareness Week reminds us all of the vital importance of restorative rest.”

*Source: smartmotorist.com