Biography: Ned B. Einstein
After receiving his Masters in Urban & Regional Planning from George Washington University, TA founder & President Ned Einstein began his more than 40-year career in the passenger transportation field following a year consulting to the Illinois Department of Transportation as a consultant to the US Department of Transportation. For USDOT, its Urban Mass Transportation Administration (currently the Federal Transit Administration), Mr. Einstein prepared the Summary Report of the National Survey of Handicapped People submitted to Congress, designed and served as the Project Manager of the jointly-funded UMTA/APTA National Conference on Transit Performance (1976), and among several other projects, directed the USDOT’s first nationwide study of transportation systems for elderly and disabled individuals, examining 30 systems in 18 U.S. cities, and resulting in the Department’s publication of a three-volume manual on decision-making, system design and operations authored by Mr. Einstein.
While Mr. Einstein’s focus has shifted the past two decades increasingly toward the provision of expert witness services, he has continued periodically conducting and participating in consulting efforts in almost every sector of the passenger transportation industry (See Resume/CV). Mr. Einstein’s career in the past three and a half decades is likely the most unique in the entire passenger field, as he has directed and participated, at the highest levels, in major projects of national scope, in every non-rail ground passenger transportation mode or service, in addition to serving as an expert witness in more than 600 personal injury, wrongful death, labor-relations and class action lawsuits.
In the consulting arena, many of Mr. Einstein’s projects are legendary in the transportation field, including his work on a European-manufactured school bus and motorcoach whose design and marketing he coordinated and sold into the North American market, and 10 years spent operating a 70-vehicle consolidated paratransit and non-emergency medical transportation (NEMT) system, the former providing 5.0 passenger trips/vehicle service hour in a large suburban and large rural area, respectively.
Otherwise, a quick sample of his consulting work includes:
- Examining the products, production line and export potential for Russian bus manufacturer PAZ (as a subcontractor to Bain & Company).
- Conducting an examination of motorcoach duty cycles and operation environments as they relate to driver fatigue and Federal Hours-of-Service violations (for USDOT’s Federal Motor Carrier Safety Administration).
- Conducting two studies of loading constraints and on-time reliability problems for the District of Columbia’s special education system (as part of the effort to resolve a near decade-long class action lawsuit: Petties v. DC Public Schools).
- Analyzing various software scheduling programs to address the virtual unraveling of the City of Edmonton’s Disabled Adults Transportation System (DATS).
- Re-designing Rhode Island’s statewide, consolidated complementary paratransit system and social service agency-based system, including consolidating service areas, creating an RFP and operating contract for newly-selected service providers, directing the bid process and negotiating operating contracts with the winning bidders.
- Developing technical specifications for a consolidated school bus/transit system’s vehicles and operating parameters (for the National Academy of Science’s Transportation Cooperative Research Program).
- Making presentations and conducting workshops at national, state and provincial transportation conferences in the pupil transportation, transit, paratransit and vehicle conversion fields.
- Authoring regular monthly columns on “Safety and Liability” for National Bus Trader magazine for more than a decade (ongoing), writing special full-length pieces for NBT, authoring regular monthly articles about crossing (“The Crossing Guy”) for four years for School Transportation News, submitting eight, full-length papers published by the American Public Transportation Association (APTA) in the Proceedings of several of its annual Bus and Paratransit Conferences, and serving as a member of APTA’s ADA-related Access Committee.
- Serving as one of the initial instructors in the recently-formed National Motorcoach Academy, sponsored by the United Motorcoach Association.
In the forensic arena, Mr. Einstein has participated, as an expert witness, in more than 100 lawsuits involving crossing and nearly 150 involving wheelchair and/or passenger securement, 20 molestation and assault cases, and hundreds of others (See Common Accident and Incident Scenarios). Among these cases:
Of his more than 70 cases involving fixed route transit service, the most common themes have involved wheelchair and passenger securement, on-board slips and falls, boarding and alighting, vehicle-pedestrian collisions, crossing incidents, drivers failing to pull to the curb or “kneel” their buses, and numerous other themes. Interestingly, the perceived causes of many or most of these incidents were merely symptoms of the fact that the vehicles’ schedules were too tight, and drivers were forced to compromise a range of safety procedures in order to create some “recovery time” to catch their breath (much less take bathroom breaks or grab a snack) in order to avoid a full shift with not a nanosecond of rest in a job involving enormous stress and fatigue.
Of his more than 70 cases in the school bus field, almost half involved crossing, where roughly half of the victims executed the incorrect “crossing orientation” (i.e., crossed behind the bus instead of in front of it, where its red flashers, stop arm and driver directions could have assisted them across). Otherwise, the second-most common school bus incident scenario has been, surprisingly, passenger molestation — in most cases, either special education or very young students molested either by their drivers or fellow students. The central theme in most of these cases was an inexcusable lack of monitoring — a discipline in which Mr. Einstein is likely the nation’s leading expert. In many of these cases the defendant’s organization also violated FERPA (Family Education Rights and Privacy Act) regulations by not providing access to detailed medical, educational and treatment records to drivers and bus monitors, violations that could trigger instructions to the jury that it may assess punitive damages against the defendant.
Unlike transit service, most school bus schedules are not unreasonably tight. In contrast, poor stop selection is a common cause of numerous incidents (particularly crossing incidents), and this function is often performed by those unqualified to select bus stops (like drivers), and in some cases, no one designed either the routes or schedules, or selected the stops by leaving these decisions up to the whims of drivers.
A unique aspect of school bus-related crossing accidents is the fact that, while most of the plaintiffs are struck by third-party vehicles (whose drivers usually possess minimal insurance) during “pass-bys” [where the buses’ loading/unloading flashers and stop arm were engaged], most of the errors and omissions are generally caused by the school district or its contract service provider. (Unbeknownst to most attorneys, school bus crossing procedures are designed to assume that motorists will often ignore a school bus’ engaged crossing devices.)
Finally, while both school bus and transit services are fixed route services (i.e., serve selected or “designated” stops along an officially-defined route or path between them), school bus management typically cares deeply about their passengers, particularly disabled ones. In the transit field, the opposite is commonly the case where, in particular, many management officials and some drivers verily hate and loathe the passengers, particularly those who are disabled, for whom the provision of unreliable and unsafe services discourages them from riding — a formal while obviously unwritten goal of many transit systems since the provision of this costly service is an “unfunded mandate” of the ADA, compounded by the fact that virtually no paratransit provider in this country knows how to provide this service (or NEMT service, similarly) efficiently, but instead, attempts to control costs by exploiting loopholes in the ADA (or relying on the FTA’s failure to ever enforce a single system’s compliance with the Act) to discourage potential system users from riding these services, to which they are entitled as a civil right.
Such dynamics overwhelmingly govern the “safety cultures” of these and other passenger transportation services, and are the underlying causes of most of their incidents and accidents. Thus, prosecuting a case against a defendant of this type without understanding this culture and its goals places the plaintiff’s counsel at a decided disadvantage, just as not understanding what “buttons” to push (threats of ADA audits or injunctions to purchase additional vehicles dwarf their fears of damage pay-outs) will leave the plaintiff’s counsel with only a fraction of the settlements otherwise attainable, just as FERPA violations and HIPAA violations often lead to an assessment of punitive damages on defendants providing school bus or non-emergency medical transportation, respectively.
Of the scores of lawsuits I’ve served as an expert on involving complementary paratransit service (the door-to-door or curb-to-curb service for disabled individuals required by the Americans with Disabilities Act for those passengers unable to use fixed route transit services), by far the most common incident scenario involves negligent wheelchair and/or passenger securement, almost always because the schedules are too tight. Much of this phenomenon is the result of the now-almost-universal use of computerized scheduling software operated by an army of computer geeks instead of management personnel with a “feel” for operations. The notion of actually designing an efficient system as a starting point has virtually disappeared since the emergence of computerized scheduling software in the early 1990s, and most systems operate at half or a third of their potential efficiency as a result. As an unfunded mandate, the costs of this inefficiency are overwhelming. These two most common responses are to take advantage of or “stretch” the loopholes in the ADA (as noted) either by obsessively-stringent certification processes, or to make the quality of service so poor as to discourage those eligible for it from actually using it, or to compromise safety in order to reduce operating costs. The dynamics lead to a plethora of lawsuits where the damages are often considerable given the condition of the “eggshell” passengers before the incidents-in-question occur.
Initially, in examining dozens of such systems for USDOT, and then scores more in my forensic work (after having designed several, and operated my own for a decade), I have found that virtually every modern system is committing at least a handful of ADA violations. So when an incident occurs, one finds not only regulatory violations (which in many states trigger an assessment of punitive damages), but civil rights violations. Beyond the costs of such damages, the providers of such services are terrified by the notion of an FTA-ordered performance audit and the class action suit that inevitably follows its findings. Further still, transit agencies filing grant applications for anything are required to sign a “statement of full compliance” alleging that all their systems are in full compliance with each and every provision of the ADA. Since they obviously are not, these systems are vulnerable to the filing of a qui tam motion, the success of which could mean they may be forced to return more than two decades of Federal grant funds to the FTA (i.e., effectively to the “taxpayers”), less the percentage allocated to the plaintiffs. For a major city, particularly with a rail system, this sum could amount to tens of billions of dollars. So the leverage in paratransit-based lawsuits is extraordinary if the attorney and his or her expert have a mastery of the subject matter — a mastery that makes proving liability almost child’s play.
Taxi Service is very similar to NEMT/ambulette service (see discussion below) insofar as its rate structure. However, because it is provided (a) to the general public, and (b) for a fare, taxi services are almost always considered “common carriers,” and held to the highest standard and duty of care â€“ even though, in reality, they deliver the lowest standard of care of any mode, at least with respect to the safety of their [usually] non-disabled passengers. (Try to remember the last time you were able to fasten your seatbelt before the vehicle zoomed off, or the last time a taxi driver assisted you in and out of the vehicle.) Fortunately, because most taxi vehicles are either sedans or low-floor minivans (including a slowly-increasing number of ramp-equipped wheelchair-accessible vans), there are few injuries involving passengers boarding or alighting (compared to transit, motorcoach and shuttle services, the last of which often deploys vehicles without stepwells and where exiting from them presents a serious challenge to many types, sizes and weights of passengers). In contrast, the often erratic driving triggered by the taxi industry’s hysterical operating environment (largely a consequence of the rate structure under which taxi drivers operate), low pay and challenging “duty cycle” (i.e., most drivers operate six 12-hour shifts per week, sharing it with a fellow-driver in order to eke out a marginal living) leads to a plethora of minor collisions. Interesting, because driving taxis is also a dangerous profession, and drivers are not well protected by a spectrum of failures from poor dispatching and monitoring to barely-existent training, taxi drivers (or their “estates”) often emerge as plaintiffs.
Shuttle Services such as those for airports and hotels fly “under the regulatory radar” more than any other mode apart from limousines (many of whose vehicles defy principles of physics when they are “stretched,” while brake systems and other components are not enlarged to match the doubled or almost tripled masses of these “conversions”). Passenger assistance is not universal, and is generally needed (and reasonable and prudent) only when the vehicle does not contain a safe and coherent entry and exit. Stepwells, much less with good handrails, are common but hardly universal. Where they do not exist, not only is driver assistance to passengers important, but purpose-built footstools are often important as well. Interestingly, straps, an unusual feature, are more effective for high-floor vehicles with no stepwells than are handrails, because most handrails lie behind passengers when they alight, and are therefore of no value, whereas the passenger can continue to grasp a movable strap while descending the vehicle’s often marginal running board or boards, almost always far too high above ground level to provide a safe “bottom step.” One exception is the diagonal handrails installed on the inside panel of outward-opening dual doors: When the doors are opened, alighting passengers then have a handrail in front of them,“ of value if the doors are cantilevered. (If not, the doors just swing around, and the passengers fall right out onto the ground.) Regardless, the high floors, narrow running boards and poor handrails (if any) of many shuttle vehicles translate into a lot of fall-outs.
As a consequence of these factors, falling out of a shuttle vehicle while alighting is by far the most common shuttle injury. Also, because most of the companies that deploy these vehicles provide transportation only as an “ancillary” service, their operation is not subject to the provisions of the ADA. So finding regulatory violations is rare, whereas the standard and duty of care is high, since, like taxi service, most shuttle services (particularly airport shuttle services) are common carriers, even though the fares may be paid indirectly in some cases (e.g., hotels use them to ferry passengers to and from the hotel and the local airport or rail station seemingly for free, but the passengers include payment for these services in their payment for their hotel rooms).
Another problem is the enormous variation among vehicles deployed in this type of service. Particularly for a passenger who travels by air regularly, he or she may encounter a series of relatively safe vehicles and suddenly find him- or herself on a really dangerous one, and not recognize the difference. I have done cases where passengers have literally walked off the edge of the floor 26 inches above ground level when they expected a drop of perhaps 14 inches (like that of an un-kneeled high-floor transit bus or motorcoach) at most. In other cases, a lower “running board” may not only be a mere 19 inches above the ground surface, but is commonly only four inches deep — enough for a third of a typical male adult’s shoe, and sometimes the non-skid surface has been worn off. Because shuttle vehicles are rarely “handicapped accessible” in any manner, they can pose particular hazards for cane and walker users, and without driver assistance and/or the use of a footstool, boarding and alighting (in particular) pose serious challenges.
Finally, while shuttle vehicles are largely immune to regulations such as the ADA, FERPA, HIPAA, Medicare or Medicaid, they are almost always “common carriers:” Directly or indirectly (e.g., the shuttle may be an amenity that comes with a hotel’s costs), the passenger pays a fare, and the service is available to any member of the general public. So while regulatory violations and punitive damages may be hard to find and obtain, respectively, against shuttle services, the services and their drivers are held to the highest standard and duty of care. They rarely provide it.
Non-Emergency Medical Transportation (NEMT) is often the dirtiest underbelly of the entire passenger transportation field, with a handful of surprisingly-well-operated and profitable exceptions. Much of this reality stems from the scarcity of regulations. But far more of it stems from the abstract nature of this mode’s reimbursement formula, most of which is dictated by Medicare regulations: Similar to the rates common to the taxicab industry, most NEMT providers are reimbursed on a formula including (a) a per-trip charge plus (b) a per-mile charge. Unfortunately, like most transportation services, NEMT costs are not incurred on the basis of such an abstraction, but instead are incurred partly in (a) hourly costs [e.g., driver’s salaries], (b) mileage costs [e.g., fuel and maintenance] and (c) fixed costs. As a consequence, the service provider’s vehicles must provide a certain number of trips per hour, or more importantly, cover a certain number of “passenger miles” per hour (i.e., they are not reimbursed for any “deadhead” time or mileage) in order to reach a break-even point, much less generate a profit. This dynamic creates an operating environment that is often close to hysterical, whereby drivers have to speed and otherwise ignore or disregard a vast spectrum of safety practices to merely “survive.” In some cases, particularly where “brokers” are involved, the abstract rate structures under which the broker operates (often on a “per-capita” basis where the broker’s crystal ball must predict how many trips its various types of clients will likely take each month) are passed onto not only the subcontract service providers engaged by the broker, but in some cases, even to the service providers’ drivers!
Compounding these problems is the rarity of scheduling expertise in this field. In fact, many if not most NEMT providers dispatch every single trip, as taxicab operators do, rather than pre-schedule many or most of them (the most common trip is to and from dialysis treatment, where the same passenger travels between the same origin and destination three times a week, at the same exact times, making it easy to schedule them instead of dispatching them, much less efficiently and profitably). As a consequence, efficiency may be half to a third of what it might be if NEMT management possessed some actual expertise in scheduling. Instead, to compensate for this lost efficiency, NEMT providers often cut corners in safety, with the predictable results.
To the good fortune of an injured passenger’s counsel, this chaos tends to violate a handful of major regulations, most typically those of the ADA and HIPAA (the latter of which requires a healthcare agency’s “business associates” [which all its contracted transportation providers are, unless the healthcare agency itself provides the transportation, whereby HIPAA regulations obviously still apply] to have access to the medical and treatment records of the passengers. In real life, possessing such information in the NEMT field is a rarity, and demonstrating this is a crayon-level exercise that opens the doors to the possible assessment of punitive damages in most states, particularly as few NEMT providers are public agencies, and thus damages are not limited by the “caps” many states’ public agencies enjoy.
Further still, most NEMT services are MediCare-funded (just as non-medical trips for the same clients are typically Medicaid-funded), NEMT service regulations require passenger assistance into and out of the vehicle. Interestingly, while MediCare is a Federally-funded program, the decision to assist each passenger between the vehicle and the origin or destination is a State-controlled decision. In other words, all service must be door-to-door, not curb-to-curb. So what might be a non-case in most modes, simply because the passengers have already alighted and simply stumble while walking to their destinations, becomes not only a lawsuit in NEMT service, but one involving at least one serious regulatory violation (depending, again, on which states require physical passenger assistance between the vehicle and the passenger’s origin or destination).
The low profit margins and paucity of regulations (not counting the major ones cited above) governing this type of service also translate, often, into a bottom-of-the-barrel driver pool. Compounding the poor pay is a radical driver turnover rate, since many NEMT drivers are emergency medical technicians (EMTs), and use their positions as NEMT drivers merely as steppingstones to their becoming more highly-paid paramedics (many of whom also drive NEMT vehicles), ambulance drivers, and even more prized, fire fighters. So many small NEMT operations employ drivers with criminal records, and the lack of concern for the passengers is understandable and predictable.
Motorcoach vehicles are generally the best-constructed, and clearly the most luxurious (other than customized limousines or customized motorcoaches), and are usually common carriers. However, “usually” is a pejorative concept since the same vehicle, operating in the same environment, between the same origin and destination, and during the same hours, may be either a charter service or a tour service. Only tour service is available to the general public. In contrast, charter services are generally paid for by a group (even though the passengers may “chip in”), and not available to the general public. So in some states, this seemingly esoteric distinction may translate into the difference between motorcoaches being common carriers or not and thus, the need to provide the highest standard and duty of care versus an ordinary standard and duty of care, like that of a common motorist. In some states, where this distinction has not been codified by an appellate decision, one must argue that a charter service is a common carrier. This is easier in certain states, like California, where an amusement park ride (Gomez v. Superior Court, 2005) and a ski lift (Squaw Valley v. Superior Court, 2005) are considered common carriers, while it may be harder to argue in states without such precedents.
Unlike transit service, the ADA was applied to the motorcoach industry virtually an entire decade later, and the requirement to only purchase new motorcoaches that are “handicapped accessible” did not become a requirement until 2012. In theory, half of one’s newly-purchased vehicles had to be accessible since 2006, but this provision was never enforced, and as a consequence, few motorcoaches in most fleets are accessible (although this will change gradually over the next decade as “mothball” fleets are gradually replaced with lift-equipped vehicles. When they are not, a host of bizarre requirements exist that motorcoach providers rarely comply with. For example, as per the ADA, when a non-accessible motorcoach arrives to pick-up a wheelchair user, his or her chair must be stowed in the luggage compartments, and the driver must physically carry the occupant up and down the vehicle’s stepwell. And one motorcoach manufacturer even makes a model with a spiral staircase, which as a result has trapezoid-shaped step treads. In such cases, the risks of an incident are high.
While not a regulatory requirement, passenger assistance for motorcoach service is clearly-defined as an industry standard: The driver must stand positioned at the bottom of the stepwell and offer physical assistance to any passenger wishing it while climbing onto or stepping down from the bottom step, almost always 14 inches above the ground surface. However, when parked against a curb, or when the coach is “kneeled” (almost all genuine modern motorcoaches have a “kneeling feature” as a consequence of their pneumatic suspension systems), the bottom step-to-ground height is only nine inches. But driver assistance is still the industry standard. Of course not every driver is willing to risk trying to catch a falling passenger, and 60% of all motorcoach passengers are elderly. (Mr. Einstein actually worked on a case on behalf of a driver who did so and was injured badly.) And he has been involved in several cases where drivers have abandoned the stepwell for a variety of reasons, including their preference to unload luggage (which almost always yields more “tips” than assisting an elderly or disabled passenger off the vehicle). And Mr. Einstein has been involved in at least two cases where, a week apart on the same defendant’s motorcoach, two individuals were killed falling down the stepwell. So this is a major motorcoach incident scenario, despite the industry standard for the driver to remain at the bottom of the stepwell and assist passengers in alighting. At the same time, unlike transit service, motorcoach schedules are rarely too tight, and drivers have ample layover time (sometimes, overnight). So these problems are not symptoms of other causation elements.
Footstools are also commonly used in motorcoach service where the coach cannot pull to the curb (and a few of the older coaches do not have kneeling features, despite obviously containing pneumatic suspension systems). However, in Today’s world, purpose-built and extremely stable footstools (e.g., www.safetystep.net) are available, whereas footstools like those of Rubbermaid can be dangerous, particularly when used without driver assistance. So even the choice of a footstool can become a liability issue.
Also, motorcoaches are not designed for standees, and do not contain the interior appendages (e.g., horizontal or vertical stanchions) for them to grasp while standing or walking about within the passenger compartment. Yet, most motorcoaches contain restrooms, and passengers periodically move about on the vehicle while it is moving.
By far, the most significant incident scenario in motorcoach operations is a catastrophic accident. While the industry’s “formal” position is that fatigue is rarely a factor in such incidents, regulatory agencies (e.g., Federal Motor Carrier Safety Administration) and non-USDOT-affiliated watchdog agencies (e.g., the National Transportation Safety Board) feel that roughly half of all catastrophic motorcoach accidents involve fatigue, as does Mr. Einstein, as well as most research scientists in this field. Most of the many cases of this type that Mr. Einstein has worked on as an expert have involved fatigue. One problem is that, because of the lobbying efforts of this sector’s information-sharing/lobbying organizations (United Motorcoach Association and American Bus Association), the industry obtained an exemption to changes in the Hours-of-Service (HOS) regulations revised several years ago, changes that the trucking industry accepted and endorsed, which limit the amount that shift start times can change from one day to the next to three hours. Without this constraint, while HOS regulations pose limits on the amount of time a motorcoach driver can operate a vehicle (10 hours) within a span of 15 hours of “on-duty” time (after which the driver must be off-duty for at least eight hours), the exemption permits drivers to change shift times counter to biological reality and still remain in compliance with HOS requirements. As a consequence, many motorcoach operators are driving when their bodies would otherwise be sound asleep, a variation of intense jet lag. And while there may be days between the shift involving an incident and the driver’s previous shift, the driver may have had little or no sleep before beginning a full-day’s run, and reach a state of exhaustion before that shift has been completed, particularly as many or most motorcoach drivers are constantly “on call,” and requested to report to duty at any time, in a matter of hours, irrespective of when or if they had had enough (or any) sleep, as long as they have not driven for the past eight hours.
It is easy to see why this childlike and counter-scientific form of fatigue-management creates so many catastrophic accidents. Adding to this problem, catastrophic accidents on motorcoaches are compounded by some of the vehicle’s unusual characteristics. Their high floor heights raise the center of gravity compared to any other type of bus (other than a double-decker bus) and rollover propensity is increased, compounded further by the high speeds at which many of these vehicles travel in certain “duty cycles” (like intercity or “regular-route” services like those provided by Greyhound, Coach USA and Coach America). Secondly, seat-legs are not always welded to frame members, but rather, just attached to long screws by nuts and large “washers” below the wooden floor surface. So in many severe accidents (particularly frontal crashes), the seat legs immediately shear the bolts and break the wooden floors, tearing out and mangling the passengers’ feet, ankles and legs. Thirdly, the huge, almost panoramic passenger windows facilitate ejections, and few motorcoaches contain seatbelts — although Federal legislation to mandate their installation (however not necessarily their retrofit to existing coaches) is hovering close to reality, despite industry objections to it. (Canadian, Australian and European motorcoaches all contain three-point securement belts for all passengers.)
Special Education Services are provided both on full-size school buses (where the disabled or otherwise challenged students are transported along with general education students — a practice known as “inclusion”) or on separate, usually smaller vehicles that transport only or mostly special education students (a general education student or two may occasionally ride these vehicles because his or her home lies close to a special education student’s home, but would otherwise lie “out-of-the-way” for a general education bus’ fixed route).
The smaller vehicles providing service on a “demand-responsive” basis (usually curb-to-curb) are the pupil transportation industry’s version of paratransit service, and as with their travel on regular buses via “inclusion,” driver assistance on and off the vehicle typically depends on the age, characteristics and disabilities of each particular passenger. (Obviously, a wheelchair user requires assistance off the vehicle, since no school bus of even the smallest size is ramp-equipped.) However, unlike complementary paratransit service, where many passengers and trips change from day to day, special education service routes, stops and passengers generally remain the same throughout the entire school year, notwithstanding periodic or occasional changes as students are added or deleted from route, or occasionally change schools. (This is generally known as “subscription” service in the paratransit world.)
Like all school bus services, drivers must possess commercial driver’s licenses, even when the vehicles weigh less than 10,000 lbs. GVWR. However, one exception to this rule involves vehicles with a capacity of fewer than 15 students (in several states, the limit is 10), on which service can be provided on a non-yellow bus by a driver without a CDL license. As a consequence, the latter drivers do not necessarily possess training and certification in defensive driving, as must all CDL holders, and typically do not receive the volume and quality of training that CDL-certified school bus drivers do.
There are other quirks as well. For example, as with any school bus, in some states they may not be classified as common carriers. This may be particularly true where the vehicles are non-yellow school buses driven by operators without CDL licenses. As a consequence, some states may not consider these services to be common carriers, and thus they may not hold systems containing these vehicles, and their drivers, to the highest standard and duty of care. Ironically, pre-school children attending “Head Start” programs must be transported only on yellow school buses, regardless of the vehicle size and capacity, and the number of students riding it.
Like general education school bus services, most special education services operate on a “split shift,” during conventional peak hours. So other than drivers failing to get enough sleep, the percentage of incidents that are fatigue-related pales in comparison to those in the motorcoach industry. And because schedules are not nearly as tight, and driver stress far less frantic, wheelchair tipovers and other incident scenarios common to transit, paratransit, taxi and NEMT services are rare in special education services. So too are crossing incidents, since special education students are almost always dropped off on the same side of the street on which they live (usually at their very home), although there are exceptions, particularly in extremely rural areas where “traffic” is virtually non-existent. In contrast, the most common incident scenario is passenger molestation, either by the driver or by fellow-passengers. “Client-mixing” is particularly sensitive, for example, placing an elementary school-age special education girl on a bus with several junior high school-age boys, and no “bus monitor” to observe and protect them. Occasionally, drivers with a psychological disorder known as paraphilia (a sexual addiction to disabled individuals) gravitate to special education services, just as they do to complementary paratransit services, whose passengers are similarly extremely vulnerable, and as a result, these drivers do not consider them credible witnesses. (They are.) Finally, given the fact that these individuals are children, they are generally treated with loving care by most schoolbus industry management and drivers compared to the fear and loathing felt about them by their counterparts in complementary paratransit service (and to a somewhat lesser degree, fixed route transit service), although this sensibility is more typical of management than drivers.
Absolutely unlike any passenger transportation expert in operations (much less experts in planning and system design), TA President Ned Einstein is unique in also being an expert in vehicle design and specification, thanks largely to the unique fortune of his unusual career. In addition to serving as a consultant, largely in research and policy-making areas, to the USDOT, designing fixed route and paratransit systems, and operating a relatively large consolidated paratransit and NEMT system of his own for a full decade, Mr. Einstein coordinated the design and marketing efforts for a European-manufactured school bus and motorcoach introduced into North America (see Vehicle Design, Specification and Evaluation). During the period of Mr. Einstein’s time in the automotive sector of the industry (1989-1995), he worked closely with automotive engineers in six countries (U.S., Slovenia, Great Britain, France, Germany and Italy). So while not an automotive engineer, he has extensive experience in vehicle design, and a unique understanding of the automotive aspects of the passenger transportation industry at the conceptual level. This combination of disciplines is of critical importance in a considerable, two-digit percentage of incidents and the law suits that follow them, as so many incident scenarios involve driver errors in the context of vehicle design features , ranging from less known vehicle features such as interlocks (which keep passengers from falling out of bus doors) and kneeling features (which use the vehicle’s pneumatic suspension system to lower the front stepwell) to obvious features (see several links at bottom of text in Common Accident and Incident Scenarios).
Further, Mr. Einstein’s experience directing the operations of his own 70-vehicle paratransit system (PTS Transportation) for 10 years, and operating five types and sizes of accessible and non-accessible van- and minibus conversions has given him an intimate familiarity with vehicles of this type as well as “OEM” products (i.e., buses and coaches produced, in final form, by the Original Equipment Manufacturers, both bus and coach manufacturers, plus GMC, Chrysler and Ford, the latter trio producing the “starting point” for creating smaller vehicle “conversions.” These experiences, combined with Mr. Einstein’s knowledge of vehicle design, his experiencing preparing specifications for ordering them, and his serving as an officer of TAM-USA, the U.S. distributor of the European buses whose design and marketing he coordinated, have imbued Mr. Einstein with a multi-faced perspective of vehicle design and usage (which also transformed him into a virtual trade show “junkie,” whereby he remains current about most new vehicles and related products and their features and flaws: He attends several trade shows a year, and regularly reviews roughly a dozen technical magazines (about virtually every sector in transportation), two of which he writes for regularly, and from which he maintains a technical library of all industry publications dating back at least a decade, product brochures dating back to the early- and mid-90s, as well as a library of more than 400 case files. Thus, even apart from his work designing vehicles and working on 600+ lawsuits involving vehicles of practically every type, size, make and model, he has written vehicle specifications (necessarily generic by virtue of the need for public agencies to accommodate multiple bidders) for a small yet diverse spectrum of clients ranging from the Los Angeles Department of Transportation to Anheuser Busch (for deployment in the company’s theme parks throughout the nation).
Mr. Einstein cannot take credit for pro-actively engaging in projects, in all modes, in both the operating, institutional and automotive side of each sector. This enormous range of projects and experiences were partly an accident of his unique career, as a consultant, system design expert, service provider, vehicle designer and the director of a vehicle distributorship. Nonetheless, this fortune of experiences has provided Mr. Einstein with a unique perspective for a forensic expert in that he can understand, analyze and opine on virtually any type of incident involving any type of passenger traveling in virtually any type of non-rail ground vehicle, since he can view the incident from virtually every perspective. Further, his experiences did not merely expose him to these passengers and services. Instead, he directed projects, and wrote more than 200 nationally-published books, full-length papers and magazine articles published by organizations ranging from the U.S. Department of Transportation and National Academy of Science’s Transportation Research Board to major industry trade magazines (most extensively in the school bus, motorcoach and transit fields).
Finally, Mr. Einstein holds a few rather strong and somewhat unconventional beliefs about expert witness work. While he acknowledges that importance of writing skills, presentation skills and the ability to improvise (Mr. Einstein was an English Literature Major and, in his early years, a professional jazz pianist and songwriter), he believes that the most important phase of a lawsuit is the analytical phase, not the rendering of deposition or trial testimony, a cakewalk for someone with a mastery of the subject matter, much less one who actually enjoys deposition and trial testimony. Further, while he respects the importance and value of a brilliant attorney and a knowledgeable, savvy expert witness with a mastery of the subject matter, as well as the importance of the facts of a case, Mr. Einstein believes firmly that what wins cases is none of these things: What wins cases is effort. His track records, including helping to settle single-victim cases for high seven-figure amounts and catastrophic accident cases for high eight-figure sums, supports this belief about the relationship between the level of effort and the rewards that accrue from it. While Mr. Einstein was obviously the one constant among the many variables in those cases in which he participated as an expert, he is convinced that the largest damage and/or settlement awards [where he served on behalf of the plaintiff] have come when the level of effort by him and his counsel has been the greatest.