Experts Differ on Use of Trucker Safety Scores

In this lawsuit filed by three plaintiffs against the freight broker that hired a tractor-trailer driver who allegedly caused multiple crashes and the death of two persons and severe injury to a third person, the Roanoke U.S. District Court excludes the defense expert testimony on the standard of care, but allows plaintiff’s expert to opine on the standard of care, and says both experts may opine on the use of “BASICs” scores to hire drivers; the court also says plaintiffs’ negligent hiring claim is not preempted.

Load of laundry soap

Plaintiffs claim the driver was fatigued and driving a truck with bad brakes, improper tires and faulty suspension to deliver a load of laundry detergent. They allege defendant broker knew or should have known facts that were either in the broker’s own files or readily available to it. Plaintiffs point to the broker’s internal notes, which show a number of complaints about the driver’s business in the years preceding the crash here. Approximately 16 times, either shippers or broker employees requested in writing that the driver’s business be put on its “Do Not Use” list, either because of dishonest or violent behavior by the driver or because of canceled pickups and late deliveries, some of which were caused by equipment breakdowns.

The broker’s records also showed that, although the driver’s company only owned two tractors and trailers, it had approximately 30 breakdowns in the three years between April 2011 and April 2014, which evidenced poor maintenance. Plaintiffs assert the driver’s company was financially unstable, the driver admitted to having been fired by other motor carriers for offenses that included having alcohol onboard a truck, and the broker failed to take into account public information that called into question the company’s safety record.

Safety
scores

The parties and their respective experts disagree regarding the viability and usefulness of the “Behavior Analysis and Safety Improvement Categories” scores determined under a Federal Motor Carrier Safety Administration program as a predictive measure for which carriers are more likely to be involved in a crash. There are studies that support different views of the utility of the BASIC scores, and the parties discuss possible flaws with each study. A February 2014 Government Accountability Office study was highly critical of some of the other studies and of the statistical underpinnings of the BASIC scores. The parties and their experts also dispute whether the driver’s company was prohibited from operating at the time the broker hired it for this particular job.

The court denies the broker’s motion for summary judgment, based on its three primary arguments, that: 1) the tort of negligent hiring of a carrier by a broker is completely preempted by 49 U.S.C. § 14501(c)(1), the Federal Aviation Administration Authorization Act (FAAAA); 2) plaintiffs’ claims are barred by conflict preemption, as Congress has expressed that BASIC scores are unreliable and should not be followed; and 3) plaintiffs’ expert should be excluded, and there is no expert testimony to show the standard of care required of brokers.

Although the Supreme Court has addressed FAAAA preemption, neither it nor any federal court of appeals has addressed whether a personal injury claim against a broker based on negligent hiring is preempted. This court concludes plaintiffs’ negligent hiring claims are not preempted. The court agrees with Montes de Oca v. El Paso-LA Limo Express Inc., No. 14cv9230, (C.D.C. March 17, 2015), that a personal injury suit for negligent hiring is not an attempt to regulate the “services” of a freight broker. As to the conflict preemption argument, the court agrees that plaintiffs’ negligence claims are not premised solely on the broker’s failure to review or rely on the BASIC scores and so does not find the claims themselves preempted. There are good-faith arguments to be made on both sides as to whether a reasonable broker in 2014 would have consulted BASIC scores as part of its decision whether to hire a particular broker. Finally, the court is not striking plaintiffs’ expert testimony at this time.

Expert testimony

Plaintiffs move to exclude testimony of the broker’s expert, David Griffin, that: under the agency FMCSA program, 93 percent of carriers have a safety rating of “unrated,” which was the driver’s company rating; the driver’s company was fully authorized to transport freight on the date of the accident, April 2, 2014; the brokers’ selection of the company as a motor carrier was “reasonable and appropriate”; and plaintiffs’ expert report contains erroneous and misleading statements and demonstrates a lack of knowledge of the FMCS regulations.

Griffin lacks adequate experience or training to testify concerning the appropriate standard of care for a broker to employ when hiring a carrier. He has no experience with, or specialized knowledge about, how brokers make their decisions to hire carriers. He does not know what systems most brokers use and has not really worked with brokers in practice or in his consulting business. His report appears to be mostly just his personal opinion that brokers should simply rely entirely on FMCSA to determine the safety of any carrier. He has no real expertise on the question of what is reasonable and customary in the industry.

The court concludes, however, that Griffin is qualified to offer an opinion as to the utility of BASIC scores for the transportation industry. He was familiar with the GAO report and with some of the other studies that had looked at the validity of the scores, and the general literature concerning BASICs and potential problems with the scores. The court will allow both experts to offer their opinions about the scores and their usefulness.

With regard to Griffin’s opinion that letters to the driver’s company about it being “prohibited” from interstate transportation do not mean what they say, the court will take under advisement this portion of the motion to exclude and allow the parties to provide additional clarification.

Plaintiffs’ expert, Thomas M. Corsi, will be permitted to offer an opinion regarding the standard of care. The court also will allow Corsi to offer his opinions about the BASIC scores and his opinion that brokers do and should rely on them when making decisions about which carriers to use.

Mann, Adm’r v. C.H. Robinson Worldwide Inc. (Dillon) No. 7:16cv102, July 27, 2017; USDC at Roanoke, Va.; Brielle M. Hunt for plaintiff; Richard B. Holbrook for defendant. VLW 017-3-408, 32 pp.