By Eric Miller, Staff Reporter
This story appears in the Aug. 19 print edition of Transport Topics.
A trucking industry defense attorney warned that plaintiffs’ attorneys will attempt to get Compliance, Safety, Accountability data into evidence to bolster accident claims that a carrier is unsafe.
“If CSA evidence makes its way into the courtroom, in my opinion, it could very well tip the scales in given cases,” Ted Perryman, a lawyer with the St. Louis law firm of Roberts Perryman, said during an American Trucking Associations webinar earlier this month.
“It occurred to me that at the fingertips of every personal injury lawyer is a list of every violation or citation issued against a motor carrier for the past 24 months,” he said. “This is an amazing depository of information and evidence at your computer.”
CSA alert symbols can denote that a motor carrier is unsafe, violations can reflect negatively on a carrier and low scores can label a carrier as “average,” Perryman said.
Perryman and Jeff Burns, a Kansas City, Mo., plaintiffs’ attorney, are scheduled to give a presentation to the Federal Motor Carrier Safety Administration’s CSA advisory subcommittee next month in Alexandria, Va.
Burns said he probably would not use CSA data in a trial unless a trucking company knew of a safety problem and failed to take steps to correct it.
“I think CSA is part of a bigger picture of whether a company has safe operations or not,” Burns said. “I don’t think that CSA is a be-all or end-all, and I don’t think a company should fear it.”
Other attorneys also have expressed their concern that some judges might allow CSA BASICs scores and other safety measurement system data into evidence in crash lawsuits.
“Plaintiffs’ attorneys know a jury is more likely to return a big verdict against a trucking company if they can paint a picture of a carrier as pushing drivers to exceed hours-of-service limits, ignoring maintenance issues or overlooking dangerous driving behavior,” Minneapolis trucking defense attorneys John Crawford and Benjamin Johnson said in a recent article in a legal journal.
Indeed, a detailed how-to article published in a journal for trial lawyers encouraged attorneys to use the discovery process to obtain CSA information.
“If you are handling a trucking case, make sure you’re following the new regulatory road map,” Morgan Adams, a personal injury lawyer, wrote in the article.
There have been no appellate rulings yet on the admissibility of CSA evidence, Perryman said.
While rules of evidence often will restrict some CSA evidence from being presented, plaintiffs’ attorneys have managed to get some data into evidence.
For example, CSA evidence was allowed in a 2012 lawsuit litigated in an Arkansas federal court and arising from a series of collisions between an automobile and two tractor-trailers.
In that case, McLane v. Rich Transport Inc., the court determined a plaintiff’s expert witness could testify regarding the defendant’s CSA score and its on-road performance percentiles at the time of the accident.
A year earlier, in Vanduser v. Purdy Brothers Trucking Inc., a judge permitted a plaintiff’s attorney to subpoena CSA data on a driver whose truck was involved in a crash.
Justin Olsen, a Salt Lake City transportation law attorney, said truckers are not the only ones concerned about the introduction of CSA evidence into court proceedings.
“It’s a concern of shippers and brokers,” he told Transport Topics.
Olsen said that shippers and brokers who disregard CSA data in deciding who to hire also can be found negligent in heavy truck accidents.
Rob Moseley, a South Carolina trucking attorney, said CSA’s seven percentile rating categories, or BASICs, are comparative in nature, essentially grading trucking companies on a curve.
“I’ve got real concerns about where we’re headed with that,” Moseley added. “The fact that this stuff is available to the public is going to be troubling for the industry.”