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Mann v. C. H. Robinson Worldwide, Inc.

United States District Court, W.D. Virginia, Roanoke Division

July 27, 2017

ROGER A. MANN, Administrator of the Estate of Tanya Diane Mann, Deceased, Plaintiff,
C. H. ROBINSON WORLDWIDE, INC., Defendant. CHARLES DONALD MEEKS, Administrator of the Estate of James Richard Anderson, Plaintiffs,


          Elizabeth K. Dillon United States District Judge.

         These three cases are related and have been consolidated for pre-trial proceedings and for the liability phase of trial. Pending before the court are three motions, all of which have been filed in each of the three cases: (1) defendant C.H. Robinson Worldwide, Inc.'s (Robinson's) motion for summary judgment; (2) Robinson's motion to exclude the expert testimony of Thomas Corsi, one of plaintiffs' experts; and (3) plaintiffs' motion to exclude the testimony of Robinson's expert, David Griffin. All three motions have been fully briefed and argued before the court, and they are now ripe for disposition. For the reasons set forth in this opinion, the motion for summary judgment will be denied, the motion to exclude the testimony of David Griffin will be granted in part, denied in part, and taken under advisement in part, and the motion to exclude the testimony of Thomas M. Corsi will be denied in part, and taken under advisement in part.

         I. BACKGROUND[1]

         A. The Underlying Accidents

         These three cases are brought by (or on behalf of) three people who were injured or killed in related accidents that occurred on April 1, 2014. On that date, Philip Emiabata was driving a tractor trailer northbound on U.S. Interstate 81 (I-81) in Wythe County. At the time, he was hauling a load of laundry detergent from Laredo, Texas and was supposed to deliver it to a location in New York City. Robinson had hired him (through his business, known as “Phil Emia and Sylvia Emia d/b/a/ Nova Express” (Nova))[2] to haul the load several days prior, on March 28, 2014. At about 3:00 a.m. on April 1, Emiabata either fell asleep or became distracted and ran his truck off the road. He was unable to regain control of the truck and crashed through the north and southbound median guardrails. His truck came to a stop on its side blocking the southbound lane of I-81, with its lights off.

         A few minutes later, a vehicle driven by Tanya Mann crashed into the overturned truck, and Ms. Mann was killed. About ten minutes after that, a tractor trailer driven by James Anderson in the northbound lanes ran over the guardrail debris. Mr. Anderson's truck plunged over an overpass and caught fire. Mr. Anderson burned to death in the truck; his passenger, Mr. Johnson, was seriously injured.

         After investigating, the Virginia State Police concluded that the crashes were caused by a combination of Emiabata's fatigued driving and problems with his truck: bad brakes, improper tires, and faulty suspension.

         The three plaintiffs filed suit against the Emiabatas and Nova and ultimately obtained a settlement from their insurance company. They now seek to recover from Robinson, who plaintiffs describe as “the freight broker that put the Emiabatas on the road and was making money from them at the time of the crash.” (Pls.' Opp'n to Mot. Summ. J. 3, Dkt. No. 31.)[3]Plaintiffs assert that Robinson was negligent in its decision to hire Nova and the Emiabatas to haul the load of laundry detergent and that a reasonably prudent broker would not have done so. They seek both compensatory and punitive damages.

         B. Robinson's Hiring of Nova

         Plaintiffs allege that Robinson knew or should have known a number of facts about Nova and the Emiabatas-facts that were either in Robinson's own files or readily available to it. They claim that Robinson's decision to hire Nova in the face of these facts was negligent. For example, plaintiffs point to Robinson's internal notes, which show a number of complaints about the Emiabatas in the years preceding the crash here. Approximately sixteen times, either shippers or Robinson employees requested in writing that Nova be put on its “Do Not Use” list, either because of dishonest or violent behavior by Philip Emiabata or because of canceled pickups and late deliveries, some of which were caused by equipment break-downs. (Pls.' Opp'n to Mot. Exclude Corsi, Ex. H, Dkt. No. 33-8.)

         Robinson's records also showed that, although Nova only owned two tractors and trailers, Nova had approximately 30 breakdowns in the three-year span between April 2011 and April 2014. Id. According to plaintiffs, this should have put Robinson on notice that the two trucks owned by Nova were poorly maintained and thus could present a hazard.

         Plaintiffs also assert that Nova was financially unstable, relying on the fact that Nova borrowed against every load it hauled for Robinson through its “Quick Pay program” and also frequently obtained advances from T-Chek, another entity owned by Robinson. Plaintiffs point to evidence showing that the Emiabatas provided incorrect names to Robinson, and that Robinson should have known they were incorrect based on other documentation it possessed. They also point to Emiabata's deposition testimony, in which he admitted to having been fired by other motor carriers for whom he had worked, including one instance in which he was fired for having alcohol onboard a truck.

         In addition to this information-most of which Robinson possessed-plaintiffs also criticize Robinson for failing to take into account publicly-available information from the Federal Motor Carrier Safety Administration (FMCSA), a Department of Transportation (DOT) agency. Plaintiffs contend that the FMCSA data called into question Nova's safety record.

         Robinson does not concede many of these facts as to what information it knew and had available to it at the time it selected Nova to carry the load, but asserts that the facts are not material to the issues raised by its summary judgment motion, and so it does not address them in its reply. (Def.'s Reply Supp. Mot. Summ. J. 1-2, Dkt. No. 35.) Robinson instead focuses on the discrete legal issues raised in its motion, to which the court will turn after discussing FMCSA's ratings and scoring system-information relevant to all of the motions pending before the court.

         C. BASIC Scores and the FAST Act

         There are two types of “scores” assigned to carriers by FMCSA. First, FMCSA conducts some formal compliance reviews of motor carriers and then assigns any carrier that has been evaluated a rating of “satisfactory, ” “unsatisfactory, ” or “conditional, ” the latter of which gives a carrier an opportunity to correct deficiencies found during the review. Only a small percentage of motor carriers are actually evaluated through a formal compliance review, though. Most- and especially small ones with only a few trucks, like Nova-never receive an evaluation or rating and thus are listed by the FMCSA as “unrated.” Indeed, the parties here agree that 93% of the more than one million motor carriers in the United States had not received a safety rating from FMCSA. Brokers thus routinely use “unrated” carriers.

         In 2010, at Congress' direction, the FMCSA implemented a program to determine which carriers should be prioritized for review through the formal compliance review process. The program results in FMCSA assigning scores to unrated carriers. FMCSA bases the scores on the results of roadside inspections, state traffic enforcement, and other data concerning a motor carrier's compliance with regulations, as well as on crash data. The program then uses an algorithm that is designed to take into account the severity and recentness of each violation, rate a carrier in seven different categories, and compare the carrier's raw scores to other carriers of similar size. The resulting scores are called, “Behavior Analysis and Safety Improvement Categories” scores or “BASICs.” (Def.'s Mem. Supp. Mot. Summ. J. 6-8, Dkt. No. 25; see also Pls.' Opp'n to Mot. Summ. J. 9, Dkt. No. 31.) The carrier receives a BASIC score in a particular category only if there are a minimum number of data points for each category, the required number of which varies by category. Using this information, the FMCSA flags carriers for further review and also designates certain carriers as “high risk” in specific categories.

         Although not all carriers have BASIC scores and many do not have them in all categories, the FMCSA made most of these scores available to the public on its website from 2010 through 2015, and so they were available at the time that Robinson hired Nova to haul the load at issue. The website cautioned users, though, that they “should not draw conclusions about a carrier's overall safety condition simply based on the data displayed in this system.” Alliance for Safe, Efficient & Competitive Truck Transp. v. Fed. Motor Carrier Safety Admin., 755 F.3d 946, 948-49 (D.C. Cir. 2014) (discussing disclaimer and describing its origin). The disclaimer further noted that unless a carrier had an “unsatisfactory” rating received after a full compliance review or had been “otherwise ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation's roadways.” Id. As noted, the purpose of the scores was to allow the FMCSA to target carriers for compliance reviews: the higher a carrier's ratings, the more likely it was to be categorized as “high-risk” under this system and then prioritized for compliance reviews.

         Because there was some controversy concerning the utility of the BASICs and their use by the public or brokers in determining the safety of carriers, Congress directed the Government Accountability Office (GAO) to investigate whether BASIC scores accurately assessed accident risk. The GAO issued a report in February 2014 that was highly critical of the BASIC scores as a predictive risk assessment tool for individual carriers. GAO, Federal Motor Carrier Safety: Modifying the Compliance, Safety Accountability Program Would Improve the Ability to Identify High Risk Carriers, GAO-14-114 (Feb. 2014), available at (last visited July 23, 2017). (See also Def.'s Mem. Supp. Mot. Summ. J., at Ex. 7, Dkt. No. 25-7 (excerpts from same).) FMCSA responded to that report, however, and disagreed with many of its conclusions.

         In December 2015, President Obama signed into law the Fixing America's Surface Transportation (FAST) Act, Pub. L. No. 114-94.[4] That Act directed FMCSA to remove BASIC scores from the FMCSA website until the agency addressed the deficiencies identified in the GAO Report. FAST Act, § 5223(a). Thereafter, the FMCSA removed the percentile scores from its websites, and they are now unavailable to the public. The FMCSA still uses a warning symbol to denote those carriers who are considered “high risk” in any particular BASIC category, though.

         At the time Robinson hired Nova, Nova had repeatedly received safety alert warning symbols, and its monthly scores in the preceding years frequently designated Nova as “high risk” in several categories, including vehicle maintenance, fatigued driving-hours of service, and unsafe driving. (Pls.' Opp'n to Mot. Summ. J., at Ex. H, Dkt. No. 31-8.) Additionally, from May 1, 2013, to April 1, 2014, Nova underwent three DOT driver and vehicle inspections. The Nova driver was taken out of service for driver safety violations in all three of those inspections, and the Nova tractor-trailer was taken out of service on two of those three occasions. Id. Plaintiffs contend that this information, coupled with the other information known to Robinson, rendered Robinson negligent for hiring Nova to haul the load.

         Robinson disagrees. Its position (and the opinion of its proffered expert, Griffin) is that the GAO Report is correct and that BASIC scores are inaccurate at best and misleading, at worst. It argues that the scores do not provide any meaningful guidance to brokers about a particular carrier's safety or potential dangerousness. As a result, Robinson counters, it was not required to review Nova's BASICs before hiring it and was not negligent for failing to do so. Instead, Robinson contends that it acted reasonably and did what a reasonable broker would do-that is, it confirmed before hiring Nova that Nova: (1) had either a “satisfactory” or “unrated” safety rating from FMCSA; (2) had the legally required level of insurance coverage; (3) had “active licensure, ”[5] and (4) was not on a terrorism watch list. (Br. Supp. Mot. Summ. J. 12, Dkt. No. 25.)

         Critically, then, the parties (and their respective experts) disagree regarding the viability and usefulness of the BASICs 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 them in some detail and discuss possible flaws with each study. For example, a 2011 article published by FMCSA, but based on an independent evaluation of the model that creates the BASICs conducted by the University of Michigan Transportation Research Institute (UMTRI), showed that the crash rate for motor carriers identified with safety problems in the “Unsafe Driving BASIC” were more than three times greater than the crash rate for motor carriers not identified with any safety problem. Also, a 2014 study prepared by John A. Volpe National Transportation Systems Center (the Volpe Study) showed that six of the seven BASICs identify carriers with a higher future crash rate than the national average. An October 2012 American Transportation Research Institute (ATRI) study similarly reported that, for the five BASICs that were publically available through 2015, carriers with an “Alert” demonstrated higher crash rates than those without “Alerts” in four BASICs.

         On the other side, of course, is the GAO Report, which was highly critical of some of those other studies and of the statistical underpinnings of the scores. The GAO Report acknowledged that the Volpe, ATRI, and FMCSA studies may have shown a correlation or association between groups of carriers and which groups had a higher crash risk, but its own analysis focused on whether the violations could predict crash risks for an individual carrier, since that is the level of analysis used by FMCSA to make high-risk determinations. See, e.g., GAO Report at 15 n.27. The GAO Report specifically noted that BASIC scores were a poor predictor whether a small carrier would later be involved in an accident, id. at 30, for two main reasons. First, the underlying assumption that regulatory violations were correlated with higher accident rates was not borne out; in fact, only two violations (speeding and failure to use a seatbelt) were reliable predictors of accident risk in all the models tested. Id. at 67. Second, there was a lack of sufficient data on most individual carriers, a problem particularly acute for small carriers. Id. at 16-24.

         D. Nova's “Operating Authority”

         The parties (and their experts) also dispute whether Nova was prohibited from operating at the time that Robinson hired it for this particular job. Plaintiffs contend that Robinson failed to act reasonably in hiring Nova because it failed to do one of the four things that even Robinson says it does before hiring a carrier: confirm that Nova had “active licensure.” The issue of Nova's licensure stems from Nova's failure to submit its “Biennial Update” form to the DOT on or before January 31, 2014, when it was due. Nova was warned in a November 2013 letter that such failure might result in the deactivation of Nova's USDOT number. The warning also informed Nova that “transportation without . . . an active USDOT number is specifically prohibited [by] 49 U.S.C. [§] 31134 and 49 C.F.R. 392b.” (Griffin Dep. Ex. A-14, Pls.' Mem. Supp. Mot. Exclude Griffin, Ex. A, Dkt. No. 23-1, at 133.) After Nova failed to file the Biennial Update, FMCSA deactivated Nova's USDOT number, and FMCSA also sent a deactivation letter to Nova that said “Pursuant to 49 CFR 392.9b [the Emiabatas are] prohibited from providing interstate transportation with an inactive USDOT number.” (Griffin Dep. Ex. A-16, Dkt. No. 23-1, at 145.)

         Based on these letters, Corsi opines that Nova was ineligible to operate on the nation's highways on the date Robinson hired it and at the time of the accidents, a fact that plaintiffs believe Robinson should have known. Robinson's expert, Griffin, includes in his report the contrary conclusion that Nova “was fully authorized to transport freight in interstate commerce on April 1, 2014.” (Griffin Report at 2, 4, Pls.' Mem. Supp. Mot. Exclude Griffin, Ex. E, Dkt. No. 23-5.) Griffin opines that the deactivation did not really mean that Nova was not authorized to transport and that the warning letters and deactivation letter are really just meant to scare carriers into filing the update form. He emphasizes that the reasons why a carrier could be placed out of service on a roadside inspection did not include late filing or failure to file the biennial update, and thus he contends that Nova was not really prohibited from transporting. The opinions on this issue will be discussed in context below.


         The motion for summary judgment, if decided in Robinson's favor on the first issue, would be dispositive of the case, and so the court will address the summary judgment motion before turning to the motions to exclude expert testimony.

         A. Motion for Summary Judgment

         Robinson raises three primary arguments in its summary judgment motion. First, it contends that the tort of negligent hiring of a carrier by a broker is completely preempted by 49 U.S.C. § 14501(c)(1), the preemption provision of the Federal Aviation Administration Authorization Act (FAAAA). Second, it argues that plaintiffs' claims are barred by conflict preemption, because plaintiffs seek to hold Robinson liable for not consulting BASIC scores, but Congress has expressed (through the FAST Act) that BASIC scores are unreliable and should not be followed. Third and finally, Robinson asserts that, if the court excludes plaintiffs' expert, Corsi, then there is no expert testimony to show the standard of care required of brokers when hiring a motor carrier, and so plaintiffs' claims must be dismissed.

         After setting forth briefly the standard governing motions for summary judgment, the court addresses each of these arguments in turn. For the reasons discussed herein, the court concludes that Robinson is not entitled to summary judgment on any of these grounds.

         1. Summary judgment standard

         In this case, Robinson's arguments are primarily legal ones. Nonetheless, summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[W]hen a court considers a summary judgment motion, ‘[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'” Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 721 F.3d 264, 283 (4th Cir. 2013) (en banc) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)).

         2. Complete preemption

         Robinson's first argument is that plaintiffs' negligence claims are completely preempted by federal law under the preemption provision set forth in the FAAAA. As the Supreme Court has recognized, where Congress has superseded state laws by statute, the court's task is to “identify the domain expressly pre-empted, ” and the court does that by looking to the statutory language, “which necessarily contains the best evidence of Congress' pre-emptive intent.” Dan's City Used Cars, Inc. v. Pelkey, 133 S.Ct. 1769, 1778 (2013) (citations omitted).

         As described by the Supreme Court, the statute at issue here “prohibits enforcement of state laws ‘related to a price, route, or service of any motor carrier . . . with respect to ...

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