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April 1, 2013 8:00 AM, EDT
Opinion: Safety, Litigation and CSA Data

This Opinion piece appears in the April 1 print edition of Transport Topics. Click here to subscribe today.

By R. Clay Porter

Co-Founder

Dennis, Corry, Porter & Smith LLP

As a lawyer who has devoted almost all of the past 34 years to defending trucking companies, I have seen my share of horrendous accidents with catastrophic consequences. Some of those accidents resulted from unconscionable conduct on the part of the truck driver and, on occasion, from the conduct of the motor carrier whose thirst for profit overrode safety.

During the same period of time, other motor carriers launched truck safety programs as though there were no more important objective in the company. Despite what may be a less than favorable public image, virtually every significant truck safety innovation over the past 30 years originated within the trucking industry:

• Reflective tape began appearing on the sides of trailers long before it became mandatory.

• Extensive, ongoing driver training programs were developed and implemented even though, to this day, no such training is required.

• It is estimated that more than 70% of commercial motor vehicles on the road today electronically restrict — or govern — engine-powered speed to 68 mph or less. Though an industry-initiated petition to compel electronically governed speed has been pending for several years, the U.S. Department of Transportation has yet to mandate speed restriction.

• Numerous technological innovations ranging from elaborate driving simulators to onboard lane-monitoring devices were all voluntarily incorporated into driver training and monitoring regimens by motor carriers without regulatory compulsion. Hours-of-service violations have been essentially eliminated by those companies who have invested in electronic onboard recording devices.

• Comprehensive sleep apnea detection and treatment programs are being implemented by many motor carriers.

• Pre-employment and random drug testing by hair analysis is being done with amazingly better results than the mandatory urinalysis testing.

These are only some of the safety initiatives and innovations that have come from a growing culture of safety within the trucking industry.

Despite all the homegrown truck safety initiatives, the claims environment for motor carriers appears to be increasingly dangerous. Verdicts against motor carriers in the year 2012 were higher than usual. The plaintiff attorneys’ fees alone in only five of those cases would total more than $40 million.

While there are good reasons to think that 2012 was an aberration rather than a shift in the liability landscape, the risks facing motor carriers are high. Clearly, reform is needed in the legal system — starting with less tolerance for erroneous claims and unscrupulous motor carrier safety and medical expert witnesses.

States should consider caps on noneconomic damages. There is no rational justification for the enormous disparity in awards for the same injury from one venue to another. These are complex issues that involve significant competing interests, not the least of which are the interests of those lawyers invested in the gargantuan fees.

Setting aside the needed legal reforms, one question motor carriers might ask about this risk environment is whether Federal Motor Carrier Safety Administration regulatory and safety initiatives may have unintended consequences in accident claims and litigation.

FMCSA is considering proposals to improve Compliance, Safety, Accountability program data quality by making crash accountability determinations and to potentially restrict public access to carriers’ CSA scores.

Although many carriers openly embrace CSA as a way to help measure and monitor specific behaviors, the Crash Indicator has long been subject to criticism because the data include nonpreventable accidents. This rather obvious flaw was apparently overlooked because it was too hard to sort out fault in every accident.

Presumably, it also was recognized that the purpose of CSA as a tool for targeting DOT resources could tolerate some degree of flawed data.

As FMCSA considers this issue, it should recognize that there are substantial efforts to use CSA scores as a technique for enhancing truck verdicts. Plaintiff attorneys are circulating recommendations on how to conduct discovery relating to CSA data, and it has become part of the subjects listed for deposition testimony by the corporate representative.

It is unclear at this point whether the courts will consistently allow CSA data and ratings to be used for the purpose of criticizing a motor carrier. There are many good reasons not to allow it, but the rulings on this are likely to be varied. There are decisions in which past SafeStat scores (CSA’s predecessor) were used to criticize the selection of a motor carrier by a freight broker, giving rise to the prevalent, but legally flawed, doctrine of broker liability. None of these consequences were intended with the adoption of CSA.

FMCSA should give careful consideration to proposals promoting greater accuracy in the crash data. The agency also must consider the serious consequences of publishing erroneous and misleading CSA scores, especially their use in civil litigation.

With respect to crash accountability determinations, the fact that perfect accuracy may not be feasible is certainly no basis on which to oppose greater accuracy. At the same time, some degree of improvement in the data quality can be achieved without great effort or expense. To the extent that the information is used outside the regulatory function of the U.S. DOT, the need for accuracy increases.

Founded in 1985, Atlanta-based law firm Dennis, Corry, Porter & Smith LLP’s primary concentration is the defense of motor carriers and truck insurers.