Testimony of Transportation Safety Expert Witness Limited Due To Flawed Methodology

Court Limits Transportation Safety Expert Witness’ Testimony After he Fails to Identify a Safety Rule Violation

A district judge in Pennsylvania limited the Transportation Safety Expert’s testimony about the Defendant’s failure to review safety and compliance data.

Defendant Gateway Freight Systems, Inc., on behalf of Defendant Tempel Steel, retained Defendant Foxway Transportation, Inc. to transport a shipment of Tempel’s product from Tempel’s Canadian location to two locations in Pennsylvania.

On October 20, 2019, Darlene L. Allen was driving her Mitsubishi Mirage on SR-17 in Tioga County, New York, when she hit a deer. At the time of the accident, Allen had her minor children T.G.A. and Z.D.A. as passengers in the rear seats. Volodymyr Frolyak, an employee of Foxway driving a Foxway-owned Freightliner, was traveling behind Allen and collided with her Mitsubishi. As a result of these accidents, Allen’s children, T.G.A. and Z.D.A. tragically lost their lives.

Plaintiff Robert C. Allen, co-administrator of the estates of T.G.A and Z.D.A, disclosed Kenneth Lacey for the first time attempting to support his partial motion for summary judgment concerning claims of direct negligence, including negligent entrustment, against Gateway.

According to the Report, Plaintiff engaged Lacey to specifically determine the

  1. Did Foxway’s programs comply with both Federal and State regulations and were otherwise consistent with the transportation industry safety, operational, and compliance program and practice standards
  2. If the motor carriers’ programs safety, compliance programs were deficient did these failures contribute, or otherwise directly result in this crash
  3. Did Gateway fail to properly screen, entrust and supervise any party moving product on its behalf
  4. Where there were failures by Gateway to properly screen and supervise motor carriers’ and did these failures contribute, or otherwise directly result in this crash

Defendant Gateway filed a motion to exclude Kenneth Lacey’s opinion as per the grounds of Rule 702 and the Daubert standard.

Transportation Safety Expert Witness

Kenneth Lacey is a safety and operational consultant at KJL Safety and Claims Services LLC, Collegeville, PA.

As a safety consultant, his job entails working with transportation companies of varying degrees of sizes having commercial motor vehicles operating on highways within the United States and Canada, to establish and improve their safety programs and overall safety performance.

He had been retained in this case as a transportation safety expert witness to use his education, experience, and expertise with Motor Carriers, Transportation Brokerage, and Transportation Logistics operations and services, his previous experience as the person responsible for negotiating and education, experience, and expertise with the application of the Federal Motor Carrier Safety Regulations (“FMCSRs”), Uniform Commercial Drivers Manual (“UCDM”) and Safe Commercial Motor Vehicle Operations.

Gain a comprehensive understanding of Kenneth Lacey’s qualifications and casework history with his Expert Witness Profile report.

Discussion by the Court

Kenneth Lacey criticized Gateway for neglecting to ensure Foxway’s compliance with safety regulations. He pointed out that Gateway didn’t conduct adequate checks on Foxway’s safety record, including crashes and violations. Despite entrusting Foxway with numerous shipments, Gateway didn’t follow customary vetting procedures. Lacey highlighted that Frolyak, the driver, had previous speeding violations unknown to Gateway. He faulted Gateway for not utilizing monitoring services like Carrier 411, which could have alerted them to to crashes, moving violations, and disqualified driver violations involving Foxway. Lacey recommended Gateway should have implemented a corrective plan or terminated Foxway’s services due to their history of crashes and violations. He concluded that Gateway’s failure to review safety and compliance data directly caused the crash.

A. Qualification

Defendant Gateway argued that Lacey lacked the qualifications to testify on liability, causation, or negligence, especially regarding brokers.

The Court held that Lacey’s background as a safety and operational consultant in both motor carriers and brokerages qualified him. The Court asserted that Lacey’s broader experience in the transportation industry met the Third Circuit’s criteria for expertise. Gateway’s argument was that extensive experience in the transportation industry regarding driver safety, training, and compliance initiatives was insufficient unless Lacey had worked with brokers specifically. Put into the context of the facts of this case, an individual in such a role at Foxway, a motor carrier, would necessarily have experience regarding the practices and customs of Gateway, a broker, in the selection of motor carriers.

B. Reliability

Gateway argued that Lacey, despite possessing requisite qualifications, offered opinions which were unclear, conclusory, speculative, and unreliable, thereby warranting exclusion.

In his report, Lacey refrained from determining whether specific safety rules were violated in causing the crash, a point Gateway emphasized as a flaw in his methodology. Allen countered that Lacey’s expertise in brokerage industry standards justified his testimony, even without identifying statutory violations. The Court acknowledged the relevance of industry practices in determining negligence standards but upheld the requirement to avoid interpreting statutes.

However, the Court shared Gateway’s concern about Lacey’s methodology, considering the disconnect between Lacey’s methodology—which included identifying violations—and his conclusion—which did not mention any such violations—rendered those conclusions unreliable. For instance, Lacey suggested that Foxway “likely had to reduce its insurance due to being denied loads from shippers actually checking Foxway’s safety rating and refusing to use them.” The Court held that there was nothing in Lacey’s report to support this logical leap. Moreover, Lacey did not explain why, even if Gateway had been more closely monitoring Foxway, it would have been inappropriate for Gateway to continue to retain Foxway to deliver shipments. Lacey did not offer any context for any of the prior Foxway violations or accidents.

Ultimately, the Court found that Lacey’s report lacked specificity and failed to demonstrate how Gateway’s actions directly caused the crash.

C. Fit

Gateway argued that Lacey’s opinion should be excluded because it is unduly prejudicial and not tied to the facts of the case.

The Court focused on the only possibly admissible opinion from Lacey, which stated that it is consistent with industry standards for brokers to continually monitor the safety records of motor carriers. The Court found that Lacey’s opinion that it is common practice in the transportation industry to continually monitor safety records using third-party vendors, safety scores, and other sources is plainly relevant, and helpful to a jury tasked with determining what Gateway should have known about Foxway’s safety record.


The Court granted Gateway’s motion to exclude Kenneth Lacey, except as to his opinion that industry standards imposed upon Gateway a continuing obligation to conduct ongoing “safety and compliance data reviews.”

Key Takeaway:

Defendant’s motion to exclude Lacey was partially granted, allowing his testimony only with regard to the industry standard of ongoing safety and compliance reviews, which was deemed crucial for assessing Gateway’s obligations regarding Foxway’s safety record. Thus, while recognizing Lacey’s qualifications, the Court concluded that his broader assertions lacked the necessary specificity and evidentiary support to be admissible in their entirety

Case Details:

 Case Caption: Allen V. Foxway Transportation, Inc. Et Al
 Docket Number: 4:21cv156
 Court: United States District Court, Pennsylvania Middle
 Order Date:  February 1, 2024


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