BENTON – With great care, Senior U.S. District Judge Phil Gilbert set trial on a claim that FedEx Ground contributed to three deaths by employing a driver who didn’t understand enough English to do his job.
He denied summary judgment to FedEx Ground on Feb. 14, finding it must defend claims that it negligently hired and retained Asllan Pino.
Gilbert ruled that plaintiffs Bob Abrams and Janice Smart could pursue punitive damages, though he gave himself an option to change his mind.
“The court is careful,” and repeated the theme throughout his order.
He has set trial to start May 16, and the parties expect it to last 10 days.
Pino primarily speaks Albanian.
A federal rule requires professional drivers to read and speak enough English to converse with the public, understand signs and signals, respond to official inquiries, and make entries on reports and records.
Gilbert’s caution stems from the necessity of resolving two distinct disputes.
Jurors would decide not only whether deficiencies in Pino’s English contributed to the accident but also whether he held a valid license.
On July 20, 2019, on Interstate 70 near Effingham, Pino drove a tractor belonging to Hard Drive Express and a trailer belonging to FedEx Ground.
Traffic ahead of him had stopped at a construction zone, with five persons in a vehicle at the end of the line and a truck in front of them.
“Pino slammed on the brakes, swerved into the concrete median and struck plaintiffs, who were sandwiched between the two semis,” Gilbert wrote.
Virginia Abrams, Matthew Murphy, and Marleen Murphy died.
Police reported Pino was unable to communicate effectively.
They cited him for unqualified driver and failure to reduce speed.
Federal highway regulators sent a violation notice to FedEx, which responded that Pino spoke fine English.
FedEx stated he got into a horrific accident and reverted to his native language.
Alexander Morelli and Benedict Morelli of New York City sued FedEx Ground, Hard Drive, and Pino for Abrams and Smart in December 2019.
They identified Abrams as a St. Louis County resident.
In 2020, a judge found Pino guilty and called his offenses petty and not willful.
At a hearing in Gilbert’s court last year, David Sirotkin of the Morelli firm said FedEx Ground tested Pino for English in 2013.
He said three testers gave grades on a scale of one to five.
He said drivers who failed would be put out of service.
“We believe that the proof showed that he failed that test but FedEx Ground let him continue to drive,” Sirotkin said.
“Our allegation is that he’s an unqualified driver under the federal rules and that will meet the necessary standard for punitive damages.”
Gilbert said, “So he failed?”
Sirotkin said, “Our testimony is absolutely that he failed.”
In Gilbert’s current order, he found it plausible that Pino wouldn’t have been on the road had it not been for a negligent employment decision.
He found it reasonable that FedEx Ground could have foreseen some harm as a result of alleged failure to adhere to policies and regulations.
“Defendants argue that the record does not include any evidence the accident was caused by Pino’s inability to speak English,” Gilbert wrote.
He found police reports, citations and violation notices supported a connection.
“The court will let a jury decide whether plaintiffs put forth enough evidence on whether this connection risers to the level of proximate cause under Illinois law,” Gilbert wrote.
He found jurors could watch dashboard camera video and hear testimony to reach their own conclusion as to what caused the accident.
David Cates of Swansea acts as local counsel for Abrams and Smart.
Gregory Cook of St. Louis leads a defense team that includes five Chicago lawyers.