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1 THE NATIONAL ACADEMIES PRESS This PDF is available at SHARE Summary of Federal Law Restricting Use of Highway Safety Data in Tort Litigation DETAILS 64 pages 8.5 x 11 PAPERBACK ISBN DOI /24646 AUTHORS BUY THIS BOOK FIND RELATED TITLES Terri Parker and James B. McDaniel; Legal Research Programs; National Cooperative Highway Research Program Legal Program; National Cooperative Highway Research Program; Transportation Research Board; National Academies of Sciences, Engineering, and Medicine Visit the National Academies Press at NAP.edu and login or register to get: Access to free PDF downloads of thousands of scientific reports 10% off the price of print titles or social media notifications of new titles related to your interests Special offers and discounts Distribution, posting, or copying of this PDF is strictly prohibited without written permission of the National Academies Press. (Request Permission) Unless otherwise indicated, all materials in this PDF are copyrighted by the National Academy of Sciences. Copyright National Academy of Sciences. All rights reserved.

2 December 2016 NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM Responsible Senior Program Officer: Gwen Chisholm Smith Legal Research Digest 72 SUMMARY OF FEDERAL LAW RESTRICTING USE OF HIGHWAY SAFETY DATA IN TORT LITIGATION This report was prepared under NCHRP Project 20-06, Legal Problems Arising Out of Highway Programs, for which the Transportation Research Board is the agency coordinating the research. The report was prepared under Topic by Terri Parker, Nixa, Missouri. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. Background State highway departments and transportation agencies have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. The NCHRP Legal Research Digest series is intended to keep departments up-to-date on laws that will affect their operations. Foreword In 1987, Congress enacted 23 U.S.C. 409, Discovery and Admission as Evidence of Certain Reports and Surveys, which prohibits the use, in tort litigation, of highway safety data created for purposes related to safety improvements on roads qualifying for federal safety improvement funding. The law since has been amended to clarify and/ or expand its scope. This amendment has generated a large amount of federal and state caselaw interpreting its provisions. Present-day state and local transportation agencies would be aided by a summary of this law, its application, and the large body of interpretative decisions. The summary includes the following: 1. The origin of the law, the reason for its enactment, and its relationship to other similar statutes such as 23 U.S.C. 402(k)(1). 2. Explanation of the provisions of the law, particularly the safety data governed by the law. 3. The purpose and effect of amendments since The development of caselaw interpreting and applying the law. 5. Explanation of the 2003 Supreme Court decision, Pierce County v. Guillen, 537 U.S. 120, 123 S. Ct. 720, 154 L. Ed. 610 (2003), upholding the constitutionality of the law, and the effect of Guillen on later caselaw. 6. Current major interpretation and application issues involving the law, including how it is affected by public records law or how it affects public records law. This digest should be helpful to attorneys, risk managers, safety specialists, financial officials, inspectors, and others who have oversight or responsibility for highway safety.

3 CONTENTS I. Introduction, 3 II. Legislative and Substantive History of 23 U.S.C. 409, 4 III. Elements of Existing Caselaw, 6 A. Preemption of State Law, 6 B. Raw Data, 7 C. Typically Protected Documents, 8 D. Protected Data Available from Other Sources, 11 E. Waiver of Privilege, 12 F. Public Records Requests, 13 G. Influence of Railroad Cases, 14 H. Foundation to Establish State s Protection, 15 I. Trial Strategy, 18 IV. Survey Responses, 20 V. Tips for Practitioners, 21 VI. Conclusion, 23 Appendix A: A Sampling of Motions Used by State Departments of Transportation, A-1 Appendix B: Survey, B-1

4 3 SUMMARY OF FEDERAL LAW RESTRICTING USE OF HIGHWAY SAFETY DATA IN TORT LITIGATION By Terri Parker, Nixa, Missouri I. INTRODUCTION Transportation agencies must continuously improve the safety of their roadway systems. In advancement of that objective, a federal law known as MAP-21 (Moving Ahead for Progress in the 21st Century) was enacted in Its purpose was to achieve a significant reduction in fatalities and serious injuries on all public roads. 1 According to the text of MAP-21, states were to develop, implement, and update strategic plans to identify problems on highways and then develop strategies to reduce safety problems. 2 Roadway projects were to be chosen based on data such as crash experience, crash potential, and crash rates. To qualify for funding, agencies were required to follow generally accepted safety management practices such as identifying problems through a site analysis or systematic approach, identifying countermeasures to address the problems, prioritizing projects for implementation, and evaluating completed projects to determine their effectiveness. 3 To comply with these directives, states and local agencies must compile an enormous amount of data from accident reports, engineering studies, field studies, and other resources. If this data were made available to the general public and the legal community, it could spawn millions of dollars in litigation costs for the agencies. With its enactment of 23 United States Code (U.S.C.) 409, Congress acknowledged the need to protect that data from litigation. According to the National Safety Council, the number of traffic deaths in the United States rose 8 percent from 2014 to 2015, equating to approximately 38,300 deaths on the nation s highways in Although the increase in fatalities is cause for concern, in 1965 nearly 50,000 Americans died in motor vehicle accidents. Experts at that time projected the number of fatalities to increase dramatically. Despite efforts made by federal and 1 23 U.S.C. 148(b) U.S.C. 148(c)(1) U.S.C. 148(c). 4 Press Release, National Safety Council, Motor Vehicle Deaths Increase by Largest Percent in 50 Years (Feb. 17, 2016). state lawmakers, most states lacked sufficient safety rules, driver education, and enforcement programs 5 to address driver safety matters. Few states had comprehensive highway safety programs, and most of the existing programs were severely underfunded. 6 The 1966 Highway Safety Act 7 was intended to address basic safety issues, including driver education; licensing; pedestrian performance; vehicle registration and inspection; traffic control; highway design and maintenance; accident prevention, investigation, and record-keeping; and emergency services. As part of the 1966 Act, Congress authorized funds for distribution to the states but incorporated a requirement in the law that each state implement a highway safety program by December 31, 1968, or suffer a 10 percent reduction in apportioned funds. 8 The Highway Safety Act was followed by a law known as the Hazard Elimination Program, which was enacted in That program specifically required states to identify hazardous locations within their system. After the Hazard Elimination Program was introduced, states and local governments loudly voiced concerns that their liability risks would increase when the law was implemented. Representatives of the agencies argued that under the new program, hazardous locations would be identified, therefore providing notice to the agency of dangerous conditions and requiring instant action to fix problem areas. Because all the locations could not be addressed immediately, millions of dollars that could be spent on the highways would potentially be paid in civil damages. In 1987, Congress responded to these concerns by enacting 23 U.S.C. 409, which protected documents that were produced as part of the Hazard Elimination Program from civil litigation. In general, the courts 5 U.S. House of Representatives, Historical Highlights, The Highway Safety Act of 1966 (Aug. 18, 1966), available at The-Highway-Safety-Act-of-1966/. 6 Id. 7 Pub. L. No , 80 Stat. 731 (1966). 8 Id. 9 Pub. L. No , 87 Stat. 286, codified at 23 U.S.C. 152 (1973).

5 4 have found that protected documentation consists of reports, schedules, surveys, lists, or other related data. These documents might be accident reports, notes of site investigations, engineering studies, accident summaries, charts identifying high hazard locations, or other similar documents. Section 409 has been amended twice in response to court rulings. The amendments were intended to guide courts as to the appropriate scope of The extensive legislative history of the law is examined in further detail in Section II of this digest. Section 409 has been interpreted by multiple courts, generating a vast body of federal and state caselaw. The United States Supreme Court issued a landmark decision in 2003 Pierce County, Washington v. Guillen. 11 In Pierce County, the Guillens requested that the County provide them with copies of accident reports and other documents that showed the accident history of the intersection where the crash that spurred their lawsuit occurred. The request was denied by the County on the basis that the reports were compiled or collected for federal safety purposes and were therefore protected by federal law. An appeal to the U.S. Supreme Court followed multiple state court decisions, and the Court found that as long as the accident reports and other data were obtained for the purposes outlined in the law, they were protected and not to be disseminated for litigation purposes. The Guillen case is discussed frequently in the cases that deal with 409 and in much more detail later in this digest. Although the Guillen Court found that the safety data in question were protected by federal law, cases taken up after that date continue to explore and interpret the law, resulting in a variety of state and federal decisions interpreting 409 and the accompanying federal rules. The purpose of this research digest is to provide a comprehensive analysis of 409, including legislative history and court rulings. This publication will be of interest to legal practitioners, members of the media, and state and local transportation agencies. This digest is organized as follows: II. Legislative and Substantive History of 23 U.S.C This section includes a discussion of the origin of the law and its legislative history. III. Elements of Existing Caselaw. This section includes an examination of the groundbreaking Pierce County decision by the U.S. Supreme Court and reviews the categories of documents that are typically protected by the courts, as well as the criteria used by the courts to determine whether the 10 See Pierce County, Washington, v. Guillen, 537 U.S. 129, 134, 123 S. Ct. 720, 725, 154 L. Ed. 2d 610, (2003) U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003). documents should truly be protected. This section includes a discussion of state public records laws and requests, and their inevitable interaction with 409. IV. Survey Responses. To obtain information about how and whether states and local agencies are using 409 to protect safety documentation, a survey was sent to each of the states asking for details about their experiences in the court system and public records requests. Survey findings are summarized and analyzed in this section. V. Tips for Practitioners. This section includes a sample foundation for an evidentiary hearing on whether safety documents are entitled to federal protection, sample objections to interrogatories, and model pleadings with affidavits used in support of the pleadings. VI. Conclusion. VII. Appendix. II. LEGISLATIVE AND SUBSTANTIVE HISTORY OF 23 U.S.C. 409 The Hazard Elimination Program codified as 23 U.S.C. 152 in 1973 provided state and local governments with funding to improve their most dangerous sections of roads. To receive federal funding, recipients were required to evaluate their roads, identify hazardous locations, assign priorities for the improvement of those locations, and then implement the improvements. Facilitating the program was a difficult task for the U.S. Department of Transportation. States refused to comply with the informationgathering requirements and expressed strong objection to providing information, which they believed would expose them to liability. 12 The Secretary of Transportation noted in 1986 that in many states, accident-location tracking did not universally cover all of the state highways and that the process was not being uniformly applied to all public roads. 13 The following excerpt from a 1995 Transportation Research Board National Cooperative Highway Research Program digest 14 further explains the concerns of state agencies: In the early 1960 s the federal government concluded that a significant reduction in fatalities and injuries could be 12 United States Department of Transportation and Development, Secretary s Second Annual Report on Highway Safety Improvement Programs (1976). 13 United States Department of Transportation and Development, Secretary s Annual Report on Highway Safety Improvement Programs (1986). 14 Orin Finch, Freedom of Information Act, Federal Data Collections, and Disclosure Statutes Applicable to Highway Projects and the Discovery Process (National Cooperative Highway Research Program, Legal Research Digest 33, Transportation Research Board, 1995).

6 5 achieved by establishing in each state a systematic and continuing process of identifying, selecting, scheduling, constructing, and evaluating highway safety improvements. In 1964, the federal government urged the states to implement safety improvements intended to reduce the number and severity of accidents through engineering improvements to hazardous highway locations and elements. This voluntary approach to federal-aid funding of highway safety improvements met with limited success. As a consequence, Congress gave impetus to the safety improvement program by enacting the Highway Safety Act of 1973, which for the first time provided federal-aid highway funds to be used exclusively for safety improvement projects. Part of this act was the Highway Safety Improvement Program (HSIP). HSIP has proven successful. The Federal Highway Administration estimates that highway safety improvement projects constructed since 1974 have saved 29,000 lives and have prevented more than 600,000 serious injuries. HSIP did, however, result in unintended consequences: large judgments in civil actions against public entities for highway accidents. In short, the documentation generated by the federally mandated HSIP became a veritable wellspring of proofs for the plaintiffs bar in pursuit of large judgments against public entities. As a natural consequence, the participants in HSIP (public agencies and railroads) became reluctant to gather the extensive array of self-critical material the HSIP required. In response to those concerns, 23 U.S.C was enacted in It read as follows: Notwithstanding any other provision of law, reports, surveys, schedules, lists or data compiled for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented using Federal-aid highway funds shall not be admitted into evidence in Federal or State court or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists or data. In its original form, the text of the law did not specifically prohibit discovery of protected safety-related documents. Instead, in addition to excluding the documents from admission into evidence in a trial, it stated [such documents] shall not be considered for any other purposes. 16 Because some state and federal courts interpreted that language as allowing discovery of the safety data, the statute was amended in 1991 to specifically prohibit discovery of the data Pub. L. No , 101 Stat. 170 (1987). 16 See Act of Apr. 2, 1987, Pub. L. No , 132, 101, Stat See Act of Dec. 18, 1991, Pub. L. No , 323, 109 Stat As referenced in the text of the law, 130 relates to railroad highway crossings, 144 relates to bridge programs, and 152 relates to the Hazard Elimination Program. In 1995, Congress again amended 409 in response to the courts continued inconsistent applications of 409. In the view of Congress, the courts had misinterpreted the terms data compiled to apply only to raw data and were failing to look at the purpose of the compilation of the data. 18 Cases such as Wiedeman v. Dixie Elec. Membership Corp., 19 Ex Parte Alabama Highway Department, 20 and Indiana Department of Transportation v. Overton 21 were cited as examples of the courts misinterpretation of the scope of 409. The congressional comment to the 1995 amendment reads as follows: It is intended that raw data compiled prior to being made part of any formal or bound report shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such data. 22 In its present form, 409 provides as follows: Notwithstanding any other provisions of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway highway crossings, pursuant to 23 U.S.C. 130, 144, or 148, of this title or for developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds, shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for such other purposes in any action for damages arising from any occurrence at a location mentioned in such reports, surveys, schedules, lists, or data. 23 Section 409 is written in the disjunctive form, so that if either of the tests presented in the statute are met, the safety data collected by the agency are protected. Therefore, if the information was compiled or collected either (1) for the safety enhancement purposes identified in the law, or (2) for the development of any highway safety construction improvement project that could be implemented utilizing federal safety funds, then the information is protected under 409. The first prong of the law is known as the Highway Safety Improvement Test or the HSIP test because it relates to the Highway Safety Improvement Program found in 23 U.S.C C.F.R. Chapter 1, Subchapter J, Part 924 sets forth the requirements of the state HSIP programs. 18 National Highway System Designation Act of 1995, Pub. L. No , So. 2d 170 (La. 1993) So. 2d 389 (Ala. 1990) N.E.2d 570 (Ind. App. 1990). 22 H.R. Rep. No , 328, at 59 (1995). 23 In 2005, 23 U.S.C. 152 was amended to 23 U.S.C. 148.

7 6 As seen in some of the documents in the Appendix of this digest, the language of the regulations can be used to form the basis of a roadway agency s Motion to Quash or Motion in Limine. The second prong of the statute is known as the Federal Funding Test, wherein Congress expressed its intent that reports, surveys, schedules, lists, or data compiled or collected for the purpose of developing any safety construction projects that could be implemented using designated federal safety funds are also protected from civil litigation. Examples of the use of this prong of the statute in pleadings can also be found in the Appendix of this digest. State and federal courts generally explain that Congress intended for the states and local agencies to be able to comfortably collect, review, and compile safety data, and then make recommendations for site improvements. Highway departments must be able to conduct this work without concern that the information will be used against them in litigation. 24 III. ELEMENTS OF EXISTING CASELAW This section includes a detailed discussion of federal and state cases that illustrate the important components of the law of 409 and its protections. The end result of the judicial application of 409 may be that documentation or evidence that is legally relevant in a civil personal injury or wrongful death case is not admissible in that suit, and cases with merit may not be successfully prosecuted by a plaintiff. It is apparent that Congress was aware of the potential for injustice for individuals when the legislation was enacted. The court in Coniker v. State of New York 25 commented as follows: Clearly, the result of the statute is harsh. Evidence that would otherwise be crucially relevant on a number of issues that routinely arise in highway negligence litigation may not be admitted or disclosed, notwithstanding that such may influence or perhaps determine the outcome of the litigation. Nevertheless, Congress has determined that the effect of the prohibition would be to enhance the safety of the Nation s highways and, in the long run reduce the number of people killed and injured in accidents that could be avoided by systematic analysis, and that this goal outweighs the barriers that it creates for litigants attempting to prove that a State s negligence contributed to their injuries. Indeed, one could perhaps make an apt analogy to other exclusionary rules, such as those in criminal cases, where evidence that would otherwise be probative is barred from admission in furtherance of what is deemed to be a higher goal. Our system of government assigns the balancing of such competing interests to the legislative branch, and the role of this court is not to second-guess the analysis 24 See Sawyer v. Ill. Cent. Gulf R.R. Co., 606 So. 2d 1069 (Miss. 1992) Misc. 2d 801, 695 N.Y.S.2d 492 (Ct. Claims N.Y. 1999). that resulted in this evaluation, or to attempt, in a particular case, to find a way around it, but rather to effectuate congressional intent. 26 Because both highway agencies and railroad corporations have protections under federal law, the influence of railroad cases on the interpretation of 409 is an important component of the analysis of the law. Hundreds of state and federal cases in some manner interpret 409, and many of those cases involve railroad crossings and data rather than highway intersections and accident data. Although highway and railroad issues may be similar, in that the same types of documents are protected, the courts may treat highway and railroad cases differently because the basis of the protections are found in different sections of federal law. Counsel should closely evaluate the text of the law that relates to documents held by government and railroad companies before assuming that a particular ruling is applicable to their fact pattern. At least one court has noted that Congress may have intended to provide a stronger protection to documentation collected by states than to documentation collected by railroads. 27 The cases are divided into the following topics: preemption of state law, raw data, typically protected documents, data available from other sources, public records requests, waiver of privilege, trial strategy, the evidentiary foundation necessary to establish privilege, and the influence of railroad cases. A. Preemption of State Law The Supremacy Clause in the United States Constitution provides for the federal preemption (or over-riding) of state law and was intended to resolve potential conflicts between federal and state law. Congress, within constitutional limitations, may supersede or overrule state law. Federal law essentially trumps or preempts state law when the two are in conflict. Courts, however, require clear language of Congress s intent in order to find that a state law has been preempted by federal law. After 409 was enacted, the issue of whether Congress intended to supersede state evidentiary rules was litigated extensively. Courts eventually agreed that Congress intended to preempt state evidentiary rules as to documents gathered for purposes related to the federal statute. In Martinolich v. Southern Pacific Transportation Co., 28 the court analyzed the principle as follows: 26 Id. at 805, 695 N.Y.S.2d at See Zimmerman v. Norfolk S. Corp., 706 F.3d 170, 182 (3d Cir. 2013) So. 2d 435 (La. App. 1988).

8 7 23 U.S.C. 409 begins with the language [n]otwithstanding any other provision of law... The substance that follows this preface, applicable to both federal and state courts, is the regulation of evidence: [certain documents]...shall not be admitted into evidence in Federal or State court or considered for other purposes... Insofar as this statute applies to the function of state courts conducting their business it is preemptive.. Where, as here, the intrusion is into an area traditionally occupied by the states, Congress intent to preempt must be clear.. We start with the assumption that the historic police powers of the states were not to be superseded...unless that was the clear and manifest purpose of Congress, quoting from Ruth Packing Co. 29 [A] state s regulation of its court system is in our opinion as fundamental a function of its sovereignty as the normal exercise of its police power even in matters concerning the health and safety of its citizens. Congress intrusion, in this instance, however, is constitutionally permissible because Louisiana s participation in the federal funding scheme is voluntary; because the improvement of state highways with federal funds is in pursuit of [providing] for the general welfare as provided in U.S. Const. Art. I, 8, cl. 1 ( spending power ); because it is clear that participation in the funding program requires acquiescence to the intrusion; and, finally, because the intrusion is related to a valid federal interest. 30 B. Raw Data Raw data, in the hands of a state or local transportation agency, are protected from disclosure, discovery, or admission into evidence in a court of law as long as they were collected or compiled for the purposes enumerated in the law. Raw data can be documents such as accident reports, reports of property damage, hazard rankings, charts or graphs showing data analysis, or traffic counts. As detailed in the following section, Pierce County v. Guillen 31 provides guidance for practitioners and judges in interpreting the provisions of 409 relating to data. In Pierce County, the U.S. Supreme Court overruled multiple inconsistent lower court interpretations of the law and set out guidelines that are consistent with the plain language of 409 and congressional intent. The case involved a fatal accident at the intersection of two county roads in the State of Washington. Plaintiff, through the state Public Disclosure Act, requested that the agency provide the accident history of the intersection along with other safety documentation such as collision diagrams prepared by a County employee, a memorandum from U.S. 519, 523, 97 S. Ct. 1305, 1309, 51 L. Ed. 2d 604, Martinolich, 532 So. 2d at U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003). the County public works director, and a list of accidents that had occurred at the intersection. Lower courts granted plaintiff s requests for the documents. The case reached the U.S. Supreme Court after the Washington Supreme Court ruled that 409 protection was limited to documents created originally by the road agency for 152 purposes and that 409 was unconstitutional because it violated the Commerce Clause of the U.S. Constitution. The U.S. Supreme Court reviewed the legislative history of the Federal Hazard Elimination Program, noting that the program was intended to provide state and local governments with funding to improve the most dangerous sections of their roads, and then set out the three different versions of 409 and compared them to illustrate the changes in the law. The Court considered several different interpretations of the law as presented by the parties and the federal government and ultimately concluded that the protections found in the statute should be interpreted narrowly. A unanimous Court found that because Congress could reasonably believe that the roadways would be safer as a result of the application of 409 by public agencies, it was a law that was aimed at improving safety in the channels of commerce and increasing protection for the instrumentalities of interstate commerce and therefore constitutional. 32 The Court reversed the lower court s ruling that the requested data should be released, finding that the requested information was collected or compiled by the County and, even if the data had been compiled for or by another agency, as long they had been compiled for 152 purposes as part of the Hazard Elimination Program, data sought from the County were protected both from discovery and admission at trial. Although the Court recognized that its ruling could impact individual plaintiffs cases negatively, it found that the goal of greater safety on the nation s highways was paramount. The Court stated its reasoning as follows: Congress adopted Section 152 to assist state and local governments in reducing hazardous conditions in the Nation s channels of commerce. That effort was impeded, however, by the States reluctance to comply fully with the requirements of Section 152, as such compliance would make state and local governments easier targets for negligence actions by providing would-be plaintiffs a centralized location from which they could obtain much of the evidence necessary for such actions. In view of these circumstances, Congress could reasonably believe that adopting a measure eliminating an unforeseen side effect of the information-gathering requirement of Section 152 would result in more diligent efforts to collect the relevant information, more candid discussions of hazardous locations, better informed decision making, and, ultimately, greater safety on our Nation s roads Pierce, 537 U.S. at Id. at 148.

9 8 The Court found that 409 protects not just the information the agency itself has generated or compiled, but also any information that the agency collects from other sources for 152 purposes, rejecting arguments that only materials actually created by the responsible agency were protected. C. Typically Protected Documents The plain language of the law indicates that certain documents such as reports, surveys, schedules, lists or data that are compiled or collected to evaluate roadway locations and plan for safety improvements are protected from disclosure. The court in Martinolich, supra, was one of the first courts to elaborate on the types of materials and evidence proscribed by 409: These documents may reflect mental impressions, conclusions, and opinions of [state transportation department] representatives regarding a survey of railroad grade crossings in need of separation, relocation, or protective devices... if compiled in compliance with 23 U.S.C. 130; or mental impressions, conclusions, and opinions of [state transportation department] representatives regarding hazardous locations, sections, and elements...[to be assigned] priorities for the correction of such...and [for the implementation of] a schedule of projects for their improvement, if compiled in compliance with 23 U.S.C Hazard Rankings. These documents show, in order, which locations are considered by state or local safety administrators to be the most dangerous locations within their jurisdictions. The rankings are normally supported by study data, accident reports, on-site visits, and other analytical methods. In Sawyer v. Illinois, 35 the railroad initially brought suit against Sawyer for property damage that occurred when he tried to cross the tracks in front of an oncoming train. In response, Sawyer alleged that the crossing was dangerous and attempted to use hazard rankings and recommendations of the state highway department to support his counterclaim for injuries. The rankings indicated that the crossing in question was the 23rd most dangerous crossing in Mississippi and ranked in the top 1 percent of the state s hazardous locations. Prior to this accident, the state highway department had recommended an active, flashing light warning device. On review, the court found that the hazard rankings and related evidence were protected, commenting that: Nobody made Mississippi get into the railroad crossing safety enhancement program. It is a voluntary program. Duly authorized officials of this state, however, have committed us to the program in exchange for ninety percent 34 Martinolich, 532 So. 2d at So. 2d 1069 (1992). federal funding and it does not strike us outrageous that we should accede to the federal government s rules and regulations appertaining thereto. 36 Similarly, in Claspill v. Mo. Pacific, 37 a railroad engineer claiming personal injuries as a result of a railroad crossing accident attempted to use an exhibit at trial that listed the crossing where he was injured as one of the most dangerous crossings in the state. The appellate court, in finding that the document was properly excluded, explained that it was protected because it was compiled by the Missouri Public Service Commission in an effort to obtain federal funds for crossing improvements. More recently, in Dickerson v. CSX Transportation, 38 the plaintiff attempted to use expert testimony, which was based on information contained in a federal railroad database, to show that a railroad crossing was the ninth worst in the state. The court held that the expert could not testify concerning the safety ranking of the junction nor discuss any data provided by the railroad safety database because they were protected under 409. The court cited to Dugle v. Norfolk Southern R. Co., 39 where that court noted under the plain language of the law, the court is prohibited from allowing any party to use the protected information as evidence. 40 In Ross v. Burlington Northern and Santa Fe Ry., 41 defendant Burlington Northern was unsuccessful in protecting National Crossing Inventories and accident reports from admission into evidence at the trial court level. The National Crossing Inventory is a database of highway railroad crossings in the United States that contains reports on each crossing, including information such as the number of trains that pass through daily, the typical train speed, and the maximum speed. Relying on Zimmerman v. Norfolk Southern Corp., 42 the Ross court explained that 409 can be divided into two distinct parts. Under the first part, reports, data and the like are excluded if they were compiled or collected to identify, evaluate, or plan the safety enhancement of potential accident sites, hazardous roadway conditions, or railway highway crossings, pursuant to 130, 144, and 148. The second part excludes such documents if they were compiled or collected to 36 Id. at S.W.2d 139 (Mo. 1990). 38 Civil Action No. 1:10cv-9-JHM, 2014 U.S. Dist. LEXIS (Feb. 10, 2014). 39 Civil Action No , 2010 U.S. Dist. LEXIS, (May 13, 2010). 40 Id. at F. Supp. 3d 1330 (W.D. Okla. 2014) F.3d 170 (3d Cir. 2013).

10 9 develop any highway safety construction improvement project which may be implemented using Federal-aid highway funds. 43 Burlington Northern was unable to present evidence that the inventory reports were collected by the Federal Railroad Administration pursuant to any section of the law that would protect them and thus, the court found that the inventories were not protected, affirming the ruling of the trial court. Surveys and Studies Used to Identify Potentially Hazardous Locations. The documents within this category may include accident analysis diagrams, videotapes, photos, speed studies, traffic counts, and any other studies considered to be engineering studies that are commonly used to identify hazardous and nonhazardous locations. In Robertson v. Union Pacific, 44 a personal injury action, the court held that the Arkansas Highway Department s formula for evaluating the hazardousness of crossings, and a newspaper article that identified the crossing in question as the most hazardous in the state, were inadmissible, because the formula was developed by the highway department pursuant to 23 U.S.C The newspaper article was offered as evidence by the plaintiff to show notice to the railroad of the hazardousness of the crossing; it was, however, based on engineering data compiled by the Arkansas Highway Department. The railroad contended that the district court properly excluded the newspaper article from evidence, arguing that allowing the introduction of the data through the newspaper article would circumvent the purpose of the statute. The appellate court agreed and found that Robertson could not use evidence that was otherwise inadmissible simply because it was reported by a secondary source. In Boyd v. National RR Passenger Corp., 46 the plaintiff obtained railroad surveillance tapes showing bicyclists and children using the crossing at issue after the crossing gates were lowered. Plaintiff offered the videos, which had been made by the railroad as part of a study of the corridor, as evidence of the railroad s notice of a dangerous condition. The trial court refused to allow the admission of the tapes. On appeal, the court found that the videos were protected by 409 because corridor analysis, which included making videos, was covered under the statute. The court noted that the surveillance tapes were compiled as part of a comprehensive analysis of whether four-quadrant gates should be 43 Id. at F.2d 1433 (8th Cir. 1992). 45 Id. at Mass. App. Ct. 783, 821 N.E.2d 95 (2005). installed at all grade crossings along the railroad line. 47 On appeal to the state Supreme Court in Boyd v. National RR Passenger Corp., 48 the court overturned the lower court s grant of summary judgment in favor of the railroad but left the 409 rulings in place. In Carson v. CSX Transportation, 49 the court prohibited a state department of transportation (DOT) engineer from testifying about his recommendation to perform safety upgrades at an intersection. The recommendation for upgrades had been made just weeks before the accident that spurred the litigation. Because the crossing had been evaluated for the purpose of obtaining federal funds, the trial court s ruling was upheld on appeal. A comparable ruling was made by the court in Illinois Central Railroad Company v. Cryogenic Transportation, Inc. 50 Plaintiffs sought to depose an employee of the Mississippi Department of Transportation (MDOT) to obtain detailed information about accidents at the location where the accident that prompted their suit occurred. Plaintiff s subpoena was quashed by the court based on 409, and the underlying safety data were protected by the court. Applications for Federal Funding. State and local transportation agencies, as well as railroads, are able to apply for federal funding assistance for safety projects such as intersection improvements, signal replacements, installation of crossbars and flashing lights, and a multitude of other improvements. The application process is dictated by the federal government, and proof of the need for the project must be provided. A detailed analysis of the problems that have occurred or are likely to occur at the location in question must therefore be outlined in the proposal for funding. These applications would be fertile ground for plaintiffs who seek to identify hazardous locations or state a cause of action in a lawsuit. For this reason, the applications are protected by federal law if they contain data that have specifically been gathered for the purpose of seeking funding for improvements to roadways. In Benoit v. Town of Vinton, 51 the court considered the plaintiff s requests for admission as to whether the town applied for, received, or expended federal funding to improve a particular crossing. The court found that the facts of whether or not the funds were applied for or used were areas of proper inquiry for the plaintiff, and not protected information, and ordered the town to answer the discovery requests. 47 Id. at 796, 821 N.E.2d at N.E.2d 356 (Mass. 2006) S.E.2d 148 (S.C. 2012) F. Supp. 2d 790 (D.C., Miss. 2012) So. 2d 1218 (La. Ct. App. 1999).

11 10 The plaintiff in the case of Van Osdol v. DOT 52 submitted a request under the state s public record law for a list of hazardous locations and intersections. The Pennsylvania Department of Transportation refused to provide the information, arguing that those documents were exempt under state public records law. The appellate court agreed, finding that the documents containing that information were actually unfunded grant applications and therefore not public records according to Pennsylvania state law. Formulas Used to Determine Hazardousness. Local, state, and federal agencies are required to prioritize locations for safety projects to compete for federal funding. The analysis necessarily requires a review of accident history and features of the highways such as curves, hills, speeds of drivers, and clear zones. Factors such as these, combined with accident rates, traffic counts, and other empirical data, are considered by engineering and diagnostic staff when determining which locations within their jurisdiction merit safety improvements. Because this analysis is based on information such as mental impressions and engineering judgment, the formulas used by agencies to decide how safety funds are allocated are protected under federal law. In the case of Robertson v. Union Pacific, 53 a teenage boy riding in a vehicle was seriously injured after the vehicle collided with a train at a crossing known as El Paso Crossing in Russellville, Arkansas. Plaintiff sought to introduce evidence of the Arkansas State Highway and Transportation Department s (AHTD) railroad crossing hazardousness formula and traffic counts to show the dangerousness of the crossing. After a review of the plain language of 409, the court found that the formula and automobile count were compiled and utilized by AHTD pursuant to 23 U.S.C. 130(d) for purposes of monitoring and improving highway railroad crossing safety, and thus exempt from disclosure. Correspondence by Officials and Others Requesting Safety Improvements. In general, as long as documents are collected or compiled by a public agency or railroad, correspondence requesting improvements is protected if it is compiled for the purposes set out in 409. The courts emphasize that all letters and other documents in a transportation department s possession are not protected (emphasis added). To be protected, they must relate to the purposes defined in federal law such as determining locations for federal funding or improving the safety of a roadway or railroad A.2d 428 (Pa. Commw. 2006) F.2d 1433 (8th Cir. 1992). Reichert v. State Department of Transportation and Development 54 involved a three-vehicle collision that occurred at the intersection of two Louisiana highways. During trial, the court allowed into evidence correspondence from the Louisiana Department of Transportation and Development (LaDOTD) chief engineer to state representatives and an LaDOTD memorandum recommending against the flashing beacon. The appellate court found that the documents should not have been used as evidence because they were collected or compiled in furtherance of potential projects that might be supported by federal funds. A similar issue was considered in the case of Miller v. Bailey, 55 when LaDOTD filed a pretrial motion in limine to exclude a letter written to the department asking for No Parking signs to be installed along the highway. The trial judge admitted the letter into evidence because LaDOTD failed to provide evidence that Highway 13 was part of a federally funded project or program, even though the road was part of the federal highway system. On appeal, the court found that the trial judge erred as a matter of law in admitting the letter. Similarly, in Estate of Bloodworth v. Illinois Central R.R. Co., 56 evidence of a meeting among MDOT, the county, and the railroad where they discussed malfunctions of a crossing and potential safety upgrades was found to be inadmissible. In Robertson, supra, the court found that correspondence used to evaluate a grade crossing for improvements was also protected by federal law, and those documents need not be produced in discovery. 57 Reports of Routine Investigations. If documents such as accident investigations are compiled in the regular course of business of a transportation agency, they are protected. This issue was addressed in Coniker v. State of New York. 58 The plaintiff argued that because the New York State Department of Transportation (NYSDOT) regularly investigated accident scenes, documents compiled or composed during that process were not protected by 409 because they So. 2d 193 (La. 1997) So. 2d 1174 (La. Ct. App. 1993) So. 3d 888 (Miss. 2013). 57 For other analogous rulings, see Powers v. CSX Transp., Inc., 177 F. Supp. 2d 1276 (S.D. Ala. 2001), BNSF Ry. Co. v. Town of Vinton, 980 So. 2d 152 (La. App. 3d Cir. 2008), Dowell v. State ex rel. Dep t of Transp. & Dev., 750 So. 2d 498 (La. App. 2d Cir. 2000), Long v. State ex. rel. Dep t of Transp., 916 So. 2d 87 (La. 2005), and Madden v. Antonov, Civil Action No. 4:12 cv-3090, 2014 U.S. Dist. LEXIS (Nov. 4, 2014) Misc. 2d 801, 695 N.Y.S.2d 422 (Ct. Cl. N.Y. 1999).

12 11 were business records. On appeal, the court found that accident investigation reports, which included safety evaluations, investigation summaries, and evaluations of potentially hazardous locations, were protected from disclosure. The court further concluded that there was no ordinary course of business exception to 409 that would exempt the documents from the protections provided by federal law. 59 D. Protected Data Available from Other Sources Although it has been established that safety documentation and raw data are protected in the files or hands of a public agency that has the documentation for 409 purposes, that information in the hands of another agency may not be protected. According to Pierce County, supra, the data are discoverable from local officials who originally generated the reports for their own purposes, but are not discoverable from the state agencies to which they have been transmitted for purposes contemplated by 409. Several later cases stand for the proposition that discovery cannot be used to obtain information from a source that has obtained it for purposes outlined in federal law. In Lockett v. State of Louisiana Department of Transportation and Development, 60 a wrongful death case, plaintiffs were able to admit into evidence letters written by various City of Baker officials to senators, LaDOTD, and local planning commissions to show that LaDOTD had been aware of the flawed condition of the intersection for many years. Plaintiffs obtained the letters from the City of Baker, Louisiana, rather than LaDOTD. After an unfavorable verdict, LaDOTD argued that the letters should not have been admitted by the trial court. On appeal, the court found that the fact that the records of the mayor of Baker or Baker s chief of police included information that could be construed to be safety records of LaDOTD did not confer immunity on the records, citing to Pierce County. Although Lockett was later overruled on other grounds, the trial court s 409 rulings were undisturbed. The court in Long v. Department of Transportation and Development 61 also dealt with the issue of letters of complaint held by other agencies. Correspondence between the City of Bonita, Louisiana, and LaDOTD indicated that the City had requested additional warning signs at the railroad crossing in question, and the State had responded that it intended to signalize the crossing with funds obtained through a 59 Id. at 807, 695 N.Y.S.2d at So. 2d 949 (La. App. 2003) So. 2d 87 (La. 2005). federal safety program. The initial letter from the mayor to LaDOTD requested a safety review of the location. The court determined the letter, and subsequent correspondence, to be related to the process of obtaining federal assistance for the railroad upgrade, and found that the documents were protected by federal law because of their content. The court stated: [O]f course, this is not to say that all documents and information in the state s possession will always be privileged under section 409. We conclude only that records amassed pursuant to federal safety evaluation programs or for the purpose of developing other highway safety improvement projects which may be federally funded, are protected. 62 The court in Reichert v. Louisiana Department of Transportation 63 reached a similar conclusion. In Goza v. Parish of West Baton Rouge, 64 the parish tried to protect accident reports from distribution by the state highway patrol, arguing that accident reports were protected because state funds had been used to develop the report format. The court found that mere use of state funds in the development of the report format was not sufficient to invoke the 409 protection. Because the highway patrol did not compile or collect the reports for 152 purposes, they were not protected. In a similar manner, in Gendler v. Batiste, 65 the plaintiff sought to obtain bicycle-accident records for Seattle s Montlake Bridge after he wedged his bicycle tires in the grating of the bridge and was seriously injured. The plaintiff intended to use the records in a civil suit if they supported his theory that the bridge became unsafe for bicyclists after the decking had been replaced. The state patrol refused to provide the records, alleging that they were prohibited from releasing the documents unless the plaintiff agreed to not use the information in litigation against the State. The plaintiff refused to sign a release and filed suit instead. The appellate court found that because the 409 prohibition on the release of the records only applied to the state DOT, the refusal to provide the records was improper, and the court awarded attorney s fees to the plaintiff. The court reasoned that because the state patrol had an independent statutory obligation to collect the data, unrelated to 409, the records were not protected when held by the highway patrol. On further appeal, the state Supreme Court agreed, disregarding the State s argument that because both 62 Id. at 98, citing Palacios v. Delta R.R. Inc., 740 So. 2d 95 (La. 1999), at So. 2d 193 (La. 1997) So. 3d 320 (La. App. 1st Cir. 2009) Wash. App. 61, 242 P.3d 947 (2010).