New directions for highway design litigation.

Times have charged highway design cases. It used to be that records and data compiled by, highway authorities were discoverable and admissible as evidence. A plaintiff could discover and prove the existence and prior notice of a dangerous condition of public property from a state highway, authority's own files.

Not anymore. Enacted in 1987 and amended in 1991, 23 U.S.C. [sections]409 prohibits the discovery, and admission into evidence of "all data compiled for purposes of highway and railroad crossing safety, enhancement and construction for which a state receives federal funding."(1)

The statute is limited in scope to data compiled for state highway improvement projects that receive federal funds. As most states receive this funding, the effect of this statute is far-reaching.

The intent of the statute has been described as being to "facilitate candor in administrative evaluations of highway safety, hazards...and to prohibit federally required recordkeeping from being used as a tool...in private litigation.(2)

The statute's language seemingly allows highway authorities and others to drop an impenetrable curtain that precludes the discovery, and admission of evidence of dangerous highway conditions. However, the scope of the statutory protection has been debated. Because the statute applies to all parties, the curtain can become a trap for a highway authority, precluding the use of data that could exonerate it from liability.

The result is that both plaintiff and defense counsel must adopt a new approach to highway safety cases.

23 U.S.C. [section]409 provides

Notwithstanding my other provision of law, reports, surveys, schedules, fists, 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 utilizing Federal-aid highway finds 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 report, surveys, schedules, lists, or data.(3)

Sections 130 and 144 deal with railway crossings and highway, bridges respectively. This article focuses on the more common issues arising under [sections]152, which provides

(a) Each State shall conduct and systematically, maintain an engineering survey of all public roads to identify hazardous locations, sections, and elements, including roadside obstacles and unmarked or poorly marked roads, which may constitute a danger to motorists and pedestrians, assign priorities for the correction of such locations, sections and elements, and establish and implement a schedule of projects for their improvement.

(f) Each State shall establish an evaluation process approved by the Secretary, to analyze and assess results achieved by highway safety improvement projects carried out in accordance with procedures and criteria established by this section. Such evaluation process shall develop cost benefit data for various types of corrections and treatments which shall be used in setting priorities for highway safety, improvement projects.

The statute has withstood constitutional challenges. In a Federal Employers' Liability Act action in state court, the court held that the federal statute did not violate the Tenth Amendment of the U.S. Constitution.(4) In Sawyer v. Illinois Central Gulf Railroad Co., the court also held that the statute was binding on the state court under the Supremacy Clause.(5)

The statute has retroactive effect. Courts have held that the statute applies to certain documents created before its effective date.(6)

In Perkins v. Ohio Department of Transportation, the statute was applied retroactively to exclude transportation department data on the grounds that "no manifest injustice" would result to the plaintiff.(7) Most recently in Kitts v. Norfolk Western Railway Co., the court reviewed all the decisions on the subject and concluded that then, unanimously supported retroactive application.(8)

The language of the statute also mandates that protected information "shall not be subject to discovery." Thus, the effect of several earlier decisions(9) permitting discovery, under the original language of the statute (which merely referred to admission into evidence) has been expressly overruled by Congress.

The language of the statute is broad. It refers to information of all kinds, the broadest of which - "data" - conceptually covers just about all information.

Prohibiting Evidence at Trial

The statute also prohibits the admission of evidence. The language of the statute mandates that protected information "shall not be admitted into evidence in Federal or State court or considered for other purposes...." The plain exclusionary meaning of the statute has been upheld and enforced.(10)

The exclusion is so broad that other derivative evidence of protected information has also been excluded. Thus, in Miller v. Bailey, a state trooper's letter notifying the transportation department of the need for "No Parking" signs on the highway was held inadmissible.(11) In Robertson v. Union Pacific Railway Co., a newspaper article identifying a railroad crossing as the most hazardous in the state was held inadmissible because it was written using data compiled by the highway department, which fell within the protection of the statute.(12)

On the other hand, in Wiedeman v. Dixie Electric Membership Corp., the court held that accident reports, traffic counts, and other raw data collected by the department were discoverable and admissible. The court also held that the following documents were neither discoverable nor admissible in evidence: surveys, applications for federal assistance, studies assigning priorities and schedules of projects for highway improvements, and other compilations made for federally funded highway safety, construction projects.(13)

The rationale of the Wiedeman decision was that [sections]409 created a "privilege for compilations enumerated in the statute, but the privilege does not extend to reports and data gathered for or incorporated into such compilations."(14) The court held that the intent of fostering candor would be promoted by shielding the state's evaluations and conclusions from outside scrutiny but not the source data from which such evaluations and conclusions were drawn.

The statute also precludes expert testimony based on protected data. In Lusby v. Union Pacific Railway Co., the court held that the plaintiff's expert could not rely on records and data compiled by the state highway and transportation department. This information was protected, having been compiled to comply with a federal program for enhancing safety at crossings. The court held that even if some of the information relied on was available from other sources, it was reversible error to permit this expert's opinions because the protected information was from a privileged source and was indispensable to the opinions.(15)

The protection given to information compiled by state highway authorities has not been extended to others. The statute has generally been applied only to data prepared by state highway authorities responsible for maintaining safety enhancement programs.

In Kitts, the court declined to extend the scope of the statutory privilege to information compiled by, a private defendant, even where the defendant ultimately used the documents and data for safety enhancement purposes.(16)

Where it is necessary to prove a dangerous condition or notice of one, plaintiff's counsel must consider undertaking independent discovery to supply proof that would otherwise be available from the files and records of the state's highway authority. Without independent discovery, the curtain over discovery privileges will deprive plaintiff's counsel of critically important evidence.

Problems for the Defense

It is significant that the exclusionary rule applies to all parties. Arguably, a defendant highway authority should no more be able to rely on its privileged data at trial than can a plaintiff

Effective defense of a highway safety case often requires the use of data compiled for safety enhancement purposes. For example, this data may show how safe an intersection was or how the comparative risk at one location did not merit precautions that existed at another. Where a highway authority has refused to disclose this information in discovery because of the statutory privilege, the authority ought not to be allowed to introduce the information at trial.

Unless the same evidence is available from nonprivileged sources, a highway authority may find some helpful evaluations and reports excluded by the statutory language. No court has yet agreed that a party can waive the evidentiary privilege. It may, therefore transpire that this section of the law also proves to be a headache for the defense.

Limiting the Statute's Application

It can be anticipated that plaintiffs' counsel will seek to argue opposition to a broad application of the statute on both constitutional and practical grounds. It is still arguable that the statute was not truly intended to entirely preempt state discovery and evidentiary, rules and - absent a clear indication of such intent - these statutory privileges should be narrowly interpreted.(17)

Plaintiffs' counsel should certainly demand that the statute be applied only, to information compiled solely for the purposes specified by [sections]409: highway safety construction improvement projects and safety enhancements of potential accident sites or hazardous roadway, conditions. Plaintiffs should also argue for a narrow interpretation of the privileges, so as to exclude raw data gathered by a highway authority and require evidence that the compilations are part of an engineering survey.

Before the statutory privilege is applied, the state should also be required to prove that federal funds were received. It is not clear whether the state must also prove that these funds were used or contemplated for the activity to which the documentation relates. A purely literal reading of [sections]409 would suggest that this not so, because the statutory language refers only to federal funding for highway safety construction improvement projects. However, since the intent of the statute appears to be to protect states that receive federal funding, this narrow interpretation would seem inconsistent with the objective. A broader interpretation would require the state to discharge a heavier burden - namely that the compiled data came into existence by reason of federal funding.

Interpreting and applying 23 U.S.C. [sections]409 has raised serious problems for both plaintifs and defendants. There are relatively few decided cases under the statute, and the way that the statute is being interpreted by the courts remains dynamic.

Notes

(1) Robertson v. Union Pac. Ry Co., 954 F. 2d 1433, 1435 (8th Cir. 1992). (2) Id. (citations omitted). (3) 23 U.S.C. [sections]409 (1988) (emphasis added). (4) Claspill v. Missouri Pac. R.R. Co., 793 S.W.2d 139 (Mo. 1990), cert. denied, 498 U.S. 984 (1990). (5) 606 So. 2d 1069 (Miss. 1992), reh'g denied, 1992 Miss. LEXIS 615 (Miss. Aug. 26, 1992). (6) Claspill, 793 S.W.2d 139,140. (7) 584 N.E.2d 794, 803 (Ohio Ct. App. 1989), appeal dismissed, 566 N.E.2d 673 (Ohio 1991). (8) 152 F.P.D. 78, 80 (S.D. W. Va. 1993). (9) Hagerty v. Southern Ry. Co., 133 F.R.D. 34 (E.D. Mo. 1990); Light v. State, 560 N.Y.S.2D 962 (Ct. Cl. 1990). (10) Taylor v. St. Louis S.W. Ry. Co., 746 F. Supp. 50 (D. Kan. 1990). (11) 621 So. 2d 1174 (La. Ct. App. 1993). (12) 954 F.2d 1433. (13) 627 So. 2d 170, 173 (La. 1993). (14) Id. at 173. (15) 4 F.3d 639 (8th Cir. 1993). (16) 152 F.R.D. 78, 81. (17) Wiedeman, 627 So. 2d 170.