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Dowell v. State2/1/2000
Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
In this action for damages arising out of a vehicular accident which occurred at a construction site, the trial court granted protective orders limiting plaintiffs' discovery efforts. At plaintiffs' request, we agreed to review that decision under our supervisory power. The question is whether the prohibition found in 23 U.S.C.§409 against disclosure or use of information gathered to evaluate potential highway accident sites and hazardous roadways bars: 1) deposing witnesses who were either involved in prior accidents at the same location or who complained about the intersection; 2) the production of correspondence relating to the intersection; and 3) daily construction diaries and inspection reports. While recognizing that section 409 preempts state law, we find that most of the excluded discovery did not fall within the scope of the federal bar or privilege. We reverse in part and remand the matter for further proceedings consistent with this opinion.
Facts
This action arises out of an automobile accident which occurred on July 11, 1997 at the intersection of Hamel's Park Drive and East 70th Street in Shreveport, Louisiana. At that time, construction was in progress to upgrade or make safer the intersection. On the evening of July 11th, 20-year-old Robert Dowell, Jr., and his 16-year-old sister, Devon Dowell-Thomas, were leaving Hamel's Amusement Park where they were employed for the summer. Robert was driving and as his vehicle entered the intersection, it was struck by an oncoming automobile driven by Robby McGee. Both Robert and his sister were killed as a result of the accident. Wrongful death and survival actions were brought against defendants by surviving family members. Plaintiffs alleged that the negligent placement of signs and construction barrels and/or barricades was a cause of the accident. Following the Dowell accident, at the request of the City of Shreveport, the construction project was changed to move the intersection further west.
In discovery, plaintiffs submitted various interrogatories, requests for production of documents and notices of depositions. Because federal funds were used in the construction project, both the State and the City sought protective orders under 23 U.S.C. §409, which prohibits the discovery and admissibility of certain documents and information compiled and collected for the purpose of developing projects to improve highway safety.
Applicable Legal Principles
Under Louisiana law, parties may obtain discovery regarding any matter not privileged which is relevant to the subject matter of the action. La. C.C.P. art. 1422; Long v. State, Department of Transportation and Development, 32,124 (La. App. 2d Cir. 08/18/99), 743 So.2d 743, writ denied, 99-2956 (La. 12/17/99), ___ So.2d ___, 1999 WL 1286216. Furthermore, evidence which is relevant is generally admissible. La. C.E. art. 402. With regard to certain highway safety information, however, Louisiana's law is preempted by federal law. Wiedeman v. Dixie Electric Membership Corp., 627 So.2d 170 (La. 1993); Long, supra. Noting that preemption is never presumed, the supreme court in Wiedeman, supra at 172, emphasized that the applicable federal provisions would be construed restrictively to prohibit only what is expressly proscribed.
Section 409 forms part of a comprehensive federal plan to promote highway and railway safety. Wiedeman, supra. Although there is very little legislative history regarding 23 U.S.C. §409, courts have surmised that section 409 was enacted to encourage candid evaluation and correction of highway and railway safety ha
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