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Jarvis v. Mid-South Rail Corp.8/24/1998
devices at such a crossing, state tort claims challenging the adequacy of signalization are preempted by the Federal Rail Safety Act. CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993); Hester v. CSX Transp., Inc., 61 F.3d 382 (5th Cir. 1995), cert. denied. Thus, the issue is posed as to whether federal funds were used in the installation of warning devices at the Golson Road crossing. Hester, supra. As subsequently indicated, however, 23 U.S.C. ยง 409 excludes certain information and evidence from discovery or admission. Fry v. Southern Pacific Transportation Co., 30,540 (La. App. 2d Cir. 6/24/98), 715 So.2d 632.
Shrewsberry's affidavit states his qualifications and employment with La. DOTD as Rail/Highway Safety Engineer who supervises the Railroad Unit within DOTD's Maintenance Division. His responsibilities include overseeing administration of the Federal Railroad Safety Program, distribution of federal funds available for railroad crossing upgrades or safety improvements, upkeep of the National Railroad Inventory Database, and agreements for DOTD construction projects for railroad grade crossings. His affidavit states in part:
Appearer has reviewed DOTD records regarding state Project No. 737-04-0015. Project No. 737-04-0015 used federal funds to provide railroad crossing signs, including Railroad Advance Warning Signs and/or Railroad Crossbuck Signs, as needed, at railroad grade crossings in Ouachita Parish, Louisiana.
Railroad Crossing No. 302-527-S, which is located on Golson Road in Ouachita Parish, Louisiana, was included in Project No. 737-04-0015.
Federal funds were utilized in the installation or placement of railroad crossing signs at Railroad Crossing No. 302-527-S.
Representatives of the Federal Highway Administration ("FWHA") and the Louisiana DOTD made a final inspection of Project No. 737-04-0015, and the project was accepted as complete.
Italics supplied.
Plaintiffs contend that Shrewsberry's affidavit is insufficient since it negates that it is based upon personal knowledge as required by La. C.C.P. art. 967.
Art. 967 also requires that " worn or certified copies of all-papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." Shrewsberry states he "reviewed" La. DOTD records and concludes that federal funds were used to upgrade the Golson Road crossing. He does not attach to his affidavit the DOTD records he reviewed. See Powers v. Tucker, 29,190 (La. App. 2d Cir. 2/26/97), 690 So.2d 922, precluding consideration of an affidavit of an expert who reviewed a plaintiff's medical records without those records being attached to the affidavit.
Plaintiffs also attached Shrewsberry's deposition to their opposition to the parish's motion for summary judgment. The parish contends that any alleged insufficiency in Shrewsberry's affidavit caused by the failure to attach the referenced documents to his affidavit is cured by his deposition. The parish also insists the hearing on the motion for summary judgment was continued in order to permit this deposition. A joint motion to continue was filed on August 11, 1997 to permit completion of discovery. The deposition was taken on August 29, 1997.
Shrewsberry was questioned at the deposition about his job duties with DOTD. Shrewsberry responded that he is the main or supervising person with DOTD who deals with lawsuits involving rail-highway crossings. His job duties include managing the Federal Railroad Safety Program for administration by DOTD, the National Inventory Database and the Maintenance Division Railroad Unit. The Database is used to dis
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