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Guillen v. Pierce County9/13/2001
ent materials and raw data prepared for state and local purposes simply because they were also 'collected' for uses related to sec.sec. 130, 144 and 152, an unacceptable outcome ridiculed as 'imprudent' and 'anomalous.'
Shortly after sec. 409 was enacted, a Louisiana trial court construed the privilege broadly to include ''all information gathered pursuant to the federal programs covered by this statute.'' Martinolich v. S. Pac. Transp. Co., 532 So. 2d 435, 437 (La. Ct. App. 1988) (emphasis added), writ denied, 535 So. 2d 745 (La. 1989), cert. denied sub nom. La. Dep't of Transp. & Dev. v. Martinolich, Inc., 490 U.S. 1109, 109 S. Ct. 3164, 104 L. Ed. 2d 1027 (1989). But that ruling was promptly vacated as 'clearly wrong.' Id. Stressing the heavy presumption against federal preemption in an area of law traditionally occupied by states such as 'regulation of {a state} court system,' id. at 438, the Louisiana Court of Appeals adopted a more conservative understanding of sec. 409:
Clearly Congress has not endeavored, by way of this statute {sec. 409}, to occupy the field of Louisiana's evidentiary rules or our Code of Civil Procedure. Where Congressional enactments do not exclude all state legislation in the field, preemption is to the extent of the conflict between them. . . . Because preemption is not presumed, we construe 23 U.S.C. sec. 409 restrictively, to intrude only so much as Congress has expressly prescribed. Id.
A few years later, Louisiana's Supreme Court issued Wiedeman v. Dixie Electric Membership Corp., 627 So. 2d 170 (La. 1993), cert. denied, 511 U.S. 1127 (1994). Consistent with sec. 409's perceived legislative purpose, the Wiedeman court ruled that the privilege covered only the following materials:
(1) surveys to identify hazardous railroad crossings and improve them (sec. 130);
(2) applications for federal assistance in replacing or rehabilitating highway bridges (sec. 144);
(3) studies assigning priorities and schedules of projects for highway improvement (sec. 152); and,
(4) other compilations made for developing highway safety construction projects which would utilize Federal-aid funds (sec. 409). Id. at 173. The court flatly rejected, though, the 'expansive interpretation that would protect data and raw facts,' ruling that the sec. 409 privilege did not include '(1) accident reports; (2) traffic counts; and (3) other raw data collected by' the governmental agency responsible for identifying and evaluating good candidates for safety enhancement grants. Id. (emphasis added). 'Section 409 creates 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.' Id.
In Tardy v. Norfolk S. Corp., 103 Ohio App. 3d 372, 659 N.E.2d 817 (1995), the Ohio Court of Appeals agreed with the reasoning of Louisiana's courts, rejecting a railroad company's contention that an expert affidavit describing the number and nature of prior accidents at the railway crossing in question was privileged under sec. 409:
If a dozen people had been killed at a site, a trier of fact might reasonably infer that the site was dangerous. These dozen deaths would naturally be included in statistics gathered for inclusion in official reports made pursuant to Section 409. The question then becomes: Does the fact that information of previous accidents at a site is included in reports made under Section 409 make all evidence of the previous accidents inadmissible? We think not. If all accidents are reported and no evidence of prior reported accidents is admissible, a plaintiff could never meet the burden of proof under
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