AV Rated Martindale-Hubbell

State Bar of Texas

State Bar of Oklahoma

Papers Presented


I. Introduction

A railroad grade crossing case can be one of the most challenging tasks that a trial lawyer could ever take on. Representing a victim in one of these cases involves multiple issues and a working knowledge of science, physics and mathematics. In addition, these cases can be very time consuming and expensive. As a result, effective and efficient discovery is important to achieve a successful resolution.

In a railroad grade crossing case, the issues can involve negligent train handling, negligent train operations, railroad failure to maintain a passive railroad grade crossing and/or railroad failure to properly maintain a protected crossing. Of course, there are variations within variations within these general issues that would be case specific. Depositions, interrogatories and requests for production of documents and things would be tailored to meet the particular case involved.

Many times the trial lawyer will not be retained until long after the accident has occurred. By this time, the railroad has already canvased the vicinity around the accident site with leading questions, taken self-serving photographs and measurements, removed any significant visual obstructions in the railroad's right-of- way and totally debriefed the train crew in question. Unlike most cases, the trial lawyer usually begins one of these cases at a disadvantage and with a lot of catching up to do. Only through insight, experience and perseverance in the discovery phase of a case can the trial lawyer turn the tables and hold the railroad accountable for its actions, or in-actions, in connection with the accident.

II. Overview Of The Railroad Organizational Structure

To conduct effective and efficient discovery in a grade crossing case, it is important to have a general understanding of the way in which the railroad is structured.

For the most part, railroad companies are structured with the same type of organizational system, with the exception of the upper managerial levels. To appreciate and recognize whether a trial lawyer is applying pressure on a railroad, and for purposes of planning for depositions, it is helpful to have an appreciation and understanding of the managerial structure of the railroad. On a daily basis, a General Manager or Vice President of Operations has the ultimate duty to oversee the operations within a particular division where an accident may have occurred. A General Manager or Vice President of Operations usually supervises several divisions.

In each division, there will be a Division Manager or a Division Superintendent This person reports directly to the General Manager or Vice President of Operations. The Division Manager or Division Superintendent is responsible for obtaining and allocating an annual budget for the following departments within the particular division: (1) Operations Department; (2) Civil Engineering Department; (3) Signal Department; (4) Maintenance of Way Department; and (5) Claims Department.

(1) The Operations Department of a railroad controls the movement of the trains themselves on and about the track, according to the regulations established by the particular railroad and approved by the Federal Railroad Administration. This responsibility includes supervision of the train crews, the engineer, the conductor, firemen and brakemen. The train crews are monitored and specifically supervised by an individual who usually has the title of Trainmaster or Road Foreman of Engines. The Trainmaster and/or the Road Foreman of Engines is charged with responsibility to ensure the safe operations and conduct of each train crew member.

(2) The Civil Engineering Department is responsible for the design criteria of the rail and roadway crossings. This Department interacts with state agencies when federal funds are available for the improvement or closing of crossings within a particular division. It is not unusual for a member of the Civil Engineering Department to work in conjunction with the Claims Department in regards to investigating a railroad grade crossing accident. Typically, there is a Public Projects Engineer within this Department who serves as a liaison representative between the company and municipalities and/or the state regarding the upgrading of crossings under federal funds.

(3) The Signal Department is responsible for the design criteria and maintenance of both track signals and highway grade signals. The duties and responsibilities within this department vary depending on the type of assignment that they receive from the departmental head, which usually has the title of signal superintendent.

(4) The Maintenance of Way Department is responsible for the maintenance of the track and the sign boards located along side the track. Their duties and responsibilities also include the maintenance in and about railroad grade crossings and their control of visibility at crossings to afford motorists a proper view of the crossing. This responsibility includes vegetation control in the railroad's right-of-way. It should be noted that vegetation control within the railroad's right-of-way is sometimes subcontracted out to independent contractors. The Maintenance of Way Department is typically supervised by a manager of track maintenance, otherwise known as a Roadmaster. Under his supervision would be a track foremen along with the railroad's designated C.F.R. 49 Federal Track Inspector.

(5) The Claims Department handles all personal injury claims for that particular division, and will engage the assistance of the other four departments when necessary. The Claims Department's funding for settling claims is based on an annual budget, which is supervised by the Division Superintendent. At least one Union Pacific Superintendent has testified that part of his annual budget is based upon minimizing settlement payouts in highway grade crossing accidents.(1)

Each of the individuals working within the foregoing departments are issued an Operations Rulebook, dealing with the way in which the trains operate over the track and a Maintenance of Way book which deals with the maintenance of the track and the railroad's right-of-way. Both manuals are written by the railroad and approved by the Federal Railroad Administration for the daily operations, procedures and conduct of said railroad company. Of course, there may be other rulebooks, but these are usually the two main ones.(2)

Discovery in a railroad grade crossing case can be more efficiently approached if a general understanding of the railroad's organizational structure is understood. Each of the foregoing departments maintain and work with documents on a daily basis. The time for case preparation can be greatly reduced when there is an overall understanding regarding this documentation within each department.

III. Case Evaluation

One of the most important aspects of planning and following through with discovery in a case involving a railroad grade crossing accident is case evaluation. This can be accomplished only by carefully studying and evaluating the facts surrounding the accident and the injuries and damages that arise out of the tragedy.

It is important to inspect the particular railroad crossing at issue as soon as possible. The railroad crossing at issue and the general vicinity should be thoroughly photographed and videotaped. I would also recommend that aerial photographs be taken at this same time. By so doing, one can more closely preserve the crossing and the view of the motorist at the time of the accident. Typically, aerial photographs can be obtained either through the local agricultural extension office or from an established map company. These can be utilized very effectively in the event that a trial lawyer does not receive a particular case before extensive time has passed. Through careful analysis, one can determine if the railroad company has indeed taken remedial measures subsequent to the accident made the basis of this suit.

Once a trial lawyer has accepted a particular case for representation, it is important to engage the services of an expert early on in the litigation. In this way, the experts can assist the trial attorney in recognizing the potential areas of liability so that carefully crafted interrogatories, requests for production of documents and things and depositions of persons with knowledge can be conducted.

While a preliminary case evaluation enables a trial lawyer to make a decision whether or not he or she is willing to accept representation in a particular matter, it is imperative that the trial lawyer remain open-minded during the discovery process and resist the temptation to lock onto one theory as to how and why the accident occurred. Many times, there will be multiple factors that can be woven together to paint a rational and convincing picture as to the cause behind a railroad grade crossing accident.

IV. The Railroad's Shield: 23 U.S.C. § 409

Perhaps no paper dealing with discovery in a railroad grade crossing case would be complete without a discussion of 23 U.S.C. § 409. On December 18, 1991, Congress amended 23 U.S.C. § 409 to provide 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 utilizing Federal-Aide Highway Funds 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 reports, surveys, schedules, lists, or data. (emphasis added).

A. Railroads Argue Broad Interpretation for Exclusion Purposes

The railroads consistently argue that any information dealing with railroad grade crossings is privileged information under 23 U.S.C. § 409 and is exempt from discovery. As a result, one can anticipate that the railroad will engage in extended stonewalling tactics and resist discovery under the banner of this statute.

The railroads will typically assert that the clear weight of authority holds that all data as well as documents are protected by 23 U.S.C. § 409. In support, railroads will point to the case of Robertson v. Union Pac. R.R. Co., 954 F.2d 1433, 1435 (8th Cir. 1992) (precluded data from other sources once that data was compiled into a statutory report, including even a newspaper article); accord Lusby v. Union Pac. R.R. Co., 4 F.3d 639, 641 (8th Cir. 1993). However, this position is not supported by the cases that have dealt with the statute. It should be noted that the intent of Congress is silent regarding 23 U.S.C. § 409. Harrison v. Burlington Northern R.R. Co., 965 F.2d 155, 156 (n.3) (7th Cir. 1992); Southern Pac. Transp. Co. v. Yarnell, No. CV-93-0106-PR, 1995 WL 83958, at *2 (Ariz. March 2, 1995).

B. Several Courts Have Narrowly Construed § 409.

Fortunately, there have been several courts that have specifically rejected such a broad interpretation of the statute, and have narrowly interpreted 23 U.S.C. § 409 to allow for the discovery of the underlying facts. Southern Pac. Transp. Co. v. Yarnell, No. CV-93-0106-PR, 1995 WL 83958, at *2 (Ariz. March 2, 1995) ; Rick v. State Dept. of Transp. and Dev., 630 So.2d 1271, 1276 (La. 1994) (admitting accident reports, traffic counts and other raw data); Wiedeman v. Dixie Elec. Membership Corp., 627 So.2d 170, 173 (La. 1993), cert. denied, 114 S.Ct. 2134 (1994) ("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"); Miguez v. Southern Pac. Transp. Co., 645 So.2d 1184 (3d Cir. 1994) (supporting holdings in Rick and Wiedeman); Light v. State, 560 N.Y.S.2d 962, 965 (N.Y. Ct. Cl. 1990) (the statute excludes reports, but "does not, expressly or by implication, make the information contained in such reports confidential"); cf. Kitts v. Norfolk and W. Ry., 152 F.R.D. 78, 81 (S.D.W. Va. 1993) (Section 409 "does not accord protection for documents or data compared or compiled for some entirely separate and distinct purpose, even if the contents of the same, or parts thereof, eventually become ingredients thrown into a soup kettle with a distinct flavor of safety enhancement.")

C. Recent Significant Case

Clearly, one of the most important decisions involving 23 U.S.C. § 409 is the recent case of Southern Pacific Transp. Co. v. Yarnell(3). In that case, the Supreme Court of Arizona, sitting en banc, dealt squarely with defining the nature, scope and effect of 23 U.S.C. § 409 on the issues of discoverability and admissibility of evidence in railroad grade crossing accidents. (See Appendix for a complete copy of case.) A great deal of gratitude and sincere appreciation is extended to Dale Haralson, Esq., of Tucson, Arizona, and others working with him, for their fine efforts in filing an amicus curiae brief on behalf of the Arizona Trial Lawyers Association in that case.

In that case, the Court found that construing the statute to cover all facts that ultimately end up in compilations, from whatever source derived, would go far beyond protecting the safety enhancement process and would prevent the parties from proving claims that could otherwise have been proven had there been no safety enhancement project.(4) The Court further pointed out that the United States Supreme Court had previously held that the Federal Railroad Safety Enhancement Program did not preempt state damage claims. CSX Transp., Inc. v. Easterwood, _____ U.S. _____, 113 S.Ct. 1732 (1993). The Court held in Easterwood that:

"[T]he scheme of negligence liability could just as easily compliment these regulations by encouraging railroads -- the entities arguably most familiar with crossing conditions -- to provide current and complete information to the state agency responsible for determining priorities for improvement projects. . .."

Significantly, the Arizona Supreme Court specifically noted that 23 U.S.C. § 409 referred to "reports," "surveys," "schedules," "lists," and "data," compiled "pursuant to §§ 130, 144 and 152 of this Title." The Court further observed that Section 409 uses words like "reports" and "surveys" in the same way in which those words are used in §§ 130, 144 and 152.(5)

Based upon the foregoing, the Arizona Supreme Court concluded that each of the categories of information described in 23 U.S.C. § 409 had their origins in the programs described in 23 U.S.C. § 130 (requiring states to conduct a survey of all highways to identify those railroad crossings which may require... protective devices. . .."), § 144 (requiring the federal government to inventory, classify, and prioritize highway bridges), and § 152 (requiring the states to survey roads, implement a schedule of projects for improvement, and submit a report to the federal government). The Court referred to the terms of "survey," "schedule," "data," and "report," and held that these were words of art. The Court stated:

"This is powerful support for the proposition that the documents exempt from discovery and excluded for evidence under Section 409 are precisely the documents described and prepared under the authority of §§ 130, 144, and 152, and no others. This would promote the integrity of the federal regulatory scheme without compromising the integrity of the parallel state tort system.(6)" (Emphasis added.)

Although the holding in Southern Pacific Transp. v. Yarnell will provide a well reasoned support for a narrow interpretation of 23 U.S.C. § 409, there is no guarantee that all other courts considering a motion to compel dealing with the statute will reach the same conclusion.

III. Application

A. Focus on the Plain Meaning of the Statute.

Perhaps one of the most challenging tasks that a trial lawyer may be faced with in a railroad grade crossing case is educating a judge that has not been faced with a 23 U.S.C. § 409 issue in the past. Many trial judges are overworked and understaffed, and are simply unable to perform the requisite legal research and study prior to a motion to compel. As a result, most trial judges will be very appreciative of any demonstrative aides that can quickly and succinctly educate and focus them on the issues at hand.

By breaking down the statute to its component parts, one is able to clearly see that there are graduated steps that lend themselves to a workable equation for a trial judge faced with ruling on a discovery motion. I have enclosed an example of such a demonstrative aide that has been previously used in a motion to compel.(7)

By utilizing this approach, the railroad may be faced with producing any documents withheld under the guise of 23 U.S.C. § 409 for an in-camera inspection to allow the court an opportunity to determine if the withheld documents meet the necessary elements as provided by the statute. If one is successful in at least obtaining an in-camera inspection, a trial lawyer is in a better position to have internal memorandums, letters of complaints, work orders and other underlying facts as revealed in documents generated in the ordinary course of business be produced that would not meet the required elements to sustain the objection based on the statute.

B. Alternate Sources of Information in Event of Unfavorable Ruling.

In any passive grade crossing accident case where the trial lawyer is faced with establishing that the crossing at issue is ultra-hazardous, there are certain pieces of relevant and important information that must be ascertained so that the civil engineer or other qualified expert evaluating the crossing can have a sufficient amount of information upon which to base his or her opinion.(8)

Such factors include (1) average daily traffic; (2) train volume; (3) maximum train speed; (4) prior accidents at this particular site; (5) the number of tracks; (6) speed limit for the adjoining highway; (7) whether school buses cross the particular crossing; (8) whether trucks containing hazardous material utilize the crossing; and (9) the number of Amtrak trains that pass that particular crossing are all important factors that a trial lawyer's civil engineering expert would need to consider in determining whether or not a particular crossing is ultra-hazardous.

If a trial court interprets 23 U.S.C. § 409 broadly and denies the trial lawyer's motion to compel the railroad to produce underlying data and facts of the previously mentioned factors and documents that were generated in the ordinary course of the railroad's business, there are ways to deal with an unfavorable ruling and allow a trial lawyer to discover the required information and proceed with the case.

For example, in determining what the average daily traffic would be over this particular crossing, one could engage the services of an independent traffic control service and simply conduct a traffic count over a seven day period. In determining what the train volume would be over a particular crossing, an examination of the railroad's dispatcher sheets reflecting train movements over a particular crossing within a thirty day period would be another way that this volume could be ascertained.

The maximum train speed can be determined from the applicable time table which should be provided by the railroad. In regards to prior accidents at this particular crossing, a trial lawyer should be able to obtain a pretty good picture of prior accidents through discussions with neighbors and local residents, the local police department, and the local newspaper. In addition, a request to the Federal Railroad Administration and the particular state's Department of Transportation is another way to gather this type of information.

In regards to the number of tracks, a simple inspection at the crossing will reveal the required data. By the same token, the speed limit for the highway can be determined by simple observation of the posted signs. In regards to whether school buses travel over this particular crossing, discussions with the applicable school district should quickly reveal this information. In terms of whether or not hazardous trucks utilize this particular crossing, observation and/or discussions with local residents and/or truck companies should reveal the information required to properly evaluate this crossing. In terms of the number of Amtrak trains that may utilize this particular stretch of track, a trial lawyer can easily obtain an Amtrak schedule to determine this information.

C. Offensive Use of 23 U.S.C. § 409.

While 23 U.S.C. § 409 was promulgated as a result of the railroad's lobbying efforts, there appears to be nothing that would prohibit a trial lawyer on behalf of a victim or the victim's family from utilizing the impact of 23 U.S.C. § 409 to preclude the railroad from proffering certain evidence during trial.

For example, the statute could be utilized to preclude the railroad from referring to or offering any evidence of any diagnostic review that was done on this particular crossing. This could be damaging to the railroad in terms of what it had done to study the particular crossing to determine if additional safety devices were necessary. In essence, the victim would be able to effectively represent to the jury that absolutely nothing had been done at that crossing in response to the railroad's duty to make the crossing reasonably safe for motorists.

In addition, an assertion of the privilege set forth in 23 U.S.C. § 409 may preclude the railroad from presenting the requisite evidence to support a defense based on preemption from the use of federal funds at a particular crossing. A court that applied a broad interpretation of § 409 early on in a case during a motion to compel, may be hesitant to reverse its position at the time of a motion for summary judgment or at trial. The trial lawyer could make a compelling argument by pointing out that important information was exempted from discovery and from admission into evidence, and that the same logic and interpretation of the statute supports the position to exclude the information that the railroad now wants to rely upon. Simply put, the railroad should not be able to eat its cake and have it too.

All in all, through the use of efficient and thorough discovery, a railroad grade crossing case can be a successful venture. I urge all trial lawyers to persevere and to keep an open mind as to theories of liability based upon the results obtained through discovery.

(1)Charles Davis, on Behalf of the Estate of Casaundra Davis, Charles W. Davis, Individually, Rebecca S. Adrian, and Richard L. Teichmann v. Missouri Pacific Railroad Company, et al., Cause No. 67-136251-91, 67th Judicial District, Tarrant County, Texas; deposition of Steven Searle (videotape and ASCII disk available).

(2)My sincere thanks and gratitude is extended to Joe Hinton of J.S. Hinton & Associates, Inc. of Houston, Texas for his assistance with the foregoing portion of this presentation.

(3)Southern Pacific Transp. Co. v. Yarnell, No. CV-93-0106-PR, (Az. 1995). See cite page 4. See Appendix "A" for a complete copy of case.

(4)Southern Pacific at 6.

(5)Id. at 9.

(6)Southern Pacific Transp. at 9-10.

(7)See Appendix "B."

(8)See Railroad-Highway Grade Crossing Handbook, Second Edition (September, 1986), Chapter III "Assessment of Crossing Safety and Operation," pg. 66.