Governmental tort liability warning: Beware of 23 U.S.C. 409 – a defense tactic that is a blatant attempt to “impede the search for truth”

July 13, 2018

As published in the May/June 2018 CAOC’s The Forum Magazine

Governmental tort liability warning: Beware of 23 U.S.C. 409 – a defense tactic that is a blatant attempt to “impede the search for truth”

By Wylie A. Aitken and Megan G. Demshki

Our client was enjoying the final months of her senior year of high school in a wealthy Orange County community when she was struck by a vehicle and catastrophically injured in a crosswalk in front of her high school. Our investigation revealed that the city had decades of notice of this dangerous condition. In fact, the city had even hired an outside consulting firm to explore safety enhancements in the area and the police department had applied for a federal grant to add safety measures to the specific crosswalk years prior to this incident.

Imagine our frustration, when after defeating a difficult motion for summary judgment on design immunity and taking multiple depositions surrounding key pieces of evidence in a hotly disputed dangerous condition of public property case, we were hit with a motion in limine based on a federal preemption statute, 23 U.S.C. 409, that threatened to shield that key evidence, and all expert opinions utilizing that evidence, from the jury.

While this issue had come up before in other cases relating to discoverability of certain evidence, inadmissibility of that evidence at trial, after a knowing waiver at the discovery phase, threatened important aspects of our liability case.

Congress enacted the Highway Safety Act of 1973 to improve the safety of our nation’s highways by encouraging federal and state cooperation in road safety improvement projects. Under this act, a Hazard Elimination Program, then 23 U.S.C. 152, now 23 U.S.C. 148, was developed to identify highways in need of improvements and funding for those improvements. Thinking states might fear that the data collected to meet the requirements to be eligible for funding would be used against them in litigation (even though such collection was their moral responsibility in any event), Congress enacted Section 409 of Title 23 of the United States Code in 1987. (See Pierce County, Washington v. Guillen (2003) 537 U.S. 129, 147.) In current form, Section 409 provides:

Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected 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 148 of this title [23 USCS §§ 130, 144, and 148] or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid 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.)

In our matter and in ruling on admissibility in a defense motion in limine, the judge ultimately took the position that Section 409 created both an evidentiary privilege and a separate rule of inadmissibility that was not subject to be waived and made admissible. The court recognized that while Section 409 is to be construed narrowly, it applies to state court proceedings and preempts any state laws to the contrary. (Pierce County, supra, 537 U.S. at 145; Department of Transportation v. Superior Court (1996) 47 Cal.App.4th 852, 855- 856.) Ultimately, the judge granted the motion in limine as to one of the pieces of evidence, a grant application for federal funding and the exhibits thereto and denied the motion as to a traffic study the city defendant conducted at its expense and for its own purposes.

Here are some of the arguments we used that may help if you are faced with such a motion:

• Section 409 is to be “narrowly construed” and not “unreasonably restrictive.”
• Evidence does not come into the purview of Section 409 if it was not for the purposes of invoking Section 148 or an application for federal funds.
• Attachments or evidence used in a report or grant application are not protected by Section 409. (Admissible evidence of notice of a dangerous condition could not be shielded by attaching such evidence to an application.)
• The knowing waiver by the defendant eliminates the Section 409 privilege.

1. Section 409 is to be “narrowly construed” and not “unreasonably restrictive”

We argued that the application of Section 409 to city-funded traffic studies would stand the California Tort Liability Act of California on its proverbial head. Excluding that evidence would make all studies of safety by local entities cloaked with immunity. That, in turn, would undermine the 1963 Government Claims Act, designed to protect the citizens of this state.

The analytical questions to be answered in governmental liability cases include:

Was the property in a dangerous condition? Was it a reasonably foreseeable risk of injury? Did the public entity have actual or constructive notice of the dangerous condition? The expansive and attempted improper use of Section 409 would prevent any injured citizen from establishing a rightful claim. Keep in mind that application of the statute should not put a plaintiff in a worse position than they would have been had Section 148 never been enacted. (Pierce County, supra, 537 U.S. at 129.)

In the only California authority on the matter, the Court of Appeal upheld the trial court’s ruling compelling Caltrans to produce traffic collision reports, data from an automated database, traffic investigation reports, project and safety reports, and traffic volumes summaries. (Department of Transportation, supra, 47 Cal.App. at 859.) The court explained, “[s]ince preemption is never presumed, [section] 409 must be construed restrictively to prohibit only what is expressly proscribed.” (Id. At 857, citations omitted, emphasis added.) In order for section 409 to apply, the document must fit perfectly into one of the types of specifically designated categories: reports, surveys, schedules, lists or data. (Id. at 856.) Further, the public entity has the heavy burden of establishing all requirements before the discovery and admissibility provisions of Section 409 become operative. (Id.)

In Department of Transportation, the court determined that 23 U.S.C. Section 409 covers: (1) reports, surveys, schedules, lists or data, (2) compiled or collected, (3) for the purpose of identifying, evaluating or planning the safety enhancement of potential accident sites or hazardous roadway conditions (4) pursuant to sections 130, 144 and 148 of this title and (5) at a location mentioned or addressed in such reports, surveys, schedules, lists or data. (Id. at 857.) The court found that the Department did not meet its burden of proving that the documents at issue were compiled or collected for the purposes of identifying roadway hazards and pursuant to the expressly identified federal statutes set forth in Section 409. (Id. at 856-857.) As a result, the court determined that the traffic collision reports, data from an automated database (SWITRS), traffic-investigation reports, project and safety reports, and traffic-volume summaries at issue were discoverable and had to be produced. (Id.)

2. Evidence does not come into the purview of Section 409 unless it is collected for the purposes of invoking Section 130, 144, 148 or an application for federal funds

As alluded to above, under Department of Transportation, you should argue that the public entity failed to meet its burden that the materials sought to be protected were collected or complied under the specifications outlined in Section 409. (Department of Transportation, supra, 47 Cal.App.4^th at 856-857.)

Section 409 specifically addresses evidence compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway only; 23 U.S.C. 130 deals with tunnels and bridges; 23 U.S.C. 144 has to do with railroad crossings; and 23 U.S.C. 148 is a comprehensive state-wide program which has a well laid-out system requiring a state highway safety improvement program with multiple layers of requirements. If the information was not collected or complied pursuant to one of those three specific code sections dealing with tunnels, bridges, railroad crossings or an elaborate statewide uniform system, or if it was not collected for the purpose of developing an improvement project based on the use of federal funds, the statute does not apply.

In Pierce County, the United States Supreme Court discussed the application of section 409. In that case the plaintiff filed a tort action against Pierce County for negligent failure to install proper traffic controls at the intersection at which his wife was killed. (Pierce County, supra, 537 U.S. at 129.) The plaintiff sought access to historical accident reports and other materials and data held by county agencies, relating to the traffic intersection. (Id.) The county contended that the documents were collected and compiled to seek federal funding and were protected under Section 409. (Id.)

The Supreme Court held that “section 409 protects all reports, surveys, schedules, lists, or data actually compiled or collected for section 152 purposes, but does not protect information that was originally compiled or collected for purposes unrelated to section 152 and that is currently held by the agencies that compiled or collected it, even if the information was at some point ‘collected’ by another agency for section 152 purposes.” (Id. At 144, emphasis added.)¹

The Supreme Court stated in Pierce County that:

The text of § 409 evinces no intent to make plaintiffs worse off than they would have been had § 152 funding never existed. Put differently, there is no reason to interpret § 409 as prohibiting the disclosure of information compiled or collected for purposes unrelated to § 152, held by government agencies not involved in administering§ 152, if, before § 152 was adopted, plaintiffs would have been free to obtain such information from those very agencies.

(Id. at 146, emphasis added.)

The court cautioned that “[e]videntiary privileges such as § 409, must be construed narrowly because they impede the search for truth.” (Id. at 130, emphasis added.)

In our case, we successfully argued that a local, city traffic study can never come within the purview of Section 148 under prong one because none of its information was developed for Section 148 purposes. Therefore, to have any validity, it must come under the second prong: Was it a safety construction improvement project which was implemented to utilize federal highway funds? As to that, the answer was clearly no, as the city had ample funding sources to undertake this protect on their own dime and the city officials did not even use the city traffic study when they applied for a federal grant.

3. Attachments or evidence used in a report or grant application are not protected by Section 409

Another important piece of evidence in our case was a grant application seeking federal funds under a school safety program. Recognizing that this proved to be a greater challenge for us, we argued that many of the attachments to the grant application would otherwise not be privileged, and were gathered in the due course of exercising the city’s normal responsibilities. To decide otherwise would allow the city to improperly gather up the history of the area, history of notice, history of neglect and, by attaching them to a grant application, suddenly eliminate them from public view.

As explained in Kitts v. Norfolk & W. Ry. (SD W Va 1993) 152 FRD 78, the statute deprives the fact finders of at least some relevant evidence and thus will be strictly construed to accord protection for documents and data prepared for purposes of safety enhancement, but not for documents compiled for some other purpose, even if their contents or parts of them eventually become ingredients in safety enhancement programs. In order for Section 409 to apply, the document must fit into one of the types specifically designated: “reports, surveys, schedules, lists or data.” (Department of Transportation, supra, 47 Cal. App.4th at 857.)

Further, we argued that the actual information in the grant application was based on the exhibits, including TCR’s, SWITRS and traffic engineering systems already in place prior to the enactment of the federal privilege. The testimony of defendant’s retained traffic engineer, and its own traffic engineer, was that they were collecting the information since at least the 1970’s. Since this statute and relevant amendments were enacted in 1987, 1991, and 1995. All information pre-dates the privilege even if it is applicable.

As explained above, the Supreme Court stated in Pierce County that “there is no reason to interpret § 409 as prohibiting the disclosure of information compiled or collected for purposes unrelated to § 152, held by government agencies not involved in administering § 152, if, before § 152 was adopted, plaintiffs would have been free to obtain such information from those very agencies.” (Pierce County, supra, 537 U.S. at 146, emphasis added.)

4. The knowing waiver by the defendant eliminates the Section 409 privilege

As to the admissibility of the documents, after they have already been willingly and knowingly produced by the defense during discovery and were known to exist by their experts and traffic personnel, we argued that the privilege had been waived. (For simplicity, think Fifth Amendment.)

While the trial judge in our matter struggled with conflicts in the law at the federal and state levels, the U.S. Supreme Court has made it clear that an absolute privilege can be waived.² That court’s well-established precedent has, “‘in the context of a broad array of constitutional and statutory provisions,’ articulated a general rule that presumes the availability of waiver ….” (New York v. Hill (2000) 528 U.S. 110, 114, quoting United States v. Mezzanatto (1995) 513 U.S. 196, 200-01, emphasis added.)

Indeed, that court has recognized that even “[t]he most basic rights of criminal defendants are … subject to waiver” so that such a defendant “may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution.” (Peretz v. United States (1991) 501 U.S. 923, 936; Mezzanatto, supra, 513 U.S. at 201.)

Hence, “absent some affirmative indication of Congress’ intent to preclude waiver, we have presumed that statutory provisions are subject to waiver” and long held that a “party may waive any provision, either of a contract or of a statute, intended for his benefit.” (Mezzanatto, supra, 513 U.S. at 201, citing Evans v. Jeff D. (1986) 475 U.S. 717, 730-32 [waiver in civil rights action]; see Shutte v. Thompson (1873) 82 U.S. 151, 159 [opining that a defendant in a civil action could waive statutory evidentiary rules].)

In the only Supreme Court opinion on Section 409, Pierce County, a unanimous Supreme Court clarified that there is only one privilege and it must be construed narrowly so as not to impede the truth, and that it is an “evidentiary” privilege and that reference to dual protections, one being a privilege, the other being a rule of admissibility, does not withstand a careful analysis. (Pierce County, supra, 537 U.S. at pp. 144, 145.)³

Since the courts have acknowledged that the discovery prohibition is nothing but an extension of the already existing “evidentiary” privilege, there is no support for this proposition that waiving one does not waiver the other. To do so thwarts the whole intended purpose of giving the holder of the privilege the right to protect the information in the first instance.

Where a party seeks to suppress evidence under a claim of constitutional or statutory privilege, the privilege is lost by failure to assert it at the appropriate time. (People v. Johnson (1967) 254 Cal. App.2d 119; see Brown v. Superior Court (1986) 180 Cal.App.3d 701, 712 [failure to timely raise a privilege during discovery can result in a waiver].)

In Renfro, plaintiff asserted that the Department of Transportation and Development waived any privilege it may have had pursuant to Section 409 by deliberately disclosing the contents of the documents and placing them at issue. (Renfro v. Burlington Northern & Santa Fe Ry. (La.App. 3 Cir. Dec. 6, 2006) 945 So.2d 857.) The court in Renfro concluded that, “[w]e see no compelling reason that the State cannot waive the privilege afforded it by Section 409. Section 409 merely affords the State a disclosure and evidentiary privilege regarding certain materials.” (Id. at 860.) “Therefore, we find that the discovery and evidentiary privilege established by 409 can be waived by the party entitled to assert the privilege.” (Id.)

In Mezzanatto, the Supreme Court recognized that statutory provisions are subject to waiver absent an affirmative indication in the statute of Congress’ intent to preclude waiver, i.e. “an express enabling clause.” But there is nothing in Section 409 that prevents the entity from waiving the statutory privilege it has been granted. (Mezzanatto, supra, 513 U.S. at 201.)

As noted by the court in Power, “[a] primary attribute of a privilege is that it may be waived by the party for whose benefit it exists, and waiver is often found when that party has voluntarily disclosed protected information.” (Powers v. CSX Transportation, Inc. (S.D. Ala. 2001) 177 F.Supp.2d 1276, 1281.)

Conclusion

Ultimately, the judge in our case appeared willing to reconsider her ruling on the motion in limine and our matter resolved on the eve of trial. However, this case serves as a reminder that the evidence that might possibly be protected by the defense from discovery and admissibility at trial using Section 409 is vital to many major injury and death cases against governmental defendants. We must work collaboratively to ensure that the law in California continues to construe Section 409 narrowly, as it was always intended.

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¹ The Hazard Elimination Program originally fell under 23 U.S.C. 152, now it is 23 U.S.C. 148.

² While no California Court of Appeal appears to have addressed the issue of whether the privilege against admissibility can be waived, one court found a party could fail to preserve a Section 409 issue for appeal by failing to timely and properly assert its protection in the trial court. Public Utilities Commission v. Superior Court (2010) 181 Cal.App.4th 364, 376, fn. 9.

³ See Pierce County v. Guillen: Practical Answers to Privileged Questions, 39 Gonz. L. Rev. 219 for a Gonzaga Law Review article by Daniel Hamilton, the attorney who argued Pierce County¸ for his analysis on Section 409 waiver.