Opposition Brief — Louisiana Department of Transportation v. Doucet

f

No. 95-1227 Suite Mihi e

FILED

In The FEB 22 1996

Supreme Court of the ds ited States

2

October Term, 1995

DEPARTMENT. OF TRANSPORTATION AND

DEVELOPMENT,

Petitioner,

VS.

PAUL DOUCET, RUSSELL DOUCET, MICHAEL DOUCET

and HERBERT CHAMPAGNE,

Respondents.

On Petition for Writ of Certiorari to the Court of Appeal,

First Circuit, State of Louisiana

RESPONDENTS’ BRIEF IN OPPOSITION

DOUGLAS MICHAEL SCHMIDT

Counsel of Record

WAYNE E. GARRETT

Of Counsel

LAW OFFICES OF

DOUG SCHMIDT, APLC

Attorneys for Respondents

335 City Park Avenue

New Orleans, Louisiana 70119

(504) 482-5711

8336

Wz (800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21 Jf

RS rices, inc

QUESTIONS PRESENTED FOR REVIEW

1. Does the failure to raise the issue of statutory privilege

under 23 U.S.C. § 409, as it applies to materials allegedly

produced under 23 U.S.C. § 152, at the trial level, in the appellate

court or before the state Supreme Court, deprive petitioner of its

right to seek a writ of certiorari on such a question.

2. Isthe 1995 amendment to the statute properly before this

Court because the amendment was enacted after the final state

court judgment and was never raised before the state court; in the

alternative, does the addition of the word “collect” or “collected”

in the statute make any change in materials and/or documents

described as excluded under 23 U.S.C. § 409.

3. Does the statutory privilege against the discovery and

admissibility created by 23 U.S.C. § 409 apply to evidence

demonstrated to have been gathered or prepared by other

agencies and not in any way connected with any program under

23 U.S.C. §§ 130, 144 and/or 152.

TABLE OF CONTENTS

Questions Presented forReview ..................- i

BOSONS ns ccccvccccccecsecesccenscobens ii

TERRE occ ccevscccccccsecencécosnuseses ili

Factual Procedural Overview .............20eee00: |

Reasons for Denyingthe Writ ...............-2005- 2

I. The issue of the privilege of Section 23 U.S.C.

§ 409 as it applies to “reports, surveys, schedules,

lists or data” compiled pursuant to 23 U.S.C. § 152

was never raised at the state court level nor in the |

appellate courts nor in the application of the state |

SapeeB OG, 0.0000 ccccctnsssenbssecsses 2

II. The 1995 amendment of 23 U.S.C. § 409, adding

the words “or collected” after the word

“compiled”, does not present any change in the

law and is not properly before this Court as the

amendment was never raised at the state court

level; further, that the amendment would not have

affected the admissibility of any of the evidence

presented to the lower courts; in the alternative,

any such change would be substantive because it

would deprive petitioner of state tortrights. ... 5

III. The decision of the State Court of Appeals is

correct in its interpretation of 23 U.S.C. § 409, and

its admission of evidence including police reports

and other documents not compiled by the DOTD.

iii

Contents

IIIA. The statutory privilege created by 23 U.S.C.

§ 409 should be read as integrated with the other

sections of that title and the programs arising

under such sections, namely §§ 130, 144 and 152.

tnt | AA ee ee eS oe eee ee se a 2 a 2 2 ee ee

IIB. The DOTD interpretation would bar

consideration of evidence, not compiled or

collected under any applicable statutory

provision, preventing consideration by the court

of admissibleevidence. ....................

IIIC. The evidence sought to be excluded was prepared

by state experts and not used for any purpose

pursuant to 23 U.S.C. §§ 130, 144 and/or 152. ..

IID. The cumulative effect of the evidence, including

police reports, bridge tender complaints,

independent observations by experts, adduced at

trial as well as other admissible evidence confirms

SET Re eee eee

EE SE ee

TABLE OF CITATIONS

Cases Cited:

Alyeska Pipeline Service Co. v. Wilderness Society, 95 S.

Ct, 8652, 421 U.S. ZIG (1975S) 2... ccc cc cess

Bowen v. Georgetown Univ. Hospital, 488 U.S.204, 109S.

Ct. 468, 102 L. Ed. 2d 493 (1988) ................

Page

11

18

19

21

16

16

iv

Contents

Page

Bradley v. School Board of City of Richmond, 416 U.S.

696, 94S. Ct. 2006, 40 L. Ed. 2d 476(1974) ....... i5,17

Cousins v. Berteaut, 22nd JDC case number 89-2066 .. 20

Fox v. Parker, 626 F.2d 351(1980) ................. 16

Gersman v. Group HealthAss’n, Inc., 975 F.2d 886 (D.C.

COE CY keine caeeed ob snslenccdeeee i eeeaeinn 16, 17

Hamilton Co. v. State of Massachusetts, 73 U.S. 632, 6

Wall. 632, 18 L. Ed. 904, U.S. Mass. 1867 ......... 2.5

Hormel v. Helvering,61S.Ct.719,312 U.S. 552, 85 L. Ed.

1037, cert. granted, 61S.Ct.35,311 U.S. 626, 85 L. Ed.

OE Midirbd Mee ek beudnesendhetenebane names << 3

Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S.

827, 1108S. Ct. 1570, 108 L. Ed. 24 842(1990) ..... 16

Kitts v. Norfolk and Western Railway Co., 152 F.R.D. 78

te | ee rr oE re ee ee re 10

Landgraf v. USI Film Products, 1148S. Ct. 1483 (1994) . 16

Landgraf v. USI Film Products, 968 F.2d 427 (Sth Cir.

Serre pee eer ry ern re er rae 17

Martinolich v. Southern Pacific Transp. Co., 532 So. 2d

SSSR. RO. EGR SED Fede ck iseaesssvcesseas 14

Vv

Contents

Page

Southern Pacific Transport v. Yarnell, 890 P.2d611 (Ariz.

1995), writ refused, __U.S.__, 116 S. Ct. 352 . .. 7,8,14,21

United States v. Nixon, 413 U.S. 683,94S.Ct. 3090, 41 L.

verte cinctensaeth,cicsicy. MATE EE Oe ee 10

United States v. Schooner Peggy, 1 Cranch 103,2L. Ed. 49

eT PRT TTET TY Pee ape 5 ame een a 15

Walker v. Sauvinet, 92 U.S. 90, 23 L. Ed. 678, U.S. La.

WOW 608s den eahek cub uss cineca 3

Wiedeman vy. Dixie Elec. Membership Corp., 627 So. 2d

POPPE i ekuckdbeeiuctecsaceioet 6,7,11,12

Statutes Cited:

I OO oc onc cee law socses ces, ace i,5,7,9, 18,21

Be 5s 65s 5chuknuntnvccivecnas i, 1,5. 7,9, 18,21

eae Ek 6hn bos u wee onda sekouncs i, 2,5, 7,9, 18,21

PP TE eo dchkn no xh de kb bee ka ockenue os een passim

ee NO ois ca ckd knawawnecedenrnccaes 5

Other Authority Cited:

Webster’s Ninth Collegiate Dictionary .............. 14

vi

Contents

Page

APPENDIX

Appendix A— Excerpted Transcript Dated July 29, 1993 ,

Cpe enred heeded red ddbednbenehet i ober deveans a

Appendix B — Motion In Limine Filed June 4, 1993 ... 15a

Appendix C — Judgment of the 22nd Judicial District

Court, State of Louisiana Dated May 13,1993 ..... 21a

1

FACTUAL PROCEDURALOVERVIEW

During a rainstorm on February 2, 1992, the vehicle

operated by Herbert Champagne lost control crossin g a grid

located on Louisiana Highway 11 bridge, crashing head on into

the vehicle operated by Paul Doucet, in which his two sons,

Russell and Michael were passengers. Moments before impact,

Paul Doucet threw himself in front of his two sons, attempting to

protect them from injury. Asa result of that action, the impact hit

him full on in the face, causing severe lacerations to his face,

including his lips and tongue, nose and scalp and causing mild

brain damage, leaving him with substantial cognitive deficits.

Despite his efforts, both of his sons received even more severe

injuries, Russell Doucet, 20 years old at the time, suffering such

a severe spinal fracture that he was rendered paraplegic and will

remain so the rest of his life; Michael Doucet, only 17 at the time,

suffered a spinal fracture, which has rendered him disabled.

The grid on the bridge at which the accident occurred had

been the occasion of numerous other collisions, with numerous

parties, who deal on a daily basis with accidents on the bridge,

namely the state troopers who report said accidents and the

bridge tenders who observe said accidents, even single car

accidents when it is wet, consider the grid to be very unsafe for

use in wet weather conditions.

At the initial hearing on the motion in limine, and to compel

production of documents, the trial court correctly maintained

that 23 U.S.C. § 409 exclusion for information obviously

generated under 23 U.S.C. § 144. Although the court initially

indicated it would rule on other documentation, it recalled that

order and referred it to the trial of the matter. At the trial of the

matter, after hearing substantial evidence, the court ruled that it

was excluding all documentation as being excluded under 23

U.S.C. § 409.

2

An appeal was taken from atrial judgment absolving DOTD

from any negligence in its maintenance operation of the bridge

and grid in question; the First Circuit Court of Appeal reversed

the trial court’s findings on liability, admitting individual police

reports, work sheets prepared from said police reports when not

prepared by DOTD personnel, other independent records and

other records referred to in an earlier 1990 unpublished decision

in which the bridge was found defective and a cause-in-fact, of

an accident causing that head-on collision remarkably similar to

the one at bar. Application was made to the Louisiana Supreme

Court for a writ of certiorari and it is to be noted that said

application did not refer to any programs conducted under 23

U.S.C. § 152 which would give rise toa privilege under 23 U.S.C.

§ 409; neither did that writ or any prior proceedings in the state

courts consider the 1995 amendment, enacted after the final state

court judgment.

REASONS FOR DENYING THE WRIT

I.

THE ISSUE OF THE PRIVILEGE OF SECTION 23

U.S.C. § 409 AS IT APPLIES TO “REPORTS, SURVEYS,

SCHEDULES, LISTS OR DATA” COMPILED PURSUANT

TO 23 U.S.C. § 152 WAS NEVER RAISED AT THE STATE

COURT LEVELNOR IN THEAPPELLATE COURTS NOR

IN THE APPLICATION TO THE STATE SUPREME

COURT.

It is along standing principle of law that issues not raised in

the state court level shall not be reviewed by this Court. In

Hamilton Co. v. State of Massachusetts, 73 U.S. 632, 6 Wall. 632,

18 L. Ed. 904, U.S.Mass. 1867 it was stated:

3

Questions not decided in the state court,

because not raised and presented by the

complaining party, will not be re-examined

in this court, on a writ of error sued out under

the 25th section of the judiciary act. . . Clear

and necessary intendment that the question

was raised and must have been decided as

claimed, in order to have induced the

judgment, is sufficient, but it is not sufficient

to show that such a question might have

arisen and been applicable to the case,

unless it appears in the record that it did arise

and was applied by the state court in

disposing of the controversy. (At page 906)

(Emphasis added).

And followed in Walker v. Sauvinet, 92 U.S. 90, 23 L. Ed. 678,

U.S. La. 1875; and Hormel v. Helvering, 61 S.Ct.719,312U.S.

552, 85 L. Ed. 1037, cert. granted, 61 S.Ct. 35,311 U.S. 626, 85

L. Ed. 397.

In pre-trial motions, respondents moved to compel the

discovery of various documents in response to which the state

requested a protective order and an order in limine alleging that

said information requested was excluded from discovery and/or

admissibility as a result of the application of 23 U.S.C. § 409. In

that motion, the State moved to limit or restrict testimony and

evidence in the following particulars:

1. The use of reports, surveys, schedules,

lists, or data compiled for the purpose of

identifying, evaluating, or planning the

safety enhancement of potential accident

site, hazardous roadway conditions, or

railway-highway crossings, pursuant to

4

Sections 130, 144, 152 of title U.S. Code

Annotated Section 409 is prohibited either as

evidence or for being considered for other

purposes and any action for damages filed in

state or federal court.

2. All Section 144 Highway safety data is

attached hereto as Exhibit A.

3. All Section 144 Bridge Documentation is

attached hereto as Exhibit B.

(Extracted from DOTD Motion In Limine,

see Respondents’ Appendix A, 15a).

In the testimony of Donald Ray Marson, an employee of

DOTD (annexed as Petitioner’s Appendix F hereinafter “ Pet.

App.”, pages 46a et seq. of petitioner’s application), there is a

long discussion as to the identity of the evidence consisting of

records and documents being offered and under whether or not

said records and/or documents were subject to the exclusion of

23 U.S.C. § 409. The record is absent of any showing of any

specific program. Rather, Marson’s testimony is conclusionary

when he indicates that all of the documents identified were

produced as a result of federal funding; Marson testified that the

DOTD gets “our accident data from the Department of Public

Safety” (Pet App. 47a); and further on where he admits that the

data in question could have “been produced for a state route that

is not federally funded” (Pet App. 52a).

It is that refusal of the trial court to consider the individual

documents in question and its order of a blanket exclusion,

finding that § 409 applied to the case, rather than that § 409

applied to any specific documents, the identity of which

documents the court did not consider, was its error. More

en

5

importantly, however, it demonstrates that there was never any

showing by the DOTD of any documents produced pursuant toa

safety enhancement program under 23 U.S.C. §§ 130, 144 and

152.!

Il.

THE 1995 AMENDMENT OF 23U.S.C. § 409, ADDING

THE WORDS “OR COLLECTED” AFTER THE WORD

“COMPILED”, DOES NOT PRESENT ANY CHANGE IN

THE LAW AND IS NOT PROPERLY BEFORE THIS

COURT AS THEAMENDMENT WAS NEVER RAISEDAT

THE STATE COURT LEVEL; F URTHER, THAT THE

AMENDMENT WOULD NOT HAVE AFFECTED THE

ADMISSIBILITY OF ANY OF THE EVIDENCE

PRESENTED TO THE LOWER COURTS; IN THE

ALTERNATIVE, ANY SUCH CHANGE WOULD BE

SUBSTANTIVE BECAUSE IT WOULD DEPRIVE

PETITIONER OF STATE TORT RIGHTS.

The 1995 amendment contained in Public Law 104-59 was

enacted November 28, 1995, some 25 days after the final state

court action, the denial of the writ by the Louisiana Supreme

Court (see Pet. App. 20a). As such, the issue of the construction

of that amendment which adds the words “or collected” after the

word “compiled” in the statute, was never raised or pled in any of

the lower state courts including in the application for writ of

certiorari to the Louisiana Supreme Court. Accordingly under

Hamilton Co. v. State of Massachusetts, op. cit., “questions not

decided in the state court because not raised and presented by the

1. 23 U.S.C. §§ 130, 144 and 152 refers to specific programs designed

respectively for railroad crossings § 130, bridge maintenance and study § 144,

and safety enhancement programs § 152. For the text of $§ 152 and 409, see

Pet. App . 38a ef seg. Since §§ 144 and 130 are not part of the questions

presented for review to this Court, they are not reproduced herein.

6

complaining party, will not be reexamined in this court. . .” (at

page 906). On those two issues, the construction and application

of 23 U.S.C. § 409, as amended by the 1995 amendment, is not

properly before this Court.

However, if the 1995 amendment should be before this

Court it would be noted that it would affect no change in the law

(DOTD's application, page 28). In construing this statute which

decision was followed by the Court of Appeals, the Louisiana

Supreme Court in Wiedeman v. Dixie Elec. Membership Corp.,

627 So. 2d 170 (La. 1993) stated the following:

DOTD essentially asks this Court to

transform a statute, which by its literal

wording protects information compiled for

certain purposes, into one which protects all

information in DOTD’s possession. We

refuse. The word “compiled” indicates that

information is collected into one document

or composed from other sources. [See

Webster's New Collegiate Dictionary p. 230,

(1977).] The term suggests an end product,

something more than unedited factual

material. Moreover, privileges derogate

from the system by which courts determine

the truth and should not be expansively |

construed. United States v. Nixon, 418 U.S.

683, 709, 94 S.Ct. 3090, 3108 41 L.Ed.2d

1039, 1065 (1974). 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. (At

page 173) (Emphasis added).

7

It is therefore clear to this Court whether the statute reads

“compiled” or “compiled or collected” or “gathered for or

incorporated into such compilations” as used by the Wiedeman

court, that the compilations and the collections and the

gatherings all in fact refer to an end product, more particularly,

an end product envisioned to be compiled, collected or gathered

pursuant to a program under 23 §§ 130, 144 or 152.

If the DOTD’s contention is that the addition of “or

collected” enlarges the amounts of said reports, schedules,

surveys, lists or data, which would be excludable under 23

U.S.C. § 409, then this would be a substantive change moving

beyond the realm of mere procedural rules of evidence and into

a substantive field which should not be applied retroactively

because it would reinstate a form of sovereign immunity, for the

purpose of state highway department defense.

Ill.

THE DECISION OF THE STATE COURT OF

APPEALS IS CORRECT IN ITS INTERPRETATION OF

23 U.S.C. § 409, AND ITS ADMISSION OF EVIDENCE

INCLUDING POLICE REPORTS AND OTHER

DOCUMENTS NOT COMPILED BYTHE DOTD.

The decision of the State Court of Appeals is correct in its

interpretation of 23 U.S.C. § 409 and its application of that

Statute to the facts at bar and its reversal of the Trial Court’s

ruling on liability. Adopting the view of Southern Pacific

Transport v. Yarnell, 890 P.2d611 (Ariz. 1995), writ refused, __

U.S. __, 116 S. Ct. 352, respondents suggest that a reading of

§ 409 must be an “integrated” one, reading § 409 along with the

other pertinent parts of the statute to which it refers in its body. To

extend it beyond the sections and programs, for which it was

designed to provide protection, is toexpand the privilege created

8

by the statute, denying all evidence alleged to be subject of the

exclusion of 23 U.S.C. § 409, without an examination of the

origin of that evidence.

The state Court of Appeals is correct in allowing into

evidence police accident reports prepared by police departments

and stored by the Department of Public Safety, the DOPS not the

DOTD.

Most recently, the Arizona Supreme Court, in Southern

Pacific Transp. Co. v. Yarnell, op. cit., writ refused 116S. Ct.

352, concluded after its analysis of the statute:

It can thus be seen that each of the categories

of information described in 23 U.S.C. § 409

has its origin in the programs described in 23

U.S.C. §§ 130, 144 and 152. These are words

of art. This is powerful support for the

proposition that the documents exempt from

discovery and excluded from 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.

(At pages 614-615) (Emphasis added).

9

IITA.

THE STATUTORY PRIVILEGE CREATED BY 23

U.S.C. § 409 SHOULD BE READAS INTEGRATED WITH

THE OTHER SECTIONS OF THAT TITLE AND THE

PROGRAMS ARISING UNDER SUCH SECTIONS,

NAMELY §§ 130, 144 AND 152.

Itis to be noted in considering 23 U.S.C. § 409, that there are

no “reports, surveys, schedules, lists or data” which are

compiled under that section of the statute. Rather that section

establishes a statutory privilege which excludes said reports, ef

al., from discovery when they are:

1. reports, surveys, schedules, lists or data

2 compiled for the purpose of

a. identifying, evaluating, or planning

the safety enhancement of potential accident

sites, hazardous roadway conditions, or

railway-highway crossing, pursuant to

sections 130, 144, and 152 of [Title 23] or

b. developing any highway safety

construction improvement project which

may be implemented utilizing Federal-aid

highway funds.

Under such an analysis, it is clearly demonstrated that the DOTD

offered no evidence whatsoever as to what safety enhancement

program they were utilizing said information for; consequently

in the absence of such a showing, evidence not prepared nor

collected is not subject to the exclusion.

10

It is the oft expressed principle that the “public ...has aright

to every man’s evidence except for those persons protected by a

constitutional common law or statutory privilege,” United

States v. Nixon, 413 U.S.683, 709, 94S. Ct. 3090, 3108, 41 L. Ed.

2d 1039 (1974). Further stating, “that privileges, whether

established in the Constitution, by statute, or at common law”,

are “neither lightly created nor expansively construed, for they

are in derogation of the search for truth”. (/d. at710,94S. Ct. at

3108).

The United States District Court in Kitts v. Norfolk and

Western Railway Co., 152 F.R.D. 78 (S.D.W. Va. 1993),

construed 23 U.S.C. § 409 stating:

The statute does after all, contemplate

protection for documents and data prepared

or “compiled for the purpose” (emphasis

added) of safety enhancement. It clearly does

not accord protection for documents or data

prepared or compiled for some entirely

separate or distinct purpose, even if the

contents of the same, are parts thereof

eventually become ingredients thrown intoa

soup kettle with the distinct flavor of safety

enhancement. (At page 81).

The DOTD’s interpretation would afford protection for

documents prepared for entirely distinct purposes, i.e., police

accident reports.

11

ITIB.

THE DOTD INTERPRETATION WOULD BAR

CONSIDERATION OF EVIDENCE, NOT COMPILED OR

COLLECTED UNDER ANY APPLICABLE STATUTORY

PROVISION, PREVENTING CONSIDERATION BY THE

COURT OF ADMISSIBLE EVIDENCE.

In its application herein the DOTD is requesting this Court

rule as excluded from admissibility under the provisions of 23

U.S. § 409, various police accident reports forwarded to the

Louisiana Department of Public Safety. Additionally, the DOTD

asks that this Court extend that exclusion to the information

contained in the police reports and to the review of that

information by experts including experts for both the

respondents and the petitioner, DOTD.

Under the decision by the Louisiana Supreme Court in

Weideman v. Dixie Elec. Membership Corp., op. cit., that court

construed the statute and its applicability and concluded:

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. (At page 173).

The court then went on to allow as discoverable and admissible

police accident reports and other raw data and at the same time,

denied admissibility to surveys, applications for studies

assisting, assigning priorities and projects and other

compilations made for developing highway safety construction

projects.

12

Following the decision in Wiedeman, the First Circuit

allowed the following evidence:

In conducting our review of the record, we

considered the expert testimony as well as the

improperly excluded evidence. The

individual accident reports from 1982 to

1989 indicate that of the accidents occurring

on the metal grate, over 75% occurred in wet

weather (footnote 4). This high incidence of

wet weather accidents supports the theories

offered by the Doucet experts rather than the

DOTD experts. (First Circuit Court Slip

Opinion, Pet. App., 7a) (Emphasis added).

The same rule would allow the admissibility of various

bridge tender reports. The First Circuit stated:

Another essential document excluded by the

trial judge, was . May 13, 1986 letter from

bridge tender Alex Kinchen. This letter was

contained ,n the excluded damage reports

and complaint records. In the handwritten

letter, Kinchen states “Evertime [sic] it

raines [sic] someone is spinning around on

the bridge northbound usually they keep

going.” This letter supports the Doucets’

contention that the number of wet weather

accidents on the grate is even higher than the

number indicated in the individual accident

reports. (First Circuit Court Slip Opinion,

Pet. App. at 7a) (Emphasis added).

13

That quote also allowed in an inventory showing the erosion of

the projectile points:

A third document, also contained in the

excluded damage reports and complain

records, is a May 11, 1992 inventory of steel

grate compiled by Dennis Burke, a DOTD

district bridge maintenance engineer. The

inventory reflects the various types of unused

steel grate available in Burke’s district. On

May 4, 1992, Burke made the following

notation on the inventory sheet, “this is the

pattern [of metal grate]onN & S draw @ US

11. FAPP [for all practical purposes]

projections are gone”. Thenote refers to the

5/16 inch projections which protrude slightly

above the plane of the metal sheet. The

notation clearly supports the contention of

the Doucet experts who stated that the metal

grate on the Highway 11 bridge was worn

smooth. On the other hand, the note directly

contradicts statements made by the DOTD

experts. One DOTD expert stated that the

“traction lugs” still existed on the grate.

Although a second expert stated that there

was some “polishing” of the grid, he later

suggested that the projection points never

existed and, therefore, could not be missing.

By admission of DOTD’s own maintenance

engineer, the projection points had existed

but were worn smooth. (First Circuit Slip

Opinion, Pet. App. 7a-8a) (Emphasis added).

The DOTD’s contention is that all of the facts referred to by

the First Circuit hereinabove, improperly excluded by the trial

14

court, are included within the meaning of “reports, surveys,

schedules, lists or data” which would be protected under 23

U.S.C. § 409. That same First Circuit speaking some years

earlier indicated “this enumeration suggests something more

than simple factual information that [a state department of

transportation] has gathered”, Martinolich v. Southern Pacific

Transp. Co., 532 So. 2d 435, 439 (La. App. 1 Cir. 1988).

The Arizona Supreme Court in Southern Pacific Transp. Co.

v. Yarnell, op. cit. concluded that the words “reports, surveys,

schedules, lists or data” are terms of art which refer to more than

raw facts. Those courts rejected the argument that the word

“data” would encompass such facts finding that not even the

word data is strictly synonymous with “fact.””

2. Yarnell Opposition Brief at page 11:

Webster's Ninth Collegiate Dictionary defines the

terms as follows:

data: factual information (as measurements or

Statistics) used as a basis for reasoning,

discussion or calculation, the [data] is plentiful

and easily available - H.A. Gleason, Jr.>

<comprehensive [data] on economic growth has

been published - N.H. Jacoby>

fact: athing done: as a: CRIME <accessory after

the [fact]> b obs: FEAT carchaic: ACTION 2

archaic: PERFORMANCE, DOING 3: the

quality of being actual: ACTUALITY <a

question of [fact] hinges on evidence> 4 a:

something that has actual existence <space

travel is now a [fact}> b: an actual occurrence:

EVENT <prove the [fact] of damage> 5: a piece

of information presented as having objective

reality - in fact: in truth: ACTUALLY

15

More persuasive is the use of the phrase “reports, surveys,

schedules, lists or data” in the statute itself. The modification of

said compilations or collections of data is for work performed

pursuant to specific sections, and the work product generated out

of those sections. As such, they become terms of art as used in

§ 409. For that reason, it must be demonstrated that sucha report

and/or data is gathered pursuant to sucha section and the absence

of which the privilege should be limited.

Regarding the retrospective effect of the 1995 amendment,

petitioner cites the case of Bradley v. School Board of City of

Richmond, 416 U.S. 696, 711,94 S. Ct. 2006, 2016, 40 L. Ed. 2d

476, 488 (1974) for the proposition that a change in federal

procedural law applies retroactively, absent contrary legislative

mandate or manifest injustice. The case at bar, as did Bradley,

presents a unique consideration of what effect is given to a

change in law which takes place once aruling has been made and

while a case is on direct review. Areading of Bradley indicates

that the philosophical underpinnings of that decision is the

Supreme Court holding in 1801 by Chief Justice Marshall in

United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49

(1801). In Schooner Peggy, the court noted that, if “subsequent

to the judgment and before the decision of the appellate court, a

law intervenes and positively changes the rule which governs”,

the new law must be obeyed, id. at 110; but the court qualified

that obligation recognizing that, “it is true that in mere private

cases between individuals, acourt will and ought to struggle hard

against aconstruction which will, by a retrospective operation,

affect the rights of parties..” Jd. at 110.

It is to be noted that the Bradley rule has by and large been

applied in instances which involve incidental actions, in Bradley

an action for attorneys fees in a desegregation case prior to the

federal enactment of the authority to award such attorneys fees.

The cases which followed Bradley have dealt with sexual

16

harassment’, environmental issues‘, and other civil rights

claims;*

Much more apropos is the Supreme Court rulings based on

Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 109 S. Ct.

468, 102 L. Ed. 2d 493 (1988) which stated, “congressional

enactments and administrative rules will not be construed to

have retroactive effect unless their language requires this result”

(at page 208, at page 471, at page 493). In Gersman v. Group

HealthAss’n, Inc., 975 F.2d 886 (D.C. Cir. 1992), the court goes

into an extensive history of the development of the Civil Rights

Act and more particularly inquiry into congressional intent,

legislative history, and judicial history. Therein it was noted:

Finally, the Bradley court implied that such

manifest injustice would occur with a

retrospective application would impose

“new and unanticipated obligations ...

without notice or an opportunity to be heard”.

(416 U.S. at 720, 94 S.Ct. at 2021.)

This Court also cites Justice Scalia writing in the Kaiser

Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110

S.Ct. 1570, 108 L.Ed.2d 842 (1990) wherein the court wrote,

“[{djuring ... more than 150 years of doctrinal certainty,” the

Supreme Court denied retroactive application to new statutory

law except when “the statute affirmatively so required” citing

Kaiser at 844, quoted in Gersman at 896, further stating:

3. Landgraf v. USI Film Products, 114 S.Ct. 1483 (1994).

4. Alyeska Pipeline Service Co. v. Wilderness Society, 95 S. Ct. 1612,

421 U.S. 210(1975).

5. Foxy. Parker, 626 F.2d 351 (1980).

17

Schooner Peggy stands for the proposition

that only when congress “plainly says” that

a legislation has retroactive effect are courts

to depart from “the ordinary presumption

which courts will ‘struggle hard’ to apply”

against retroactivity, Jd. at 846-847, 110

S.Ct. at 1582 (emphasis in original).

(Gersman at 896).

The court also quotes its approval of the following from

Landgrafv. USI Film Products, 968 F.2d 427 (Sth Cir. 1992):

The measure of manifest injustice under

Bradley is not controlled by formal labels of

substantive or remedial changes. Instead we

focus on the practical effects the amendments

have upon the settled expectations of the

parties. Jd., 968 F.2d at 433 cited from

Gersman at page 900.

Although the presumption would have “granted

retroactivity”, it was pointed out that even if it did its own built

in exception for “manifest injustice” would lead to prospective

application of the amendment.

Itis respectfully submitted that the Bradley rule is misstated

when the built in exceptions contained therein concerning

manifest injustice are not considered. More particularly, the

focus on the practical effect the amendments have upon the

settled expectations of the parties is the deciding factor. For

those reasons the amendment before this Court should not be

applied to the case at bar, a final state court judgment when the

amendment is enacted.

18

IIIc.

THE EVIDENCE SOUGHT TO BE EXCLUDED WAS

PREPARED BY STATE EXPERTS AND NOT USED FOR

ANY PURPOSE PURSUANT TO 23 U.S.C. §§ 130, 144 AND/

OR 152.

It has been demonstrated in this Court that the police reports

in question were not prepared in any way by any state highway

employee, but by police agencies in the area. It has also become

clear that said police reports were not collected by the DOTD, but

by the Department of Public Safety, which then made said

compilations available to various parties requesting same. The

DOTD, however, argues in its brief, at page 12, that the statute as

it is written “excludes all data, not just compiled data”.

From those police accident reports, Jim Clary on behalf of

respondents, and Jack Humphries and Larry Peterson on behalf

of petitioners, each compiled an analysis of said accident reports

with both sides concluding that a review of such accident reports

indicated a highly dangerous 75% increase in the incidents of

accidents in wet conditions rather than dry conditions (Court of

Appeals Decision, Pet. App. 7a). The First Circuit Court of

Appeal allowed it into evidence stating “because the spreadsheet

was prepared using individual accident reports, it was not

compiled under Section 409, the spreadsheet should have been

included in evidence, Doucet vs Champagne and DOTD.” (Pet.

App. 6a at footnote 3).

19

IIID.

THE CUMULATIVE EFFECT OF THE EVIDENCE,

INCLUDING POLICE REPORTS, BRIDGE TENDER

COMPLAINTS, INDEPENDENT OBSERVATIONS BY

EXPERTS, ADDUCED AT TRIAL AS WELL AS OTHER

ADMISSIBLE EVIDENCE CONFIRMS THE COURT’S

RULING.

As the result of the “blanket” exclusion of any and all

material asserted to be privileged under 23 U.S.C. § 409 by the

trial court, that court did not consider the incidence of wet

accidents versus dry accidents so demonstrated by a spreadsheet

prepared by independent experts, and derived by an analysis of

the accidents by experts for both sides. That incidence highlights

the effect of the various conditions which were found to exist on

this bridge as a result of misuse and lack of maintenance and wear

and tear over the bridge life, which the DOTD did not deny but

which they asserted was nota factor in this accident, aconclusion

belied by the aforementioned incidence of wet to dry accidents.

Those deficiencies included the following:

1. A total lack of maintenance on the bridge since

anyone at the DOTD can remember, including the head of

the department, an employee of more than 20 years (see

testimony of District O-2 administrator, Resp. App. A, 13a;

further is Robert Roth, maintenance manager, Resp. App.

3a, 4a, 6a);

2. The First Circuit’s confirmation that the police

officer investigating the accident was of the opinion that the

grid surface itself was the cause of the accident, quoting the

officer “(at) the time of the accident the roadway was wet,

which made the grid itself very slippery, which I think that

a major factor in the accident itself” (First Circuit Court

Decision, Pet. App. 10a);

20

3. Skid testing over a five year period with traction

measurements equivalent to those for ice and snow (see

testimony of Chris Shapley, DOTDexpert, Resp. App. lla

and Frank Griffith, Resp. App. 2a);

4. Substantial rutting and pooling of water in the

asphalt roadway (see testimony of James Clary, Resp. App.

8a);

5. Surface discontinuities approaching the grid

surface of the bridge, including many different co-

efficients of friction resulting from the rutting asphalt,

pooling water, smooth/solid metal surface, asphalt filled

grid surface which held water, rutting of the grid roadway

itself, and wearing down of projectile points all of which

effected the co-efficient of friction and therefore traction

and the steering ability of the drivers on such roadway (see

testimony of James Clary, Resp. App. 9a); and,

6. Failing to replace the bridge grid surface (see

testimony of James Clary, Resp. App. 9a, 10a).

All of which deficiencies contribute to inadequate steering

conditions on the grid surface.

All of those same deficiencies were found to have existed in

the case of Cousins v. Berteaut,22nd JDC case number 89-2066

(Pet. App. 71a, et seqg.). Judge Fitzsimmons found those items

enumerated above to have existed in 1986 and that the

deficiencies mentioned hereinabove were responsible for the

lack of adequate steering conditions on the bridge. The trial

judge therein stated:

All of these minor factors are small when

they are viewed in isolation. When viewed

21

together, each functions like a piece of

mosaic, to ultimately form a complete

picture. All point to and emphasize a

common centerpiece: namely, these factors

create a wet weather hazardous conditionon

the bridge which was known to the State of

Louisiana, and which could have been

corrected any time since 1985. (Pet. App.

71a, et seg.) (Emphasis added).

It is therefore respectfully submitted that the First Circuit

Court of Appeals decision herein is correct both in its

interpretation of 23 U.S.C. § 409, its consideration of documents

incorrectly excluded by the trial court, the evidence of the abject

refusal by the DOTD to make any effort to comply with any

safety standards or even its own maintenance standards

regarding this bridge and the confirmation of dangerous

existence by the incidence of the 75 to 25 ratio of wet to dry

accidents.

CONCLUSION

If the 1995 amendment is not before this Court as it is

suggested earlier, then this writ application is a duplicate of that

submitted in Southern Pacific Transp. Co. v. Yarnell which writ

application was denied (116S. Ct. 352 on October 16, 1995). If

Congress had intended by that amendment to exclude from

evidence police reports, observations of independent witnesses

and the analysis of experts, it could have spoken to that. As

recently as November 28, 1995 it did not. Truly the privilege,

accorded under 23 U.S.C. § 409 is limited to “reports, surveys,

schedules, lists or data”, developed pursuant to specific highway

safety enhancement programs, specified in 23 U.S.C. §§ 130,

144 and 152.

22

Without aclear statement from the Congress, that privilege

should not be extended beyond an integrated reading of 23

U.S.C. § 409. Traditional records and evidence including police

reports of accidents, observations of independent witnesses, and

independent analysis of experts are not now subject to the

exclusionary rule. Moreover, the record is replete with examples

of defective conditions allowed to exist without any showing of

any maintenance efforts being made by the DOTD. That the

amendment should not be granted any retroactive effect is clear

when considered upon the facts of this case and upon the settled

expectations of party at the time it was tried.

While the incidence of accidents, revealed by the analysis of

police reports, demonstrates a highly dangerous condition

according to every highway standard both nationally and the

DOTD’s own standard, the incidence of accidents merely

confirms the defective condition which would was demonstrated

to have existed at the time of this accident.

It is respectfully submitted that the writ be denied.

Respectfully submitted,

DOUGLAS MICHAEL SCHMIDT

Counsel of Record

WAYNE E. GARRETT

Of Counsel

LAW OFFICES OF

DOUG SCHMIDT, APLC

Attorneys for Respondents

335 City Park Avenue

New Orleans, Louisiana 70119

(504) 482-5711

la

APPENDIX A — EXCERPTED TRANSCRIPT

DATED JULY 29, 1993

TWENTY-SECOND JUDICIAL DISTRICT COURT

PARISH OF ST. TAMMANY

STATE OF LOUISIANA

NO. 92-11043-1

PAUL DOUCET, ET AL

VERSUS

HERBERT J. CHAMPAGNE, JR.

VOL.I

TRANSCRIPT OF PROCEEDINGS taken before the

Honorable A. Clayton James, Judge Presiding, Division E,

Twenty-Second Judicial District Court, Parish of St. Tammany,

State of Louisiana, on July 29, 1993, Covington, Louisiana.

APPEARANCES:

DOUGLAS M. SCHMIDT, ESQUIRE,

PETER R. BORSTELL, ESQUIRE AND

WAYNE E. GARRETT, ESQUIRE

ATTORNEYS FOR PLAINTIFFS

MS.NANCY YEAGER

ATTORNEY FOR MR. CHAMPAGNE

2a

Appendix A

STEPHEN J. CAIRE, ESQUIRE AND

T. GORDON SANDERS, ESQUIRE

ATTORNEYS FOR DOTD

REPORTED BY:

DEBBIE M. MURRAY, C.S.R.

OFFICIAL COURT REPORTER

= x -

[554] numbers of .33 on the grid, so this is well within the

comfortable measurements that we have here. Tracked snow .37,

35, .32. That is untracked snow. Tracked snow is .37, .31, .36,

and so on.

The point of this is that regardless of what highway

engineers say, what state governments say, what anybody says,

that here is credible evidence that we have a bridge with traction

very close to that of snow. And that is, as I indicated in the

AASHTO material, it’s up to the public to decide and the courts

to decide whether or not we want people driving on packed snow.

MR . CAIRE:

Your Honor, I’m not objecting. May I ask him to give me the

name of that?

THE WITNESS:

Yes, sir. It’s around the courtroom it is in a book that we

have. This is an article by — pardon, this page is cut off. The title

is, Reconstructing Collisions Involving Ice and Slippery

3a

Appendix A

Surfaces, the S.A.E. number is 930896. It’s on page 185 of the

book. That is — yes, that book. I think that is the same.

MR .CAIRE:

Page what?

THE WITNESS:

On 185. There is only, I think along these lines one other

thing that will help us understand what is going on there. And I

have adocument that was supplied evidently by Mr. Blaschke in

the Cousins case. I haven’t seen

* * *

[631] Which is a Louisiana Department of Transportation

and Development bridge maintenance section generated

inspection schedule which contains references to the —

MR. SANDERS:

The actual bridge inspections.

MR. GARRETT:

The actual bridge, well, it contains a reference to when the

bridge is scheduled by them to be inspected and when it was last

inspected.

THE COURT:

Let it come into the record in the form of a proffer, not as

evidence.

4a

Appendix A

MR. GARRETT:

Okay. And again there are more of these than just one, Your

Honor. I offer them all in globo.

EXAMINATION BY MR. SCHMIDT:

Q. During your twenty-two years with the Department of

Transportation do you recall whether the steel grid was ever

replaced on the Highway 11 Bridge?

A. I donot recall itever having been replaced.

Q. How old is that grid?

A. Idon’t know.

Q. Can you give me an estimate as you did in your

deposition?

A. No, I don’t recall estimating the age of the grid in my

deposition. What I think I said was it is unlikely that that was the

original grid, given that the bridge is as old as it is.

Q. Are there still transverse bars missing from the grid

floor?

[632] A. Yes.

Q. Since the Bush case have any been replaced?

A. Not tomy knowledge.

Sa

Appendix A

Q. Has anything been done on the bridge to increase the

coefficient of friction?

MR. SANDERS:

Your Honor, I am going to object to that question, without a

foundation being laid.

THE COURT:

Overrule the objection. I think this man can answer that.

THE WITNESS:

No.

EXAMINATION BY MR. SCHMIDT:

Q. Have they replaced the projection points that were on the

bridge at one time?

MR. SANDERS:

Objection. Assumes facts not in evidence.

EXAMINATION BY MR. SCHMIDT:

Q. Do you know if that was —

THE COURT:

Overruled.

a

6a

Appendix A

THE WITNESS:

What do you mean by projection points? I am —

EXAMINATION BY MR. SCIIMIDT:

Q. They have little bars that are stuck up between the grids

to increase the coefficient of friction. Are you not aware that was

on the original grid?

A. No, Iam not aware of that.

Q. Have they done anything since that to increase the width

of the shoulders on the bridge since the Bush case?

A. No.

[637] closing of the grid at all?

A. Yes. You actually got two trunnions, but the main

trunnion is the hinge on which the movable leaf is supported

which allows it to open like a door.

Q. And they would cause that — is that what comes in when

it locks together?

A. No, no. The trunnion is the — if the bridge leaf — if the

bridge moves like a door. (Indicating.) It has that hinge. The

trunnion is the pin on the hinge.

:

§

&

é

a

Ta

Appendix A

Q. So that has nothing to do with the sheets meeting

together?

A. Nothing whatsoever. There is also a counterweight

trunnion. I don’t know which trunnion you’ re talking about but

Q. Thatis all right. That is sufficient. Thank you. When was

the last time they resurfaced the Highway 11 Bridge, the DOTD?

Do you remember what you told us in your deposition?

A. Idon’tremember. I think I looked it up at the time of the

deposition. It is —I don’t know. If I looked it up at the time of the

deposition that is the correct date, but I don’t recall at this time.

Q. Was it more than Fifteen years ago?

MR. SANDERS:

Your Honor, I will object. He said he doesn’t know and if it

is in his deposition I mean he —

THE COURT:

I sustain the objection.

EXAMINATION BY MR. SCHMIDT:

Q. Do you know if it has been done more than once since

you have been with DOTD?

* * *

8a

Appendix A

[646] MR. SCHMIDT:

D-10.

EXAMINATION BY MR. SCHMIDT:

Q. Would you describe what these show to you?

A. These are pictures taken near the North and South

Drawbridge and it shows the condition of the road leading to the

drawbridge. It shows the condition of some of the joints in the

roadway on the vents leading to the two drawbridges. It shows

standing water on the road It shows a considerable amount of

handrail damage. This one shows the leg of a passenger I had in

the car. This one shows a foot. This one shows some of the

guardrail that has been damaged. Some of it is missing and again

you can see the joints leading to the steel grid floor. Another one

just about the same thing and this is —

Q. That is damage onto the railings?

A. This is damage to the guardrail. It shows the type of

temporary repairs that were made. This is at the draw showing

some pavement repair and just the condition of the pavement and

the joints and it also allows broken handrails.

Q. You said repaired — was iteven when you gottosee it or

was it —

A. Youcan see that there are some surface irregularities in

the paving. This one just shows water standing in the ruts and also

along the gutter you can see the scuffers along the curb. Those are

little black spots and they are pretty well inoperative.

9a

Appendix A

Q. My next question was what did you observe regarding

Highway 11, but have you gone over that with the pictures pretty

much or is there something you wanted to add?

A. No, sir. l observed at the —I don’t have a picture of the

grids in there because pictures that were already

* * *

[662] me that you get quite a bit of water beneath the asphalt and

you are pumping out patches. The — I saw some patches that

look fairly fresh on the bridge and a lot of them are coming up.

Q. Would those patches be noticeable to a driver?

A. When you run over them you notice them, yes.

Q. Would they be obvious to a driver?

A. If you are looking for them. I hate to say would it be

obvious to someone else, because I am out there looking for

them. I see them readily.

Q. Is there aremedy for this?

A. The remedy for it would be better maintenance or this

asphalt is what from ’77 to ’’93? It is what, sixteen years old. It is

pretty old asphalt.

Q. What have you observed about the steel grid at the North

Draw?

A. The steel grid at the North Draw has some transverse

10a

Appendix A

bars missing. It— when you go from joint to joint or from vent to

vent the longitudinals don’t lineup and where the wheels have

passed you have the two inch bars, which are four inches apart.

And these two inch bars have the tops worn off where the, it

becomes smooth. As I recall from the standard the serrations are

about an eighth of an inch deep. Most of those are gone. So you

have little semicircular pieces of metal that if you, they are six

inches apart and if you get your wheel in there it will tend to make

you track. When you get to the next joint and it’s not lined up then

you are going to seek a track until it tracks again. That is what, I

think, gives you the uneasy feeling of your car moving side to

side.

Q. As an expert in the highway design, safety and

engineering what is your opinion as to the steel grid on [663] the

North Draw?

A. I think it is worn out.

Q. Does it need replacement?

A. I think so.

Q. Have you, what would be the cost? Have you checked

into the cost of replacement or can you estimate the cost of

replacement?

A. Yes, sir.

Q. What would that be?

A. I contacted some people in bridge, the bridge business

and I was given an estimate of —

lla

Appendix A

MR. SANDERS:

Your Honor, I am going to object to any hearsay testimony

about what someone else may have told him.

THE COURT:

Well, I think this is the type information that experts would

normally gather and rely upon and I think that is an exception to

the hearsay rule and I will let it in. Overruled. You may answer.

THE WITNESS:

I was given a figure of $32.00 a square foot to, for new

grating. If you were putting on new grating ona bare beam. I was

given a price of between $5.00 and $50.00 a square foot to

remove and replace and this came from two bridge contractors

and I compared it with the deposition of one of the State’s bridge

design engineers. He estimates $50.00 a square foot.

EXAMINATION BY MR. SCHMIDT:

Q. Do you know how many square foot the bridge is

> > *

[747] A. I wasn’t measuring the skid numbers. I was

measuring the —

Q. Iam asking the question.

A. The number is what it is.

12a

Appendix A

©

Right. Is the skid number on here 33.17

>

That is what the number says.

Is it 33.1 skid number slick? Is it like ice?

> ©

Oh, it’s not like ice, no.

Q. Is itlike crushed snow or impacted snow if the ice stays

on it?

A. What tires are you going to use? It makes a — I mean

snow tires do quite well. You might get up to .33 with snow tires

or chains.

Q. Was there snow tires or chains in this accident?

A. The snow — there is no snow or ice in this accident. So

I don’t see the point.

Did you — were you here when Mr. Roth testified?

I think so.

Were you here?

Pr FP ©¢

He is that gentleman over there, yes.

Q. Were you here when he said, I asked about the article and

he said the grid work on draw bridge is too light. The heavy winds

are Causing it to rise a few inches?

A.

or OF? 8B >

13a

Appendix A

I thought that was funny, yes.

Why did you think that was funny?

Do you want me to show you?

No. I just want to ask what you think

The idea.

What is so funny about it?

Because the guy that said that, all right, obviously is not

an engineer or physicist. When you calculate the pressure

differential due to flow blockage under a bridge

[778] A. I am not aware of any grid replacement. Is that

what you’ re talking about the grid?

Q.

A.

o> © >

Yes, sir.

We are talking about the steel deck on the movable span.

Yes, sir.

No, I am not aware of having replaced the steel grid.

Did you repair any of the missing parts in the steel grid?

There may have been, but I wouldn't be aware of it. They

would be handled by our district maintenance engineer.

l4a

Appendix A

Q. So.you would go by his testimony on as far as that?

A. He is in charge of all district maintenance and more

familiar with the maintenance activities than I.

Q. Did you do anything to increase the coefficient of

friction on the bridge? Did you lay new asphalt? Was new asphalt

laid on the bridge or anything?

MR. SANDERS:

Your Honor, I am going to object to the form of that question.

He asked about three parts to it. don t know which one.

THE COURT:

I overrule the objection. I didn’t hear three parts. You may

answer.

THE WITNESS:

What specifically are you?

EXAMINATION BY MR. SCHMIDT:

Q. The previous overlay. Did they take up all the old asphalt

and redo the bridge?

A. Tomy knowledge we have had no overlay projects on the

bridge.

Q. How long has that been since? Okay, before I ask

15a

APPENDIX B — MOTION IN LIMINE FILED

JUNE 4, 1993

NO: 92-11043 DIV “E”

22ND JUDICIAL DISTRICT COURT

PARISH OF ST. TAMMANY

STATE OF LOUISIANA

PAUL DOUCET, ETAL

VERSUS

HERBERT CHAMPAGNE, JR., ETAL

FILED:

DEPUTY CLERK

MOTION IN LIMINE

NOW INTO COURT, through undersigned counsel, comes

the Louisiana Department of Transportation and Development,

and moves this Honorable Court to limit or restrict testimony and

evidence proposed to be offered by or on behalf of plaintiffs in

the following particulars:

1. The use of reports, surveys, schedules, lists, or data

compiled for the purpose of identifying, evaluating, or

planning the safety enhancement of potential accident

site, hazardous roadway conditions, or railway-

highway crossings, pursuant to Sections 130, 144, 152

of title 23 U.S. Code Annotated Section 409 is

16a

Appendix B

prohibited either as evidence or for being considered

for other purposes and any action for damages filed in

state or federal court.

2. All Section 144 Highway safety data attached hereto as

ExhibitA.

3. All Section 144 Bridge Documentation attached hereto

as Exhibit B.

WHEREFORE, movers pray that plaintiff be ordered to

show cause why the foregoing Motion in Limine should not be

granted and after due proceedings, said motion be granted.

Respectfully submitted,

RICHARD P. IEYOUB

ATTORNEY GENERAL

STEPHEN J. CAIRE

SPECIALASSISTANT ATTORNEY GENERAL

REED & CAIRE

ATTORNEYS ATLAW

71206 HENDRY AVENUE

COVINGTON, LA 70433

(504) 892-9295

BY: s/ T. Gordon Sanders

T. GORDO SANDERS

ATTORNEY

17a

Appendix B

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing

pleading has been served on all opposing counsel, by placing a

copy of same in the U.S. Mail, postage prepaid,

this 4th day of June, 1993

s/ T. Gordon Sanders

T. Gordon Sanders Attorney

Attorney

18a

Appendix B

ORDER

IT IS HEREBY ORDERED, that plaintiffs, Paul Doucet,

Sr., Debra Doucet, Russell Doucet, Michael Doucet and third

party plaintiff Herbert Champagne, Jr. appear on the 14 day of

June, 1993, to show cause why the Motion in Limine should not

be granted and that plaintiffs and their experts, should not be

prohibited from entering into evidence, referring to, or using in

any manner or purpose, any report, survey, schedule, list, or data

compiled for the purpose of identifying, or evaluating, or

planning safety enhancement of potential accident sites,

hazardous roadway conditions, or railway-highway crossings,

pursuant to Sections 130, 144, 152 of title 23 U.S. Code

Annotated Section 409 or as attached as per Exhibit Aand B.

SO ORDERED, this

Covington, Louisiana.

day of ™. 4

JUDGE

PLEASE SERVE NOTICE OF HEARING ON

Douglas M. Schmidt

Peter R. Borstell

335 City Park Avenue

New Orleans, LA70119

Nancy Yeager

501 N. Columbia

Mandeville, LA 70448

19a

Appendix B

EXHIBITA

BRIDGE INSPECTION REPORTS WITH

ATTACHMENTS

Documents Approvaldate No. of pages

1. Structural inventory and

appraisal report 12/3/86 ]

20a

_ Appendix B

EXHIBITB

HIGHWAY ACCIDENT SAFETY DATA

Documents Approval date

. Accident data

complied by mile

post pursuant to

23 US 409 to

determine abnormal

accident locations all years

. Correspondence of

Thomas Richardson to

Louis Garrido and

attached computerized

listing for accident data for

the years 1976 thru 1985 12/1/86

. Interdepartment

memorandum from Louis

Garrido to Henry Barousse 8/15/88

No. of pages

34

21a

APPENDIX C — JUDGMENT OF THE 22ND JUDICIAL

DISTRICT COURT, STATE OF LOUISIANA DATED

MAY 13, 1993

NO: 92-11043 DIV “E”

22ND JUDICIAL DISTRICT COURT

PARISH OF ST. TAMMANY

STATE OFLOUISIANA

PAUL DOUCET, ET AL

VERSUS

HERBERT CHAMPAGNE, JR., ETAL

FILED May 12, 1993 Carol King

DEPUTY CLERK

JUDGMENT

This matter came on for hearing before this Honorable Court

on the 10th day of May, 1993 on a motion in limine to exclude

certain reports filed by the defendant, Department of

Transportation and Development. Present were:

Peter R. Borstell and Wayne E. Garrett, attorneys for Paul

Doucet, Russell Doucet and Michael Doucet and their

spouses, and

T. Gordon Sanders, Reed & Caire, attorney for the Louisiana

Department of Transportation and Development.

22a

Appendix C

The Court having reviewed the evidence offered, the oral

argument of counsel, the memoranda submitted and the record of

this matter rules as follows:

IT IS ORDERED ADJUDGED AND DECREED that the

Bridge Inspection Report’s approved July 26, 193, May 7, 1984,

May 14, 1985, August 2, 1989 and November 5, 1991 and the

lydrographic survey dated February 1, 1991, all submitted as

State Exhibit “A” at the hearing of this matter are inadmissible

and nondiscoverable pursuant to the provisions of 23 USCA 409.

JUDGMENT READ, RENDERED AND SIGNED this 13

day of May, 1993 at Covington Louisiana.

s/ A. Clayton James

JUDGE A. CLAYTON JAMES

DISTRICT COURT JUDGE, 22ND JDC

[stamped] i

A TRUE COPY

Prepared and submitted by:

T. Gordon Sanders

La. Bar No. 11705

(504) 892-9295

[stamped]

s/ Carol King

DY. CLERK 22nd Jud. Dist. Court

ST. TAMMANY PARISH