# Opposition Brief — Louisiana Department of Transportation v. Doucet > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1792%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1996 - **Citation:** 517 U.S. 1120 ## Text 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 fact: athing done: as a: CRIME b obs: FEAT carchaic: ACTION 2 archaic: PERFORMANCE, DOING 3: the quality of being actual: ACTUALITY 4 a: something that has actual existence b: an actual occurrence: EVENT 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1792%3A2. Public record. Not legal advice.