Ernest R. Gremillion, Jr. v. Kansas City Southern Railway Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-493

ERNEST R. GREMILLION, JR., ET AL.

VERSUS

KANSAS CITY SOUTHERN RAILWAY
COMPANY, ET AL.

**********

ON WRIT OF REVIEW FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2004-5970-B
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

AS REMANDED BY THE SUPREME COURT OF LOUISIANA

**********
MARC T. AMY
JUDGE
**********

Court composed of John D. Saunders, Oswald A. Decuir, and Marc T. Amy, Judges.

WRIT GRANTED. REMANDED.

Patrick A. Talley, Jr.
1100 Poydras, 3600 Energy Centre
New Orleans, LA 70163-3600
(504) 599-8000
COUNSEL FOR:
Association of American Railroads, Amicus Curiae

Louis P. Warchot
Daniel Saphire
50 F Street, N.W.
Washington, DC 20001
COUNSEL FOR:
Association of American Railroads, Amicus Curiae

Charles C. Foti, Jr.
Attorney General
Post Office Box 94005
Baton Rouge, LA 70804
(225) 326-6000
COUNSEL FOR:
State of Louisiana, through the
Department of Transportation and Development

Judith M. Williams
Assistant Attorney General
Louisiana Department of Justice
Division of Risk Litigation
Post Office Box 1710
Alexandria, LA 71309
(318) 487-5944
COUNSEL FOR:
State of Louisiana, through the
Department of Transportation and Development

Elizabeth S. Hardy
Thomas & Hardy
2380 Lake Street
Lake Charles, LA 70601
(337) 433-4903
COUNSEL FOR:
Ernest R. Gremillion, Jr.
Duane A. Gremillion
Jacqueline Gremillion Lambert
Louis M. Gremillion

Robert A. Johnson
Post Office Box 468
Marksville, LA 71351
(318) 253-0935
COUNSEL FOR:
Louis M. Gremillion
Ernest R. Gremillion, Jr.
Duane A. Gremillion
Jacqueline Gremillion Lambert

Shelly D. Dick
Forrester, Jordan & Dick
7809 Jefferson Highway, Building G
Baton Rouge, LA 70809
(225) 928-5400
COUNSEL FOR:
Kansas City Southern Railway Co.

2

Kevin M. Dills
Davidson, Meaux, Sonnier & McElligott
Post Office Drawer 2908
Lafayette, LA 70502
(337) 237-1660
COUNSEL FOR:
BNSF Railway Company, Amicus Curiae
Union Pacific Railroad Company, Amicus Curiae

3

AMY, Judge.

The State filed an application for supervisory writs with this court after the trial

court rescinded a protective order originally imposed pursuant to 23 U.S.C. § 409.

The trial court explained that it was rescinding the protective order due to this court’s

ruling in Hargrove v. Missouri Pacific Railroad Co., 05-723 (La.App. 3 Cir. 1/18/06),

925 So.2d 25. This court granted the State’s application and reinstated the protective

order. The Louisiana Supreme Court granted Kansas City Southern Railway’s writ

application and remanded the matter to this court for briefing, argument, and full

opinion in light of Hargrove, 925 So.2d 25, and Hargrove v. Missouri Pacific

Railroad Co., 03-818 (La.App. 3 Cir. 12/17/03), 861So.2d 903, writ denied, 04-0187

(La. 3/26/04), 871 So.2d 349. After consideration, we again grant the State’s

application, reinstate the protective order, and remand with instructions.

Factual and Procedural Background

This writ application involves a protective order issued in a case stemming

from an automobile/train collision at a railroad crossing in Simmesport, Louisiana

which resulted in the death of Barbara Gremillion. In January 2004, Mrs.

Gremillion’s family filed suit against Kansas City Southern Railway Company (KCS)

and the State of Louisiana, Department of Transportation and Development for

allegedly breaching their duties to maintain and provide adequate warning at the

crossing.

In response to KCS’s motion to compel discovery, the State filed a motion for

protective order and argued that the documents sought were protected by 23 U.S.C.

§ 409. The trial court granted the motion for protective order and denied KCS’s

motion to compel discovery. Thereafter, KCS filed a motion to reconsider the

protective order. It argued that this court’s decision in Hargrove, 925 So.2d 25,

rendered in January 2006, recognized a jurisprudential exception to the protection of

23 U.S.C. § 409. KCS argued that Hargrove permitted the production of the State’s

documents insofar as they pertain to the question of whether federal funds were used.

The trial court granted the motion and rescinded the previously entered protective

order. The trial court also granted KCS’s motion to compel and ordered that the State

produce all files and/or documents pertaining to the site and stating that the

production was “for the express and limited purpose of determining whether or not

federal funds participated in the installation of advanced warnings” at the crossing.

The trial court further ordered that the documents be stamped as privileged and that

the originals and all copies of the documents be returned to the State.

The State filed an application for supervisory writs with this court. This court

granted the writ application and reinstated the protective order as follows:

WRIT GRANTED AND MADE PEREMPTORY.
We find the trial court erred in rescinding its prior protective order. In
the case at bar, the trial court lifted a protective order previously issued
by the trial court pursuant to 23 U.S.C. § 409. The trial court so ruled
based on the erroneous contention advanced in a motion for
reconsideration filed on behalf of the respondent, Kansas City Southern
Railway Company, that this court’s decision in Hargrove v. Missouri
Pacific Railroad Co., 05-723 (La.App. 3 Cir. 1/18/06), [925] So.2d [25],
recognized an exception for the limited purpose of determining whether
federal funds were used. Therefore, we hereby reverse the ruling of the
trial court rescinding the protective order in favor of defendant, State of
Louisiana through the Department of Transportation and Development
and reinstate the previously entered protective order.

See Gremillion v. Kansas City So. Ry. Co., an unpublished writ rendered May 1, 2006

and bearing the docket number 06-493.

The Louisiana Supreme Court granted KCS’s writ application and remanded

the matter to this court as follows:

Granted and remanded to the court of appeal for briefing, argument and
full opinion. In its opinion, the Court is specifically directed to address

2

its prior decision in Hargrove v. Missouri Pacific Railroad Co., 03-0818
(La. App. 3 Cir. 12/17/03), 861 So.2d 903, writ denied, 04-0187 (La.
3/26/04), 870 So.2d 349, and Hargrove v. Missouri Pacific Railroad Co.,
05-0723 (La. App. 3 Cir. 1/18/06), 925 So.2d 25.

See Gremillion v. Kansas City So. Ry. Co., 06-1289 (La. 9/15/06), 937 So.2d 372.

Discussion

This case presents the question of whether an exception regarding federal

funding exists to the privilege afforded by 23 U.S.C. § 409, which provides:

§ 409. Discovery and admission as evidence of certain reports
and surveys

Notwithstanding any other provision of law, reports, surveys, schedules,
lists, or data compiled or collected for the purpose of identifying,
evaluating, or planning the safety enhancement of potential accident
sites, hazardous roadway conditions, or railway-highway crossings,
pursuant to sections 130, 144, and 148 of this title or for the purpose of
developing any highway safety construction improvement project which
may be implemented utilizing Federal-aid highway funds shall not be
subject to discovery or admitted into evidence in a Federal or State court
proceeding or considered for other purposes in any action for damages
arising from any occurrence at a location mentioned or addressed in
such reports, surveys, schedules, lists, or data.

Thus, as relevant to railway crossings, the supreme court has explained that the

privilege/protection of § 409 applies to:

(1) reports, surveys, schedules, lists or data,

(2) compiled or collected,

(3) for the purpose of identifying, evaluating, or planning the safety
enhancement of . . . railway-highway crossings,

(4) pursuant to 23 U.S.C. § 130.

Palacios v. Louisiana Delta R.R, Inc., 98-2932, p. 8 (La. 7/2/99), 740 So.2d 95, 99

(footnote omitted). The supreme court has further explained that the purpose of § 409

is to “[f]oster the free flow of safety-related information by precluding the possibility

that such information later would be admissible in civil suits. The interest to be

3

served by such legislation is to obtain information with regard to the safety of

roadways free from the fear of future tort actions.” Reichert v. State, Dep’t of Transp.

and Dev., 96-1419, p. 4 (La. 5/20/97), 694 So.2d 193, 197 (quoting Perkins v. Ohio

Dep’t of Transp., 65 Ohio App.3d 487, 584 N.E.2d 794 (1989)).

In Long v. State ex rel. Department of Transportation and Development, 04-

0485 (La. 6/29/05), 916 So.2d 87, the supreme court addressed the question of

whether § 409 precludes the admission of correspondence between the state and a

municipality regarding proposed railway upgrades. While the court concluded that

the correspondence in that case was protected by the § 409 privilege, it cautioned

that:

[A]ll letters in the file of the DOTD are not protected by virtue of being
in its possession. Rather the purpose of the document, no matter in
whose possession, must relate to purposes as defined in 23 U.S.C. §§§
130, 144 or 152. [Pierce County v. Guillen, 537 U.S. 129, 123 S.Ct. 720
(2003).] The privilege afforded to state agencies in § 409 and the
documents at issue must not be viewed in a vacuum; rather, inquiry
should be directed toward the purpose for which the documents are
created.

Id. at 100. The issue of federal funding as it relates to pre-emption of state tort law

causes of action was not specifically addressed in Long.

However, the cautious approach to § 409 expressed above was followed in this

court’s two opinions in Hargrove insofar as the purpose behind the collection of the

documents sought was considered. When this court first considered Hargrove, 861

So.2d 903 (hereinafter Hargrove I), the panel evaluated whether the documents were

subject to the § 409 privilege. The panel found that the documents were not compiled

or collected for safety enhancement purposes, as is required by § 409 and the factors

enunciated by the supreme court in Palacios, 740 So.2d 95. Rather, the documents

were compiled to show compliance with 23 C.F.R. §§ 646.214(b)(3) and (4). These

4

regulations were promulgated under 23 U.S.C. § 130 and address the adequacy of

warning devices installed using federal funds and, accordingly, relate to whether state

law tort law claims are pre-empted. See Norfolk Southern Ry. Co. v. Shanklin, 529

U.S. 344, 120 S.Ct. 1467 (2000). As the documents were compiled for purposes

outside the scope of § 409, they were not subject to its privilege. The matter was

remanded for further proceedings.

When Hargrove I was remanded, the railroad filed a motion asserting that

federal funds had been used at the crossing and, thus, the plaintiffs’ state tort law

claims were pre-empted. The trial court granted the motion, finding the claims pre-

empted. The matter returned to this court in 2006, after the plaintiffs appealed the

determination. See Hargrove, 925 So.2d 25 (hereinafter Hargrove II). In one of their

assignments of error, the plaintiffs asserted that the documents submitted by the

railroad in support of its pre-emption argument were privileged under § 409 and, thus,

should not have been considered by the trial court. Id. This court again confirmed

that the documents were not subject to the § 409 privilege and noted that it had

previously rejected the argument due to the collection of the documents for purposes

of demonstrating pre-emption. Id.

Confusion arose in the present case due to Hargrove II’s inclusion of language

from the trial court which contained a reference to a § 409 “exception.” Neither

Hargrove opinion from this court, nor the case cited therein, see Shanklin v. Norfolk

S. Ry. Co., 173 F.3d 386 (6th Cir. 1999), reversed on other grounds, 529 U.S. 344,

120 S.Ct. 1467 (2000), created an exception to § 409. Rather, both Hargrove

opinions found the § 409 privilege inapplicable insofar as the party seeking

protection failed to demonstrate that the requisites of the section were met. In short,

5

Hargrove I and Hargrove II held that the documents at issue in that case were not

compiled or collected for the purpose of identifying, evaluating, or planning the

safety enhancement of the railway-highway crossing. Thus, through application of

the wording of § 409, the section was inapplicable, and the documents were not

privileged. We do not revisit the merits of either Hargrove opinion insofar as they

addressed the individual documents at issue in that case.

With this background in mind, we return to the present case. After the release

of Hargrove II, KCS filed for reconsideration of the trial court’s earlier determination

that the materials at issue were subject to the § 409 privilege. The trial court granted

the motion for reconsideration, finding that Hargrove II, recognized an “exception”

to the § 409 privilege. Thus, the trial court rescinded the previously entered protective

order. In this regard, and for the reasons expressed above, the trial court erred.

Again, and despite language in Hargrove II that apparently led the trial court to

reverse its previous ruling, there is no exception to § 409 pertaining to the funding

issue. We again grant the writ application wherein the trial court lifted its protective

order.

However, given the contents of the writ application, we are unable to resolve

the question of whether the trial court was correct in its original determination that

§ 409 was applicable to the documents. This issue of the original ruling was not

squarely presented to this court in either the initial writ application or in the filings

on remand. Rather, the application and opposition were focused on the question of

the trial court’s reconsideration of the previously entered protective order. As the

writ application does not offer the documents sought, nor is the review process

originally employed by the trial court apparent, we are unable to determine whether

6

§ 409 is applicable to the documents. Accordingly, we remand this matter and

instruct the trial court to conduct a hearing and inspection of the documents sought

by KCS. Should it determine that, consistent with its initial ruling, the documents

satisfy the requirements of § 409, the protective order should be maintained.

However, if the trial court examines the documents and determines that the

documents were compiled for purposes outside of the scope of § 409, the protective

order should be revoked for this limited purpose.

DECREE

For the foregoing reasons, the writ application is granted. Costs of this

proceeding are assessed to the respondent, Kansas City Southern Railway Company.

The matter is remanded to the trial court for further proceedings consistent with the

instructions contained herein.

WRIT GRANTED. REMANDED.

7