Privileged Reports Under The Federal Railroad Safety Act

In diversity negligence railroad-crossing accident case, admitting reports of other accidents that occurred at the same crossing because they were relevant to the defendant's alleged failure to warn; under the "federal statute" portion of FRE 501, although the Federal Railroad Safety Act (FRSA) precluded use of an accident report in suits seeking “damages resulting from a matter mentioned in the report,” the “matter” that was statutorily privileged from disclosure concerned only the report on the accident in suit, and not other accidents that had occurred over the decades at the same location, in Zimmerman v. Norfolk Southern Corp., __ F.3d __ (3d Cir. Jan. 23, 2013) (No. 11-3369)

In the Advisory Committee Notes regarding the adoption of FRE 501 -- a general rule for privileges -- the drafters noted a "recognition of" certain privileges that are and "should be determined on a case-by-case basis." FRE 501 itself explicitly exempted from its operation privileges "provided by Act of Congress." One area of statutory privilege that does not itself arise under the FRE concerns federal regulation of the railroads. In this area, a concern with the data collection necessary for regulation is often reflected in limits placed on use of information from accident reports in subsequent civil litigation. Recently, the Third Circuit considered a case that involved just such a statutory privilege for railroad accident reports under 49 U.S.C. § 20903. This statute -- part of the Federal Railroad Safety Act (FRSA) -- mandated that railroad accident reports not be admitted "in a civil action for damages resulting from a matter mentioned” in the report.

In the case, plaintiff Zimmerman sued the defendant railroad Norfolk after his motorcycle collided with a train he allegedly did not see while approaching a train crossing. His state negligence tort claim case, which was based on a failure to warn, was removed to federal court and summary judgment was granted to the defendant. The plaintiff appealed contending that the trial judge had improperly excluded certain reports regarding the accident site.

The circuit summarized "ten Department of Transportation accident reports" and the evidence excluded as privileged as:

The reports cover accidents that occurred at the Diller Avenue crossing over the past few decades, from a minor collision in 1975 to Zimmerman's crash in 2008. The reports describe the conditions of the accident—weather, number of injuries, time of day, and so on. And they list the classification of the track at the crossing: four reports state that the track was Class 2, one that it was Class 3, and five—all from the 1970s—that it was Class 1. The ten reports provide at least mixed evidence that the crossing was Class 1 and thus that the Norfolk Southern train was speeding. Even so, the District Court excluded the reports based on another evidentiary privilege: that contained in 49 U.S.C. § 20903.
Zimmerman, __ F.3d at __ (footnote omitted).

The statute, in its entirety, provided:

§ 20903. Reports not evidence in civil actions for damages
No part of an accident or incident report filed by a railroad carrier under section 20901 of this title or made by the Secretary of Transportation under section 20902 of this title may be used in a civil action for damages resulting from a matter mentioned in the report.
Zimmerman, __ F.3d at __ (quoting 49 U.S.C. § 20903).

As this evidence supported the contention that the defendant was speeding, its admission could have defeated the grant of summary judgment to the defendant on part of the claim. The circuit admitted that even with admission of this evidence, the plaintiff's "claim is far from a slam-dunk," but that the accuracy of the report is for "the province of a jury" and not the judge in granting the defendant's motion for summary judgment.

The circuit noted that one major disagreement regarding the applicability of the privilege existed between the parties. The plaintiff acknowledged the privilege, but contended that it applied to "only the report of his accident, not the nine other reports." This contention was based on a statutory interpretation that "the privilege does not exclude accident reports from all civil cases. It merely excludes reports from civil cases that result 'from a matter mentioned in the report.'" This interpretation would mean that the plaintiff's "'civil action for damages' arose from the accident mentioned in his report, but it did not arise from the accidents mentioned in the remaining nine reports. We agree that these [nine remaining] reports fall outside the privilege."

The circuit rejected the defendant's contention that the privilege should be interpreted "broadly." The defendant contended that what was privileged under § 20903 was "not simply ... 'the accident mentioned in the report,” but

...also means '"the location mentioned in the report." The privilege therefore excludes all ten reports, since Zimmerman's lawsuit is “a civil action for damages resulting from a matter”—or location, the Diller Avenue crossing—“mentioned in the report[s].” This argument is unpersuasive because Norfolk Southern takes the word “matter” completely out of context. The phrase “damages resulting from” appears directly before the word “matter,” indicating that a “matter” is the event that caused the harm discussed in the report. We conclude that § 20903 excludes the report of Zimmerman's accident but not the nine other reports."
Zimmerman, __ F.3d at __ (citing Lee v. Nat'l R.R. Passenger Corp. (Amtrak), No. 3:10–cv–00392, 2012 WL 130267, at *2 (S.D.Miss. Jan.17, 2012) (holding that § 20903 does not apply to prior accident reports at the same crossing)).

Unlike other statutory privileges, the one at issue in Zimmerman was fairly straight forward in application. Usually congressional statutes providing a statutory privilege are ambiguous as to whether they apply to the government only or also to other parties in a case. The § 20903 privilege appears to apply to any "civil action for damages," -- state or federal -- thus precluding its use of the reports as evidence of liability, but not necessarily for non-liability purposes, such as for purposes of impeachment or refreshing a witness's recollection.


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