Admissibility and Public Availability of Transit Safety Planning Records (2018)

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29 4 Torts and Evidentiary Protection To make accurate decisions, courts need information. The fundamental assumption is that the law has the “right to every man’s evidence” (United States v. Bryan [1950]). Nevertheless, to further important policy goals or to promote certain behaviors, the legal system creates exceptions to this principle by imposing evidentiary protections. Traditionally, they are drawn in such a way as not to impair the legal rights of individuals any more than is needed to advance the broader public policy goals. Evidentiary protec- tions can take a variety of forms, but the two main types are protection from discovery and a bar on admissibility as evidence. The committee is asked to consider whether “it is in the public inter- est, including public safety and the legal rights of persons injured in public transportation accidents, to withhold from discovery or admission into evi- dence in a Federal or State court proceeding any plan, report, data, or other information” developed “for purposes of complying with the requirements under section 5329 of title 49, United States Code, including information related to a recipient’s safety plan, safety risks, and mitigation measures.” Congress has identified at least two public interest considerations that are relevant to the question of whether to grant evidentiary protections for transit safety planning: (1) the prevention of unsafe conditions and behav- iors and (2) the ability of parties injured in public transportation accidents to be justly compensated. How the tort system and restrictions on discovery and evidence admissibility can affect each of these interests is considered next. That discussion is followed by a review of how such evidentiary re- strictions are applied in practice when they are accompanied by federal and

30 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS state open records laws that can provide a separate avenue for plaintiffs to obtain information, even when that information is barred from discovery. PUBLIC INTEREST RATIONALE FOR TORTS AND EVIDENTIARY PROTECTION The tort liability system is widely viewed as having two outcomes: (1) the achievement of corrective, or compensatory, justice by calling defendants to account for their actions through compensation of harmed parties and (2) the deterrence of dangerous or antisocial behavior. The corrective and compensatory justice outcome of tort law can be important from a societal standpoint, because a valid tort claim rights a defendant’s wrongful action in a moral sense and because injured parties may be unable to provide for themselves and their families absent the compensation.1 If the tort system is to have a deterrence effect, it should promote positive behaviors and prevent conditions that cause safety problems. If a person or organization knows that it will be held liable for taking insufficient measures to prevent harm, it may take greater precautionary measures. The extent to which exposure to tort liability actually deters unsafe be- haviors and hazardous conditions remains controversial. Empirical evidence has not conclusively linked lawsuits to the numerous variables affecting safety behavior (see Box 4-1). Furthermore, achievement of an optimal level of deterrence can be complicated in practice because it requires precise calculations of liability. On the one hand, if parties do not bear the full costs of their risky conduct—whether because some victims do not sue or juries underestimate damages—the result may be underdeterrence. For ex- ample, when harms are “small” (e.g., food poisoning), victims are unlikely to sue, and thus society bears the costs instead (Buzby et al. 2001, 26). In such cases, reliance on tort suits, which operate on an ex post and case- by-case basis, may be less effective than an ex ante system of government safety regulations. On the other hand, the award of excessive damages or an undue fear of liability may lead to overspending on safety precautions or a decision not to participate in productive activities at all. This effect is known as overdeterrence. Concern about overdeterrence is one of the often-cited grounds for placing restrictions on the safety planning, programming, and operating records that a litigant can obtain and use in court to support a claim. In the 1 Monetary damages act as a proxy for the “moral” wrong that the plaintiff suffered. Most tort cases involve only compensatory damages, which are meant to make the plaintiff “whole” in the wake of a loss. Compensatory damages include plaintiff’s medical expenses and lost wages, which help to ensure that plaintiffs do not become destitute as a result of their injuries, and damages for pain and suffering.

TORTS AND EVIDENTIARY PROTECTION 31 context of a lawsuit against a public transit agency, such claims generally involve a plaintiff—whether a passenger, a pedestrian, a person in another vehicle, or an employee—suffering injury due to (1) a person operating a transit vehicle (or having some role in its operation) in a careless or negli- Box 4-1 Tort Law and Deterrence The theory of tort law is complex, and the subject cannot be encapsulated within a few paragraphs. However, the committee did undertake a literature review to have a sense of the effect of tort law on deterrence in an attempt to support its arguments with empirical evidence. The review presented below is not intended to be a complete description of the tort law and deterrence theory. Instead, it is a summary of the literature that the committee encountered in searching for empirical evidence. Little evidence is available about tort law and deterrence within the transit industry, but more is available in other fields. Results concerning the effectiveness of torts on deterrence are mixed. To an extent, this is due to the small proportion of potential claims that end up in courts at all. Data suggest that only a small fraction of potential cases turn into claims, and an even smaller proportion into judgments against the defendant (e.g., Cardi et al. 2011; Localio et al. 1991; Rustad 1992). Rubin and Shepherd (2007) found that caps on noneconomic damages and the requirement of higher standards for punitive damages result in fewer ac- cidental deaths, which indicates that tort reform efforts may save lives. Polinsky and Shavell (2010) conclude that product liability does not affect the level of care taken. After switching from fault-based to no-fault-based insurance, some states show no effects on either fatalities or accident rates (Heaton and Helland 2009; Loughran 2001). However, other evidence shows that torts act as a deterrent. Reduced risks of medical malpractice lawsuits, due to reduced damage caps on judgments, led to higher rates of preventable adverse patient safety events in hospitals (Zabinski and Black 2015). Similarly, Weiler et al. (1993) reported that “the rate of negligent patient injuries in New York was about thirty percent less than it would have been were there no liability for medical malpractice.” Some studies have found that switching from fault-based to no-fault-based automobile insurance leads to higher fatal accident rates (Cohen and Dehejia 2004; Cummins et al. 2001); no-fault plans that effectively bar 25 percent of tort claims may increase the automobile fatality rate by up to 18 percent (Sloan et al. 1994). Some of those who have undertaken reviews of the empirical evidence in deterrence theory have found a slight but positive trend toward torts having an effect on deterrence: While the evidence is limited, “[w]hat empirical evidence there is indicates that tort law de- ters” (Landes and Posner 1987) and “there is evidence . . . showing that tort law achieves something significant in encouraging safety” (Schwartz 1994). Overall, evidence concerning the effect of tort law on deterrence is mixed, and definitive conclusions cannot be drawn.

32 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS gent manner or (2) a hazard created by deficient equipment or infrastruc- ture that the agency had a duty to operate in a reasonably safe manner. Public transit agencies may have limited or no duties to the largest class of potential plaintiffs (trespassers), depending on the state’s premises liability rules. Safety records could be relevant to a lawsuit arising from the first type of claim because they describe the operator’s procedures and systems for recognizing and responding to such performance issues. Records could be relevant to the second type of claim because they show how the agency identifies and prioritizes equipment and infrastructure issues that need to be modified or improved. The disclosure of safety records of a public entity may be desirable for a number of reasons other than supporting the deterrence and compensa- tory functions of torts. Safety records that are publicly available can be used to inform debate about the safety performance needs and priorities of the public agency—for instance, to inform legislative decisions about the resources that should be allocated to ensure safety. Publicly disclosed re- cords can also facilitate analysis by independent safety experts, which may aid in the development and deployment of safety-enhancing technologies and practices. A public transit agency may nevertheless favor protecting the records from disclosure and use in litigation to minimize exposure to financially costly tort judgments or settlements. This financial interest may appear to be parochial. It can be rationalized on broader public interest grounds on the theory that the protections will counter any tendency by the agency to refrain from engaging in publicly beneficial safety manage- ment and evaluation activities to avoid creating records that could be used against it in court. Furthermore, an agency that has been assured that its records will not be used against it in litigation may be more willing to dis- close such information publicly, which could help in realizing some of the benefits previously noted. Public entities, unlike private companies, are subject to open records laws, which can lead to an agency’s safety records being placed in the pub- lic domain, where they may be used by tort litigants to show negligence. For example, the records may contain hazard and risk analyses describ- ing safety deficiencies that had not yet been eliminated, often for budget reasons. In response to claims by states that their highway safety planning records were being used to create large financial liabilities that discouraged rigorous planning, Congress enacted evidentiary protections applying to a wide range of these records in 23 U.S.C. § 409, which is discussed in the following section in more detail. In doing so, Congress has chosen to promote safety at the possible expense of lessening the chances of a tort plaintiff prevailing or obtaining a favorable settlement. However, the valid- ity of claims that the protections lead to more rigorous safety planning to the benefit of public safety generally has not been demonstrated empirically,

TORTS AND EVIDENTIARY PROTECTION 33 similar to the controversial and mixed empirical basis of the claim of a tort deterrence effect. The evidentiary protections afforded defendants in provisions such as Section 409 do not deny a plaintiff the right to sue an agency; they only limit, through litigation discovery rules, the plaintiff’s ability to obtain certain kinds of records and to use such records in supporting a case. Because these protections (provided under 23 U.S.C. § 409) have existed for several decades, the types of records covered under the protections are reasonably well established. The law’s language refers to “reports, surveys, schedule, lists or data,” which may include a wide-ranging assortment of information. In Martinolich v. Southern Pacific Transportation Co. (1988), the court elaborated on other types of materials and evidence proscribed by Section 409: These documents may reflect mental impressions, conclusions, and opin- ions of [state transportation department] representatives regarding a survey of railroad grade crossings in need of separation, relocation, or protective devices . . . if compiled in compliance with 23 U.S.C. § 130; or mental impressions, conclusions, and opinions of [state transportation department] representatives regarding hazardous locations, sections, and elements . . . [to be assigned] priorities for the correction of such . . . and [for the implementation of] a schedule of projects for their improvement, if compiled in compliance with 23 U.S.C. § 152. But the court made clear that proscription does not extend to all records held by the defendant agency, nor does it apply to records held by others. A question relevant to the charge of this study committee is whether the rules protecting information are narrowly drawn to encourage collec- tion, analysis, and evaluation of data to improve safety while limiting loss of injured parties’ access to critical information. As discussed below, the plaintiff may have means other than discovery, including open records laws, to aid in obtaining protected records. DISCOVERY RESTRICTIONS AND OPEN RECORDS LAWS Discovery is the process by which the parties to a lawsuit can obtain in- formation and records that they would like to have for their case, with the court assisting as needed. Records can be sought in discovery from an opposing party in the case or from third parties. In cases against a transit agency, the third parties might include another agency of the state or local government, a federal agency such as the Federal Transit Administration, or private parties. Discovery rules are generally determined by the rules of the court in which the case is being tried. Federal discovery rules apply uniformly in all

34 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS federal courts. State discovery rules depend on the law in each state but tend to have much in common with one another and with federal discovery rules. In most cases, discovery is broad. A record is discoverable if it may lead to the discovery of admissible evidence, but the discovered record itself need not be admissible at trial. The court may limit discovery in cases if it concludes that the benefits likely to be obtained from producing the record are disproportionately small relative to the burden imposed on the party being asked to produce the record. That limit is probably not relevant to the majority of personal injury cases filed against public transit agencies, because the number of records is likely to be small relative to the resources available to the agency to produce them. The aforementioned federal statutory provision (Section 409) pro- tecting state highway safety data restricts the records a plaintiff can seek through discovery. An understanding of the practical effects of this restric- tion in light of federal and state open records laws is useful. Since Congress enacted the Freedom of Information Act (FOIA) (5 U.S.C. § 552) in 1966, the states have issued their own versions of open records laws that are applicable to the records of their public agencies. Generally speaking, the laws apply to any record in the possession or control of an agency, whether the agency created the record or the record was created by another gov- ernmental or nongovernmental entity. Thus, a record created by a private party that comes into the possession of a state or federal agency is subject to that entity’s open records law to the same degree that the record would be if the recipient governmental entity had created it. Because any person is allowed to ask for such a record, the govern- mental entity possessing it must make it available to the requesting person unless a specific statutory exemption restricts its disclosure. State law would govern whether a record possessed by a state agency is exempt from open records requests, whereas FOIA law would govern whether a record in pos- session by a federal agency is exempt. The exemptions are not necessarily the same under FOIA and state law. Thus, a record may be exempt from open records requests if it is held by a federal agency but not exempt if it is held by a state agency, and vice versa. Similar differences can arise among states, since their open records laws are not identical. As a consequence, whether a plaintiff can use an open records request to obtain records that are otherwise restricted from discovery varies from jurisdiction to jurisdic- tion, even if the records are in the exclusive possession of the defendant agency. The U.S. Supreme Court issued a landmark decision in 2003— Pierce County v. Guillen, 537 U.S. 129 (2003)—which held that, as long as accident reports and other data were obtained for the purposes outlined in the law, they were not discoverable or admissible in litigation. Although it restricts discovery of highway safety records, Section 409 has no effect on either federal or state open records laws. Thus, if a record

TORTS AND EVIDENTIARY PROTECTION 35 is available under those laws, Section 409 does not affect its availability through that avenue. On the surface, the availability of a record through open records laws appears to nullify the discovery protection. However, a degree of protection remains in practice because the records obtained through use of an open records request may not be as well organized and readily retrievable as those that would have been produced through discov- ery. A discovery restriction requiring a plaintiff to use an open records law may confer an advantage on a defendant agency by adding to the time and money required to litigate the case, which would make the plaintiff’s task more difficult. As a practical matter, even if they are aware that certain re- cords are retrievable through an open records law request, agency personnel may hypothetically believe that the impediments presented by the discovery restriction will deter what they see as a misuse of safety-related records by plaintiffs in litigation. The discovery restriction may therefore add to the willingness of agencies to engage in more self-critical safety analysis. Of course, plaintiffs will view the discovery restriction as unfair. Their ability to gain access to relevant records will be restricted. The result could be less accurate outcomes because of the added cost of making open records requests and the delay in obtaining the records, and some injuries caused by negligence may not be redressed. Although most tort cases are settled without a trial or ruling by a judge on the merits of the case, the barrier to obtaining relevant records efficiently through discovery will have an adverse impact on plaintiffs, whose negotiating positions will be weakened. Finally, all government agencies, federal and state, make certain safety records available to the public, even in the absence of a request, regard- less of whether the records are protected from discovery or admissible as evidence. Many records are posted on agency websites. In some cases, a law requires the agency to make certain categories of records available. In other situations, the agency decides to do so on its own because it believes that the public interest is served by transparency or because the agency sees benefits to itself and its work by making the records available. At the same time, at both the federal and the state levels, there are statutes forbidding limited categories of records from being made public, either on the agency’s own initiative or pursuant to an open records request. In almost all other situations, the agency has discretion to disclose most records. ADMISSIBILITY RESTRICTIONS Restrictions on discovery differ from restrictions on admissibility. The law can protect against the use of information, regardless of how it was ob- tained, by declaring it inadmissible as evidence. In the case of Section 409, this provision prohibits the use of covered records in support of a plaintiff’s case. While what constitutes “use” is open to interpretation, such a prohi-

36 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS bition at least bars admitting the record into evidence at trial or filing it in connection with a motion (i.e., a request to a judge for a legal ruling). Still, as a matter of common sense, once an inadmissible record is made available to the plaintiff’s attorney, the attorney is not expected to forget the informa- tion it contains. Thus, it can have value to the lawyer in questioning and cross-examining witnesses or in assessing settlement. The Section 409 admissibility restriction is noteworthy in that it is generally interpreted as an evidentiary bar applying to all parties in the dispute, although the Supreme Court has not explicitly ruled on the ques- tion. As a result, neither the plaintiff nor the defendant agency can admit the restricted records. Thus, the Section 409 admissibility restriction differs from evidentiary privileges such as the attorney–client privilege, which the privilege holder can waive. Section 409 operates automatically and without judicial balancing, and neither side can claim a compelling need and expect a court to supersede it. The distinction between a two-way (absolute) admissibility bar (like Section 409) and an evidentiary privilege that can be waived by the de- fendant can be significant, because the former can hinder the defendant (whose records are being protected) as it tries to support its own case. Indeed, officials from two transit agencies who briefed the study commit- tee (see Box 4-2) reported that they can now use records from their safety planning and programming activities in defending a claim in court. How- ever, imposition of a Section 409–like bar on the records associated with such activities would prohibit the admissibility of this information when offered by the agency. Thus, any decision about an evidentiary restriction that would apply to transit agency safety information would need to be clear about the degree to which the restriction is intended to be absolute or waivable. Congress would need to decide whether the provision should be a two-way bar or a one-way privilege. If it is the latter, decisions would be needed as to whether the protection can be waived on a record-by-record or a case-by-case basis and whether any waiver must apply to all records, including those that may be helpful as well as those that may be harmful to the litigants. The creation of a pretrial discovery restriction, unlike an admissibility restriction, does not present such choices about one- or two-way applica- bility. This is because the defendant will already possess the record being sought by the plaintiff. No discovery restriction can be construed as a two-way bar because the court could not, as a practical matter of enforce- ment, keep the defendant from benefiting from the record in preparing its case. The more relevant issue is whether the discovery restriction should be treated as a privilege and hence waivable on a record-by-record or case-by- case basis. The study committee is not aware of any definitive sources of information on the number of cases in which a defendant in possession of

TORTS AND EVIDENTIARY PROTECTION 37 a record covered by Section 409 failed or chose not to object to its discov- ery. Similarly, the committee is not aware of anyone raising objections or threatening a highway agency with sanctions for not insisting on protect- ing the record as permitted by Section 409. Again, as with an admissibility Box 4-2 Transit Agency Comments on Evidentiary Protections The following comments were made to the committee by transit agencies during the course of information-gathering committee meetings. The Chicago Transit Authority (CTA) provides 1.6 million rides per day and is one of the nation’s largest public transit agencies. The system operates nearly 2,000 buses and a heavy rail transit system with an annual operating budget of more than $1.5 billion (CTA 2017). The system’s General Counsel stated that plaintiffs should be entitled to any underlying data during an incident, including weather reports, police reports, and basic incident reporting. Beyond that, the agency believes that reports and analyses can be highly subjective and prefers that they not be subject to discovery, admission, or even open records law. TriMet, the transit agency serving metropolitan Portland, Oregon, is signifi- cantly smaller than CTA but had similar concerns. The agency provides slightly more than 300,000 rides per day through its bus, light rail, commuter rail, and paratransit services (TriMet 2017). Approximately 1,300 claims are made against the system each year, and it has paid out approximately $1.6 million annually. In discussions with the committee, the agency’s Senior Deputy General Counsel described documents such as safety-related plans, reports, data, and analyses as a “plentiful source of evidence for claimants” (Skillman 2017). In contrast, the Nashville Metropolitan Transit Authority (MTA) prefers that evidentiary protection not be enacted. As described to the committee, the under- lying possibility of liability will encourage employees to be invested in fixing, maintaining, and recording information about the system and its safety perfor- mance. Nashville MTA’s system provides approximately 30,000 daily rides on 174 buses and is almost entirely based on buses (Nashville MTA 2017), and its primary source of liability is traditional traffic crashes. The system is aware of the lack of maturity in its safety program in comparison with that of some of the country’s larger and more multimodal systems. The Utah Transit Authority, which serves 150,000 daily trips with 500 buses, 8 light rail lines, and 1 commuter rail line in the Salt Lake metropolitan area (UTA 2017), already has a robust safety management system. The agency focuses on safety, security, and emergency management issues and has publicly available policies and plans for each of these topic areas. In general, the agency is open to discovery and admissibility except for security- and safety-sensitive information, such as the number and deployment strategies of police and emergency response procedures, and has not found that identifying issues creates a disincentive to solving them.

38 ADMISSIBILITY AND AVAILABILITY OF TRANSIT SAFETY PLANNING RECORDS restriction, it is important that legislators make clear whether the discovery restriction is a nonwaivable bar or a waivable privilege. There are other matters to be considered relating to the advisability of provisions like Section 409. First, because this provision is contained in fed- eral law, it applies to all state and federal courts, and all states must comply unless there is a specified right to opt out. However, in the absence of such a federal provision, any state would have been free to enact a law that has some or all of the features of Section 409. State legislatures could thus enact protections that consist of special rules on discovery or admissibility for transit safety records. However, if a federal statutory provision similar to Section 409 is enacted for transit, all states would need to comply, whether they (and their state and local transit agencies) want the protections or not. Finally, a state can allay the concerns of transit agencies and other public entities about the risk of excessive tort judgments by using means other than an admissibility bar. States can statutorily vest public agencies with sovereign immunity from tort actions, and the degree to which they do so ranges from zero to absolute. The state can impose caps on monetary damages, either in conjunction with limited sovereign immunity or as a stand-alone protection. The state could also enact an economic defense to liability that applies to situations such as a lack of funds being the reason an agency could not fix the deficient equipment or infrastructure that caused the injury. Similarly, it could create a defense that the exercise of discretion by an employee of the defendant in making policy choices does not give rise to liability against the employer, even if the choice caused the injury to the plaintiff. Although such laws would result in more victims going uncompensated, there is nothing to preclude a state from enacting them, and some states have done so.2 REFERENCES Abbreviations CTA Chicago Transit Authority MTA Metropolitan Transit Authority NCSL National Conference of State Legislatures TriMet Tri-County Metropolitan Transportation District of Oregon UTA Utah Transit Authority 2 Wisconsin and other states are among them (NCSL 2018).

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