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20 court said that the documents were protected and privileged based on a similar ruling in Coniker. The plaintiffs argued that NYSDOT had waived the privi- lege associated with the documents by providing them in discovery. The court agreed that the protected documents could not be used in trial and then disal- lowed most of the plaintiffâs expert testimony because it was based exclusively on NYSDOT files. The court noted that the expert could have obtained raw data from other sources and made similar conclusions based on an independent analysis. In Coroles v. State,127 a medical malpractice case, the trial court excluded an expertâs testimony because the expert had reviewed confidential infor- mation. Relying on § 409, the appellate court found that the court should have inquired whether the expert based his opinion on inadmissible informa- tion and conducted an independent investigation of the facts, rather than automatically excluded the expert because he had been exposed to the informa- tion. The expert could testify to his opinions if they were not based on confidential information. Practice Note. Although courts likely will not allow the use of a newspaper article or data obtained by the transportation agency to evaluate the haz- ardousness of a location, a court will allow an expert to testify as to his or her own independent analysis of a location, even if that analysis began when the expert read a newspaper article. In trial, counsel should always be prepared to deal with data such as accident reports or other studies because they are frequently available from other sources, such as local or state law enforcement agencies. IV. SURVEY RESPONSES A survey was sent to all 50 states and the District of Columbia to explore their experiences with the law and provide data and insight that are not avail- able from published opinions. A copy of the survey can be found in the Appendix. Twenty-eight responses were received. As part of their responses, at least 10 states submitted motions in limine, objec- tions to discovery, trial briefs, and other motions in opposition to the release of protected information. Many of the pleadings and motions that were received in response to the survey are included as examples in the Appendix to this digest. The agencies were initially asked whether they had used § 409 to protect their data in any context, whether it be public inquiries, freedom of information requests, or litigation requests. Of the 28 responses, only 4 said § 409 had not been used in any response to any requests. States such as Arkansas and Tennessee said that when potentially protected information was released in response to a media or FOIA request, it was stamped with language such as: This document is provided pursuant to a request under the Arkansas Freedom of Information Act. This document has been created based upon data or information compiled for purposes set forth in 23 U.S.C. Sections 152, 130, 144 or 148 and pursuant to 23 U.S.C. 409 this document is not subject to discovery nor admissible into evidence in federal or state court proceedings in actions for damages.128 In those cases, the agencies are attempting to ensure that the data were not later used against them in a lawsuit. None of the agencies that reported using this type of stamp on the documents reported that the documents were later used against them in litigation. Wisconsin and Washington both require the requestor to sign a statement to the effect that the information gathered would not be used in litigation against the department, and refuse to release the information unless that statement is signed. A rep- resentative of the State of Wisconsin indicated that the requirement of the statement had not been judi- cially or otherwise challenged. It is noted that the court in Gendler, supra, mentioned that the plaintiff had been required to sign a release to obtain records of bicycle accidents. The court did not comment on the propriety of the requirement. Most of the agencies indicated that they had used § 409 as a basis for court filings such as discov- ery objections, trial briefs, motions to quash, and motions in limine. The responses showed that their counsel was usually successful in protecting safety data; however, when faced with unfavorable rulings, most agencies chose not to appeal the rulings. Texas indicated that its state courts have routinely upheld the Texas Department of Transportationâs objec- tions to producing safety documents under 23 U.S.C. § 409. The response from Washington indicated that in one instance where its courts required production of protected data, an appeal was not considered as its counsel was able to use the accident history to its advantage, and it ultimately prevailed in the case. The agencies were asked if they treated requests from the media or public any differently than other requests, such as those requests from lawyers that are likely seeking information for pending litigation. Half of the respondents indicated that all public records responses were handled through a public information office. Arizona, Hawaii, and Missouri responded that their public information office 127 2015 UT 48, 349 P.3d 739 (2015). 128 Submitted by the Chief Legal Counsel of the Arkansas State Highway and Transportation Department in response to the survey.
