Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
Committee to Review Evidentiary Protection for Public Transportation Safety Program Information
Transportation Research Board Special Report 326 Subscriber Categories Public Transportation (PT), Law (LAW), Safety and Human Factors (SHF) Transportation Research Board publications are available by ordering individual publications directly from the TRB Business Office, through the Internet at www. TRB.org or nationalacademies.org/trb, or by annual subscription through organi- zational or individual affiliation with TRB. Affiliates and library subscribers are eligible for substantial discounts. For further information, contact the Transporta- tion Research Board Business Office, 500 Fifth Street, NW, Washington, DC 20001 (telephone 202-334-3213; fax 202-334-2519; or e-mail TRBsales@nas.edu). Copyright 2018 by the National Academy of Sciences. All rights reserved. Printed in the United States of America This publication was reviewed by a group other than the authors according to the procedures approved by a Report Review Committee consisting of members of the National Academy of Sciences, the National Academy of Engineering, and the National Academy of Medicine. This study was sponsored by the Federal Transit Administration and by the U.S. Department of Transportation. International Standard Book Number-13: 978-0-309-47755-0 International Standard Book Number-10: 0-309-47755-7 Digital Object Identifier: https://doi.org/10.17226/25144 Library of Congress Control Number: 2018946496
The National Academy of Sciences was established in 1863 by an Act of Congress, signed by President Lincoln, as a private, nongovernmental institu- tion to advise the nation on issues related to science and technology. Members are elected by their peers for outstanding contributions to research. Dr. Marcia McNutt is president. The National Academy of Engineering was established in 1964 under the charter of the National Academy of Sciences to bring the practices of engineering to advising the nation. Members are elected by their peers for extraordinary con- tributions to engineering. Dr. C. D. Mote, Jr., is president. The National Academy of Medicine (formerly the Institute of Medicine) was established in 1970 under the charter of the National Academy of Sciences to advise the nation on medical and health issues. Members are elected by their peers for distinguished contributions to medicine and health. Dr. Victor J. Dzau is president. The three Academies work together as the National Academies of Sciences, Engi neering, and Medicine to provide independent, objective analysis and advice to the nation and conduct other activities to solve complex problems and inform public policy decisions. The National Academies also encourage education and research, recognize outstanding contributions to knowledge, and increase public understanding in matters of science, engineering, and medicine. Learn more about the National Academies of Sciences, Engineering, and Medicine at www.nationalacademies.org. The Transportation Research Board is one of seven major programs of the National Academies of Sciences, Engineering, and Medicine. The mission of the Transportation Research Board is to increase the benefits that transportation contributes to society by providing leadership in transportation innovation and progress through research and information exchange, conducted within a setting that is objective, interdisciplinary, and multimodal. The Boardâs varied activi- ties annually engage about 7,000 engineers, scientists, and other transportation researchers and practitioners from the public and private sectors and academia, all of whom contribute their expertise in the public interest. The program is supported by state transportation departments, federal agencies including the component administrations of the U.S. Department of Transportation, and other organizations and individuals interested in the development of transportation. Learn more about the Transportation Research Board at www.TRB.org.
Consensus Study Reports published by the National Academies of Sciences, Engi neering, and Medicine document the evidence-based consensus on the studyâs statement of task by an authoring committee of experts. Reports typi- cally include findings, conclusions, and recommendations based on information gathered by the committee and the committeeâs deliberations. Each report has been subjected to a rigorous and independent peer-review process and it represents the position of the National Academies on the statement of task. Proceedings published by the National Academies of Sciences, Engineering, and Medicine chronicle the presentations and discussions at a workshop, symposium, or other event convened by the National Academies. The statements and opinions contained in proceedings are those of the participants and are not endorsed by other participants, the planning committee, or the National Academies. For information about other products and activities of the National Academies, please visit www.nationalacademies.org/about/whatwedo.
v COMMITTEE TO REVIEW EVIDENTIARY PROTECTION FOR PUBLIC TRANSPORTATION SAFETY PROGRAM INFORMATION Members Michael S. Townes, retired, Chair Edward K. Cheng, Vanderbilt Law School, Nashville, Tennessee Thomas B. Deen (NAE), Consultant, Stevensville, Maryland Julie S. Hile, Hile Group, Normal, Illinois Gerald Kelley, Consultant, Watertown, Massachusetts John C. Milton, Washington State Department of Transportation, Olympia Alan B. Morrison, The George Washington University Law School, Washington, D.C. Staff Katherine Kortum, Study Director, Transportation Research Board Thomas R. Menzies, Jr., Acting Director, Consensus and Advisory Studies, Transportation Research Board Stephen Godwin, Scholar, Transportation Research Board Amelia Mathis, Senior Program Assistant, Transportation Research Board Robert J. Shea, Senior Program Officer, Transportation Research Board Kathi Grasso, Director, Committee on Law and Justice Steven Kendall, Program Officer, Committee on Science, Technology, and Law
COMMITTEE ON LAW AND JUSTICE Members Robert D. Crutchfield, University of Washington, Seattle, Chair Sally S. Simpson, University of Maryland, College Park, Vice Chair Preeti Chauhan, John Jay College of Criminal Justice, New York City, New York KimberlÃ© W. Crenshaw, University of California, Los Angeles John J. Donohue III, Stanford Law School, Stanford, California Mark S. Johnson, Howard University, Washington, D.C. Mark A. R. Kleiman, New York University, New York City James P. Lynch, University of Maryland, College Park Karen Mathis, University of Denver, Colorado Daniel S. Nagin, Carnegie Mellon University, Pittsburgh, Pennsylvania Anne Morrison Piehl, Rutgers University, New Brunswick, New Jersey Stephen Raphael, University of California, Berkeley Laurie O. Robinson, George Mason University, Fairfax, Virginia Cynthia Rudin, Duke University, Durham, North Carolina Susan B. Sorenson, University of Pennsylvania, Philadelphia Linda Teplin, Northwestern University, Chicago, Illinois Heather Ann Thompson, University of Michigan, Ann Arbor Bruce Western (NAS), Harvard University, Cambridge, Massachusetts Staff Kathi L. Grasso, Director Malay Majmundar, Associate Director Emily Backes, Program Officer Tina M. Latimer, Program Coordinator Leticia Garcilazo Green, Senior Program Assistant vi
COMMITTEE ON SCIENCE, TECHNOLOGY, AND LAW Members David Baltimore (NAS/NAM), California Institute of Technology, Pasadena, Co-Chair David S. Tatel, U.S. Court of Appeals for the District of Columbia Circuit, Co-Chair Thomas D. Albright (NAS), Salk Institute for Biological Studies, San Diego, California Ann Arvin (NAM), Stanford University, Stanford, California Joe S. Cecil, Federal Judicial Center (retired), Washington, D.C. R. Alta Charo (NAM), University of WisconsinâMadison Harry T. Edwards, U.S. Court of Appeals for the District of Columbia Circuit Charles Elachi (NAE), California Institute of Technology (Emeritus), Pasadena Jeremy Fogel, Federal Judicial Center, Washington, D.C. Henry T. Greely, Stanford University, Stanford, California Michael Imperiale, University of Michigan, Ann Arbor Robert S. Langer (NAS/NAE/NAM), Massachusetts Institute of Technology, Cambridge Goodwin Liu, California Supreme Court, San Francisco Judith Miller, Independent Consultant, Washington, D.C. Jennifer Mnookin, University of California, Los Angeles, School of Law Martine A. Rothblatt, United Therapeutics, Silver Spring, Maryland Joshua R. Sanes (NAS), Harvard University, Cambridge, Massachusetts William B. Schultz, Zuckerman Spaeder LLP, Washington, D.C. Susan S. Silbey, Massachusetts Institute of Technology, Cambridge David Vladeck, Georgetown University Law Center, Washington, D.C. Susan Wessler (NAS), University of California, Riverside Staff Anne-Marie Mazza, Senior Director Steven Kendall, Program Officer Karolina Konarzewska, Program Coordinator vii
ix Preface Section 3021 of the Fixing Americaâs Surface Transportation Act of 2015 calls on the Secretary of Transportation to contract with the Transportation Research Board (TRB) to convene a committee of experts to evaluate whether it is in the public interest, including public safety and the legal rights of persons injured in public transportation accidents, to withhold from discovery or admission into evidence in a Federal or State court proceeding any plan, report, data, or other information or portion thereof, submitted to, developed, produced, collected, or obtained by the Secretary of Transportation or the Secretaryâs representative for purposes of complying with the requirements under section 5329 of title 49, United States Code, including information related to a recipientâs safety plan, safety risks, and mitigation measures. The U.S. Department of Transportation (USDOT) contracted with the National Academies of Sciences, Engineering, and Medicine (the National Academies) to conduct the study. The study charge is presented in full and discussed in detail in Chapter 1. To conduct the study, the National Academies convened a seven- member committee of experts in law, public policy (including public ben- efits of transparency and disclosure), transit operations, and safety, led by Michael S. Townes, currently retired. The content and findings of the report represent the consensus effort of the members, who served uncompensated in the public interest. Committee members convened four times from April 2017 to December 2017. Data-gathering sessions included briefings by the
x PREFACE Federal Transit Administration (FTA), transit agencies, congressional staff, transit union representatives, and lawyers engaged in relevant work. ACKNOWLEDGMENTS The committee thanks the many individuals and organizations who con- tributed to its work. The USDOT liaison for the study was Roy Chen of FTA. Chen pro- vided contract oversight. Kim Burtch, Michael Coplen, Candace Key, Aloha Ley, and Lynn Spencer of FTA also provided briefings to the committee. Congressional staff briefing the committee included Homer Carlisle and Jen Deci of the Senate Banking Committee and Caryn Lund and Auke Mahar-Piersma of the House Transportation and Infrastructure Committee. Transportation industry representatives briefing the committee included Linda Ford of the American Public Transportation Association, Jennifer Mayo and Hannah Needleman of the Federal Highway Administration, John Milton of the Washington State Department of Transportation (who later joined the committee as a member after another member stepped down), and Jordan Multer of the USDOT Volpe National Transportation Systems Center. Transit agency representatives included Dave Goeres of the Utah Transit Authority, Rita Roberts-Turner of the Nashville Metropolitan Transit Authority, Karen Seimetz of the Chicago Transit Authority, and Gregory Skillman of TriMet (Portland). Members of the legal profession briefing the committee included Paul Rheingold of Rheingold Giuffra Ruffo & Plotkin LLP; Lawrence Simon of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, PC; and Kirk Van Tine of Baker Botts LLP. The committee invited other individuals to make presentations on mat- ters relevant to the study: Sawyer Baker of the Washington Metropolitan Area Transportation Authorityâs Ridersâ Advisory Council for a public perspective and Keira McNett of the Amalgamated Transit Union for a labor union perspective. Katherine Kortum and Thomas R. Menzies, Jr., were the principal project staff. Kortum managed the study and drafted the report under the guidance of the committee and the supervision of Menzies, acting director, Consensus and Advisory Studies, TRB. Stephen Godwin provided con- ceptual and drafting support. Amelia Mathis provided extensive support to the committee in arranging its meetings and in managing documents. Kathi Grasso of the Committee on Law and Justice and Steven Kendall of the Committee on Science, Technology, and Law provided input and assistance with regard to the reportâs content and findings. The committee acknowledges Norman Solomon, who edited the report.
PREFACE xi This report was reviewed in draft form by individuals chosen for their diverse perspectives and technical expertise. The purpose of this indepen- dent review is to provide candid and critical comments that will assist the National Academies in making each published report as sound as possible and to ensure that it meets the institutional standards for quality, objectiv- ity, evidence, and responsiveness to the study charge. The review comments and draft manuscript remain confidential to protect the integrity of the de- liberative process. The committee thanks the following individuals for their review of this report: Richard Bacigalupo, Cardinal Infrastructure, LLC, Orange, California; Sara Rollet Gosman, University of Arkansas School of Law, Fayetteville; Jordan Multer, USDOT Volpe National Transportation Systems Center, Cambridge, Massachusetts; Robert Peck, Center for Con- stitutional Litigation, New York City, New York; Bruce Smith, Apperson Crump PLC, Memphis, Tennessee; and Mike Tardif, Freimund Jackson & Tardif PLLC, Olympia, Washington. Although the reviewers listed above provided many constructive com- ments and suggestions, they were not asked to endorse the conclusions or recommendations of this report, nor did they see the final draft before its release. The review of this report was overseen by Ellen Clayton, co- chair of the National Academiesâ Report Review Committee, and National Academy of Sciences member Susan Hanson, Clark University (emerita), Worcester, Massachusetts. They were responsible for making certain that an independent examination of this report was carried out in accordance with the standards of the National Academies and that all review comments were carefully considered. Responsibility for the final content rests entirely with the authoring committee and the National Academies.
xiii Contents Executive Summary 1 1 Introduction 5 Motivation for This Study, 5 Request for This Study, 10 2 Background on the U.S. Public Transit Sector and Its Safety Performance 13 Composition of the U.S. Transit Industry, 13 Transit Safety Record Generally, 16 Concerns About Transit Safety Management and Oversight, 18 3 Safety Management Systems and Confidentiality Concerns 20 SMS Origins and Elements, 20 SMSs in Transportation and Other High-Hazard Industries, 22 Empirical Evidence of SMS Effectiveness, 24 SMS Data and Confidentiality Requirements, 25 4 Torts and Evidentiary Protection 29 Public Interest Rationale for Torts and Evidentiary Protection, 30 Discovery Restrictions and Open Records Laws, 33 Admissibility Restrictions, 35
xiv CONTENTS 5 Evaluation and Advice 40 Summary of Key Points, 41 Recommendations, 44 Concluding Comments, 47 Appendix Meeting Agendas 49 Study Committee Biographical Information 55