Legal Case Summary

Welcome to the newly refurbished courtroom of the third circuit. Recently completed. It doesn't look as much like a spaceship as I was told. That's a good thing. Welcome, everyone. And we have with us our dear colleague and highly esteemed colleague, Judge Alessert, coming from Santa Barbara, California, Judge Alessert. I have to tell you that this is one of the only times I've not been jealous of you sitting in Santa Barbara. The weather is beautiful and it's a very equitable climate here in Eastern Pennsylvania. So you're not alone. Well, we tried to send you some Santa Barbara weather. I think you succeeded, right? Call the first case for the afternoon. Zimmerman versus Norfolk Southern Corporation, Mr. Boyle. May please the court. My name is Gunners Boyle. I represent the Italian Robert Zimmerman. I would like to request reserve four minutes for a rebuttal. Granted. May please the court. This case arises out of an accident that happened at a railroad intersection on June 12, 2008. On that date, Robert Zimmerman was riding his motorcycle towards a crossing, a train from Norfolk Southern was coming from his right hand side as he observed the train. By the time he observed the train it was so close he had no opportunity to avoid it. I think it's safe to say that the panel is well familiar with the facts here

. And so in fairness to you and your client and the arguments and issues you raised that we get right to those. And to some extent, I'm sure we'll be covering the facts because it's a state negligence law case and they're necessarily intertwined with some difficult preemption issues. With the indulgence of my colleagues, I'd like to, for my own benefit, clarify count per count. The claims that have been made, which is to say I know how they've been denominated in the complaint. I've read the complaint. But to determine then theory of liability by theory of liability under the counts, what we're talking about for possible preemption purposes. And what claim is being raised that was ruled upon by the district court and that we might be reviewing for other purposes of disposition, not based on preemption. Do you follow me? I do, Your Honor, and I apologize for any confusion. No, no, not at all. It's because I think there's a certain amount of overlap here too. So I'm not suggesting there's any failure on the part of plaintiff or plaintiff's counsel. But count one is safely characterized as a failure to warn claim. Is that right? It is a failure to warn claim. And with respect to that failure to warn, we can isolate the lights and the horn separately. Can we not have factual issues? We can, we can, Your Honor, and then I'll... You can't prevail on either of those theories. Can you? Even as a matter of coming forward with some evidence, irrespective of a preemption issue, what is indirected with respect to the use of lights and horn? We cannot prevail on that issue, Your Honor. All right, good enough. The other part of the failure to warn is an excessive rate of speed theory. Is that correct? That is correct

. There's also a site distance theory. We believe in paragraph 39 of count one. All right. That's not count two. Also it's mentioned in count two and count three of the overlap comes in that I was referring to. Yeah, I believe it's mentioned in all three counts, but it is one theory of liability. But the excessive rate of speed theory as to count one is if I'm reading the complaint correctly, essentially, to prompt. That is that the track was actually a class one track, which seems to implicate, or which does implicate certain facts here as to when and how and by whom some classification was made. And secondly, a theory that there was either intentional or negligent misclassification of the class. Am I correct? Your honours, put more of a fine point on our theory there. I think the theory that we've been unciated is that the evidence submitted of track classification is ambiguous in that there are documents from North Hooks, other than that indicate three separate classes. Well, I understand, but that's not answering my question as to what theory you have pled. My understanding is that the class is indeed an issue, but that you are saying that the class designation, first of all, was actually class one, and that you ought to be able to come forward with evidence to demonstrate that to overcome a motion for summary judgment. And that secondly, even if it wasn't a class one, that the designation was intentionally or negligently made, that it was misclassified. Am I misreading the complaint in that? No, I think that that is inaccurate reading of the complaint. We believe that the classification was either at class one classification or that it was represented to the Federal Railroad Administration to be a class one classification. Representative to the FRA, that's something that I wanted to pursue with both sides. And maybe my colleagues have picked up something that I have not been able to understand. Judge Shigeris as a New Jersey boy may not be aware of this, but as Judge Aldersert is a favorite son of Pittsburgh, is well aware of the fact that I'm from a railroad town, out to the Pennsylvania. And I have no idea how these things are classified, never come across this problem before. And it wasn't entirely answered for me in reading the briefs. What is the process that is employed in actually designating a particular track for crossing purposes, a class one, class two, class three, track for speed purposes? As I'll attempt to answer that as best I can, although I'm not an expert on that specific field, the track classification, as I understand it, is established by the railroad based upon a number of factors, including the maintenance of the track, the number of ties there used, the curvature of the track, those standards being dictating how fast a train can safely operate on those tracks

. Is this memorialized anywhere? I share the confusion. It seems like the railroads have an awful lot of authority there. I think that I think that they should just tradition or custom that the railroads did it, or is it actually memorialized somewhere? Is it actually memorialized that this is the railroad classification? No, no, no, no. The CFR elsewhere, does it say the railroad shall make this determination? No, what the CFR does is it sets forth the standards for the particular classifications of tracks. But what about process? I mean, my confusion is what kind of process is used here for getting to that result? I think it's an internal process within the railroad. I think the railroad establishes what classification a track needs to be, and then it maintains tracks to meet that classification. Now, if I understand your position correctly, the district court kept out of evidence, certain documents which you believe should rightfully be considered, and certain of those documents would show at least one of them, if I recall, out of ten different documents. I looked at indicated a class one designation. Am I understanding your position to be that these accident reports and these reports filed with the FRA should all have come in, and if they came in, there would be a question of fact as to the classification of the track. I believe so, Your Honor. The one is the US Department of Transportation, Immentory Documents. Those documents list the train speed that the trains are actually traveling over those tracks, and they all indicate a track speed of 10 miles per hour. For class one. For class one. 25 is the maximum for class two. 40. 40 for class three. And there are ten accident reports. Four of those accident reports indicate that the classification of the track is class one. There are four that indicate that it's class two. There's one that indicates that it's class three. You refer to the accident reports, but isn't true that that stands a pretty big time period, right? It stands a period of 30 years

. However, the corporate design that Norfolk Southern produced indicated that there had been no change to the track classification over that time period. Well, how would it change be made? I don't really know. I asked the track supervisor. I mean, what we're, again, unless I'm missing something, what I'm left with is thinking that this is just some unilateral process where the railroad can designate what the classification ought to be. I think it is a unilateral process. The corporate designate said he was unsure as to how the classification was arrived at. Well, where's the negligence? Pardon? Where is the negligence then in misqualified? Misclassified? Where's the intentional conduct? It would be torsious in nature in misclassified? Well, if the classification, as has been reported to the FRRA and the speed limit is class one and the speed limit is 10 miles per hour, then the negligence comes from the fact that they're exceeding the federally authorized speed limit because the train in this particular case was traveling 24 or 25 miles an hour. So if it should be classified class two or class three, you have no negligence cause of action as to excessive speed. We do not have a negligence classification if it is indeed class three or class four. However, class two, or I'm sorry, class two or class three. Because there's no factual dispute that the train was going 24 miles per hour and for the class two, the max is 25. That's correct, you're right. However, what it does do is it does call into issue, we think, the concept of federal preemption in that if the train speed is being misrepresented to the FRRA, then the FRRA doesn't have adequate information to determine what appropriate signal these issues should do. How does that work into year? How does that help you? I mean, maybe there's some sort of penalty scheme that I don't think it's anything you can benefit from, you know, falsely representing speeds or track conditions or whatever. How does that help you out? Well, how it helps us out or what it means is it means that the class, the railroad signalization, which comes under the authority of the FRRA was inaccurate. The CFRs provide certain certain qualifications, certain things that a railroad has to do. One of those things the railroad has to do is install gates and lights if there's a site obstruction. The site obstruction in turn is determined by the speed, the trains are traveling and the speed on the railroad track. Jay-Jell to Sir, do you have questions either relative to count one or anything else? No, I don't. I think that if there's only 20 minutes left for 20 minutes for argument and I don't see any in the contensions of the of the pallet on this issue, then I think we should move to another point. All right. Let's let's look at the at the count two claim then Mr

. Boyle. I think this is a failure to maintain the state grade crossing. Correct? Correct. Failure to maintain an adequate site distance and the failure to maintain the railroad signs and accordance with the and MUTCD. And I'll be interested to hear from your adversary on this point, but I assume that you take a refuge in or that you will rely upon our strategic opinion, which holds the common law claims for failure to maintain a safe grade crossing or not preempted. I think that Strollsick is controlling on this issue. There were discussions by the district court and in the at Pellysbury for the fact that Strollsick related to vegetation claims. And although that was a vegetation claim itself, what it relied upon was the duty to maintain a safe crossing and adequate site distance. And there are a number of Pennsylvania cases going back 50 years to require or imposing a duty on the railroads to have a safe site distance. You know Baker, Johnson, Faelin, Boothchecker, which we cite in our brief, all involved things other than vegetation. You know Johnson involved the garage and telephone poles, Faelin involved the building. So what's involved here? Here is involved a sign and a building. What do you maintain that the railroad should have done about the building? Well, I think the railroad had a duty to take the building into effect and deciding how it was going to conduct its railroad operations. That's pretty vague. Well, what are you talking about? What concrete actions does any duty imposed upon them by Pennsylvania law call for here? Well, they could have slowed the speed of their train to what they were reporting to the FRA. They could have- Well, that doesn't require them to do anything with the obstruction with the building. That just says they should have been nobrating their train more slow. No, but the site distance triangle is, and the federal regulations are dependent upon the speed of the train and the speed of the highway crossing. The slower the train goes, the smaller distance you need for a safe site distance. Can I ask you a question on the site distance? Inadequate site distance claim. I didn't see that in your complaint. Your summary judgment briefed and addressed it at all

. How is it that's a part of the loss at this point? I think we did address it in both of our- you know, we did talk about the site distance and the failure to maintain a safe crossing and count to- Well, I know the count to deals with failure to maintain a safe grade crossing, but I don't see anything about inadequate site distance at least below. Now, you know, I don't want to take up too much of your time here because you only have about a minute to go. We can keep the clock moving if necessary. If I could just have a second- I mean, you have a reply if you want to sit down and look at it, that's fine too. Okay, let me take a look at it and I will apply it with the court. But the- And the district court didn't deal with it either, you know, as such. I mean, the district court dealt with it in footnote 9 and indicated that- and viewed that as a duty to remove a building. What our argument had been to the district court was that there needed to be an adequate site distance. All of the expert reports talked about the adequate site distance, the statement of facts. And the facts in this case all indicated there was not an adequate site distance. Is there- for preemption purposes, right? Is there any regulation, any provision of- of federal law that somehow links site distance to the rail class? Not that I'm aware of your honor. Be perfectly honest. And with respect to account three, that's a negligence per se client failure to properly mark or secure. You're claiming that the- that the cross-bucks were, what, we're not a proper warning device? We're claiming that the cross-bucks were not properly maintained. Isn't that- not properly maintained? Not properly maintained. You do not claim that in a- in an of itself the cross-bucks were cross-bucks were not a proper warning device because that would seem to me to be a claim that's barred by Shanklin. Would you agree with that? Well, Shanklin would certainly seem to bar that under most circumstances whenever- but when you look at the regulation itself, 646.214B1, you know, it talks about site distance being a requirement- or when there isn't adequate site distance, you need gates and lights. But to answer your case directly, our claim is based primarily on the fact that the warning device installed here, the cross-bucks was not installed in accordance with the- I'm sorry, I forget the acronym and the MTC DU that that requires- Can you be serious on this issue when you concede that this man had crossed or operated his motorcycle over this crossing over a hundred times? I believe the record shows that every time there was never a train at that crossing, any time Mr. Zimmerman had crossed that crossing, furthermore the crossing had been- But he was familiar. He was familiar. There was a crossing

. He was familiar that trains do come. He was familiar with the cross-bucks. We would say no, Your Honor, in that the cross-bucks had been allowed to deteriorate. All the signage leading to the railroad crossing had been allowed to deteriorate. The marks on the road had disappeared and we thought that the- that the crossing was no longer active. Certainly had the crossing been maintained, that would have given him a clear clue that the crossing was active. Well, if we're playing poker, I was going to say what's your next highest card? Okay. I just don't think there's any- there's- there's anything for this argument at all. That's my own jet. I wish I could say otherwise, but I'm out of time. Well, we'll have you back on on Rebuttal. Thank you. Thank you. Thank you. Mr. Hahn? Your Honor's Judge Al-Dezard. Hello. I'm Richard Hahn. I'm assisted with by Mr. Stroh. Can you- perhaps pull the microphone a little? How's that, Your Honor? That's- I think that's a good one. Thank you

. Thank you. I'll be happy to address any questions the court has in the order that chooses. I would like to just address this last point here about the cross-bucks. We've seen in the brief plenty of alleged that the cross-bucks had been allowed to deteriorate. I don't know what that means. There was never any evidence submitted in the case below in the court below that there was any deterioration. This is a white tape. The white reflective tape was not it? After this crossing was established by the Pennsylvania Utility Commission with federal funds, then thereby bringing in the issue with Shacklin, the MUTCD changed. And it said going forward, if you're going to put a cross-bucks, you should put red, reflect-rise tape on it. Okay. There's absolutely nothing in that MUTCD or any other statute of regulation that requires people to go back and retrofit, at least not at the time of this accident. Planef had two expert reports in this case. Neither one of them said that the time of this accident the railroad was required to do anything with regard to those cross-bucks. This argument was clearly preempted and for the Planning Council to come in and tell the court there was something that the railroad should have done with that specifying it with regard to those cross-bucks, I think is, um, well, it's difficult. Is that even a maintenance issue or is that really changing the nature of the warning, sign, or device to the extent that you're then entering into an area that really is clearly preempted? You're absolutely right, Your Honor, and that's why Planef has to frame this as a maintenance issue. It's not a maintenance issue. He's saying there shouldn't have been cross-bucks there. There should have been warning lights and gates because my client, Mr. Zimmerman, decides he was to go a 35 miles an hour across this crossing. You know, Franklin makes absolutely clear that once the decision has been made by the state, what the appropriate warning device is, and that has been implemented using federal funds, the discussion is over. Now, you, the railroad does not dispute, does it, that it has a duty to maintain here, if what we're talking about is maintenance, that is, to not allow something to fall into such a state of repairs, there's no question about that. There's no question about that

. It may be into a clear area of state law negligence, unpreemptive, right? Absolutely right. Our burdens are clearly established by the law. We have to maintain that crossing as it has been established by the PUC. Under both state and federal law, we have to keep that crossing, I think it's up to 200 yards on either side of the crossing, free from vegetation and other visible obstructions on our land. Okay? When our trains are approaching, we have to give both a visual and an audible indication, and the standards are set by the federal railroad administration, as to the decibel level of the horn, as to the brilliance of the light. Norfolk Southern has oscillating lights, which go on the front of this train as soon as the horn has sounded. There has been not one Ayoda of evidence. In this case, that the railroad failed in any of the duties, they're set forth in the federal law or state law. Speaking of the federal law, focusing specifically on CFR 646.214V. Yes. What does it require of a railroad in these circumstances? And did it change in any way? What was the railroads role in these decisions after it took effect? 646.214, as I look at it, Your Honor, is a design plan. The federal government is saying, when you're building a crossing, these are things to be considered. Do these things, does it create a federal standard of care, which is one of the issues? Well, we know from the Henning case, it certainly does not. Every court that has addressed this has said that it does not set forth a federal standard of care. I believe Shacklin says it. I don't know how more clearly. Henning says it and grade from the eight circuits. Correct. Are there any cases on the MUTCD? I don't know if I'm, it's the MUTCD. Are there any cases dealing with that? Whether that creates a federal standard of care? It does create a federal standard of care

. Your signs, let's say you have a stop sign in an intersection, okay? You're a township. And the stop sign is pretty green, as opposed to red. Okay. Okay. Somebody goes through that stop sign, not recognizing what it is, could establish a breach of duty. Once you have complied with the MUTCD at the time that you install that device, then you are there's your preemption. I know you said, Mr. Hahn, that you wanted to start at this point, which was the last issue taken up by your adversary. And before we move to the other matters, you do want to address. I wanted to ask, did you have anything to ask on- No, I have to sell. I have to. No, please. All right. Thank you. Thank you, Mr. Hahn. Then you may proceed, Mr. Hahn. I don't know if the court is still interested in the question of the railroad inventory documents or the accident. I am. Yes. I wonder, you know, we have, we've been in this case for a couple of years. And I have repeatedly been hit over the head by plaintiffs council who says that for some 29 years, Norfolk, Southern has been running people over at this intersection, which I think is, you better be able to back something up if you're going to use it in terms like that. I've looked at these. That's a jury argument. Right. The records say what they say. I looked at 10 different reports as I recall. Right. Of two different kinds. So what's the point? What they show your honor is that from 1975 to 1999, the Rehantful of Accidents, Conrail owned the property at that time. After this cross-buck program funded by the federal government was instituted and Conrail upgraded the cross-bucks at this intersection. There were two minor accidents, 93 and 94. It was one accident in 1999. Norfolk, Southern took over. From that time until 2008, there were no accidents with one exception, Mr. Zimmerman's. So the idea that we have a dangerous intersection here and that we're hiding scrolling documents alike so the federal government does not know about it is rather preposterous. Well, again, I, when I, I got the tone of that in the supplemental briefs we requested again. It sounded to me like an argument to a jury, not what we're concerned about here. Now, either those records come in or they don't come in. Either those records are admissible or they're not admissible. The district court said they weren't admissible. And what was the district court's justification for keeping them? 23 USC section 409 is a

. And I have repeatedly been hit over the head by plaintiffs council who says that for some 29 years, Norfolk, Southern has been running people over at this intersection, which I think is, you better be able to back something up if you're going to use it in terms like that. I've looked at these. That's a jury argument. Right. The records say what they say. I looked at 10 different reports as I recall. Right. Of two different kinds. So what's the point? What they show your honor is that from 1975 to 1999, the Rehantful of Accidents, Conrail owned the property at that time. After this cross-buck program funded by the federal government was instituted and Conrail upgraded the cross-bucks at this intersection. There were two minor accidents, 93 and 94. It was one accident in 1999. Norfolk, Southern took over. From that time until 2008, there were no accidents with one exception, Mr. Zimmerman's. So the idea that we have a dangerous intersection here and that we're hiding scrolling documents alike so the federal government does not know about it is rather preposterous. Well, again, I, when I, I got the tone of that in the supplemental briefs we requested again. It sounded to me like an argument to a jury, not what we're concerned about here. Now, either those records come in or they don't come in. Either those records are admissible or they're not admissible. The district court said they weren't admissible. And what was the district court's justification for keeping them? 23 USC section 409 is a. We have two different types of documents here, right? The accident reports are one type of stuff. The other type is a cross-bucket inventory. What does the statute say as to those, those reports? The accident reports are on her? Yes, sir. They are precluded from both use, well, amissability and discovery. And again, you, you are referring to, to which statute? 201. Those six, I believe, Ronald. Let me just take this. You took until the 49 USC 20901. 20901, thanks. I got a question about that. Yes, sir. I see that that protects accident or incident reports from using the civil action for damages, only where I'm quoting the action results from the matter mentioned in the report. Now, all right, maybe that covers the report in the Zimmerman case. But what about all the other reports? Exactly. I don't think that, how does that cover all the other prior reports? I know that there was some confusion on this issue, you're right. So look, I didn't look very confusing. In me, it looks like plain text would preclude, would preclude only the report as to this incident, doesn't it? I would disagree, Robert. If you give me one second, please. Thank you. It says no part of an accident or incident report filed by the carrier under this title, or made by the secretary under 20902, may be used in a civil action for damages, resulting from a matter mentioned in the report. Now, the reports of each one of these all talk about the same thing, and that is a highway. You talk about the same accident

. We have two different types of documents here, right? The accident reports are one type of stuff. The other type is a cross-bucket inventory. What does the statute say as to those, those reports? The accident reports are on her? Yes, sir. They are precluded from both use, well, amissability and discovery. And again, you, you are referring to, to which statute? 201. Those six, I believe, Ronald. Let me just take this. You took until the 49 USC 20901. 20901, thanks. I got a question about that. Yes, sir. I see that that protects accident or incident reports from using the civil action for damages, only where I'm quoting the action results from the matter mentioned in the report. Now, all right, maybe that covers the report in the Zimmerman case. But what about all the other reports? Exactly. I don't think that, how does that cover all the other prior reports? I know that there was some confusion on this issue, you're right. So look, I didn't look very confusing. In me, it looks like plain text would preclude, would preclude only the report as to this incident, doesn't it? I would disagree, Robert. If you give me one second, please. Thank you. It says no part of an accident or incident report filed by the carrier under this title, or made by the secretary under 20902, may be used in a civil action for damages, resulting from a matter mentioned in the report. Now, the reports of each one of these all talk about the same thing, and that is a highway. You talk about the same accident. Not all about the same accident. No, sir. You're not seeking damages for any of the other accidents. Plain if it's not. Plain if it's not. Could you, Mark, you better often rely on section 409, which contains the same exemption and makes a reference to section 130. Well, Your Honor, if you take the broader view of 409, any type of report that is provided to the government or to a governmental agency as a result of some safety program, and I would argue that all of these accident reports that are sent into the FRA are all part of a safety enhancement program. There will be no other reason for these reports to be submitted. As you point out, Judge Elders, are under that view, all of these records, accident and the great crossing inventory forms would all be privileged under 409. And the 409 changes the previous version of 409, referred to section 152, which was relied on a lot by your friend on the other side. But the new version of 409 effective 2005 refers only to 1 3 0, 1 4 4 and 1 4 8, and does not refer to 1 5 2. I believe on that. Yes, I believe that 1 5 2 is a recodification of 1 4 8. I think they just designated it differently, but it's the same act. You know, being case relied upon by your adversaries are strozic case. How do you get around that? Well, there's nothing to get around. Strozic is fine law, and it's not in conflict with any of the other decisions by the United States Supreme Court and otherwise on the preemption case. All that strozic says is just because the inadequate signalization claim is preempted and just because the speed claim is preempted, that doesn't mean that every case is going to get passed out of, is going to get passed out of court on a state law. On a state law claim. It's strozic. It's fair enough, but let's continue to talk about these evidentiary issues and the invocation of a privilege. Yes, sir

. Not all about the same accident. No, sir. You're not seeking damages for any of the other accidents. Plain if it's not. Plain if it's not. Could you, Mark, you better often rely on section 409, which contains the same exemption and makes a reference to section 130. Well, Your Honor, if you take the broader view of 409, any type of report that is provided to the government or to a governmental agency as a result of some safety program, and I would argue that all of these accident reports that are sent into the FRA are all part of a safety enhancement program. There will be no other reason for these reports to be submitted. As you point out, Judge Elders, are under that view, all of these records, accident and the great crossing inventory forms would all be privileged under 409. And the 409 changes the previous version of 409, referred to section 152, which was relied on a lot by your friend on the other side. But the new version of 409 effective 2005 refers only to 1 3 0, 1 4 4 and 1 4 8, and does not refer to 1 5 2. I believe on that. Yes, I believe that 1 5 2 is a recodification of 1 4 8. I think they just designated it differently, but it's the same act. You know, being case relied upon by your adversaries are strozic case. How do you get around that? Well, there's nothing to get around. Strozic is fine law, and it's not in conflict with any of the other decisions by the United States Supreme Court and otherwise on the preemption case. All that strozic says is just because the inadequate signalization claim is preempted and just because the speed claim is preempted, that doesn't mean that every case is going to get passed out of, is going to get passed out of court on a state law. On a state law claim. It's strozic. It's fair enough, but let's continue to talk about these evidentiary issues and the invocation of a privilege. Yes, sir. And the Supreme Court's Pierce County versus KEN case was discussed in the briefs, and I believe also by the District Court, does that provide you with authority to keep out all of these reports, to rely upon privilege in keeping out all of these documents, both the accident reports and the NCI documents? You know, your Honor Judge Thomas didn't give us any guideposts as to what would not be privileged, but it's impossible to read. That's because if I recall correctly, he followed the government's position in their Amicus brief and found a middle ground between the two rather extreme positions taken by the party. So it's, you're correct, he didn't draw any real clear lines, but I think that what it left us with was concluding that the touchstone, the touchstone in determining what the scope of the privilege is, is the relevant governmental program and its purpose, and whether the document was collected or created for that. Well, we will look at that step by step, what the plaintiff seeks to introduce or documents collected by the government as part of a safety program or procedure, and is protected by 130. But who is protected by this privilege, the state, or the railroad? Right, this is not an immunity that is conferred upon upon. I understand, kind of that is an evidentiary privilege. An evidentiary privilege, and it's the data itself that is privileged. Read the language of the statute, it says in any proceeding for damages, all data, regardless of the source, is privileged. I mean, think about it, Your Honor, the government could have required the railroads to do X, Y, and Z back when they introduced the 1973 I was Safety Act. It did not. In order to get voluntary cooperation in this scheme of putting together a gigantic database that would cover the 100s of thousands of crossings in this nation, Congress saw fit to give a privilege to all of that data to prevent just what we have here. Someone would come in waving a piece of paper and say, aha, this means something. Yeah, Guillen said that this is to be construed narrowly. The other privilege is. Well, of course, like all privileges. But the question, the question is, you've got to follow along. Was the 1973 Act at such a 130 implicated when this national database was put together? Of course, was there any authority for putting together a national database other than this? No, there was not. What is the data that's being submitted? The data that's being submitted is every crossing in the nation's being submitted. I think the privilege question here is a tricky one. And as he and tells us, I think it requires us to look carefully at the statute and its purpose and so forth. But if you would, setting aside the privilege question right now, can you explain to me what has been nagging at me and I hinted that this in my question earlier to Mr. Boyle, can you explain the discrepancies in the classification of the crossing in the areas documented? To answer the question that you asked, Mr

. And the Supreme Court's Pierce County versus KEN case was discussed in the briefs, and I believe also by the District Court, does that provide you with authority to keep out all of these reports, to rely upon privilege in keeping out all of these documents, both the accident reports and the NCI documents? You know, your Honor Judge Thomas didn't give us any guideposts as to what would not be privileged, but it's impossible to read. That's because if I recall correctly, he followed the government's position in their Amicus brief and found a middle ground between the two rather extreme positions taken by the party. So it's, you're correct, he didn't draw any real clear lines, but I think that what it left us with was concluding that the touchstone, the touchstone in determining what the scope of the privilege is, is the relevant governmental program and its purpose, and whether the document was collected or created for that. Well, we will look at that step by step, what the plaintiff seeks to introduce or documents collected by the government as part of a safety program or procedure, and is protected by 130. But who is protected by this privilege, the state, or the railroad? Right, this is not an immunity that is conferred upon upon. I understand, kind of that is an evidentiary privilege. An evidentiary privilege, and it's the data itself that is privileged. Read the language of the statute, it says in any proceeding for damages, all data, regardless of the source, is privileged. I mean, think about it, Your Honor, the government could have required the railroads to do X, Y, and Z back when they introduced the 1973 I was Safety Act. It did not. In order to get voluntary cooperation in this scheme of putting together a gigantic database that would cover the 100s of thousands of crossings in this nation, Congress saw fit to give a privilege to all of that data to prevent just what we have here. Someone would come in waving a piece of paper and say, aha, this means something. Yeah, Guillen said that this is to be construed narrowly. The other privilege is. Well, of course, like all privileges. But the question, the question is, you've got to follow along. Was the 1973 Act at such a 130 implicated when this national database was put together? Of course, was there any authority for putting together a national database other than this? No, there was not. What is the data that's being submitted? The data that's being submitted is every crossing in the nation's being submitted. I think the privilege question here is a tricky one. And as he and tells us, I think it requires us to look carefully at the statute and its purpose and so forth. But if you would, setting aside the privilege question right now, can you explain to me what has been nagging at me and I hinted that this in my question earlier to Mr. Boyle, can you explain the discrepancies in the classification of the crossing in the areas documented? To answer the question that you asked, Mr. Boyle, there's no railroad is permitted by federal authorities. Established track as it wishes. Amtrak wants to ride it 80 miles an hour. So it is in a lateral process. It's a unilateral process. But what happens is this, the standards are set forth in the CFRs and they say if you want to be able to run trains at 100 miles an hour, you have to have this many ties per yard. You have to have this many fixtures on each tie. So does that leave open a misclassification claim as I believe it is pleated in count one, either intentionally or negligent? I don't understand what a misclassification claim is. Well, the maximum speed should have been delimited more than it was by the classification of the railroad and laterally sought out. If the plaintiff's experts and the responsibly railroad experts had come in and said we looked at the gauge of the track. We looked at the curvature of the track. We looked at the number of pies per square mile. You would concede that as either an intentional act or an negligent act, that would not be precluded. I'm not sure that I understand what your effectiveness is. Why would anybody muster evidence through experts if you didn't have a factual question that experts could testify? The experts could testify. If they could show that this track was in disrepair and should have been classified class one. But my question was, you only get to that point once you fail on preemption and concede that there's a factual issue here in an negligence claim. Right. What happened was at one time back with Penn Central owned this property and then with Conrail owned it. It was class one track. At some point in the late 90s or 2000s, that entire section of track, the new hall of secondary, was upgraded and was upgraded to allow it to handle traffic up to 40 miles per hour under the FRRA guidelines. Now, it's not as if there's no government oversight

. Boyle, there's no railroad is permitted by federal authorities. Established track as it wishes. Amtrak wants to ride it 80 miles an hour. So it is in a lateral process. It's a unilateral process. But what happens is this, the standards are set forth in the CFRs and they say if you want to be able to run trains at 100 miles an hour, you have to have this many ties per yard. You have to have this many fixtures on each tie. So does that leave open a misclassification claim as I believe it is pleated in count one, either intentionally or negligent? I don't understand what a misclassification claim is. Well, the maximum speed should have been delimited more than it was by the classification of the railroad and laterally sought out. If the plaintiff's experts and the responsibly railroad experts had come in and said we looked at the gauge of the track. We looked at the curvature of the track. We looked at the number of pies per square mile. You would concede that as either an intentional act or an negligent act, that would not be precluded. I'm not sure that I understand what your effectiveness is. Why would anybody muster evidence through experts if you didn't have a factual question that experts could testify? The experts could testify. If they could show that this track was in disrepair and should have been classified class one. But my question was, you only get to that point once you fail on preemption and concede that there's a factual issue here in an negligence claim. Right. What happened was at one time back with Penn Central owned this property and then with Conrail owned it. It was class one track. At some point in the late 90s or 2000s, that entire section of track, the new hall of secondary, was upgraded and was upgraded to allow it to handle traffic up to 40 miles per hour under the FRRA guidelines. Now, it's not as if there's no government oversight. The FRRA has track inspectors that come around. We'll say, we do have this graded act while it's class three. And I'll expect to make sure that it's up to class three specifications. Okay. There's no indication in this case, no suggestion by any expert that this was not class three track. We've had the people, the top people in the engineering department at Norfolk Southern Test Life. But the answer to this thing is you guys said it wasn't class three track. You said it was class one. And in fact, one document in this record that the district court looked at as well submitted by your client says class one. Right. Because that's a mistake. That was created after Conrail had listed in the track one and before the information got to, whoever it is, it sends in these forms. Why isn't that a very question if you've got one report out of a number of them that's saying class one? What your honor, if there was some reliance on the fact that this document had been submitted, I understand that. If the plaintiff said, you know, geez, I always thought that this was a class one track and the trains only went 10 miles per hour. I can understand there'd be reliance on that. But there's no indication in this case that anybody relied on one piece of improperly submitted information. And then of course, you got to get to the question of the privilege. So let me ask you, I just, because I maybe I don't understand the system. Is there a duty to report to the government? This particular area is class three track, or class, or whatever it is. Or will you know that? Yeah. We know that and when the FRA sends in track inspectors, we'll tell them that this is class three track. But otherwise there's no sort of affirmative duty to tell them

. The FRRA has track inspectors that come around. We'll say, we do have this graded act while it's class three. And I'll expect to make sure that it's up to class three specifications. Okay. There's no indication in this case, no suggestion by any expert that this was not class three track. We've had the people, the top people in the engineering department at Norfolk Southern Test Life. But the answer to this thing is you guys said it wasn't class three track. You said it was class one. And in fact, one document in this record that the district court looked at as well submitted by your client says class one. Right. Because that's a mistake. That was created after Conrail had listed in the track one and before the information got to, whoever it is, it sends in these forms. Why isn't that a very question if you've got one report out of a number of them that's saying class one? What your honor, if there was some reliance on the fact that this document had been submitted, I understand that. If the plaintiff said, you know, geez, I always thought that this was a class one track and the trains only went 10 miles per hour. I can understand there'd be reliance on that. But there's no indication in this case that anybody relied on one piece of improperly submitted information. And then of course, you got to get to the question of the privilege. So let me ask you, I just, because I maybe I don't understand the system. Is there a duty to report to the government? This particular area is class three track, or class, or whatever it is. Or will you know that? Yeah. We know that and when the FRA sends in track inspectors, we'll tell them that this is class three track. But otherwise there's no sort of affirmative duty to tell them. And we didn't have a duty to submit that form that the plaintiff relies on, which we claim is privileged. We had no duty to just supply that. Frankly, railroad companies don't have to tell anybody how fast they run their tracks. We are permitted by the federal government. I was surprising for a layperson, at least I'll speak to myself. Well, understand there's an awful lot of federal oversight in all of these operations. The FRA has track inspectors and other inspectors come through all the time. So, you know, it's a pretty tight system. It's not as if the government just allows railroad companies to go off and do whatever they want to do. It does not. And as Geronter properly pointed out, if we made a mistake, it's somebody one of these forms. FRA is going to be pounding us with sanctions and everything else. The question is, is that information privileged can it be used in a proceeding like this for money damages, a rising out of the subject matter of that report? Jealousy, do you have questions on this on this count? No questions. Thank you, sir. Is there anything else you want us? I don't believe. Thank you very much. It's a pleasure. Judge Al Dzer, pleasure, sir. Mr. Boyle, rebuttal. Thank you, sir. Thank you, Your Honours

. And we didn't have a duty to submit that form that the plaintiff relies on, which we claim is privileged. We had no duty to just supply that. Frankly, railroad companies don't have to tell anybody how fast they run their tracks. We are permitted by the federal government. I was surprising for a layperson, at least I'll speak to myself. Well, understand there's an awful lot of federal oversight in all of these operations. The FRA has track inspectors and other inspectors come through all the time. So, you know, it's a pretty tight system. It's not as if the government just allows railroad companies to go off and do whatever they want to do. It does not. And as Geronter properly pointed out, if we made a mistake, it's somebody one of these forms. FRA is going to be pounding us with sanctions and everything else. The question is, is that information privileged can it be used in a proceeding like this for money damages, a rising out of the subject matter of that report? Jealousy, do you have questions on this on this count? No questions. Thank you, sir. Is there anything else you want us? I don't believe. Thank you very much. It's a pleasure. Judge Al Dzer, pleasure, sir. Mr. Boyle, rebuttal. Thank you, sir. Thank you, Your Honours. Judge Chagarras, just to address your issue about whether this was alleged in the complaint on the site. The main paragraph 52 of the complaint says that the crossing at Diller Avenue has a quote, unusually restricted site distance, close quote, because of buildings lining the tracks all along the north by side of the street. And that is part of counts. It's count three. The central issue in here is whether the railroad has a duty to provide inadequate site distance to protect the public. We believe that the tolls at K says that the railroad does. How the railroad does that is up to the railroad. They have the authority to remove the building. They have the authority to alter the train operations. They have the ability to do, take other steps to warn people should be choose to do so. But the duty itself is a duty to provide inadequate site distance. And the railroad has failed to do that, even the plaintiff's own experts admit that. The court also talked a lot about the evidentiary privilege under 409. I think it's important to look exactly at the text of 409 and what 409 protects and what 409 doesn't protect. 409 is a statute that protects data gathered by the state and recorded to the FRA. It's not a statute that protects data that's reported directly to the FRA by the railroads in any way, shape or form. The statute, there is currently an obligation for the railroad to report to the FRA certain information, but that did not exist at the time of this accident. So I think when you look at the text of 409 itself, it talks about state agencies. And it talks about reports to the FRA by state agencies. Even the Supreme Court case, Pierce County versus Julian, it was a case brought by a state agency to see prevention from disclosing its engineering studies. If you look at the footnote in the Julian case, the records actually in question were all records generated by the state and reported the FRA as part of its railroad crossing obligations. In this case, the accident reports have nothing whatsoever to do with 409

. Judge Chagarras, just to address your issue about whether this was alleged in the complaint on the site. The main paragraph 52 of the complaint says that the crossing at Diller Avenue has a quote, unusually restricted site distance, close quote, because of buildings lining the tracks all along the north by side of the street. And that is part of counts. It's count three. The central issue in here is whether the railroad has a duty to provide inadequate site distance to protect the public. We believe that the tolls at K says that the railroad does. How the railroad does that is up to the railroad. They have the authority to remove the building. They have the authority to alter the train operations. They have the ability to do, take other steps to warn people should be choose to do so. But the duty itself is a duty to provide inadequate site distance. And the railroad has failed to do that, even the plaintiff's own experts admit that. The court also talked a lot about the evidentiary privilege under 409. I think it's important to look exactly at the text of 409 and what 409 protects and what 409 doesn't protect. 409 is a statute that protects data gathered by the state and recorded to the FRA. It's not a statute that protects data that's reported directly to the FRA by the railroads in any way, shape or form. The statute, there is currently an obligation for the railroad to report to the FRA certain information, but that did not exist at the time of this accident. So I think when you look at the text of 409 itself, it talks about state agencies. And it talks about reports to the FRA by state agencies. Even the Supreme Court case, Pierce County versus Julian, it was a case brought by a state agency to see prevention from disclosing its engineering studies. If you look at the footnote in the Julian case, the records actually in question were all records generated by the state and reported the FRA as part of its railroad crossing obligations. In this case, the accident reports have nothing whatsoever to do with 409. They're not reported to the FRA. We're in the text of 409. Is there a limitation to documents submitted or prepared or somehow compiled by the state? I think it references sections 131.48. And those sections, I said 152, it's now 148. Those sections all relate to state obligations to report when you look at the text of them. And I don't have the exact language here for each one. Each one imposes upon the state and obligation to conduct certain studies and to produce certain documents and to report that to the Federal Railroad Administration. Those documents would be the documents that are covered by the 409. And I see that I am just about out of time, of course, any further questions? I don't have any questions. I have none. Thank you very much, Mr. Boyle. Thank you, Mr. Han. The case was very well argued. It's a matter as with all preemption matters, at least speaking personally, that is not without a certain amount of complexity. But your arguments were quite helpful. We thank you and we'll take the case under it.

Welcome to the newly refurbished courtroom of the third circuit. Recently completed. It doesn't look as much like a spaceship as I was told. That's a good thing. Welcome, everyone. And we have with us our dear colleague and highly esteemed colleague, Judge Alessert, coming from Santa Barbara, California, Judge Alessert. I have to tell you that this is one of the only times I've not been jealous of you sitting in Santa Barbara. The weather is beautiful and it's a very equitable climate here in Eastern Pennsylvania. So you're not alone. Well, we tried to send you some Santa Barbara weather. I think you succeeded, right? Call the first case for the afternoon. Zimmerman versus Norfolk Southern Corporation, Mr. Boyle. May please the court. My name is Gunners Boyle. I represent the Italian Robert Zimmerman. I would like to request reserve four minutes for a rebuttal. Granted. May please the court. This case arises out of an accident that happened at a railroad intersection on June 12, 2008. On that date, Robert Zimmerman was riding his motorcycle towards a crossing, a train from Norfolk Southern was coming from his right hand side as he observed the train. By the time he observed the train it was so close he had no opportunity to avoid it. I think it's safe to say that the panel is well familiar with the facts here. And so in fairness to you and your client and the arguments and issues you raised that we get right to those. And to some extent, I'm sure we'll be covering the facts because it's a state negligence law case and they're necessarily intertwined with some difficult preemption issues. With the indulgence of my colleagues, I'd like to, for my own benefit, clarify count per count. The claims that have been made, which is to say I know how they've been denominated in the complaint. I've read the complaint. But to determine then theory of liability by theory of liability under the counts, what we're talking about for possible preemption purposes. And what claim is being raised that was ruled upon by the district court and that we might be reviewing for other purposes of disposition, not based on preemption. Do you follow me? I do, Your Honor, and I apologize for any confusion. No, no, not at all. It's because I think there's a certain amount of overlap here too. So I'm not suggesting there's any failure on the part of plaintiff or plaintiff's counsel. But count one is safely characterized as a failure to warn claim. Is that right? It is a failure to warn claim. And with respect to that failure to warn, we can isolate the lights and the horn separately. Can we not have factual issues? We can, we can, Your Honor, and then I'll... You can't prevail on either of those theories. Can you? Even as a matter of coming forward with some evidence, irrespective of a preemption issue, what is indirected with respect to the use of lights and horn? We cannot prevail on that issue, Your Honor. All right, good enough. The other part of the failure to warn is an excessive rate of speed theory. Is that correct? That is correct. There's also a site distance theory. We believe in paragraph 39 of count one. All right. That's not count two. Also it's mentioned in count two and count three of the overlap comes in that I was referring to. Yeah, I believe it's mentioned in all three counts, but it is one theory of liability. But the excessive rate of speed theory as to count one is if I'm reading the complaint correctly, essentially, to prompt. That is that the track was actually a class one track, which seems to implicate, or which does implicate certain facts here as to when and how and by whom some classification was made. And secondly, a theory that there was either intentional or negligent misclassification of the class. Am I correct? Your honours, put more of a fine point on our theory there. I think the theory that we've been unciated is that the evidence submitted of track classification is ambiguous in that there are documents from North Hooks, other than that indicate three separate classes. Well, I understand, but that's not answering my question as to what theory you have pled. My understanding is that the class is indeed an issue, but that you are saying that the class designation, first of all, was actually class one, and that you ought to be able to come forward with evidence to demonstrate that to overcome a motion for summary judgment. And that secondly, even if it wasn't a class one, that the designation was intentionally or negligently made, that it was misclassified. Am I misreading the complaint in that? No, I think that that is inaccurate reading of the complaint. We believe that the classification was either at class one classification or that it was represented to the Federal Railroad Administration to be a class one classification. Representative to the FRA, that's something that I wanted to pursue with both sides. And maybe my colleagues have picked up something that I have not been able to understand. Judge Shigeris as a New Jersey boy may not be aware of this, but as Judge Aldersert is a favorite son of Pittsburgh, is well aware of the fact that I'm from a railroad town, out to the Pennsylvania. And I have no idea how these things are classified, never come across this problem before. And it wasn't entirely answered for me in reading the briefs. What is the process that is employed in actually designating a particular track for crossing purposes, a class one, class two, class three, track for speed purposes? As I'll attempt to answer that as best I can, although I'm not an expert on that specific field, the track classification, as I understand it, is established by the railroad based upon a number of factors, including the maintenance of the track, the number of ties there used, the curvature of the track, those standards being dictating how fast a train can safely operate on those tracks. Is this memorialized anywhere? I share the confusion. It seems like the railroads have an awful lot of authority there. I think that I think that they should just tradition or custom that the railroads did it, or is it actually memorialized somewhere? Is it actually memorialized that this is the railroad classification? No, no, no, no. The CFR elsewhere, does it say the railroad shall make this determination? No, what the CFR does is it sets forth the standards for the particular classifications of tracks. But what about process? I mean, my confusion is what kind of process is used here for getting to that result? I think it's an internal process within the railroad. I think the railroad establishes what classification a track needs to be, and then it maintains tracks to meet that classification. Now, if I understand your position correctly, the district court kept out of evidence, certain documents which you believe should rightfully be considered, and certain of those documents would show at least one of them, if I recall, out of ten different documents. I looked at indicated a class one designation. Am I understanding your position to be that these accident reports and these reports filed with the FRA should all have come in, and if they came in, there would be a question of fact as to the classification of the track. I believe so, Your Honor. The one is the US Department of Transportation, Immentory Documents. Those documents list the train speed that the trains are actually traveling over those tracks, and they all indicate a track speed of 10 miles per hour. For class one. For class one. 25 is the maximum for class two. 40. 40 for class three. And there are ten accident reports. Four of those accident reports indicate that the classification of the track is class one. There are four that indicate that it's class two. There's one that indicates that it's class three. You refer to the accident reports, but isn't true that that stands a pretty big time period, right? It stands a period of 30 years. However, the corporate design that Norfolk Southern produced indicated that there had been no change to the track classification over that time period. Well, how would it change be made? I don't really know. I asked the track supervisor. I mean, what we're, again, unless I'm missing something, what I'm left with is thinking that this is just some unilateral process where the railroad can designate what the classification ought to be. I think it is a unilateral process. The corporate designate said he was unsure as to how the classification was arrived at. Well, where's the negligence? Pardon? Where is the negligence then in misqualified? Misclassified? Where's the intentional conduct? It would be torsious in nature in misclassified? Well, if the classification, as has been reported to the FRRA and the speed limit is class one and the speed limit is 10 miles per hour, then the negligence comes from the fact that they're exceeding the federally authorized speed limit because the train in this particular case was traveling 24 or 25 miles an hour. So if it should be classified class two or class three, you have no negligence cause of action as to excessive speed. We do not have a negligence classification if it is indeed class three or class four. However, class two, or I'm sorry, class two or class three. Because there's no factual dispute that the train was going 24 miles per hour and for the class two, the max is 25. That's correct, you're right. However, what it does do is it does call into issue, we think, the concept of federal preemption in that if the train speed is being misrepresented to the FRRA, then the FRRA doesn't have adequate information to determine what appropriate signal these issues should do. How does that work into year? How does that help you? I mean, maybe there's some sort of penalty scheme that I don't think it's anything you can benefit from, you know, falsely representing speeds or track conditions or whatever. How does that help you out? Well, how it helps us out or what it means is it means that the class, the railroad signalization, which comes under the authority of the FRRA was inaccurate. The CFRs provide certain certain qualifications, certain things that a railroad has to do. One of those things the railroad has to do is install gates and lights if there's a site obstruction. The site obstruction in turn is determined by the speed, the trains are traveling and the speed on the railroad track. Jay-Jell to Sir, do you have questions either relative to count one or anything else? No, I don't. I think that if there's only 20 minutes left for 20 minutes for argument and I don't see any in the contensions of the of the pallet on this issue, then I think we should move to another point. All right. Let's let's look at the at the count two claim then Mr. Boyle. I think this is a failure to maintain the state grade crossing. Correct? Correct. Failure to maintain an adequate site distance and the failure to maintain the railroad signs and accordance with the and MUTCD. And I'll be interested to hear from your adversary on this point, but I assume that you take a refuge in or that you will rely upon our strategic opinion, which holds the common law claims for failure to maintain a safe grade crossing or not preempted. I think that Strollsick is controlling on this issue. There were discussions by the district court and in the at Pellysbury for the fact that Strollsick related to vegetation claims. And although that was a vegetation claim itself, what it relied upon was the duty to maintain a safe crossing and adequate site distance. And there are a number of Pennsylvania cases going back 50 years to require or imposing a duty on the railroads to have a safe site distance. You know Baker, Johnson, Faelin, Boothchecker, which we cite in our brief, all involved things other than vegetation. You know Johnson involved the garage and telephone poles, Faelin involved the building. So what's involved here? Here is involved a sign and a building. What do you maintain that the railroad should have done about the building? Well, I think the railroad had a duty to take the building into effect and deciding how it was going to conduct its railroad operations. That's pretty vague. Well, what are you talking about? What concrete actions does any duty imposed upon them by Pennsylvania law call for here? Well, they could have slowed the speed of their train to what they were reporting to the FRA. They could have- Well, that doesn't require them to do anything with the obstruction with the building. That just says they should have been nobrating their train more slow. No, but the site distance triangle is, and the federal regulations are dependent upon the speed of the train and the speed of the highway crossing. The slower the train goes, the smaller distance you need for a safe site distance. Can I ask you a question on the site distance? Inadequate site distance claim. I didn't see that in your complaint. Your summary judgment briefed and addressed it at all. How is it that's a part of the loss at this point? I think we did address it in both of our- you know, we did talk about the site distance and the failure to maintain a safe crossing and count to- Well, I know the count to deals with failure to maintain a safe grade crossing, but I don't see anything about inadequate site distance at least below. Now, you know, I don't want to take up too much of your time here because you only have about a minute to go. We can keep the clock moving if necessary. If I could just have a second- I mean, you have a reply if you want to sit down and look at it, that's fine too. Okay, let me take a look at it and I will apply it with the court. But the- And the district court didn't deal with it either, you know, as such. I mean, the district court dealt with it in footnote 9 and indicated that- and viewed that as a duty to remove a building. What our argument had been to the district court was that there needed to be an adequate site distance. All of the expert reports talked about the adequate site distance, the statement of facts. And the facts in this case all indicated there was not an adequate site distance. Is there- for preemption purposes, right? Is there any regulation, any provision of- of federal law that somehow links site distance to the rail class? Not that I'm aware of your honor. Be perfectly honest. And with respect to account three, that's a negligence per se client failure to properly mark or secure. You're claiming that the- that the cross-bucks were, what, we're not a proper warning device? We're claiming that the cross-bucks were not properly maintained. Isn't that- not properly maintained? Not properly maintained. You do not claim that in a- in an of itself the cross-bucks were cross-bucks were not a proper warning device because that would seem to me to be a claim that's barred by Shanklin. Would you agree with that? Well, Shanklin would certainly seem to bar that under most circumstances whenever- but when you look at the regulation itself, 646.214B1, you know, it talks about site distance being a requirement- or when there isn't adequate site distance, you need gates and lights. But to answer your case directly, our claim is based primarily on the fact that the warning device installed here, the cross-bucks was not installed in accordance with the- I'm sorry, I forget the acronym and the MTC DU that that requires- Can you be serious on this issue when you concede that this man had crossed or operated his motorcycle over this crossing over a hundred times? I believe the record shows that every time there was never a train at that crossing, any time Mr. Zimmerman had crossed that crossing, furthermore the crossing had been- But he was familiar. He was familiar. There was a crossing. He was familiar that trains do come. He was familiar with the cross-bucks. We would say no, Your Honor, in that the cross-bucks had been allowed to deteriorate. All the signage leading to the railroad crossing had been allowed to deteriorate. The marks on the road had disappeared and we thought that the- that the crossing was no longer active. Certainly had the crossing been maintained, that would have given him a clear clue that the crossing was active. Well, if we're playing poker, I was going to say what's your next highest card? Okay. I just don't think there's any- there's- there's anything for this argument at all. That's my own jet. I wish I could say otherwise, but I'm out of time. Well, we'll have you back on on Rebuttal. Thank you. Thank you. Thank you. Mr. Hahn? Your Honor's Judge Al-Dezard. Hello. I'm Richard Hahn. I'm assisted with by Mr. Stroh. Can you- perhaps pull the microphone a little? How's that, Your Honor? That's- I think that's a good one. Thank you. Thank you. I'll be happy to address any questions the court has in the order that chooses. I would like to just address this last point here about the cross-bucks. We've seen in the brief plenty of alleged that the cross-bucks had been allowed to deteriorate. I don't know what that means. There was never any evidence submitted in the case below in the court below that there was any deterioration. This is a white tape. The white reflective tape was not it? After this crossing was established by the Pennsylvania Utility Commission with federal funds, then thereby bringing in the issue with Shacklin, the MUTCD changed. And it said going forward, if you're going to put a cross-bucks, you should put red, reflect-rise tape on it. Okay. There's absolutely nothing in that MUTCD or any other statute of regulation that requires people to go back and retrofit, at least not at the time of this accident. Planef had two expert reports in this case. Neither one of them said that the time of this accident the railroad was required to do anything with regard to those cross-bucks. This argument was clearly preempted and for the Planning Council to come in and tell the court there was something that the railroad should have done with that specifying it with regard to those cross-bucks, I think is, um, well, it's difficult. Is that even a maintenance issue or is that really changing the nature of the warning, sign, or device to the extent that you're then entering into an area that really is clearly preempted? You're absolutely right, Your Honor, and that's why Planef has to frame this as a maintenance issue. It's not a maintenance issue. He's saying there shouldn't have been cross-bucks there. There should have been warning lights and gates because my client, Mr. Zimmerman, decides he was to go a 35 miles an hour across this crossing. You know, Franklin makes absolutely clear that once the decision has been made by the state, what the appropriate warning device is, and that has been implemented using federal funds, the discussion is over. Now, you, the railroad does not dispute, does it, that it has a duty to maintain here, if what we're talking about is maintenance, that is, to not allow something to fall into such a state of repairs, there's no question about that. There's no question about that. It may be into a clear area of state law negligence, unpreemptive, right? Absolutely right. Our burdens are clearly established by the law. We have to maintain that crossing as it has been established by the PUC. Under both state and federal law, we have to keep that crossing, I think it's up to 200 yards on either side of the crossing, free from vegetation and other visible obstructions on our land. Okay? When our trains are approaching, we have to give both a visual and an audible indication, and the standards are set by the federal railroad administration, as to the decibel level of the horn, as to the brilliance of the light. Norfolk Southern has oscillating lights, which go on the front of this train as soon as the horn has sounded. There has been not one Ayoda of evidence. In this case, that the railroad failed in any of the duties, they're set forth in the federal law or state law. Speaking of the federal law, focusing specifically on CFR 646.214V. Yes. What does it require of a railroad in these circumstances? And did it change in any way? What was the railroads role in these decisions after it took effect? 646.214, as I look at it, Your Honor, is a design plan. The federal government is saying, when you're building a crossing, these are things to be considered. Do these things, does it create a federal standard of care, which is one of the issues? Well, we know from the Henning case, it certainly does not. Every court that has addressed this has said that it does not set forth a federal standard of care. I believe Shacklin says it. I don't know how more clearly. Henning says it and grade from the eight circuits. Correct. Are there any cases on the MUTCD? I don't know if I'm, it's the MUTCD. Are there any cases dealing with that? Whether that creates a federal standard of care? It does create a federal standard of care. Your signs, let's say you have a stop sign in an intersection, okay? You're a township. And the stop sign is pretty green, as opposed to red. Okay. Okay. Somebody goes through that stop sign, not recognizing what it is, could establish a breach of duty. Once you have complied with the MUTCD at the time that you install that device, then you are there's your preemption. I know you said, Mr. Hahn, that you wanted to start at this point, which was the last issue taken up by your adversary. And before we move to the other matters, you do want to address. I wanted to ask, did you have anything to ask on- No, I have to sell. I have to. No, please. All right. Thank you. Thank you, Mr. Hahn. Then you may proceed, Mr. Hahn. I don't know if the court is still interested in the question of the railroad inventory documents or the accident. I am. Yes. I wonder, you know, we have, we've been in this case for a couple of years. And I have repeatedly been hit over the head by plaintiffs council who says that for some 29 years, Norfolk, Southern has been running people over at this intersection, which I think is, you better be able to back something up if you're going to use it in terms like that. I've looked at these. That's a jury argument. Right. The records say what they say. I looked at 10 different reports as I recall. Right. Of two different kinds. So what's the point? What they show your honor is that from 1975 to 1999, the Rehantful of Accidents, Conrail owned the property at that time. After this cross-buck program funded by the federal government was instituted and Conrail upgraded the cross-bucks at this intersection. There were two minor accidents, 93 and 94. It was one accident in 1999. Norfolk, Southern took over. From that time until 2008, there were no accidents with one exception, Mr. Zimmerman's. So the idea that we have a dangerous intersection here and that we're hiding scrolling documents alike so the federal government does not know about it is rather preposterous. Well, again, I, when I, I got the tone of that in the supplemental briefs we requested again. It sounded to me like an argument to a jury, not what we're concerned about here. Now, either those records come in or they don't come in. Either those records are admissible or they're not admissible. The district court said they weren't admissible. And what was the district court's justification for keeping them? 23 USC section 409 is a. We have two different types of documents here, right? The accident reports are one type of stuff. The other type is a cross-bucket inventory. What does the statute say as to those, those reports? The accident reports are on her? Yes, sir. They are precluded from both use, well, amissability and discovery. And again, you, you are referring to, to which statute? 201. Those six, I believe, Ronald. Let me just take this. You took until the 49 USC 20901. 20901, thanks. I got a question about that. Yes, sir. I see that that protects accident or incident reports from using the civil action for damages, only where I'm quoting the action results from the matter mentioned in the report. Now, all right, maybe that covers the report in the Zimmerman case. But what about all the other reports? Exactly. I don't think that, how does that cover all the other prior reports? I know that there was some confusion on this issue, you're right. So look, I didn't look very confusing. In me, it looks like plain text would preclude, would preclude only the report as to this incident, doesn't it? I would disagree, Robert. If you give me one second, please. Thank you. It says no part of an accident or incident report filed by the carrier under this title, or made by the secretary under 20902, may be used in a civil action for damages, resulting from a matter mentioned in the report. Now, the reports of each one of these all talk about the same thing, and that is a highway. You talk about the same accident. Not all about the same accident. No, sir. You're not seeking damages for any of the other accidents. Plain if it's not. Plain if it's not. Could you, Mark, you better often rely on section 409, which contains the same exemption and makes a reference to section 130. Well, Your Honor, if you take the broader view of 409, any type of report that is provided to the government or to a governmental agency as a result of some safety program, and I would argue that all of these accident reports that are sent into the FRA are all part of a safety enhancement program. There will be no other reason for these reports to be submitted. As you point out, Judge Elders, are under that view, all of these records, accident and the great crossing inventory forms would all be privileged under 409. And the 409 changes the previous version of 409, referred to section 152, which was relied on a lot by your friend on the other side. But the new version of 409 effective 2005 refers only to 1 3 0, 1 4 4 and 1 4 8, and does not refer to 1 5 2. I believe on that. Yes, I believe that 1 5 2 is a recodification of 1 4 8. I think they just designated it differently, but it's the same act. You know, being case relied upon by your adversaries are strozic case. How do you get around that? Well, there's nothing to get around. Strozic is fine law, and it's not in conflict with any of the other decisions by the United States Supreme Court and otherwise on the preemption case. All that strozic says is just because the inadequate signalization claim is preempted and just because the speed claim is preempted, that doesn't mean that every case is going to get passed out of, is going to get passed out of court on a state law. On a state law claim. It's strozic. It's fair enough, but let's continue to talk about these evidentiary issues and the invocation of a privilege. Yes, sir. And the Supreme Court's Pierce County versus KEN case was discussed in the briefs, and I believe also by the District Court, does that provide you with authority to keep out all of these reports, to rely upon privilege in keeping out all of these documents, both the accident reports and the NCI documents? You know, your Honor Judge Thomas didn't give us any guideposts as to what would not be privileged, but it's impossible to read. That's because if I recall correctly, he followed the government's position in their Amicus brief and found a middle ground between the two rather extreme positions taken by the party. So it's, you're correct, he didn't draw any real clear lines, but I think that what it left us with was concluding that the touchstone, the touchstone in determining what the scope of the privilege is, is the relevant governmental program and its purpose, and whether the document was collected or created for that. Well, we will look at that step by step, what the plaintiff seeks to introduce or documents collected by the government as part of a safety program or procedure, and is protected by 130. But who is protected by this privilege, the state, or the railroad? Right, this is not an immunity that is conferred upon upon. I understand, kind of that is an evidentiary privilege. An evidentiary privilege, and it's the data itself that is privileged. Read the language of the statute, it says in any proceeding for damages, all data, regardless of the source, is privileged. I mean, think about it, Your Honor, the government could have required the railroads to do X, Y, and Z back when they introduced the 1973 I was Safety Act. It did not. In order to get voluntary cooperation in this scheme of putting together a gigantic database that would cover the 100s of thousands of crossings in this nation, Congress saw fit to give a privilege to all of that data to prevent just what we have here. Someone would come in waving a piece of paper and say, aha, this means something. Yeah, Guillen said that this is to be construed narrowly. The other privilege is. Well, of course, like all privileges. But the question, the question is, you've got to follow along. Was the 1973 Act at such a 130 implicated when this national database was put together? Of course, was there any authority for putting together a national database other than this? No, there was not. What is the data that's being submitted? The data that's being submitted is every crossing in the nation's being submitted. I think the privilege question here is a tricky one. And as he and tells us, I think it requires us to look carefully at the statute and its purpose and so forth. But if you would, setting aside the privilege question right now, can you explain to me what has been nagging at me and I hinted that this in my question earlier to Mr. Boyle, can you explain the discrepancies in the classification of the crossing in the areas documented? To answer the question that you asked, Mr. Boyle, there's no railroad is permitted by federal authorities. Established track as it wishes. Amtrak wants to ride it 80 miles an hour. So it is in a lateral process. It's a unilateral process. But what happens is this, the standards are set forth in the CFRs and they say if you want to be able to run trains at 100 miles an hour, you have to have this many ties per yard. You have to have this many fixtures on each tie. So does that leave open a misclassification claim as I believe it is pleated in count one, either intentionally or negligent? I don't understand what a misclassification claim is. Well, the maximum speed should have been delimited more than it was by the classification of the railroad and laterally sought out. If the plaintiff's experts and the responsibly railroad experts had come in and said we looked at the gauge of the track. We looked at the curvature of the track. We looked at the number of pies per square mile. You would concede that as either an intentional act or an negligent act, that would not be precluded. I'm not sure that I understand what your effectiveness is. Why would anybody muster evidence through experts if you didn't have a factual question that experts could testify? The experts could testify. If they could show that this track was in disrepair and should have been classified class one. But my question was, you only get to that point once you fail on preemption and concede that there's a factual issue here in an negligence claim. Right. What happened was at one time back with Penn Central owned this property and then with Conrail owned it. It was class one track. At some point in the late 90s or 2000s, that entire section of track, the new hall of secondary, was upgraded and was upgraded to allow it to handle traffic up to 40 miles per hour under the FRRA guidelines. Now, it's not as if there's no government oversight. The FRRA has track inspectors that come around. We'll say, we do have this graded act while it's class three. And I'll expect to make sure that it's up to class three specifications. Okay. There's no indication in this case, no suggestion by any expert that this was not class three track. We've had the people, the top people in the engineering department at Norfolk Southern Test Life. But the answer to this thing is you guys said it wasn't class three track. You said it was class one. And in fact, one document in this record that the district court looked at as well submitted by your client says class one. Right. Because that's a mistake. That was created after Conrail had listed in the track one and before the information got to, whoever it is, it sends in these forms. Why isn't that a very question if you've got one report out of a number of them that's saying class one? What your honor, if there was some reliance on the fact that this document had been submitted, I understand that. If the plaintiff said, you know, geez, I always thought that this was a class one track and the trains only went 10 miles per hour. I can understand there'd be reliance on that. But there's no indication in this case that anybody relied on one piece of improperly submitted information. And then of course, you got to get to the question of the privilege. So let me ask you, I just, because I maybe I don't understand the system. Is there a duty to report to the government? This particular area is class three track, or class, or whatever it is. Or will you know that? Yeah. We know that and when the FRA sends in track inspectors, we'll tell them that this is class three track. But otherwise there's no sort of affirmative duty to tell them. And we didn't have a duty to submit that form that the plaintiff relies on, which we claim is privileged. We had no duty to just supply that. Frankly, railroad companies don't have to tell anybody how fast they run their tracks. We are permitted by the federal government. I was surprising for a layperson, at least I'll speak to myself. Well, understand there's an awful lot of federal oversight in all of these operations. The FRA has track inspectors and other inspectors come through all the time. So, you know, it's a pretty tight system. It's not as if the government just allows railroad companies to go off and do whatever they want to do. It does not. And as Geronter properly pointed out, if we made a mistake, it's somebody one of these forms. FRA is going to be pounding us with sanctions and everything else. The question is, is that information privileged can it be used in a proceeding like this for money damages, a rising out of the subject matter of that report? Jealousy, do you have questions on this on this count? No questions. Thank you, sir. Is there anything else you want us? I don't believe. Thank you very much. It's a pleasure. Judge Al Dzer, pleasure, sir. Mr. Boyle, rebuttal. Thank you, sir. Thank you, Your Honours. Judge Chagarras, just to address your issue about whether this was alleged in the complaint on the site. The main paragraph 52 of the complaint says that the crossing at Diller Avenue has a quote, unusually restricted site distance, close quote, because of buildings lining the tracks all along the north by side of the street. And that is part of counts. It's count three. The central issue in here is whether the railroad has a duty to provide inadequate site distance to protect the public. We believe that the tolls at K says that the railroad does. How the railroad does that is up to the railroad. They have the authority to remove the building. They have the authority to alter the train operations. They have the ability to do, take other steps to warn people should be choose to do so. But the duty itself is a duty to provide inadequate site distance. And the railroad has failed to do that, even the plaintiff's own experts admit that. The court also talked a lot about the evidentiary privilege under 409. I think it's important to look exactly at the text of 409 and what 409 protects and what 409 doesn't protect. 409 is a statute that protects data gathered by the state and recorded to the FRA. It's not a statute that protects data that's reported directly to the FRA by the railroads in any way, shape or form. The statute, there is currently an obligation for the railroad to report to the FRA certain information, but that did not exist at the time of this accident. So I think when you look at the text of 409 itself, it talks about state agencies. And it talks about reports to the FRA by state agencies. Even the Supreme Court case, Pierce County versus Julian, it was a case brought by a state agency to see prevention from disclosing its engineering studies. If you look at the footnote in the Julian case, the records actually in question were all records generated by the state and reported the FRA as part of its railroad crossing obligations. In this case, the accident reports have nothing whatsoever to do with 409. They're not reported to the FRA. We're in the text of 409. Is there a limitation to documents submitted or prepared or somehow compiled by the state? I think it references sections 131.48. And those sections, I said 152, it's now 148. Those sections all relate to state obligations to report when you look at the text of them. And I don't have the exact language here for each one. Each one imposes upon the state and obligation to conduct certain studies and to produce certain documents and to report that to the Federal Railroad Administration. Those documents would be the documents that are covered by the 409. And I see that I am just about out of time, of course, any further questions? I don't have any questions. I have none. Thank you very much, Mr. Boyle. Thank you, Mr. Han. The case was very well argued. It's a matter as with all preemption matters, at least speaking personally, that is not without a certain amount of complexity. But your arguments were quite helpful. We thank you and we'll take the case under it