A federal law intended to keep state reports on auto accidents off limits to tort claimants creates an absolute privilege against their disclosure in discovery, a state appeals court held on Thursday.
But the Appellate Division remanded the issue in Carpio v. State of New Jersey, finding an insufficient record to determine the records' purpose and the requester's identity — on which the privilege depends.
The judge below, Thomas Manahan of Morris County Superior Court, did not focus on the privilege but ordered disclosure under Rule 4:10-2(g) because it was "the least restrictive and least burdensome" way to get the reports.
The wrongful death suit at issue was filed over a five-vehicle crash on Aug. 4, 2008, on Interstate 80 at milepost 28.7 in Morris County. Victor Carpio's Ford pickup truck flipped and burned after it was hit head on by a tractor-trailer that crossed the grass median.
His estate, seeking support for its claim against the state over the allegedly dangerous roadway, asked the Department of Transportation to produce all reports of accidents between mileposts 25 and 30 from 2003 through 2008.
The DOT refused based on 23 U.S.C. § 409, a statute enacted in 1987 to facilitate collection of data for use in handing out federal highway funds.
The law was meant to encourage states to evaluate roadway safety and report to the federal government materials and data about accidents on those roadways without allowing the information to be obtained from state highway departments by plaintiffs who want, in the words of the U.S. Supreme Court, "an effort-free tool in litigation against state and local governments."
It creates a privilege applicable to "reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings" or "for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds."
"Notwithstanding any other provision of law," items covered by the privilege "shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data."
The estate then tried to subpoena state police reports for 2003 to 2008 accidents in which a car crossed the median on that section and was told it would have to pay $21,077 for the time needed to review the records.
The state police responded to a narrowed subpoena, covering only mileposts 27 to 30, saying reports for 2003 to 2005 had been destroyed under a six-year retention schedule and the 627 reports it had on accidents from 2006 to 2008 would cost $10 each.
In opposing the estate's ensuing motion to compel, DOT used the information collected from around the state to create a database mandated by federal law for states seeking federal aid for road projects.
It also said the information helped it identify crash-prone sites, evaluate conditions and make roads safer.
Manahan granted the motion because it was "costly, burdensome, and potentially incomplete" to obtain the records through other channels.
But Appellate Division Judges Carmen Messano, Jack Sabatino and Margaret Hayden found an absolute privilege, rejecting what they called Manahan's "competing interest" approach.
They cited the "notwithstanding" language in the statute and Congress' intent to prevent chilling state reporting of accident data.
The judges saw the DOT certification as conclusory and ambiguous on whether federal law mandated the reports and remanded for discovery.
The panel instructed the lower court to consider the potential impact of the Third Circuit's Jan. 23, 2013, opinion on the scope of the privilege in Zimmerman v. Norfolk Southern Corp.
Division of Law Director Christopher Porrino says he agrees "that a more searching examination of the privilege issue is needed to assure that the goals of the federal statute are satisfied."
Woodland Park attorney Ernest Fronzuto, who represents Carpio's estate, says his concern was not the expense of getting records from the state police but that many were unavailable, except from DOT. He adds that the ruling could affect not just interstate highways but even county roads.
New Jersey Association for Justice President Francisco Rodriguez, of Goldsmith, Ctorides & Rodriguez in Englewood Cliffs, says DOT will have to show that securing federal funds was the exclusive purpose for the records.
He compares the privilege to the one created by New Jersey's Patient Safety Act, which shields hospital reports and assessments of serious "adverse events."
The New Jersey Supreme Court agreed last December to review an appeals court ruling that the privilege applies only to documents "exclusively created in compliance" with the act.