welcome to the newly refurbished court room of the third circuit recently completed it doesn't look as much like a space ship as i was told that's it welcome everyone and we have with reserve four minutes for rebuttal granted please the court this case arises out of an accident that happened at a railroad intersection on june twelfth two thousand and eight on that day robert zimmerman was riding motorcycle up words a day crossing a train from norfolk southern was coming from his right hand side as he observed the train went 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've raised we will get right to those  and to some extent i'm sure we'll be covering the facts because this is state negligence law case and they're necessarily in a point with some difficult preemption issues we indulgences of my colleagues i don't like to for my own benefit clarify count per house the claims that have been made which is to say i know how they've been nominated in the complaint i've read the complaint but  then theory of liability by theory of liability under the counts what we're talking about a possible preemption purposes and what claim is being raised that was ruled upon by the district court in that we might be reviewing who are other purposes of this position not based on preemption you follow me i do your honor and i and i apologize for any confusion no no no not at all it's because i think there's a certain amount of of overlap here too sorry i'm not suggesting there's any failure on the part of plaintiff or players counsel but count one is safely characterized as a failure to warn claim is that right it is a failure to warm  in play and with respect to that failure to warn we can isolate the lights and the more separately and we not as factual issues we can we can your honor and all 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 what is in the record with respect to the use of lights in war we cannot prevail on that issue your honor all right good good enough the other part of the failure to warn is an excessive rate of speed theory is that correct that that is correct there's also a slight distance there we believe in paragraph thirty nine of count one oh all right  is if i'm reading the complaint correctly essentially two part that is that the track was actually a class one prior which seems to implicate which does implicate certain facts here  to when and how and by whom some eyes of patients made and secondly a theory that there was either intentional or negligent misclassification of the class and i corrected your honor to put more of a fine point on our theory there i think the theory that we feel we've been seeing it is that the evidence submitted a trach classification is ambiguous and that there are documents from norfolk southern that indicate three separate classes while i understand but that's that's not answering my my question as to what theory you you have pled my understanding is that 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 complain that now i think that is an accurate reading of the the complaint we believe that the classification was either a class one classification or that it was represented to the federal railroad administration to be a class one classification represented to the to the to the f r a that's 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 your sugar is as a new jersey boy may not be aware of this but is a judge all the surge is a favorite son of pittsburgh is well aware of the fact that i'm from a railroad town altoona pennsylvania and i have no idea how these things are classified never come across this problem before and it wasn't wasn't entirely answer for me in reading the briefs what is the process that is purposes it's an attempt to answer that as best i can although i'm not an expert on that that specific field the practice of cation as i understand it is a stablished by the railroad based upon a number of factors including the maintenance of the track the number of pis there use the curvature of the track the those standards being dictating how fast a train can safely operate on th somewhere is it actually memorialise that this is the railroad classification i know you don't know the the c f r elsewhere does it say the railroad shall make this determination now what the c f r does is it sets were the standards for the particular classifications tracks but what about process i mean i'm 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 track needs to be and then it maintains tracks to meet that classification now the 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 the ten different documents i looked that indicated a class one a i understanding your position to be that these accident reports and these reports filed with the f r a should all have come in and if they came and there would be a question of fact is that the classification i believe so your honor the one is the u s department of transport transportation him and court documents those documents lists the train speed that is that the trains are actually traveling over those tracks and they all of those accident reports indicate that there 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  but isn't it true that that's a pretty big time period that spans a period of thirty years however the corporate doesn't need that norfolk southern produced indicated that there had been no change the track classification over that time period  how would it change be made i don't really know i asked the track supervisor that what 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 you unilateral process the corporate as it may said he was unsure as to how the classification was arrived at well where's the negligence pardon where is the classification is as it's been reported to the f r a in the speed limit is class one of the speed limit is ten mph then the negligence comes from the fact that they're exceeding the federally authorized the limit because the the train in this particular case was travelling twenty four point five miles an hour so if it's should be classified class to class three you have no negligence cause of action as to exists we do not have a negligence classification if it is right however what it does do is that it does call into issue and issue we think the concept of federal preemption in that if the train speed is being misrepresented to the f r count one or anything else now i don't and i think that that if there's only twenty minutes left for all twenty minutes for argument and i don't see any and it and the contentions  failure to maintain a great crossing iraq correct failure to maintain an adequate sight distance and the failure to maintain the the railroad signs in accordance with the  c and i'll be interested to hear from your adversary on this one but i assume that you take refuge in know that you rely upon our strategic opinion which holds that common law claims were failure to for all involved things other than vegetation you know johnson involved the garage and telephone poles failon involved in building so what's involved here here is involved a sign in a building what do you maintain that the railroad should have done about well i think the railroad had a duty to take the building and put a factor in deciding how it was going to conduct its railroad operations that was pretty big well they could have that doesn't require them to do anything with the obstruction with the building that just says they should have been no breaking the train was no but the slight distance triangle is serious and the federal regulations are dependent upon the speed what argument had been to the district court was it at that that there needed to be an adequate site distance all of the expert reports talk about the adequate site distance the statement of facts and the facts in this case all indicated there was not an adequate psych distance is there for preemption or is there any regulation any provision of of federal law that somehow links site distance to the real class not that i'm aware of your honor you're you're claiming that the that the cross talks were what were not proper morning device were claiming that the prospects for not properly maintained isn't that clear not properly maintained not properly doing it i do not claim that enough in and of regulation itself six forty six point two one four b one you know it talks about sight distance being a requirement or when there is an adequate site distance you need gates and lights but to answer your case directly that requires some act around for can you be serious on this issue when you can see that this man has crossed operated as motorcycle over this crossing over a hundred been allowed to deteriorate the marks on the road had disappeared and i thought that the that the crossing was no longer active certainly had the causing been maintained that would have given him a clear regulation requires people to go back and retrofit at least not at the time of this accident they've had to expert reports in this case even one of them said the time of this accident the railroad was required to do anything with regard to those cross issue is that really changing the nature of the warning sign or device to the extent that you then entering into an area that really is clearly preempted you're absolutely right ron and that's why 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 you the railroad does not dispute does it it has a duty to maintain here if what we're talking about is me that is to not allow something to fall into such a state of repair there's no question about it into a cleary of state law negligen absolutely right or burdens are clearly established by the law we have to maintain that caution as it has been established by the p u c under both state and federal law we have to keep that crossing i think it's up to two hundred yards railroad failed in any of the duties there set forth in the federal law what or state law is speaking of the federal law focusing specifically on c f r six forty six point two fourteen  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 six forty six point two one four as i look at it your water is a design plan the federal government is saying when you're building a crossing these are things to be considered are these things it does it create a federal standard of care which is one of the issues well we know from the head in case it certainly does not every court that has addressed this is said that it does not set forth the federal standard of we have we've been in this case for a couple of years and i have repeatedly been hit over the head by players counsel who says that for some twenty nine years nor folks southern has been running people over at this intersection which i think is a you better be able to back something up if you're going to use it in terms like that i've looked at is what's jury argument that write the record say what they say i i look at ten different reports as i recall right book program funded by the federal government was instituted and conrail upgraded the cost box at this intersection there were two minor accidents ninety three and ninety four was one accident nine hundred ninety nine more folks saw the puck over from that time until two thousand and eight there were no accidents with one exception mr zimmerman's so the idea that we have a dangerous intersection here and the one hiding swirling documents like the federal government does not know about it is rather preposterous well i again i when i i got the tone of that in the supplemental briefs we requested again it sounded to me like an argument with yuri not what we're concerned about here now either miss ability and discovery question about yes i see that that protects accident or incident reports from used the civil action for damages only where and i love quoting the action results from the matter mentioned in the report now it says no part of an accident or incident report filed by the carrier under this title or made by the secretary under two one one zero two 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 how do i get back the same method in not all but the same accident no sir you not seeking damages for any other accidents pl one three how well your honor if you take the broader view for zero nine any type of report that is provided to the government or to a governmental agency as a result of some safety program and i nine i referred to i was section one five two when it was relied on a lot by you or your friend on the other side but the new version of privilege and now the the supreme court's pierce county versus here in case was discussed in the briefs and i believe i believe also by the district that does that provide you with authority to keep now all of these reports to to rely upon privilege in keeping out all of these 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 he you are correct he didn't draw any real clear lines but i think that what document was collected or created for that well we will look at that step by step what the play is six to introduce their documents collected by the government as part of a safety program or procedure and i it's the data itself that is privileged language of the statute that says in any proceeding for damages all data regardless of the source is privilege i mean think about iran of the government could have required the railroads to do x y and z back when they introduced the ninety seventy three i was safety act it did not nor did they get voluntary cooperation in th scheme of put it together a gigantic database that would cover the one hundreds of thousands of croissants in this nation congress saw fit to give a privilege to all of that data to prevent just what we have here someone come in waving a you would setting aside the privilege question for right now when you explain to me what has been nagging at me and i hinted at this in my question earlier to mr the sea of course and they say if you want to be able to one trains at one hundred miles an hour you have to have this many ties per yard you have to have this many fixtures on each top so does that leave open a misclassification claim through experts if you didn't have a factual question that experts could testify to the experts could testify if they could show if they could show that this track was in disrepair and should have been classified class one but but my question was you only get to that it ok it was class one track it some point in the late ninety's or it two thousands that entire section of track they knew all secondary was upgraded and was upgraded to allow it to handle if there was some reliance on the fact that this document had been submitted i understand that if the player said you know jeez i always thought this was a class one track and the trains only went ten miles per hour i can understand that the reliance on that but there's no indication this case that anybody relied on one piece of improperly submitted information and then of course you've got to get a question of the privilege so do you do let me ask you to just decide maybe i don't understand system  their tracks ok we were led by the federal government rising for lay person at least myself well understand is an awful lot of federal oversight in all of these operations the a far right as track inspectors in other respects come through all the sanctions and everything else the question is is that information privileged can it be used in a proceeding like this for money damages wising out of the subject matter of that report  do you have questions on this on this count no question thank you sir is there anything else rogers i don't believe thank you thank you very much pleasure judge others are pleasure  us too to address your issue about whether this was alleged in the complaint paragraph fifty two of the complaint says that the crossing iller avenue has a quote unusually restricted site distance close the central issue in here is whether the railroad has a duty to provide an adequate site distance or protect public we believe that the us you know 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 up ability to do take other steps to warn people should they choose to do so but the duty itself is a duty to provide an adequate sight distance and the railroad has failed to do that even the plane and its own experts admit that the court also talk gathered by the state in the accorded to the f r a it's not a statute that protects out of that's reported directly to the f r a by the railroads in any way shape or form the statute there is currently an obligation for the railroads reports the f r a certain certain information but that did not exist at the time of this accident so i think when you look at the text before zero nine itself it talks about state agencies and it talks about reports now one forty eight those sections all relate to state obligations to report when you look back stab them and i i don't have the exact language here for each one beach each one imposes the the state an 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 are covered by the bye for  complexity but your arguments were quite helpful we thank you and we'll take ace hundred