Recreating Visual Aspects of a Crossing Collision

The first time I considered the possibility of compelling the production of a train, it was more a fanciful thought than a serious belief that the task could be accomplished. The initial research concerning discovery of such equipment revealed nothing that prevented me from such an endeavor. Many attorneys, including myself, had obtained court orders to produce locomotives for inspections. However, those inspections had never included the ability to ride on a moving train. Typically, the inspection involved a supervised visual and photographic inspection of a stationary locomotive at the local rail yard. In order to conduct the re-creation of a grade crossing accident, it became necessary to obtain inspection rights along with the right to operate the train across your specific grade crossing at predetermined speeds and under specified conditions. This request did not initially appear to me as one likely to be accorded serious consideration. My first informal discovery request for such a re-creation was met with a tongue in cheek agreement to produce the train for a fee somewhere around $100,000. I knew the figure was exaggerated, but didn’t want to argue “a few bucks” at that level. When faced with the potential financial obstacle, I shelved the idea for some period of time. While working on another case, I obtained the equipment lease agreement from a locomotive and train equipment lessor. Much to my surprise, the lease contained a locomotive cost of $100 per day. Armed with this information, I resumed my attempt to force production of a locomotive for my re-creation. Attached hereto is a copy of the first order requiring production of a train under conditions necessary to film a re-creation. This order has served as a guide in subsequent cases. Also attached as an appendix to this paper is the billing for $1,297.48 received from the railroad for the use of the train. It should be noted that $261.47 of the bill was for payment of wages of a railroad investigator who did not need to be at the scene. This expense could have been contested, but I felt that the contest would be more costly than the potential savings.

The federal rules of civil procedure provide a conduit for compelling the production of a train necessary for filming a re-creation. The following federal rules must be considered:

Rule 26 (b)(1) reads as follows:

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. The information sought need not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”
Rule 34 provides in pertinent part:

“Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requester’s behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phone records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).”

The Advisory committee notes to the 1970 Amendment of Rule 34 contemplate exactly the type of scenario a plaintiff would need for filming an accident re-creation. Those notes state:

“Rule 34 is revised to accomplish the following major changes in the existing rule: €¦ (3) to include testing and sampling as well as inspecting or photographing tangible things.”

“The inclusion of testing and sampling of tangible things and objects or operations on land reflects a need frequently encountered by parties in preparation for trial. If the operation of a particular machine is the basis of a claim for negligent injury, it will often be necessary to test its operating parts or to sample and test the products it is producing.”

I have cited the above federal rules because the discovery codes in most states, including all of those in which I have compelled production of the train, are patterned after the Federal Rules of Civil Procedure. In Oklahoma, we were challenged by a “Writ of Prohibition” filed in the Supreme Court for the State of Oklahoma. The Union Pacific Railroad was not willing to comply with the District Court’s order compelling our re-creation. However, the Oklahoma Supreme Court denied the writ and our re-creation proceeded as requested. The citation for the denial of that writ is Missouri Pacific Railroad Company, a Delaware Corporation, d/b/a Union Pacific Railroad Company etal v. The District Court of the State of Oklahoma, Twenty-Sixth Judicial District, Canadian County and the Honorable Edward C. Cunningham, District Judge, Case No. 87240.

Once you have overcome the sometimes difficult hurdle of obtaining a train, the work on a re-creation begins. The balance of this paper contains an overview of that task by Steve Irwin, my Reconstruction Engineer and Mark Johnson, the President of Visual Law. Without the efforts of those individuals, the creation of a high-quality exhibit showing our re-creation would have been impossible.