C. Discovery Plan

1. InterrogatoriesPlaintiff’s interrogatories should nail down three things: 1) the name of the MHTC engineer or employee most familiar with the stretch of highway were the accident occurred, 2) the standard MHTC claims is applicable to the design of the accident site, and 3) the existence of records detailing all the work MHTC has done along the stretch of highway where the accident occurred. The name of the employee is straightforward. Keep in mind though, MHTC will have engineers who will be able to explain the standards but have little knowledge of the policies MHTC sets out to implement. Nevertheless, counsel for plaintiff will want to take the deposition of an engineer for MHTC to explain the standards used at the accident site and the design history of the accident site.Counsel for plaintiff will also want to have MHTC define what standard it believes is applicable. MHTC will have to rely on a pre-1977 AASHTO standard in order for the “state of the art” defense to be applicable, but it will be important to determine if MHTC is relying on the standard used when the stretch of highway or road was first built or some subsequent standard. The plaintiff could also use the interrogatories to find out if the road was built today, then what standard or design MHTC would use.The interrogatories should also be used to identify maintenance and design records. These records are critical to the plaintiff’s case because they will show the actual modifications done to the accident. In one recent case, MHTC made numerous improvements to a roadway, including widening shoulders and adding rumble strips, but failed to update the road by adding guardrails despite the height and slope of the ditch requiring guardrails to prevent rollovers under current standards. Discovery of MHTC’s own knowledge of these dangers was essential to the successful recovery for the client.
2. Requests for ProductionThe plaintiff will want to request documents pertaining to the original design, the current design, and all modifications. MHTC will have work orders which detail everything from resurfacing to adding new lanes to the roadway. The more documentation the plaintiff can obtain that shows MHTC has made substantial changes to the highway the stronger her argument will be that MHTC had the opportunity to update the highway to current standards.

Plaintiff should also request documents from MHTC relating to any system wide policies that MHTC had in place relating to the design flaw in question. For instance, if plaintiff’s case centers on the absence of a guardrail, then the request for production of documents should ask for all written MHTC policies regarding guardrails or other devices to prevent cars from causing crossing a median. Showing that MHTC has a policy to add more guardrails statewide to prevent lane departures could be compared to the clear cutting policy MHTC implemented in Martin, which resulted in the court finding MHTC had abandoned the “state of the art” defense.⁵⁹ Any documents produced should be sent to an expert for evaluation.

⁵⁸ In a recent case, MHTC admitted the road was not up to current standards, despite subsequent repairs and updates at the site. 
⁵⁹ See Martin, 981 S.W.2d at 585.