OBTAINING EVIDENCE UNDER THE NTSB REGULATIONS

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1 OBTAINING EVIDENCE UNDER THE NTSB REGULATIONS 1998 AMENDMENTS TO TITLE 49 PART 835 by Brian C. Dalrymple Nixon Peabody LLP Two Embarcadero Center, 26 th Floor San Francisco, CA Telephone: (415) Facsimile: (415) th Annual SMU Air Law Symposium February 23 26, 2000 Dallas, Texas

2 1998 AMENDMENTS TO TITLE 49 PART 835 Brian C. Dalrymple INTRODUCTION The National Transportation Safety Board ( NTSB or Board ) is the government agency responsible for investigating aviation accidents. Following a NTSB investigation of an aviation accident, the Board releases a report which contains factual findings and probable cause determinations. The report may also contain safety recommendations to the Federal Aviation Administration and other government agencies and/or entities regarding certain preventative measures that the Safety Board feels should be taken to reduce the likelihood of future accidents. Parties involved in post-accident litigation often wish to use the information contained in Board reports. The Board s stated concern, however, is that the use of such reports will embroil Board employees in litigation and distract them from their primary goal of air safety. To reduce the risk of such a result, several statutes and regulations govern the use of Board employee testimony and NTSB reports in litigation. Part 835 of Title 49 of the Code of Federal Regulations ( Part 835 ) regulates the use of Board employee testimony and reports in litigation. Section 701(e) of the 1958 Federal Aviation Act, codified at 49 U.S.C. 1441(e), prohibits NTSB reports of any accident investigation, or any part of the report, from being admitted as evidence in lawsuits arising from the accident. 1 Section 304(c) of the Independent Safety Board Act of 1974, codified at 49 U.S.C. 1903(c), also prohibits the use of Brian Dalrymple is a partner in the firm of Nixon Peabody LLP resident in their San Francisco office. The author wishes to express his appreciation to Eric Strain, an associate with the San Francisco office of Peabody Nixon LLP, and to Carrie Keinholz, a summer associate with Nixon Peabody LLP, for their assistance in the preparation of this article U.S.C. 1441(e) provides: (Footnote continued) 3

3 NTSB reports using language almost identical to that used in 1441(e). 2 In 1994, Congress recodified sections 1441(e) and 1903(c) at 49 U.S.C. 1154(b) without making any substantive changes to the provisions. 3 In December, 1998, Part 835 was revised by the NTSB to clarify and codify existing policies regarding the admissibility of NTSB reports and Board employee testimony in litigation arising out of transportation accidents. See 63 Fed.Reg (1998). The revised Part 835 became effective on January 28, The amendments to Part 835 represent a significant effort by the Board to establish clearer guidelines regarding the extent to which NTSB reports and Board employee testimony may be used in the context of civil or criminal litigation. This paper surveys the admissibility of Board reports and employee testimony under 49 C.F.R. 835 et seq. with particular focus on the practical needs of the aviation litigation community. Section I tracks how the 1999 amendments changed Part 835. Section II presents a compendium of various decisional authorities that have interpreted the issue of the admissibility of Board employee testimony and NTSB reports under Part 835, 49 U.S.C. 1441(e), and 49 U.S.C. 1903(c). Part II also discusses how some of these decisions would likely be decided under the revised Part 835. No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports U.S.C (c) provides: No part of any report of the Board, relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports U.S.C. 1154(b) provides: No part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report. Courts interpreting the statutory bar against admission of Board reports do not distinguish between the various statutory provisions. This paper also treats them as interchangeable. 4

4 TRACKING THE 1999 AMENDMENTS TO 49 C.F.R. 835 The 1999 amendments to Part 835 clarified the regulations governing the admissibility of NTSB employee testimony and accident investigation reports. This section compares the revised Part 835 with the previous version, and tracks how they differ. A. 49 C.F.R Purpose Revised Regulation This part prescribes policies and procedures regarding the testimony of employees of the National Transportation Safety Board (Board) in suits or actions for damages and criminal proceedings arising out of transportation accidents when such testimony is in an official capacity and arises out of or is related to accident investigation. The purpose of this part is to ensure that the time of Board employees is used only for official purposes, to avoid embroiling the Board in controversial issues that are not related to its duties, to avoid spending public funds for non-board purposes, to preserve the impartiality of the Board, and to prohibit the discovery of opinion testimony. Previous Version This part prescribes the policies and procedures regarding the testimony of employees of the National Transportation Safety Board (Board) in suits or actions for damages and criminal proceedings arising out of transportation accidents. The purpose of this part is to ensure that the time of Board employees is used only for official purposes, to avoid embroiling the Board in controversial issues that are not related to its duties, to avoid spending public funds for non-board purposes, to preserve the impartiality of the Board, and to prohibit the discovery of opinion testimony. Discussion of Amendments The 1999 amendments did not alter the basic purpose of the regulations. The amendments did, however, modify the scope of the regulation s coverage with respect to Board employee testimony. Previously, Part 835 regulated testimony arising out of transportation accidents. The revisions added the limiting phrase when such testimony is in an official capacity and arises out of or is related to accident investigation. 5

5 B. 49 C.F.R Definitions Revised Regulation Accident, for purposes of this part includes "incident." Board accident report means the report containing the Board's determinations, including the probable cause of an accident, issued either as a narrative report or in a computer format ("briefs" of accidents). Pursuant to section 701(e) of the Federal Aviation Act of 1958 (FA Act), and section 304(c) of the Independent Safety Board Act of 1974 (49 U.S.C. 1154(b)) (Safety Act), no part of a Board accident report may be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such reports. Factual accident report means the report containing the results of the investigator's investigation of the accident. The Board does not object to, and there is no statutory bar to, admission in litigation of factual accident reports. In the case of a major investigation, group chairman factual reports are factual accident reports. Previous Version Accident for purposes of this part includes "incident." Board's accident report means the report containing the Board's determinations, including the probable cause of an accident, issued either as a narrative report or in a computer format (briefs of accidents). Pursuant to section 701(e) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1441(e)) (FA Act) and section 304(c) of the Independent Safety Board Act of 1974 (49 U.S.C. 1903(c)) (Safety Act), no part of these reports may be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such reports. Factual accident report means an investigator's report of his investigation of the accident. Discussion of Amendments The amendments to section clarify that factual accident reports are admissible in litigation. The definition of a factual accident report was re-worded to read the report containing the results of the investigator s investigation of the accident. The new rule defines group chairmen factual reports as factual accident reports in the case of a major investigation. As under the previous regulations, Board accident reports (which include the Board s determination of the probable cause of the accident) may not be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such reports. The revision also confirms that section 701(e) of the Federal 6

6 Aviation Act of 1958 and section 304(c) of the Independent Safety Board Act of 1974 prohibit the admission of Board accident reports, but not the admission of factual accident reports. C. 49 C.F.R Scope of permissible testimony Revised Regulation (a) Section 701(e) of the FA Act and section 304(c) of the Safety Act preclude the use or admission into evidence of Board accident reports in any suit or action for damages arising from accidents. These sections reflect Congress' "strong * * * desire to keep the Board free of the entanglement of such suits." Rep. No , 93d Cong., 2d Sess., 44 (1974), and serve to ensure that the Board does not exert an undue influence on litigation. The purposes of these sections would be defeated if expert opinion testimony of Board employees, which may be reflected in the views of the Board expressed in its reports, were admitted in evidence or used in litigation arising out of an accident. The Board relies heavily upon its investigators' opinions in its deliberations. Furthermore, the use of Board employees as experts to give opinion testimony would impose a significant administrative burden on the Board's investigative staff. Litigants must obtain their expert witnesses from other sources. (b) For the reasons stated in paragraph (a) of this section and 835.1, Board employees may only testify as to the factual information they obtained during the course of an investigation, including factual evaluations embodied in their factual accident reports. However, they shall decline to testify regarding matters beyond the scope of their investigation, and they shall not give any expert or opinion testimony. (c) Board employees may testify about the firsthand information they obtained during an investigation that is not reasonably available elsewhere, including observations recorded in their own factual accident reports. Consistent with the principles cited in and this section, current Board employees are not authorized to testify regarding other employee's reports, or other types of Board documents, including but not limited to safety recommendations, safety studies, safety proposals, safety accomplishments, reports labeled studies, and analysis reports, as they contain staff analysis and/or Board conclusions. (d) Briefs of accidents may be released in conjunction with factual accident reports. Nevertheless, they are not part of those reports and are not to be admitted in evidence or used in a deposition approved under this part. (e) Not all material in a factual accident report may be the subject of testimony. The purpose of the factual accident report, in great part, is to inform the public at large, and as a result the factual accident report may contain information and conclusions for which testimony is prohibited by this part. (f) No employee may testify in any matter absent advance approval by the General Counsel as provided in this part. 7

7 Previous Version (a) Section 701(e) of the FA Act and section 304(c) of the Safety Act preclude the use or admission into evidence of Board accident reports in any suit or action for damages arising from accidents. These sections reflect Congress' "strong * * * desire to keep the Board free of the entanglement of such suits." Rep. No , 93d Cong., 2d Sess., 44 (1974), and serve to ensure that the Board does not exert an undue influence on litigation. The purposes of these sections would be defeated if expert opinion testimony of Board employees, which may be reflected in the views of the Board expressed in its reports, were admitted in evidence or used in litigation arising out of an accident. The Board relies heavily upon its investigators' opinions in its deliberations. Furthermore, the use of Board employees as experts to give opinion testimony would impose a significant administrative burden on the Board's investigative staff. Litigants must obtain their expert witnesses from other sources. (b) For the reasons stated in paragraph (a) of this section and 835.1, Board employees may only testify as to the factual information they obtained during the course of an investigation, including factual evaluations embodied in their factual accident reports. However, they shall decline to testify regarding matters beyond the scope of their investigation, and they shall not give any expert or opinion testimony. Discussion of Amendments As under the previous regulation, Board employees are prohibited from using Board accident reports during testimony. Also, to avoid entangling the Board in, and exerting an undue influence on litigation, Board employees are barred from giving any expert opinion testimony. Board employees may testify only regarding factual information obtained during the course of an investigation, including factual evaluations embodied in their factual accident reports. The amendments clarify that where Board employee testimony is permitted, it is allowed only if it is not reasonably available elsewhere. Also, included within the scope of permissible testimony are observations recorded in their own factual accident reports. Board employees are explicitly prohibited from testifying regarding the reports of other employees and other types of Board documents, including, but not limited to, safety recommendations, safety studies, safety proposals, safety accomplishments, reports labeled studies and analysis reports. The reason for this exclusion is that these documents contain staff analysis and/or Board conclusions. 8

8 Subsection 835.3(e) clarifies that not all material contained in a factual accident report is necessarily permitted as a subject of testimony. Since one purpose of the factual accident report is to inform the public, it might contain information and conclusions about which a Board employee is prohibited from testifying. The amendments also clarify that while accident briefs may be released in conjunction with factual accident reports, they are not part of the reports and, therefore, may not be admitted into evidence or used in a deposition. Finally, Board employee testimony on any matter must be approved in advance by the NTSB s General Counsel. D. 49 C.F.R Use of reports Revised Regulation (a) As a testimonial aid and to refresh their memories, Board employees may use copies of the factual accident report they prepared, and may refer to and cite from that report during testimony. (b) Consistent with section 701(e) of the FA Act and section 304(c) of the Safety Act, a Board employee may not use the Board's accident report for any purpose during his testimony. Previous Version (a) A Board employee may use a copy of his factual accident report as a testimonial aid, and may refer to that report during his testimony or use it to refresh his memory. (b) Consistent with section 701(e) of the FA Act and section 304(c) of the Safety Act, a Board employee may not use the Board's accident report for any purpose during his testimony. 9

9 Discussion of Amendments The amendments make two minor clarifications. First, a testifying employee may only use factual accident reports prepared by that employee personally. Second, an employee may cite from and refer to that report during testimony. As under the previous regulation, 701(e) of the FA Act and 304(c) of the Safety Act preclude use of the Board s accident report for any purpose during testimony. E. 49 C.F.R Manner in which testimony is given in civil litigation Revised Regulation (a) Testimony of Board employees with unique, firsthand information may be made available for use in civil actions or civil suits for damages arising out of accidents through depositions or written interrogatories. Board employees are not permitted to appear and testify in court in such actions. (b) Normally, depositions will be taken and interrogatories answered at the Board's office to which the employee is assigned, and at a time arranged with the employee reasonably fixed to avoid substantial interference with the performance of his duties. (c) Board employees are authorized to testify only once in connection with any investigation they have made of an accident. Consequently, when more than one civil lawsuit arises as a result of an accident, it shall be the duty of counsel seeking the employee's deposition to ascertain the identity of all parties to the multiple lawsuits and their counsel, and to advise them of the fact that a deposition has been granted, so that all interested parties may be afforded the opportunity to participate therein. (d) Upon completion of the deposition of a Board employee, the original of the transcript will be provided the deponent for signature and correction, which the Board does not waive. A copy of the transcript of the testimony and any videotape shall be furnished, at the expense of the party requesting the deposition, to the Board's General Counsel at Washington, DC headquarters for the Board's files. Previous Version (a) Testimony of Board employees may be made available for use in actions or suits for damages arising out of accidents through depositions or written interrogatories. Board employees are not permitted to appear and testify in court in such actions. (b) Normally, depositions will be taken and interrogatories answered at the Board's office to which the employee is assigned, and at a time arranged with the employee reasonably fixed to avoid substantial interference with the performance of his duties. (c) Board employees are authorized to testify only once in connection with any investigation they have made of an accident. Consequently, when more than one lawsuit 10

10 arises as a result of an accident, it shall be the duty of counsel seeking the employee's deposition to ascertain the identity of all parties to the multiple lawsuits and their counsel, and to advise them of the fact that a deposition has been granted, so that all interested parties may be afforded the opportunity to participate therein. (d) Upon completion of the deposition of a Board employee, a copy of the transcript of the testimony will be furnished, at the expense of the party requesting the deposition, to the Board's Counsel for the Board files. Discussion of Amendments The amendments changed the title of this regulation to clarify that this subsection concerns testimony given in civil litigation only. The word civil was added in three other places in the text of the regulation as well. Under the revised regulation, only Board employees with unique, firsthand information are permitted to testify. The amendments also expand on what is to happen upon completion of a Board employee s deposition. First, the original must be provided to the deponent for signature and correction, a procedure which the Board expressly does not waive. Second, a copy of the testimony transcript (or a copy of any videotaped deposition) is to be furnished, at the expense of the party requesting the deposition, to the Board s General Counsel at Washington, DC headquarters for the Board s files. F. 49 C.F.R Request for testimony in civil litigation Revised Regulation (a) A written request for testimony by deposition or interrogatories of a Board employee relating to an accident shall be addressed to the General Counsel, who may approve or deny the request consistent with this part. Such request shall set forth the title of the civil case, the court, the type of accident (aviation, railroad, etc.), the date and place of the accident, the reasons for desiring the testimony, and a showing that the information desired is not reasonably available from other sources. (b) Where testimony is sought in connection with civil litigation, the General Counsel shall not approve it until the factual accident report is issued (i.e., in the public docket). In the case of major accident investigations where there are multiple factual reports issued and testimony of group chairmen is sought, the General Counsel may approve depositions regarding completed group factual reports at any time after incorporation of the report in the public docket. However, no deposition will be approved prior to the Board's public hearing, where one is scheduled or contemplated. The General Counsel 11

11 may approve a deposition in the absence of a factual accident report when such a report will not be issued but all staff fact-finding is complete. (c) The General Counsel shall attach to the approval of any deposition such reasonable conditions as may be deemed appropriate in order that the testimony will be consistent with 835.1, will be limited to the matters delineated in 835.3, will not interfere with the performance of the duties of the employee as set forth in 835.5, and will otherwise conform to the policies of this part. (d) A subpoena shall not be served upon a Board employee in connection with the taking of a deposition in civil litigation. Previous Version (a) A request for testimony of a Board employee relating to an accident by deposition or interrogatories shall be addressed to the General Counsel, who may approve or deny the request. Such request shall set forth the title of the case, the court, the type of accident (aviation, railroad, etc.), the date and place of the accident, the reasons for desiring the testimony, and a showing that the information desired is not reasonably available from other sources. (b) The General Counsel shall attach to his approval such reasonable conditions as he may deem appropriate in order that the testimony will be limited to the matters delineated in 835.3, will not interfere with the performance of the duties of the employees as set forth in 835.5, and will otherwise conform to the policies of this part. (c) A subpoena shall not be served upon a Board employee in connection with the taking of his deposition. Discussion of Amendments The title of this regulation was also changed to clarify that this subsection concerns testimony to be given in civil litigation only. The word civil was added in two other places in the subsection as well. The amendments also clarify that the request to the General Counsel for testimony must be in writing and that he may approve or deny the request consistent with this part. Under the revised regulation, the General Counsel must condition approval of a deposition on the testimony complying with the underlying purposes of Part 835, as set forth in section In other words, the General Counsel must attach conditions reasonably designed to ensure that the time of Board employees is used only for official purposes, to avoid embroiling the Board in controversial issues that are not related to its duties, to avoid spending public funds for non-board purposes, to preserve the 12

12 impartiality of the Board, and to prohibit the discovery of opinion testimony. The General Counsel is still required to attach conditions to ensure compliance with sections and Subsection (b), which addresses the timing of the General Counsel s approval process for depositions, is new. Under subsection (b), the General Counsel will not approve the request for testimony until the factual accident report is issued (i.e., in the public docket). When no factual accident report will be issued, the General Counsel may approve a deposition when all staff fact-finding is complete. Where there are multiple factual reports issued in connection with a major accident investigation, and testimony of group chairmen is sought, the General Counsel may approve depositions concerning completed group factual reports at any time after incorporation of the report in the public docket. Finally, if the NTSB has scheduled, or intends to schedule, a public hearing, no deposition will be approved until after the public hearing occurs. G. 49 C.F.R Testimony of former Board employees Revised Regulation It is not necessary to request Board approval for testimony of a former Board employee, nor is testimony limited to depositions. However, the scope of permissible testimony continues to be constrained by all the limitations set forth in and Previous Version It is not necessary to request Board approval for testimony of a former Board employee. However, the scope of testimony of former Board employees is limited to the matters delineated in 835.3, and use of reports as prescribed by Discussion of Amendments The amendments clarify that the testimony of former Board employees is not limited to deposition testimony. Otherwise, the wording of the rule was changed only slightly. Previously, testimony of former Board employees was limited to the matters delineated in 835.3, and the use of reports as prescribed by The new regulation simply states that the scope of permissible testimony continues to be constrained by all limitations set forth in and

13 H. 49 C.F.R Testimony by current Board employees regarding prior activity New Regulation Any testimony regarding any accident within the Board's jurisdiction, or any expert testimony arising from employment prior to Board service is prohibited absent approval by the General Counsel. Approval shall only be given if testimony will not violate and 835.3, and is subject to whatever conditions the General Counsel finds necessary to promote the purposes of this part as set forth in and Discussion of Amendment The previous regulations were silent on the subject of testimony by current Board employees regarding prior activity. This new subsection makes clear that any testimony of a current Board employee, even testimony stemming from employment prior to working for the NTSB, must be approved by the General Counsel, who must place conditions on the testimony, like any other testimony, to ensure that the purposes of Part 835 are fulfilled. Subsection does not appear to prohibit NTSB employees whose testimony arises from prior employment unrelated to the employment with the NTSB, from acting as expert witnesses in civil litigation. I. 49 C.F.R Procedure in the event of a subpoena in civil litigation New Regulation (Previously Located at 835.8) (a) If the Board employee has received a subpoena to appear and testify in connection with civil litigation, a request for his deposition shall not be approved until the subpoena has been withdrawn. (b) Upon receipt of a subpoena, the employee shall immediately notify the General Counsel and provide all information requested by the General Counsel. (c) The General Counsel shall determine the course of action to be taken and will so advise the employee. 14

14 Previous Version (Revised and Relocated to 835.9) (a) If a Board employee has received a subpoena to appear and testify, a request for his deposition shall not be approved until the subpoena has been withdrawn. (b) Upon receipt of a subpoena, the employee shall immediately notify the General Counsel and provide the data identifying the accident; the title of the case, the name of the judge, if available, and the title and address of the court; the type of accident (aviation, railroad, etc.); the date on which the employee is directed to appear; the name, address, and telephone number, if available, of the attorney representing the party who caused the issuance of the subpoena; the scope of the testimony, if known; and a statement as to whether a prior deposition on the same accident has been given. (c) The General Counsel shall determine the course of action to be taken and will so advise the employee. Discussion of Amendments The amended title of this subsection clarifies that it concerns only the procedure where a Board employee has received a subpoena in civil litigation. The phrase in connection with civil litigation was also added in the text. The list of information that a Board employee who received a subpoena was required to provide to the General Counsel under the previous version was deleted. The new regulation simply states that the employee must provide all information requested by the General Counsel. J. 49 C.F.R Testimony in Federal, State, or local criminal investigations and other proceedings New Regulation (Previously Located at 835.9) (a) As with civil litigation, the Board prefers that testimony be taken by deposition if court rules permit, and that testimony await the issuance of the factual accident report. The Board recognizes, however, that in the case of coroner's inquests and grand jury proceedings this may not be possible. The Board encourages those seeking testimony of Board employees to contact the General Counsel as soon as such testimony is being considered. Whenever the intent to seek such testimony is communicated to the employee, he shall immediately notify the General Counsel. (b) In any case, Board employees are prohibited from testifying in any civil, criminal, or other matter, either in person or by deposition or interrogatories, absent advance approval of the General Counsel. The Board discourages the serving of a subpoena for testimony but, if issued, it should be served on the General Counsel, rather than the employee. 15

15 (c) If permission to testify by deposition or in person is granted, testimony shall be limited as set forth in Only factual testimony is authorized; no expert or opinion testimony shall be given. Previous Version (Revised and Relocated to ) Board employees may testify at a coroner's inquest, grand jury, or criminal proceeding conducted by a State of local government. Testimony shall be limited to the matters delineated in Discussion of Amendments This subsection was significantly expanded to provide guidelines for Board employee testimony in non-civil proceedings. The title was modified to cover all [t]estimony in Federal, State or local criminal investigations and other proceedings. The amendment expresses the Board s preference that testimony be taken by deposition after the factual accident report is issued, but recognizes that for coroner s inquests and grand jury proceedings this may not be possible. The subsection mandates that, as in all other circumstances, advance approval by the General Counsel for Board employee testimony is required. As under the previous regulation, if approval is granted (for either a deposition or in-court testimony), testimony is limited by section Thus, only factual testimony is permitted, and both expert and opinion testimony are barred. The new regulation also sets forth a number of procedural guidelines for testimony in the criminal context. In this regard, the General Counsel should be contacted as soon as Board employee testimony is considered a possibility. Also, an employee who learns that his or her testimony will be sought should notify the General Counsel immediately. Subpoenas are discouraged, but if issued, should be served on the General Counsel, not the employee. 16

16 K. 49 C.F.R Obtaining Board accident reports, factual accident reports, and supporting information New Regulation It is the responsibility of the individual requesting testimony to obtain desired documents. There are a number of ways to obtain Board accident reports, factual accident reports, and accompanying accident docket files. Our rules at parts 801 and 837 of this chapter explain our procedures, as will our web site, at Or, you may call our Public Inquiries Branch, at (800) Documents will not be supplied by witnesses at depositions, nor will copying services be provided by deponents. II. CASE LAW REGARDING THE ADMISSIBILITY OF NTSB REPORTS AND BOARD EMPLOYEE TESTIMONY The following section presents a circuit by circuit compendium of decisional authorities that have interpreted the admissibility of NTSB reports and Board employee testimony under 14 CFR Part 835. These cases reveal certain recurring issues which courts have addressed over the years in deciding the admissibility of such evidence in civil litigation. In many cases, the outcome of these cases would be the same under the revised Part 835 regulations. In some instances, however, the revised Part 835 regulations would change the courts rulings. The effect of the revised Part 835 in clarifying the rules for admissibility, or its failure to do so, is discussed in connection with some of the cases in this section where appropriate. First Circuit Circuit Court Cases In Krause v. Chartier, 406 F.2d 898 (1 st Cir. 1968), cert. denied, 395 U.S. 960 (1969), a deceased passenger s estate sued the pilot of a private airplane that crashed while attempting to land in bad weather. A dispute arose at trial as to whether a Civil Aeronautics Board ( CAB ) 4 investigation report, containing a statement that the plane s altimeter had been damaged in the crash, was opinion evidence inadmissible under 1441(e). Krause, 406 F.2d. at 901, (citing Berguido v. Eastern Air Lines, Inc., 17

17 317 F.2d 628 (3 rd Cir. 1963), cert. denied, 375 U.S. 895, and Fidelity & Cas. Co. of New York v. Frank, 227 F. Supp. 948 (D. Conn. 1964)). The First Circuit granted review only to decide whether the plaintiff, who had withdrawn the offer of evidence after the trial court indicated that the CAB report was inadmissible opinion evidence, could complain of the exclusion on appeal. The case, however, has been cited for the proposition that the admission of opinion evidence, but not factual evidence, is prohibited by 1441(e). 5 See, e.g., In re Air Crash at Charlotte, North Carolina, 982 F. Supp. 1071, 1076 (D. S.C. 1996). District Court Cases In In re Armatur, S.A., 710 F. Supp. 390 (D. P.R. 1988), a suit arising from damages to a vessel, the district court excluded opinion and conclusion portions of an NTSB report (as well as a Coast Guard report and other related documents), but found that factual findings could be admitted as additional evidence if not otherwise excluded as hearsay. In re Armatur, S.A., 710 F. Supp. at 402 (citing Federal Rule of Evidence 803(8) and Travelers Insurance Co. v. Riggs, 671 F.2d 810 (4 th Cir 1982)). State Court Cases In Daniels v. Tew Mac Aero Services, 675 A.2d 984 (Me. 1996), the defendant sought to introduce statements in the NTSB factual report to support its theory that contamination in the fuel system caused an airplane to crash shortly after take-off. The trial court refused to allow references to the report. On appeal, the Supreme Court of Maine, noting a split among federal courts on the issue, followed the majority view and held that the reports were admissible. Daniels, 675 A.2d at (citing In re Air Crash Disaster at Sioux City, Iowa, 780 F.Supp (N.D. Ill. 1991), as the only case supporting the full exclusion, for any purpose, of both the factual accident report and the probable cause determinations). The court concluded that unlike probable cause determinations, admitting the factual 4 The Civil Aeronautics Board (CAB) was the predecessor government agency to the NTSB charged with aviation accident investigation. 18

18 portions of reports does not defeat the purposes of 49 U.S.C. 1441(e), which the court stated was to keep the board from becoming embroiled in civil litigation and to prevent a usurpation of the factfinder s role. Id. at 988. The provisions of the revised Part 835 are consistent with the decisions in Krause, In re Armatur, and Daniels. These cases determined that the rules governing admissibility of NTSB reports do not require the exclusion of entire reports, as factual evidence was clearly held to be admissible. Similarly, section explicitly states that there is no statutory bar, or Board objection to, the admission of factual accident reports in litigation. Second Circuit Circuit Court Cases In Lobel v. American Airlines, Inc., 192 F.2d 217 (2 nd Cir. 1951), cert. denied, 342 U.S. 945 (1952), a passenger on an American Airlines flight that crashed after the engines malfunctioned sued to recover for his injuries. On appeal, the Second Circuit upheld the trial court s admission into evidence of the CAB report of an investigator who had examined the wreckage. The court concluded that it contained only personal observations, without any opinions or conclusions about possible causes of the accident or defendant s negligence. Lobel, 192 F.2d at 220. According to the court, section 701(e) of the Federal Aviation Act [i.e., 49 U.S.C. 1441(e)] was designed to guard against the introduction of reports expressing agency views about matters which are within the functions of court and jury to decide. Id. (citing Universal Airline v. Eastern Airline, 188 F.2d 993, 1000 (D.C. Cir. 1951)). In Israel v. United States, 247 F.2d 426 (2 nd Cir. 1957), passengers injured when a plane crashed attempting to take off from a federally operated emergency landing field claimed that the field was 5 It should be noted that the NTSB later clarified the extent of inadmissible opinion evidence as that which reflects the Board s determination of the ultimate cause of the crash. 40 Fed.Reg (1975). 19

19 negligently maintained. The Second Circuit, in reversing a judgment for the plaintiffs, analyzed (in a footnote) the admissibility of a comment in the Investigator s Statements section of a CAB report. Israel, 247 F.2d at 431, n.2. The investigator had written that the field is also rough and would tend to cause an aircraft to bounce on the take-off run and lose lift. Id. at 429. Noting that the prohibition against the use of CAB reports had been narrowly construed to exclude opinions or conclusions, but not personal observations, the court concluded that the evaluating remarks contained in [the CAB report] is exactly the type of data that was intended by Congress to be inadmissible in private litigation. Id at 431, n.2 (citing Lobel, 192 F.2d at 220, and Universal Airline, 188 F.2d at 1000). The provisions set forth in the revised Part 835 would not appear to change the outcomes in Lobel and Israel, even if Board reports come under the same scrutiny as testimony under the regulations. In Israel, in particular, the outcome would likely depend on whether the statement that the field was rough could be regarded as a firsthand observation of information not reasonably available elsewhere. If so, it would be admissible. Whether the statement about the effect of a rough field on the take-off of an airplane would be admissible would likely depend on whether it is considered a permissible factual evaluation under section 835.3(b), or prohibited as opinion evidence under section 835.3(b) or as a conclusion under section 835.3(e). District Court Cases Fidelity & Casualty Co. v. Frank, 227 F.Supp. 948 (D. Conn. 1964), modifying 214 F. Supp. 803 (D. Conn. 1963), involved a suit between an insurer that had issued a policy on the life of an airline passenger who was killed in an accident. The court faced questions regarding the admissibility of accident reports compiled by various sub-committees of the CAB. In its original decision, the court distinguished between (inadmissible) opinion evidence within or close to the ambit of the ultimate question and (admissible) opinion evidence not related to the ultimate question. Fidelity, 214 F.Supp. 20

20 at 805. In other words, any conclusion or opinion unrelated to the probable cause of the crash would be allowed into evidence. In a subsequent decision, the court rejected that distinction. To satisfy the purpose of section 1441(e), the court determined that the more workable and better rule is entirely to exclude all evaluation, opinion and conclusion evidence. Fidelity, 227 F.Supp. at 949 (citing Israel v. United States, 247 F.2d 426 (2d Cir. 1957) and Berguido v. Eastern Air Lines, Inc., 317 F.2d 628 (3 rd Cir. 1963)). Fidelity is directly at odds with Part 835, which allows for the testimony of factual evaluations embodied in [an investigator s] factual accident report. 49 C.F.R (b). Moreover, while expert or opinion testimony of Board employees may have been prohibited in the past, the NTSB subsequently clarified that the only opinion testimony prohibited is that regarding probable cause. 40 Fed.Reg (1975). Texasgulf, Inc. v. Colt Electronics, Co., Inc., 615 F.Supp. 648 (S.D.N.Y. 1984), involved a lawsuit that arose from the crash of a Lockheed JetStar during an ILS (instrument landing system) approach. The plaintiffs, representatives of the passengers and Texasgulf companies, sued the United States claiming that air traffic controllers were negligent. Citing American Airlines, Inc. v. United States, 418 F.2d 180 (5 th Cir. 1969) and Lobel v. American Airlines, Inc., 192 F.2d 217 (2d Cir 1951), the court stated that NTSB factual findings are admissible in evidence, but its conclusions, and findings indicating its conclusions, are not. Texasgulf, 615 F.Supp. at 651, n.5. The result in Texasgulf would be the same under the revised regulations. Champlain Enterprises, Inc. v. United States and Beech Aircraft Co., 957 F.Supp. 26 (N.D. N.Y. 1997), involved the crash of CommutAir Flight The district court, addressing Beech s motion to exclude NTSB recommendations and subsequent remedial measures, such as changes to Beech s maintenance manuals, recognized that courts disagree as to what portions of a NTSB report are 21

21 admissible. Champlain, 957 F.Supp at 27, 29. The court declined to decide whether the NTSB findings and recommendations were admissible, in part because it did not have before it the specific portions of the report sought to be admitted. Id. at 29. Assuming that reports and testimony are subject to the same rules, the revised Part 835 answers the question presented in Champlain as the regulations now explicitly prohibit testimony about NTSB safety recommendations. 49 C.F.R (c). Evidence based on NTSB safety recommendations would similarly be excluded if based on opinions, conclusions or the probable cause of the accident. 49 C.F.R (a), (b) and (c). Third Circuit Circuit Court Cases Berguido v. Eastern Air Lines, Inc., 317 F.2d 628 (3d Cir. 1963), cert. denied, 375 U.S. 895, involved a wrongful death action against Eastern Air Lines following the crash of an Eastern aircraft during an ILS approach. The Third Circuit addressed the admissibility of deposition testimony of a CAB investigator who relied in part on the factual reports of other investigators to refresh his recollection. The testimony related to the crash scene, figures and computations as to the speed of the plane at the time of impact, the attitude of the aircraft just prior to impact, and the angle and rate of descent. The defendant argued that such information was barred by 49 U.S.C. 1441(e). The court disagreed, and in language cited in almost every subsequent decision interpreting this statute, stated: This argument blurs the essential policy and reason behind the section with other policies affecting the admissibility of evidence. The fundamental policy underlying 1441(e) appears to be a compromise between the interests of those who would adopt a policy of absolute privilege in order to secure full and frank disclosure as to the probable cause and thus help prevent future accidents and the countervailing policy of making available all accident information to litigants in a civil suit. Accordingly, the primary thrust of the provision is to exclude CAB reports which express agency views as to the probable cause of the accident. Of necessity, the opinion testimony of the CAB s investigators would also come within this rule. However, the testimony of [investigator] Searle as to the calculations made by [investigator] Schmidt certainly does not come within the ambit of the privilege. His was not evaluation or opinion testimony, for it reflects in no way the CAB s findings as to the probable cause of the crash. 22

22 Berguido, 317 F.2d at Even though the court decided that section 1441(e) did not bar the testimony, it found the challenged testimony inadmissible on hearsay grounds. Subsequent decisions have not consistently interpreted Berguido. According to some courts, the statement the opinion testimony... would come within this rule mandates the exclusion of any and all opinion testimony. Fidelity & Casualty Co. v. Frank, 227 F.Supp. 948, 949 (D. Conn. 1964). Other courts have interpreted the phrase was not... opinion testimony, for it reflects in no way the CAB s findings as to the probable cause of the crash to mean that only opinion testimony relating to probable cause is prohibited. American Airlines, Inc. v. United States, 418 F.2d 180, 196 (5 th Cir. 1969). These competing interpretations have come to be known as the Frank rule and the American Airlines rule, respectively. Although Part 835 does not elaborate upon the purported blanket prohibition of opinion testimony found in other regulations, the NTSB has endorsed the American Airlines rule. 40 Fed.Reg (1975). In McShain v. Cessna Aircraft Co., 563 F.2d 632 (3d Cir. 1977), an action arising out of Cessna s allegedly defective landing gear design, the Third Circuit held that the trial court s refusal to admit copies of some thirty NTSB accident reports where Cessna landing gear had failed did not warrant a new trial. The court determined that the reports were excludable under Federal Rule of Evidence 403 and so did not address the question of whether the reports were barred by 49 U.S.C. 1441(e). McShain, 563 F.2d at 636, n.6. Fourth Circuit Circuit Court Cases In Travelers Insurance Co. v. Riggs, 671 F.2d 810 (4 th Cir. 1982), Travelers, an insurer, brought an action against the owner of an airplane and the estate of its deceased pilot after paying a property damages claim arising from the airplane s crash into the home of the insured. At trial, Travelers sought 23

23 to introduce the entire NTSB report of the crash. The court admitted the factual portions of the report but refused to admit the NTSB s conclusions. The Fourth Circuit affirmed, stating that at the least, 1441(e) forbids the use of conclusory sections of NTSB reports, and [we] thus hold that the district court properly excluded them. Travelers, 671 F.2d at 816 (citing Kline v. Martin, 345 F.Supp. 31 (E.D. Va. 1972)). The decision in Travelers would not be affected by the revised Part 835. The 1998 revisions clearly confirm that section 1441(e) bars only the admission of the Board s determinations (as stated in the Board accident report), while factual accident reports are admissible. 49 C.F.R , District Court Cases In Kline v. Martin, 345 F.Supp. 31 (E.D.Va. 1972), an NTSB and an FAA investigator, both of whom had investigated the scene of an airplane crash in a remote part of Alaska, refused to answer deposition questions on the basis that the questions called for expert opinion testimony or conclusions. Kline, 345 F.Supp. at The issue was whether the two could be compelled to answer. The court analyzed the relative merits of excluding only opinion evidence that relates to probable cause (the American Airlines rule) versus prohibiting all opinion, evaluation and conclusion evidence (the Frank rule), and found reasoning in American Airlines more persuasive. Id. at 32. Specifically, the court determined that while the Frank rule is easier to apply, the American Airlines rule is more consistent with the policy considerations behind 49 U.S.C. 1441(e), namely, to guard against the introduction of C.A.B. reports expressing agency views about matters which are within the functions of courts and juries to decide. Id. The court thus held that the investigators would have to answer deposition questions to the extent they did not relate to the ultimate cause of the accident, even if such testimony involved the giving of their opinions. 6 Id. at Examples of questions the court required the investigators to answer: - What are the requirements for maintaining visual flight rules? 24 (Footnote continued)

24 In 1975, the NTSB explicitly aligned its policies with the holding of Kline, as is stated in the Federal Register: The scope of permissible testimony... has been modified to reflect recent court decisions. Although the Board continues its prohibition against Board employees acting as expert witnesses in litigation, the previous limitation of such testimony to factual information has been relaxed. The only opinions proscribed are those which reflect the ultimate determination of cause or probable cause determined by the Board and expressed in the Board s reports. The Board considers its revised policies to be consistent with existing law, relying in particular on Kline v. Martin. 40 Fed.Reg (1975). The revised Part 835 is consistent with the holding in Kline and 40 Fed.Reg , although an open question remains as to whether the scope of permissible opinion testimony by Board employees applies equally to the admission of NTSB reports. In re Air Crash at Charlotte, 982 F.Supp (D. S.C. 1996), involved the crash of USAir flight 1016 on July 2, The question arose as to whether Plaintiff could introduce four NTSB Group Chairmen s Factual Reports. 7 Following a majority of federal and state courts, the court adopted the position that the factual portions of NTSB reports are admissible. In re Air Crash at Charlotte, 982 F.Supp. at Like the Maine Supreme Court in Daniels v. Tew Mac Aero Services, 675 A.2d at - There are numbers on the document [flight strip record] which read D What does that mean? - What, if anything, did you see on this aircraft that would have indicated the presence of fire after impact? - Did you find any evidence that the aircraft was not intact at the time of impact? Examples of questions the court determined the investigators need not answer: - Did the facts you learned indicate that there were no preimpact malfunction or failure of the aircraft? - Did the facts you learned indicate that there was evidence of incapacitation of the pilot? - Did you find any evidence that would indicate the- what happened to cause the crash? 25

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