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«by Brian C. Dalrymple Nixon Peabody LLP Two Embarcadero Center, 26th Floor San Francisco, CA 94111 Telephone: (415) 984-8275 Facsimile: (415) ...»

-- [ Page 1 ] --

OBTAINING EVIDENCE UNDER THE NTSB REGULATIONS

1998 AMENDMENTS TO TITLE 49 PART 835

by

Brian C. Dalrymple

Nixon Peabody LLP

Two Embarcadero Center, 26th Floor

San Francisco, CA 94111

Telephone: (415) 984-8275

Facsimile: (415) 984-8300

bdalrymple@nixonpeabody.com

34th Annual

SMU Air Law Symposium

February 23 – 26, 2000

Dallas, Texas

235716.1

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.

49 U.S.C. § 1441(e) provides:

(Footnote continued)

–  –  –

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. 71606 (1998). The revised Part 835 became effective on January 28, 1999. 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.

49 U.S.C. § 1903 (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.

49 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.

–  –  –

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.

–  –  –

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.”

–  –  –

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.

–  –  –

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 835.2 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

–  –  –

(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. 93-1192, 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 § 835.1 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.

–  –  –

(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. 93-1192, 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.



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