Crash Reports: What Will the Jury Hear?

Aug 01, 2013

By Timothy S. Tomasik and Kimberly M. Halvorsen

This article was originally published in the ABA Mass Torts Summer 2013 Newsletter. 

To litigate and try a compelling aviation case to a jury, trial lawyers are challenged to navigate through countless federal regulations, complex product-liability issues, and the operational conduct of the crew and command of the aircraft. A fundamental understanding of common evidentiary hurdles that arise in aviation litigation allows trial lawyers to overcome obstacles manufactured by the defense, by strategically taking advantage of certain rules of evidence that streamline their case at trial and secure the admissibility of evidence that can be otherwise cumbersome if not carefully secured during the discovery process.

Federal Rule of Evidence 803(8)(A)(iii) 

Generally, an out-of-court statement offered at trial for the truth of its contents is considered hearsay and is inadmissible. Federal Rule of Evidence (FRE) 801, 802. FRE 803(8)(A)(iii) provides an exception to the hearsay prohibitions for government reports setting forth factual findings “resulting from an investigation made pursuant to authority granted by law. . . .” Official reports fall within an exception to the hearsay rule due to a presumption that the public official will perform his or her duty properly and the unlikelihood that he or she will remember details independently of the record. See Fed. R. Evid. 803(8) advisory committee’s note. The exception is limited: A government report is inadmissible under Rule 803(8)(C) in whole or in part where “the sources of information or other circumstances indicate lack of trustworthiness.” The party opposing the admission of a report has the burden of demonstrating the report is untrustworthy and should not be admitted.

Beech Aircraft Corp. v. Rainey

Prior to 1988, federal courts examining government reports under FRE 803(8)(A)(iii) (then FRE 803(8)(C)) often distinguished between facts, which were admissible, and opinions, which were inadmissible. In Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), the U.S. Supreme Court ruled that opinions and conclusions in government reports are admissible provided they are both based on factual investigation and trustworthy. The Court held that a “trial court has the discretion, and indeed the obligation, to exclude an entire report or portions thereof—whether narrow ‘factual’ statements or broader ‘conclusions’—that [it] determines to be untrustworthy.” Beech involved an investigation by a naval officer into the circumstances surrounding a military plane crash. The only disputed issue at trial was whether pilot error or equipment malfunction had caused the crash. The defendant offered into evidence the investigative report of a Judge Advocate General (JAG) commander, concluding that the crash was caused by “pilot error.” The trial judge initially determined that the JAG report was sufficiently trustworthy and ultimately admitted, over the plaintiff’s objection, certain of the report’s opinions and conclusions including the statement regarding the most probable cause of the accident. In Beech, because the district court held the JAG report to be trustworthy, and no party challenged whether the report was reliable, the Supreme Court had no occasion to express any opinion as to the trustworthiness of the report.

The Court explained that FRE 803(8)(C) “assumes admissibility in the first instance” but provides “ample provision for escape if sufficient negative factors are present.” The Court emphasized the rule’s “provision for escape” where “the sources of information or other circumstances indicate a lack of trustworthiness.” According to the Court, “this trustworthiness inquiry was the [Advisory] Committee’s primary safeguard against the admission of unreliable evidence,” and it was “important to note that it applies to all elements of the report.” While the Court did not specifically define what constitutes trustworthiness, the Court directed trial courts to the Advisory Committee’s note to FRE 803(8)(C) listing four factors that they may consider in evaluating trustworthiness: (1) the timeliness of the report; (2) the investigator’s skill or experience; (3) whether a hearing was held and the level at which it was conducted; and (4) possible bias and motivation problems such as exist when reports are prepared with a view toward litigation. The Advisory Committee’s note to FRE 803(8)(C) recognized that the court could consider other factors.

Additionally, the Court pointed out that there are “safeguards built into other portions of the Federal Rules, such as those dealing with relevance and prejudice,” that “provide the court with additional means of scrutinizing and, where appropriate, excluding evaluative reports or portions of them.” Thus, the trial lawyer must recognize that documents deemed relevant to the litigation for purposes of FRE 401 that fall within the public-reports-and-records exception to the hearsay rule of FRE 803(8)(A)(iii) may still be excluded under FRE 403 if the court rules that the danger of unfair prejudice, confusion of issues, misleading the jury, and undue delay may substantially outweigh the probative value of the evidence.

NTSB Reports

When a commercial airliner crashes, the National Transportation Safety Board (NTSB) is first on the scene to investigate the crash. From its investigation, both “factual accident reports” (the results of the investigator’s investigation of the accident) and “board reports” (the board’s determinations, including the probable cause of the accident) are prepared. The information contained in these government reports can prove critical to a finding of liability against air carriers, operators, maintenance companies, and other entities. The admissibility of the information in the report will be defined by the content and context of the report, the circumstances surrounding the incident, and the case law where the litigation is pending.

In a civil trial, the admissibility of these NTSB reports under Rule 803(8)(C) is specifically circumscribed by the federal “exclusionary rule,” 49 U.S.C.A. § 1554(b), which provides that “no part of a report of the Board, related to an accident or 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.” See Andrew J. Harakas, Litigating the Aviation Case, From Pre-Trial to Closing Argument 390–96 (American Bar Association, 3d ed. 2008). The case law reflects a split in precedent with many courts holding that the exclusionary rule prohibits admission only of NTSB opinions and conclusions, while allowing admission of factual findings. See Curry v. Chevron USA, 779 F.2d 272, 274 (5th Cir.) (citing Am. Airlines v. United States, 418 F.2d 180 (5th Cir. 1969) and Travelers’ Ins. Co. v. Riggs, 671 F.2d 810, 816 (4th Cir. 1982) (noting that 803(8) allows admission of reports generally, but the exclusionary rule forbids admission of at least the conclusory portions of the NTSB reports)); but see Chiron Corp. & PerSeptive Biosystems, Inc. v. Nat’l Transp. Safety Bd., 198 F.3d 935, 940–41 (D.C. Cir. 1999) (NTSB regulations precluded admission of any part of the NTSB accident report, but investigators’ reports are fully admissible notwithstanding the exclusionary rule). The Northern District of Illinois adopted a minority approach in In re Air Crash Sioux City, Iowa, 780 F. Supp. 1207, 1212–13 (N.D. Ill. 1991) and excluded both the investigative report and the board report entirely. See also Anderson v. Alberto-Culver USA, Inc., 273 Ill. Dec. 404, 421–22 (2003) (factual findings of NTSB identifying defendant pilot as pilot in charge based on computerized flight-planning documents filed by pilot prior to flight are admissible, but conclusions on the probable cause of the accident are not).

Other Government Reports—The 9/11 Commission Report

In re September 11th Litigation, No. 21 MC 101 (AKH), encompassed the consolidated wrongful-death and property-damage cases arising from the terrorist-related crashes into the World Trade Center against several air carriers and the security companies they employed, for security breaches at the checkpoint on the morning of September 11 that resulted in prohibited items (knives, razors, and mace) getting on board the four flights. The aviation defendants in the September 11th litigation sought to admit the 9/11 Commission Report, staff monograph, and staff statements as government reports under the FRE 803(8)(C) hearsay exception as evidence at trial that the government’s failure to apprehend the terrorists and stop the attacks was so considerable that it mitigated and excused any alleged fault on the part of the aviation defendants and that the terrorists likely would have succeeded even if the aviation defendants had exercised due care. In re Sept. 11th Litig., 621 F. Supp. 2d 131, 140 (S.D.N.Y. 2009). The plaintiffs opposed the admission of the 9/11 Commission Report and related reports on the basis that the commission explicitly stated that it was not attempting to assess blame for the 9/11 attacks, the report was unreliable as evidence of the aviation defendants’ conduct because the commission was substantially focused on counterterrorism and not the conduct of the aviation defendants, and the commission’s sources of information and other circumstances indicated a lack of trustworthiness in that critical information the commission relied on was the product of torture and coercion. The plaintiffs argued that the 9/11 Commission Report was irrelevant and prejudicial given that discovery had demonstrated that the September 11 attacks were reasonably foreseeable and that the aviation defendants’ attempt to blame the government was irrelevant to the issue of their liability. The court agreed with the plaintiffs and held the staff monograph and staff statements inadmissible and the 9/11 Commission Report inadmissible as a whole under FRE 803(8)(C) because several of the commission’s findings were based on sources not completely trustworthy or acceptable in American courts for purposes of 803(8)(C), and that the sections the aviation defendants sought to introduce had limited, if any relevance to the issues before the court and raised substantial dangers of bias, confusion, and undue delay under FRE 402 and 403. Id. at 157. See In re Sept. 11th Litig., 621 F. Supp. 2d at 140 (Opinion and Order Resolving Discovery and Evidentiary Motions).

Generally, Illinois courts have held government reports and/or public records concerning causes and effects involved in the exercise of judgment and discretion, expressing opinions, or drawing conclusions to be inadmissible. See, e.g., Jordan v. Binns, 712 F.3d 1123, 1133–34 (7th Cir. 2013) (redaction of state trooper’s conclusions regarding accident’s cause did not take trooper’s crash report outside scope of public-records exception for evaluative reports, where report also contained trooper’s on-scene observations and conclusions that he had reached based on evidence he had collected and that were entitled to presumption of trustworthiness); Barker v. Eagle Food Containers, Inc., 199 Ill. Dec. 922, 926–27(1994) (care record prepared by fire-department personnel assisting plaintiff injured in fall in store would not be admissible as official record kept by public officials, as paramedics would not be qualified to testify as to cause of plaintiff’s injury, where paramedics could not recall incident and could not say that recorded cause of accident was based on personal observation); Bloomgren v. Fire Ins. Exch., 115 Ill. Dec. 88, 91–92 (1987) (fire incident report filed by volunteer fireman as required by statute, which labeled cause of fire as electrical in nature, was inadmissible in action determining coverage between insured and fire insurer, to demonstrate that fire was not of incendiary nature, where fireman who prepared report was not qualified as expert on causes of fires); Cf. Contra People v. Rudi, 50 Ill. Dec. 538, 543 (1981) (report of Food and Drug Administration containing conclusions and opinions on cause and effect admitted under the public-record hearsay exception). However, a few cases have held admissible reports containing physicians’ conclusions as to a person’s medical condition. See, e.g.,Steward v. Crissell, 224 Ill. Dec. 419, 424 (1997) (coroner’s protocol or autopsy report is admissible to show cause of death, but the coroner’s verdict is not). And it has been observed that the factual portions of investigative reports generated after aviation disasters have been admissible. Anderson v. Alberto-Culver USA, Inc., 273 Ill. Dec. 404, 421–22 (2003) (factual findings of NTSB identifying defendant pilot as pilot in charge based on computerized flight-planning documents filed by pilot prior to flight are admissible, but conclusions on the probable cause of the accident are not).

Conclusion

Successful navigation of the common evidentiary hurdles associated with the admissibility of government reports is critical when trying an aviation case to a jury. The ability to implement FRE 803(8)(A)(iii) is a formidable skill every trial lawyer should have.

Timothy S. Tomasik is a founding member of Tomasik, Kotin and Kasserman in Chicago, Illinois. Kimberly M. Halvorsen is an associate at Clifford Law Offices, P.C. in Chicago, Illinois.

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