Accident Reports Not Reviewable . . . Not Admissible . . .???

The NTSB has broad authority to investigate aircraft accidents and issue both factual reports and make findings of the probable cause of the accident.  But what happens if you are involved in an accident and you think the NTSB got it wrong?  Can you go to Court to get changes made or stop the release of the report?  The Seventh Circuit has answered “no” to these questions.

In dismissing the appeal of Helicopters, Inc. [Link], the United States Court of Appeals for the Seventh Circuit has concluded that accident reports from the NTSB are not reviewable since:

  1. the reports do not create any legal repercussions or consequences for, in this case, Helicopters, Inc. the owner/operator of a helicopter which crashed.
  2. the reports may not be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.

In making these findings, the Seventh Circuit indicated it agreed with two other Courts of Appeal which have addressed a similar question.

It’s clear (if it wasn’t clear before) that using the courts to seek review of NTSB reports is not a worthwhile expenditure of time or money.  Quite clearly, NTSB reports are not susceptible of review.

With the foregoing having been said, there are, to those of us who litigate cases arising out of aviation accidents, a number of issues/concerns raised by the Seventh Circuit decision.

  1. The Court’s statement that NTSB reports do not create any legal “repercussions or consequences” for the operator is, in the real world, inaccurate. While Plane-ly Spoken understands that the courts are focusing on a narrow meaning for “repercussions or consequences,” the practical reality is that such reports have profound repercussions and consequences.  They result in companies being sued, provide “free” discovery to plaintiffs and, at least, the factual reports, are frequently admitted into evidence.
  2. NTSB factual reports are, unfortunately, oftentimes a combination of facts, analysis and opinions, that are difficult, if not impossible, to segregate into admissible and inadmissible parts.
  3. While an attempt is made to differentiate between NTSB factual reports and the final report, § 831.4 doesn’t really make any such distinction.
  4. The broad statutory language relied on by the courts which prohibits the use of NTSB reports is, more often than not, ignored or only partially followed.

Notwithstanding the foregoing, it is unlikely the Seventh, Ninth or DC Circuits will change their position on the review of NTSB reports or their mistaken beliefs regarding the use of such reports.

Plane-ly Spoken agrees with the fact that the judiciary should not be second-guessing NTSB investigations.  However, at the same time, some, if not most, of the grounds relied upon by the decisions are misplaced.

(Originally posted October 20, 2015)

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