NTSB: Just Because You Don’t Like the Probable Cause, Don’t Expect the Courts to Help

A few days ago, the United States Court of Appeals for the District of Columbia made it clear the courts have no substantive role in the accident investigation process.  Joshi v. NTSB

The father of the pilot killed took issue with a probable cause finding of pilot error.  After undertaking his own investigation, a petition to re-open the investigation was filed with the NTSB.  After it was denied, he sued the Board.  The Court found it did not have authority to review the probable cause finding because it was not a “final order” under the Administrative Procedure Act.

There is both good news and bad news from this result.  The good news is that the consequences of permitting judicial review of NTSB accident reports would be to venture down a path which would essentially destroy the NTSB investigation process.  Think about it.  Any party to any investigation which was unhappy with the outcome of an investigation – aviation, rail, marine, motor vehicle, pipeline—could simply sue the NTSB.

Unless the NTSB fails to follow its own procedures, something which was not the case here, the courts are simply not equipped to engage in second guessing professional accident investigations.  The simple reality is that not every party to an investigation is going to like the outcome.  Some may passionately disagree, but that does not justify judicial review of the investigation.

Now, the bad news.  The Court in Joshi indicated that NTSB accident reports are not used in litigation, and that is pretty much wrong.

The reality is that, more often than not, almost everything written by the NTSB, with the exception of probable cause, contributing causes and recommendations, is frequently received into evidence, either as direct evidence or through an expert.  Moreover, there is clearly a split in authority among those courts which have addressed the issue.

As someone who has litigated aviation cases for 35 years, the majority of all NTSB reports find their way into litigation.  While arguments are still made to keep them out, there is ample judicial authority out there for judges to rule in favor of their admissibility, minus the probable and contributing causes.

The Board recognizes the uses to which its investigations are put, and has drawn reasonably sensible lines around what it believes should be used in litigation.  Nonetheless, it’s still up to an individual judge to decide whether and to what extent those lines will be observed.

As frequently as lawyers may be frustrated with the outcome of an NTSB investigation, the thought of a judge reviewing the substance of an investigation and assuming the mantle of expert to decide between competing investigations – one from the NTSB and one from an expert hired to challenge the NTSB —– is, even to me, somewhat unsettling.

The fact is, and history tells us, the NTSB usually gets it right!

(Originally posted June 25, 2015)

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