United States District Court, E.D. Louisiana
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.
the Court is a Motion to Strike the NTSB Probable
Cause Report (R. Doc. 589) filed by the Panther
Helicopters, Inc. The motion is opposed. R. Doc. 601. Oral
argument was heard on March 14, 2018.
litigation derives from a helicopter crash that occurred on
October 9, 2013 as the helicopter departed from a platform in
the Gulf of Mexico. The pilot, Patrick R. Becnel, Sr., was
killed in the crash. Three passengers, Marvin Peter LeBlanc
Jr., Harvis Johnson Jr., and Nichalos Miller, were also
aboard the helicopter at the time of the crash and suffered
various injuries. Numerous lawsuits have been filed with
respect to this litigation and have been consolidated into
instant motion was filed by Panther Helicopters, Inc.
(“Panther”) seeking an order from the Court
striking the National Transportation and Safety Board's
Probable Cause Report and quotations from the report in
Rolls-Royce's Corporations Memorandum in Support of its
Motion to Compel. R. Doc. 589. Panther argues that 49 U.S.C.
§ 1154(b) states that “[n]o part of a report of
the [NTSB], 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.” Id.; 49 U.S.C. § 1154(b).
Panther argues that Rolls-Royce cites the statute but still
included both the probable cause report as an attachment to
its motion as well as referencing it throughout its
memorandum in violation of the federal statute. Id.
Panther requests the Court to strike the NTSB report (R. Doc.
580-3) and all references in the memorandum in support (R.
Doc. 580-1) from the record. Id. at pp. 1-2.
Further, Panther states that 49 C.F.R. § 835.2 clarifies
that a Board accident report includes the probable cause of
an accident. Panther argues that because this case is a civil
action for damages the use of the NTSB report and quotations
was a violation of the federal statute and that the offending
portions should be stricken from the record. R. Doc. 589-1,
motion is opposed by Rolls-Royce Corporation. R. Doc. 601.
Rolls-Royce argues that because the Final Report attached to
the motion lacks a probable cause finding it is doubtful it
is a board accident report whose introduction into evidence
is prohibited by 49 U.S.C. § 1154(b) and 49 C.F.R,
§ 835.2. Rolls-Royce further argues that it does not
object to the removal of the “final report” from
the record, a solution which Panther itself suggests. R. Doc.
601. Should the Court grant the motion to strike Rolls-Royce
states it will immediately file a motion to file a corrected
memorandum and exhibit. Id.
Law and Analysis
49 U.S.C. § 1154(b) states that “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.” Further 49 C.F.R. §
835.2 indicates that accident 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” or 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
reports are factual accident reports.
Fifth Circuit has stated that “[f]ederal law flatly
prohibits the NTSB accident report from being admitted into
evidence in any suit for damages arising out of accidents
investigated by the NTSB.” Campbell v. Keystone
Aerial Surveys, 138 F.3d 996, 1001 (5th Cir. 1998).
According to the D.C. Circuit, under the current language of
the statute, “because investigators' reports are
now plainly admissible under agency regulations, victims have
access to necessary factual information.” Chiron
Corp. and PerSeptive Biosystems, Inc. v. National Transp.
Safety Bd., 198 F.3d 935, 940 (D.C. Cir. 1999).
Accordingly, the D.C. Circuit held that this obviates the
need for a judicial exception to the statute which allowed
for the admissibility of the “factual findings”
of the NTSB in civil litigation. Id. at pp. 940-41.
This is because when the statute was read broadly to include
investigators' reports there may have been a public
policy justification for admitting factual information, but
once the statute was interpreted more narrowly there was no
justification for any exception to § 1154(b).
Id. at 941.
Lidle v. Cirrus Design Corp., 08 CIV 1253(BSJ)(HBP),
2010 WL 1644958, at* 4 (S.D.N.Y. Apr. 22, 2010), the United
States Magistrate Judge granted a motion to strike references
to and quotations from reports prepared by NTSB itself and
denied the motion to strike with regards to any references to
or quotations from the factual reports of investigators. That
court noted that investigators produce a public docket or
factual reports that are observed in the course of their
investigation and then the Board itself issues a document
setting forth opinions and conclusions regarding the most
likely cause of the accident. Id. at *2. The Court
found that because the statutes prohibit the use of any part
of an NTSB report it is not limited solely to motions used to
support factual issues related to the merits of the case, but
to other motions as well. Id. at *3.
review of the report at issue in the instant matter states it
is an NTSB Aviation Accident Final Report, includes a section
on Probable Cause and Findings, and also includes a section
titled Factual Information that appears to contain
conclusions drawn by the NTSB regarding certain issues.
Because this report appears to be from the NTSB and is not an
investigator's report, the plain language of the statute
and case law indicates that both the report and quotations
from it should be stricken ...