Journal of Air Law and Commerce Volume 74 | Issue 4 Article 2 2009 Aircraft Accident Reports and Other Government Documents: Evidentiary Use in International Air Crash Litigation in the United States William D. Janicki Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation William D. Janicki, Aircraft Accident Reports and Other Government Documents: Evidentiary Use in International Air Crash Litigation in the United States, 74 J. Air L. & Com. 801 (2009) https://scholar.smu.edu/jalc/vol74/iss4/2 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. AIRCRAFT ACCIDENT REPORTS AND OTHER GOVERNMENT DOCUMENTS: EVIDENTIARY USE IN INTERNATIONAL AIR CRASH LITIGATION IN THE UNITED STATES WILLIAM D. JANIcI* I. INTRODUCTION .................................. 803 II. USE OF CIVIL AVIATION ACCIDENT REPORTS IN U.S. LITIGATION .............................. 804 A. CIVIL AVIATION ACCIDENT INVESTIGATIONS ...... 806 1. The InternationalCivil Aviation Organization................................ 806 2. Responsible and ParticipatingCountries in an ICAO Aircraft Accident Investigation.......... 807 B. USE OF NTSB ACCIDENT REPORTS IN CIVIL LITIGATION ..................................... 809 1. Role of the NTSB ............................ 809 2. 49 U.S.C. § 1154(b)-Statutory Bar to the Use of NTSB Accident Reports in Civil Litigation .... 809 3. Fed. R. Evid. 803(8)(C)-Government Records Exception to Hearsay Rule and Its Limitations. 811 a. Opinions and Conclusions Are Adm issible ............................. 813 b. Double Hearsay Statements Are Not Adm issible ............................. 813 c. The Report Must Be Trustworthy ...... 814 C. USE OF ICAO ACCIDENT REPORTS IN CIVIL LITIGATION ..................................... 815 1. Fed. R. Evid. 803(8)(C) Applies to ICAO Accident Reports ............................. 816 * B.S., United States Air Force Academy, 1989; M.S., Massachusetts Institute of Technology, 1991; J.D., McGeorge School of Law, 2001. He is a former U.S. Air Force KC-10 pilot. He is a senior associate in the San Diego office of Morrison & Foerster LLP. He is a member of the firm's Aviation Practice with a focus on major aviation accidents, mass tort litigation, and liability of air carriers under international treaties. 802 JOURNAL OF AIR LAW AND COMMERCE 2. Examples of ICAO Accident Reports Evaluated Under the Limitations of Rule 803(8)(C) ...... 816 a. In re Korean Air Lines Disasterof Sept. 1, 1983 ............................ 816 b. Graiver v. Walkers Cay Air Terminal ..... 817 c. Drummond v. Alia-The Royal Jordanian Airline Corp............................. 818 d. In re Air Crash Near Roselawn, Indiana, on October 31, 1994 ..................... 819 III. USE OF MILITARY AVIATION ACCIDENT REPORTS IN U.S. LITIGATION ................... 819 A. MILITARY AVIATION ACCIDENT INVESTIGATIONS.. 821 1. Safety or Mishap Investigation Board Reports.. 821 2. Legal or Collateral Investigation Board Reports ................. .................... 822 B. 10 U.S.C. § 2254(D)-STATUTORY BAR TO THE USE OF OPINIONS AND CONCLUSIONS IN MILITARY AVIATION ACCIDENT REPORTS IN CIVIL LITIGATION ..................................... 823 1. Richardson v. Bombardier Services Corp... 823 2. Lopez v. Three Rivers Electric Cooperative, In c . ........................................ 825 C. DISCLOSURE OF MILITARY SAFETY INVESTIGATION REPORTS ........................................ 826 1. The Machin Privilege-ObtainingMilitary Safety Investigation Reports in Civil Discovery ....... 827 a. Machin v. Zukert ........................ 827 b. United States v. Weber Aircraft Corp...... 828 c. Bray v. United States .................... 828 2. Obtaining Military Safety Investigation Reports Through the FOIA ........................... 829 a. United States v. Weber Aircraft Corp...... 830 b. Badhwar v. U.S. Dep't of Air Force ....... 831 TV. USE OF OTHER GOVERNMENT PREPARED DOCUMENTS IN U.S. LITIGATION .............. 832 A. USE OF NTSB SAFETY RECOMMENDATIONS ...... 832 B. USE OF FAA AIRWORTHINESS DIRECTIVES ........ 835 1. In re Air Crash near Palembang, Indonesia on December 19, 1997 ..................... 837 2. Melville v. American Home Assurance C o .......................................... 837 3. Herndon v. Seven Bar Flying Service, Inc.. 838 4. Murray v. Gates Learjet Corp .............. 838 2009] AIRCRASH ACCIDENT REPORTS 803 5. In re Air Crash Near Roselawn, Indiana, 1997 ....................................... 839 C. USE OF POLICE REPORTS FROM PARALLEL CRIMINAL INVESTIGATIONS INTO AN AVIATION A CCIDENT ....................................... 840 1. In re Air Disaster at Lockerbie, Scotland on December 21, 1988 ..................... 841 2. In re Air Crash near Palembang, Indonesia on December 19, 1997 ..................... 841 V. CONCLUSION ..................................... 842 I. INTRODUCTION NTERNATIONAL AVIATION accidents are often litigated in the United States for a variety of reasons. Plaintiffs may seek higher damages awards offered by U.S. juries. Defendants may seek the protections offered by the Federal Rules of Evidence and Civil Procedure. Both may feel more comfortable in a do- mestic rather than an international forum. Examples abound where plaintiffs chose to file suit in the United States following an international aviation accident, and defendants elected to de- fend these suits in the United States rather than seek dismissal for forum non conveniens. Even if defendants seek such a dis- missal, the motion may be denied for a variety of reasons, leav- ing the action to be tried in the United States. This article examines the evidentiary use of civil and military accident reports and other government documents that involve international air crash litigation in the United States. The arti- cle begins with a brief overview of the international standards for investigating and preparing an accident report under the provisions of the International Civil Aviation Organization (ICAO). It then discusses the evidentiary use of civil accident reports prepared by both the National Transportation Safety Board (NTSB) and by foreign governments under ICAO provi- sions. The article considers the implications of the statutory bar to the use of NTSB reports, ICAO policy statements regarding the purpose and use of accident reports, and the hearsay excep- tions found in the Federal Rules of Evidence. The global War on Terror, with combat operations in both Iraq and Afghanistan, provides a backdrop where U.S. military air crashes in foreign countries have resulted in civil litigation in the United States. This article continues with an examination of aviation accident reports prepared by the armed services. A mil- itary investigation will often result in the preparation of two acci- 804 JOURNAL OF AIR LAW AND COMMERCE dent reports: a safety investigation report and a collateral investigation report. The distinctions between these reports, their evidentiary use, and their discoverability will be discussed. The article concludes with an examination of the evidentiary use of other government documents that may be offered in in- ternational air crash litigation in the United States, such as NTSB safety recommendations, Federal Aviation Administration Airworthiness Directives, and criminal investigation reports pre- pared by law enforcement agencies. II. USE OF CIVIL AVIATION ACCIDENT REPORTS IN U.S. LITIGATION An international aviation accident is often litigated in a U.S. rather than a foreign forum. Several recent examples of com- plaints filed in a U.S. federal district court based on an interna- tional aviation accident are listed below: " One-Two-Go Flight 269: MD-82 crash on September 16, 2007, Phuket, Thailand, killing eighty-nine of its 123 pas- sengers.' Complaint filed in the U.S. District Court of the Northern District of Illinois, September 13, 2008.2 * Mandala Airlines Flight 91: Boeing 737 crash on Septem- ber 5, 2005, Sumatra, Indonesia, killing all ninety-six of its passengers, five crew, and forty-four persons on the ground.' Complaint filed in the U.S. District Court for the District of Connecticut, September 2, 2008.' * Tam Airlines Flight JJ3054: Airbus A320 crash on July 17, 2007, S.o Paulo, Brazil, killing six crew, 162 passengers, and eighteen persons on the ground. Complaint filed in the U.S. District Court for the Southern District of Florida, June 11, 2008.6 NAT'L TRANSP. SAFETY BD., FACTUAL REPORT AVIATION DCA07RA063, at 1 (2007), http://www.ntsb.gov/ntsb/GenPDF.asp?id=DCA07RA063&rpt=fa. The accident is being investigated by the government of Thailand. Id. 2 Complaint, Chudley v. McDonell Douglas Corp., No. 1:08CV05245 (N.D. Ill. Sept. 13, 2008). 3 NAT'L TRANSP. SAFETY BD., FACTUAL REPORT AVIATION DCA05RA096, at 1 (2005), http://wvw.ntsb.gov/ntsb/GenPDF.asp?id=DCA05RA096&rpt=fa. The accident is being investigated by the government of Indonesia. Id. 4 Complaint, Brown v. Boeing Co., No. 3:08CV01325 (D. Conn. Sept. 2, 2008). 5 NAT'L TRANSP. SAFETY BD., FACTUAL REPORT AVIATION DCA07RA059, at 1 (2007), http://www.ntsb.gov/ntsb/GenPDF.asp?id=DCA07RA059&rptfa. The accident is being investigated by the government of Brazil. Id. 6 Complaint, Ura v. Tam Linhas Aereas, S.A., No. 1:08CV21980 (S.D. Fla. July 11, 2008). 2009] AIRCRASH A CCIDENT REPORTS 805 Helisca Helicopter Crash: Sikorsky S-61N