Federal Court Strikes NTSB Report and Expert Opinion that Relied on It

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Schnader Harrison Segal & Lewis LLPIn Olympic Air, Inc. v. Helicopter Tech. Co., the District Court for the Western District of Washington struck a National Transportation Safety Board report and portions of an expert’s declaration that relied on it. The argument to strike was that its inclusion violated the federal statute that provides, “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.”
49 U.S.C. § 1154(b). The counterargument was that factual information from an NTSB investigation is admissible in a civil action, and the points relied on were factual findings.

The Court held that the statute plainly required that the report be stricken. The Court found that the statute, and a related regulation of the board that interprets “a report of the Board” to be the report that contains the probable cause conclusion, dictated the result and that the statement, “indications of root fitting disbondment … occurred sufficiently early to have been detected if the inspections had been performed in accordance with the [airworthiness directive]” went beyond factual.

Distinguishing fact from opinion can be difficult.
With some accidents, the NTSB issues separate factual reports, which are admissible, from its probable cause report, which is not. The trouble is that, with other accidents, the NTSB combines the factual findings with the probable cause, making information that should be available for use by litigants essentially unavailable. That was the case here.

Olympic Air, Inc. v. Helicopter Tech. Co., 2022 U.S. Dist. LEXIS 48654 (W.D. Wash. Mar. 18, 2022).

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