The recent crash landing of Asiana Flight 214 to San Francisco was a tragedy of epic proportions: Two teenage girls were killed, while some 180 people were injured. See, e.g. “Tribune Wire Reports,” Chicago Tribune, Jul. 9, 2013. Subsequent to the crash, the National Transportation Safety Board (NTSB) made a determination that in all probability, the accident was caused by the too-slow speed of the Boeing 777 during its descent and landing (nearly 25% below the typical, safe rate of speed for a landing with an airplane of this type, according to aviation industry norms), as well as a lack of experience by a pilot and commanding pilot-instructor. Id. Though in recent years, airline crashes have become fewer and farther between, an accident of this size naturally gives rise to a number of legal questions, particularly in terms of liability issues.
When attempting to ascertain liability for injuries, fatalities, and the like, many aviation attorneys (on both sides) and experts alike have unknowingly, made prior mistakes that have harmed their arguments in court. This article seeks to provide attorneys with a primer on how to select the most qualified experts and therefore increase the odds of prevailing in court.
Part I: Common Misconceptions:
Many attorneys do not always know “who” the experts are, for the purposes of civil suits to recover damages in airplane accidents. Because the NTSB tends to be the first “investigative” body on the scene, countless attorneys have relied, to their and their clients’ detriment, on NTSB reports. Although different courts across the United States have somewhat different rules, there are some universal trends and evidentiary principles that every attorney should be aware of, particularly if a litigator’s best “expert” is an NTSB agent’s testimony. While the NTSB does release the results of its investigations of a aviation accidents, known as a “factual accident report,” as well as a determination of the probable cause of an accident (these are known as “Board Reports), these results are NOT necessarily of use to either plaintiffs or defendants in civil litigation. See, e.g., Timothy S. Tomasik,“Crash Reports: What Will The Jury Hear?: The Admissibility of Government Reports at Trial Pursuant to Federal Rule of Evidence 803(8)(A)(iii),” (Jul. 6, 2013). Although certain federal circuit courts will entertain some factual evidence by the NTSB, the general rule is that determinations of probable cause are NOT admissible in civil litigation. As aviation attorney Timothy Tomasik explains:
In a civil trial, the admissibility of these NTSB reports under Rule 803 (8)(C) is specifically circumscribed by the federal “exclusionary rule,” 49 U.S.C.A. € 1554 (b), which provides, “no part of a report of the Board, 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.” See, Andrew J. Harakas, Litigating the Aviation Case, From Pre-Trial to Closing Argument, 390-396 (American Bar Association, 3 ed.)(2008). Id.
Accordingly, attorneys need to be aware of whom they can call upon to serve as expert witnesses in aviation litigation, where the NTSB’s findings may not be an option. While probable cause cannot generally be proven through the NTSB, some factual allegations and determinations are admissible, but typically on very limited basis, and not to prove liability. Id. Attorneys who make themselves aware of the general exclusionary rule with respect to these reports have two advantages. First, they will know which portions, if any, of an NTSB report can be used to help prove a fact in a given case. Second, being able to discredit an NTSB finding or have it thrown out altogether can go a long way towards helping attorneys on either side.
Part II: The “Real” Experts in Aviation Litigation:
Any time that civil liability is alleged for an airplane crash, attorneys need to know who the best experts are and how to advise their clients. One important and often critical aspect to bear in mind is that sometimes, a client is an expert. For example, clients in such cases may include airline pilots and engineers, who possess extensive knowledge of aviation technology. However, attorneys should tell their clients early in the litigation process that, no matter what side the client is on, clients should NOT conduct their own “expert” investigations of the airplane accident, neither individually nor with a group of peers. The impulse of aviation professionals, who become clients, to look into matters themselves may strong, but the logic behind asking clients to forebear from investigating matters on their own is simple: Such investigations are not subject to the confidentiality protections afforded by attorney-client privilege and may, moreover, appear biased. While clients often make such preliminary investigations in good faith, it may appear to a jury that such steps were taken to solely protect the client and lacked objectivity. Attorneys, however, can and should hire independent experts, who specialize in issues such as aviation technology and engineering. Private investigators in the aviation field are also qualified experts for cases of this nature, and even consulting experts (as opposed to testifying experts) are protected by attorney-client privilege. See Philip J. Kolczyski, “What If You are involved in an Air Crash?”, Aviation Consumer (Aug. 22, 1997). Attorneys should also consult experts in the field of insurance law, as well as insurance companies, to determine what the company intends to do, with respect to liability for an aviation accident.
The exclusion of NTSB records that determine probable cause by no means restricts attorneys from having the experts they need to try or defend aviation cases. Medical professionals, insurance experts, and private parties specializing in aviation accidents are all good sources of knowledge and expertise. Although the NTSB may generally get to the scene first, it is by no means the only entity with expertise on aviation matters. Nonetheless, litigators should be mindful of the extent to which they can rely on certain NTSB reports (for certain factual claims) and the extent to which they cannot, and attorneys for both sides should confront their opponents, if such reports are introduced to establish probable cause.
Tragedies like the Asiana Flight 214 crash occur and everyone, from potential victims to prospective defendants, needs adequate legal representation. Attorneys should always utilize experts, both in the consulting and testimony stages of litigation, but they must ensure that such experts are parties retained through private sources, such as expert witness providers. If aviation attorneys on either side follow these guidelines, perhaps the legal field can best redress what took place in airplane crashes and who, if anyone, is liable for accidents of this nature.
By: Kat Hatziavramidis, Attorney-at-Law