Keen v. Detroit Diesel Allison, 76-1844

• Citation: 569 F.2d 547
• Decision Date: 18 May 1978
• Docket Number: No. 76-1844,76-1844
• Parties: Thelma A. KEEN, surviving wife of Francis Robert Keen, Deceased, Individually and on behalf of F. R. Keen and Ann Miller, surviving kin of Francis Robert Keen, Deceased, Plaintiff-Appellant, v. DETROIT DIESEL ALLISON and Detroit Diesel Engine, Divisions of General Motors Corporation, a Delaware Corporation, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 547

569 F.2d 547

Thelma A. KEEN, surviving wife of Francis Robert Keen Deceased, Individually and on behalf of F. R. Keen and Ann Miller, surviving kin of Francis Robert Keen, Deceased Plaintiff-Appellant, v. DETROIT DIESEL ALLISON and Detroit Diesel Engine, Divisions of General Motors Corporation, a Delaware Corporation, Defendants-Appellees.

No. 76-1844.

United States Court of Appeals Tenth Circuit.

Submitted Dec. 14, 1977.

Decided April 3, 1978.

Rehearing Denied May 18, 1978.

John W. Norman of Lampkin, Wolfe, Burger, McCaffrey & Norman, Oklahoma City, Okl., for plaintiff-appellant.

Russell B. Holloway, Oklahoma City, Okl. (Gary C. Bachman and William C. McAlister, Oklahoma City, Okl., on brief), Rhodes, Hieronymus, Holloway & Wilson, Oklahoma City, Okl., for defendants-appellees.

Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Thelma A. Keen (Keen) appeals from an adverse judgment after a jury trial in a diversity action for wrongful death brought against Detroit Diesel Allison and Detroit Diesel Engine (Detroit Diesel). This case is before us for the second time. On the first appeal, No. 74-1529, decided July 14, 1975, we reversed a dismissal and remanded for further proceedings.

Keen's husband, Robert Keen, an experienced Federal Aviation Administration (FAA) jet pilot, was killed when the plane he was piloting crashed during a test flight. Keen filed an action shortly thereafter, alleging that the plane's engine turbine shaft and wheel assembly were defective. She sought recovery under the Oklahoma doctrines of "strict liability in tort and breach of implied warranty of fitness for purpose intended." Detroit Diesel defended on the basis that the turbine shaft and wheel assembly were not defective, that the alleged defect was not the proximate cause of the accident, and that pilot incapacity caused the crash.

Keen developed her case around the testimony of six witnesses, including two eyewitnesses who lived within several miles of the crash; an "engine manager" employed by the FAA who was responsible for engine repairs and overhauling; a consulting engineer who concluded that an engine failure had occurred in flight; a metallurgist who concluded that the turbine shaft and wheel appeared to be defective because "oxidation observed at the contact surface between the wheel and the shaft (was) indicative of a partial separation"; and a pathologist who concluded that Robert Keen was alive at the time of the crash. Keen also called a doctor on rebuttal who testified that he had treated Robert Keen several months prior to his death.

Detroit Diesel developed its defense around the testimony of a number of witnesses, the introduction of certain physical evidence and twenty-six admissions of fact. Detroit Diesel's witnesses included: an FAA aircraft maintenance supervisor who examined the crash site and determined that the plane had crashed into the ground at a very steep angle with the engine under full power; an air safety investigator with the National Transportation Safety Board who concluded that the aircraft was functioning normally at high power at the time it stuck the ground; and an FAA flight certification doctor who testified that he would not have certified Robert Keen for flight had he known that Robert Keen was being treated for high blood pressure by a Dr. Kraft.

On appeal Keen contends the trial court erred in: (1) permitting federal safety investigators to testify; (2) allowing Detroit Diesel to call one Dr. Brant as a witness; and (3) in allowing defense counsel to read the request for admissions to the jury.

At the outset we observe that appellate courts cannot try a case de novo, Volis v. Puritan Life Insurance Company, 548 F.2d 895 (10th Cir. 1977), and that the admission of evidence is discretionary with the trial court and will not be disturbed on appeal unless clearly erroneous. Silver v. Cormier, 529 F.2d 161 (10th Cir. 1976); Pipeliners Local Union No. 798, Tulsa, Oklahoma v. Ellerd, 503 F.2d 1193 (10th Cir. 1974).

I.

Keen contends that "the judgment below should be reversed because the trial court committed reversible error in permitting safety investigators employed by the National Transportation Safety Board and the Federal Aviation Administration to testify as to ultimate conclusions and to the probable cause of the accident." Keen argues that such testimony was inadmissible under 49 U.S.C.A. § 1441(e), which provides:

No part of any report or reports of the National Transportation Safety Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports.

Keen further contends that under 49 C.F.R. 835.3(b), the testimony of a National Transportation Safety Board (NTSB) employee is limited to mere factual information obtained by the employee in the course of the investigation and prohibits any testimony "regarding matters beyond the scope of their investigation" or giving "opinion testimony concerning the cause of the accident."

We have not heretofore considered the degree to which NTSB employees or similarly employed government personnel may, or may not, testify in actions such as this. Several courts have construed § 1441(e), and its predecessor, § 581, to be a bar. Israel v. United States, 247 F.2d 426 (2d Cir. 1957); Lobel v. American Airlines, 192 F.2d 217 (2d Cir. 1951), cert. denied, 342 U.S. 945, 72 S.Ct. 558, 96 L.Ed. 703 (1952); Universal Airline v. Eastern Air Lines, 88 U.S.App.D.C. 219, 188 F.2d 993 (1951); Ratner v. Arrington, 111 So.2d 82 (Fla.App.1959). These decisions hold that the statute is designed to guard against the introduction of reports expressing agency views about matters more properly left to courts and/or juries to decide.

Several recent decisions have afforded § 1441(e)'s prohibition a more liberal construction. In Berguido v. Eastern Air Lines, Incorporated, 317 F.2d 628 (3rd Cir. 1963), cert. denied, 375 U.S. 895, 84 S.Ct. 170, 11 L.Ed.2d 124 (1963), the court said:

This argument blurs the essential policy and reason behind the section with other policies affecting the admissibility of evidence. The fundamental policy underlying 1441(e) appears to be a compromise between the interests of those who would adopt a policy of absolute privilege in order to secure full and frank disclosure as to the probable cause and thus help prevent future accidents and the countervailing policy of making available all accident information to litigants in a civil suit. Accordingly, the primary thrust of the provision is to exclude CAB reports which express agency views as to the probable cause of the accident. Of necessity, the opinion testimony of the CAB's investigators would also come within this rule. However, the testimony of Searle as to the calculations made by Schmidt certainly does not come within the ambit of the privilege. His was not evaluation or opinion testimony, for it reflects in no way the CAB's findings as to the probable cause of the crash. (Emphasis supplied.)

317 F.2d at pp. 631-632.

Berguido, supra, was further developed in American Airlines, Inc. v. United States, 418 F.2d 180 (5th Cir. 1969), wherein the court observed:

American Airlines' position on the reach of § 1441(e) seems thoroughly at variance with the prevailing interpretation of the statute. As stated in Berguido v. Eastern Air Lines, Inc., 3 Cir., 1963, 317 F.2d 628, 632, "the primary thrust of the provision is to exclude CAB reports which express agency views as to the probable cause of the accident". Exhibits 58 and 89 are not the report of the C.A.B. and do not reflect the Board's evaluation of the data they contain or the emphasis placed on that data in reaching a decision on probable cause. To the contrary the exhibits merely display and explain the data derived from the flight recorder foil itself, which was admitted without objection.

Appellant vigorously stresses the opinion nature of the testimony. However, Berguido established that qualified testimony going beyond merely personal observations is admissible provided such testimony does not presume to be official agency opinion. Although purporting to follow Berguido, Fidelity and Casualty Company of New York v. Frank, 227 F.Supp. 948 (D.Conn., 1964) distinguishes between "factual" testimony by investigators and "evaluation, opinion, or conclusion evidence" that is objectionable. In the context of this case it would perhaps be suitable to say that the attempt to derive information about the altitude, speed, heading, and vertical acceleration of Flight 383 was a factual inquiry. However, a very sophisticated evaluation of the data had to be made. Because of the uncertainty which the Frank rule would introduce in sorting fact from opinion, it would be better to exclude opinion testimony only when it embraces the probable cause of the accident or the negligence of the defendant. (Emphasis supplied.)

418 F.2d at p. 196.

American Airlines, Inc., supra, was analyzed and adopted in Kline v. Martin, 345 F.Supp. 31 (E.D.Va.1972). The court stated:

The NTSB is the successor to the Civil Aeronautics Board (CAB) insofar as responsibility for investigation of accidents involving civil aircraft is concerned. 49 U.S.C. § 1655(d). It argues that the testimony requested is barred by the prohibition of 49 U.S.C. § 1441(e) that "no part of any report or reports of the Board relating to any accident or the investigation thereof, shall be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such report or reports." The Board also points to 14 CFR § 435 which limits the testimony of investigators to facts actually observed by them. It stresses the opinion nature of the testimony and contends that the only way to give adequate effect to and fulfill the purpose of 49 U.S.C. § 1441(e) is to exclude all evaluation...