Budden v. US

• Decision Date: 11 July 1990
• Docket Number: No. CV88-L-493.,CV88-L-493.
• Parties: Joan BUDDEN, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Nebraska

748 F. Supp. 1374

Joan BUDDEN, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. CV88-L-493.

United States District Court, D. Nebraska.

July 11, 1990.

COPYRIGHT MATERIAL OMITTED

C.L. Robinson, Fitzgerald, Schorr, Barmettler & Brennan, Michael F. Kinney, Cassem, Tierney, Adams, Gotch & Douglas, Omaha, Neb., for plaintiffs.

Thomas K. Pfister, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C. (Bill Gallo, Litigation Div., FAA, Washington, D.C., Ronald Lahners, U.S. Atty., Sally Johnson, Asst. U.S. Atty., Lincoln, Neb., of counsel), for defendant.

MEMORANDUM OF DECISION

URBOM, District Judge.

This action arises from the crash of a helicopter ambulance en route from Kearney, Nebraska, to Ainsworth, Nebraska, on December 20, 1985. The pilot of the helicopter was Craig Budden, employed by Ronald P. Rodgers, d/b/a Rodgers Helicopter Service (Rodgers). The aircraft was a Bell 206L helicopter, bearing the registration number N110LG and owned by Rodgers. Also on board were two flight nurses, Nancy Brandon and Joan Brown, who were employed by Good Samaritan Hospital in Kearney, Nebraska. At the time of the accident N110LG was being operated by Rodgers Helicopter Service pursuant to a contract with Good Samaritan Hospital, as a flight under the hospital's emergency medical service Air Care Flight Program. The helicopter crashed approximately 20 miles south of Ainsworth, Nebraska, killing all three persons. The estates of Brandon and Brown have previously brought suit against Rodgers and the estate of Budden for alleged negligence. Associated Aviation Underwriters (AAU) defended those cases as the liability carrier for Rodgers. Budden, as pilot, was an additional insured under the liability policy. These cases were settled by payment to the estates of Brandon and Brown. Following the settlements, AAU, Rodgers, and Joan Budden and Wilma Lewis, personal representatives of the estate of Craig Budden, deceased, filed the present claim against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671-2680. Aetna Life and Casualty joined in the complaint by way of subrogation to the rights of Rodgers and the estate of Budden to recover workers compensation payments made arising from the death of Budden. The plaintiffs allege that the negligence of the Federal Aviation Administration (FAA) in failing through Robert Geranis to provide complete weather information was a proximate cause of the accident.

I.

Evidentiary Issues.

1. The NTSB Report.

At trial the defendant offered Exhibit 110, a portion of the report of the National Transportation Safety Board (NTSB). The plaintiffs objected, based on 49 U.S.C.App. § 1441(e), which states that: "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."

The defendant argues that § 1441(e) precludes only the admission of the NTSB's conclusions and probable cause findings, and that the factual portion of the report is admissable. Three cases are cited as support for this proposition: Mullan v. Quickie Aircraft Corp., 797 F.2d 845 (10th Cir. 1986) (Section 1441(e) excludes only the parts of the NTSB reports that contain agency conclusions on the probable cause of accidents; district court did not err in allowing plaintiff's expert witness to rely on factual portions of an NTSB report); Curry v. Chevron, 779 F.2d 272 (5th Cir. 1985) (District court properly allowed expert witness to testify to conclusions based on factual data in an NTSB report, and properly forbade the expert's use of the opinions and conclusions contained in the report); and American Airlines, Inc. v. United States, 418 F.2d 180 (5th Cir.1969) (District court properly allowed into evidence two reports that were part of a Civil Aeronautics Board report because they did not reflect the Board's evaluation of the data they contained or the emphasis placed on that data in reaching a decision on probable cause).

One of the earlier cases to address the scope of § 1441(e) was Berguido v. Eastern Air Lines Inc., 317 F.2d 628 (1963). At trial, a portion of the deposition testimony of two Civil Aeronautics Board (the predecessor of the NTSB) investigators was read into the record. The testimony related to the speed of the plane at the time of impact, the attitude of the aircraft just prior to impact and the angle and rate of descent. The defendant argued that § 1441(e) barred a CAB investigator from testifying to anything except his personal observations about the scene of the crash and the condition of the plane after the accident. The court disagreed and 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. (Footnotes omitted) 317 F.2d at 631-32.

A more recent case to discuss this issue is In re Air Crash at Stapleton Intern., 720 F.Supp. 1493 (D.Colo.1989), wherein the court allowed into evidence an NTSB report. Portions of the report entitled 1) Executive Summary, 2) Probable cause finding, and 3) Recommendations were excluded. The defendants argued that § 1441(e) prohibited the introduction of any portion of the report. The court disagreed and stated that:

The legislative history of the statute demonstrates its purpose was to prevent usurpation of the jury's role by evidentiary use of the Board's conclusions as to probable cause. This purpose is served by the exclusion of conclusions regarding the probable cause of an accident presented by the Board, its investigative sub-committees or individual employees.

720 F.Supp. at 1496.

The portions of the NTSB report sought to be admitted by the plaintiffs here contain the following sections: 1) Factual report, 2) Pilot/operator aircraft accident report, 3) Witness statements 4) Weather records, 5) FAA Omaha FSS personnel statement, 6) Transcript of recorded communication, 7) FAA teardown inspection report, 8) Brown County coroner's report, 9) Statement of party representative, 10) toxicology report, and 11) photographs of the accident scene. I have reviewed the NTSB report and find that it contains no opinions or conclusions as to the probable cause of the crash.

However, the fact that the report contains no such opinions or conclusions does not mean it is automatically admissible. As pointed out in Stapleton Intern., supra, government reports are subject to the limitations of the public records exception to the hearsay rule as set forth in Fed.R. Evid. 803(8)(C), which exempts from the hearsay rule "Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (c) ... factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness". But while government accident investigation reports are generally admissible under Rule 803(8), portions of those reports may present other hearsay problems. Stapleton Intern., supra at 1497. Evidence reported in a government document is only admissible to the extent that the maker of the document could testify to that evidence were he or she present in court. Stapleton Intern., supra.

The coroner's report prepared by Brown County Sheriff Donald Brown contains statements made to him by various person; including statements regarding weather observations and sightings of N110LG just prior to the crash. (Exhibit 110, p. 59-60). Reports otherwise admissible under Rule 803(8) may not contain double hearsay, that is, recordation of otherwise inadmissible hearsay by the maker of the report. Stapleton Intern., supra at 1498. The hearsay portions of the coroner's report are not admissible. Therefore, the reported statements of Larry Hollenbeck, Terry Hollenbeck, Mike Kuchera, Orville Bradley and Dave Brandon will be disregarded.

2. The 1987 deposition of Barry Lloyd (Exhibit 198).

The defendant contends that the allegation by the plaintiffs that Geranis failed to advise N110LG of the content of the Chicago Area Forecast must fail because the plaintiffs, through their expert witness and agent, Barry Lloyd, have already conceded that the caller was given a sufficient weather briefing with regard to this weather information. In his 1987 deposition Lloyd testified that he believed that the area forecast given to the caller identifying himself as N110LG was sufficient. (Exhibit 198, p. 50-54). This, the defendant asserts, is admissible as an admission of a party-opponent under Fed.R.Evid. 801(d)(2), which states in part that:

A statement is not hearsay if —

... (2) ... The statement is offered against a party and is ...

(C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship ...

In support of this argument the defendant cites Collins v. Wayne Corp., 621 F.2d 777 (5th Cir.1980), wherein it was held that the district court erred in not receiving into evidence the deposition of the defendant's expert as an admission of the defendant. The suit arose out of a collision between a tractor-trailer and a bus carrying members of a church group. The...