In re Air Crash Disaster at Stapleton Intern.

• Decision Date: 07 June 1989
• Docket Number: M.D.L. No. 751.
• Citation: 720 F. Supp. 1493
• Parties: In re AIR CRASH DISASTER AT STAPLETON INTERNATIONAL AIRPORT, DENVER, COLORADO, ON NOVEMBER 15, 1987.
• Court: U.S. District Court — District of Colorado

720 F. Supp. 1493

In re AIR CRASH DISASTER AT STAPLETON INTERNATIONAL AIRPORT, DENVER, COLORADO, ON NOVEMBER 15, 1987.

M.D.L. No. 751.

United States District Court, D. Colorado.

June 7, 1989.

ORDER MDL 751-38

MEMORANDUM OPINION ON EVIDENCE ORDERS

SHERMAN G. FINESILVER, Chief Judge.

This multidistrict action involves claims for personal injury and wrongful death arising out of the crash of a commercial airliner. Consolidated claims for liability and damage claims of plaintiffs Karen Svea Johnson, a passenger injured in the crash, and Robert Cooke, Jr., her husband, were presented to the jury during January of 1989. Defendants in this litigation are Continental Airlines, Inc., ("Continental") and Texas Air Corporation.¹ The Johnson claims were tried as an exemplar case by her counsel and the Plaintiffs Steering Committee.² Briefly stated, the jury found defendant's conduct had been wilful or reckless under Idaho law, but not grossly negligent in a manner warranting punitive damages under Texas law. As a result, the court was prevented from limiting the Ms. Johnson's non-economic recovery under Idaho law, but no exemplary damages were awarded under Texas law. The jury also found that although defendant's advertising amounted to a deceptive trade practice under Idaho law, the practice caused no injury to Ms. Johnson.

During trial, the court ruled on several evidentiary matters and established certain trial procedures on which we expand in this opinion: (1) admissability of investigative reports of the National Transportation Safety Board, (2) admissability of the personnel files of other airlines relating to Continental Airlines employees, (3) admissability of deposition testimony of unavailable witnesses under Rule 32(a)(3) of Federal Rules of Civil Procedure, and (4) summary presentation of testimony and depositions at trial.

I. Accident Investigation Reports Federal Aviation Act 49 U.S.C.App. § 1441(e) Rule 803(8)(C) of the Federal Rules of Evidence

Continental Airlines Flight 1713 crashed on November 15, 1987 at Stapleton International Airport in Denver, Colorado during a heavy snowstorm. As the DC-9 lifted off the runway, it overturned and crashed. On impact, the passenger compartment broke into several pieces and an explosion produced a fireball which moved through the cabin from front to back. The accident killed 28 persons, most seated in the front portion of the cabin, and injured 54 others. Among the deceased were the pilot, a flight attendant, and the co-pilot, who had been in control of the aircraft during takeoff.

The NTSB, in accordance with federal regulations, began an investigation of the crash. Investigative teams, including management personnel from the airline were brought in from around the country. During the summer of 1988, the Board held hearings on the causes of the crash in Golden, Colorado. Passengers, flight attendants, airline officials and others testified at the hearing. The Board released its report on September 27, 1988, finding in part that the crash was caused by pilot error and improper de-icing procedures. The Board rejected several theories propounded by Continental Airlines regarding the cause of the crash. The report included an appendix, prepared by an investigative sub-committee on "Human Factors" contributing to the crash, that suggested the cockpit crew and especially the co-pilot in control of the aircraft lacked the qualifications necessary to fly the DC-9 in the weather conditions they confronted on November 15, 1987.

Plaintiffs tendered the report in support of claims for negligence, punitive damages, and false advertising of pilot qualification and safety under the Texas Deceptive Trade Practices Act. Plaintiffs excluded portions of the report captioned (1) Executive Summary, (2) Probable Cause Finding, and (3) Recommendations. In two motions, defendants objected generally to admission of the entire report and specifically to admission of the Human Factors report. On January 25, 1989, the court ruled formally on the objections and admitted the edited report into evidence. We re-affirm that ruling and present additional comment.

1. General Admissability of the NTSB Report.

Accident investigation reports of the National Transportation Safety Board ("NTSB" or the "Board") present conclusions as to the probable cause of an air crash disaster and recommendations for preventing similar accidents in the future. The reports include and compile (a) data collected by investigators and at public hearings on a particular crash, and (b) reports of various investigative teams established by the Board to look into specific areas which might have contributed to cause the crash, i.e. human factors, weather conditions, air traffic, etc. NTSB accident investigation reports are useful to litigants in air crash cases; they relate indepth factual investigations beyond the limited resources of some litigants. See W. Turley, Aviation Law § 13.14.

The admissability of NTSB reports is controlled by statutory limitation. 49 U.S. C.App. § 1441(e) states:

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.

Defendants urge the court to apply the Ninth Circuit Court of Appeals rule that the statute acts as a complete bar to the admission of any portion of the final report or sub-reports. See Protectus Alpha Navigation v. North Pacific Grain Growers, Inc., 767 F.2d 1379, 1385 (9th Cir.1985); Huber v. United States, 838 F.2d 398, 403 (9th Cir.1988) (applying Protectus interpretation to similar provision applicable to Coast Guard reports).

Plaintiffs contend that the Ninth Circuit rule is not controlling in this litigation. The author of the Protectus opinion recognizes that the holding is at variance with the Tenth Circuit rule set forth in Keen v. Detroit Diesel Allison, 569 F.2d 547, 549-51 (10th Cir.1978). See also Mullan v. Quickie Aircraft Corp., 797 F.2d 845, 848 (10th Cir.1986) (reaffirming Keen rule). State courts in Colorado also apply the Keen rule. See Murphy v. Colorado Aviation, Inc., 588 P.2d 877, 881-82 (Colo.App. 1978).

Although not raised by the parties, the court considered the fact that many of these multi-district cases, including the exemplar case, were filed in the District of Idaho. Had these cases been tried in Idaho, the Ninth Circuit rule would be strong precedent controlling the presentation of evidence. The NTSB report would have been inadmissable in its entirety under Protectus. The federal law of the transferee forum (Colorado) is in conflict with the law of the transferor forum (Idaho) in many of these multi-district cases. When such circumstances exists, the transferee court is required to give careful consideration to the law of the transferor forum, but is bound by the informed and reasoned opinions setting forth the law of its own Circuit. In re Korean Air Lines Disaster, 829 F.2d 1171, 1174-75 (D.C.Cir.1987), aff'd sub nom. on other grounds, ___ U.S. ___, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989). The principle requiring informed application of the federal law of the transferee forum applies after formal transfer of multi-district cases for trial, pursuant to 28 U.S.C. § 1404, as well as during the pre-trial phases litigated pursuant to 28 U.S.C. § 1407. See In re Korean Air Lines Disaster, 829 F.2d at 1175.

In Keen, the Tenth Circuit adopted the reasoning and rules of other Circuits that are unwilling to require the trial court to draw sensitive distinctions between admissable "facts" and factual inferences drawn by the Board or its investigators. The federal statute is not a "total prohibition against `all evaluation, opinion and conclusion evidence." Keen, 569 F.2d at 551 (quoting Kline v. Martin, 345 F.Supp. 31, 32 (E.D.Va.1972)); see also Berguido v. Eastern Air Lines, Inc., 317 F.2d 628, 632 (3d Cir.), cert. denied, 375 U.S. 895, 84 S.Ct. 170, 11 L.Ed.2d 124 (1963) (the primary thrust of the provision is to exclude reports which express agency views as to the probable cause of the accident). The Tenth Circuit agreed that the purpose of the statute was to bar admission of conclusions or opinions more properly left to a jury rather than to establish a privilege encouraging full disclosure to the investigating agency. Keen, 569 F.2d at 549. 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.

The Tenth Circuit rule, and persuasive evidentiary principles, control the admissability of the NTSB reports in this litigation. See In re Korean Air Lines Disaster, 829 F.2d 1171, 1174-75 (D.C.Cir.1987), aff'd sub nom. on other grounds, ___ U.S. ___, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989). Accordingly, defendants' motion to exclude the entire NTSB Report is denied.

2. Defendants' Motion to Exclude the Human Factors Report.

The rule set forth in Keen v. Detroit Diesel Allison does not entirely resolve the admissability of the NTSB report. Government reports are subject to the limitations of the Public Records exception to the hearsay rule contained in Rule 803(8)(C) of the Federal Rules of Evidence.³ The Supreme Court recently clarified the distinction between "factual findings" and inadmissable "conclusions" and the hearsay principles applicable under Rule 803(8)(C). See Beech Aircraft v. Rainey, ___ U.S. ___, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988). The issue presented by the NTSB report regarding crash of Flight 1713 is whether the Human Factors Report, included as an appendix to the final report, is based principally on hearsay and so replete with inadmissable...