Why Jurors and Jurists Should Doubt the Conclusions and Analyses of the United States National Transportation Safety Board

An unfortunate truth in aviation litigation is that a product manufacturer’s litigation defense begins during its involvement in the National Transportation Safety Board’s investigation of a crash. The NTSB’s regulations permit the companies who manufacture and sell products under scrutiny to “participate” in the government’s investigation of a crash involving its products. The NTSB’s regulations do not permit accident victims and their representatives to participate in the government’s investigation. This is a conflict of interest created by and condoned by the very federal authority tasked with responsibility to objectively investigate aircraft crashes. Simply stated, the fox is watching the henhouse.

In litigation, product liability defendants try to inform the jury that the NTSB found nothing wrong with their product. This creates the false appearance of a reliable investigative report authored by the government of the United States. It’s not true. This is a misleading tactic employed by defense lawyers; and every juror hearing it should immediately be directed to question the credibility of that assertion. It is most often the truth that the manufacturer who is the defendant evaluated its own product during the NTSB’s investigation, and the manufacturer itself told the NTSB that there was nothing wrong with its product. The defense lawyer hired by and paid by the defendant’s insurance company is paid to win the case, not to be candid about the bias inherent in NTSB investigations.

This is why litigation begins at the crash scene. Manufacturers believe that they can win an anticipated product liability trial by influencing the initial NTSB investigation. This defense tactic is called the ‘imprimatur of government endorsement of a defendant’s litigation position.’ The manufacturer believes the jury will believe in its defense because an NTSB report, bearing an ornate blue ribbon and golden government seal, exonerates its product. A trial is a quest for the truth, and jurors and jurists alike should be instructed at every opportunity to carefully question the reliability of an NTSB’s factual findings that somehow exonerate a product manufacturer.

The NTSB’s party participant process permits manufacturers to bias and infiltrate NTSB investigations. This is a recognized concern. The RAND Institute for Civil Justice conducted an extensive study about the party participant process in NTSB investigations. That evaluation concluded:

[t]he party process presents inherent conflicts of interest for entities that are both parties in an investigation and ‘party defendant’ in related litigation. Indeed, RAND has found, at least within certain complex types of accidents, the party system is potentially unreliable and that party representatives may be acting to further various interests beyond prevention of a similar accident.

Cynthia C. Lebow et al., Safety in the Skies: Personnel and Parties in NTSB Aviation Accident Investigations 30 (2000), (click here to read). The RAND report also disclosed that the NTSB was one of the smallest federal authorities, received only a small budget from the Treasury, yet it is responsible for the investigation of the crashes of airplanes, trains, boats, hot air balloons, trucks, and other vehicles and yet it has no regulatory authority and is only empowered to make “recommendations” to federal agencies. This small federal entity is underfunded, understaffed and stretched to its limits.

The USA Today newspaper conducted an extensive investigation into dozens of aircraft crashes investigated by the NTSB and aircraft manufacturers. USA Today “Safety last: Lies and coverups mask roots of small-plane carnage. The lawyers at Katzman, Lampert & Stoll represented several victims of the crashes featured in the article and exposed the failures of the NTSB party participant system in these crashes. The investigation concludes:

Nearly 45,000 people have been killed over the past five decades in private planes and helicopters — almost nine times the number that have died in airline crashes — and federal investigators have cited pilots as causing or contributing to 86% of private crashes. But a USA TODAY investigation shows repeated instances in which crashes, deaths and injuries were caused by defective parts and dangerous designs, casting doubt on the government’s official rulings and revealing the inner workings of an industry hit so hard by legal claims that it sought and won liability protection from Congress.

Wide-ranging defects have persisted for years as manufacturers covered up problems, lied to federal regulators and failed to remedy known malfunctions, USA TODAY found. Some defective parts remained in use for decades — and some are still in use — because manufacturers refused to acknowledge or recall the suspect parts or issued a limited recall that left dangerous components in hundreds of aircraft.

The manufacturers involved paid hundreds of millions of dollars in settlements that received little or no public attention until now and that need not be disclosed to federal regulators. In addition, civil-court judges and juries have found major manufacturers such as Cessna Aircraft, Robinson Helicopter, Mitsubishi Aircraft, Bell Helicopter and Lycoming Engines liable for deadly crashes, ordering them to pay hundreds of millions of dollars in compensatory and punitive damages.

The verdicts contradict findings of the National Transportation Safety Board, which conducts limited investigations into most crashes of private aircraft and asks manufacturers to look for defects in their parts, even if the manufacturers are being sued over a crash.

(click here to read “Safety last: Lies and coverups mask roots of small-plane carnage”)

The NTSB is not governed by any rules of qualification and competency. NTSB aircraft crash accident investigators are not required to have real life accident reconstruction experience, nor are they necessarily schooled in basic physics, much less in mechanical engineering or aerodynamics. This is contrary to the rules of evidence governing courtroom expert witnesses’ testimony. In a courtroom, the experts must have a sufficient scientific and technical background to testify on what caused a crash, and the experts in court must have reached their opinions through application of a reliable methodology. The NTSB, on the other hand, can speculate on the cause of a crash and it can endorse a manufacturer’s speculation.

While the RAND report exposed the inherent bias in the NTSB party participant process, some rules have been adopted to try and fix the problem. For example, NTSB regulations try to separate the agency and its employees from litigation. NTSB regulations prohibit its investigators from offering opinion testimony. On its face, this may seem like an honorable gesture, but it eliminates a victim’s ability to cross-examine the investigator on the inherent lack of reliability in the opinions. NTSB lawyers instruct the investigators not to answer questions which require an opinion.

In addition, NTSB regulations prohibit the use in court of its probable cause determination and final reports in civil litigation. On its face this seems like a step in the right direction, however, the investigator’s “factual report” can be used in litigation. The NTSB’s party participant process affords the manufacturer the right to review, comment, and make edits to the investigator’s factual report. As a result, these “factual reports” are less factual and more of a road map to a product liability defendant’s defense at trial.

The Seventh Amendment to the United States Constitution preserves the right to a jury trial. However, for the amendment to have any meaning the concept of “fairness” must be an inherent quality of the trial. The NTSB party participant process jeopardizes fairness. It enables the NTSB to invite manufacturers’ employees to conduct investigations of their employer’s products. These employee investigators report to their supervisor who report to their supervisor, who report to in house risk management lawyers. In house risk management lawyers report to insurance companies. Insurance companies hire the lawyers who defend the manufacturers at trial. At trial, those lawyers try to use the very reports their client helped write as a “party participant” to the NTSB to urge the jury to deny justice to the accident victim.

NTSB reports are subject to inherent bias and its investigative process is impugned by the presence of potential manufacturing defendants. The jury is the last line of protection and it is ever so important that jurors not be misled by unreliable and inherently biased NTSB reports.