Journal of Air Law and Commerce


While aviation accident investigations have come a long way from the days when they were completely shrouded in secrecy, friction still remains between investigation and litigation. Investigations are key for identifying facts, witnesses, and areas of focus. The investigation reports, however, might be excluded from trial, and litigation experts can be excluded from trial as well if they rely solely on investigation findings without conducting their own analysis. Although the federal government spends money and effort investigating accidents, the reports are not completed with evidentiary admissibility in mind. Courts are increasingly concerned by double hearsay and other evidentiary problems that arise when using investigation reports in litigation. In the biggest civil tort lawsuit in recent years, arising from the Deepwater Horizon explosion and BP oil spill, the U.S. District Judge excluded all investigation materials from both depositions and the trial, completely separating the litigation from the high-profile investigations.

This article addresses some of the nuances of the role of federal accident investigations in civil tort litigation, primarily investigations by the National Transportation Safety Board (NTSB). The article will look at the history behind the statute forbidding the use of the NTSB probable cause determination in litigation, the current state of the law on the use of NTSB reports, some privileges that apply to federal accident investigations, and hearsay topics. A recurring issue in aviation tort litigation is the NTSB’s backlog, which can cause lengthy delays in lawsuits as the parties wait for the investigators to release data or wreckage. The article concludes that early access to factual material, as well as clear, early rulings from courts on the use of investigation materials, would save money and increase efficiency for litigants and courts.