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IN RE AIR CRASH DISASTER AT SIOUX CITY ON JULY 19

December 20, 1991

In Re: AIR CRASH DISASTER AT SIOUX CITY, IOWA, ON July 19, 1989

Conlon


The opinion of the court was delivered by: SUZANNE B. CONLON

MEMORANDUM OPINION AND ORDER

 In this consolidated multidistrict litigation stemming from an air crash at Sioux City, Iowa, defendants United Airlines, Inc. and UAL Corporation (collectively "United") and General Electric Company (collectively "defendants') variously move in limine to exclude all or part of the National Transportation Safety Board's Aircraft Accident Report concerning the crash of United Airlines Flight 232. Defendants principally contend that the report may not be admitted into evidence or otherwise used at trial pursuant to 49 U.S.C. App. § 1441(e), 49 U.S.C. § 1903(c) and 49 C.F.R. § 835.1 - .9 (1991). *fn1"

 On July 19, 1989, United Airlines Flight 232 from Denver to Chicago crashed during an attempted emergency landing at Sioux City, Iowa, after the aircraft lost all hydraulic power. Of the 296 people on board, 112 were killed as a result of the crash. The National Transportation Safety Board ("NTSB" or "the Board") undertook an immediate investigation of the crash, pursuant to its duties under 49 U.S.C. §§ 1441 and 1903, to determine the factual circumstances and probable cause of the accident, as well as to recommend measures that might prevent a similar accident from occurring in the future. *fn2" NTSB investigators compiled information and evidence concerning the Sioux City crash and submitted factual accident reports detailing the evidence uncovered. The NTSB also conducted hearings and subjected certain of the crash evidence to laboratory testing, including tests to determine the origin of a metallurgical flaw in the failed engine's No. 1 fan disk that caused the disk to break apart in mid-flight.

 On November 1, 1990, the NTSB published its final "Aircraft Accident Report" ("the report") regarding the Sioux City crash. The report contains a lengthy compilation of all factual information uncovered in the investigation. The report analyzes the factual data and states numerous factual conclusions concerning a number of alternative and competing theories that might explain the cause of certain disputed facts. The report also contains a conclusion section that includes the NTSB's probable cause determinations regarding the ultimate causes of the crash, as well as the probable cause conclusion of a dissenting NTSB member. Finally, the report contains an executive summary restating the NTSB's probable cause determination and a concluding set of recommendations to the Secretary of Transportation and the Federal Aviation Administration regarding measures the NTSB believes might help avoid a similar accident in the future.

 Plaintiffs intend to tender the report at trial as evidence in support of their various personal injury, survival action and punitive damages claims. General Electric and United move in limine to exclude any use of or reference to the report, either in its entirety or in part, at the upcoming trial on January 13, 1992.

 DISCUSSION

 General Electric asserts that 49 U.S.C. App. § 1441(e) and 49 U.S.C. § 1903(c) prohibit any use of or reference to the NTSB accident report, either in whole or in part, at trial. 49 U.S.C. App. § 1441(e) states:

 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.

 49 U.S.C. App. § 1441(e). Section 1903(c), enacted subsequent to § 1441(e), states a similar prohibition on the use of NTSB reports in almost identical language. *fn3" The interpretation of these statutory provisions is an issue of first impression in this jurisdiction.

 The unequivocal wording of sections 1441(e) and 1903(c) appears to leave no room for creative interpretation. The language, on its face, states an absolute bar to the use of NTSB reports in the present action. See Protectus Alpha Navigation Co. v. North Pacific Grain Growers, Inc., 767 F.2d 1379, 1384-85 (9th Cir. 1985); Benna v. Reeder Flying Serv., Inc., 578 F.2d 269 (9th Cir. 1978). However, plaintiffs advance a facially improbable interpretation of sections 1441(e) and 1903(c) by other courts that permits large portions of NTSB accident reports to be admitted into evidence at civil trials, notwithstanding the unequivocal nature of the statutory prohibition.

 Foremost among the cases plaintiffs cite is In re Air Crash Disaster at Stapleton International Airport, 720 F.Supp. 1493 (D. Colo. 1989). As in the present case, the district court in In re Air Crash presided over consolidated multidistrict litigation stemming from a commercial aircraft crash. Plaintiffs offered into evidence the NTSB accident report, but voluntarily excluded the NTSB's probable cause determinations, executive summary and recommendations. Defendants objected to the admission or use of any portion of the report, urging the court to adopt the literal construction of § 1441(e) applied by the Ninth Circuit. Id. at 1495-96.

 The district court determined that it was bound by an interpretation of § 1441(e) purportedly advanced in a Tenth Circuit case, Keen v. Detroit Diesel Allison, 569 F.2d 547 (10th Cir. 1978). In Keen, the Tenth Circuit gleaned the congressional intent that lay behind § 1441(e) in the context of determining whether a district court had erred in permitting NTSB accident investigators to testify to their factual observations of a crash site. The Keen court concluded that the admission of the investigators' factual testimony was not error because § 1441(e) does not act as a "total prohibition" on the admission of investigation evidence, but rather was intended only as a bar to the admission of conclusions or opinions more properly left to a jury. Keen, 569 F.2d at 549-51; In re Air Crash, 720 F. Supp. at 1496. Applying the Tenth Circuit's reasoning in ...


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