September 8, 1997 NTSB Accident Investigations: What You Need To Know

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by	Phillip J. Kolczynski

About the Author ... Phillip J. Kolczynski manages his own law firm in Irvine, California. He has a national practice, concentrating in aviation, product liability and business litigation in federal and state courts. Phil teaches evidence, product liability and aviation law at the Aviation Safety Program, School of Engineering, University Of Southern California. He chaired the 1990 ABA National Institute on Aviation Litigation in Washington, D.C., and has spoken nationally at numerous aviation litigation symposia. Prior to moving to California in 1983, he was a trial attorney in the Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation Division, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C. Phil graduated from Case Western Reserve School of Law, Cleveland, Ohio, in December, 1976, and attended college at Marquette University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full Scholarship. Before entering law school, he was a Marine Corps Captain and F-4 Phantom Pilot. He is a Commercial Pilot with instrument and multiengine ratings. AviationLaw@AVweb.com AviationLawCorp.com

The NTSB was formed by The Independent Safety Board Act of 1974. The NTSB was designed to be an independent agency not susceptible to the influence of other parts of government. The Board is managed by five "Members" appointed by the President, each for a five-year term. Once appointed, the member theoretically has job security for his full term, so if the White House calls, the Board theoretically doesn't have to jump. (They might only ask, "How high did you have in mind, Mr. President?")

Which Accidents Does the NTSB Investigate?

The NTSB investigates and reports on all U.S. air carrier accidents, commuter and air taxi crashes, mid-air collisions, serious mishaps involving public use (government) aircraft and all fatal general aviation accidents. The NTSB also investigates accidents involving both civilian and military aircraft and crashes involving military aircraft where the functions of the FAA are at issue. Internationally, the NTSB investigates major accidents involving U.S. air carriers and U.S. manufactured airliners under the auspices of the International Civil Aviation Organization (ICAO). The NTSB even investigates foreign air carrier crashes in U.S. possession and territories, such as the KAL 801 crash in Guam.

The Board may delegate to the FAA the investigation of non-fatal, general aviation accidents, involving fixed wing aircraft of less than 12,500 pounds, home built aircraft, crop dusters and rotorcraft, but retains the discretion to oversee these accidents, if necessary. When FAA investigators are working for the Board, they are not supposed to use information acquired during the NTSB accident investigation for FAA enforcement purposes.

Powers (and Limitations) of NTSB Investigators

In order to enable the NTSB to determine the probable cause of accidents and improve aviation safety, its investigators are given more legal power than many governmental agencies. NTSB investigators have the right to interrogate witnesses on demand, inspect files, enter facilities and aircraft, examine the processes and computer data of any party involved in an air crash. Besides these Congressionally-authorized powers, the NTSB can obtain subpoenas and court orders for special searches and seizures of any party who may have relevant evidence useful in determining the cause of the air crash.

The NTSB regulations specifically state that any witness who is to be "interrogated" (NTSB choice of words) has the right to be represented by counsel. This right to be represented by counsel includes the right to be accompanied and advised by an attorney during all aspects of any interrogation in any environment. But beware…the NTSB does not generally advise witnesses or prospective parties of their right to counsel, unless they are actually crew members on an accident aircraft.

The NTSB may take the position that an organization or business (as opposed to a person) has no right to be represented by counsel in an NTSB investigation. This can be dealt with, however, by ensuring the key people who work for the organization are represented (for their own protection). Moreover, due process should enable a business to have the right to protect itself against overly broad searches which could result in the damaging disclosure of proprietary and confidential, trade secret information. But your attorney might have to go to court for injunctive relief to curb unwarranted searches by the NTSB.

Don't get me wrong! I support the need for an independent NTSB to investigate rapidly after a major crash to protect others from a recurrence or to prevent the destruction of evidence. However, the typical crash investigation does not require that witnesses or parties be subjected to interrogation or inspection without advice of counsel. Remember, the NTSB's right to inspect records should not deprive a business of the original records and files that are needed to comply with other federal and state regulations.

Another important power bestowed on the NTSB by Congress is the right to take exclusive custody of the wreckage, cargo and records of the accident aircraft. This exclusive access has been challenged by a number of private litigants with significant success in the courts. The NTSB counter-attacked with the 1990 Amendments to the Independent Safety Act. Now, the NTSB may exclude interested persons, such as the pilot, the owner or the families of the victims, from any participation or observation of the wreckage testing and analysis. Is this fair? To understand this issue, one needs to understand the structure of NTSB investigation and what goes on behind the scenes in an NTSB investigation.

The Structure of NTSB Investigations

There are two kinds of NTSB investigations: field office investigations and headquarters investigations.

Field Office Investigations

Fatal general aviation crashes, as well as some air carrier and commuter accidents with relatively minor injuries, are often investigated by a single field investigator from one of the NTSB's Regional Offices. If necessary, this investigator has access to technical experts at The Bureau of Technology at the NTSB Headquarters in Washington, D.C., the FBI and other federal agencies. He can also obtain consultation from any commercial operator involved or manufacturer of the airplane or its subcomponent parts. Traditionally, the Field Investigator utilizes the assistance of a Flight Standards and/or Air Traffic Control representative from the FAA Regional Office or facility involved.

Headquarters Investigations

Major accidents are handled by a "Go Team" from NTSB Headquarters in Washington, D.C. The "Go Team" is made up of an Investigator In Charge (IIC) along with a panel of technical specialists put together to address the primary issues arising out of any particular crash. Committees called "Groups" handle specialized components of the investigation, such as an Operations Group, Structures Group, Maintenance Group, Air Traffic Control Group, Weather Group Chairman, Witness Group, etc. Moreover, major air carrier disaster investigations usually include a "Member" of the Board and a Public Affairs Officer who control everything the media learns about the technical aspects of the crash.

Parties are designated to have official status as NTSB Investigation Consultants in such major accident investigations. Invariably, the Operator, particularly air carriers and air taxi operators, is designated as a party. The airframe manufacturer, engine manufacturer and relevant subcomponent manufacturers may also be designated as parties. The FAA is almost always designated as a party.

The people who are most interested in the outcome of the investigation, and who are never permitted party status are the survivors! The NTSB doesn't feel they have any expertise to offer. This policy ignores the reality that passenger organization and consumer groups could hire technical consultants, if permitted. Similarly, the surviving pilot and the owner of the aircraft may not be designated as parties unless the NTSB feels that they have technical expertise that cannot be obtained from major operators or manufacturers.

What Really Goes On in an NTSB Investigation?

In a major air crash investigation, each of the groups and parties involved, have daily meetings to review the ongoing developments in the investigation. Notes are taken, draft reports are discussed, and various theories as to the cause of the crash are explored. The NTSB traditionally relies on manufacturers and air carriers to cooperate and provide them with all relevant information pertinent to the product or operation being investigated.

In the litigation which invariably results from serious air crashes, "parties" such as the air carriers and manufacturers are the "usual defendants," they are frequently found to be at fault for such crashes. Thus, one can understand the frustration of the victims and in some cases, the pilot and owner of an aircraft, who are unable to participate in the investigation. These personally affected non-parties know that the culprit who may have caused the crash, a designated party that is working hand-in-glove with the NTSB Investigator is to determine the probable cause. The NTSB's justification for this is that only the manufacturer or the accident airlines have the necessary expertise to assist the NTSB in their investigation (49 CFR 831). (Retired engineers, pilots and those working for other companies using the same equipment, apparently don't have what it takes.)

NTSB regulations specifically exclude lawyers for the victims and representatives of insurance companies from participating in the NTSB Investigation (49 CFR 831.11). The NTSB has advised Congress that it is important that adversarial interests which motivate litigation be kept out of the investigative process. Party representatives in an investigation (who are usually employed by manufacturers and airlines) are required to sign a declaration conferring that they do not work for lawyers or insurance companies.

Are we to believe that representatives of these entities don't have adversarial interests which are to be protected? A double standard is permitted. The airlines and manufacturers often have uninsured exposure, a reputation to maintain and know that they will be the target defendants in any subsequent litigation. Moreover, party representatives are not sequestered. There is no way that the NTSB can prevent the airline party representative or the manufacturer party representative from sharing the details of the technical investigation with their colleagues, who report to lawyers and insurers, back at the home office of their respective companies. Thus, critical technical information may be acquired by insurers and company lawyers during the early stages of the NTSB investigation, while the victims and their lawyers are kept in the dark about the theories of causation which are being examined.

How Thorough Is the NTSB?

Recently, we've observed the "heroic" efforts of the NTSB and the unprecedented involvement of the FBI to solve the TWA 800 riddle. The current Board and its investigators are the best we've had in years. However, the Government does not use comparable money and manpower in every major air crash investigation and frequently not in every Part 135 and general aviation accident.

Air crash litigation often involves millions of dollars of exposure. The insurance companies who pay for the defense of almost every major air crash case in the United States often have a real incentive to prove that somebody else's insured bears substantial responsibility for the crash. Indemnity laws require that all culprits pay their proportionate share of multimillion dollar settlements for plane loads of deceased business travelers and multimillion dollar hulls. The insured value pay out, for the hull loss alone, of an MD-11 cargo plane, which crashed in New Jersey a few years ago, was $115 Million dollars.

Example of a Poorly Handled NTSB Investigation

This true story reveals the NTSB's failure to always uncover the exact cause of a major air crash disaster. A number of years ago, the author supervised the liability defense of the air carrier which had a take off crash, in which 70 people died and one survived. The NTSB conducted a "Go Team" investigation and held public hearings. A suspected cause of the crash was that an external "door" or "hatch" was left open before take off, which resulted in terrible vibration (heard on the CVR) and aerodynamic anomalies recorded on the FDR. The pilot is believed to have misinterpreted the cause of the vibration perhaps fearing a structural failure. He did not apply sufficient power after lift off to sustain flight. The aircraft crashed into a trailer park stocked with liquid propane tanks. The pilot was the first to pay for his error with his life, and of course, unavailable to explain why he inexplicably failed to maintain flying speed. The suspected external hatch was not guarded by a "door open" warning light and was the type designed to be closed by ground service personnel. (Raise any questions?) The Board's Probable Cause was pure pilot error — failure to maintain flying speed!

A formal request made to the Board to examine the wreckage to search for the suspect hatch was denied. The NTSB investigators never found it. After they were done with the wreckage, they used an "articulating loader" to scoop up the airplane parts which were crunched and dropped into a dump truck. The truck then poured the evidence into a pile on the floor of a hangar whereupon it was turned over to us. My consultants found the suspect hatch and I turned it over to the Board member in charge at the public hearing. A hastily organized test flight test had already been attempted by the Board using a similar aircraft, but the Board was unable to duplicate the vibration condition. The Board returned the hatch.

Funded by the air carrier's insurer, we leased the same model airliner, equipped it with cameras, microphones and vibration sensors and conducted test fights in a remote location with "yours truly " in the jump seat. Video cameras captured the hatch which was, "intentionally left unsecured in pre-flight," flipping up in front of the leading edge of the wing during take off rotation. Guess what? Severe vibration was created by the hatch sticking up in front of one wing, which was recorded by equipment in the test airplane. The frequency and amplitude of the vibration matched the same signals on the accident airplane's CVR/FDR! We had proved the exact cause of the problem that caused the crash!

We filed, but the Board denied, a Petition For Reconsideration. They said that the pilot should have maintained flying speed. Yes, the pilot made a horrible mistake by not maintaining flying speed in a controllable airplane, but that wasn't the only cause.

The video tape footage and vibration/sound recordings were made into a documentary film and successfully used as demonstrative evidence to negotiate a multimillion settlement with other parties.

The NTSB Determines "Probable" Cause, Not Liability

The NTSB's charter under the Independent Safety Act of 1974, does not empower the Board to conduct investigations for the purpose of determining all causes with certainty. NTSB investigations are terminated after finding the "probable" cause. The NTSB admittedly does not attempt to allocate responsibility to various parties who may have caused a crash. Its not that NTSB investigators these days, aren't dedicated and thorough professionals - most of them are. The unfortunate reality is that they do not always have the funding and manpower to pinpoint all the causes.

The Probable Cause determination of the NTSB is not based on "evidence." The determination of proximate cause in a civil liability trial must be based on competent evidence. The NTSB may consider matters in reaching the probable cause determination, which could be excluded from evidence in civil litigation, because hundreds of years of jurisprudence has taught us that certain information is unreliable.

Unfortunately, for any "operator" involved in an air crash, the NTSB's most common determination is "Pilot Error." This "buck stops here attitude" is not controlling in civil litigation where an "operator" can prove all the proximate causes which contributed to the crash. More than ever before, technological progress has made aviation safety the responsibility of many parties - to simply blame the pilot is unfair and inaccurate.

What Is Included in an NTSB Report?

Field investigations result in a factual report, from which the investigator recommends a probable cause determination to the Board. The Board then reviews field investigation reports and votes to adopt, reject or modify the probable cause determination recommended by a Field Investigator.

When the NTSB approves a Field Investigator's Factual Report, their probable cause determination along with a summary of the relevant facts is published on a quarterly basis. You can find all such accidents by date and location in "Briefs of Accident" in the public dockets section of NTSB Headquarters in Washington, D.C.

Major accident investigations led by NTSB "Go Teams" are more heavily documented. Each group chairman prepares a report and submits it to the Investigator In Charge. The Investigator In Charge in turn, prepares a draft NTSB Report and submits it to the Board for review. The Board in major airline disaster cases, and other accidents of great public interest, may conduct public hearings wherein witnesses are called and interrogated. The Board will then meet and deliberate to determine probable cause.

After the NTSB reviews the results of a major accident investigation by a "Go Team," and determines Probable Cause, the results are published in what has been traditionally called The NTSB "Blue Cover" Report. (It is now actually white with blue printing.) The NTSB Factual report and the NTSB Blue Cover Report of the Board are both placed in the public docket at the NTSB Headquarters in Washington, D.C. They are available to anyone who wants to obtain a copy. In addition, all of the exhibits and sub-group reports which were part of the investigations are included in the public docket.

Representative items that can be found in a public docket from a major accident, include, weather data, witness statements, cockpit voice recorder transcripts, air traffic control tape transcripts, ground track plots created from FAA radar raw data, engine tear down reports, diagrams, specifications, photographs, computer recreations, transcripts of public hearings, etc.

One of the most commendable policies of the NTSB is its practice of placing all of its final investigative materials in the public docket for anyone to study. The only items that are kept out are the trade secrets of parties who have specifically requested that such information be kept confidential and the Board has approved. Unfortunately, the analytical notes, drafts of various reports and other preliminary materials created by NTSB Investigators, NTSB Technical Experts, and party consultants to the NTSB, are either destroyed or kept in confidential NTSB files which are not placed into the public docket.

For many years, the public had the opportunity to read the transcript of the cockpit voce recorder as soon as it was transcribed. Interested parties could listen to the actual CVR tapes and "experts" could scrutinize utterances for hidden meaning. Now, because on an embarrassing incident  and a strong lobby, the CVR tapes are no longer discoverable. We get only those portions of the CVR which the Board elects to transcribe and reveal to the public (parental control?), and only when the Board has completed most of its investigation.

The catalyst which led to these limitations on our access to important CVR tapes and transcripts was the notorious Delta Flight 1141 "flaps up" accident in Dallas, Texas. The crew allegedly mispositioned the flaps, while they were recorded (on the CVR) discussing the physical attributes of a particular female flight attendant, before take off. A State Court Judge in Texas ordered Delta to produce the CVR recording which was subsequently broadcast by the media. ALPA was outraged and threatened a walkout. The NTSB responded to this lobbying pressure by persuading Congress to amend the Independent Safety Board Act in 1990 to protect the cockpit privacy of airline crews.

What Happens to the NTSB Report in Court?

NTSB probable cause determinations are not admissible in evidence (49 USC 1441(e)). Private litigants must prove the cause of the crash to a jury without the benefit of the conclusions of the NTSB accident investigations. Many courts have allowed the Field Investigator's "Factual Report" into evidence and some courts have allowed the jury to read the NTSB "Blue Cover" Report. However, federal courts have begun to follow 49 USC 1441(e) "literally." and have simply refused to allow the NTSB Blue Cover Report into evidence in airline disaster litigation (Sioux City United Airlines DC-10 Disaster.) There is support for this caution because the Blue Cover Report of the Board often has factual findings intertwined with opinion and analysis such that it would be very difficult for a Judge to extract purely factual information that will have meaning for the jury.

Judges have even a greater concern — if they were to simply show the jury the NTSB Report in all of its finality, juries would simply defer to the opinions of the federal investigators. Litigants would, in effect, be denied their right to a jury trial because the jury's prerogatives would be usurped by the findings of investigators who had investigated a particular accident.

Some people might say, "What's wrong with that?" The investigators know more about airplanes than jurors. Think about how fair it would be if you had a complicated auto accident and all the jury cared about was the Highway Patrol Officer's Report that blamed you?

A relatively new reason why the opinions in NTSB Reports release may not be admitted into evidence is the fact that lawyers are no longer able to ask NTSB Investigators why they interpreted the facts the way they did. NTSB Regulations allow lawyers to take the depositions of the NTSB Investigators, but the investigators are not permitted to reveal their analysis or express opinions in the deposition. Thus, private litigants need to have their own experts to analyze the evidence and reach opinions as to causation.

Should You Conduct Your Own Accident Investigation?

Based on 20 years experience with such matters, I recommend that any party implicated in a major air crash, retain an experienced aviation accident attorney and conduct its own investigation within budgetary limitations. Here's what should be done:

• An experienced lawyer should meet with a witnesses or party representatives before the NTSB "interrogation" to insure that the witnesses understand the manner in which the investigation will proceed and be advised of their rights.
   
• It is important to have a previously uninvolved aviation lawyer review the facts, procedures and known evidence with the party and involved employees, so that objective facts can be provided in the interview, rather than emotionally clouded statements which are common after accidents. Survivors of an accident should not give statements to anyone when on medication or in shock.
   

• People who've never been "interrogated" benefit from a briefing that explains the difference between fact, analysis, opinions and conclusions. It is important to distinguish between what you really know, or what you're inclined to comment on with confidence, but you really don't "know." Do you remember a fact or do you have a fuzzy memory? Are you willing to say you "remember" because putting 2 and 2 together, "that's probably what happened?"
   
• Any person who will give a sworn statement or testify under oath should understand that the oath simply requires that the witness tell the truth. The oath does not require that you speculate, volunteer opinions, recall hearsay, or incriminate yourself.
   
• Care must be taken to properly preserve evidence, safeguard records, avoid the spoliation of evidence and protect trade secrets or other proprietary financial information.
   
• If an FAA employee wants to ask questions as part of an NTSB investigation, get a commitment in writing that nothing divulged will be used in an Enforcement Action.
   
• A lawyer can confidentially interview a client-party's employees under the attorney-client privilege.
   
• Eye and ear witnesses interviewed by the NTSB can also be interviewed by private party investigators or consultants while the recollections are fresh.
   
• Just as the NTSB will investigate the maintenance and operational history of an airplane, so can the private consultants and investigators working under the Attorney's Work Product protection conduct a confidential investigation of these issues for a concerned party.
   
• Your attorney should make every effort to locate governmental data relevant to the crash and preserve it. One cannot assume that the government will save every relevant tape recording or all critical radar raw data. In one case, the author demanded in writing that radar raw data showing a mid-air collision be preserved after the NTSB was done studying it. The data was destroyed the day after the NTSB left the facility. A Federal Judge approved the author's motion on behalf of the client, to amend the lawsuit to include a spoliation of evidence claim against the offending agency, which was very helpful in subsequent settlement negotiations.

What Information Should an Investigation Consider?

The following is an abbreviated list of information and information sources which experienced aviation accident lawyers should know how to obtain quickly after a major accident, in order to assist a client with an independent investigation:

• Airworthiness Directives Files
• Service Bulletins and Letters and Instructions
• TSOs
• Advisory Circulars and Other FAA Orders
• General Aviation Inspection Aids
• Patent Applications
• Hazard Reports
• Service Difficulty Reports
• Malfunction Defect Reports
• Overhaul and Maintenance Records
• Annual or Periodic Inspection Records
• Pilot, Airplane, Engine and Propeller Logbooks
• Certified NWS Weather Data
• FAA Facility Logs
• FAA Aircraft Certification Files
• FAA Airman License and Medical Files
• FAA Airman Training Records
• FAA Aircraft Title and Registration Records
• TRACON Radar Raw Data generated by ARTS
• NTAP Radar Raw data from the ARTCC
• Flight Plans and Ship Logs
• Investigative Reports of Federal, State, County and Municipal Law Enforcement, Emergency, Fire and Rescue Agencies
• Medical Reports (its amazing what is quoted in medical history taken by doctors)
• Autopsy Reports
• CAMI Toxicology Reports
• Wreckage Scene Photos
• Wreckage Pattern Videotapes
• Airport Data
• Navigational Charts
• Instrument Approach Plates
• Reports of similar accidents involving similar aircraft or components
• NTSB and ICAO Safety Summaries and Recommendations
• Tape Recordings of "all" communications relevant to the accident flight, (not just the usual 5 minutes before and 5 minutes after contact with the accident aircraft)

NOTE: The issues and recommendations discussed in this article are based on hypothetical situations and do not constitute legal advice. My objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.