Allen v. Phi, Inc.

181 So. 3d 890, 15 La.App. 3 Cir. 461, 2015 La. App. LEXIS 2513, 2015 WL 8331002
CourtLouisiana Court of Appeal
DecidedDecember 9, 2015
DocketNo. 15-461
StatusPublished
Cited by4 cases

This text of 181 So. 3d 890 (Allen v. Phi, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Phi, Inc., 181 So. 3d 890, 15 La.App. 3 Cir. 461, 2015 La. App. LEXIS 2513, 2015 WL 8331002 (La. Ct. App. 2015).

Opinion

GREMILLION, Judge.

|, The plaintiff, Hayward Allen, III, appeals the trial court’s judgment granting a directed verdict in favor of the defendant, PHI, Inc. For the following reasons, we affirm. .

FACTUAL AND PROCEDURAL BACKGROUND

PHI owns a fleet of helicopters that transport offshore workers to their rigs. On December 24, 2009, one of PHI’s helicopters landed on the helipad of the offshore rig where Allen was working. After landing, the helicopter rolled over; The five passengers and two crew members quickly exited the helicopter and none were injured.

' Allen was scheduled to return home and was waiting on the platform to board the helicopter. He claims that he can longer work because he is afraid of helicopters since the accident. He claims to have suffered emotional distress including chest pains, sleep problems, anxiety, and elevated blood pressure.

Allen -filed suit in December 2010, against Shell Exploration and Production Company (the rig operator) and PHI. Summary judgment was granted in favor [893]*893of Shell. PHI filed a motion for summary judgment arguing that Allen.was never in the zone of danger since he did not see anything; he only heard noises from sixty feet below the level of the helipad, and he was never hit by any flying debris. Thus, PHI argued that it was unreasonable for Allen to fear for his safety. The trial court denied the ■ motion for summary judgment.

PHI filed numerous motions in limine to exclude witness testimony, arguing that Allen failed to list certain expert witnesses by the deadline. The trial court granted PHI’s motions in limine at the start of the trial on October 28, 2014. The | 2trial court granted a directed verdict in favor of PHI, finding that Allen had failed to offer any evidence of liability or negligence of PHI. Allen now appeals.

ASSIGNMENTS OF ERROR

1. The trial court erred in granting several of PHI, Inc.’s motions in li-mine to exclude evidence, including excluding the NTSB Factual Report, excluding the written statements of helicopter passengers, and preventing plaintiff from calling Terry Kaufman to testify at trial.

2. The trial court erred in granting Defendant/Appellee’s motion for directed verdict.

3. The trial court erred in not granting a continuance of trial after key evidence was excluded on the morning of trial.

DISCUSSION

Excluded Evidence

Allen argues that the trial. court should not have excluded a National Transportation Safety Board (NTSB) report, certain written witness statements, and the testimony of Terry Kaufman. The trial court has vast discretion in determining whether to exclude or allow evidence, and its decisions will- not be overturned in the absence of an- abuse of discretion. BellSouth Telecomms., Inc. v. City of Lafayette, 05-1478, 05-1505 (La.App. 3 Cir. 1/5/06), 919 So.2d 844.

NTSB Report

Allen argues that the trial court erred in excluding the NTSB report. PHI relied on 49 U.S.C. § 1154(b) which states that, “No part of a report of the Board, related to an accident or an investigation of an accident, may.be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.” PHI further argued that- the report was inadmissible hearsay, and the trial court agreed.

laWhilé a plain reading of that statute would suggest that nothing'in'the NTSB report is admissible, jurisprudence seems to indicate otherwise. -Allen relies on In re Air Crash at Charlotte, North Carolina on July 2, 1991, 982 F.Supp. 1060 (D.S.C.1996), which essentially held that factual portions of NTSB reports are admissible, but opinions and conclusions are not. In re Air Crash at Charlotte relies on numerous cases for this proposition. There are no Louisiana cases addressing this issue, although -ohe fifth circuit case essentially came to the same conclusion:

But Congress has determined that these reports shall not be used as evidencfe at trial, and the judicial gloss on [Fed. R.Evid,] § 701(e), while allowing factual portions of the report to be admitted, forbids the use of any conelusory statements in the NTSB reports.

Curry v. Chevron, USA 779 F.2d 272, 274 (5th Cir.1985) (footnote omitted).

On the other hand, Chiron Corporation and PerSeptive Biosystems, Inc. v. Na[894]*894tional Transportation Safety Board, 198 F.3d 935 (D.C.1999), a case which provides a thorough background of the NTSB’s origin, function, and purpose, stated:

As an initial matter, we reject the premise that NTSB’s report itself is admissible in a civil lawsuit. Congress has quite explicitly provided that,
[n]o part of a report of the Board, related to an accident or an investigation of an accident, may be admitted into evidence or used in a civil action for damages resulting from a matter mentioned in the report.
49 U.S.C. § 1154(b) (1994). The simple truth here is that NTSB investigatory procedures are not designed to facilitate litigation, and Congress has made it clear that the Board and its reports should not be used to the advantage or disadvantage of any party in a civil lawsuit. In our view, this congressional mandate could not be clearer.
Petitioners point out that, despite the statute’s clear language, some early circuit court opinions held that NTSB “factual findings” were admissible in civil litigation. Joint Br. for Petitioners at 20 Inciting authority). A careful review of these opinions, however, shows that these early cases actually focused only on the admissibility of investigator reports which were mislabeled by the courts as “report[s] of the Board.” See, e.g., American Airlines, Inc. v. United States, 418 F.2d 180, 196 (5th Cir.1969) (allowing admission of graphs that were based on information from a safety committee’s report); Berguido v. Eastern Air Lines, Inc., 317 F.2d 628, 631-32 (3d Cir.1963) (allowing testimony of witness based on investigator’s report); Lobel v. American Airlines, 192 F.2d 217, 220 (2d Cir.1951) (allowing admission of an investigator’s report of his examination of the plane wreckage). Because of this judicial mislabeling, these circuits created what they supposed was an “exception” to § 1154(b) for factual data from NTSB investigations in order to protect the interests of alleged victims. See, e.g., Berguido, 317 F.2d at 631-32 (finding testimony based on an investigator’s report admissible, despite the statute, because of the need to “compromise between the interests of those who would adopt a policy of absolute privilege ... and the countervailing policy of making available all accident information to litigants in a civil suit”).

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181 So. 3d 890, 15 La.App. 3 Cir. 461, 2015 La. App. LEXIS 2513, 2015 WL 8331002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-phi-inc-lactapp-2015.