Barna v. United States

183 F.R.D. 235, 50 Fed. R. Serv. 1536, 1998 U.S. Dist. LEXIS 15878, 1998 WL 751652
Procedural entryThis page is a short order in Barna v. United States. Read the opinion of the Court — 22 F. Supp. 2d 784
District Court, N.D. Illinois·Decided September 28, 1998·No. No. 95 C 6552·Published

Opinion

MEMORANDUM OPINION AND ORDER

BUCKLO, District Judge.

This opinion discusses the issues raised by the motions in limine filed by the parties.

[237]*237 Plaintiff

I. Motion to Bar Conclusions Contained in the NTSB Report.

The National Transportation Safety Board (“NTSB”) undertook an investigation into Mr. Barna’s plane crash and issued a NTSB Aircraft Accident Report. The Report appears to be in two parts; one part summarizes all of the factual information uncovered in the investigation and another part includes the NTSB’s probable cause determination regarding the ultimate cause of the crash. 49 U.S.C. § 1154(b) provides that “[n]o part of a report of the [National Transportation Safety] 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.” The plaintiff moves to bar any party, witness, or attorney from attempting to introduce or refer to the conclusions contained in the NTSB report. The plaintiff suggests that experts may testify to ■ conclusions based on non-conclusory facts within the Report, but the Report should not be admitted.

In support of his argument, the plaintiff cites two cases from this district which strictly applied the language of Section 1154(b) to bar NTSB Reports in their entirety. In re Air Crash Near Roselawn, Indiana, No. 95 C 4593, 1997 WL 572896 (N.D.Ill. Sept. 10, 1997); In Re Air Crash Disaster at Sioux City, Iowa, 780 F.Supp. 1207 (N.D.Ill.1991). I agree with their conclusions.

II. Motion to Bar Reference to Collateral Sources.

The plaintiff moves to exclude any reference to benefits received from collateral sources. The United States concedes plaintiff is correct in his statement of law. Any question of whether any benefit allegedly received (no specific ones are mentioned) is collateral will be decided at trial.

III. Motion to Bar Reference to Mr. Barna abandoning the ATC Frequency.

The plaintiff expects the United States or its experts to testify that Mr. Barna turned down the volume of his radio or altogether abandoned the air traffic control (“ATC”) frequency so that he could communicate with another pilot in the air, David Groth. The plaintiff expects the United States to argue that towards the end of his flight Mr. Barna was only in communication with Mr. Groth and was therefore unable to hear vector directions from air traffic controllers. The plaintiff argues that any such testimony is purely speculative and should be excluded under Rules 401 and 403. The plaintiff attaches the deposition transcript of the air traffic controllers in communication with Mr. Barna. Neither knows whether Mr. Barna left the ATC frequency. Additionally, the plaintiff attaches the transcript of the communications between Mr. Barna and the controllers to prove Mr. Barna did not leave the ATC frequency.

In opposition, the United States says the evidence will show that Mr. Barna left the ATC frequency to seek help from Mr. Groth. During the last 17 minutes of the flight, the government says Mr. Barna did not respond to the controllers’ repeated attempts to contact him. The government represents that it will present evidence that another pilot and a controller at the Minneapolis Air Route Traffic .Control Center notified the Chicago controllers that Mr. Barna was talking to Mr. Groth. Assuming this evidence is presented, I cannot say as a matter of law that the expected argument would be purely speculative. Without hearing the testimony, I decline at this time to make a determination of whether an expert could testify to the same conclusion. Plaintiffs motion is therefore denied.

IV. Motion to Bar Reference to Premature Lowering of Landing Gear.

The plaintiff believes the United States will attempt to introduce testimony that Mr. Barna prematurely lowered his landing gear on his aircraft as a result of habit. Fed.R.Evid. 406. The plaintiff argues there is insufficient evidence to prove it was “semi-automatic” for Mr. Barna to lower the landing gear before landings and thus, habit has not been proven. See generally Thompson v. Boggs, 33 F.3d 847, 854-55 (7th Cir.1994).

[238]*238The United States argues that Mr. Barna’s lowering of the landing gear was a major factor in this crash. According to one of the United States’ experts, it caused significant drag which resulted in Mr. Barna losing altitude before he could reach the runway. The United States argues, however, that this evidence has nothing to do with habit. It will offer physical and expert evidence that proves Mr. Barna’s landing gear was lowered at the time of the crash. If so, there is no need to rely on habit to introduce evidence that the landing gear was lowered. The motion is denied.

Y. Motion to Bar Defendant’s Experts.

The plaintiff moves to bar the United States’ experts from testifying “on the grounds that they have been manifestly, improperly, and prejudicially influenced, biased, and controlled by counsel for the government such that, pursuant to Fed.R.Evid. 702 and 403, their testimony will no longer assist the trier of fact....” (PL Motion at 1). Specifically, the plaintiff wants to bar Anthony Mupo (cartography), Bernard Coogan (piloting), Joseph Beaudoin (air traffic control), John Pearsall (approach design), and L. Ray Hoxit (weather).

According to Mr. Mupo’s deposition, his expert report was drafted by Timothy Con-nor, counsel for the United States. Ronald Bolton, who was at one time designated an expert by the United States, also wrote an expert report that is quite similar to Mr. Mupo’s report. (Pl.Exs. A & C). Mr. Bolton stated that he and Mr. Connor collaborated on the report. The plaintiff argues this is evidence the report is the opinion of the United States’ lawyers.

The plaintiff also notes a fax cover sheet sent by Stephen Riegel, counsel for the United States, to Mr. Beaudoin, Mr. Coogan, and Mr. Hoxit. (Pl.Ex.E). The cover sheet discusses plans for a meeting in Denver, Colorado between the experts and Mr. Riegel. Mr. Riegel states that “[i]f each expert would bring a draft of his Rule 26 report, we can take turns dissecting them.” Id. The plaintiff argues that the deposition of Mr. Beau-doin shows that after the Denver meeting Dr. Hoxit changed his expert opinion of the weather at the time of the crash. Dr. Hoxit denies changing his opinion.

The plaintiff argues that Fed.R.Civ.P. 26(a)(2)(B) requires an expert who will testify at trial to provide a written report “prepared and signed by the witness.” The plaintiff says that since Mr. Mupo did not “prepare” the report, his testimony must be barred. As for the United States’ other witnesses, the plaintiff argues that their opinions have been so shaped by the United States that they will not assist the trier of fact and thus, should be stricken.

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Barna v. United States, 183 F.R.D. 235, 50 Fed. R. Serv. 1536, 1998 U.S. Dist. LEXIS 15878, 1998 WL 751652 (N.D. Ill. 1998).

183 F.R.D. 235 (Barna v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

In Re Air Crash Disaster at Sioux City, Iowa
780 F. Supp. 1207 (N.D. Illinois, 1991)
Thompson v. Boggs
33 F.3d 847 (Seventh Circuit, 1994)