EVIDENCE LAW / In action for breach of contract against provider of jet aircraft to charter company trial court did not abuse its discretion in allowing admission into evidence over aircraft owner’s objection on relevance grounds of FAA order assessing civil penalty against owner of jet aircraft.

The civil penalty order was relevant to breach of aircraft provider’s contract. Presumably – though the court’s opinion does not say – because such civil order indicated FAA evaluation of the aircraft supplied as not airworthy or otherwise not in condition required for the contract.

Jet Source Charter, Inc. v. Gemini Air Group Inc., Slip copy, 2013 WL 618906 (U.S. Circuit Court of Appeals for the 9th Circuit, February 20, 2013). Free copy available here. Continue reading

EVIDENCE / Two court cases rule that U.S. Coast Guard Marine Casualty Investigation Reports are inadmissible in legal proceedings under federal statute, 46 U.S. Code § 6308.

Government agencies like the U.S. Coast Guard and the National Transportation Safety Board conduct investigations of accidents and issue reports based on those investigations. Note the legal constraints on admissibility of such reports in evidence in a court case.

See write-up from several months ago by Alan Weigel of Blank Rome LLP “United States: Using Accident Reports in Casualty Litigation” (“Mainbrace” at Page 6).

Diamond Offshore Co. v. Survival Systems, International, Inc., 2013 WL 371648 (U.S. District Court for the Southern District of Texas, January 29, 2013). Free copy available here.

American Steamship Co. v. Hallett Dock Co, 2013 WL 308907 (U.S. District Court for the District of Minnesota, January 25, 2013). Free copy available here.

TORTS (PRODUCT LIABILITY) & MOTOR CARRIERS / Federal Motor Carrier Administration regulations would be admitted into evidence to show existence of defect in a trailer in product liability case for wrongful death in traffic accidents.

The Federal Motor Vehicle Safety Standards and FMCSA Regulations in combination comprise “a consistent and mutually-supportive set of regulations, as intended by Congress in the Vehicle Safety Act.”

Bradley v. Fontaine Trailer Co. Inc., Slip copy, 2013 WL 74238 (U.S. District Court for Connecticut, January 4, 2013). Free copy available here.

TORTS, RAILROAD & PUNITIVE DAMAGES / Montana Supreme Court breathes life into 32-year-old precedent on punitive damages against a railroad: “Evidence collateral to all other issues in the case nevertheless may be admissible to prove punitive damages”

Runkle v. Burlington Northern, 2013 WL 6740153 (Supreme Court of Montana, 1980). Free copy available here.

Why raise this old case here? The Montana Supreme Court last week issued an opinion in a tort case in which it relied on Runkle v. Burlington Northern for two key propositions of what sort of evidence ought to be admitted on the question of punitive damages against a company or other party who has harmed persons or property (a “tortfeasor”). McEwen v. MCR, LLC, 2012 WL 6740153 (Supreme Court of Montana, December 31, 2012). Free copy available here. Continue reading


Lidle v. Cirrus Design Corp., 2012 WL 6603388 (U.S. Court of Appeals for the Second Circuit, December 19, 2012). Free copy available here.

Where wrongful death action against aircraft manufacturer had focused on allegation that incorrectly rigged rudder-aileron interconnect on aircraft caused crash, the Second Circuit ruled that trial court’s exclusion from evidence of the fact that FAA had issued Airworthiness Directive mandating adjustments to rudder-aileron interconnect on all aircraft of the model at issue in this litigation did not constitute an abuse of discretion.  Continue reading

TORTS, RAILROAD & EVIDENCE / Accident report consisting of train engineer’s statement made after an accident not admissible as a business record despite fact that such record were a railroad routine procedure – It was not “typical of entries made systematically or as a matter of routine to record events or occurrences” within the business operation.

Estate of William Ivy v. Joyce Ivy, 2012 WL 6131208 (Mississippi Court of Appeals, December 11, 2012. Free copy available here.

Cited to Palmer v. Hoffman, 318 U.S. 109 (1943). Free copy available here.

Who is affected? Railroad carriers involved in accidents and those persons subsequently suing them in tort.

Here the court held that an accident report did not have the status of a “business record” so as to enable the report itself to be admitted into evidence at trial despite its “hearsay” status.

Mississippi Court of Appeals noted Palmer v. Hoffman for application in a different factual context than that railroad engineer’s post-accident statement.

This is a significant point on the difference between carriers’ record keeping and true “business records” under the law of evidence.

A railroad’s filing of Form FRA F 6180.55a relating to death, injury or occupational illness, or a pilot’s writing out an “ASAP” report after a flight incident are very much part of a disciplined routine.

The “business records” exception to the hearsay rule of evidence is based on the routine record keeping being part of the “regular course of business” of the record keeper. Such regularity is deemed to ensure trustworthiness that other hearsay statement supposedly lack.

The rule of Palmer v. Hoffman indicates that an accident is not part of a carrier’s “regular course of business”. Carrier managements should act accordingly in preserving evidence – including maintaining access to witnesses after an accident – and their lawyers need to be discerning about what information will fall on what side of the line regarding accident records.


TORTS, RAILROAD & EVIDENCE / In wrongful death action arising from railroad carrier locomotive collision with plaintiffs’ decedent walking on railroad cross-ties, where (1) locomotive event recorder indicated extensive horn and bell activation, and (2) 6 eye-witnesses denied hearing any horn or bell – Denial of JNOV in favor of railroad was warranted; event recorder reading was not conclusive of those issues of fact in light of large number (6) of witnesses countering event recorder.

Illinois Central Railroad Co. v. Young, 2012 WL 6125859 (Mississippi Court of Appeals, December 11, 2012. Free copy available here.

Who is affected? Railroad carriers involved in accidents and those persons subsequently suing them in tort.

Note that the court bases its refusal to rule that the event recorder was conclusive as a matter of evidence in the fact finding process due to the large number (6) of witnesses testifying to the contrary of what the event recorder’s reading stated. Continue reading