42 F. Supp. 3d 596
D.N.J.2013Background
- F/V LADY MARY sank ~65 miles off Cape May, NJ on March 24, 2009; four crewmembers died and plaintiffs are their personal representatives.
- USCG opened a Marine Board of Investigation; NTSB participated and later issued a Marine Accident Brief adopted May 2, 2011.
- Plaintiffs' expert, Robert H. Hazleton, authored an expert report (May 31, 2013) and at deposition admitted that numerous factual findings and conclusions in his report were based on the NTSB Marine Accident Brief (specific numbered findings and conclusions were identified).
- Defendants moved in limine to exclude any mention of the NTSB report or opinions/conclusions contained in it at trial.
- Federal statutes and regulations (46 U.S.C. § 6308(a) and 49 U.S.C. § 1154(b)) bar admission or use of Coast Guard and NTSB investigation reports (findings, opinions, conclusions) in civil proceedings; experts may rely on underlying data generally under Fed. R. Evid. 703, but § 6308(a) contains an explicit contrary rule.
- The Court concluded Hazleton’s specified findings and conclusions were based on the NTSB brief and therefore he may not mention, refer to, or convey those facts or conclusions to the jury; one contested conclusion (7b) was not shown to rely on the brief and was not precluded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/use of NTSB/USCG investigative reports and their findings | Hazleton may rely on investigative materials and present conclusions in expert testimony | 46 U.S.C. § 6308(a) and 49 U.S.C. § 1154(b) bar admission/use of such reports or conclusions; expert cannot convey them to jury | Court granted motion: Hazleton may not mention or convey findings/conclusions that were based on the NTSB brief |
| Whether experts may base opinions on inadmissible reports under FRE 703 | FRE 703 allows experts to rely on inadmissible facts/data if customary in field | Statutory prohibition is explicit and overrides FRE 703 — experts cannot introduce protected report content | Court held the statutes preclude use of NTSB/USCG report content even as the basis for expert testimony that conveys those findings |
| Scope of exclusion—specific findings/conclusions in Hazleton’s report | Plaintiffs sought to admit Hazleton’s report and testimony as stated | Defendants identified particular numbered findings/conclusions as derived from the NTSB brief and sought exclusion | Court identified specific report paragraphs and prohibited Hazleton from presenting those items to the jury |
| Whether conclusion 7b must be excluded | Plaintiffs argued 7b is part of expert opinions | Defendants argued 7b derived from the brief and should be excluded | Court found no deposition evidence that 7b relied on the brief and did not exclude it |
Key Cases Cited
- Guest v. Carnival Corp., 917 F. Supp. 2d 1242 (S.D. Fla. 2012) (Coast Guard/NTSB reports are privileged from discovery and inadmissible in civil suits)
- United States v. Egan Marine Corp., 808 F. Supp. 2d 1065 (N.D. Ill. 2011) (expert conclusions that rely on protected Coast Guard reports are impermissible unless independent and not substantially based on those reports)
- Louisiana ex rel. Dep't of Transp. & Dev. v. Kition Shipping Co., Ltd., 653 F. Supp. 2d 633 (M.D. La. 2009) (statutory bar prevents introduction of findings from USCG/NTSB reports in civil trials)