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The Anatomy of an NTSB Investigation
Dan BraudePartner White Plains
Tom TobinPartner White Plains
© 2021 Wilson Elser. All rights reserved.
2/22/21 Emergency Response: Product Recall & Government Agency Investigations
2/23/21 Pre & Post Accident Practices: Preparing for Litigation
2/23/21 The Anatomy of a National Transportation Safety Bureau Investigation
2/24/21 Cybersecurity Breach and Class Actions Arising from Cyber Attacks
2/25/21 Marine Casualty Response
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The National Transportation Safety Board
1. Who are they and what is their authority?
2. How do they investigate? Is anything different?
3. What happens in days 1, 2 & 3? And then 4, 5 & 6?
4. Should we be more than just an active participant?
5. What should we be doing now?
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#1086 0/24
#1086 0/24
Denver, CO – 2/20/21 (UA 328 this past Saturday afternoon)
231+10
New York, NY –3/5/15 (DL 1086, MD 88)
0/24
So who are these folks?
Average # of Investigations each year
• 1,600 Aviation• 30 Marine• 22 Highway• 9 Rail• 3 Pipeline
How active is the NSTB?
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How do they decide to get involved?
• Aviation: All civil aviation accidents, certain public use
• Marine: Major accidents & involving public/non-public
• Highway: Select trucks, buses, bridges & highways
• Railroads: Major passenger, freight, involving fatalities or subst.property damage
• Pipelines: Hazardous materials, fatalities, subst. prop damage
• Select transportation accidents that involve problems of a recurring nature or are catastrophic
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El Faro, Bahamas – 10/1/15
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El Faro, Bahamas – 10/1/15
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14
El Faro, Bahamas – 10/1/15
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Mt. Vernon, WA – 5/23/13
0/3 16
Mt. Vernon, WA – 5/23/13
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Mt. Vernon, WA – 5/23/13
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Bronx, NY - 3/12/11
15/17
Glendale, CA – 1/26/05
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11/177
Chatsworth, CA – 9/12/08
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25/135
Chatsworth, CA – 9/12/08
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Chatsworth, CA – 9/12/08
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Chatsworth, CA – 9/12/08
24Tom!
Bronx, NY – 12/01/13
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4/70
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East Harlem, NY – 3/12/13
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8/50(+)
Sissonville, WV
December 11, 2012
Dallas, TX – 2/23/18
1/0 31
Dallas, TX – 2/23/18
1/0 32
Dallas, TX – 2/23/18
1/0 33
What’s the timeline?
• Scene work & interviews ~ 7 days
• Preliminary Report (Factual) ~ 30 days
• Addition factual work ~ 6 to 12 months
• Draft Factual Reports to parties ~ 6 to 12 months
• Deadline for Party Submissions ~ 30 days after Factual Reports
• Party meetings w/ NTSB Members ~ w/in 30 days of Board Meeting
• Public Docket opened ~ 12 to 18 months
• NTSB Board Meeting ~ 12 to 18 months
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So what happens in
a Major NTSBInvestigation?
NTSB Major Investigation Go-Team
• Comprised of:– One of the Five NTSB “Board Members”
– NTSB Investigators
– Transportation Disaster Assistance specialist
– NTSB Attorney (occasionally…)
• Goal is to launch within two hours of decision
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Who, specifically, is in charge?Who, specifically, is in charge?
“Parties” to an NTSB Investigation
• Federal DOT: FAA / FRA / USCG / FMCSA / NHTSA / PHMSA
• Transportation or Pipeline Operators
• Major Manufacturers (Boeing, Pratt & Whitney, etc.)
• State Regulators
• State & Local Police
• First Responders• …
(involved in accident & can provide technical assistance)
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Party Advantages
• “Assisting NTSB Investigation” Publicity
• Best way for factual foundation to be factual
• Quickest way to enact corrective measures
• Correction of draft NTSB Working Group Factual Reports
• “Party Submission” of findings & recommendations
• Meetings with NTSB “Members”
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Party Obligations / Disadvantages
• Must supply technical staff to assist
• Must limit accident-related public statements
• Affirmative duty to advise of relevant information
• Strict confidentiality of “Investigative Information”
• Limitations on internal investigations
• Litigation limitations on pleadings, discovery responses, access to evidence & expert opinions
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NTSB “Investigative Information”
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• Cannot be disclosed (inside or outside) without NTSB approval*
• Scope initially very broad
• Not limited to post-accident actions or documents
• Very dependent on issues being examined
• Best practice: Ask NTSB Office of General Counsel
* Safety “need to know” exception
The Safety-Need-to-Know Exception
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• Ought not wait for NTSB conclusions!
• Must keep safety investigation team walled off from others
• Must advise NTSB of any related changes to policies or procedures
NTSB Party “Certification”
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Selection of your Party Coordinator
• Critically important person
• All documents and information will flow through them
• More than just senior technical company interface
• Must be well-spoken and confident, but collegial and collaborative
• Must be prepared and be well-briefed on the NTSB process
• Involvement 100% for 15 days, 25% for six months, 10% after
(cannot occupy legal position or represent claimants or insurers)
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NTSB On-Scene Activity
• Preservation of perishable evidence
• This includes memories of those involved
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Day 1
• NTSB Arrival
• NTSB Review of Scene
• NTSB Meetings with Incident Commander
• NTSB Command Center set up
• NTSB Identification of Parties-to-the-Investigation
• NTSB / Party Organizational Meeting
• NTSB Working Groups established
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Typical NTSB Investigation Working Groups
• Operations
• Control Systems
• Mechanical
• Human Performance
• Survival Factors
• Event Recorders
• Crashworthiness
• Hazardous Materials
• Fire/Explosion
• Metallurgical
• Corporate Policies
• “Safety Culture”
• Governance
• Regulatory Oversight
• …
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NTSB Daily On-ScenePress Briefings
Party Interaction with other stakeholders
• Fellow company employees & senior management
• NTSB Parties: State & Federal regulators, police, others …
• Press
• Politicians
• Your company’s own litigation defense attorneys
• Plaintiffs’ attorneys & Judges (eventually)
• Local DA’s, State Attorney General, U.S. Dept. of Justice
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Day 2
• Multiple parallel efforts!– Motor Vehicle Working Group
– Motor Carrier Working Group
– Emergency Response Working Group
– [more]
• Physical evidence harvesting & preservation
• Document requests
• Requests for information
• Begin interview process
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Day 3 – Interviews (& more document requests)
• Want to be helpful, but avoid “informal” interviews
• Make sure employees are appropriately prepared
• Employees entitled to “representation” at interviews
• Consider criminal counsel if appropriate
• Have company Working Group Rep. ready to ask clarifying questions
• Federal crime to obstruct federal investigation. Tell the truth!
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Days 4, 5, 6 . . .
• More document requests
• More scene work
• More interviews
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Day 7, 8, 9 (?)
• NTSB preparation of Draft Field Notes
• Party review of Field Notes– You’ll be tired, but resist rushing!!
– Share the drafts with your team, including counsel
– Should be complete
– Should be purely factual
– Get a copy of the final versions
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NTSB Factual Phase: Next 6 to 12 months
• Additional document requests• Laboratory testing• Additional factual interviews – “Safety Culture”
– Risk Management– Maintenance– Training– Safety Management Systems
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You Need to be an Active Participant!
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• Provide accurate & timely responses to NTSB inquiries
• Be diplomatic, but don’t sit back and watch
• If a sensitive issue develops – affirmatively respond!
• Strive for a thorough investigation and a thorough analysis
• Insist on balanced, fair statements & characterizations
• You may have more experience and equally good ideas
Opportunity to Vet Draft Factual Reports
• End of factual phase (6 to 12 months after accident)
• Individual party reps need to be on the alert
• Window of opportunity is small: ~ 10 days!
• Critical time for any party
• Must review all draft reports together!
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[glass half full slide]
Opportunity to Vet Draft Factual Reports
• Factual reports should be factual
• Consistency from report to report is critical
• Some issues are not obvious
• Facts can be misleading without context
• Context, however, can be tricky!
• Beware of innuendo …Opinions
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NTSB Factual Reports are Fully Admissible
Party Submissions of Proposed Findings
• Only opportunity to present “your side of the story”
• Understand your audience
• Ensure thorough fact-checking and proofreading
• Reviewed by NTSB staff before preparation of final report
• Ultimately part of NTSB public record
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Individual Meetings with Board Members
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Public Discussion of Draft Final Report
• Full NTSB staff presentation at “sunshine meeting”
• Major issues are explored at length
• Board adopts Final Report (with any changes from Board)
• Factual findings, probable cause & recommendations
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NTSB Reports
NTSB Recommendations
• Systems
• Hardware
• Operations
• Human Factors
• Policies
• Regulations
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So what’s different when the NTSB is involved?
• Company restrictions:– Investigative steps
– Flow of information
• Distraction of employees & management
• Scrutiny beyond accident at issue (overall safety culture)
• Difficult to ignore NTSB recommendations
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NTSB Potential Changes to Your Procedures
• NTSB is in charge of investigation
• NTSB Team PC, representatives, counsel
• Coordinate emergency response with IIC
• Coordinate investigation & evidence preservation with IIC
• Voluntary disclosure of information
• Limitations on external and internal communications
• Restrictions in litigation
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What Should You be Doing Next to Prepare?
1. Identify likely Party Coordinator (and an alternate!)
2. Train Party Coordinators and emergency response team
3. Review: NTSB “public dockets,” NTSB preliminary reports, Party submissions, interviews, accident briefs & reports
4. Select inside counsel team for NTSB activity
5. Select outside NTSB Counsel
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Please Remember …
• The goal really is prevention of future accidents
• We can assist both our clients & the NTSB
• It is indeed a privilege to be part of the process
• Travel safely
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Thank you!
Albany Dallas Las Vegas New York SarasotaAtlanta Denver Los Angeles Orlando StamfordAustin Edwardsville Miami Philadelphia VirginiaBaltimore Garden City Michigan Phoenix Washington D.C.Beaumont Harford Milwaukee San Diego West Palm BeachBoston Houston New Jersey San Francisco White PlainsChicago Kentucky New Orleans
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Thomas W. [email protected]
Wilson, Elser, Moskowitz, Edelman & Dicker LLPNew York Metropolitan Offices
Office: 914-872-7246 Cell: 914-262-2891
Daniel M. [email protected]
Wilson, Elser, Moskowitz, Edelman & Dicker LLPNew York Metropolitan Offices
Office: 914-872-7210 Cell:212-564-2522
