Accidents Happen: Working with the NTSB During an Investigation
By Michael Singer
Edited by Shaun Salmon
You’re sitting at your desk when your phone rings. There’s been a tragic accident involving multiple fatalities somewhere in the transportation system. You determine a client is involved in some manner. You ponder the civil and/or criminal investigations, lawsuits and damages in the years to come. But, at the same time, if you’re really on your game, you realize your client may be a part of an investigation involving the National Transportation Safety Board (NTSB). You’ll want to know how best to advise your client as they embark on the NTSB investigative process. And if you don’t know where to start, you can’t do better than Thomas W. Tobin’s (Wilson Elser Moskowitz Edelman & Dicker LLP) Lawline Industry presentation The Anatomy of a National Transportation Safety Board (NTSB) Investigation. In just over 90 minutes, Tobin explains just how this unique federal agency, familiar to many but understood by few, works.
“God on the scene”: As Tobin asserts from the outset, “Once you understand what motivates the NTSB, it’s a lot easier to work with them.” This unique, but ubiquitous, federal agency has complete independence. Its primary mission is not to assess blame, but to avoid another accident resulting from the same cause. They do this by investigating the probable causes of accidents and issuing recommendations. With few exceptions (involving the FBI or U.S. Coast Guard) they have investigative priority over all other federal agencies at the scene of an accident. As Tobin observes, they are effectively “God on the scene.” Though this agency has no regulatory authority, 80% of their safety and remedial recommendations are adopted by industry and governments. They achieve this record of success via a reputation for thoroughness and effective use of the bully pulpit, using both traditional and social media to push the safety agenda. See, e.g., the annual release of the agency’s “most wanted” list of safety enhancements.
Helping your clients and the NTSB, simultaneously. When the NTSB becomes involved in an accident, the agency will send a “Go-Team” to the accident scene, which will include an Investigator-in-Charge (IIC), to establish order, designate the parties and the coordinators for each party and divide all into investigative groups (for example, one group might investigate human activities involved in the accident; another, the mechanical aspects of the accident; still another, the event recorders, such as black boxes). A party can be a person, government agency, company, or association whose employees, functions, activities, or products were involved in the accident and can provide suitable qualified technical personnel to actively assist in the field investigation.
Once so designated, your client will have an opportunity to participate, via your coordinators, in the factual investigation. Doing so means your client will have an opportunity to shape the eventual NTSB factual findings. An entity that becomes a party to an NTSB investigation must be fully committed to transparency, truth-finding, and rapid response. As an attorney, your focus is limiting client exposure. So for you, this process might seem at odds with your client’s legal position. If the NTSB asks for information, it wants the information now, not after you have had time to review and consider the liability consequences of releasing it. The upside is that the NTSB may make remedial recommendations during the investigation that could actually help your client avoid additional liability should a dangerous condition need to be corrected. As Tobin points out, he finds he is able to serve his clients and help the NTSB at the same time.
10 things your client needs to do as a party to an NTSB investigation: Tobin’s review of the NTSB’s party system is invaluable listening; suffice to say that if your client is a party to an NTSB investigation, complete cooperation and transparency with the IIC and the various Group Chairs are obligatory—withholding information is forbidden and can result in public castigation, which will not help your client’s litigation position. Here are Tobin’s top ten recommendations for a party to an NTSB investigation to assist the agency and to help itself:
- Understand the responsibilities of the IIC and Group Chairs
- Keep copies of the documents you provide
- Respond swiftly, and make sure of accuracy of your responses
- Assume all communications with the NTSB will be public (because they are)
- Choose your party coordinator and specialists carefully
- Work closely with your coordinator and specialists
- Be open to opportunities for interim remedial action
- Vet the draft Field Notes and Group Factual Reports carefully (for accuracy)
- Prepare extensively for any public hearing (as if it were a trial)
- Submit Proposed Findings & Recommendations
In the end, everyone involved in the transportation system wants the unattainable goal of perfect safety. When that goal fails, as it ultimately does, working with the NTSB can be a great way to get back on track…or on the road again.
Written by Sigalle Barness
Sigalle Barness is the Vice President of Content and a member of Lawline.com’s Executive Team. Sigalle provides business strategy and leadership to the company and directly manages Lawline’s accreditation, programming and production operations. Sigalle also analyzes market trends and applies insights to develop and execute written and video content including online educational programming, email marketing, social media campaigns, press releases, blog articles and large scale live events. Sigalle graduated summa cum laude from Rutgers University and holds a B.A. in English. She received her J.D. in 2010 from Benjamin N. Cardozo School of Law in New York, NY. Sigalle is admitted to practice in both New York and New Jersey. She is also an active member of the Association for Continuing Legal Education (ACLEA), and is the former Chair of ACLEA’s Programming Special Interest Group (2013 – 2015) and National Provider Special Interest Group (2015 - 2017). Before joining Lawline in March 2012, Sigalle litigated civil claims in areas such as landlord tenant, breach of contract and tax lien and mortgage foreclosures actions. She also handled transactional matters such as drafting residential and commercial leases, demand letters, and client conflict waivers. Sigalle is an avid lover of music, video games, blogging, asking questions and all things food. She is also fluent in Hebrew and enjoys writing fiction, traveling and scuba diving.