[Code of Federal Regulations]
[Title 49, Volume 6]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR835.3]

[Page 211-212]
 
                        TITLE 49--TRANSPORTATION
 
                              SAFETY BOARD
 
PART 835--TESTIMONY OF BOARD EMPLOYEES--Table of Contents
 
Sec. 835.3  Scope of permissible testimony.

    (a) Section 701(e) of the FA Act and section 304(c) of the Safety 
Act preclude the use or admission into evidence of Board accident 
reports in any suit or action for damages arising from accidents. These 
sections reflect Congress' ``strong * * * desire to keep the Board free 
of the entanglement of such suits.'' Rep. No. 93-1192, 93d Cong., 2d 
Sess., 44 (1974), and serve to ensure that the Board does not exert an 
undue influence on litigation. The purposes of

[[Page 212]]

these sections would be defeated if expert opinion testimony of Board 
employees, which may be reflected in the views of the Board expressed in 
its reports, were admitted in evidence or used in litigation arising out 
of an accident. The Board relies heavily upon its investigators' 
opinions in its deliberations. Furthermore, the use of Board employees 
as experts to give opinion testimony would impose a significant 
administrative burden on the Board's investigative staff. Litigants must 
obtain their expert witnesses from other sources.
    (b) For the reasons stated in paragraph (a) of this section and Sec. 
835.1, Board employees may only testify as to the factual information 
they obtained during the course of an investigation, including factual 
evaluations embodied in their factual accident reports. However, they 
shall decline to testify regarding matters beyond the scope of their 
investigation, and they shall not give any expert or opinion testimony.
    (c) Board employees may testify about the firsthand information they 
obtained during an investigation that is not reasonably available 
elsewhere, including observations recorded in their own factual accident 
reports. Consistent with the principles cited in Sec. 835.1 and this 
section, current Board employees are not authorized to testify regarding 
other employee's reports, or other types of Board documents, including 
but not limited to safety recommendations, safety studies, safety 
proposals, safety accomplishments, reports labeled studies, and analysis 
reports, as they contain staff analysis and/or Board conclusions.
    (d) Briefs of accidents may be released in conjunction with factual 
accident reports. Nevertheless, they are not part of those reports and 
are not to be admitted in evidence or used in a deposition approved 
under this part.
    (e) Not all material in a factual accident report may be the subject 
of testimony. The purpose of the factual accident report, in great part, 
is to inform the public at large, and as a result the factual accident 
report may contain information and conclusions for which testimony is 
prohibited by this part.
    (f) No employee may testify in any matter absent advance approval by 
the General Counsel as provided in this part.

[55 FR 41541, Oct. 12, 1990, as amended at 63 FR 71607, Dec. 29, 1998; 
64 FR 5622, Feb. 4, 1999]