Beech Aircraft Corp. v. Rainey

One piece of evidence presented by the defense was an investigative report prepared by Lieutenant Commander William Morgan on order of the training squadron's commanding officer and pursuant to authority granted in the Manual of the Judge Advocate General. This "JAG Report," completed during the six weeks following the accident, was organized into sections labeled "finding of fact," "opinions," and "recommendations," and was supported by some 60 attachments. The "finding of fact" included statements like the following:

13. At approximately 1020, while turning crosswind without proper interval, 3E955 crashed, immediately caught fire and burned.

.....

27. At the time of impact, the engine of 3E955 was operating but was operating at reduced power.

Among his "opinions" Lieutenant Commander Morgan stated that due to the deaths of the two pilots and the destruction of the aircraft "it is almost impossible to determine exactly what happened to Navy 3E955 from the time it left the runway on its last touch and go until it impacted the ground." He nonetheless continued with a detailed reconstruction of a possible set of events, based on pilot error, that could have caused the accident. The next two paragraphs stated a caveat and a conclusion:

6. Although the above sequence of events is the most likely to have occurred, it does not change the possibility that a 'rollback' did occur.

7. The most probable cause of the accident was the pilots [sic] failure to maintain proper interval.

The trial judge initially determined, at a pretrial conference, that the JAG Report was sufficiently trustworthy to be admissible, but due to Federal Rule of Evidence 803(8)(C) that it "would be admissible only on its factual findings and would not be admissible insofar as any opinions or conclusions are concerned." The day before trial, however, the court reversed itself and ruled, over the plaintiffs' objection, that some of the conclusions would be admitted.[1]

Five or six months after the accident, plaintiff John Rainey, husband of the deceased pilot and himself a Navy flight instructor, sent a detailed letter to Lieutenant Commander Morgan. Based on Rainey's own investigation, the letter took issue with some of the JAG Report's findings and outlined Rainey's theory that "[t]he most probable primary cause factor of this aircraft mishap is a loss of useful power (or rollback) caused by some form of pneumatic sensing/fuel flow malfunction, probably in the fuel control unit."

At trial Rainey did not testify during his side's case in chief, but he was called by the defense as an adverse witness. On direct examination he was asked about two statements contained in his letter. The first was to the effect that his wife had unsuccessfully attempted to cancel the ill-fated training flight because of a variety of adverse factors including her student's fatigue. The second question concerned a portion of Rainey's hypothesized scenario of the accident:

Didn't you say, sir, that after Mrs. Rainey's airplane rolled wings level, that Lieutenant Colonel Habermacher's plane came into view unexpectedly at its closest point of approach, although sufficient separation still existed between the aircraft. However, the unexpected proximitely [sic] of Colonel Habermacher's plane caused one of the aircrew in Mrs. Rainey's plane to react instinctively and abruptly by initiating a hard right turn away from Colonel Habermacher's airplane?

Rainey admitted having made both statements. On cross-examination, Rainey's counsel asked the following question: "In the same letter to which Mr. Toothman made reference to in his questions, sir, did you also say that the most probably [sic] primary cause of this mishap was rollback?" Before Rainey answered, the court sustained a defense objection on the ground that the question asked for Rainey's opinion. Further questioning along this line was cut off.[1]