Hayward Allen, III v. Phi, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-461

HAYWARD ALLEN, III

VERSUS

PHI, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20108214
HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

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Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED.

Timothy J. Young
Jason C. MacFetters
Tammy D. Harris
Megan C. Misko
The Young Firm
400 Poydras Street, Suite 2090
New Orleans, LA 70130
(504) 680-4100
COUNSEL FOR PLAINTIFF/APPELLANT:
Hayward Allen, III

Mark A. Lowe
Liskow & Lewis
P.O. Box 52008
Lafayette, LA 70505-2008
(337) 232-7424
COUNSEL FOR DEFENDANT/APPELLEE:
Shell Exploration and Production Company

Randall K. Theunissen
Allen & Gooch
2000 Kaliste Saloom Road, Suite 400
Lafayette, LA 70508
(337) 291-1240
COUNSEL FOR DEFENDANT/APPELLEE:
PHI, Inc.

Steven D. Sanfelippo
Ross Cunningham
Cunningham Swaim, LLP
7557 Rambler Road, Suite 440
Dallas, TX 75231
(214) 646-1495
COUNSEL FOR DEFENDANT/APPELLEE:
PHI, Inc.

GREMILLION, Judge.

The plaintiff, Hayward Allen, III, appeals the trial court’s judgment granting

a directed verdict in favor of the defendant, PHI, Inc. For the following reasons,

we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

PHI owns a fleet of helicopters that transport offshore workers to their rigs.

On December 24, 2009, one of PHI’s helicopters landed on the helipad of the

offshore rig where Allen was working. After landing, the helicopter rolled over.

The five passengers and two crew members quickly exited the helicopter and none

were injured.

Allen was scheduled to return home and was waiting on the platform to

board the helicopter. He claims that he can longer work because he is afraid of

helicopters since the accident. He claims to have suffered emotional distress

including chest pains, sleep problems, anxiety, and elevated blood pressure.

Allen filed suit in December 2010, against Shell Exploration and Production

Company (the rig operator) and PHI. Summary judgment was granted in favor of

Shell. PHI filed a motion for summary judgment arguing that Allen was never in

the zone of danger since he did not see anything; he only heard noises from sixty

feet below the level of the helipad, and he was never hit by any flying debris. Thus,

PHI argued that it was unreasonable for Allen to fear for his safety. The trial court

denied the motion for summary judgment.

PHI filed numerous motions in limine to exclude witness testimony, arguing

that Allen failed to list certain expert witnesses by the deadline. The trial court

granted PHI’s motions in limine at the start of the trial on October 28, 2014. The

trial court granted a directed verdict in favor of PHI, finding that Allen had failed

to offer any evidence of liability or negligence of PHI. Allen now appeals.

ASSIGNMENTS OF ERROR

1. The trial court erred in granting several of PHI, Inc.’s motions in
limine to exclude evidence, including excluding the NTSB Factual
Report, excluding the written statements of helicopter passengers,
and preventing plaintiff from calling Terry Kaufman to testify at
trial.

2. The trial court erred in granting Defendant/Appellee’s motion for
directed verdict.

3. The trial court erred in not granting a continuance of trial after key
evidence was excluded on the morning of trial.

DISCUSSION

Excluded Evidence

Allen argues that the trial court should not have excluded a National

Transportation Safety Board (NTSB) report, certain written witness statements,

and the testimony of Terry Kaufman. The trial court has vast discretion in

determining whether to exclude or allow evidence, and its decisions will not be

overturned in the absence of an abuse of discretion. Bellsouth Telecomms., Inc. v.

City of Lafayette, 05–1478, 05–1505 (La.App. 3 Cir. 1/5/06), 919 So.2d 844.

NTSB Report

Allen argues that the trial court erred in excluding the NTSB report. PHI

relied on 49 U.S.C. §1154(b) which states that, ―No part of a report of the Board,

related to an accident or an investigation of an accident, may be admitted into

evidence or used in a civil action for damages resulting from a matter mentioned in

the report.‖ PHI further argued that the report was inadmissible hearsay, and the

trial court agreed.

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While a plain reading of that statute would suggest that nothing in the NTSB

report is admissible, jurisprudence seems to indicate otherwise. Allen relies on In

re Air Crash at Charlotte, North Carolina on July 2, 1994, 982 F.Supp. 1060

(D.S.C. 1996), which essentially held that factual portions of NTSB reports are

admissible, but opinions and conclusions are not. In re Air Crash at Charlotte

relies on numerous cases for this proposition. There are no Louisiana cases

addressing this issue, although one fifth circuit case essentially came to the same

conclusion:

But Congress has determined that these reports shall not be used as
evidence at trial, and the judicial gloss on [Fed.R.Evid.] §701(e),
while allowing factual portions of the report to be admitted, forbids
the use of any conclusory statements in the NTSB reports.

Curry v. Chevron, USA, 779 F.2d 272, 274 (5th Cir. 1999) (footnote omitted).

On the other hand, Chiron Corporation and Perseptive Biosystems, Inc, v.

National Transportation Safety Board, 198 F.3d 935 (D.C. 1999), a case which

provides a thorough background of the NTSB’s origin, function, and purpose,

stated:

As an initial matter, we reject the premise that NTSB’s report
itself is admissible in a civil lawsuit. Congress has quite explicitly
provided that,

[n]o part of a report of the Board, related to an accident
or an investigation of an accident, may be admitted into
evidence or used in a civil action for damages resulting
from a matter mentioned in the report.

49 U.S.C. § 1154(b) (1994). The simple truth here is that NTSB
investigatory procedures are not designed to facilitate litigation, and
Congress has made it clear that the Board and its reports should not be
used to the advantage or disadvantage of any party in a civil lawsuit.
In our view, this congressional mandate could not be clearer.

Petitioners point out that, despite the statute’s clear language,
some early circuit court opinions held that NTSB ―factual findings‖
were admissible in civil litigation. Joint Br. for Petitioners at 20

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(citing authority). A careful review of these opinions, however, shows
that these early cases actually focused only on the admissibility of
investigator reports which were mislabeled by the courts as ―report[s]
of the Board.‖ See, e.g., American Airlines, Inc. v. United States, 418
F.2d 180, 196 (5th Cir.1969) (allowing admission of graphs that were
based on information from a safety committee’s report); Berguido v.
Eastern Air Lines, Inc., 317 F.2d 628, 631–32 (3d Cir.1963) (allowing
testimony of witness based on investigator’s report); Lobel v.
American Airlines, 192 F.2d 217, 220 (2d Cir.1951) (allowing
admission of an investigator’s report of his examination of the plane
wreckage). Because of this judicial mislabeling, these circuits created
what they supposed was an ―exception‖ to § 1154(b) for factual data
from NTSB investigations in order to protect the interests of alleged
victims. See, e.g., Berguido, 317 F.2d at 631–32 (finding testimony
based on an investigator’s report admissible, despite the statute,
because of the need to ―compromise between the interests of those
who would adopt a policy of absolute privilege . . . and the
countervailing policy of making available all accident information to
litigants in a civil suit‖). In short, the need to insure that victims had
access to investigators’ factual data surrounding an accident prompted
the courts in the early years to allow admission of what they labeled
as a ―report of the Board.‖

When faced with the judiciary’s literal distortion of the statute,
the Board, in 1975, responded by amending its regulations to make
clear that investigators’ reports—the very reports that some courts
were already admitting—are not ―reports of the Board‖ for the
purpose of § 1154(b). Section 835.2 defines the Board’s accident
report as ―the report containing the Board’s determinations, including
the probable cause of an accident.‖ 49 C.F.R. § 835.2 (1998). No part
of this report ―may be admitted as evidence or used in any suit or
action for damages growing out of any matter mentioned in such
reports.‖ Id. (using almost the exact language of 49 U.S.C. § 1154(b)).
A ―factual accident report,‖ on the other hand, is ―an investigator’s
report of his investigation of the accident.‖ Id. Because this report is
not a ―report of the Board,‖ it is not barred by the statute and is
therefore admissible. As counsel for NTSB made clear during oral
argument, the only reports that are admissible ―are the factual reports
that investigators do, not the Board’s findings, either factual or
probable cause, but what individual investigators find . . . . [T]hose
reports of these factual developments are made part of the record and
parties can get that.‖ Audio-tape of Oral Arguments (Nov. 15, 1999).
Thus, because investigators’ reports are now plainly admissible under
agency regulations, victims have access to necessary factual
information. Therefore, courts no longer need to employ an
―exception‖ to the statute to protect parties in litigation.

Our research indicates that, since the promulgation of the
Board’s 1975 rule, only two circuit court opinions have failed to

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recognize that the admissibility of investigators’ reports obviates the
need for a judicial exception to the statute. See Mullan v. Quickie
Aircraft Corp., 797 F.2d 845, 848 (10th Cir.1986) (―[E]xpert witness
properly relied on the factual portions of the NTSB report.‖); Curry v.
Chevron, USA 779 F.2d 272, 274 (5th Cir.1985) (acknowledging
judicial gloss of the statute ―that allow[s] factual portions of the report
to be admitted‖). In each case, the courts distinguished between the
―factual portions‖ of Board reports and ―parts of NTSB reports which
contain agency conclusions on the probable cause of accidents.‖
Mullan, 797 F.2d at 848. However, neither opinion is weighty
authority, even for the limited rule enunciated, because there are later
decisions from both circuits that adhere to the strict terms of the
statute. Subsequent to Mullan, the Tenth Circuit has held that,
―[c]onsistent with its fact-finding mission that is litigation neutral,
NTSB reports are barred as evidence in court.‖ Thomas Brooks v.
Burnett, 920 F.2d 634, 639 (10th Cir.1990); accord Jetcraft Corp. v.
Flight Safety Int’l, 16 F.3d 362, 366 (10th Cir.1993). And even more
recently, in 1998, the Fifth Circuit has noted that:

Federal law flatly prohibits the NTSB accident report
from being admitted into evidence in any suit for
damages arising out of accidents investigated by the
NTSB.

Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996, 1001 (5th
Cir.1998).

We agree with these recent decisions from the Fifth and Tenth
Circuits, and also a decision from the Ninth Circuit, see Benna v.
Reeder Flying Serv., Inc., 578 F.2d 269, 271 (9th Cir.1978), holding
that, under the plain terms of the statute, NTSB reports are
inadmissible in civil litigation. When the statute was interpreted
broadly to include investigators’ reports, there may have been a public
policy justification for admitting factual information. However, once
the statute was interpreted more narrowly, no justification remained
for any exception to § 1154(b).

Moreover, as this case demonstrates, admitting Board reports
into civil litigation can have the unsavory affect of embroiling NTSB
in the interests of civil litigants. Thus, the statute means what it says:
No part of the Board’s actual report is admissible as evidence in a
civil suit. See Universal Airline, Inc. v. Eastern Air Lines, Inc., 188
F.2d 993, 1000 (D.C.Cir.1951) (noting that the Board should not be
compelled to produce its reports). Because it is the Board’s actual
report that petitioners hope to change, they are not injured by their
inability to change it, because it is not admissible in a civil suit.

Id. at 940-41.

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We find the reasoning of Chiron more persuasive. But even if we did not,

the issue is whether the portions of the report that Allen sought to admit were

―factual portions‖ or contained conclusory statements. The portion of the report

that Allen sought to admit contained a statement that PHI had no special training

class for pilots relating to heavy wind conditions. Although this statement may be

factual, it certainly would imply to a jury or any lay person that PHI was not living

up to its duties. We find this distinguishable from a fact relating to weather

conditions at the time, the time the accident occurred, malfunctions of equipment,

and the like. This statement would imply that a certain negative conclusion be

drawn and would, therefore, be unduly prejudicial to PHI, which is exactly what 49

U.S.C. § 1154(b) seeks to prohibit. Accordingly, we find that the trial court did

not err in excluding the NTSB report. Moreover, we agree that the report would be

inadmissible hearsay under Louisiana law.

Written Statements

Allen argues that the trial court erred in excluding certain witness statements,

which PHI employee, Terry Kaufman, certified to be true and accurate copies

pursuant to PHI’s motion for summary judgment. Allen argues that the statements

were exceptions to the hearsay rule because they were ―present sense impressions‖

pursuant to La.Code Evid. art. 803(1) which defines a ―present sense impression‖

as: ―A statement describing or explaining an event or condition made while the

declarant was perceiving the event or condition, or immediately thereafter.‖

PHI argues that the statements were hearsay and that neither the business

records exception nor the present sense impression exception applied. We agree

and find the trial court did not abuse its discretion in excluding the witness

statements. Even if the statements had been allowed by the trial court, the error in

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excluding them would be harmless, because the statements would not have proven

any negligence on the part of PHI. The authors of the statements were all on

Allen’s witness list. Allen could have called any of them to testify, but he did not.

Accordingly, this assignment of error is without merit.

Testimony of Terry Kaufman

Allen argues that the trial court erred in excluding Kaufman from testifying

at trial. Allen’s witness list indicated that he may call ―any and all PHI, Inc. . . .

employees . . . .‖1 Allen identified ten individuals, but Kaufman was not one of

them. A week before trial, Allen revised his witness list to identify Kaufman for

the first time as a witness to be called at trial.2 A trial court does not abuse its

1
The witness list stated in part:

3. Any and all PHI, Inc., Tetra Technologies, Inc., and/or Shell
Exploration and Production Company employees or former employees to testify
concerning the facts and circumstances surrounding the accident, plaintiff’s job
duties, performance and abilities prior to the accident, all facts and circumstances
surrounding the procedure being performed at the time of the accident including
prior and subsequent performance of the same procedure or a similar procedure,
all equipment being used at the time of the accident including any changes to the
equipment following the accident, and any other relevant testimony concerning
the plaintiff, his accident, and his damages. Such witnesses include but are not
limited to:

(1) Harold Turner
(2) Ronaly Stansbury;
(3) Derek Johnson;
(4) Gary Clark;
(5) Nicholas J. Ennis, Sr.;
(6) Roy Maxwell;
(7) Gary M. Cohen, Jr.;
(8) Robert Launder;
(9) Mike Tinkes;
(10) Kenneth White.
2
This portion of the witness list was added a week before trial:

5. Mr. Terry Kaufman
PHI, Inc.

Fact witness to provide testimony on flight training and safety regarding PHI,
Inc’s helicopters, and any other matters relevant to the plaintiff, accident, and
plaintiff’s damages.

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discretion when it excludes witnesses who were not timely disclosed to the

opposing party. Peoples v. Fred’s Stores of Tennessee, Inc., 09-1270 (La.App. 3

Cir. 6/2/10), 38 So.3d 1209, writ denied, 10-1882 (La. 10/29/10), 48 So.3d 1090.

The trial court did not abuse its discretion in finding that this late addition of

Kaufman as a witness was not fair notice to PHI and would have prejudiced PHI in

providing a defense. A party cannot prepare by obtaining witnesses to address

what listed witnesses may testify to if the list includes ―every employee‖ of a

company. Moreover, Allen had more than three years from the filing of his suit to

list Kaufman as a witness. Accordingly, Allen’s assignment of error pertaining to

the exclusion of the NTSB report, the witness statements, and Kaufman as a

witness are without merit.

Directed Verdict

In Guidry v. Beauregard Electric Cooperative, Inc., 14-1108, pp. 17-18

(La.App. 3 Cir. 4/8/15), 164 So.3d 266, 279, writs denied, 15-900, 15-903 (La.

9/11/15), __ So.3d __, we summarized the standard for reviewing a trial court’s

grant of a motion for directed verdict.

In Melancon v. Lafayette Insurance Co., 05–762, p. 12 (La.App.
3 Cir. 3/29/06), 926 So.2d 693, writs denied, 06–974, 06–1006
(La.6/16/06), 929 So.2d 1291, 1293, this court noted that while
Article 1810 does not establish standards for the grant of a directed
verdict, such standards have been jurisprudentially established. These
standards were enumerated by this court in Carter v. Western Kraft
Paper Mill, 94–524, pp. 4–5 (La.App. 3 Cir. 11/2/94), 649 So.2d 541,
544 (citations omitted):

[A] directed verdict should only be granted when the
facts and inferences point so strongly in favor of one
party that the court believes reasonable people could not
reach a contrary verdict. It is appropriate, not when there
is a preponderance of evidence, but only when the
evidence overwhelmingly points to one conclusion. The
propriety of granting a directed verdict must be evaluated

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in light of the substantive law underpinning the plaintiff's
claims.

Under the foregoing legal principles the question is
not whether in our view the plaintiff has proven his case
against defendants by a preponderance of the evidence,
but rather, whether, upon viewing the evidence submitted,
we conclude that reasonable people could not have
reached a verdict in favor of the plaintiff against the
defendants. . . .

Questions of credibility should not be resolved by
a directed verdict. Making credibility evaluations is one
of the primary duties of a jury and the trial court may not
take this duty from the jury unless the party opposing the
directed verdict has failed to produce sufficient evidence
upon which reasonable and fair-minded persons could
disagree. Evaluations of credibility play no part in
reaching a decision on a motion for directed verdict.

Having reviewed the record, we find no error by the trial court. The trial court set

forth the reasoning behind its grant of the directed verdict in its written judgment

stating that there was:

(1) no evidence of the make or model of the helicopter;

(2) no evidence of weather parameters in which the helicopter could
safely operate;

(3) no evidence that the existing weather conditions exceeded that in
which the helicopter could safely operate;

(4) no evidence as to the cause of the helicopter incident;

(5) no evidence that the helicopter incident was weather-related;

(6) no evidence that the helicopter pilot breached the standard of care
applicable to a reasonably prudent helicopter pilot operating under the
same or similar circumstances;

(7) no expert testimony as to the cause of the helicopter incident;

(8) no expert testimony to establish a breach of the standard of care
because flying a helicopter is not within the common knowledge of a
layperson; and

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(9) no expert testimony regarding flying a helicopter, which is also not
within the realm of experience of an ordinary prudent person or
juror. . . .

After considering the parties’ arguments, the law, and the
evidence, all of which favor PHI, Inc., the motion for directed verdict
is granted on the basis of no evidence of liability or negligence of PHI,
Inc. . . .

Allen presented five witnesses at trial. Allen testified giving his version of

events and the resulting severe psychological damage he claims resulted from

hearing the noises following the helicopter flip. Dr. Cornelius Gorman, who has a

doctorate degree in medical social work counseling, testified regarding

rehabilitation in terms of future employment abilities of Allen. Allen’s wife of

seventeen years, Doris, testified. Dr. Richard Richoux, a board-certified

psychiatrist, testified that he was of the opinion that Allen has post-traumatic stress

disorder because of the December 24, 2009 helicopter incident, and Dr. Randy

Rice testified via deposition regarding economic losses sustained by Allen.3

We agree with the trial court that Allen has failed to put forth any evidence

of PHI’s negligence and certainly will not be able to meet his burden of proof at

trial. Allen suggests that PHI’s negligence should essentially be presumed and that

a weather warning that a cold front was coming through would have been enough

to prove PHI’s negligence. We disagree. Allen utterly failed in showing any

negligence on the part of PHI. Moreover, even if Allen could show PHI was

negligent, there was no evidence that he would be able to satisfy his burden of

proof under the duty/risk analysis that PHI was the legal cause of his injuries. See

La.Civ.Code art. 2315.6. His own testimony indicates that he did not see the

helicopter turn over, any debris or parts flying, and he was never hit by anything.

3
Dr. Rice’s deposition was submitted into evidence because the directed verdict was
granted prior to his being called to the stand as a convenience to all parties.

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And finally, even if the excluded witness and witness statements were admitted, a

directed verdict would still be proper. Allen had more than three years to develop

his case and failed to do so, instead only putting on evidence of his alleged injuries.

Allen also argues that the trial court erred in refusing to apply the doctrine of

res ipsa loquitur to this case. We find the doctrine of res ipsa loquitur is

inapplicable. A party’s failure to develop his negligence claim cannot be cured by a

claim that res ipsa loquitur should apply. Res ipsa loquitur, ―the thing speaks for

itself,‖ is only available when there is no direct evidence to prove a party’s claim.

Linnear v. Centerpoint Energy Entex/Reliant Energy, 06-3030, p. 6 (La. 9/5/07),

966 So.2d 36, 41. There was an abundance of direct evidence that could have been

obtained to attempt to prove the negligence of PHI. Allen’s failure to secure any

expert testimony regarding the negligence of PHI cannot be cured by a claim of res

ipsa loquitur. Allen argues in brief that:

A reasonable juror could infer that PHI, Inc. was negligent if it
determined that Mr. Allen’s injuries, including PTSD, were more
likely than not caused by PHI, Inc., that PHI, Inc. had a duty to protect
Mr. Allen from such harm, and that his PTSD could not have been
caused by another party or reason. It is Plaintiff/Appellant’s position
that the jury would be reasonable in inferring that a helicopter crash
does not occur outside the scope of negligence.

Allen claims that PHI breached its duty to the workers on the platform by

creating a hazardous situation. Yet, Allen provided no evidence whatsoever to

prove this point and res ipsa loquitur is an insufficient substitute for the testimony

and evidence that would have proven the case had Allen attempted to establish any

aspect, other than damages, of the duty/risk analysis. Accordingly, this assignment

of error is without merit.4

4
We note that in Allen’s brief, he mentions under this assignment of error that the trial
court judge notified the parties shortly before granting the directed verdict that he was a licensed

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Continuance

In Shiver, d/b/a LABS v. Lafayette City-Parish Consolidated Government,

14-760, p. 3 (La.App. 3 Cir. 12/10/14), 154 So.3d 789, 791, we set forth the

standard of reviewing a trial court’s decision not to allow a continuance:

Continuances may be granted on either peremptory or discretionary
grounds. La.Code Civ.P. arts. 1601 and 1602. The peremptory
grounds for a continuance are when ―the party applying for the
continuance shows that he has been unable, with the exercise of due
diligence, to obtain evidence material to his case; or that a material
witness has absented himself without the contrivance of the party
applying for the continuance.‖ La.Code Civ.P. art. 1602. Otherwise,
―[a] continuance may be granted in any case if there is good ground
therefor.‖ La.Code Civ.P. art. 1601.

The trial court has wide discretion in ruling on a motion for
continuance, and absent a clear showing of an abuse of that discretion,
the appellate court will not disturb the trial court's ruling on appeal.
Newsome v. Homer Mem. Med. Ctr., 10–564 (La.4/9/10), 32 So.3d
800. In deciding whether or not to grant a motion for continuance, the
trial court may consider such factors as diligence, good faith,
reasonable grounds, fairness to both parties, and the need for the
orderly administration of justice. Ardoin v. Bourgeois, 04–1663
(La.App. 3 Cir. 11/2/05), 916 So.2d 329. The defendant’s right to
have his case heard as soon as possible may also factor into the trial
court’s decision. Succession of Harrell v. Erris–Omega Plantation,
Inc., 12–696 (La.App. 3 Cir. 12/5/12), 104 So.3d 751, writ denied,
13–438 (La.4/5/13), 110 So.3d 595.

The trial court did not abuse its discretion in refusing to grant Allen a

continuance. Allen had more than three years to develop his case against PHI and

failed to do so. He presents no good ground upon which the trial court should have

granted a continuance. Accordingly, this assignment of error is without merit.

pilot, a fact which Allen claims ―was prejudicial to his case, as the judge viewed the case in light
of his special circumstances, rather than the view of the average juror.‖ He also claims that the
―fact that he was a licensed pilot may have tempered his ruling and based it on his personal
knowledge, rather than the evidence presented at trial.‖ On the contrary, there was no evidence
presented at trial which could have swayed the trial court. Further, the trial court’s determination
that expert testimony would be required for a lay person to understand the mechanics and
functions of a helicopter was not an error. This type of information is simply not known by an
average person.

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CONCLUSION

The judgment of the trial court granting a directed verdict in favor of PHI,

Inc., is affirmed. All costs of this appeal are assessed against the plaintiff-

appellant, Hayward Allen, III.

AFFIRMED.

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