Rainey v. Beech Aircraft Corp.

PER CURIAM: This case was taken en banc for the purpose of reconsidering controlling authority in this Circuit concerning the admissibility in evidence of an opinion expressed in an investigative report of an airplane crash. The Court is evenly divided on the issue, however, so that the controlling authority remains as set forth in the panel decision. Since the Court is unanimous in upholding the panel’s decision on the other evidentiary issue which requires a reversal for a new trial, the effect of this en banc procedure is to reinstate the panel opinion. Rainey v. Beech Aircraft Corp., 784 F.2d 1523 (11th Cir.1986). This opinion will simply review the case and the effect of this decision. — 1500 — Lieutenant Commander Barbara Ann Rainey, a flight instructor with the United States Navy, and her student, Ensign Donald Bruce Knowlton died on July 13, 1982 in a fiery airplane crash while practicing landings and takeoffs at Middleton Field, Alabama. Their spouses, John Charles Rainey (“Rainey”) and Rondi M. Knowlton (“Knowlton”) sought money damages under the Florida Wrongful Death Act, Fla. Stat.Ann § 768.16-.27 in district court. The jury returned a verdict against the plaintiffs. At trial, the only disputed issue was the cause of the fatal crash. Lieutenant Colonel David I. Habermacher, Jr., with authorization from the Manual of the Judge Advocate General § 0902, at 9-3 to -5, appointed Lieutenant Commander William C. Morgan, Jr. to conduct an investigation into the circumstances surrounding the aircraft accident. Lieutenant Commander Morgan’s report, since it was prepared in conjunction with an authorized Judge Advocate General investigation, is a public record. Because no evidence was introduced to show that the report lacked trustworthiness, the factual findings contained in the report are admissible under Rule 803(8). Rainey, 784 F.2d at 1527. In his report, however, Morgan also gave his opinion that pilot error was “[t]he most probable cause of the accident.” Id. at 1526. Rainey and Knowlton disagreed with Lieutenant Commander Morgan’s opinion. In a letter written to Morgan about the “aircraft mishap,” Rainey, also a flight instructor with the United States Navy, concluded that the mishap was not the result of pilot error but more probably “caused by some form of pneumatic sensing/fuel flow malfunction, probably in the fuel control unit.” According to Rainey, this malfunction prompted an inflight “power interruption” or “rollback” making it impossible for Lieutenant Commander Rainey to sustain sufficient power to maintain flight. Because the two people in the plane were killed and the aircraft was almost totally destroyed by fire, the parties relied heavily on opinions developed by expert witnesses. The defendants offered into evidence the opinion contained in the investigative report prepared by Lieutenant Commander Morgan. Two points are raised on appeal. First, plaintiffs contend that John Charles Rainey’s testimony was unduly restricted on cross-examination by his own attorney about his letter to Morgan after counsel for Beech Aircraft Corporation had called Rainey as an adverse witness. The panel opinion fully sets forth the circumstances concerning this issue and concludes the district court should be reversed for two reasons: (1) Fed.R.Evid. 106 requires the court to let Rainey testify as to the whole letter and, (2) the testimony was admissible under Fed.R.Evid. 801(d)(1)(B). Rainey, 784 F.2d 1528-30. The Court is unanimous in concluding that the panel opinion is correct in reasoning and result, so no further discussion of the issue is in order here. Second, Rainey and Knowlton appeal the district court’s decision to admit into evidence, over their objection, the opinion as to cause of the accident in the investigative report prepared by Lieutenant Commander Morgan. Morgan did not testify at the trial. The panel held that prior precedent of this Court, found in Smith v. Ithaca Corp., 612 F.2d 215 (5th Cir.1980), requires that the district court be reversed on this point. Rainey, 784 F.2d at 1527-28. Smith holds that “evaluative conclusions and opinions,” such as those contained in Lieutenant Commander Morgan’s report, are not admissible. 612 F.2d at 221-22. The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. Judge Johnson specially concurred in the panel opinion, noting that although Smith controlled the panel decision, it should be reconsidered en banc. Rainey, 784 F.2d at 1530. Although this case was taken en banc for the purpose of reconsidering the evi — 1501 — dentiary issue decided in Smith, the Court is evenly divided on the point. Judges Roney, Godbold, Hill, Fay, Vance and Clark would all adhere to Smith. Judges Tjoflat, Kravitch, Johnson, Hatchett, Anderson and Edmondson would follow the reasoning suggested in Judge Johnson’s concurring opinion and overrule Smith. Since the Court is evenly divided, there is no useful purpose in the publication of opinions setting forth the reasoning of either view. All judges agree that unless Smith is changed by the en banc court, it controls the issue in the district court. Since it takes a majority of the en banc court to change a prior precedent of this Court, Smith controls and the panel opinion properly decides the issue. REVERSED and REMANDED.