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The NTSB felt it was an honest mistake. But then, Boeing and United discovered a 737 with rudder problems during a routine maintenance check and they didn't inform the NTSB until they had a chance to conduct tests. The NTSB publicly lambasted them for not being more forthcoming.

Though he bowed to political pressure in commissioning the RAND study, NTSB Chairman Jim Hall strongly believes in the party system. After all, party members assist in fact-finding only. The NTSB alone analyzes the facts and comes up with a conclusion. Last month, in a speech to the Airline Pilots Association, he said "The system works well, has a long history of cooperation, and creates a healthy tension among the parties, as it was designed to do."

As an example he pointed to Boeing's discovery, through its own testing, that there was indeed a flaw in the 737's rudder system, causing it to jam. Boeing came forward, presented its findings to NTSB investigators and it resulted in a redesign and retrofit at a cost well over $100 million.

Hall's faith in multi-national conglomerates to disclose damning findings without regard to the hundreds of millions of dollars in potential lawsuits strikes some as naive.

"Personally, I am happy to credit Boeing with a rare burst of honesty," said victims' family attorney O'Reilly, "but that begs the question. The public should not have to depend on the good faith of a defendant."

Maybe the public shouldn't, but the NTSB does. The agency bends over backwards to keep a collegial atmosphere between it and the manufacturers, airlines and suppliers it relies on.

The NTSB has subpoena power but it rarely uses it, emphasizing mutual trust and cooperation instead. That infuriates plaintiff attorneys like O'Reilly. "What worries me is Hall's pathetic tone," he said. "He needs to remember that he is in charge and that he doesn't have to beg for good faith. He can require it."

A balanced investigation, according to O'Reilly, means NTSB's party system should include experts hired by victims' family plaintiffs. Currently, NTSB's charter specifically prohibits victims' families or their representatives from being party members. Without a seat at the table, plaintiffs and their victim families feel the current system gives defendants a privileged position in future litigation.

RAND's Lebow disagrees. She fears a gold rush if plaintiff lawyers become part of the investigations. "It promotes a rush to sign up clients," she said. "It's not good public policy. Families inherently do not have technical expertise in how planes are built and run."

But Doug Herlihy, an air safety investigator in private practice, says RAND is dismissing the seriousness of the party system's conflict-of-interest. He should know. He's a former NTSB investigator who brought in party members as an operations group chairman.

"It's naive to think that good employees won't be protective of their company," he said. "Are they going to tell you the complete unadulterated truth about their aircraft? These people are defense-oriented," he added. "They are preparing for litigation while they serve as party members. The information they give and get at the parties gives them an advantage in litigation." When asked if he had ever experienced deliberate delays, shadings, or misleading statements on the part of party members, Herlihy was unequivocal: "All the time."

O'Reilly claims numerous examples of plaintiff-hired investigators who discovered evidence missed by NTSB party members. "Why should the NTSB listen to the defendants but not the plaintiffs?" he asks.

"Because the NTSB isn't charged with finding liability," answers Carl Vogt, NTSB's chairman from 1991-1994. "It's charged with finding out what happened." Vogt believes there's a difference between finding probable cause and assigning blame. "The words 'defendant' and 'plaintiff' are terms of liability," he said. "And the NTSB is not concerned with legal proceedings."

No matter how hard the NTSB tries to avoid the legal repercussions of its work, the fact remains that its report is critical to the outcome of legal proceedings -- the astronomical liability guarantees it. Experts believe the EgyptAir crash alone could cost the involved companies up to $600 million.

Congress forbade the use of the NTSB's "probable cause" statement in legal disputes. But attorneys can use everything else in the report to bolster their cases. "It's too inflammatory and prejudicial to the jury," said RAND's Lebow.

Everyone seems to agree on that point. Even plaintiff attorney O'Reilly. "There's an old saying in law circles," he said. "If you get the cop you get the verdict."

Whatever RAND's recommendations turn out to be, it's clear that the stakes of NTSB investigations will only get higher in the future. That's because, in an age of rapidly expanding technologies, the causes of airplane crashes will become more difficult to determine.

Mechanical and weather related failures are likely to diminish because government and industry are spending billions on safety measures. "There will be fewer major aviation accidents," Lebow testified to Congress last May, "but those that do occur will be far more complex."

This is because the most significant trend in aviation is the inter-connectedness of systems. Older planes are dominated by single-point, sensor-to-instrument systems. For instance, the control mechanism for a rudder is often connected to the cockpit by cable. It's easy to point to a severed cable in a crash investigation. But what if there is no cable? Rudders in modern aircraft will be operated by electrical signals.

"There are 30 million points of data in a major commercial aircraft," said Lebow. "Signals filter through systems. A glitch in one sector causes a glitch in another, sometimes making it impossible to determine what happened."

The highly integrated systems and extensive cross-linking of aircraft systems make it hard to isolate failure. Built-in redundancies, fault tolerance and fail-safe systems enhance reliability but don't necessarily provide permanent evidence of a "complex systems event." How many ways can a modern plane fail? NTSB has to count the ways. Even when there's no trace of what occurred.

The trend in aircraft capacity makes NTSB's work even more critical. The single worst event in aviation history was a runway collision between two 747s in the Canary Islands, killing 574 people. Today, an event of that magnitude can happen in a single plane. The "stretch" configurations of the new 747-400 series can carry 600 passengers. By increasing "packing density" (decreased leg room), aircraft manufacturers can avoid full re-certification of older planes and make them more productive. Some industry planners are contemplating 800 person transport jets.

Based on Lebow's testimony in the spring, it's clear that RAND will urge Congress to fund NTSB so it can be salary-competitive and training-savvy. As for the party system, Lebow has publicly taken a "mend it, don't end it" approach. The NTSB needs to broaden its resources, she maintains. "The fix isn't to end the party process but to reach out to other resources like the Air Force, NASA and academic institutions to lessen reliance on industry sources. The NTSB needs to create the best Rolodex in the business."

Economist John Kenneth Galbraith once observed that a government agency which starts with good intentions in generation one is entirely composed of industry insiders by generation three. Until the NTSB can figure out a way to decrease its reliance on companies with vested interests in the outcomes of investigations they help conduct, critics say it will never have the public's complete trust.

salon.com | Dec. 6, 1999

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