Raymond Paul Johnson - Civil Litigators - Los Angeles, CA



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HIGH-PROFILE AVIATION CASES: COUNTERING KEY DEFENSES

I. INTRODUCTION

Success hinges on a trial lawyer's knowledge and her ability to foresee and counter alleged defenses. In modern aviation cases, especially those involving military aircraft, attention must be focused on those defenses that prevent a case from reaching the jury. In the context of three aviation product-liability cases of national prominence being prosecuted by the author, we discuss the somewhat daunting defenses commonly raised by aviation manufacturers, and some successful strategies for ensuring that your best case reaches the jury. We also examine certain discovery techniques that can be used to acquire key documents in complex aviation cases.1

II. THE ASSERTED DEFENSES

The best way to avoid troubling surprises in any case is to anticipate; in this regard, manufacturers and their counsel specialize in certain key defenses. For example, in litigation involving military aviation products, three defenses are commonly raised: (1) the government contractor defense, (2) the military/state secrets privilege, and (3) the political question doctrine.2

A. The Government Contractor Defense

The government contractor defense was first recognized by the United States Supreme Court in Yearsley v. W.A. Ross Construction Co.3 The Court held that a private party could be shielded from certain liability associated with military contractual obligations. After nearly 50 years of varied interpretations of this defense, the Supreme Court revisited the subject in Boyle v. United Technologies Corp.4 and expanded the scope of the defense to include non-military plaintiffs and non-military government contracts.

In general, the government contractor defense relies on the discretionary function exception to the Federal Tort Claims Act (FTCA).5 This exception is based on the premise that the government is shielded from liability where the discretionary decision-making of government personnel involves "unique federal interests." These interests include the obligations and rights of the U.S. government under its contracts, including contracts to procure military equipment, and the perceived need to insulate government officials from liability for actions taken in the course of their duties.

The Court in Boyle found that imposing state tort liability against government contractors "would produce the same effect sought to be avoided by the FTCA exemption. The financial burden of judgment against the contractors would ultimately be passed through . . . to the United States itself."6 The Court thus concluded that holding government contractors liable in certain circumstances would present a significant conflict with federal policies.

Boyle established a three-prong test to help guide lower courts in their application of the government contractor defense. To escape liability, the contractor must show that: (1) the government approved reasonably precise specifications for the product; (2) the product conformed to the government specifications; and (3) the contractor warned the government of associated dangers unknown to the government. The lower courts, however, have diverged in their application of the test, offering litigants little assurance of certain outcomes in related litigation.

B. The Military/State Secrets Privilege

Where applicable, the military secrets privilege can be a difficult obstacle to overcome in aviation product litigation. If properly invoked, "even the most compelling necessity cannot overcome the claim of privilege."7 Fortunately, this privilege can only be asserted by the government and is generally reserved for compelling circumstances.

The privilege allows the government (even if a non-party to the action) to withhold documents or other information from discovery if the release of the information would compromise national security or foreign policy. The privilege can lead to dismissal of a case in three situations: (1) when classified information is necessary to the plaintiff's prima facie case;8 (2) when the unavailability of classified information "so hampers the defendant in establishing a valid defense that the trier is likely to reach an erroneous conclusion;"9 or (3) when the very subject matter of the case is classified, or the case is of such a nature that its prosecution will either necessarily or accidentally result in the release of classified information.10

To properly invoke this privilege, the head of a government department, normally a Cabinet Secretary, must be personally familiar with the information required and formally assert the privilege. The court must then determine whether the privilege is valid, albeit without actually knowing what specific information is being protected.

Once the military secrets privilege has been invoked, the court will require plaintiff to show that the burden of proof can be met without the protected information. It then remains within the sound discretion of the court to determine if the subject matter is so closely related to classified information that the suit will inevitably reveal military or state secrets.

Finally, the court must decide whether defendant is irreparably blocked from presenting a valid defense on each asserted claim because of the missing information. Not surprisingly, defense counsel usually argue that their main theory of defense cannot be presented due to the unavailability of information. The court, again within its sound discretion, must carefully weigh the issues and determine if otherwise plausible defenses to particular allegations have indeed been extinguished without the secret information.

C. The Political Question Doctrine

The political question doctrine can surface in any product case related to government or military activities. The doctrine is an indirect, yet potentially effective, defense in a product action. Indirect, because it deals not with questions of the product itself, but rather with questions of the propriety of government or military actions surrounding the use of the product. In product cases, causation issues often involve the performance of the product as well as how the product was being used at the time of injury. If a court is precluded from judging the propriety of use of a particular product, then it can be effectively barred in a particular case from reaching a decision on the causation issue.

The political question doctrine was set forth by the United States Supreme Court in Baker v. Carr.11 The Court in Baker concluded that the doctrine precludes the litigation of cases that involve:

(1) a textually demonstrable constitutional commitment of the issue to a coordinate political department;

(2) a lack of judicially discoverable and manageable standards for the case's resolution;

(3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;

(4) the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;

(5) an unusual need for unquestioning adherence to a political decision already made; or

(6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.12

Courts in recent decisions have treated the political question doctrine in combination with the government contractor defense. For example, in Koohi v. U.S.,13 plaintiffs filed a product liability action against the manufacturers of the Aegis Air Defense System used on board the U.S.S. Vincennes-the naval cruiser that shot down a civilian airliner. Defendants argued that the political question doctrine precluded the justiciability of the case because it involved the operations of a U.S. warship in an authorized military operation, a subject traditionally reserved for the discretion of the executive branch of the government.

The controlling case was the 90-year-old U.S. Supreme Court decision in The Paquete Habana,14 holding that courts had authority to review the propriety of the seizure of ships by the military. The court in Koohi determined that even though the case involved the military's "ordinary exercise of discretion in the conduct of war" it was not beyond judicial power.15 The court held, however, that the particular action fell within the "combatant activities" exception to the FTCA.16 The court further held that the state law tort claim in that case would "produce the same effect sought to be avoided by the FTCA exception"17 and was therefore barred.

A different use of the political question doctrine was made in the oft-criticized case of Bentzlin v. Hughes Aircraft Co.18 In Bentzlin, plaintiffs claimed that a product defect in a Maverick AGM-65D missile caused it to deviate from its course and destroy a light armored vehicle, causing the death of six U.S. Marines in Kuwait. The Bentzlin court held that the combatant activities exception barred prosecution of the case, and also went on to opine that the political question doctrine prevented the case from moving forward. Because, according to the court, the case required an investigation into the training and tactics of the military, "[n]o trier of fact can reach the issue of a manufacturing defect without eliminating other variables which necessarily involve political questions."19

III. COUNTER STRATEGIES

The more complex the case, the more attention must be paid to anticipated defenses. Take, for example, the present case being prosecuted by the author involving the friendly-fire shoot down of two U.S. Army Black Hawk helicopters by two U.S. Air Force F-15 Eagles over Northern Iraq, resulting in the deaths of all crew and passengers aboard the helicopters. Careful study of the Black Hawk tragedy has revealed the failure of a critical aircraft identification system that was specifically designed to avoid such a catastrophe. Yet defenses, such as those previously described, have been asserted by the manufacturers of the system at the pleading stage in this litigation.

In particular, the Black Hawk case involves military contractors, classified aircraft systems, and the operations of the U.S. government in a quasi-military situation. Defendants have raised the government contractor defense, the military secrets privilege, and the political question doctrine.

A. Defeating the Government Contractor Defense

Each prong of the government contractor defense under Boyle is subject to attack by plaintiff's counsel. First, the government must have approved reasonably precise specifications. The court in Trevino v. General Dynamics Corp. held "[w]hen the government merely accepts, without any substantive review or evaluation, decisions made by a government contractor, then the contractor, not the government, is exercising discretion. A rubber stamp is not a discretionary function; therefore, a rubber stamp is not approval under Boyle."20 A recent decision by the Court of Appeals for the Ninth Circuit held that the specific component at issue in a design defect case must have been approved through the exercise of actual discretion by the government in order for the government contractor defense to apply.21

1. First-Prong Attack

To attack with the first prong of Boyle, plaintiff should show that the contractor actually exercised its own judgment during design of the product, or that the government was not involved in the decision-making process except merely to approve final plans. To launch this attack, issue a request for the production of all documents related to the government's design input and approval of the specific design feature in question.

Carefully distinguish between design decisions actually made by the government and those simply subjected to "rubber stamp" approval during the design process. Identify the role of the defendant contractor in originating, developing and recommending the specific design aspect at issue during design reviews and approval sessions with the government. Issue subpoenae and Freedom of Information Act (FOIA) requests for the contractor and government notes of negotiations conducted during design of the product. Never allow the defendant or lower-level government personnel to thwart these attempts to uncover the truth.

In cases like the Black Hawk litigation, show that the government only provided operational and performance goals for the system in question, and looked to the contractor for actual design details and recommendations. If (1) the contractor had authority to exercise discretion in the design process, and (2) the government only "rubber-stamped" the specific design aspect at issue based on satisfactory performance, the government contractor defense should not apply.

2. Second-Prong Attack

The second prong of Boyle, conformance with the government specifications, is another avenue of attack. The actual product at issue must conform to the specific, approved government specifications. If the particular defect is linked to subsequent changes made by the contractor (with only "rubber stamp" approval by the government), the contractor defense should not apply.

For example, another case currently being prosecuted by the author involves the sudden ground explosion of a KC-135 Aerial Refueling Tanker near Milwaukee, Wisconsin which caused the deaths of five servicemen. A thorough analysis of the wreckage and related reports revealed that a replacement fuel booster pump recommended by the contractor failed to meet original pump specifications. The design differences allowed for ignition and the subsequent explosion of the fuel vapor in the center wing tank of the aircraft. As such, the government contractor defense should not apply to this case, or any similar case, because the product failed to comply with applicable government specifications.

3. Third-Prong Attack

The third prong of Boyle requires that the contractor warn the government of dangers associated with the product that are unknown to the government. To attack on this prong, show that the contractor had specialized knowledge of the product that was not equally available to the government. In many cases, this may require an extensive review of all internal reports by the contractor (including system safety documentation) to find evidence of the contractor's knowledge of dangers associated with the product. In other cases, it may be far more obvious that a needed warning was not given.

A case on point would be the current litigation being prosecuted by the author that concerns the loss of control and crash of an X-31 experimental aircraft near Edwards Air Force Base, California. The aircraft's on-board computers were programmed to analyze airspeed information and provide control input to guide the X-31 through maneuvers never before possible. During a test flight, the pitot tube stopped providing reliable airspeed information to the computer and the aircraft went out of control. The test pilot was forced to eject and suffered debilitating injuries that ended his career.

Prior to actual test flights, the government contractor in this case conducted a number of X-31 simulator flights to determine the expected performance of the aircraft. One of the specific goals of this simulation was to evaluate the effect of failures of various components, and to modify any systems that could critically compromise safety. The simulations identified what is known as a "single-point failure mode" in the aircraft's pitot-static system.

There was no provision for redundancy in the pitot-static system, and as such the contractors knew that any "single" failure of this system would result in the loss of control of this particular aircraft. No warning, however, was ever issued by the contractor to the government, or to the government's test pilots. Failures to warn, such as this, serve to defeat the government contractor defense.

Another tack used to counter the government contractor defense is to show that the same product is produced for non-military customers. The court in In re Hawaii Federal Asbestos Cases,22 for example, found that manufacturers of non-military equipment are not entitled to the protection of the government contractor defense. This distinction comports with the underlying policy of Boyle because the purpose of the government contractor defense is to protect "unique federal interests." If the government contract is for a product that is also widely available to the public, a unique federal interest no longer exists.

We can see application of this strategy by looking again to the KC-135 fuel tanker tragedy in Wisconsin. The KC-135 is a modified Boeing 707 airliner, widely available to the public. Because the replacement fuel booster pump at issue is also available to the private sector, the government contractor defense should not apply.

B. Circumventing the Military Secrets Privilege

The military secrets privilege can be formidable. As noted above, in general, no compelling interest exists to force disclosure of truly classified information, where the privilege is properly asserted. However, this does not mean the end of a particular case.

In the Black Hawk case, for example, the product at issue involves a highly sophisticated military radar system. Certain design capabilities and limitations of the system are classified; however, one can plead the case and conduct discovery in a manner that does not require the disclosure of currently classified information.

For example, following the military investigation of the shoot-down, officials attempted to court martial the Air Force Captain who supervised the Airborne Warning and Control (AWAC) crew. The court martial itself was a matter of public record, and as such transcripts and related evidence are available through the Freedom of Information Act (FOIA). Even though specific portions of the trial were classified, a great deal of information concerning the system at issue was testified to in open court, and numerous exhibits related to the system were admitted into evidence. The availability of all this information makes ultimate application of the military secrets privilege unlikely in the Black Hawk case.

Another thing to remember is that the military secrets privilege is not lightly invoked. The government or military should not and does not simply claim the privilege to avoid the discovery process. Furthermore, only proper government officials can claim the privilege. A manufacturer cannot file a motion to dismiss because information necessary to the defense is classified unless the government has asserted the privilege over specific, applicable documents.

In the Black Hawk case, for example, well-crafted FOIA requests have been reviewed and approved for response by the military. The government is cooperating with plaintiffs' FOIA requests by setting up document inspection sites at military bases throughout the world. Although certain details of the applicable systems may never be released, enough unclassified information about the specific design flaws at issue should be available for the reasonable prosecution and defense of the case.

C. Avoiding the Political Question Doctrine

The key to circumventing the political question doctrine is to draft pleadings so as to avoid political questions. Essentially, issues that directly implicate the discretion of the Executive Branch should be abandoned.

For example in the Black Hawk case, predictably the defense has focused attention on the Rules of Engagement that the F-15 pilots were following at the time of the fatal shoot-down. Not only are the Rules of Engagement classified, but they lie arguably within the sole discretion of the military.

As such, defense counsel sees the Rules of Engagement as a key to dismissing the case under the political question doctrine. The carefully-drafted complaint, however, makes clear that the gravamen of the case is a products liability claim about a fatally flawed aircraft identification system that failed the F-15 pilots as well as the helicopter victims, making the Rules of Engagement irrelevant to the real issues in the case.

IV. CONCLUSION

Victory in any case requires tenacity and wit, but it also requires getting the case before a jury. In complex aviation cases, you must establish firm control early on. Failing to do so can result in a case dismissed on the pleadings.

Anticipation of potentially hard-hitting defenses will allow you to take the bite out of these defenses before they take hold. A thorough review of the design process will help you identify exceptions to the government contractor defense. Proper use of the Freedom of Information Act and other powerful discovery tools will allow you to sift out critical details without bogging down in potentially classified information protected by the military secrets privilege. Carefully drafted complaints will force the focus on the defective product, steering attention away from alleged political questions. Foresight and persistence will allow you to spend less time arguing against debilitating defense motions and more time on what is really important-prevailing on the merits.


1 For a more detailed discussion of discovery methods, see Johnson and Eidson, Defective Product: Evidence to Verdict, Chapter 4 and Appendices 6.2 and 6.3 (Michie 1995).

2 The author acknowledges and thanks Daniel Alba, a graduate of Loyola Law School in Los Angeles, and Ian Fusselman, law student at the University of Southern California, for their research and assistance in the preparation of this article.

3 309 U.S. 18, 84 L.Ed. 554, 60 S.Ct. 413 (1940).

4 487 U.S. 500, 101 L.Ed.2d 442, 108 S.Ct. 2510 (1988).

5 28 U.S.C. 2680(a) (1988).

6 487 U.S. at 511-12, 101 L.Ed.2d at 457-58.

7 U.S. v. Reynolds, 345 U.S. 1, 11.

8 See Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982).

9 See Molerio v. FBI, 749 F.2d 815 (D.C. Cir. 1984).

10 See Bareford v. General Dynamics Corp., 973 F.2d 1138 (5th Cir. 1992).

11 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

12 369 U.S. at 217.

13 976 F.2d 1328 (9th Cir. 1992).

14 175 U.S. 677, 44 L.Ed. 320, 20 S.Ct. 290 (1900).

15 976 F.2d at 1332.

16 28 U.S.C. 2680(j).

17 976 F.2d at 1336, (quoting Boyle, 487 U.S. at 511).

18 833 F.Supp. 1486 (C.D. Cal. 1993).

19 833 F.Supp. at 1497.

20 865 F.2d 1474, 1480 (5th Cir. 1989).

21 Snell v. Bell Helicopter Textron, Inc., ___ F.3d ___ (9th Cir. 1997).

22  960 F.2d 806 (9th Cir. 1992). See also, Jackson v. Deft, Inc., 223 Cal.App.3d 1305, 273 Cal.Rptr. 214 (1990) (holding that "military equipment" means a product made exclusively for military use with no commercial purpose).



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