MILITARY AIR CRASH: DEFEATING THE LATEST DEFENSE
Since the United States Supreme Court decision in Boyle v. United Technologies, 487 U.S. 500 (1988), military air crash cases are among the most complex in the country. As detailed below, Boyle extended federal government immunity to private contractors, but only under certain conditions. For the past dozen years, novel defense arguments have tried to piggyback on Boyle and erode what little is left of product liability lawsuits against military contractors. These tactics have focused generally on further restricting the "certain conditions" that must be met for immunity. This article explores the emptiness of the latest defense arguments in this regard.
The History of the Government Contractor Defense
The United States Supreme Court first acknowledged the government contractor defense in Yearsley v. W. A. Ross Construction Company.1 In later years, different appellate courts devised various versions. The government contractor defense, having no direct statutory basis, developed as a matter of federal common law; courts generally looked to Feres v. United States for foundation.2 Feres holds that the Federal Tort Claims Act does not allow governmental liability for injuries to military service people. As a consequence, both state and federal courts, applying early versions of the government contractor defense, strictly limited the defense to cases where plaintiffs were military personnel and defendants were military equipment manufacturers.3
In 1988, however, the United States Supreme Court established a "universal" version of the government contractor defense in Boyle v. United Technologies Corp.4 In Boyle, the Supreme Court established "certain conditions" in the form of a three-part test for determining when a manufacturer can be shielded from strict liability for injuries caused by products designed under federal procurement contracts:
Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.5
Besides establishing this test, the Court clarified the basis for the defense. Rejecting the Feres doctrine as a foundation, the Court relied instead on the discretionary function exception to the Federal Tort Claims Act.
The Latest Defense Argument
Clearly, Boyle teaches that to enjoy immunity, the manufacturer's product must have conformed to government-approved reasonably precise specifications. Recently, however, defendant manufacturers have argued that under Boyle they should be immune from liability unless plaintiff can show that any failure to obtain government approval was somehow actually a cause of plaintiff's death or injury. This tactic is merely a thinly-veiled attempt to excuse any and all other failures to gain government approval for the design of the product at issue. Boyle and its "certain conditions" for immunity do not address nor involve a consideration of "causation." See, e.g., Boyle, 487 U.S. at 505-12.
In fact, any contention that a defendant's failure to comply with government specifications must be a cause of injury and therefore somehow a basis for liability is simply irrelevant to whether the defendant manufacturer is immune from liability under state law. If the manufacturer failed to comply with government specifications (i.e., requirements for approval of its design), or obtained mere "rubber-stamp approval" of the product, then the manufacturer is not entitled to immunity under Boyle. See, e.g., Boyle, supra at 503 and 508-12.
The rationale behind the contractor immunity available under Boyle is that the government is entitled to exercise meaningful discretion in the selection of military products for use by our country's armed forces. See Boyle, supra, at 511:
We think that the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function within the meaning of this provision. It often involves not merely engineering analysis but judgment as to the balancing of many technical, military and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness.
For example, take the situation where a government contractor fails to comply with government specifications by misrepresenting the results of required product testing. Whether its misrepresentations about testing was a cause of the particular injury in the case is certainly irrelevant to application of Boyle. However, the misrepresentations regarding such testing, when that testing is required by government specifications, is extremely relevant to whether the manufacturer is entitled to government contractor immunity under Boyle.
Clearly, if required testing was not done and misrepresentations were made by the contractor, that contractor would not and should not be entitled to Boyle immunity. No government discretion was exercised, and in all logic and fairness a private contractor should not receive immunity based on any discretionary function exception to the Federal Tort Claims Act. In fact, any such grant of immunity would unjustly reward the contractor with immunity based on its own misrepresentations to the government. Nothing could be more contrary to both the express holding of Boyle and its underlying rationale.
Time and again, government contractors have tried to expand the immunity granted by Boyle. Lower courts of course should be reluctant to even consider such arguments. Like it or not, Boyle is a clearly written decision by our U.S. Supreme Court based squarely on the exercise of government discretion. If the product at issue was not fully approved through governmental discretion and reasonably precise specifications, the private contractor deserves no immunity. To grant it would itself be an abuse of discretion.
|| 309 U.S. 18 (1940). |
|| 340 U.S. 135 (1950). |
|| See, e.g., Bynum v. FMC Corp., 770 F.2d 556, 565-66 (5th Cir. 1985). |
|| 487 U.S. 500 (1988). |
|| Boyle, supra, at 512.|