Opinion
File Nos. 1:00-CV-798, 1:01-CV-221
May 15, 2002
ORDER AND JUDGMENT
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Defendant Raytheon Aircraft's motion for summary judgment on Plaintiff Hall's complaint in 1:00-CV-798 (Docket # 26) is GRANTED.
IT IS FURTHER ORDERED that a JUDGMENT of no cause of action is entered in favor of Defendant Raytheon Aircraft in Case No. 1:00-CV-798
IT IS FURTHER ORDERED that Defendant Raytheon Aircraft's motion for summary judgment on Plaintiff Hunter's complaint in Case No. 1:01-CV-221 (Docket #6) is GRANTED.
IT IS FURTHER ORDERED that a JUDGMENT of no cause of action is entered in favor of Defendant Raytheon Aircraft in Case No. 1:01-CV-221.
OPINION
These two wrongful death actions arise out of the crash of an aircraft manufactured by Defendant Raytheon Aircraft. At the time of the crash Plaintiffs' decedents were active duty officers in the United States Army and were engaged in an Army training exercise. This matter is before the Court on Raytheon's combined motion for summary judgment on its affirmative defense of government contractor immunity.
I.
Defendant Raytheon Aircraft Company ("Raytheon") is a subsidiary of Raytheon Company. Inc., and is the successor of Beechcraft Aircraft Corporation. Raytheon was a contractor under a U.S. Army procurement contract for the manufacture of an airplane known as the RC-12K "Guardrail."
In this opinion the term "Raytheon" will be used to refer both to Raytheon and to its predecessor, Beechcraft.
At all times relevant to this opinion Plaintiffs' decedents. Kelly D. Hall and Daniel W. Hunter, were on active duty with the U.S. Army, assigned to the First Military Intelligence Battalion. 205th Military Intelligence Brigade V Corp, U.S. Army Europe. in Weisbaden, Germany. On November 6, 1998, instructor pilot CW3 Daniel W. Hunter and Lt. Kelly D. Hall were engaged in a training exercise in a RC-12K, serial number 85-00151, when the plane crashed and both pilots were killed.
The Technical Report of Army Aircraft Accident describes the accident sequence as follows:
The accident sequence began as the crew conducted ATM "upper airwork" training. The aircraft departed controlled flight at approximately 6,800 feet AGL and descended out of control to ground impact. The aircraft was destroyed, and both crewmembers were fatally injured in the explosive high-G impact.
(Exh. X at 2). An audiotape of radio transmissions from the aircraft prior to the accident revealed that the Stall Warning Horn was heard in increasing loudness and frequency. The Stall Warning Horn is designed to increase in frequency as the aircraft approaches critical stall speed. (Exh. V at 2).
Plaintiffs allege that while their decedents were conducting routine training, the aircraft departed controlled flight, entered a clockwise spin from which the crew was unable to recover, resulting in the death of both crew members. (Compl. ¶ 9) Plaintiffs' complaint raises both a design defect and a failure to warn claim. Plaintiffs allege that the RC-12K was defective in design and that one or more of the defects was a proximate cause of the death of Plaintiffs' decedents. (Compl. ¶ 11). Specifically, Plaintiffs allege that (a) the aircraft had a propensity to inadvertently spin without the ability of the flight crew to recover; (b) the aircraft unexpectedly departs from controlled flight; (c) Defendant failed to warn of the dangers of departing from controlled flight; (d) Defendant failed to reasonably evaluate the aircraft's control stability, propensity to spin, and ability to recover from an inadvertent spin; (e) Defendant's design failed to account for increased maximum take-off weights and more rearward CG loading; (f) Defendant failed to provide a stall barrier or stall prevention system: (g) Defendant failed to give adequate warning of the aircraft's propensity to inadvertently spin; (h) Defendant failed to equip the aircraft with a reliable stall warning system; and (i) the aircraft failed to conform to the Army's specifications. (Compl. ¶ 12). Plaintiffs allege that Raytheon knew of the deficiencies and defects and failed to warn the Army of these dangers which were known to Raytheon but not to the Army. (Compl. ¶ 13).
Because the two complaints are virtually identical, unless otherwise specified, the Court's reference to one complaint should be understood to refer to both complaints.
II.
Defendant Raytheon has filed a motion for summary judgment based on the government contractor defense. Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In evaluating a motion for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If Defendant carries its burden of showing there is an absence of evidence to support a claim then Plaintiffs must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986).
"On summary judgment. all reasonable inferences drawn from the evidence must be viewed in the light most favorable to the parties opposing the motion." Hanover Ins. Co. v. American Engineering Co., 33 F.3d 727, 730 (6th Cir. 1994) (citing Matsushita, 475 U.S. at 586-88). Nevertheless, the mere existence of a scintilla of evidence in support of the plaintiff's position is not sufficient to create a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for the plaintiff. Id. See generally, Street v. J.C. Bradford Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989).
III.
The government contractor defense was judicially recognized by the Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500 (1980), to protect contractors who manufacture a product to government specifications. The Court reasoned that permitting state tort suits against contractors who implement the discretionary judgments of government officials would defeat the purpose of the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680 (a). Boyle, 487 U.S. at 511. "It makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production." Id. at 512.
In Boyle the Supreme Court adopted a three-part test for determining when the government contractor defense applies:
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.Id. "The three conditions serve to ensure that the defense operates to immunize the contractor only where the government has actually participated in discretionary design decisions, either by designing a product itself or approving specifications prepared by the contractor." Landgraf v. McDonnell Douglas Helicopter Co., 993 F.2d 558, 560 (6th Cir. 1993) (quoting Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1316 (11th Cir. 1989)). "Only when the government performed its discretionary function would state tort law liability frustrate a federal interest." Tate v. Boeing Helicopters, 55 F.3d 1150, 1154 (6th Cir. 1995) ("Tate I") (citing Boyle, 487 U.S. at 512).
As the Supreme Court observed in Boyle, 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 § 2680(a):
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.Boyle, 487 U.S. at 511. Although the government contractor defense may sometimes seem harsh in its operation, "it is a necessary consequence of the incompatibility of modern products liability law and the exigencies of national defense." Landgraf, 993 F.2d at 560 (quoting Harduvel, 878 F.2d at 1322).
Because the government contractor defense is an affirmative defense the defendant has the burden of establishing it. Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 746 (9th Cir. 1997). Whether the facts establish the conditions for the defense is generally a question for the jury. Boyle, 487 U.S. at 514. However, if there is no genuine issue of material fact, summary judgment is appropriate. See, e.g., Tate I, 55 F.3d at 1156; Landgraf, 993 F.2d at 563. The defense must be analyzed separately with respect to Plaintiffs' design defect and failure to warn claims. Tate I, 55 F.3d at 1156.
A. Did the government approve reasonably precise specifications?
The first of the three Boyle conditions asks whether the government approved reasonably precise specifications. This first question is designed to test whether government discretion was involved in the allegedly defective design. For a finding of government discretion, the government approval "requires more than a rubber stamp." Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480 (5th Cir. 1989). "When 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." Tate I, 55 F.3d at 1154 (quoting Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480 (5th Cir. 1989)).
On the other hand, "[t]he government need not prepare the specifications to be considered to have approved them." Kerstetter v. Pacific Scientific Co., 210 F.3d 431, 435 (5th Cir. 2000). It is sufficient if the government has given the specifications "substantive review," such as examining the drawings, evaluation from time to time, criticism and extensive government testing, or, in other words, a "continuous back and forth" between the contractor and the government. Id. This is the test adopted by the Sixth Circuit. In Tate I the Sixth Circuit found that Boyle's first condition had been met where the government and the contractors had engaged in a "back and forth" development of the tandem hooks at issue and the Army had closely reviewed the specific design of the tandem hooks. Id. at 1155. For government discretion to be found, "[t]he specifications need not address the specific defect alleged; the government need only evaluate the design feature in question." Kerstetter, 210 F.3d at 435.
Raytheon has offered the affidavit of Alden Van Winkle, an aerospace engineer with Raytheon who worked on the RC-12K. He advises that "Raytheon and the Army worked very closely together during the design, production and testing of the RC-12K," and that the development of the RC-12K was the result of "a continuous review process as to the design, flight characteristics and Operator's Manual." (Exh. CC at ¶¶ 16 32). He advises that during the years of development of the several RC-12 models. there were approximately 15 formal meetings per year between Raytheon, U.S. Army Aviation Systems Command ("AVSCOM"), U.S. Army Communications — Electronics Command ("CECOM") and mission systems contractors. (Exh. CC at ¶ 26). In between the formal meetings, many working group meetings were also conducted. (Exh. CC at ¶ 27). Face to face meetings between Raytheon and AVSCOM averaged one per month, and telephone conferences were almost daily. (Exh. CC at ¶ 28). The Engineering Work Order ("EWO") for the RC-12K was "written in response to Army communications and the Contract SOW "as modified during numerous technical discussions." (Exh. B at BEE03654). There is documentary evidence of a Critical Design Review conducted in May 1986, attended by Raytheon and Army personnel, that resulted in Raytheon and the Army each being assigned various "action items." (Exh. D). The close communications between the Army and Raytheon are further documented by the fact that there were over 30 amendments and modifications to the 1985 contract for the development of the RC-12K, and the specifications went through five revisions. (Exh. A at H/R3570-3753 Exh. C. at H/R4771).
Plaintiffs do not dispute this evidence of the back and forth nature of the communications between the Army and Raytheon during the development of the RC-12K. Plaintiffs contend, however, that Raytheon has not come forward with evidence that there were communications about the specific design feature at issue, i.e., the stability or lack of recoverability of the airplane. In their complaint Plaintiffs allege a systemic defect involving the configuration of the body, the rudder, the wings and the elevators. They contend Defendant is not entitled to the government contractor defense because that there is nothing in the record to indicate that the government approved any reasonably precise specifications with regard to the confirmation of the overall aircraft.
In Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744 (9th Cir. 1997), the Ninth Circuit reversed the entry of summary judgment in favor of the military contractor where the record established that the government was significantly involved in and approved specifications for the design of the entire helicopter, but did not address the design feature in question, i.e., the drive shaft and its components. Id. at 747. The specifications for the helicopter left the design and placement of the drive shaft and its components to the contractor. Id. at 748. "When only minimal or very general requirements are set for the contractor by the United States the [military contractor defense] is inapplicable." Id. (quoting Butler v. Ingalls Shipbuilding, Inc., 89 F.3d 582, 585 (9th Cir. 1996)). The Snell court noted that in those cases where government approval of reasonably precise specifications has been found as a matter of law, the evidence established exercise of judgment by the government in the design of the particular feature at issue. Id. (citing cases). In the absence of proof that a government official considered the design feature in question, summary judgment would not be proper. Bragg v. United States, 55 F. Supp.2d 575 (D.C. Miss. 1999).
Plaintiffs contend that with respect to the general configuration of the aircraft. the government contract for the RC-12K merely references a Raytheon standard commercial aircraft, the Model A200CT. (Exh. 1; Exh. A at H/R3340). Plaintiffs contend that while the Army required changes to the aircraft in terms of its weight, power plants and the various electronics used for intelligence gathering, the basic aircraft, fuselage, empennage, wings, horizontal stabilizer, vertical stabilizer, rudder and elevator are all the same on the RC-12K as the basic civilian model, which was entirely of Raytheon's design. Because the basic airframe is unchanged, Plaintiffs contend that Defendant cannot make the required showing that the Army used its discretion regarding the configuration of the airframe, tail, and wings of the RC-12K. Plaintiffs further contend that the Army did not specify the stability and controllability design criteria, but instead required that the aircraft meet the stability and control requirements of FAR (Federal Aviation Regulation) Part 23, which applies to civilian aircraft certificated under that Part.
Plaintiffs' argument that the RC-12K was the same as the civilian model oversimplifies and misstates the documentary evidence. Unlike Snell. the specifications for the RC-12K did not leave the design feature at issue, i.e., the configuration of the aircraft, to Raytheon. Instead, the specifications were very precise about the configuration of the aircraft. The configuration was to be "physically and functionally identical" to previous aircraft Raytheon had developed in conjunction with the Army, with certain itemized exceptions.
Raytheon has been involved in the development of Special Electronic Mission Aircraft ("SEMA") for the Army since the late 1960s. (Exh. CC at ¶¶ 3-4; Exh. Z). The primary mission of these aircraft was the collection and dissemination of electronic signals intelligence ("SIGINT"). (Exh. X at 3 ¶ 2(c)). The RC-12K evolved over many years from the Beech commercial 200 aircraft, beginning in 1973 with the Beech King Air Model 200, which was modified in contracts with the Army and Air Force to models C-12A, C-12C, C-12D, RC-12D, RC-12H, to the RC-12K. (Exh. BB at 1; Exh. AA at BEE03426, BEE03434-BEE03437). The first of the "guardrail" SIGINT series of aircraft was the RU-21, developed in the early 1970s. (Exh. Z). The aircraft in the guardrail program evolved into the larger, pressurized RC-12D, which was a modified version of the C-12D, another aircraft previously developed by the Army and Raytheon. (Exh. CC at 6 9).
Plaintiffs' argument that the airframe was purchased "off the shelf" is not consistent with the evidence of record. The Army did not simply incorporate the civilian airframe into the RC-12K. Although the Army's C-12D aircraft is described in some instances as the standard civilian model A200CT, the C-12D documentation contained in the SOW for the RC-12K contains a further notation that "[t]he aircraft airframe is of United States origin configured to meet distinctive requirements of the United States Army." (Exh. 1; Exh. A, H/R3340, ¶ 1.2). But even the Army-modified C-12D airframe was not the last word on the airframe incorporated into the RC-12K documents. The contract provides that the configuration of the RC-12K was to be "physically and functionally identical to the RC-12D, [not the C-12D] as modified to the RC-12H," and subject to four specified exceptions. (Exh. 2; Exh. A at H/R3457) (emphasis added). The RC-12D was "a highly modified version of the C-12D." (Exh. CC at ¶ 9). The RC-12H modified the design further. The RC-12K, which is based on the RC-12H, includes modifications to the outer wing panel attachment, the landing gear, avionics configuration, engines and propellers. (Exh. 2; Exh. A at H/R3457). The gross wight of the RC-12K was also increased to 16,000 pounds. (Exh. B at BEE03653). Finally, the RC-12K is designed for electronic signals intelligence gathering and accordingly has numerous antennae and wingtip pods attached to it. (See Exh. Z). These substantial additions cannot be ignored when comparing the configuration of this aircraft to the civilian A200CT.
In Kerstetter the court rejected a similar argument that the government purchased the design feature at issue — in that case a personal restraint system — "off the shelf." 210 F.3d at 437. The court noted that the government procurement officer did not order a quantity of restraint systems in the same way he would order light bulbs. Id. In upholding the district court's determination that the unrebutted evidence established that the government approved reasonably precise specifications, the Kerstetter court began by noting that "the T-34C originated as a modification of the T-34B, a plane the Navy had been using to train pilots for 20 years." Kerstetter, 210 F.3d at 437.
Similarly, the Army in this case did not simply purchase a civilian airframe "off the shelf' and add electronics to it to arrive at the RC-12K. Plaintiffs have come forward with no evidence to contradict the extensive documentation showing that the government was involved, over the course of many years, in the basic design of the RC-12K aircraft, including its airframe. The Army had extensive experience with this design. knew its limitations, and knew that by adding extra weight it was asking more from the design than it had in the past. Nevertheless, the Army chose to stay with this particular design when it ordered the RC-12K. This decision to stay with a particular design, after years of testing and flight experience, is itself evidence of the government's exercise of its discretion in choosing and approving of the design. See Dowd v. Textron, Inc., 792 F.2d 409, 412 (4th Cir. 1986) ("The length and breadth of the Army's experience with the 540 rotor system — and its decision to continue using it — amply establish government approval of the alleged design defects."). The government's approval of the configuration of the RC-12K was based upon years of substantive review and evaluation of the general configuration of the aircraft. See Trevino, 865 F.2d at 1486 ("If the government has so delegated its discretion to the contractor, mere government acceptance of the contractor's work does not resuscitate the defense unless there is approval based on substantive review and evaluation of the contractor's design choices.").
The evidence also establishes that the Army inspected and flight tested the RC-12K and approved the allegedly defective design at issue far before the accident by subsequent testing and use. See Kerstetter, 210 F.3d at 438. The RC-12K 85-50151 which is the subject of this action was deployed in 1991. It was in service seven years before the accident and had logged 4, 485 flight hours. (Exh. X at 4). Nine airplanes were delivered under the contract. All together those 9 airplanes had logged 36,000 hours. If there was a defect in the design of the RC-12K, or concern with its flight characteristics, the Army accepted it.
Defendant Raytheon has shown that the government approved reasonably precise specifications as evidenced by the Army's long term involvement in the development of the series of RC-12 models, its involvement in the specifics of the RC-12K aircraft, its approval of the aircraft after testing it, and its use of the aircraft for years before the accident. Plaintiffs have not come forward with evidence to create an issue of fact as to the first Boyle test.
B. Did the equipment conform to the specifications?
The second Boyle condition asks whether the equipment conformed to the specifications. Plaintiffs contend that the aircraft was not in conformity with government specifications because the "Army did not approve design specifications for an aircraft that was unpredictably unstable in certain flight conditions such that it could inadvertently and unexpectedly enter a spin from which recovery is not possible. (Plaintiff's answers to interrogatories. Q. 1) (Exh. DD). Plaintiffs' assertion of a non-conformity is based upon Plaintiffs' belief that because it appears that the aircraft stalled and entered a spin, there must be a defect in design or a failure to warn.
"Plaintiff believes that the aircraft as designed, manufactured and configured is capable of inadvertent unexpected entry into spins while engaged in slow flight, stalls, approaches to stall, and operation close to the minimum single engine control speed. Each of these flight modalities are prescribed in the standard training protocol for this aircraft." (Plaintiff's answers to interrogatories, Q 7.a/b Exh. DD).
There is no factual foundation for Plaintiffs' belief that the accident was caused by the instability and lack of recoverability of the aircraft. The uncontroverted evidence before this Court suggests that the design or flight characteristics of the RC-12K was not a contributing factor in the mishap. After a thorough review of the aircraft performance, weight and balance, and meteorological data, the Army concluded that the aircraft was operating within the normal operating limitations and center of gravity envelope as outlined in the training manual and that the aircraft was suitable for the mission. (Exh. X at 3 ¶ 2(c)). All records indicated that the aircraft was airworthy and that the aircraft was being operated within established weight and balance limits. (Exh. X at 4 ¶ 3(a)). "There were no indications the crew considered the aircraft other than airworthy." (Exh. X at 4, ¶ 3(a)). The Army concluded that upper airwork aircraft maneuvers possibly contributed to the accident and that the Army had been using outdated ATM tasks that put aircrews at risk. (Exh. Y at ¶ 4). As a result of the review, the training tasks involving stalls, recoveries, and flight at minimum control speed with critical engine inoperative were rewritten. (Exh. Y at ¶¶ 4-7) (Exh. W at 7-8).
However, assuming the Plaintiffs are correct in their liability theory, the question with respect to the second Boyle condition for application of the government contractor defense is not whether the equipment was defective, but whether the equipment conformed to the specifications approved by the government.
Plaintiffs contend there are issues of fact as to whether the equipment conformed to the specifications. The only example Plaintiffs cite is the Quality Assurance Instructions ("QAI") which, Plaintiffs contend, requires that the aircraft in all stalls shall be controllable. (Pl. Brief in Opposition at 11). Plaintiffs suggest that this requirement was not met because the Engineering Report Summary states that with respect to stall characteristics. "[n]o configuration was found that would make stall characteristics acceptable with 75% MCP" and it "was decided to lower the power setting to 60% torque in order to pass certification requirements." (Exh. 6).
In fact, the QAI cited by Plaintiffs states that "in all stalls, the roll and yaw shall be controllable up to the time the airplane pitches." (Exh. 5, H/R0041) (emphasis added).
"Nonconformance with a specification means more than that the ultimate design feature does not achieve its intended goal. The alleged defect must exist independently of the design itself, and must result from a deviation from the required military specifications." Kerstetter, 210 F.3d at 435. Non-conformity, for purposes of the second Boyle condition, must refer to a specific design feature rather than a general design goal. In Landgraf the Sixth Circuit cited with approval the Fourth Circuit's analysis in Kleemann v. McDonnell Douglas Corp., 890 F.2d 698, 702 (4th Cir. 1989). Landgraf, 993 F.2d at 560. In Kleeman the court distinguished between quantitative specifications that detail particular requirements to be met in manufacturing military hardware and "general qualitative specifications" promulgated during early stages of procurement. Id. at 702. The court concluded that general requirements on the "ability to withstand normal loads and prohibitions against operational failures represent little more than the hopes of participants that the project on which they are about to embark will turn out well." Id. at 703. Further, the court stated that "a product conforms to reasonably precise specifications if it satisfies `an intended configuration' even if it `may produce unintended and unwanted results.'" Id. (quoting Harduvel, 878 F.2d at 1317). See also In re Air Disaster at Ramstein Air Base, Germany, 81 F.3d 570, 575 (5th Cir. 1996) (rejecting as too general the allegation that the aircraft did not conform to the original design specification because the Air Force chose a failsafe performance specification).
It appears to this Court that the non-conformity identified by Plaintiffs is too general to be contemplated by the Boyle test. The requirement that in all stalls, the roll and yaw shall be controllable up to the time the airplane pitches is more in the nature of a general qualitative specification that expresses the hopes about the project than a reasonably precise specification.
"Extensive government involvement in the design, review, development and testing of a product, as well as extensive acceptance and use of the product following production, is evidence that the product line generally conformed with the government-approved specifications." Kerstetter, 210 F.3d at 435-36. In Tate I the Sixth Circuit held that the second Boyle condition was satisfied where the Army inspected and approved the helicopter that crashed, and the plaintiffs were unable to point to any evidence that the aircraft failed to conform with the designs, production contracts, or specifications. Tate I, 55 F.3d at 1156.
The specific aircraft involved in the accident in this case, the RC-12K 85-00151. was conditionally approved and accepted by the Army on June 10, 1987, and flown to California for installation of electronic equipment. (Exh. CC ¶ 18; Exh. E). On April 29. 1988. the Army approved and accepted RC-12K 85-00151 as conforming to specifications under the contract. (Exh. CC ¶ 19; Exh. F). The Army approved the flight characteristics of the RC-12K, and extensively tested and used the RC-12K. (Exh. CC at ¶¶ 33-34). The Army also inspected, flight tested, and approved the specific aircraft, RC-12K 85-00151. which is the subject matter of this action. (Exh. CC at ¶ 35).
The Army continued to test the RC-12K after it accepted it. The RC-12K was type certificated by the FAA as required by the contract in March of 1989. (Exh. A at H/R3457 ¶ 1.3; Exh. BB; Exh. CC at ¶ 20). In August of 1989 the Army conducted a Preliminary Airworthiness Evaluation of the RC-12K which identified a lack of adequate stall warning and a poor engine cowl securing device as deficiencies. (Exh. CC at ¶ 22). Flight tests were conducted in 1989-90 to develop modifications to the RC-12K in order to improve handling qualities involving longitudinal stability, stall characteristics, minimum control speed. lateral stability, and directional stability. (Exh. P at H/R2473). During these tests it was noted that no configuration was found that would make stall characteristics acceptable with 75% MCP. (Exh. P Exh. 6 at at H/R2498). Plaintiffs have not shown or suggested that this was a nonconformity with the specifications or that the Army was unaware of these characteristics. The 1989-90 testing resulted in action items for Raytheon and for the Army. (Exh. Q). A two-day technical coordination meeting was held, involving Raytheon and Army personnel in April 1991. Participants discussed the stall warning test, and determined that the adjustments made by Raytheon and tested by AQTD were acceptable. (Exh. R, ¶ 3). Although the RC-12K did not meet the MIL SPEC stall warning, it was closer than it had been. (Exh. R ¶ 3). The Army recommended that future RC-12Ks should be made to meet the MIL SPEC "if affordable." Id. Raytheon was instructed to revise the specification to reflect the new stall warning configuration. (Exh. S).
Defendant Raytheon has shown that the aircraft was tested, accepted and approved by the government. Plaintiffs have not shown the existence of any material fact as to whether the aircraft conformed to the government specifications. Accordingly this Court finds that the government has met the second Boyle test as a matter of law.
C. Did the supplier warn of dangers known to supplier but not the government?
The third Boyle condition asks whether the supplier warned the government of dangers known to the supplier but not the government. This third condition is designed to ensure that no incentive is created for the manufacturer to withhold knowledge of risks. Tate I, 55 F.3d at 1154. "The government contractor defense does not require a contractor to warn the government of defects about which it only should have known." Kerstetter, 210 F.3d at 436. "After Boyle, a government contractor is only responsible for warning the government of dangers about which it has actual knowledge." Trevino, 865 F.2d at 1487 (quoted in Kerstetter, 210 F.3d at 436).
Plaintiffs contend that the aircraft was not sufficiently stable in various foreseeable flight regimes, and that the aircraft could, when stalled, easily and unpredictably enter an unrecoverable spin. Plaintiffs contend there is no evidence that the government was warned of the possibility that a spin could be encountered during normal stall maneuvers or warned of the hazard of a rudder boost malfunction inducing a spin.
Plaintiffs' argument fails because Plaintiffs have not shown that Raytheon was aware of such a problem. Plaintiffs have not shown that Raytheon had any greater insight into this alleged defect than did the government. Raytheon conducted flight tests of the RC-12K from September 27, 1989 through April 12, 1990. (Exh. P, at H/R2473). The results of the flight testing were provided to the Army and were discussed in detail at a two day technical coordination meeting on April 24-25, 1990. There is no evidence in the record that any test data was withheld from the government.
Plaintiffs assert, without evidentiary support, that Raytheon did not warn the government that use of this aircraft with antennae would lead to instability. The government has responded with the uncontroverted affidavit of Van Winkle which states in pertinent part:
The Army understood that the addition of antennas, pods and weight involved a trade-off between mission capabilities and potential degradation of the flight characteristics of the RC-12K and the final configuration was developed, tested and approved by the Army with full knowledge of these trade-offs.
(Pl. Exh. CC at ¶ 40).
Raytheon has shown that the government was well aware that certain requirements it insisted on (increase in gross weight and change in power plants) compromised the design to some extent, especially in the area of stalls and stall warnings, but that after testing the government determined that it could live with those compromises. Plaintiffs have come forward with nothing to refute this evidence.
Plaintiffs have come forward with no evidence to suggest that the government was not knowledgeable of all dangers that were known to Raytheon. The Court is satisfied that Raytheon is entitled to government contractor immunity as a matter of law on the issue of design defect, and that Raytheon is accordingly entitled to summary judgment on this aspect of Plaintiffs' case.
IV.
In addition to alleging that the design of the RC-12K was defective. Plaintiffs' complaint also alleges that Raytheon failed to warn of its dangers. "Simply because the government exercises discretion in approving a design does not mean that the government considered the appropriate warnings, if any, that should accompany the product." Tate I, 55 F.3d at 1156. Accordingly, Defendant's government contractor immunity defense must be analyzed separately with respect to Plaintiffs' failure to warn claim.
The Sixth Circuit has identified the elements the government contractor must establish in order to be entitled to immunity on a failure to warn claim:
When state law would otherwise impose liability for a failure to warn of dangers in using military equipment, that law is displaced if the contractor can show: (1) the United States exercised its discretion and approved the warnings, if any; (2) the contractor provided warnings that conformed to the approved warnings; and (3) the contractor warned the United States of the dangers in the equipment's use about which the contractor knew, but the United States did not.Tate I, 55 F.3d at 1157. "[W]here the government goes beyond approval and actually determines for itself the warnings to be provided, the contractor has surely satisfied the first condition because the government exercised its discretion." Id.
The first condition of the Tate I test requires that "the United States exercised its discretion and approved the warnings, if any." 55 F.3d at 1157. In Tate v. Boeing Helicopters, 140 F.3d 654 (6th Cir. 1998) (Tate II), the court found the first condition satisfied where the Army and Boeing had carried out a "continuous back and forth" review process regarding the warnings contained in the Operator's Manual. Id. at 658.
In the failure to warn context, discretion occurs where the government is both knowledgeable and concerned about the contents of the proposed warnings before granting its approval. The government is sufficiently knowledgeable when it has a complete enough understanding of the proposed warnings to reasonably recognize which hazards have been thoroughly addressed and which have not. The government is sufficiently concerned when it demonstrates a willingness to remedy or require the remedy of any madequacies it finds in the proposed warnings. Where government knowledge and concern are exhibited through the review process, it may be fairly said that the government has decided which warnings should and should not be provided to end users.Tate II, 140 F.3d at 658. See also Kerstetter, 210 F.3d at 438 (first element satisfied in that Navy approved, changed and edited warnings in the T-34C NATOPS Flight Manual).
The uncontroverted evidence in this case reveals that the Army's review of the RC-12K Operator's Manual was extensive. Alden Van Winkle states in his affidavit that "[t]he Army was extensively involved in the development of the Operator's Manuals beginning with the RC-12D and thereafter specified or approved all warnings contained in the Operator's Manual for the RC-12K." (Exh. CC at ¶ 36). "Army personnel involved in the Operator's Manual review process conducted page by page examinations and determined the language to be used." (Exh. CC at ¶ 37). Mr. Van Winkle's statements are supported by the documentary evidence. The government began its review of the Operator's Manual in June 1988. (Exh. J at ¶ 2). Raytheon submitted additional sections to the Army that had not been available at the time of the June 1988 meeting. (Exh. J. at ¶ 2). By letter dated August 30, 1989. Raytheon sought additional comments and reconsideration of portions of the Manual from the Army before submitting the final draft of the Operators Manual. (Exh. J at ¶ 4). At a meeting from April 25 to May 1, 1990. AVSCOM reviewed the Operator's Manual line by line. (Exh. L Exh. K). Preliminary government comments relating to the RC-12K Operator's Manual were submitted to Raytheon prior to the final copy review meeting. (Exh. L). The final copy Review Meeting for the RC-12K Operator's Manual was held at Raytheon May 15-17, 1990. (Exh. N, at BEE01193). The May conference resulted in additional comments and direction from the government. (Exh. M). The Contract for the RC-12K was modified in January 16, 1991, to reflect approval of the Manual. (Exh. A, Mod P00019, at H/R3611-3619).
There is no question of fact that the Army exercised its discretion and approved the warnings that were incorporated into the RC-12K Operator's Manual.
The second condition of the Tate I test requires that the contractor provided warnings that conformed to the approved warnings. This condition is satisfied if the Operator's Manual approved by the government is identical to the manual actually provided to the flight crew. As noted by the Sixth Circuit in Tate II:
In the instant case, the specification MIL-M-63029B(AV) expressed the standard by which the Army would review the warnings in the CH-47D Operator's Manual. When the Army reviewed and ultimately approved the Operator's Manual, it implicitly determined that Boeing had met that standard. The military's interpretation of its own specifications is the very type of discretionary function that the government contractor defense is meant to insulate.140 F.3d at 659.
In this case, the Operator's Manual approved by the government was identical to the manual actually provided to the CD-40 flight crews. Therefore. Boeing has met the second condition of the Tate I analysisId.
Defendant Raytheon has presented evidence that the Operator's Manual approved by the Army was identical to the manual actually fielded by the Army. (Exh. CC ¶ 31; compare Exhs. L, M, N, A Mod P00018, H/R3662-3609 and Mod P00019, H/R3611-3619 with Exh. U). Plaintiffs have come forward with no evidence to indicate that the Operator's Manual did not conform to the warnings approved by the government.
Under the third condition of Tate I test, the government contractor must show that it "warned the United States of the dangers in the equipment's use about which the contractor knew, but the United States did not." Tate I, 55 F.3d at 1157.
Plaintiffs have come forward with no evidence to suggest that Raytheon knew of dangers that it failed to communicate to the Army. The affidavit of Van Winkle is uncontroverted. The Army understood that the addition of antennas, pods and weight involved a trade-off between mission capabilities and potential degradation of the flight characteristics of the RC-12K. The final configuration of the RC-12K was developed, tested and approved by the Army with full knowledge of these trade-offs. (Exh. CC at ¶ 40). The Army also knew that the ability of the aircraft to make a successful recovery from a spin is not known. (Exh. W at 3-4). The RC-12K Operator's Manual accordingly prohibits spins and aerobatics of any kind. (Exh. U at BEE0252).
For the reasons stated herein, the Court finds that Raytheon is entitled to government contractor immunity on both the design defect and failure to warn claims. Summary judgment will accordingly be entered in favor of Defendant Raytheon on the basis of the government contractor defense.
An order and judgment consistent with this opinion will be entered.