Opinion
IP 98-1742 C-M/S
September 30, 2002
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on a motion for summary judgment by one of the Defendants, Aeroquip-Vickers, Inc., Tedeco Division ("Tedeco"). The plaintiffs, Josephine M. Miller, for the estate of Thomas Miller, Lewis Keith Pyle, and Todd Bouslog (hereinafter, "Plaintiffs") brought a products liability suit against Tedeco, alleging that the oil debris detection system ("ODDS") manufactured by Tedeco for use in the Army's helicopter fleet failed to warn the Plaintiffs, as it was supposed to, of an impending engine failure.
The Plaintiffs contend that the design of ODDS, as retrofitted into existing Army helicopters, was faulty because it did not require the dismantling of an older, more primitive, detection system. As a result, the old system may have interfered with the effective performance of the new system. The Plaintiffs also contend that the design of ODDS was faulty because it placed the most critical piece of detection hardware in a location that was too far from the gear that cracked, rendering the detector ineffective in this particular accident. The Plaintiffs further contend that Tedeco, as the expert on such detectors, knew about these design flaws but failed to give the Army clear warning.
However, Tedeco maintains that each of the design defects alleged by the Defendants was the direct result of Army specifications which, in turn, were supported by extensive testing performed by Army engineers. While not conceding that there were any design defects, Tedeco argues that it cannot be held liable even so because it was merely carrying out the Army's instructions.
Thus, Tedeco requests that the Court find as a matter of law that the "military contractor's defense" insulates it from potential liability for the design defects alleged by the Plaintiffs. According to Tedeco, it should not be held responsible for carrying out the Army's wishes.
The Court has considered the parties' arguments and, for the reasons discussed below, finds that Tedeco did manufacture the ODDS system in accordance with reasonably precise specifications provided by Army officials. The record shows that each of the design "defects" of which the Plaintiffs now complain was built into the ODDS system as the result of deliberate decisions by the Army in pursuit of specific fleet objectives. Moreover, the Army thoroughly understood the types of trade-offs between safety and fleet efficiency that it was making when it provided Tedeco with the design specifications in question. And, the Plaintiffs have presented no evidence that Tedeco withheld knowledge of any particular dangers inherent in these design choices of which the Army was unaware.
It follows that Tedeco has made a prima facie showing that it is entitled to invoke the military contractor's defense. Because the Plaintiffs have failed to provide evidence sufficient to refute that showing, the Court hereby GRANTS Tedeco's motion for summary judgment.
I. FACTS
The relevant facts in the light most favorable to the plaintiffs are these:
On March 1, 1997, an Indiana National Guard Bell UH-1V ("Huey") helicopter crashed near Camp Atterbury in Southern Indiana, killing one occupant, Thomas Miller, and severely injuring the other two, Lewis Keith Pyle and Todd Bouslog. See Plaintiff's Designation of Evidence ("P. Evid.")-Tab 1, Second Request for Admission No. 1 and No. 22 ("RFA-1" and "RFA-22"). The crash occurred after a planetary gear located in the engine's reduction gear assembly cracked at its "root" and failed, resulting in a complete loss of torque being transmitted to the helicopter's rotors. Deposition of Ronald Green ("Green Dep.") at 27-30, P. Evid.-Tab 3.
The helicopter in question was equipped with an "advanced" oil debris detection system, ODDS, designed to detect abnormal engine wear and warn the pilot of potential engine problems, such as a gear failure. Defendant Aeroquip-Vickers' Statement of Material Facts in Support of Motion for Summary Judgment ("D. Facts"), ¶¶ 18-21, 24. A warning light is supposed to activate when metallic particles of sufficient size ("chips") are present in the engine oil. Id., ¶¶ 27-30.
The Plaintiffs speculate that the chip light did not come on as it was supposed to prior to the crash. Plaintiffs' Brief Opposing Motion for Summary Judgment ("P. Brief") at 2. The only record evidence offered by the Plaintiffs in support of this theory is a single page of the testimony of their expert witness, Philip Nine, PhD ("Nine"). Deposition of Philip Nine ("Nine Dep.") at 132 (referenced in P. Brief at 2). Nine theorized that there was a design defect in the way the ODDS system was retrofitted into the Huey helicopter which might have caused the warning light not to activate. Nine Dep. at 131-4.
In the deposition pages indicated by the Plaintiffs, Nine was first asked whether he was "talking about some operational defect in the system." Nine Dep. at 131. Nine answered: "Well, there could have been." Id. When asked whether that was "mere speculation on your part," Nine explained that a design defect is, by its very nature, something that might go wrong and place people in danger. Id. at 131-2. Then when asked exactly how that applied to this case, Nine's only answer was: "I'm using that definition of a defective design to tell you that this design was defective because that light never came on before the transmission failed." Id. at 132 (emphasis added). This quote seems to be the only record evidence supporting Plaintiffs' factual assertion that the warning light did not go on before the crash. But the Court does not see how it is evidence of any such thing. The crash which is the subject of this law suit, did not involve a transmission failure. Therefore, the Court presumes that Nine was talking about some other transmission and some other warning light.
Traditionally, the Army has attempted to identify potential component failures in the oil-wetted areas of engines and transmissions by: (a) analyzing the oil itself for metal chips; (b) inspecting filters and screens for metal chips; or (c) employing "splash-type" chip detectors. D. Facts, ¶¶ 1-3. It has long been recognized that gas turbine engines, such as the T-53 engine used in the Huey helicopters, generate a significant amount of (small) metallic debris during ordinary wear. Id. Indeed, "the Army Aviation Support community referred to the T-53 as a `dirty' engine . . . because it was well known to manufacture metal debris, both ferrous and non-ferrous, that would contaminate the oil lubrication system." Affidavit of Army aerospace engineer Wayne A. Hudgins ("Hudgins"), ¶ 5. But the theory was that, in the case of impending component failure, metal chips of larger size generally would be created. Id. Once the larger chips were detected (by one of the methods listed above), Army maintenance personnel would then be put on notice to inspect components for potential failures in progress. Id.
As originally configured, the Huey helicopters utilized a splash-type chip detector located in the sump of the accessory gear box. Id., ¶ 5. The splash-type chip detectors were small, magnetized plug-like devices, designed to capture ferrous metal debris. Id., ¶ 3. When the debris collected reached a sufficient size or quantity to bridge a gap in the detector, it would complete an electrical circuit and activate a warning light in the cockpit. Hudgins Aff., ¶ 6. This chip detection technique was generally combined with a more precise diagnostic oil analysis, known as "AOAP". Hudgins Aff., Ex. 382 at RA 288. Once a chip light was detected, maintenance personnel would then have to analyze the engine oil to determine if the problem merited further investigation. Id.
Using spectroscopic analysis.
According to Hudgins, the Army project engineer who took charge of the research and development program that resulted in the deployment of ODDS, the Army had determined by the mid-1970's that its existing splash-type chip detectors were "unreliable" for two important reasons. Id., ¶¶ 6, 10. First, the location of the (chip) in the sump was "very inefficient because only a small percentage of the [engine] oil . . . would pass by the chip detector." Id., ¶ 6. Hudgins stated: "It was our belief based on experience and testing that the [splash-type] sump detector would, at best, capture about ten percent of metal debris in the oil." Id., ¶ 18. Second, "because the engine manufactured an excessive amount of non-failure indicating metal, [some of which] would be captured by the [splash-type] detector, the detector would [frequently] accumulate . . . debris" sufficient to activate the chip light even though there was no actual or impending failure. Id., ¶ 6. According to Hudgins, some 80-90 percent of the chip light warnings experienced by pilots using the splash-type detectors were false positives, not indicating an impending or imminent failure of any kind. Id., ¶ 7. This presented a serious problem because Army procedure required pilots to make precautionary landings whenever they observed an engine chip light. Id., ¶ 20, Ex. B at 01342.
The Court notes the Plaintiffs' objection that this is an "unsupported allegation." But the importance of this alleged fact is not its statistical accuracy. Rather, it helps to explain the Army's thinking, thereby enabling the Court to ascertain just how much input the Army had in the development of the new ODDS system. Having spearheaded the effort to replace the old splash-type detectors, Hudgins is presumably competent to explain the basis for the Army's decision-making.
See footnote 2.
Thus, on the one hand, the splash-type detectors often failed to detect real component failures in progress (because the detector could only sample a small percentage of the engine oil). Id., ¶ 12, Ex. 382 at RA 288. On the other hand, false chip lights caused excessive mission aborts and precautionary landings, significantly impacting both the effectiveness and the cost of operating the Army's helicopter fleet. Id. In addition, Hudgins stated: "We . . . began to learn in the 1970's that experienced pilots in combat were actually disregarding chip detector lights and did not report them until they returned to base." Id.
As a result, the Army decided to replace the splash-type chip detectors in the T-53 engine with a more advanced system. Id., ¶ 8. Hudgins was placed in charge of that project. Id., ¶ 10.
In the meantime, Tedeco, a private company and now a Division of Aeroquip-Vickers, was developing two proprietary (patented) devices intended to provide more effective oil-filtering and debris-monitoring in gas turbine engines. Id., ¶ 6, Ex. 382 at RA 295; Affidavit of Dr. Thomas E. Tauber ("Tauber"), ¶ 4. The first was a cyclonic separator, called Lubriclone, which uses centrifugal force to separate ferrous metal particles from the main oil flow and direct them past a magnetic chip detector located in the bottom of the separator cylinder. According to Tauber, who, as Research and Development Manager at Tedeco, was involved in the development of this device, Lubriclone was designed to effect a better chip capture rate and thereby enable better component failure detection. Tauber Aff., ¶¶ 3-4, Ex. A. The second was a fuzz-indication-suppressor, called the Zapper, which was designed to reduce the number of nuisance warnings not associated with real engine failures. Id., ¶ 4. The Zapper uses an electrical discharge to "burn off" debris caught by the magnetic detector which is considered to be too small to be significant in identifying impending component failure. Id.; Hudgins Aff., Ex. 382 at RA 295.
Taken together, the two devices enabled Tedeco to design a full oil flow ("full-flow") monitoring system with a reduced number of false positives. This approach was appealing to the Army, given that its Applied Technology Laboratory ("ATL") had concluded, after having investigated "a large variety of schemes" for monitoring the condition of gas turbine engines, that "an effective full-flow chip detector would be the most accurate and practical means of diagnosis." Hudgins Aff., Ex. 382 at RA 288.
In addition, the Army had determined, by the mid-1970's, that the "fine filtration" of engine oil would prolong the life of the various engine and transmission components because metal debris in the oil tends to cause premature wear. Id., ¶ 8. Thus, in 1978, the Army began a research and development program whose purpose was to integrate the concepts of fine oil filtration with more advanced chip detection through full-flow oil monitoring. Id., ¶¶ 11-12, 14, Exs. 381 382.
It was the Army, not Tedeco, that coined the name ODDS for this research and development program. The objectives of the program were "to attain 30 percent reduction in unscheduled removals brought about by poor diagnostics, to reduce the rate of false indications in current chip detectors, and to extend the oil change intervals from 100 to 1000 hours on the engine and from 300 to 1000 hours on the transmission." Id., Ex. 382 at 288.
Tedeco supplied hardware to the Army for its testing program, notably the Lubriclone separator with chip detector and the Zapper fuzz suppressor. Tauber Aff., ¶ 6. But the Army retained full control over the research, testing, and development of an effective system, which entire program was conducted by the Army's ATL. D. Facts, ¶ 23; Hudgins Aff., ¶ 13. The ATL tested fifty Huey helicopters. Id., ¶ 11, Ex. 383, p. AV FOIA 13. Of these, thirty-eight were equipped with Lubriclone and Zapper devices, together with ultra-fine three-micron oil filters, while the remaining twelve served as a control fleet using the old splash-type chip detectors and AOAP oil-analysis procedure, together with standard (twenty-five to sixty micron) oil filters. Id.
The Army considered a number of issues concerning how to retrofit its old Huey helicopters with the new devices. In particular, it was the Army that decided to place the Lubriclone separator containing the new ODDS chip detector downstream from the main oil scavenge pump in the oil flow scavenge line and just upstream from the new three-micron filter. Hudgins Aff., ¶ 17, Ex. 382 at RA 290-3. According to Hudgins, the Army "thoroughly analyzed [this location] in terms of its effect, if any, on the ability of the ODDS engine chip detector to detect impending failures and it was determined that such location was the most appropriate." Hudgins Aff., ¶ 17.
Obviously, the detector would have to operate upstream of the filter, lest all the larger metal particles be filtered out before reaching the detector.
During testing, the Army left the old splash-type magnetic detectors in the sump of the accessory gear box. Hudgins Aff., ¶ 15, Ex. 382 at RA 297. The Army also kept the old electrical warning light connected to the pilot's cockpit. Hudgins Aff., ¶ 15. This enabled the Army to investigate every warning light, whether from the old detector or the new. Id. The test procedure required that, whenever a detector light went on, the engine had to be examined and analyzed in order "to determine the location of any wear or failure [that might be] occurring." Id.
The testing program continued for more than five years and involved 80,000 flight hours. D. Facts, ¶ 38. During that time, there was not one instance in which the old chip light gave a reliable prediction that a failure was in progress. Id.
By contrast, the new chip detectors "demonstrated high accuracy and reliability in detecting incipient failures . . . well in advance of catastrophic failures." Id., Ex. 382 (final report on ATL testing) at RA 304-7. In each and every case where engine tear-down inspection reports identified incipient failure, including impending failures of "the transmission mast bearing, input quill bearing, and gears, as well as the engine shaft bearings and accessory drive bearings," the ATL found that "the full flow-thru chip detectors provided early and repeated warnings." Id. The new system even detected "the very early stages" of problems, such as "gear scoring, bearings and seals rotating in their housings, surface fatigue of bearings, and wear of bearing cage pockets," that were not normally detected by previous standard procedures. Id.
At the same time, it was found that the old method of AOAP sampling was completely ineffective because the new 3-micron filters removed the metal particles that would ordinarily have been detected by oil analysis. Id. "AOAP samples were taken on a regular basis; however, none of the impending failures could be detected by AOAP." Id.
During testing, thirty-one engines and ten transmissions were removed for inspection. Id. Of these, fifteen engines and six transmissions were removed as a result of multiple chip detector indications. Id. "The tear-down inspection performed upon removal confirmed that" a failure was in progress in each case. Id. The remaining twenty components (sixteen engines and four transmissions) were removed, even though there was no chip light indication, in order to determine the effect of less frequent oil changes on engine wear and tear. Id. Tear-down inspection in each of these cases revealed that there was no component failure in progress. Id.
Nevertheless, the ODDS system, as originally tested, had problems that required modification. Most important, for the purposes of this case, is that the new system still triggered too many false positive lights. Hudgins Aff., Ex. 381 at RA 733. Hudgins noted in his preliminary report, dated February 1981, that "[t]est data has shown that the full flow-thru chip detectors have a very high capture efficiency," but this was resulting "in a very high number of [chip light] indications" triggered by ordinary debris rather than debris from impending failures. Id. at RA 732.
Hudgins identified four specific problem areas:
1. The chip detector was too sensitive.
2. The Lubriclone debris separator had a small cavity just below the burn-off chip detector which accumulated debris and sporadically came in contact with the indicator.
3. The wire connectors were of faulty design making them subject to damage and corrosion.
4. Filtered debris was being re-ingested into the engine because of a faulty design of the bypass system to the filter housing.
Id. at RA 733. The last three problems were easily corrected. Id. For example, Hudgins noted that, by the time of his report, the cavity in the Lubriclone separator had already been filled in, eliminating the second problem. But the problem of desensitizing the chip detector required tinkering. Id.
The ODDS system can be desensitized in two ways: (a) by widening the gap between electrodes that has to be bridged in order for the warning light to be triggered; or (b) by increasing the burn-off power of the Zapper. Hudgins stated in his 1981 report that: "The gap of the original engine detector was .055 inches, subsequently the gap was increased to .090 inches, which was shown to be satisfactory." Id. Similarly, Hudgins reported that "[t]he original transmission detector had three chip gaps of .060 inches each; these were subsequently modified to consist of two gaps measuring .100 inches each." Id.
In his 1981 report, Hudgins also explained how the "burn-off detector" operates. Hudgins Aff., Ex. 381 at RA 732. According to Hudgins, the Zapper "discharges a capacitor network after debris particles have bridged the gap of the two electrodes." Id. A "single debris particle with a cross-sectional diameter of about .003 to .005 inch or larger" that bridges the gap will easily conduct the current from this network between the electrodes without melting. Id. Thus, the warning light will be triggered. But if a number of smaller particles of "the kind . . . which frequently cause nuisance indications" accumulate to form a bridge across the gap, that bridge will be "melted through at the point of highest resistance by the discharge current." Id. Consequently, the circuit will be broken, and "the chip light [will go] out (in a pilot-initiated system) or [will] not come on (in an automatically triggered system)." Id.
Hudgins, as the Army's Project Manager in charge of Research and Development for the ODDS system, was aware of the risk associated with desensitizing the chip detector. In a paper which he and Tauber (of Tedeco) co-authored and presented at a meeting of the American Helicopter Society, the authors noted that: "the debris monitoring system can be desensitized, possibly at the expense of timely detection of more rapidly progressing failure modes." Tauber Aff., ¶ 7, Ex. 183 at AV FOIA 1363 (emphasis added).
Nevertheless, after Hudgins' 1981 report, the ATL decided to increase the gap of the engine chip detector yet again to .140 inches. Hudgins Aff., Ex. 382 at RA 301. In addition, the Army determined that the original design, in which the chip light would flutter when a particle was captured and the pilot would manually initiate the zapping process, should be replaced with an automatic system that had no flickering light. Defendant's Supplemental Statement of Material Facts ("D. Supp. Facts"), ¶ 97.
The ATL's final report concerning the testing program was issued in May of 1984. Hudgins Aff., Ex. 382 at RA 311. Its conclusions included the following:
1. The ODDS is an on-line, real-time system which reliably and accurately detects impending failures of oil-wetted components before their presence is of concern.
3. . . . [T]he use of the 3-micron filter renders the current AOAP useless.
4. . . . [O]il change intervals . . . can be safely extended to 2000 hours.
6. The system, as tested, caused a 48-percent reduction in chip light indications and the resultant precautionary landings.
7. Failure progression of any component occurs over a considerably longer period of time (at least 100 hours) than any one particular flight. [Therefore], no single chip light is of importance, since components produce many chip lights during the progression of a failure. Hence, the cockpit indicating light can be placed in the maintenance bay of the helicopter and included as a post-flight inspection item with no decrease in diagnostic effectiveness.
10. . . . [A] significant cost avoidance can be realized when the system developed under this program is incorporated in the Army fleet.
Id., p. RA 311. As a result, the ATL recommended that a "production version of ODDS including the changes shown in Appendix C" be retrofitted into the Huey helicopter fleet. Id., p. RA 312. In addition, the ODDS technology should be "incorporated in all existing aircraft" and it should be designed into "future aircraft systems" from their inception. Id. The ATL further recommended that the chip light be removed from the cockpit and, instead, placed in a maintenance bay for post-flight inspection, thereby eliminating all precautionary landings. Id. Finally, the ATL recommended that AOAP sampling and analysis be terminated. Id.
Apparently, the Army was satisfied with the results of the ODDS test program and began drafting an implementation proposal. D. Facts, ¶ 39. The initial proposal was approved by the Army's Configuration Control Board. D. Facts, ¶ 40. Approval was not based solely upon the technical features of ODDS, but also upon a cost-benefit analysis of the effect upon the overall fleet of Huey helicopters. D. Facts, ¶ 42.
In January 1985, the Commander General of the United states Army Material Command approved the plan of retrofitting ODDS into the Army's fleet of Huey helicopters. D.Facts, ¶ 43. At that point, Army Aviation Support Troop Command ("AVSCOM") engineering took charge of the ODDS program. D. Facts, ¶ 45. This required further reviews of the proposals made by the ATL. In particular, the Army's flight operation safety office at Fort Rucker rejected the idea of removing the warning light from the cockpit and placing it in the maintenance bay. D. Facts, ¶ 47.
From 1986 to 1988, the Army solicited proposals from Tedeco to produce various versions of ODDS and Tedeco responded with a series of quotations. D. Facts, ¶ 48. Each of Tedeco's proposals was, in turn, subject to evaluation, review, and analysis by Army personnel from engineering, logistics, and other Army departments. D. Facts, ¶ 49.
AVSCOM prepared a "Statement of Work," which is a normal part of the production process. D. Facts, ¶ 45. The Statement of Work, submitted to Tedeco, called for the old splash-type chip detector light to be disconnected, but prescribed that the magnetic plug itself should remain in place in the sump of the engine accessory gear box and continue to serve as a plug. D. Facts, ¶ 50. The Statement of Work also prescribed that the Lubriclone device be installed in the external oil scavenge line outside of the engine, downstream from the old (disconnected) plug and upstream from the new improved oil filter. Id., Affidavit of Eikenberry ("Eikenberry Aff."), ¶ 4, Ex. J at AV FOIA 1984.
In a 1988 quotation, as well as in meetings with Army personnel, Tedeco suggested that the old splash-type chip detectors be replaced with non-magnetic plugs, but the Army rejected Tedeco's suggestion. D. Facts, ¶ 51. There is no record that Tedeco discussed with the Army its reason(s) for making the suggestion, nor is there any record that Tedeco, itself, had any notion that the old magnetic plug would interfere with the successful functioning of the new detector. Edward A, Ritti ("Ritti"), who joined Tedeco in 1985 to work on the ODDS system, testified that he talked to AVSCOM personnel at Fort Eustis about removing the old plugs, but he could not recall the details of the discussion. Ritti Dep. at 22, 128-34. When asked his main reason for wanting to remove them, Ritti testified: "It's just sound engineering . . . [b]ecause you leave the plug in there, somebody is going to try to hook it up." Id. at 128. According to Frank DiPasquale ("DiPasquale"), Tedeco's Program Manager in charge of negotiating with the Army, he talked to AVSCOM personnel about replacing the plugs, but they just "basically . . . said no, they want to keep the chip detector in because of logistic issues. And then we just went along with their wishes." DiPasquale Dep. at 206-7.
From the Army's point of view, Hudgins stated that five years of testing with the old chip detectors in place had convinced the Army that the old chip detectors were so inefficient that they would have no adverse effect upon the new ODDS detector. Hudgins Aff., ¶¶ 15, 21. And, Charles Ezra Elkins ("Elkins") explained that the Army did have some logistical reasons for (a) leaving the old plugs in, while (b) disconnecting the electrical wiring to the cockpit. Elkins Dep. at 829-36. According to Elkins, the magnetic plug was retained, even after the ODDS system was fielded, because there were "aircraft that were not ODDS equipped [which] were still being supported. [Given that] you might get an engine or transmission that was going to the Forestry Service [for use in a helicopter] that didn't have an ODDS, you would need that chip detector, so we left them in." Elkins Dep. at 829. Elkins explained that he, as the Army's Project Manager, made the decision not to remove the old plugs. Id. Elkins further testified that Army Systems Engineering made the decision to disconnect the old plug. Elkins Dep. at 834-5. Elkins explained: "[F]alse indications are the reason that we went to the new chip detector system . . . [N]ot only chips are a major cause of chip lights, but bacteria in the oil system . . . And we get carbon and bacteria buildup in the bottom of the sumps." Elkins Dep. at 133. Thus, if the Army had left the old chip light hooked up, "it would have defeated the purpose of why we wanted the ODDS system." Elkins Dep. at 135-6.
In September of 1988, the Army issued an ODDS contract to Tedeco to produce a prototype version of ODDS, including five kits. D. Facts, ¶ 53. Even after signing the contract, the Army continued to review the functioning of the ODDS kits; for example, rejecting a suggestion by Tedeco to change the location of the filter in the transmission. D. Facts, ¶ 54. DiPasquale Dep., Ex. 439 (change proposed by Tedeco); Elkins VI, Ex. 410 (change rejected by Army engineers).
In January 1989, the Army conducted a Preliminary Design Review meeting, which involved a detailed review by the Army of the ODDS kit and technical manual. D. Facts, ¶¶ 55-6. Tedeco and the Army then proceeded to "validate" and "verify" the ODDS production kits. D. Facts, ¶ 57. This process brought about a further review by various Army offices of a number of matters relating to ODDS design, installation, and maintenance, mostly following up on the changes discussed at the Preliminary Design Review meeting. D. Facts, ¶¶ 57-8, Eikenberry Aff.,¶ 4, Exs. M and N. Following validation, a revised engineering change proposal was submitted to and approved by the Army's Configuration Control Board in December of 1989.
Minutes of a May 10, 1990, meeting between DiPasquale and AVSCOM officials show that the Army was still concerned, after further testing at Fort Rucker, that there were too many false warning lights. DiPasquale Dep., Ex. 434. DiPasquale attempted to explain that the chip detector was just doing its job, but Army engineers K. Luber and J. Foust refused to accept DiPasquale's explanation and insisted that the chip detector be desensitized further. Id. DiPasquale suggested increasing the power of the burn-off capacitor to 240 micro farads in order to increase the size of particles being burned off and thereby further reduce the sensitivity of the detector. Id., Elkins V at 821-4. Both Luber and Foust thought this was a good idea. DiPasquale Dep., Ex. 434.
Starting in January of 1991, the Army awarded a series of procurement contracts to Tedeco, covering the purchase of approximately 1,400 ODDS kits. Ritti II at 156-7. The fourth of these contracts was awarded in March of 1995. Id.
On at least two occasions after installing ODDS in the Huey fleet but prior to the crash in this case, the Army reviewed the question of whether the old chip detector should be reconnected and rewired to the cockpit. Deposition of Mark Jeude II ("Jeude") at 203-4. The first of these reviews occurred after an Army helicopter crashed at Scofield Barracks in Hawaii in 1996. See D. Facts, ¶ 62; P's Response to D. Facts ("P. Response Facts"), ¶ 62, and Defendant's Reply to P. Response Facts ("D. Reply Facts"), ¶ 62. A June, 1996, report by the Corpus Christi Army Depot — Analytical Investigation Branch ("CCAD/AIB") recommended, among other things, that "[t]he Aviation Troop Command ["ATCOM"] should consider reconnecting the [old] engine magnetic chip detector [because it] was an effective warning of impending failure." Jeude Dep. I, Ex. 129. The second review occurred after an incident involving trouble with a transmission that used an ODDS detection device. D. Reply Facts, ¶ 62. A December, 1996, report by CCAD/AIB recommended that "ATCOM engineering consider that the [old] sump chip detector . . . either be reconnected to the cockpit or removed and replaced by a non-magnetic plug [because it] may be gathering, retaining, and/or screening out the wear metal needed at the ODDS debris monitor to signal a real, non-nuisance type impending failure." Jeude Dep. II, Ex. 400.
Despite these recommendations, Army engineering determined that the ODDS system, as originally designed and currently functioning, did not need to be and should not be changed. Jeude participated in both the CCAD investigation of the helicopter crash in 1996 and in subsequent discussions about whether to follow CCAD's recommendations. Jeude Dep. II at 130-142. He stated that the Army had lots of experience with ODDS-type systems, "not only of the Huey ODDS system, but other similar lubrication and diagnostic systems in other aircraft [such as] the Black Hawk, Apache, [and] Chinook systems . . . So we know how the system works — how its supposed to work — and we knew that, in this case, the recommendation was not valid, because the system does what it's supposed to do in our opinion." Jeude Dep. I at 100. According to Jeude, the Army knew that the system was not designed to detect sudden catastrophic failures of the type that seemed to be involved in the 1996 crash. Id. "[C]hip detectors are a trending tool in that you want to catch failures as they occur over a period of time . . . It's for long-term failures again, not instantaneous failures." Jeude Dep. II at 181-2.
Furthermore, in recommending that the Army not follow the CCAD recommendation, Jeude stated that he "had no concern" about the fact that there was metallic debris stuck to the old chip detector after the crash. Jeude Dep. II at 141-2. "Because of the nature of the failure, there was plenty of debris to be caught" by both detectors. Id. Moreover, the problem that the old chip detector might mask the new chip detector did not cause special concern because "[w]e often have magnetic plugs in engines, which are not designed to be hooked up." Id.
In their list of Final Contentions, the Plaintiffs contend that the planetary gear involved in the crash suffered a "fatigue failure [that] occurred over a period of time . . . start[ing] when the subject gear shafts were first put into the carrier assembly . . . and result[ing] in a premature failure of the gears after approximately 83 hours of flying time. Plaintiff's Final Contentions, I f). The Plaintiffs' specific allegations against Tedeco are contained within Part II of their Final Contentions and are listed here in their entirety:
d) . . . Tedeco knew or should have known that [the ODDS] system would not function to provide proper warning to the pilot when installed in an aircraft where the old magnetic chip detector plug remained in the sump. The old magnetic chip detector had magnetic powers, and a magnetic field developed to the extent that any particles of iron which came within the field would be attached to the old magnetic chip detector and retained and, thus, not reach the chip detector that was a part of the cyclone unit downstream.
e) [Tedeco] knew or should have known that failures in the reduction gear assembly and the accessory gear drive might well produce iron particles and that that location was immediately adjacent to the old magnetic chip detector, whereas the new chip detector was downstream from this location and, thus, would not sense or be in a position to sense particles which were attracted to the magnetic field created by the old chip detector.
f) [Tedeco was] further negligent in not immediately informing the Army during the period of the tests and up to and including the time of the Plaintiffs' accident that allowing the old magnetic chip detector to be disconnected from the wiring circuit to the warning light in the cockpit would mean that when chips were attracted to the magnetic field of the old chip detector, the pilot would have no way of knowing.
g) [Tedeco was] further negligent in failing to warn the Army that . . . it would be necessary to remove the old magnetic chip detector and put in a non-magnetic plug of similar size in order for the [new] magnetic chip detector [that was located] downstream from the old chip detector to function properly.
h) [Tedeco was] further negligent in failing to place the [new] chip detection device in the area of the sump to allow metal debris to quickly reach the detector and warn the pilot.
i) [Tedeco] further failed to require wiring to the old magnetic plug to remain attached to a light in the cockpit so that there was adequate warning of a particle separation in the RGA or in the accessory gear drive.
II. STANDARDS A. SUMMARY JUDGMENT
Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is genuine only if the evidence is such that a jury reasonably could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id. "In deciding a motion for summary judgment, the court will conclude that there is no genuine issue as to any proposed finding of fact to which no response is set out." Hartley v. Wisconsin Bell, Incorporated 124 F.3d 887, 890 (7th Cir. 1997); Fed.R.Civ.P. 56(e).The moving party has the initial burden to show the absence of genuine issues of material fact. Schroeder v. Barth, 969 F.2d 421, 423 (7th Cir. 1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Scherer v. Rockwell Int'l Corp., 975 F.2d 356, 360 (7th Cir. 1992). The opposing party must "go beyond the pleadings" and set forth specific facts to show that a genuine issue exists. See Hong v. Children's Mem. Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993), cert. denied, 511 U.S. 1005 (1994). This burden cannot be met with conclusory statements or speculation, see Weihaupt v. American Med. Ass'n, 874 F.2d 419, 428 (7th Cir. 1989), but only with appropriate citations to relevant admissible evidence. See Local Rule 56.1; Brasic v. Heinemann's Inc., Bakeries, 121 F.3d 281, 286 (7th Cir. 1997); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994). Evidence sufficient to support every essential element of the claims on which the opposing party bears the burden of proof must be cited. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a summary judgment motion, a court must construe all facts and draw all reasonable inferences "in the light most favorable" to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). The court must review all the evidence in the record, and it may not make credibility determinations or weigh the evidence. Reeves v. Sanderson Plumbing Products Inc., 126 S.Ct. 2097, 2110 (2000). If a reasonable fact finder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). On the other hand, if the standard embraced in Rule 56(c) is met and the court determines that a reasonable jury could not find for the party opposing the motion, then summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-23; Shields Enters., 975 F.2d at 1294.
B. THE MILITARY CONTRACTOR'S DEFENSE
The potential liability of a federal government ("Government") contractor to a third party, arising from the contractor's performance of its obligations to the Government, is "an area of uniquely federal interest." Boyle v. United Technologies Corporation, 487 U.S. 500, 504-6 (1988). The "imposition of liability [upon the contractor] directly affect[s]" the ability of the Government to obtain goods of a specified design at a reasonable price. Id.
Ordinarily, under the Erie doctrine, a federal court sitting in diversity is required to apply State substantive law to resolve disputes. See Erie R. Co. v. Tomkins, 304 U.S. 64, 78 (1938) 304 U.S. (rejecting the notion of a federal common law), in comparison to Swift v. Tyson, 10 L.Ed. 865 (1842). But in an area of uniquely federal interest, federal concerns may justify pre-empting state law, even in the absence of Congressional legislation authorizing the pre-emption. Boyle, 487 U.S. at 507.
For this doctrine to apply, however, it must first be shown that a "`significant conflict' exists between an identifiable `federal policy or interest and the [operation] of state law.'" Id. (quoting Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68 (1966)). For example, if the United States were to contract for air conditioning units of a specified cooling capacity, and the required design features did not conflict with a state law duty to design the units so that they would operate safely, then a state product liability claim based upon inadequate safety features would not conflict with federal interests. Id. at 509.
To establish a general principle for determining when a significant conflict exists between federal interests and state law in the context of Government procurement, the Supreme Court looked to the Federal Tort Claims Act ("FTCA") for guidance. Id. at 511. The FTCA waives Governmental immunity and permits individuals to sue the United States under the appropriate state law for damages caused by the negligent or wrongful conduct of Government employees. 28 U.S.C. § 1346(b). But the FTCA makes an exception for "any claim . . . based upon the exercise . . . or the failure to exercise . . . a discretionary function or duty [by an] agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a) (emphasis added).
Selecting the appropriate design for military equipment is quintessentially a "discretionary function" in the sense intended by the FTCA. Boyle, 487 U.S. at 511. It requires a different cost-benefit analysis and a different risk-benefit analysis than would be required in ordinary civilian life. Id. Because the Armed Forces must make difficult "trade-off[s] between greater safety and greater combat readiness," the Government cannot be held liable, even under the FTCA, for such decisions. Id. at 511-2.
The same concerns apply if the Government hires a private contractor to do its bidding. Id. at 512. Imposing liability upon the contractor for design defects in military equipment attributable to discretionary choices made by Government officials would significantly conflict with the federal interest in maintaining a combat-ready military. Id. at 512. At a minimum, the cost to the contractor would be passed along to the Government which would, in effect, be paying damages to private individuals for the discretionary judgments of its own military officials.
Thus, to avoid undermining the very purpose of the discretionary function exception to the FTCA, the Supreme Court held that a private contractor may invoke a federal affirmative defense to potential (state) liability for design defects in the military equipment that it produces for the Government, provided that the contractor can show that:
(1) the United States approved reasonably precise specifications for the equipment;
(2) the equipment conformed to those specifications; and
(3) the contractor warned the United States about any dangers known to the contractor but not to the United States.
Id. The first two conditions ensure that a Government officer, and not merely the contractor, has exercised discretion over the particular design features alleged to have been defective. Id. The third condition ensures that the contractor does not have an incentive to withhold knowledge of risks inherent in the design, in order to obtain a contract that would ultimately shield the contractor from liability for those inherent flaws. Id.
Whether a contractor is entitled to the military contractor's defense is a question of fact for the jury to decide. Id. at 514. However, if a reasonable fact-finder could not help but conclude that all three elements of the Boyle test have been satisfied, the Court should conclude as a matter of law that the contractor is immune from liability for the design defect in question. Id.
Various circuits have elaborated upon factors which tend to show that the first element of the Boyle test has been satisfied. For example, where the contractor submitted detailed drawings to the Government at various stages of the design process, Government engineers critically reviewed those designs before approving them, and prototype models were actually tested and evaluated by the Government for several months before procurement, the Fifth Circuit held that the Government had approved "reasonably precise specifications." Stout v. Borg-Warner Corp., 933 F.2d 331 (5th Cir. 1991), cert. denied, 502 U.S. 981. Similarly, the Eleventh Circuit has held that if the design of the military hardware was the product of a "continuous back and forth" between the Government and the contractor, then the first element of the Boyle test has been satisfied. Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir. 1989). And, the Fourth Circuit noted that the "salient fact of [G]overnmental participation in the various stages of the [equipment's] development . . . establishes the military contractor defense." Kleemann v. McDonnell Douglas Corp., 890 F.2d 698, 700-1 (4th Cir. 1989), cert denied, 495 U.S. 953 (1990). In general, to invoke the defense, the contractor must show that the Government participated in critical design decisions, either by: (a) designing the alleged defect itself; (b) providing specifications to the contractor which constrained the contractor to design the product in the manner alleged to be defective; or (c) approving specifications submitted by the contractor that included the alleged defect. Harduvel, 878 F.2d at 1316; Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 998-9 (7th Cir. 1996), cert. denied, 510 U.S. 868.
Still, it is not enough if the Government merely "rubber stamps" the design proposed by the contractor. Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 747 (9th Cir. 1997); Gray v. Lockheed Aeronautical Systems, Co., 125 F.3d 1371 (11th Cir. 1997), reaff'd on remand, 155 F.3d 1343. The Government must at a minimum engage in a meaningful review, sufficient to indicate an exercise of judgment over the particular design feature alleged to be defective. Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480 (5th Cir 1989), cert. denied, 493 U.S. 935 (1989); Oliver, 96 F.3d at 999. However, the fact that the contractor also retains some discretion over the design of the equipment does not, in and of itself, negate the defense. Oliver, 96 F.3d 992, 999 (7th Cir. 1996); Curley v. Wheeled Coach, 991 F.2d 1117, 1125 (3rd Cir. 1993). What is important is that the design features in question "reflect a significant policy judgment by . . . Government officials, whether or not the contractor rather than those officials developed the design." Oliver, 96 F.3d at 999. To hold otherwise would discourage contractors from playing an active role in the design process, lest they be subject to liability for their participation. Id.
III. DISCUSSION
The Court need only consider the specific design features in the ODDS system that are alleged by the Plaintiffs in their Final Contentions to be defective. Five of the Plaintiffs' six allegations against Tedeco involve the Plaintiffs' central claim that the ODDS system failed to function properly because of the way the old chip detector was left in the engine but disconnected from the warning light in the cockpit. See II d) (Old magnetic field attracts metal particles preventing them from traveling downstream to new chip detector.); II e) (Old detector, being "immediately adjacent" to planetary gear, gobbled up all the particles from the gear failure before they could reach the new detector); II f) (Tedeco failed to warn the Army that disconnecting the old detector would leave the pilot in the dark about accumulation of metal particles on the old detector.); II g) (Tedeco failed to warn the Army that it was necessary to replace the old magnetic plug with a non-magnetic plug in order for the new chip detector to operate properly.); II i) (Tedeco failed to require the Army to keep the old chip detector wired to the cockpit.).
The sixth allegation, II h), does not involve the way the new chip detector interacted with the old one, but instead involves a complaint about the choice of location for the new Lubriclone chip detector. According to the Plaintiffs, the ODDS design was defective because the Lubriclone chip detector was not placed in the sump, closer to the planetary gear, where the old chip detector had been.
Taken together, the only design features (or choices) that the Plaintiffs have questioned are: (a) the decision to leave the old chip detector in the engine to serve as a magnetic plug; (b) the decision to disconnect the warning light that formerly signaled the pilot when ferrous debris bridged the gap on the old chip detector; and (c) the decision about the most effective place to locate the Lubriclone detector in the new full-flow chip detection system. When considering these decisions, the Court need not assess whether they were wise, or even whether they contributed in some way to the accident. The Defendant's motion for summary judgment is based upon the military contractor's defense, which in turn is rooted in the FTCA's grant of immunity to Government officials for discretionary decisions made in carrying out Government policy. But the FTCA states that the Government retains immunity from liability for such decisions, even when it abuses its discretion. Therefore, the Court need only consider whether the Government exercised significant discretion over the three critical design features in question, not whether the Government exercised its discretion correctly.
The inquiry into the exercise of discretion is generally fact-intensive. But the facts in this case, as already laid out by this Court, pretty much speak for themselves. The Army, not Tedeco, made the decision to leave the old magnetic plug in place in the sump "immediately adjacent" to the planetary gear that failed. The Army did so despite Tedeco's suggestion, repeated on several occasions, that the old magnetic plug be replaced with a non-magnetic plug. This was not a "rubber stamp" decision. The Army did not rely upon the representations of Tedeco officials or the findings of Tedeco engineers. To the contrary, the Army did extensive testing of its own, after which Army engineers became convinced that the old plug was so ineffective that it could not possibly interfere with the functioning of the new detector. The Army also identified logistical reasons for not wanting to remove the old plugs. Specifically, the Army was concerned because parts and components of helicopter engines are interchangeable, and a component from an ODDS equipped helicopter might have to be installed in a non-ODDS equipped helicopter, in which case the old detector might still prove useful. For the purpose of the military contractor's defense, it is immaterial whether the decision to leave the old plug in place was right or wrong. All that matters is that: (1) it was made by the Army (2) after careful consideration, and (3) it reflected a significant policy judgment on the part of Government officials.
How "careful" the consideration must be is still not clear from the case law. But, as already noted, a design feature that was not considered at all by the Army, or one in which the Army merely accepted the contractor's recommendations without an independent evaluation will not suffice. On the other hand, the contractor does not have the burden of proving that the Government investigated every possible ramification or safety concern resulting from its design choices. For example, in Boyle, there was no showing that the Government actually tested what would happen if a helicopter with the door opening outward rather than inward crashed into the ocean. 487 U.S. at 503-4. And in Oliver, the Seventh Circuit said it was enough that the Government "elected not to conduct any crash tests of the vehicles before or after production," given that the close proximity between fuel tank and exhaust system in the MK-48 trucks did serve a specific Government purpose. 96 F.3d at 1001.
Similarly, it was the Army, not Tedeco, that made the decision to disconnect the electrical wiring from the old magnetic plug to the cockpit. The Army's very reason for undertaking the ODDS research and development program was to address what the Army believed were significant operational difficulties with its Huey fleet, resulting from an overwhelming number of false warning lights which were causing pilots either to abort missions and make precautionary landings or to ignore the warnings and fly at their own peril. Extensive testing over five years, during which the efficacy of the old warning system was compared to the new one, confirmed the Army's belief that the old warning system was completely unreliable and that the new one was highly reliable. Thus, the decision to disconnect the wiring from the old plug so that pilots would not be distracted by all of the false warning lights also was made (1) by the Army (2) after careful consideration and (3) reflected a significant policy judgment on the part of Government officials.
Still, the Plaintiffs argue that the Army did not properly consider how "[t]he presence of the old metal chip detector [would] reduce the time necessary [for the new chip detector] to detect imminent failure of the gear." Plaintiff's Brief Opposing Tedeco's Motion for Summary Judgment ("P. Brief") at 12. According to the Plaintiffs, the Army relied upon Tedeco's expertise in matters of chip detection. P. Brief at 15, 21-3. Therefore, by inference, Tedeco was negligent, or perhaps even wilfully misleading, in failing to warn the Army that the old plug would draw particles away from the new one and that the old warning light might still be necessary to detect an impending catastrophic accident in some cases.
This argument is unequivocally contradicted by the facts. In the first place, the Plaintiffs did not make any showing that Tedeco had a reason to know, or even suspect, that the old magnetic plug would interfere with its Lubriclone chip detector. Compare Oliver, 96 F.3d at 1001 (no indication that Oshkosh possessed greater knowledge than the Government of possible explosions because Oshkosh did not conduct its own crash testing, and the record does not show that Oshkosh was aware of any such fires or explosions prior to the accident in question). In the second place, Tedeco never held itself out as advising the Army that it should or could leave the old magnetic plug in place because it would have no effect upon the Lubriclone detector. It was the Army that concluded, after extensive testing, that the old plug would have little or no effect. In the third place, Army engineers fully understood the operating principles of the magnetic plugs and the accompanying warning lights. In particular, they did not need to be told that the old magnetic plug might capture ferrous material before it reached the new detector. The Army knew this from the start, as any competent engineer would. Nevertheless, the Army believed that the old plug would have little effect upon the new detector, a belief that was supported by the Army's own finding that only about ten percent of the engine oil actually passed by the old chip detectors, whereas 100 percent of the oil would pass by the new detectors. In the fourth place, the record shows that the Army tested the very problem in question. Based upon some 40 engine tear-downs in which the ferrous build-up on the magnetic plugs was investigated, the Army made an empirical finding that the old plug was not masking the new detector and therefore did not need to be wired to the cockpit as a precautionary measure.
Indeed, the Army concluded that the Lubriclone chip detector had a "very high capture efficiency" even when the old plugs were left in, and that the Lubriclone detector "demonstrated high accuracy and reliability in detecting incipient failures." On that basis, the Army appears to have decided that the extra margin of safety gained by making the pilot aware of every instance when a metal particle bridges the gap in the old plug is not worth the loss of operational efficiency from all the false warning lights that would result. This is precisely the type of discretionary decision that the military contractor defense is intended to protect.
The Court recognizes that the Army may have given too little weight to safety issues in drawing this conclusion. But, if so, the Army's mistake was based upon its own testing, not Tedeco's representations. The test protocol required that both the old detector and the new detector be connected to the cockpit. Thus, the Army did investigate the interaction of the two systems. If the old detector were screening out particles from the new detector, the old chip detector light would have warned the pilot of an impending failure in cases where the new chip detector did not. The Army explicitly found that there was not one instance, during five years and 80,000 flight-miles of testing, when this phenomenon occurred.
The Plaintiffs acknowledge the extensive nature of the Army's testing, but argue, in effect, that the Army's testing program was scientifically inadequate because the Army did not run any of the engines to the point of complete failure. P. Brief at 23. According to the Plaintiffs' expert, Dr. Phillip Nine, running an engine to complete failure is necessary to fully gauge the effectiveness of both warning systems. P. Evid., Tab 4 at 208-9. However, the Court finds that this argument is not persuasive, given the fact that the warning systems are only intended to predict slowly progressing failures, not instantaneous catastrophic events. Slowly progressing failures would, presumably, be detected by the kind of engine and transmission tear-downs that the Army performed during testing.
But even assuming, for the sake of argument, that the Army's test design was not scientifically optimal in comparing the two warning systems, the Court finds that no reasonable fact-finder could conclude that Tedeco was responsible for that inadequacy. There is no evidence that Tedeco had any input into the Army's testing procedure. Nor is there any evidence that Tedeco had reason to believe that Army engineers did not understand what they were doing. The Army took full charge of the testing program and conducted five years of testing.
In Oliver, the Government's crash testing was not only inadequate; it was non existent. 96 F.3d at 1001 But the Seventh Circuit still held that Governmental discretion was exercised when the Government took charge of the testing. The same is true in this case. The Army exercised its own discretion in testing the ODDS system, before deciding to install that system into its Huey fleet.
Furthermore, the Army reviewed its design decisions, after ODDS was fully installed, as a result of a helicopter crash (due to engine failure) in 1996. In the first stage of that review, Army investigators at CCAD recommended that the old plugs be reconnected to the cockpit. There can be no question that the Army understood the issue. CCAD's investigative report explicitly stated that if the old plug had been connected, it might have warned the pilot about the impending failure before the crash occurred. Nevertheless, after further review, the Army decided not to reconnect the old plugs, even in the face of the 1996 crash. The Court cannot see how any rational fact-finder could attribute that decision to Tedeco, or how it could be characterized as rubber-stamping some design decisions previously made by Tedeco.
Finally, the Plaintiffs have offered no evidence that Tedeco gave any input to the Army about the best location for the Lubriclone chip detector. To the contrary, the uncontradicted testimony of Hudgins shows that it was the Army's choice to place the Lubriclone detector downstream from the main oil scavenge pump in the oil flow scavenge line and just upstream from the new three-micron filter. According to Hudgins, this decision was made after a thorough analysis of the likely effect of the location upon the ability of the ODDS chip detector to identify impending failures. Once this decision was made, it was confirmed by the extensive testing that followed. As already noted, that testing showed that the new detector was highly reliable (indeed, 100 percent reliable according to the Army) in the location chosen, even given the fact that the old magnetic plug had been left in place.
Thus, by the time that the Army was ready to move from the research and development stage to full-scale production, the three relevant design decisions, which the Plaintiffs allege were faulty, had been made. The Army prepared a work order in which it instructed Tedeco to leave the old magnetic plugs in, but disconnect them from the cockpit. The work order also instructed Tedeco as to the desired location for the Lubriclone detector. There is no allegation that Tedeco failed to design its ODDS kits in accordance with the Army's specifications on these three points.
Because the Court finds that there is no question that the Army exercised primary discretion over each of the design features that the Plaintiffs allege to have been defective, and because there is no evidence that Tedeco withheld knowledge from the Army of a likelihood that the old plugs might significantly impede the Lubriclone detector `s ability to work as intended, there would seem to be little need to go through the three prongs of the Boyle test in this case. However, for the sake of thoroughness and in order to specifically address the Plaintiffs' remaining arguments, the Court will proceed with the Boyle analysis.
In Boyle, the Supreme Court merely stated that the three prongs provide a sufficient condition for granting immunity to liability. The Supreme Court did not say whether these conditions necessarily must be established to invoke the military contractor's defense.
The Plaintiffs argue first that the Court need not even consider the three prongs of the Boyle test because Tedeco has failed to show that a significant conflict exists between the Government's interest in purchasing an oil filtration and monitoring system and the operation of Indiana products liability law. P. Brief at 8. The Plaintiffs liken their case to the example of the air conditioning unit which met Government standards for cooling capacity but did not meet state safety requirements. P. Brief at 8. According to the Plaintiffs, there is no conceivable conflict. P. Brief at 9. "Indiana impose[s] a duty of care upon Tedeco to design a reasonably safe oil filtration system." Id. The Government certainly does not have an interest in an unsafe system.
In making this argument, the Plaintiffs misread Boyle. The Supreme Court actually held that: if military procurement officials exercise meaningful discretion with regard to a design feature which state law brands as defective, then a significant conflict between federal interests in that particular design feature and state law has, in fact, been established. The Supreme Court further held that a military contractor can demonstrate this fact by showing that the Government provided "reasonably precise specifications" and the contractor designed a product that met those specifications. Thus, the existence of a significant conflict is embodied in the first two prongs of the Boyle test. There is no need for the contractor to make a separate showing that a significant conflict exists.
That being so, the Plaintiffs next argue that the Army could not have approved reasonably precise specifications of Tedeco's "proprietary . . . oil filtration system" in any event, because Tedeco did not let the Army see all of the detailed drawings of that system. P. Brief at 14-15. This argument is unacceptably vague because the Plaintiffs never define what they mean by Tedeco's "oil filtration system." The Plaintiffs imply that the phrase refers to everything about the ODDS production kits which Tedeco eventually manufactured, thereby suggesting that Tedeco kept all the features of that system hidden from the Army. But, on page eight of their brief, the Plaintiffs give a pretty clear indication of their true meaning. There, the Plaintiffs attempt to justify the claim that Tedeco's "oil detection system" was proprietary and designed solely by Tedeco. But the only evidence the Plaintiffs cite is the two devices patented by Tauber in 1978 and 1981, i.e. the Lubriclone detector and the Zapper. Therefore, the Court concludes that there is no factual basis in the record for concluding that any other aspects of ODDS, other than the internal workings of the two devices, were kept secret from the Army. The Plaintiffs' vague implications that Tedeco kept the entire ODDS system secret, as it was finally designed and retrofitted into the Huey helicopter fleet, are simply unsupportable.
The Court further notes that the Plaintiffs cited the Deposition of DiPasquale at 164 for the proposition that there were some drawings of Tedeco's "oil filtration system design" that the Army did not see. P. Brief at 15. But DiPasquale's testimony does not specify what those drawing were. As far as the Court can tell from the record, those drawings are not even at issue in this case.
It also is not clear that there is sufficient record evidence to show the narrow alleged fact that Tedeco withheld information about the internal workings of its Lubriclone detector or Zapper. But even assuming that this was so, the Court fails to see why that fact is relevant. The Plaintiffs have not contested that the Zapper, acting alone, is defective at "zapping", or that the Lubriclone detector is defective at detecting. Therefore, the Court concludes that the facts that can (arguably) be supported by the record are insufficient to establish a basis for the Plaintiffs' argument.
Moreover, the Plaintiffs' argument is incorrect as a matter of law. In effect, the Plaintiffs seek a per se ruling that: "If the Army never saw Tedeco's drawings, they could not have approved reasonably precise specifications." P. Brief at 15. But that is not the test. While careful examination of drawings may be one way of showing that the Army approved reasonably precise specifications, it is certainly not the only way to prove that Government officials exercised meaningful discretion over the relevant design features.
Army engineers had a clear understanding of how oil flows through a helicopter engine. The Army did not need Tedeco's detailed blueprints of the inner workings of the Lubriclone detector in order to assess where to place that detector within the helicopter engine. And, even assuming for the sake of argument that Tedeco withheld some drawings regarding the final implementation of the ODDS system, the Army knew full well where the old plugs were located in the helicopter engine and where the new detector was located. Therefore, Army engineers were fully capable of assessing, even without Tedeco's proprietary drawings, whether the old magnetic plugs should be removed and replaced with non-magnetic plugs, or whether they should be disconnected from the cockpit.
The Plaintiffs state that "the [G]overnment accepted decisions made by Tedeco about their oil filtration system design" because the Government did not have access to Tedeco's drawings. P. Brief at 15. But this claim is too vague to create a question of fact with respect to Tedeco's affirmative defense.
The Plaintiffs do not identify what drawings the Army did not have access to; they do not explain why those drawings might have affected the Army's decision-making; they do not identify what decisions were allegedly made by Tedeco rather than the Army; and they do not explain why those decisions, if any, were relevant to the Plaintiffs' allegations.
Army engineers made their decisions after extensive independent empirical testing. There is no evidence that the Army's final decision to leave the old magnetic plugs in place while disconnecting them from the cockpit was predicated upon ignorance of some unspecified proprietary information.
Therefore, the Court finds that the Plaintiffs' entire argument with respect to the first prong of the military contractor's defense has no merit. Even if Tedeco did withhold all detailed drawings of its plans for building the ODDS kits, the fact remains that the defects of which the Plaintiffs complain resulted from the Army's own specifications.
Again, the Oliver case provides compelling precedent. In Oliver, an Army MK-48 supply truck exploded after colliding with another vehicle. 96 F.3d at 995. The Plaintiffs claimed that the explosion resulted from a faulty design in which the muffler was located dangerously close to the right-side fuel tank. Id. After noting that the military contractor's defense "depends significantly on the extent of government participation in the . . . design, testing, and production phases of the . . . procurement process," the Seventh Circuit looked to that process to determine if the defense should apply. Id. at 996.
The Seventh Circuit observed that the Marine Corps first concluded in the 1970's that a heavy duty truck was necessary to meet its future needs. Id. The Marine Corps then defined its operational, performance, and containment specifications in detail and requested proposals from commercial truck manufacturers. Id. After evaluating those proposals, the Marine Corps selected Oshkosh Truck Corporation to design prototype trucks. Id.
Oshkosh then had further design discussions with the Marine Corps before building prototype trucks. Id. At that point, the Marine Corps assumed complete responsibility for testing the prototypes. Id. After extensive testing, the Marine Corps identified hundreds of changes that would have to be made. Id. These changes were all incorporated by Oshkosh into the final design of the MK-48. Id.
The most relevant design modifications involved the fuel tanks. Oshkosh originally proposed that the truck should have a single fifty-gallon fuel tank on the left side of the vehicle with the exhaust system on the right. Id. However, the Marine Corps increased its fuel capacity requirements. Id. As a result, Oshkosh proposed two fifty-gallon fuel tanks, one on the left side and one on the right. Id. at 996-7. The Marine Corps determined that this still was not enough. Id. at 997. Oshkosh then proposed a design in which there were two seventy-five gallon tanks, one on each side. Id. The Marine Corps accepted this, but then subsequently imposed a further constraint that the overall height of the truck be lowered by six inches, thus forcing the exhaust pipe six inches closer to the fuel tank. Id.
The Seventh Circuit found that, even though Oshkosh retained a great deal of discretion about how to design the trucks and even some discretion about how to add additional fuel capacity, the constraints on the entire system imposed by the Government's specifications amounted to the kind of reasonably precise specifications sufficient to meet the first element of the Boyle test. Id. at 998-9. The key facts were that: (a) the Government worked closely with Oshkosh in the design process; (b) the Marine Corps exercised discretionary control through a series of performance and dimension specifications; (c) the Marine Corps explicitly modified the design requirements twice with respect to fuel capacity and once with respect to overall height; and (d) the Marine Corps conducted extensive testing of prototype trucks with the two seventy-five gallon tanks in place, thereby implicitly approving the design. Id.
The extent of the Army's involvement with the relevant design features of ODDS is, if anything, more substantial than the Marine Corps' involvement with the design of its trucks. Although Tedeco provided the Zapper and Lubriclone devices, the rest of the ODDS design, as retrofitted into the Huey helicopter, was developed primarily by the Army. The Army did not just provide general performance and dimension specifications, it specified in detail all of the particular design features that the Plaintiffs allege to have been defective. In addition, with respect to the Zapper and Lubriclone devices, the Army provided performance specifications, and modified those specifications on at least three separate occasions to make the detection system less sensitive. Finally, the Army conducted extensive testing of prototype helicopters. Indeed, unlike the Marine Corps, which did not perform specific tests to see if the fuel tank was too close to the exhaust system, the Army did perform tests to see if the old magnetic plugs were interfering with the successful performance of the new chip detectors.
The Seventh Circuit found in Oliver that "[t]he district court was justified in concluding, as a matter of law," that Oshkosh had successfully established the first element of the Boyle test. Id. at 999. Therefore, this Court finds that Tedeco has established the first element of the Boyle test, as a matter of law.
As for the third element of the defense, the Plaintiffs claim that Tedeco "failed to warn the [G]overnment of known dangers in the use of [the ODDS] oil filtration system." P. Brief at 21. Significantly, the Plaintiffs misstate the test. There is no requirement that the military contractor warn the Government of every danger of which it can conceive. The proper question is whether the contractor informed the Government of dangers known to it but not to the Government.
The three particular warnings addressed in the Plaintiffs' brief are: (1) Tedeco failed to warn the Army about the "danger of leaving the old magnetic chip detector installed;" (2) Tedeco failed to warn the Army about the danger of disconnecting the warning light from the old chip detector; and (3) Tedeco failed to warn the Army about "the danger of `zapping' metal particles in the engine oil associated with gear wear." P. Brief at 21-3.
The Court notes that the language of "failing to warn" suggests the possibility of an independent claim involving the warnings which Tedeco provided about the proper way to use the ODDS system. But it is clear from a careful reading of the Plaintiffs' Final Contentions, as well as from the Plaintiffs' Brief, that that is not what was intended here. The Plaintiffs merely intended to address the third element of the Boyle defense.
With regard to the first two complaints, the Plaintiffs's entire argument consists of citing Ritti's testimony, as a Tedeco official, that he believed removal of the old chip detector would have been "sound engineering," together with noting that "merely recommend[ing]" that the old plugs be removed "without explaining the dangers of leaving [them] in" would not be a sufficient warning under the Boyle test. P. Brief at 21.
This argument is flawed because it quotes Ritti out of context. As cited in the Fact section above, Ritti actually said that: "it's just sound engineering . . . [b]ecause you leave the plug in there, somebody is going to try to hook it up." He did not indicate that he, or Tedeco, perceived any special danger that the Army did not recognize.
Of course, the military contractor's defense is an affirmative defense. Therefore, the burden lies with Tedeco to show that it did make the Army aware of any special dangers, known to Tedeco but not to the Army, with regard to the intended retrofit of the Lubriclone and Zapper technology into the Huey helicopter fleet. But the Court finds that Tedeco has met its prima facie burden by its very showing that Army engineers developed the ODDS system and did all the testing for the system themselves. As a result, Tedeco's recommendation to replace the old magnetic plugs with non-magnetic plugs was not addressed to bureaucrats who had no clue how the old plugs worked or how they might affect the performance of the new detectors. Tedeco made its recommendation to Army engineers who were fully aware of the significance of these functions and who had extensive experience with the interaction between the old plugs and the new detectors, after five years and 80,000 flight-miles of testing. A rational trier-of-fact would have to infer, based upon this record, that the Army knew at least as much as Tedeco about the potential dangers of leaving the old magnetic plugs in place while disconnecting them from the cockpit, and that Army engineers took that knowledge into account when rejecting Tedeco's recommendation.
Because Tedeco has presented prima facie evidence denying that it knew of any dangers entailed in leaving the old plugs in place of which the Army was not aware, the burden shifts to the Plaintiffs to present concrete evidence that Tedeco did know of some particular danger that was unknown to the Army. Ritti's general statement that it would be "sound engineering" to remove the old plugs is not sufficient to raise a material question of fact about any such particularized danger. Therefore, the Court finds that Tedeco has established the third element of the Boyle test, as a matter of law, with respect to the first two complaints.
With regard to the third complaint, the Plaintiffs rely upon the expert testimony of Ronald Green, which the Plaintiffs characterize as showing that there was "an abnormal amount of premature wear on the planetary gears [that] deposited metal into the oil system for approximately 83 hours" (emphasis added), but that the abnormal wear was only "producing very small [bits of metal] that [were] burned off by the Zapper." Green Dep., P. Evid., Tab 3 at 181-3, 363, 365-7. Thus, the Plaintiffs imply that the very idea of using the Zapper in an oil-detection monitoring system was unsound and inherently dangerous because the Zapper melts down small metal particles that could be necessary (in some situations) for detecting impending failures.
On two separate occasions, Green explicitly rejected the interrogating lawyer's attempt to characterize the abnormal wear as taking place over 83 hours. Green Dep. at 181-3. But Green did say that it was going on for a long time. Green also stated that the abnormal wear was occurring on the outside of the gear teeth, and did not cause the crack at the root of the planetary gear that resulted in engine failure. Green Dep. at 363. Green further characterized the wear as the kind of particles that were less than 3 microns in size and ordinarily characterized as fuzz. Green Dep. at 365-7. Therefore, the Court is unclear about why this wear should be characterized as abnormal rather than normal. Furthermore, the Plaintiffs did not provide record evidence showing what kind of tests Green actually performed to serve as the basis for his opinion. However, for the sake of this discussion, the Court will accept the Plaintiffs' characterization of Green's testimony.
Whether or not this theory of the case has any merit, the Court finds that it is untimely. As far as the Court can tell, the Plaintiffs introduced this theory for the first time in its brief opposing summary judgment. Nothing in the Plaintiffs' Final Contentions list suggests that the Plaintiffs believed that the use of a Zapper-like device would render an ODDS-type system inherently unsafe. Therefore, Tedeco had no opportunity to prepare a defense against this theory.
Moreover, even giving the Plaintiffs' new theory full consideration, the Court finds that it, too, would succumb to the military contractor's defense. In effect, the Plaintiffs are not claiming that the Zapper did not work as intended. The only alleged design defect is that the Zapper burns off so-called "fuzz" in the two to three micron range, just as it was designed to do, but that such fuzz should not be burned off because it might signify "abnormal wear" of the gears.
Whether to burn off fuzz is undoubtedly the central question that the Army considered from the start of its ODDS program. The Army selected Tedeco's proposed system because burning off (i.e. melting) fuzz seemed like the best way to eliminate false warning lights while preserving true warning lights. The Army then tested the Zapper and Lubriclone technology and found that the two devices worked together as planned and were extremely effective at detecting impending failures, even when the old magnetic plugs were left in the engine. The main problem that the Army observed was that the system was still too sensitive. Therefore, on two separate occasions during testing, the Army ordered that the sensitivity be decreased (by increasing the gap between electrodes in the detector). Still, the Army found that there were too many false warning lights. When a Tedeco engineer suggested increasing the power on the Zapper to 2,400 micro farads so that larger particles would be burned off, the Army engineers approved the idea, knowing full well that it entailed a trade-off between greater safety and fewer mission aborts.
It is true that Tedeco designed the Zapper and the Lubriclone detector without any specific Army input. It is also true that Tedeco made the adjustments in sensitivity that the Army required. But the evidence is uncontested that the Army, not Tedeco, made the decision about what size particles should be burned off by ODDS system. The Plaintiffs do not contend that the design of the Zapper was defective in the sense that it burned off particles larger that the Army intended. The Plaintiffs merely contend that Tedeco should have told the Army that using the Zapper (or using the Zapper at 2,400 micro farads) was a bad idea because it was possible that the Zapper might burn off particles that otherwise would have indicated an impending failure.
But the fact is that, even if it was a bad idea to use the Zapper, it was the Army's bad idea. Tedeco's hardware worked as the Army wanted it to work. And there is nothing in the record to suggest that Tedeco knew something about running the Zapper at 2,400 micro farads which would have made Tedeco aware that it was more dangerous than the Army realized. Therefore, even if this design defect theory had been properly placed before the Court, the Court would have found that Tedeco was immune from liability because this alleged defect, too, was primarily the result of discretionary decisions made by the Army.
IV. CONCLUSION
Tedeco manufactured the ODDS warning system which the Plaintiffs allege was defective. The heart of that system featured two proprietary devices, the Zapper and the Lubriclone chip detector, which were designed by Tedeco without the Army's input.
However, it is uncontested that the Army took the lead role in researching, developing, and testing the optimal configurations for ODDS. And, the record shows that every other design decision embodied in the ODDS system, as ultimately deployed in the Huey helicopter fleet, was either made by the Army itself or made after substantial back-and-forth consulting between the Army and Tedeco.
In particular, after exhaustive testing, Army engineers made all three of the critical design decisions that the Plaintiffs allege to have been faulty. It was the Army, not Tedeco, which chose to leave the old magnetic plugs in place in the sump of the Huey engines where they might attract particles that would otherwise be detected by ODDS. It was the Army, not Tedeco, which chose to disconnect the warning lights from the old plugs to the cockpits so that pilots would not be made aware when the old plugs happened to capture bits of ferrous material. And, it was the Army, not Tedeco, which chose what it thought would be the best location for the new Lubriclone detectors within the engine oil flow.
The claim that Army engineers did not understand what they were doing when they made these decisions, and merely relied blindly upon Tedeco's expertise is simply not credible. In the first place, the Plaintiffs have not pointed to any record evidence that Tedeco actually made any design recommendations to the Army which formed the basis for the Army's subsequent design decisions that the Plaintiffs allege to have been faulty. In the second place, to assume, after five years of testing, that Army engineers had no understanding of the principles implicated in these design decisions would be to assume that Army engineers are the kind of incompetents depicted in Catch-22. It would not be reasonable for a trier-of-fact to draw such a conclusion.
Therefore, the Court finds that Tedeco has established, beyond refutation, that it followed reasonably precise specifications from the Army when it manufactured ODDS kits with the particular design features questioned by the Plaintiffs. Tedeco has also established, beyond refutation, that the Army understood the nature of the risks entailed in making those design specifications. And, the Plaintiffs have not presented any evidence that Tedeco became aware of some special risk(s) inherent in the ODDS design of which the Army was not aware.
It follows that Tedeco has satisfied the Boyle test as a matter of law, making it immune from liability for the design defects of which the Plaintiffs complain. Therefore the Court GRANTS Tedeco's request for summary judgment.