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HUBBS v. UNITED TECHS.

November 1, 1983

Janet A. HUBBS, Executrix of the Estate of David A. Hubbs, Deceased, et al.
v.
UNITED TECHNOLOGIES And Sikorsky Aircraft, Division of United Technologies



The opinion of the court was delivered by: HANNUM

 HANNUM, District Judge.

 This civil action arises from the crash of a Navy SH-30 helicopter near Willow Grove Naval Air Station on October 26, 1978. Representatives of the estates of three naval reservists killed in the crash brought this diversity action under the Pennsylvania wrongful death and survival statutes. Presently before the Court is defendants' motion for summary judgment.

 All parties agree that the crash was caused by a malfunction in the cyclic pitch axis control system, which controls the pitch or tilt of the helicopter. Defendants contend that the crash was caused during in-flight training maneuvers "when an improperly installed bolt in the cyclic pitch axis control system became disengaged in flight." Plaintiffs contend, however, that the crash occurred when the cyclic pitch control "disengaged in flight because of a defective fastener." The fastener system in question is designed so that when the bolt is properly installed with its designated washer, castellated nut, and cotter pin, disengagement is allegedly impossible. The castellated nut and washer are placed on the end of the bolt and the cotter pin inserted through grooves in the nut and a hole in the bolt.

 Defendants move for summary judgment based on what has commonly been termed the "government contractor defense." It is defendants' contention that they are immune from liability because the SH-30 helicopter was manufactured by Sikorsky Aircraft and supplied to the United States Navy in strict accordance with applicable Navy contractual specifications. Defendants further assert that they had no power to alter the Navy's design specifications. Although defendants specifically studied and discussed with the Navy some of the safer design features now urged by plaintiffs, the Navy specifically rejected such design changes.

 Plaintiffs allege that the cotter pin in the fastener system on the SH-30 helicopter in question fractured, permitting the nut to work loose in flight as a result of vibration, allowing the bolt to come out and disconnect the flight controls. Plaintiffs assert that this important connection should have been secured by some type of system employing a double fastener such as a self-retaining bolt with a nut and cotter key, a lock nut and a cotter key, or a double bolt with a nut and cotter key, a lock nut and a cotter key, or a double lock nut and a cotter key. Furthermore, plaintiffs argue that the flight control system should have been designed in such a way that the system would fail in mid-range, rather than allowing the helicopter to fall in an extreme nose-down position.

 A. THE GOVERNMENT CONTRACT DEFENSE

 The government contract defense has been the subject of a substantial amount of recent case law. A comprehensive analysis of the defense as it would apply to the case at bar was set forth by the Ninth Circuit in McKay v. Rockwell Intern. Corp., 704 F.2d 444, 448-50 (9th Cir.1983). In short, the government contract defense protects a government contractor from liability for acts done by him while complying with government specifications during execution of performance of a contract with the United States. The reasons for applying the government contractor defense to suppliers of military equipment with design defects approved by the government parallel those supporting the Feres-Stencel doctrine: *fn1"

 
(1.) Holding the supplier liable in government contractor cases without regard to the extent of government involvement in fixing the product's design and specifications would subvert the Feres-Stencel rule since military suppliers, despite the government's immunity, would pass the cost of accidents off to the United States. . . .
 
(2.) To hold military suppliers liable for defective designs where the United States set or approved the design specifications would thrust the judiciary into the making of military decisions. . . .
 
(3.) Trials on design defects where government specifications are at issue would "involve second-guessing military orders. . . ."
 
(4.) In setting specifications for military equipment, the United States is required by the exigencies of our defense effort to push technology towards its limits and thereby incur risks beyond those that would be acceptable for ordinary consumer goods. . . .
 
(5.) [A] government contractor defense provides incentives for suppliers of military equipment to work closely with and to consult the military authorities in ...

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