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IN RE AIR CRASH DISASTER AT MANNHEIM

May 15, 1984

In re AIR CRASH DISASTER AT MANNHEIM, GERMANY ON SEPTEMBER 11, 1982. Ursula J. Schoenborn, et al.
v.
The BOEING COMPANY



The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 This action arises out of a helicopter crash near Mannheim, West Germany on September 11, 1982. The helicopter (helicopter 22292), a United States Army CH-47C "Chinook", was designed, manufactured, and assembled in Pennsylvania by Boeing-Vertol, a division of defendant Boeing. As a result of the accident, all forty-six members of the crew and passengers on board were killed. The crash was caused by the blade to blade contact of the helicopter's tandem rotor blades due to a failure of its synchronization system.

 Numerous actions were brought against Boeing by foreign and American personal representatives and next of kin. Because the liability issues in each action were identical, this court consolidated the actions in a Memorandum Opinion and Order dated October 25, 1983, 575 F. Supp. 521, and a jury trial was held on the issue of liability only. The jury found in favor of the plaintiffs, and answered each of the special interrogatories in favor of the plaintiffs. *fn1"

 Presently before this court is the motion of the defendant for a judgment notwithstanding the verdict or, in the alternative, a new trial. For the reasons which follow, the motion is denied.

 MOTION FOR JUDGMENT N.O.V.

 To grant a motion for a judgment n.o.v., the court must find as a matter of law that the plaintiff failed to adduce sufficient facts to9justify the verdict. Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir.1970), cert. denied, 400 U.S. 826, 91 S. Ct. 51, 27 L. Ed. 2d 55 (1970); Marks v. Mobil Oil Corp., 562 F. Supp. 759, 764 (E.D.Pa.1983). The motion "may be granted only when, without weighing the evidence, there can be but one reasonable conclusion as to the proper judgment." Woodward and Dickerson, Inc. v. Yoo Hoo Beverage Co., 502 F. Supp. 395, 397 (E.D.Pa.1980), quoting Moore's Federal Practice § 50.07 [2] at 50-77. Moreover, on a motion for a judgment n.o.v., the evidence must be viewed in the light most favorable to the party against whom the motion is made and all reasonable inferences must be drawn in that party's favor. Monsen v. Consolidated Dressed Beef Co., Inc., 579 F.2d 793, 796 (3d Cir.1978), cert. denied, 439 U.S. 930, 99 S. Ct. 318, 58 L. Ed. 2d 323 (1978). Accord, Blair v. Manhattan Life Insurance Co., 692 F.2d 296, 300 (3d Cir.1982).

 In support of the motion for a judgment n.o.v., defendant first invokes the government contractor defense. "In short, the government contract defense protects a government contractor for liability for acts done by him while complying with government specifications during execution of performance of a contract with the United States." Hubbs v. United Technologies, 574 F. Supp. 96, 98 (E.D.Pa.1983). The defendant claims that it may assert the defense because helicopter 22292 was built in strict compliance with an unambiguous government contract.

 The plaintiffs, on the other hand, assert that the government contractor defense is applicable only where the specifications set forth in the contract originate with the government. Thus, they claim that the defense is unavailable in this case because the evidence purportedly shows that the government merely supplied the defendant with a general requirement governing the design of the synchronization system while the defendant was the originator of its plans and specifications. Even if the defense is applicable, the plaintiffs contend that it may be overcome by showing that the helicopter was negligently designed and was defective. Given this characterization of the government contractor defense, they aver that the defendant's negligence was an issue to submit to the jury and that the jury's finding of negligence was supported by the evidence.

 The evidence introduced at the trial tended to establish that the CH-47 helicopter was designed in the following manner: The Army submitted to Boeing mission requirements and performance specifications. 8 T.R. at 129-130. *fn2" Essentially, these mission requirements and performance specifications established the parameters of what the Army wanted the helicopter's capabilities to be, e.g. how much weight the helicopter should lift or what its dimensions should be. Pursuant to these requirements, Boeing developed detailed specifications and drawings. 8 T.R. at 129-130; 9 T.R. at 27. These specifications and drawings were submitted to and approved by the Army. 8 T.R. at 73, 130. Included in these design plans were the specifications and drawings relating to the CH-47's synchronization system, whose failure caused helicopter 22292 to crash. 8 T.R. at 121-122. Under the contract between the Army and Boeing, once the helicopters were in production, the Army's approval was required before any design changes can be made. 8 T.R. at 58. There was no contention by the plaintiffs that Boeing failed to comply with the contract specifications in manufacturing helicopter 22292. Based upon the foregoing, this court must now consider whether defendant Boeing is insulated from liability by virtue of the government contractor defense.

 The Third Circuit, applying Pennsylvania law in a diversity action, has held that the government contractor defense is available to a defendant, not only in negligence actions, but in actions brought on strict liability and breach of warranty theories as well. Brown v. Caterpillar Tractor Co., 696 F.2d 246 (3d Cir.1982). In Brown, an Army reservist was injured when a felled tree came over the blade of a bulldozer he was operating and struck him. The plaintiff sued Caterpillar claiming that he would not have been injured if the bulldozer had been equipped with a protective structure around the passenger seat.

 The Brown case has not clearly delineated the elements of the government contractor defense. However, Brown did expressly hold that a government contractor need not show that it was compelled to follow government specifications. 696 F.2d at 253-254. Thus, a contractor's assertion of the defense will not necessarily be defeated merely because the contractor could have suggested design changes different from the contract specifications. The court stated that the obligation of a contractor is to "execute the government specifications "carefully." 696 F.2d at 254. Accordingly, the Third Circuit reversed the district court's grant of summary judgment to the defendant and remanded for a determination of whether the bulldozer was defective and whether Caterpillar complied with the contract specifications.

 While the Brown court declined to make compulsion an element of the government contractor defense, it also declined to make any instance of government involvement in creating the specifications a basis for insulating a contractor from liability. Indeed, the court noted its concern for situations in which the government submits only generalized specifications. "We are particularly troubled by the scenario in which the specifications are skeletal, the contract is negotiated, and the contractor, knowing of a high risk of serious harm, fails to install a relatively inexpensive safety device." 696 F.2d at 254, n. 17. The record, however, did not present the court with this scenario. Therefore, the court declined to state what it would do if faced with it.

 A more precise statement of the proof required before a government contractor may be insulated from liability was provided by the Eastern District of New York in In re "Agent Orange " Product Liability Litigation, 534 F. Supp. 1046 (E.D.N.Y.1982). The Agent Orange approach has subsequently been adopted by two courts in this district. Hubbs v. United Technologies, 574 F. Supp. 96 (E.D.Pa.1983); Koutsoubos v. Boeing Vertol, Div. of Boeing Co., 553 F. Supp. 340 (E.D.Pa.1982). Under this approach, in order to succeed on the government contractor defense in the case sub judice, the defendant must establish the following:

 
(1) That the government established the specifications for the CH-47 helicopter;
 
(2) That the CH-47 helicopter manufactured by the defendant met the government's specifications in all material respects; and
 
(3) That the government knew as much or more than the defendant about the hazards to people that accompanied the use of the CH-47 helicopter.

 See Hubbs, 574 F. Supp. at 98; Agent Orange, 534 F. Supp. at 1055.

 With regard to the first element of the defense, the Agent Orange court stated that "all that is necessary . . . is for defendant to prove that the product it supplied was a particular product specified by the government." 534 F. Supp. at 1056. However, the court qualified this requirement by stating that, "If it should appear that the contract set forth merely a 'performance specification,' as opposed to a specified product, then the government contract defense would be far more restricted than described here." Id. As previously stated, the testimony in the case sub judice established that the Army submitted to Boeing mission requirements and performance specifications, while Boeing prepared the helicopter's specifications and drawings. This evidence was sufficient for the jury to find in special interrogatory 4 that Boeing had final control over the design of the aircraft. This case is, therefore, unlike Koutsoubos where it was shown that the Navy established both the general and detailed specifications. 553 F. Supp. at 343-344. Accordingly, we conclude that the government did not establish the specifications for the CH-47 helicopter. Therefore, we need not discuss the last two elements of the Agent Orange test.

 The defendant contends that even if the government did not establish the specifications, the defense may nevertheless be available if the government approved of them. Indeed, the Ninth Circuit so held in McKay v. Rockwell International Corp., 704 F.2d 444 (9th Cir.1983). We decline to follow the Ninth Circuit.

 McKay listed the following as elements of the government contractor defense:

 
(1) the United States is immune from liability under Feres and Stencel, (2) the supplier proves that the United States established, or approved, reasonably precise specifications for the allegedly defective military equipment, (3) the equipment conformed to those specifications, and (4) the supplier warned the United States about patent errors in the government's specifications or about dangers involved in the use of the equipment that were known to the supplier but not to the United States.

 704 F.2d at 451. The court advanced four reasons as a basis for this formulation of the defense. While these rationales may support the application of the defense where the government sets the specifications, based upon the facts in the case sub judice, we do not believe that they support its application where the government merely approves the specifications.

 First, the McKay court stated that holding a "supplier liable in government contractor cases without regard to the extent of government involvement in fixing the product's design and specification would subvert the Feres-Stencel rule since military suppliers, despite the government's immunity, would pass the costs of accidents off to the United States. . . ." Id. at 449. The Feres-Stencel doctrine bars a member of the armed forces who sustains an injury while on active duty from bringing an action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., and also precludes the United States from indemnifying a third party for damages paid by it to an armed forces member who is injured during military service. See, McKay, 704 F.2d at 448. Accordingly, with respect to the civilian plaintiffs in the case sub judice, this action would not be barred by the Feres-Stencel doctrine because they are not members of the armed forces and because the helicopter crash did not occur during a military mission. Moreover, this court is not holding the supplier liable "without regard to the extent of government involvement" in fixing the product's design. We are holding that where a contractor establishes a product's detailed specifications and the government merely approves them, the government contractor defense is not available to the contractor.

 Second, McKay asserts that where the United States approved the design specifications, the judiciary would be thrust into the making of military decisions if suppliers were held liable for design defects. Id. at 449. This reasoning, however, ignores the reality that not all decisions regarding the design of military equipment involve military judgments. In the case sub judice, the helicopter's crash was caused by the failure of the transmission synchronizing the helicopter's tandem rotor blades. Whether the helicopter is used for civilian or military purposes, the tandem rotor design requires a transmission that can synchronize the rotor blades so as to avoid their collision with one another. There is no imposition of the judiciary upon military decision making by requiring the helicopter to have a synchronization system free from defects so as to enable it to fly safely. Thus, where the design decisions involved do not require any special military expertise, there is no justification for insulating a contractor from liability where the government merely approves of the decision.

 
Third, the McKay court stated that:
 
It should be noted that 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 to incur risks beyond those that would be acceptable for ordinary consumer goods. A supplier is frequently unable to negotiate with the United States to eliminate those risks.

 Id. at 449-450. However, as previously mentioned, whether the helicopter is used for a civilian or military purpose, it must be designed so that it can fly safely. This is not a case of the Army pushing the technology to its limits. The tandem rotor design has been used by Boeing for over twenty years. Moreover, the case sub judice is not one where the supplier was unable to negotiate with the Army to eliminate the risks since it was the supplier who established the specifications in the first instance.

 Finally, McKay states that "a government contractor defense provides incentives for suppliers of military equipment to work closely with and to consult military authorities in the development and testing of equipment." Id. at 450. While this may be true when the government sets the specifications, it is not true when the specifications are established by the contractor. When the government sets the specifications, a contractor needs to know that it can consult with the government in attempting to follow the government's specifications without incurring liability on itself. However, when the contractor establishes the specifications, the contractor has no incentive to consult with the government if government approval of the specifications is sufficient to insulate a contractor from liability. Accordingly, we hold, in the case sub judice, that because Boeing established the detailed specifications and drawings of the CH-47's synchronization system, it is precluded from being insulated from liability under the government contractor defense.

 The defendant contends that this court has no basis for determining that the design of helicopter 22292 was unreasonably dangerous for the military's intended use. The defects alleged by the plaintiffs regarding the helicopter's synchronization system included, but were not limited to, the following:

 
1. Failure to have timely warning devices in the forward transmission to alert the pilot of ongoing failures;
 
2. Lack of adequate clearance between the synchronization shaft and the air frame fuselage so as to prevent contact between the shaft and the air frame structure;
 
3. Selection of improper materials for use in the manufacture of the ...

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