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In re Air Crash Disaster at Mannheim Germany on 9/11/82

June 28, 1985

IN RE AIR CRASH DISASTER AT MANNHEIM GERMANY ON 9/11/82 (D.C. MDL #555) URSULA J. SCHOENBORN, AS EXECUTRIX OF THE ESTATE OF LEON EDWARD SCHOENBORN, DECEASED
v.
THE BOEING COMPANY (D.C. CIVIL NO. 82-4339) THE BOEING COMPANY, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. No. MDL #555.

Author: Garth

BEFORE: HUNTER and GARTH, Circuit Judges, and GERRY, District Judge*fn*

Opinion OF THE COURT

GARTH, Circuit Judge:

This appeal requires us once again to explore the parameters of the government contractor defense in product liability actions involving an alleged design defect. See Koutsoubos v. Boeing Vertol, 755 F.2d 352 (3d Cir. 1985); Brown v. Caterpillar Tractor Co. 741 F.2d 656 (3d Cir. 1984).

Plaintiffs in this action are the survivors and personal representatives of servicemen who died in the crash of a Boeing-Vertol helicopter near Mannheim, West Germany, on September 11, 1982. In answering special interrogatories, a jury found Boeing liable to the plaintiffs. Because we find that the government contractor defense applies to this claim and that the district court erred in submitting the case to the jury, we reverse and remand the case for entry of judgment notwithstanding the verdict in favor of Boeing-Vertol.

I.

On September 11, 1982, a helicopter crashed near Mannheim, West Germany. The helicopter, a U.S. Army CH-47C "Chinook" (No. 22292), was manufactured and assembled in Pennsylvania by Boeing-Vertol, a division of Boeing. As a result of the accident, all forty-six crew members and passengers on board were killed.

On the date that the accident occurred, Helicopter 22292 was carrying a number of British, French, and German parachutists who planned to jump when the helicopter reached an altitude of 12,000 feet. At approximately 10,500 feet, the helicopter began to descend and notified ground control that it was returning for landing. The helicopter's pilot stated that he had heard a noise from the rear of the craft and that a flicker had been observed on the master caution panel. At between 800 and 1,000 feet, pieces of the helicopter then began to fall, including the aft (rear) rotor blades, followed by the aft transmission. The helicopter then turned 180 degrees, lost airspeed and fell vertically. It exploded and burned on impact.

An understanding of the mechanics of the helicopter transmission is essential to an understanding of the issues raised in this case. Helicopter 22292 was a tandem-rotor helicopter on which the paths of the forward and aft rotor blades intersected. To ensure proper flight, all components of the drive system that transmitted power to the forward and aft rotor blades had to be synchronized.

Power from engines in the rear of the aircraft was transmitted to the forward and aft transmissions through a drive train consisting of aluminum shafts linked to each other by flexible couplings suspended within a protective tunnel along the top of the helicopter airframe. These shafts, which linked together, formed the synchronizing or "sync" shaft which rotated at a constant speed. The design clearance between the sync shaft and the tunnel floor was 0.5 inches, plus or minus normal manufacturing tolerances. This clearance was uniform throughout the tunnel, including at Station 120, the point at which the sync shaft fractured due to contact and friction.

The forward-most section of the sync shaft was connected to the pinion shaft. The pinion shaft, a thick steel cylinder with a gear on the forward end, meshed with the main transmission gears that drive the forward rotor blades. The pinion shaft was held in place within the transmission by three sets of steel bearings which, in normal operation, permitted the pinion to move no more than .0081 of a degree from dead center. The pinion bearings required adequate lubrication to function properly.

Post-accident investigation suggested the following sequence of events: (1) the pinion assembly of the forward transmission failed due to insufficient lubrication because of clogged oil jets; (2) the forward synchronizing driveshaft was severed by contact with an airframe bulkhead; and (3) the forward rotor blades struck and severed the aft rotor blades.

Helicopter 22292 was built by Boeing under a 1974 government contract. Helicopters of the Chinook type were first developed by Boeing and the Army in the 1960's. Boeing developed the CH-47 design in response to Army mission and performance requirements. The Army approved the design, inspected prototypes, implemented design changes, then approved the design for production in the early 1960's. In 1966, two prior accidents involving Chinook helicopters (Nos. B-67 and B-75) were investigated by both the Army and Boeing. In each instance, Boeing concluded that lubrication starvation caused bearing failures which, in turn, caused the pinion shaft to be displaced. This displacement resulted in the ultimate failure of the synchronizing shaft. As a consequence of these investigations, Boeing suggested multiple design changes in the forward transmission system.*fn1 The Army approved certain changes, but rejected a proposed change which would have provided a separate oil line leading to the pinion bearings and equipped with a fine-mesh screen to filter out particles (Engineering Change Proposal (ECP) 422) (see note 1C below.

As a result of the Mannheim crash, numerous actions were brought against Boeing by foreign and American personal representatives and next-of-kin.*fn2 The asserted theories of liability included breach of warranty, negligence, and strict liability under section 402A of the Restatement (Second) of Torts. By order of October 25, 1983, the District Court for the Eastern District of Pennsylvania consolidated all cases for purposes of trial on the issue of liability. In Re Air Crash Disaster at Mannheim, Germany, 575 F. Supp. 521 (E.D. Pa. 1983). The court further decided that Pennsylvania law would control all issues of liability in all cases and that, with respect to the foreign plaintiffs' damage claims, Pennsylvania law would also govern. 575 F. Supp. at 527.

Trial was bifurcated with the issues of liability and damages to be tried separately. A jury trial was held on the issue of liability. Plaintiffs called several experts to testify about helicopter design and specifically about the aspects of the CH-47C design that contributed to the crash. Much of this testimony focussed on the rupture of the sync shaft at station 120, a rupture which, by agreement of all of the experts, occurred after the failure of the forward transmission had permitted displacement of the pinion gear. This displacement in turn allowed the sync shaft to rub against the aircraft's structure, weakening the sync shaft and, according to plaintiff's experts, causing the shaft's rupture when power was applied to the transmission. Plaintiff's expert, Angelo A. Coronato testified to four specific defects in the transmission design.*fn3 Three of these defects related to the transmission itself, while one defect focussed on the construction of the sync shaft.

Plaintiffs also presented some evidence that Boeing was aware that the sync shaft had failed due to rubbing at station 120 in the prior crashes of the CH-47C design. Plaintiffs charged that Boeing failed to inform the Army of its conclusions that sync shaft failure was implicated in the crash or suggest any modification of the sync shaft design.

Boeing asserted four specific defenses to the plaintiffs' claims that the helicopter was negligently designed and defective: (1) that the government contractor defense shielded Boeing from liability; (2) that ECP 422, rejected by the Army, would have prevented the Mannheim accident;*fn4 (3) that the Army, by its cleaning process which included sand-blasting the transmission with walnut shells, improperly maintained the helicopter;*fn5 and (4) that the Army thereby substantially changed the product's condition. Boeing's motion for a directed verdict was denied. The following special interrogatories were submitted to the jury:

1. Was the defendant Boeing-Vertol negligent?

2. Was the negligence of Boeing Vertol a proximate cause ...


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