In addition, acceptance testing was performed on the T58-GE-10 engines pursuant to the specifications. This testing was also subject to government inspection, approval, and participation. In short, every feature of the T58-GE-10 engine was tested and inspected pursuant to and for conformity with Navy specifications.
The allegedly defective lubrication system and its components were developed and approved as part of the United States Navy's review and approval of the specifications. As approved, detail specification E-1081, including the model specification prints, was not designed to include and did not require any type of device, mechanism or indicator, such as a pop-out device, to show impending oil filter bypass. This is so although, at the time of the approval of detail specification E-1081, the United States Navy was aware that under certain conditions, oil pressure could exceed 75 PSI. After production began, changes in the design of the lubrication system of the T58-GE-10 engine could only be made with concurrence by the government in the change, and after government review of the feasibility and desirability of the change.
The T58-GE-10 engines with which the subject CH-46D helicopter was equipped (serial numbers 281132 and 281760) conformed with the detail and general specifications and all Navy requirements. Both engines were produced in accordance with the respective government contracts.
The affidavits and admissions submitted by General Electric reflect that the oil pressure readings experienced during this incident and after the pilot adjusted the controls of the No. 2 engine were a unique manifestation, and that General Electric has no knowledge of a similar occurrence involving a T58-GE-10 model engine under these conditions.
The Navy was aware of the potential for high oil pressure problems with the T58-GE-10 engine. The engine oil pressure gauge used in this aircraft is calibrated up to 100 PSI where normal oil pressures range from 24 to 67 PSI with the maximum acceptable operating oil pressure at 75 PSI. Furthermore, the United States Navy maintenance procedures specifically provide for observation, inspection and cleaning of engine oil filters and require that an engine serviceability check be performed where contamination of an unusual nature is found or where there is evidence of excessive amounts of normal contaminants on magnetic drain plugs or in the lube filter. This procedure required, inter alia, the removal of the bypass valve, the draining of oil, and the changing or cleaning of oil filters.
As a practical matter, at the time of this accident in 1983, the United States Navy was familiar with and knowledgeable regarding the characteristics of the T58-GE-10 engines. Pursuant to the two contracts involved in this case over six hundred (600) T58-GE-10 model engines were delivered by General Electric to the government in 1966 and 1967. Therefore, for a period of over fifteen years, the T58-GE-10 engines were regularly used and maintained by the United States Navy and the other government agencies which may have received them, yielding experience and knowledge regarding the operation and maintenance of the engines through complaints, and incident and accident reports.
The investigation report of this incident prepared by the Judge Advocate General, dated March 31, 1983, reflects that no emergency procedures for high engine oil pressures are listed in the NATOPS flight manual, and recommends that such operating procedures be developed and incorporated into the NATOPS flight manual. The NATOPS flight manual is issued by the authority of the Chief of Naval Operations and under the direction of the Commander, Naval Air Systems Command. The document is not authored or promulgated by General Electric.
In Koutsoubos v. Boeing Vertol, 755 F.2d 352 (3d Cir.), cert. denied, 474 U.S. 821, 106 S. Ct. 72, 88 L. Ed. 2d 59 (1985), the Third Circuit adopted the three-part test of the government contractor defense first announced by Judge Pratt in In re "Agent Orange" Product Liability Litigation, 534 F. Supp. 1046 (E.D.N.Y. 1982). The test requires that a defendant asserting the defense prove each of the three elements of the defense by a preponderance of the evidence. McKay v. Rockwell International Corp., 704 F.2d 444, 453 (9th Cir. 1983), cert. denied, 464 U.S. 1043, 104 S. Ct. 711, 79 L. Ed. 2d 175 (1984); Agent Orange, 534 F. Supp. at 1056. These elements are:
(1) That the government established or approved the specifications for the product;