In Determan v. Boeing Co., 728 Fed. Appx. 657 (9th Cir. 2019), the United States Court of Appeals for the Ninth Circuit upheld a United States District Court for the District of Hawaii decision dismissing a product liability action because the claims against the helicopter and helicopter component manufacturers were precluded by the government contractor defense.
Determan arose out of the crash of a Marine MV-22 Osprey helicopter. The Osprey crashed after an engine failure caused by a compressor stall. The compressor stall resulted from sand ingestion that occurred when the helicopter encountered "brownout" conditions during a landing attempt that churned up sand and debris. According to the plaintiffs, the sand ingested by the engine was "reactive," meaning corrosive, and had the sand been nonreactive, the engine would not have failed.
The plaintiffs—representatives of the estate of Lance Corporal Matthew Determan, who died in the crash—brought suit against The Boeing Company, Bell Helicopter Textron, Inc, and Eaton Aerospace, LLC claiming that the Osprey's engine air particle separator ("EAPS") system—which removes sand, dust, and other foreign objects from the air entering the engine—was defectively designed. The defendants filed motions for summary judgment arguing that they could not be held liable for the design of the EAPS system because the design conformed to specifications approved by the Naval Air Systems Command ("NAVAIR"), and they were therefore protected from liability by the government contractor defense.
The government contractor defense protects military and other government contractors from product liability when (1) the United States approved reasonably precise specifications for the product at issue; (2) the product conformed with those specifications; and (3) the contractor warned the government about dangers in the product's use that were known to the contractor but not to the government.
The district court granted the defendants' motions for summary judgment based on the government contractor defense. The plaintiffs appealed.
In their appeal, the plaintiffs first argued that the defendants failed to meet the first element of the government contractor defense (the government approved reasonably precise specifications) because (1) the Navy only approved performance standards, not the design of the EAPS system; and (2) the government was required to specifically approve the impacts of reactive sand on the EAPS system, as opposed to the EAPS system itself. The Ninth Circuit held that the undisputed evidence indicated that the government did not simply approve performance standards for the Osprey's EAPS system. Rather, the government approved detail specifications and final, top-level drawings of the aircraft that included design specifications for the EAPS system. The Ninth Circuit also rejected the notion that the government should have approved the specific impacts of reactive sand on the EAPS system because "a contractor need not obtain the government's consent for every possible defect or alternative design."
Finally, the Court rejected the plaintiffs' argument that defendants failed to meet the second element of the government contractor defense (conformance with government specifications) because plaintiffs' argument was based on testing of a generic EAPS system that did not meet the government's efficiency requirements, not on the actual system at issue. Instead, the Court found that the government certified that the Osprey's EAPS system complied with its specifications when it executed a DD250 for the aircraft and issued a NAVAIR acceptance letter.
By upholding the application of the government contractor defense in this instance, Determan bolsters the nationwide precedent protecting aviation defense contractors from product liability when they design products to conform to the unique needs of the US military.
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