Bynum v. FMC Corp.

Decision Date13 September 1985
Docket NumberNo. 84-4677,84-4677
Citation770 F.2d 556
Parties, Prod.Liab.Rep.(CCH)P 10,677 Daniel Edward BYNUM, Plaintiff-Appellant, v. FMC CORPORATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Cliff Finch & Associates, John L. Bailey, Cliff Finch, Batesville, Miss., for plaintiff-appellant.

Butler, Snow, O'Mara, Stevens & Cannada, Lee Davis Thames, Luther T. Munford, Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before CLARK, Chief Judge, RANDALL and JOLLY, Circuit Judges.

RANDALL, Circuit Judge:

Plaintiff-appellant Daniel Edward Bynum brought this product liability action in district court seeking damages for injuries sustained when a M-548 cargo carrier in which he was riding fell off a bridge and crashed into the creek below. At the time of the accident, Bynum was a member of the Mississippi National Guard taking part in a seventeen-day training mission at Fort Stewart, Georgia. The district court, 599 F.Supp. 155, holding the government contractor defense applicable under Mississippi law, granted summary judgment in favor of defendant-appellant FMC Corporation, and Bynum appeals. On appeal, we do not address the merits of the district court's Erie guess. Rather, for the reasons given below, we hold that, at least under the circumstances presented here, federal common law provides the basis for FMC Corporation's assertion of the government contractor defense. Because all the elements of the defense have been established through either uncontroverted affidavit or the stipulations of the parties, we affirm the summary judgment.


On July 13, 1978, Bynum, then a member of the Mississippi National Guard, was participating in a tactical road march at Fort Stewart, Georgia, as part of a training mission for the Mississippi National Guard. Bynum's role in the march was to ride in the M-548 cargo carrier ("M-548"), a tracked United States Army vehicle, as an air gunner. While crossing a bridge, the M-548 swerved to the left and plunged into the creek bed below. As a result of the accident, Bynum sustained severe injuries, including two broken legs caused when the M-548's turret gun rotated freely during the fall.

Thereafter, on May 4, 1982, Bynum filed the instant complaint in the District Court for the Northern District of Mississippi, alleging negligence, breach of express and implied warranties, and strict liability theories of recovery. Defendant FMC Corporation ("FMC") 1 answered and initiated discovery, which continued for over a year until terminated by the district court on August 4, 1983. At that point, FMC moved for summary judgment on the ground that the government contractor defense barred the action. 2 In support of its motion, FMC relied primarily on the deposition testimony of Bynum's expert witness, Dr. Malcolm Newman, and the affidavit of William H. Stites, who was the Engineering Manager of FMC's Ordnance Division. Bynum filed no evidentiary response to the summary judgment motion.

At his deposition, 3 Newman testified that he knew of no evidence of negligence or negligent manufacture by FMC. Rather, Newman stated, the accident was most probably caused by design defects in the tracking system and the gun-locking mechanism and a failure to warn as to the proper manner in which to operate the vehicle under the conditions existing at the time of the accident. Deposition of Malcolm Newman, at 66-74. In his affidavit, Stites described the function and capabilities of the M-548 as follows:

The M548 is a tracked vehicle that is used by the United States Army in a variety of ways. Its primary function is to carry ammunition both for tanks and for self-propelled artillery. The vehicle must be capable of carrying 6 tons of ammunition while traveling across all types of terrain in all types of weather. It follows behind the tanks or large cannon, such as the 155 Howitzer, mounted on tracks. The vehicle has to be air droppable, that is, capable of being dropped by parachute from airplanes; so it must have outside dimensions that allow it to fit inside the airplanes from which it would be dropped. The vehicle also must be amphibious. Not only must it be able to float when it enters the water while carrying its load of ammunition; but also it must be able to propel itself through the water.

Record at 316. Stites also explained that the specifications for the M-548 were the work product of the United States Army Tank-Automatic Command ("TACOM"), which was responsible for the designing and testing of wheeled and tracked vehicles procured by the government for military use. According to Stites, TACOM supplied FMC with a technical data package containing over 2500 sheets of detailed drawings that were to be used in the manufacture of the M-548. Under the contract, Stites stated, FMC was obligated to comply strictly with these design specifications in producing the M-548. If FMC desired to alter any particular portion of the design, the proposed modification had to be submitted to TACOM for review and testing. Any unapproved deviation from the government's specifications would result in rejection of the vehicles by the government's inspectors who, in accordance with the contract, worked full time at the FMC plant.

Finally, Stites stated in his affidavit that the particular vehicle that was involved in the accident had been manufactured in strict compliance with the government's plans and specifications. The type of event that Newman described as being the most likely cause of the accident, Stites asserted, had never before occurred within the knowledge of FMC.

On February 1, 1984, Chief Judge L.T. Senter, Jr., denied FMC's motion for summary judgment on the ground that the government contractor defense had not been recognized or adopted by any controlling precedent. The case was then transferred to Judge Biggers on April 11, 1984. At the beginning of trial, on October 1, 1984, Bynum moved in limine to prevent FMC from introducing any evidence concerning the government contractor defense. In response, FMC orally renewed its motion for summary judgment based on our intervening decision in Hansen v. Johns-Manville Products Corp., 734 F.2d 1036, 1045 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985). 4 After reviewing the record in light of that opinion, Judge Biggers stated in chambers that he was inclined to recognize and apply the defense in the instant case. That announcement evidently prompted the parties to enter into the following two stipulations:

(1) [The district court] has the authority to reconsider a previous ruling on a motion for summary judgment; and

(2) The vehicle in issue in the present case was manufactured in accordance with precise design specifications furnished by the United States Government, the vehicle conformed to the specifications, and the manufacturer FMC knew of no patent dangers in the vehicle that were not known to the United States Government.

Bynum v. General Motors Corp., 599 F.Supp. 155, 156 (N.D.Miss.1984).

Based on these stipulations, as well as on the pleadings, affidavits, memoranda, and other submissions of the parties, Judge Biggers granted summary judgment. In the published opinion accompanying the order Judge Biggers explained that the basis of his decision was an Erie guess that Mississippi courts would apply the government contractor defense, as set forth in Hansen, if and when such a situation was presented to them. Judge Biggers found that by their stipulations the parties established that the following three prerequisites for the application of the defense were met: (1) establishment of product specifications by the government, (2) manufacture in accordance with those specifications, and (3) government knowledge equal to that of the manufacturer of the hazards. Id. at 158.

From the order granting summary judgment, Bynum appeals.


Before we examine the legal basis of the modern government contractor defense and its applicability to the case at hand, a brief overview is in order of the defense's historic analogues and the reasons provided by federal and state courts for the adoption of the modern defense. Toward this end, we discuss first the Feres-Stencel doctrine, which prompted the formulation of the defense. Then we examine the defenses traditionally available to manufacturers complying with design specifications supplied by the government and the deficiencies of those defenses in the current context. Finally, we review the justifications upon which recently adopted versions of the modern government contractor defense have been based.

A. The Feres-Stencel Doctrine.

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court held that the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 2671 et seq., did not waive the government's sovereign immunity with respect to "injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. at 159. Although this issue was clearly one of statutory construction, because nothing in the history of the Act was directly on point, the Supreme Court focused on the policies of the Act and the consequences of allowing such a suit. Specifically, the Court gave three reasons for barring a serviceman's suit against the government to recover for service-related injuries. First, the Supreme Court found that "[t]he relationship between the government and members of its Armed Forces is 'distinctively federal in character.' " Id. at 143, 71 S.Ct. at 158. By this, the Court meant that "the scope, nature, legal incidents and consequences of the relation between persons in service and the government are fundamentally derived from federal sources and governed by federal authority." Id. at 143-44, 71 S.Ct. at 158 (...

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