Kerstetter v. Pacific Scientific Co.

• Decision Date: 18 April 2000
• Docket Number: No. 99-40502,99-40502
• Citation: 210 F.3d 431
• Parties: (5th Cir. 2000) LINDA KERSTETTER, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE AND HEIR OF THE ESTATE OF DAVID JOSEPH HUBER, Plaintiff-Appellant, v. PACIFIC SCIENTIFIC COMPANY; ET AL., Defendants, PACIFIC SCIENTIFIC COMPANY; BEECH AEROSPACE SERVICES; RAYTHEON AEROSPACE COMPANY; BEECH AIRCRAFT CORP.; RAYTHEON AIRCRAFT COMPANY, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 431

210 F.3d 431 (5th Cir. 2000)

LINDA KERSTETTER, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE AND HEIR OF THE ESTATE OF DAVID JOSEPH HUBER, Plaintiff-Appellant, v. PACIFIC SCIENTIFIC COMPANY; ET AL., Defendants, PACIFIC SCIENTIFIC COMPANY; BEECH AEROSPACE SERVICES; RAYTHEON AEROSPACE COMPANY; BEECH AIRCRAFT CORP.; RAYTHEON AIRCRAFT COMPANY, Defendants-Appellees.

No. 99-40502

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

April 18, 2000

Appeals from the United States District Court for the Southern District of Texas

Before HIGGINBOTHAM and PARKER, Circuit Judges; and WARD, District Judge.¹

ROBERT M. PARKER, Circuit Judge:

Plaintiff-Appellant brought suit on behalf of her son, a deceased naval pilot, contending that the pilot restraint system in the T-34C aircraft he was flying at the time of his death was defectively designed. The defendants moved for summary judgment based on, inter alia, the government contractor defense. Because we find that the government contractor defense applies and that no genuine issues of material fact exist which would preclude summary judgment, we AFFIRM.

PROCEEDINGS BELOW AND FACTUAL HISTORY

This case arises from the 1995 death of Navy instructor pilot Lt. David Joseph Huber, who died while conducting a familiarization flight with a student pilot off Padre Island, Texas. Lt. Huber was inadvertently ejected from a T-34C aircraft during a training maneuver when his pilot restraint system ("PRS") released without command. ² Pacific Scientific Company ("Pacific Scientific") ³ manufactured the PRS on board the aircraft. The Navy conducted an investigation of the incident and concluded that a possible cause for the ejection was contact between the aircraft control stick grip and the rotary buckle that releases the restraint belts.

In late 1973, the Navy began Phase I testing of the T-34C ⁴ and specifically observed several deficiencies in the pilot restraint system (PRS). The Navy concluded that these deficiencies should be corrected. In mid-1974, Phase II testing focused on the PRS and concluded in a final report that the PRS was uncomfortable and functioned poorly during negative G testing. The report recommended corrective action.

By 1975, Beech had not yet corrected the PRS difficulties identified in Phase II testing; however, Beech proposed a fifth "crotch strap" with a quick release buckle in preparation for further testing. A preliminary evaluation in September of 1976 gave this new PRS a positive evaluation. The Navy performed further tests and found that "The pilot restraint system in the T-34C airplane is an enhancing characteristic which significantly improves airplane controllability during spins and should be included in future designs." In 1982, the Navy ordered 120 T-34Cs with this "crotch strap" design. All drawings were approved by the Navy through thorough review and training sessions. Once approved, these drawings could not be modified without Navy approval. The PRS design resulting from this review and testing process was the same as that in the victim's plane.

In a 1985 Field Engineering Action Team (FEAT) meeting, Beech heard reports for the first time of a phenomenon called "uncommanded seat harness release." The next year's meeting included an agenda item regarding "uncommanded seat harness release." This item was left open following the meeting. This is the last time Beech heard about the problem until after the accident that resulted in the filing of this action.

The Navy instructed students training in the T-34C to position their harness buckles under their life preservers to prevent inadvertent release of the PRS and also created a form for pilots to report occurrences of inadvertent releases. ⁵ The Navy took no further actions in response to this problem before the accident in this case. After this accident, a Navy official noted that the PRS posed a "severe flight hazard."

Kerstetter brought this suit on behalf of Lt. Huber against the named defendants. All defendants filed motions for summary judgment based on the government contractor defense and on the absence of summary judgment evidence to create a genuine issue of material fact. The district court granted defendants' motions.

STANDARD OF REVIEW

"We review a grant of summary judgment de novo." Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999). A district court's award of summary judgment is reviewed "using the same standard as that employed initially by the district court under Rule 56." Stout v. Borg-Warner Corp., 933 F.2d 331, 334 (5th Cir. 1991). Pursuant to Rule 56, summary judgment is appropriate only where "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56. A factual dispute is "genuine" where a reasonable jury could return a verdict for the nonmoving party. See Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997). "If the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party, then there is no genuine issue for trial." Kipps, 197 F.3d at 768.

DISCUSSION

I.The Government Contractor Defense

Government contractor immunity is derived from the government's immunity from suit where the performance of a discretionary function is at issue. See Boyle v. United Tech. Corp., 487 U.S. 500, 511 (1988). The Supreme Court has noted that "the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function." Id.

In order for a contractor to claim the government contractor defense, (1) the government must have approved "reasonably precise" specifications; (2) the equipment must have conformed to those specifications; and (3) the supplier/contractor must have warned of those equipment dangers that were known to the supplier/contractor, but not to the government. See Boyle, 487 U.S. at 512; Stout, 933 F.2d at 336.

The government need not prepare the specifications to be considered to have approved them. See Trevino v. General Dynamics, 865 F.2d 1474, 1480 (5th Cir. 1989) (holding that "substantive review" is adequate). To determine whether "substantive review" occurred, a court must take into consideration a number of factors. The factors involve examining drawings, evaluation from time to time, criticism and extensive government testing--a "continuous back and forth" between the contractor and the government. See In re Air Disaster at Ramstein Air Base, Germany, 81 F.3d 570, 574 (5th Cir. 1996). The specifications need not address the specific defect alleged; the government need only evaluate the design feature in question. See Boyle, 487 U.S. at 512; Trevino, 865 F.2d at 1486 ("The government contractor defense as reformulated in Boyle protects government contractors from liability for defective designs if discretion over the feature in question was exercised by the government.").

Nonconformance with a specification means more than that the ultimate design feature does not achieve its intended goal. The alleged defect must exist independently of the design itself, and must result from a deviation from the required military specifications. Cf. Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 800 n.13 (5th Cir. 1993) ("For the reasons explained infra, we interpret Boyle's statement that the defense bars '[l]iability for design defects,' to mean liability for defects in the government specifications.") (citation omitted). Extensive government involvement in the design, review, development and testing of a product, as well as extensive acceptance and use of the product following production, is evidence that the product line generally conformed with the government-approved specifications. See In re Air Disaster, 81 F.3d at 575.

The third part of the Boyle test requires the contractor to warn the government about those equipment dangers that were known to the contractor, but not to the government. The purpose of this element is not to create an incentive to discover latent defects in a product designed for the government. See Boyle, 487 U.S. at 512 ("The third condition is necessary because, in its absence, the displacement of state tort law would create some incentive for the manufacturer to withhold knowledge of risks, since conveying that knowledge might disrupt the contract but withholding it would produce no liability."). The government contractor defense does not require a contractor to warn the government of defects about which it only should have known. "After Boyle, a government contractor is only responsible for warning the government of dangers about which it has actual knowledge." Trevino, 865 F.2d at 1487.

II.Plaintiff's Articulation of the Boyle Test is in Error

Plaintiff argues that, in the approval process, the government must have considered and rejected a safer design alternative proposed by the plaintiff, or at least must have itself prospectively limited the discretion of the contractor to include a safer alternative design. The district court noted that this argument is well suited for presentation to Congress or to the Supreme Court rather than the district court but that it is contrary to the case law. See Boyle, 487 U.S. at 513; Stout, 933 F.2d at 334-35; see also Tate v. Boeing Helicopters, 140 F.3d 654 (6th Cir. 1998) (Tate II). The Boyle court noted that, while this is perhaps a reasonable rule of tort law, it did not sufficiently protect the federal interest in the selection of appropriate military equipment.

The design ultimately selected may well reflect a significant policy judgment by Government officials whether or not the contractor rather than those officials developed the design. In addition, it does not seem to us sound policy to penalize, and thus deter, active contractor participation in the design process, placing the contractor at risk unless it identifies all design defects.

Boyle, 487 U.S. at 513. The district court noted that this last sentence...