dissenting.
In the majority opinion, Judge Lively has thoughtfully and thoroughly presented the issue raised on this appeal. Though I consider it a close question, I am not convinced that the record conclusively shows that the Army acquiesced in a Detail Specification which would permit the main rotor blade to chop off the tail boom. Since I believe that Plaintiff-Appellant Patricia Landgraf has raised a genuine issue as to whether MIL-S-8698 ¶ 3.6.5.3 was a “reasonably precise specification” accepted by the United States, I would reverse the district court’s grant of summary judgment and remand the case so that this matter might be resolved by the trier of fact. Cf. Boyle, 487 U.S. at 514, 108 S.Ct. at 2519 (“It is somewhat unclear from the Court of Appeals’ opinion ... whether it was in fact deciding that no reasonable jury could ... have found for the petitioner on the facts presented, or rather was assessing on its own whether the [government contractor] defense had been established. The latter ... would be error, since whether the facts establish the conditions for the defense is a question for the jury.”).
As pointed out in Judge Lively’s opinion, MIL-S-8698 ¶3.6.5.3 was incorporated by reference into the Detail Specification for the helicopter in question. MIL-S-8698 ¶ 3.6.5.3 was extremely specific and quantitative in its discussion of main rotor blade-tail boom interaction:
The design of the rotor system(s) shall be such that, upon installation on the helicopter, there shall be sufficient clearance of the blades to the ground, to each other, and to other parts of the helicopter.... *565During operation in all flight regimes, the clearance between the main rotor blades and other parts of the helicopter shall not be less than 9 inches, and preferably 12 inches.... The design of the rotors shall be such as to preclude the possibility of the blades striking each other or any part of the helicopter.
(Emphasis added.)
Morton I. Leib, an employee of the Aircraft Division of the Hughes Tool Company/McDonnell Douglas from 1961 to 1991 and one intimately familiar with the design, testing, approval and production of the OH-6A having managed the OH-6A program at its inception and throughout its production life, described that a provision of an incorporated document might not be considered a part of the Detail Specification if a “deviation” is listed in the appendix to the Detail Specification, or if the provision in question is rewritten such that a deviation is not required. Appendix II to the Detail Specification contains a host of deviations, including numerous deviations from specifications listed in incorporated documents. No deviation, however, is listed for the requirements of MIL-S-8698 ¶ 3.6.5.3, and this paragraph was not otherwise rewritten to eliminate the requirement that the main rotor blade not strike the tail boom.
Notably, deviations were sought and granted for less specific provisions of incorporated documents where it was apparent that the requirements of the provisions could not be met in all flight regimes. For example, the General Requirements for Helicopter Flying and Ground Handling Qualities (3 Apr. 1962) (“MIL-H-8501A”) was incorporated into the Detail Specification. Paragraph 3.2.11 of MIL-H-8501A requires that the “helicopter shall exhibit satisfactory dynamic stability throughout the flight envelope.” Deviation Number 5 of Appendix II allows that the “OH-6A will not meet this requirement at the critical corners of the flight envelope.” Also of note is the fact that a deviation was granted for another paragraph of MIL-S-8698. Specifically, the requirement of MILS-8698 ¶ 3.6.3 that the “hub effective damping shall be at least 30 percent of critical damping” was eliminated. Paragraph 3.4.6 of the Detail Specification echoes this: “The helicopter'need not meet the requirements of paragraph 3.6.3 of MIL-S-8698 (see Appendix II, Deviations).”
Without considering anything else in the record, it seems clear that the Detail Specification for the helicopter in question contained a reasonably precise specification that the main rotor blade avoid striking the tail boom in all flight regimes. Since, as Judge Lively’s opinion notes, “[i]t is undisputed that the fatal crash was caused by the [main rotor blade] striking and severing of a portion of the tail boom,” the helicopter did not conform to this reasonably precise specification, and summary judgment was inappropriate on the basis of the government contractor defense. Admittedly, however, there is more to consider.
As described by Judge Lively, determining the “ultimate” reasonably precise specifications, cf. Kleemann, 890 F.2d at 700, may require exploring the government’s involvement with the testing and development of the contract item, and the government’s acquiescence in the finished product with knowledge of modifications of the original design. In Kleemann, for example, a Navy pilot was killed when the landing gear on his F/A-18 failed. The surviving spouse and children brought a diversity action against McDonnell Douglas, the contractor that had built the aircraft, alleging that the gear did not conform to the reasonably precise specifications contained in the Navy’s original contract with McDonnell Douglas. Specifically, the plaintiffs indicated that a document incorporated into the detail specification for the F/A-18 contained a provision that the F/A-18 was to “withstand normal landing loads without bending, unlocking or causing uncontrolled motion of the aircraft.” Id. Though the court admitted that “the documents referenced by plaintiffs embody part of the universe of specifications to which the landing gear must conform,” id. at 702, it held that the provision in question merely presented “precatory goals developed for a product at the start of the procurement process,” id. at 700, or “little more than the hopes of participants that the project on which they are about to embark will turn out well,” id. at 703.
*566In determining the reasonably precise specifications to which the F/A-18 had to conform, the court looked to the entire procurement process which included not just initial contract specifications, but testing, refinements and specific acceptance of such refinements. For example, the initial contract required McDonnell Douglas
to submit detailed design drawings to the Navy for approval as the general specifications became embodied in the actual landing gear. The Navy reserved the right to reject drawings and to require revisions and modifications. These working drawings, and not simply the general qualitative specifications from the procurement stage, comprise “the reasonably precise specifications” contemplated by Boyle.
Id. at 702. In addition, “[bjetween 1979, when F/A-18 test flights began, and 1985, the Navy expressly approved or required a substantial number of landing gear design modifications and rejected others.” Id. at 703. The plaintiffs claimed that the Navy itself found McDonnell Douglas to be not in conformance with the landing gear specifications for the F/A-18 when it issued a Notice of Defect in 1983. The court responded to this claim by noting that McDonnell Douglas. addressed the problem, and, in the end, the Navy specifically approved McDonnell Douglas’ modification “and directed that it be incorporated into all new production models, including the aircraft that Kleemann was flying at the time of the accident. On May 24, 1985, the Navy advised [McDonnell Douglas] that the Notice of Defect was formally closed.” Id. at 704. In summary, the court concluded that “[o]nly the detailed, quantitative specifications — and not those calling for such vagaries as a failsafe, simple or inexpensive product — are relevant to the government contractor defense_ [A] product conforms to reasonably precise specifications if it satisfies ‘an intended configuration’ even if it ‘may produce unintended and unwanted results.’ ” Id. at 703 (citation omitted).
The reasoning of Kleemann is sound. If, after negotiation and modification of an original plan, the military and a contractor agree upon certain specifications for a particular piece of equipment like landing gear — or main rotor blade and tail boom apparati— and the contractor builds the piece of equipment in conformance with these specifications, the government contractor defense properly bars state law from imposing liability upon the contractor. Such reasoning furthers the chief policy behind the government contractor defense that “the contractor should not be held liable at law for performing the government’s bidding” (because, the military may, at times, choose to sacrifice a certain measure of safety for performance). Id.
That said, I return to the instant case to determine whether the record demonstrates that the reasonably precise specifications of MIL-S-8698 ¶ 3.6.5.3 were superseded by subsequent actions such that the “ultimate” reasonably precise specifications for the helicopter in question did not mandate that the main rotor blades never touch the tail boom. The first example of such a potential modification is that the Army, having directed that tests of the OH-6A’s main rotor blade motion be conducted, seemed to accept the test results (prepared by Hughes Tool Company, Aircraft Division, on September 26, 1969) that the main rotor blades came to within three inches of the tail boom, whereas MILS-8698 ¶ 3.6.5.3 requires a greater clearance. Landgraf has apparently introduced no evidence to the effect that the Army, knowing this, required a design modification to increase the three-inch minimum clearance to the nine-inch clearance required by MIL-S-8698 ¶ 3.6.5.3. The government’s acceptance of the helicopter with full knowledge of the three-inch minimum clearance might be taken as a modification of the initial reasonably precise specifications.
The problem remains, however, that MILS-8698 ¶ 3.6.5.3 also states: “The design of the rotors shall be such as to preclude the possibility of the blades striking each other or any part of the helicopter.” (Emphasis added.) Thus, even if the government acquiesced in a three-inch minimum clearance, more must be shown to demonstrate that it accepted the possibility that a main rotor blade would strike the tail boom.
While the OH-6A helicopter was still in the testing stage of development, it appears from the record that a main rotor blade *567struck a tail boom at the termination of a power-off landing. As a consequence, the Army requested more testing “for the purpose of investigating tail boom strikes on OH-6A [aircraft]_ The final result of this effort [was to be] the determination of possible changes to the OH-6A configuration leading to a reduction in the probability of tail boom strikes.” While the majority takes the latter statement to mean that “[t]he Army apparently did not believe there could be a complete elimination of the probability of such strikes, only a reduction in that probability,” it is conceivable and not unreasonable to infer that the Army wished to reduce that probability to zero, given the devastating nature of such an eventuality.
Hughes conducted the requested tests, which yielded the results referred to above, namely, that the main rotor blade on the OH-6A tested came to within three inches of the tail boom. The report on these tests concluded: “The abrupt full aft cyclic and full down collective motions used in this test were intended to simulate’ a severe autorota-tional landing condition. It is felt that these abrupt motions, to the critical control limits, exceed the normal pilot technique.” The report did recommend further testing, however, to account better for variables which were not taken into account in the tests performed.
There is no evidence in the record that the Army responded to this report. Did the Army believe that the variables not taken into account during these tests would not diminish the clearance further? Was the Army convinced from this report that the prior tail boom strike incident was the result of a manufacturing, as opposed to a design, defect? If so, the military did not necessarily accept a modification of the no-strike requirement of MIL-S-8698 ¶ 3.6.5.3 or “treat[ ] MIL-S-8698 [¶ 3.6.5.3] as a precato-ry statement.”
Other possible evidence of a modification of MIL-S-8698 ¶ 3.6.5.3 is the OH-6A’s Operator’s Manual (July 1969) which states, in pertinent part: “WARNING[:] When a pitch down condition exists, it is imperative that abrupt lowering of the collective and erratic movement of the cyclic control be avoided to prevent a rotor blade strike on the tail boom.” From this, it might be argued that the government knew, accepted, and warned operators of the fact that, under certain conditions, a rotor blade might strike the tail boom. But even if the Operator’s Manual evidences the “ultimate” reasonably precise specifications regarding whether the OH-6A was to be constructed so as to preclude the possibility of a main rotor blade-tail boom strike, it merely allows such a strike to occur upon an “abrupt lowering of the collective and erratic movement of the cyclic control” during a “pitch down condition.” If such a condition did not exist during CWO Land-graf s test flight, the no-strike provision of MIL-S-8698 ¶ 3.6.5.3 would arguably control. Whether or not the condition existed is a question of fact for the factfinder. And there does not seem to be enough evidence in the record as it stands to say whether the condition did or did not exist so as to remove the question from the factfinder. Furthermore, while an Operator’s Manual may constitute some evidence to support the argument that MIL-S-8698 ¶3.6.5.3 was modified, it does not, in my view, conclusively show that MIL-S-8698 ¶ 3.6.5.3 was superseded for purposes of the government contractor defense (as, for example, an amendment to the Detail Specification or active government involvement in further testing and development of the main rotor blade and tail boom apparati might).
The evidence in this case of a modification of MIL-S-8698 ¶ 3.6.5.3 is certainly less clear than the modifications held to constitute the “ultimate” reasonably precise specifications in Kleemann, for example. And MIL-S-8698 ¶ 3.6.5.3 is certainly less “preca-tory” and more “quantitative” than the specifications at issue in Kleemann. All told, the evidence that the government acquiesced in a modification of MIL-S-8698 ¶ 3.6.5.3 is, in my view, simply not sufficient to say that “there is no genuine issue as to any material fact and that [McDonnell Douglas] is entitled to a judgment as a matter of law.” Fed. R.CrvP. 56(e). Did the helicopter design at issue in this case conform to the reasonably precise specifications approved by the United States? This is essentially a question of fact. The factfinder must determine what the “ul-*568tímate” reasonably precise specifications were and whether the helicopter conformed to them. Boyle, 487 U.S. at 514, 108 S.Ct. at 2519. What were the “ultimate” reasonably precise specifications as they relate to the main rotor blade-tail boom clearance in this case? Based on one’s view of the record evidence, the answer to this question could lie anywhere between no clearance at all and nine inches, with three inches being a reasonable possibility. And one’s answer essentially determines the availability of the government contractor defense. Since the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,” Fed.R.Civ.P. 56(c), viewed in a light most favorable to the nonmoving party, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986), show there to be a genuine issue of fact on an issue critical to whether McDonnell Douglas is entitled to the government contractor defense in this case, I would reverse the grant of summary judgment, and remand the case for further proceedings.