Kerstetter v. Pacific Scientific Co.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-40502

LINDA KERSTETTER, INDIVIDUALLY,
AND AS PERSONAL REPRESENTATIVE
AND HEIR OF THE ESTATE OF DAVID JOSEPH HUBER,

Plaintiff-Appellant,

VERSUS

PACIFIC SCIENTIFIC COMPANY; ET AL.,

Defendants,

PACIFIC SCIENTIFIC COMPANY;
BEECH AEROSPACE SERVICES;
RAYTHEON AEROSPACE COMPANY;
BEECH AIRCRAFT CORP.;
RAYTHEON AIRCRAFT COMPANY,

Defendants-Appellees.

Appeals from the United States District Court
for the Southern District of Texas
April 18, 2000
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

1
District Judge of the Eastern District of Texas, sitting
by designation.

-1-
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.

2
The T-34C does not have an ejection seat. Lt. Huber was
ejected when the negative G-forces created during a spin recovery
maneuver propelled him through the canopy and out of the
aircraft. Although Lt. Huber survived the ejection and his
parachute initially functioned properly, he came out of his
parachute prematurely and died from blunt force trauma upon
impact with the water.
3
Defendant Beech Aircraft Corporation (“Beech”), now known
as Raytheon Aircraft Company, manufactured the aircraft in
question. Defendant Beech Aerospace Services, Inc. (“BASI”), now
known as Raytheon Aerospace Company, serviced the aircraft in
question under contract with the Navy. For purposes of
simplicity, this opinion will refer to the manufacturer of the T-
34C as “Beech,” to the manufacturer of the pilot restraint system
as “Pacific Scientific,” and to the maintenance contractor for
the T-34C simply as “BASI.”

-2-
 In late 1973, the Navy began Phase I testing of the T-34C4

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

4
The T-34C was a modification of the previous Navy flight
trainer, the T-34B. The Navy used the T-34B as its basic trainer
aircraft until the early 1970s.

-3-
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).

5
The district court found that “if the harness is adjusted
properly, the buckle is located underneath the pilot's life
preserver unit so that it cannot come into contact with the
aircraft's control stick. When the buckle is in front of the
life preserver unit, it is possible when the control stick is in
full-aft position (as occurs during spin entry) for the control
stick to contact and inadvertently release the harness.”

-4-
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

-5-
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,

-6-
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

-7-
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 can mean only that the defense applies even when the

contractor did not warn the government of latent defects–in other

words, defects that neither the contractor nor the government

considered it at all. We agree. The articulation of the

government contractor defense offered by the plaintiff is

contrary to the case law.

III. Manufacturing Defect and Negligent Inspection

The district court held that the plaintiff presented no

evidence of a manufacturing defect and granted defendants summary

judgment on that claim. The claim for negligent inspection

presumes that a manufacturing defect existed, thus defendants

-8-
were granted summary judgment on that claim as well.6

Plaintiff argues that summary judgment is inappropriate

because fact issues exist with regard to this count. At the

heart of the plaintiff's argument is a general specification

paragraph found in the approved specifications for the T-34C

issued by the Navy:

Where any vital moving part passes close to a fixed
structure or item of equipment, the point nearest
contact shall be located or arranged that gravity will
normally clear this point of loose articles or cause
them to take remote positions where they cannot jam or
interfere with the moving part.

Plaintiff claims that the design of the control stick (and its

ability to inadvertently unbuckle the “crotch strap” at the full-

aft position) violate this specification and thus constitute a

manufacturing defect. Defendants argue that the cockpit design

conformed to the specifications for the cockpit.

We agree with the district court that this specification

cited by plaintiffs had to do with production techniques and not

with cockpit design.

IV. Design Defect (Negligence, Strict Liability and Warranty)

Defendants claim that the government contractor defense

immunizes them from liability in this case. The primary issue

with regard to an alleged design defect in this case is whether

the government approved reasonably precise specifications. The

district court held that the unrebutted summary judgment evidence

6
The district court noted that to the extent the negligent
inspection claim was based on a design defect, that claim is
displaced by the applicability of the government contractor
defense to the design defect claim.

-9-
establishes that the government approved reasonably precise

specifications for the design features in this case.

First, the T-34C originated as a modification of the T-34B,

a plane the Navy had been using to train pilots for 20 years.

The T-34B had the same PRS, the same control stick and the same

cockpit design as the T-34C. Second, the government was

extensively involved in the approval process. The record reveals

a clear pattern of government-contractor interaction over at

least eight years. Third, approval of the T-34C's design

included the specific features at issue in this case. The

defendants argue that “[t]he defective nature of the features may

have been latent to the Navy as well as the contractors, but the

features themselves were obvious to anyone who flew the T-34C.”

Fourth, the Navy specifically addressed the design features at

issue in this case throughout the approval process.

The district court held that plaintiff's arguments that the

government contract defense is not available are unavailing.

First, plaintiffs argue that the defendants purchased the PRS

“off the shelf.” As noted by the district court, the government

procurement officer did not order a quantity of restraint systems

in the same way he would order light bulbs, but rather,

government engineers approved the inclusion of these specific

components into a complex piece of equipment. In addition, the

Navy specifically tested the T-34C's PRS during its evaluation of

the aircraft following Phase II testing. Furthermore, neither

counsel for the plaintiff nor counsel for the defendant were able

-10-
to name or otherwise identify another aircraft which uses the PRS

involved in this case.

Second, plaintiffs argue that the T-34C's PRS specifications

conflict with another, more general specification. The district

court held that the specifications cited by the plaintiff were

not implicated by the facts of this case. The plaintiffs again

refer to the “gravity clearance” paragraph in the specifications

mentioned above. The argument was dismissed in the context of a

manufacturing defect and is also unavailing in the design defect

context.7

Lastly, the plaintiffs argue that the defense should not

apply because the government did not actively limit the

contractor's ability to develop a safer design. Basically,

plaintiffs argue that a safer design could have been developed

“without violating any specification.” This argument focuses on

an incorrect standard which is whether the government approved a

specification that did not contain a safer design. The

inapplicability of this standard to the case at bar has been

addressed.

The defendants argue that the government approved reasonably

precise specifications. They reference numerous documents

involving the PRS in general and the buckle in particular. The

7
Cf. In re Air Disaster, 81 F.3d at 575 (noting that “such
a general design specification is not contemplated by the first
element of the Boyle test because 'only the detailed,
quantitative specification--and not those calling for such
vagaries as a failsafe, simple or inexpensive product--are
relevant to the government contractor defense'”) (citation
omitted).

-11-
“reasonably precise” standard is satisfied as long as the

specifications address, in reasonable detail, the product design

feature, alleged to be defective. See Boyle, 487 U.S. at 512;

Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 799 (5th Cir.

1993) (noting that the specifications need not address the

specific design defect alleged, just the specific feature).

Defendants alternatively allege that even if the Navy is found

not to have approved the PRS during T-34C design process, it did

approve the allegedly defective design at issue far before the

accident by subsequent testing and use.8 The 1985 and 1986 FEAT

meetings are evidence of this.

We find that the district court's conclusion that the Navy

approved reasonably precise specifications for the T-34C's seat

harness was appropriate under the facts of this case. Therefore,

the government contractor defense applies.9

V. Failure to Warn

In In re Air Disaster, this court held that a “conflict

between state law and federal policy might arise if there is

evidence that the government was involved in the decision to

8
See Dowd v. Textron, Inc., 792 F.2d 409, 412 (4th Cir.
1986) (“The length and breadth of the Army's experience with the
540 rotor system--and its decision to continue using it--amply
establish government approval of the alleged design defects.”).
9
The second element of the defense is satisfied as there
was no evidence of a manufacturing defect–i.e., the product
conformed to the government specifications. See supra. The
third element is also satisfied because there is no evidence that
Beech knew information about the inadvertent seat harness release
that was not known to the government. Evidence exists that the
Navy knew as early as 1985 of this inadvertent risk–i.e., the
Navy knew at least as much as the contractors. See infra.

-12-
give, or not to give, a warning.” 81 F.3d at 575. This is a

modified Boyle test. State law is displaced if (1) the United

States exercised discretion and approved the warnings; (2) the

contractor provided a warning that conformed to the approved

warnings; and (3) contractor warned about dangers it knew, but

the government did not. See id.

The district court found that the first element was

satisfied in that the Navy approved, changed and edited warnings

in the T-34C NATOPS Flight Manual. Although the manual contained

no express evaluation of a warning of the specific hazard of

inadvertent seat release, the government contractor defense

applies because the Navy exercised discretion in approving

warnings in the flight manual. See Tate II, 140 F.3d at 660

(holding that the government contractor defense applies in

“situations in which the government makes the informed decision

not to include a specification or require a warning because, in

the government's view, one would be unnecessary or

problematic.”). Inadequacy is not an issue when it is the

government's warning in the first place. The district court

found that there was no failure to warn claim under Texas law

either because the Navy added a release warning to the flight

manual 3 years before the incident in this case.

Plaintiff argues that BASI and Beech were under a continuing

duty to advise and warn the Navy because they continued to

exercise the necessary degree of continuing control, thus

creating a continuing duty to advise. See Bradshaw v. Bell

-13-
Helicopter, 594 S.W.2d 519, 531-32 (Tex. Ct. App.--Corpus Christi

1979, writ ref'd n.r.e.) (finding that because the defendant

retained significant control over the safety of the product, it

has assumed the duty to warn). The degree of control necessary

to give rise to a continuing duty to advise was not present in

this case. Cf. Perez v. Lockheed Corp., 88 F.3d 340, 341 (5th

Cir. 1996) (no retention of control as in Bradshaw).

Defendants rebut this argument with the undisputed fact that

the Navy knew about the problem at least 10 years before the

accident. Existence of a duty to warn is a question of law and

since the Navy knew, contractors had no duty to warn.

Contractors need not warn the victim directly. See Tate II, 140

F.3d at 660 (“Under the third conditions of both the Boyle and

Tate I analyses, the government contractor must show that it

'warned the United States of the dangers in the equipment's use

about which the contractor knew, but the United States did

not.'”) (citations omitted). Since the Navy knew of the danger

of the “uncommanded seat release” on the T-34C's PRS, the

contractors did not have a duty to warn of that danger.

Defendant BASI argues that since the release problem was an

alleged design defect, and since BASI is a maintenance

contractor, it has no duty to warn. See Firestone, 927 S.W.2d

608, 613-14 (Tex. 1996). They did not voluntarily undertake to

warn by their attendance at the FEAT meetings. We agree with

BASI's statement that “It stands logic on its head to argue that

the Navy's disclosure of a design defect at a meeting BASI

-14-
attended as a maintenance representative triggered a duty of BASI

to warn the Navy about the same problem.”

VI. Negligent Maintenance

Plaintiffs claim that BASI was negligent in maintaining the

victim's aircraft because it failed to check for interference

between the control stick and buckle and the negligent failure to

replace the canopy.10 Because BASI did not manufacture the

stick, its duty of care arises from its contract with the Navy to

perform maintenance services. Pursuant to Colonial Sav. Ass'n v.

Taylor, 544 S.W.2d 116 (Tex. 1976), BASI can only be liable if

the victim in this case declined to make his own inspection of

the stick, in reliance on the BASI inspection. See Taylor, 544

S.W.2d at 120. The victim inspected the stick. The district

court also correctly ruled that plaintiff presented no evidence

that BASI's failure to inspect the control stick was a proximate

cause of the accident.

CONCLUSION

10
Plaintiffs also claim negligent maintenance in relation
to BASI's failure to replace the canopy of the aircraft when it
became brittle. Plaintiffs assert that a fact issue with regard
to the brittleness of the canopy--i.e., whether BASI complied
with the government specifications. The district court held that
an expert's speculation is insufficient to create a fact
question. Plaintiff's expert testified that further studies were
needed to determine the cause of the canopy's failure to keep the
victim in the cockpit. These studies were never done.
Defendants respond by arguing that plaintiff's expert could not
even conclude that the canopy was what caused the injury. Even
assuming causation, there is no evidence of BASI being negligent-
-it was within specifications. The T-34C component maintenance
was to be done in accordance with the T-34C maintenance manual
that was written by the Navy.

-15-
 Because we find that the government contractor defense

applies and that no genuine issue of material fact exists, we

affirm the decision of the district court.

AFFIRMED

-16-