Military Contractor Defense
SNELL V BELL HELICOPTER TEXTRON
Case Number: 95-56365
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOROTHY SNELL; CORINNE SNELL, a
minor, and SHANNON SNELL, a
minor, by and through their
Guardian ad Litem, DOROTHY
SNELL; SUSAN ADAMS; JACQUELINE
ADAMS, a minor, by and through her Guardian ad Litem, SUSAN ADAMS; THERESA CHAPMAN; SEAN CHAPMAN, a minor, by and through
his Guardian ad Litem, THERESA CHAPMAN,
BELL HELICOPTER TEXTRON, INC.,
D.C. No. CV-92-1596-GT
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., District Judge, Presiding
Argued and Submitted
November 6, 1996--Pasadena, California
Filed February 20, 1997
Before: Ferdinand F. Fernandez and Michael Daly Hawkins,
Circuit Judges, and William W Schwarzer,*
Senior District Judge.
Opinion by Judge Schwarzer
*Honorable William W Schwarzer, Senior United States District Judge
for the Northern District of California, sitting by designation.
Irwin M. Zalkin, Law Offices of Irwin M. Zalkin, San Diego,
California; Louis S. Franeke, Mack, Hazelwood & Franeke,
San Francisco, California, for the plaintiffs-appellants.
Stephen K. Brunk, Law Offices of Stephen K. Brunk, San
Diego, California, for the defendant-appellee.
SCHWARZER, Senior District Judge:
In this case we decide whether the evidence establishes as
a matter of law that the government "approved reasonably
precise specifications" entitling a government contractor to
immunity under the military contractor defense.
FACTUAL AND PROCEDURAL BACKGROUND
This is a wrongful death action brought by plaintiffs Dorothy
Snell and other members of the families of three individuals
(collectively "Snell") who perished in the crash of a
Marine Corps UH-1N helicopter. Named as defendants are
Bell Helicopter Textron Inc. ("Bell"), the manufacturer of the
helicopter, and the manufacturers of certain component parts.
The complaint alleges defects in the design and manufacture
of the drive shaft and component parts and asserts claims for
strict product liability, negligence and breach of warranty.
Bell moved for summary judgment based on the military contractor
defense. After further discovery, the district court
granted the motion on all claims. Following dismissal of the
other defendants, the court entered judgment for Bell and
Snell appealed. The district court had subject matter jurisdiction
under 28 U.S.C. S 1332, and we have appellate jurisdiction
under 28 U.S.C. S 1291. Having reviewed the summary
judgment de novo, we reverse and remand.
I. THE MILITARY CONTRACTOR DEFENSE
The military contractor defense1 is an affirmative defense;
Bell has the burden of establishing it. See McKay v. Rockwell
Int'l Corp., 704 F.2d 444, 453 (9th Cir. 1983), cert. denied,
464 U.S. 1043 (1984). The district court held that Bell "has
submitted sufficient evidence that it is entitled to the defense."
Because the matter came before the court on motion for sum-
1 The defense is also known as the "government contractor defense." In
the Ninth Circuit, however, it is only available to contractors who design
and manufacture military equipment. See Nielsen v. George Diamond
Vogel Paint Co., 892 F.2d 1450 (9th Cir. 1990).
mary judgment, however, the issue was not whether Bell had
produced sufficient evidence to establish the defense but
whether it was entitled to judgment as a matter of law, i.e.,
whether no reasonable jury could fail to find that the defense
had been established. See Boyle v. United Technologies Corp.,
487 U.S. 500, 514 (1988) ("[W]hether the facts establish the
conditions for the defense is a question for the jury."). Thus,
we must review the record to determine whether, resolving
disputed facts in favor of the parties opposing the motion, it
would permit a reasonable jury to reject the defense. Because
we conclude that a reasonable jury could find against Bell on
the first element of the military contractor defense, we reverse.2
 The Supreme Court in Boyle stated the elements of the
military contractor defense as follows:
Liability for design defects in military equipment
cannot be imposed, pursuant to state law, when
(1) the United States approved reasonably
(2) the equipment conformed to those
(3) the supplier warned the United States
about the dangers in the use of the equipment
that were known to the supplier but
not to the United States.
Id. at 512 (internal formatting added). The district court ruled
in favor of Bell on all three elements.
2 Because we reverse the order granting summary judgment, there is no
need to reach Snell's additional contention that the district court abused
its discretion by considering plaintiffs' motion for reconsideration as a
motion for relief from judgment under Fed. R. Civ. P. 60(b), rather than
a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e).
 The defense is intended to implement and protect the
discretionary function exception under the Federal Tort
Claims Act, 28 U.S.C. S 2680(a). As the Court said in Boyle,
"[i]t makes little sense to insulate the Government against
financial liability for the judgment that a particular feature of
military equipment is necessary when the Government produces
the equipment itself, but not when it contracts for the
production." 487 U.S. at 512.
 That rationale, however, is based not on a simple economic
concern for government procurement costs, but on the
government's need to exercise judgment about the appropriate
design of equipment for which it contracts. As the Court
[T]he selection of the appropriate design for military
equipment to be used by our Armed Forces is
assuredly a discretionary function . . . [which ] often
involves not merely engineering analysis but judgment
as to the balancing of many technical, military,
and even social considerations, including specifically
the trade-off between greater safety and greater combat
effectiveness. . . . [P]ermitting "second-guessing"
of these judgments through state tort suits against
contractors would produce the same effect sought to
be avoided by the FTCA exemption.
Id. at 511 (internal citation omitted). The purpose of the
requirement that the government approve reasonably precise
specifications is to ensure that the defense serves the policy
underlying the discretionary function--as the Court put it, to
"assure that the design feature in question was considered by
a Government officer, and not merely by the contractor
itself." Id. at 512; see also Butler v. Ingalls Shipbuilding, Inc.,
89 F.3d 582, 584 (9th Cir. 1996).
II. THE DESIGN DEFECT CLAIM
Snell contends that the cause of the crash was the failure of
the main drive shaft and that the failure was the result of a
design defect. The drive shaft transmits power from the
engines to the transmission through a coupling. The transmission
is suspended on vibration isolating mounts located on
pylons on the fuselage. It is connected to the main rotors
which provide lift for the helicopter. During flight, the transmission
is pulled and pushed against the mounts and the drive
shaft. If the mounts do not support the drive shaft in proper
alignment, the resulting friction (from pressure on the gear
teeth at the coupling connecting the drive shaft to the transmission)
will burn off the lubricant. This produces overheating
which causes the gear teeth in the coupling to shear off,
resulting in a loss of power. Snell alleges design and manufacturing
defects in the transmission mounts and the drive
shaft coupling which caused misalignment of the drive shaft.
The district court rested its summary judgment ruling on
the conclusion that "[t]he government was significantly
involved in and approved very precise specifications for the
UH-1N helicopter." It found that
[t]he initial draft of the specifications was produced
by [Bell] . . . . The precise design and all changes to
the Detail Specification were established by government
personnel at [lengthy] specification conferences.
. . . [where] each paragraph of the Detail
Specification was thoroughly discussed. . . . Each
specification was examined line by line by government
specialists . . . . [After approval][t]he Detail
Specification then became part of the contract and
controlled the manufacture of the helicopter. . . . The
Detail Specifications [sic] were all encompassing.
. . . [Bell] submitted all its drawings to the government
for examination, review and approval. . . . Each
drawing was signed by a representative of the government
. . . indicat[ing] approval.
On the basis of that evidence, the court found "that the government
approve[d] reasonably precise specifications."
 While the district court found, and the summary judgment
record produced by Bell establishes that the government
was significantly involved in and approved specifications for
the design of the entire helicopter, the court's ruling did not
address, as Boyle requires, whether "the design feature in
question [i.e., the drive shaft and its components] was considered
by a Government officer, and not merely by[Bell]
itself." 487 U.S. at 512. Where government "approv[al] of
reasonably precise specifications" has been found as a matter
of law, the evidence established exercise of judgment by the
government in the design of the particular feature at issue. See
Butler, 89 F.3d at 585 (Navy furnished precise specifications
for construction and functioning of the shipboard "accommodation
ladder in general and the [allegedly defective] padeye
and link in particular" and controlled the entire development
process, including testing and installation); Oliver v. Oshkosh
Truck Corp., 96 F.3d 992, 998-99 (7th Cir. 1996) (Marine
Corps was actively involved in the design process of the MK-
48 support vehicle and gave substantive input on the configuration
of the fuel and exhaust system alleged to have been
defectively designed), petition for cert. filed , 65 U.S.L.W.
3468 (Dec. 23, 1996) (96-1007); Tate v. Boeing Helicopters,
55 F.3d 1150, 1154-55 (6th Cir. 1995) (Army initially developed
and actively participated in the lengthy and intensive
design process of helicopter tandem hooks which were
alleged to be defective); Maguire v. Hughes Aircraft Corp.,
912 F.2d 67, 71 (3d Cir. 1990) (Army specifically approved
and required in its contract the installation of the allegedly
defective replacement ball bearing in a helicopter engine); see
also Kleeman v. McDonnell Douglas Corp., 890 F.2d 698,
701 (4th Cir. 1989) (design details of "main landing gear at
issue" reflected balancing of military and technological factors),
cert. denied, 495 U.S. 953 (1990); Harduvel v. General
Dynamics Corp., 878 F.2d 1311, 1318 (11th Cir. 1989) (electrical
system failure caused by wire chafing inherent in design
of "all-electric fighter," known and accepted by Air Force),
cert. denied, 494 U.S. 1030 (1990); Perez v. Lockheed Corp.
(In re Air Disaster at Ramstein Air Base, Germany) , 81 F.3d
570, 575 (5th Cir.) (modification of engine pylons at issue
made pursuant to Engineering Change Proposal requested and
agreed to by Air Force), modified on other grounds, 88 F.3d
 On the record before us, the Detail Specification for the
helicopter left the design and placement of the drive shaft and
its components to Bell. It provided:
The transmission shall be mounted on a suitable
vibration isolator. A lift link shall be attached to the
structure to carry rotor thrust loads.
Detail Specification, P 188.8.131.52.
A transmission input drive installation shall be provided.
This installation shall consist of a shaft
assembly to carry rotor thrust loads.
Detail Specification, P 184.108.40.206.1. The Detail Specification
would not support application of the defense as a matter of
law. "When only minimal or very general requirements are set
for the contractor by the United States the [military contractor
defense] is inapplicable." Butler, 89 F.3d at 585 (quoting
McKay, 704 F.2d at 450).
 The record further shows that Bell then prepared and
submitted the drawings for the entire helicopter to the government
for examination, review and approval to ensure that they
met the Detail Specification. As the district court found, this
process was conducted by government engineers with expertise
to ensure that each drawing was correct and met the
Detail Specification. Each drawing was signed by a government
representative to indicate approval. But that evidence
does not establish as a matter of law that the government
exercised its discretion with respect to the drive shaft and its
components. On the contrary, testimony of the Bell official in
charge of dealing with the military about the design of the
helicopter, who attended all of the design meetings, was that
there were no discussions with the government about the
design of the critical isolation mounts. His subsequent declaration
to the contrary does not eliminate the issue of fact
raised by his earlier testimony.
 Government approval "requires more than a rubber
stamp." Trevino v. General Dynamics Corp., 865 F.2d 1474,
1480 (5th Cir.), cert. denied, 493 U.S. 935 (1989); accord
Butler, 89 F.3d at 585. "The mere signature of a government
employee on the `approval line' of a contractor's working
drawings, without more, does not establish the government
contractor defense." Trevino, 865 F.2d at 1480 (rejecting the
defense, though the Navy had approved the design specifications
for the installation of a diving hangar on a submarine,
because the design and installation of the safety features at
issue had been left by the Navy to the contractor's discretion).
 On this record a trier of fact could find that the government
did not exercise judgment with respect to the design feature
in question, the drive shaft and its components. "If the
government contractor exercised the actual discretion over the
defective feature of the design, then the contractor will not
escape liability via the government contractor defense--the
government's rubber stamp on the design drawings notwithstanding."
Trevino, 865 F.2d at 1480.
 We conclude that the record before us does not establish
as a matter of law that the government "approved reasonably
precise specifications" and that issues of fact remain on the
application of the first prong of the military contractor
defense to the design claim.
The district court found that Bell met the second prong of
the Boyle defense, conformity with the specifications. Snell
argues on appeal that such a finding is precluded, even if the
government signed off on the government acquisition form,
because of latent defects in the helicopter. We do not reach
this issue, for in the absence of the requisite "reasonably precise
specifications," the question of whether conformity was
established as a matter of law is necessarily moot.
With respect to the third prong, failure to warn of dangers
in the use of the helicopter known to Bell but not to the government,
the district court found that the declarations of Bell's
personnel, which stated that they conveyed all dangers known
to them before delivery of the helicopter, were "sufficient evidence
to meet this prong." In light of our disposition of the
first and second prongs of the defense, we see no purpose in
addressing this issue and leave it to be resolved in further proceedings
by the district court as may be appropriate in light
of this opinion.
III. THE MANUFACTURING DEFECT CLAIM
Snell alleged that the drive shaft failure resulted from several
manufacturing defects, to wit, the use of various defective
and nonconforming components. The district court found that
virtually every part of the helicopter was addressed in a
government-approved plan and each replacement part supplied
by Bell was certified to comply with the specifications.
We agree with the district court that the military contractor
defense can apply to manufacturing defects. Although Boyle's
holding concerned liability for design defect claims, the
Court's reasoning encompasses claims alleging manufacturing
defects. As the court observed in Bailey v. McDonnell
Douglas Corp., 989 F.2d 794, 801 (5th Cir. 1993), "whether
the defense will apply cannot be determined by the label
attached to the claim. Strict adherence to the three Boyle
conditions specifically tailored for the purpose will ensure
that the defense is limited to appropriate claims. " Thus,
whether the defense applies to a claim based on an alleged
manufacturing defect depends on whether the particular product
at issue was to be manufactured in conformity with reasonably
precise specifications approved by the government.
Id. at 801-02; see also Harduvel, 878 F.2d at 1321 ("To say
that a product failed to conform to specifications is just
another way of saying that it was defectively manufactured.").
In the absence of proof of reasonably precise specifications
approved by the government, the premise of the defense--the
exercise of discretion by the government--is lacking.3
 Because the record does not permit finding as a matter
of law that the government approved reasonably precise specifications
for the drive shaft and its components, it necessarily
precludes application of the military contractor defense as a
matter of law to Snell's manufacturing defect claim.
IV. FAILURE-TO-WARN CLAIM
 The complaint, read broadly, may also allege a claim
for failure to warn. The district court did not address this
claim specifically although it granted judgment for Bell on all
claims. It did find, in connection with the third prong of the
military contractor defense, that Bell withheld no information
about dangerous aspects of the helicopter at the time of delivery.
This claim, however, may not be so limited; Snell
appears to assert a common law duty on the part of Bell to
inform the government of defects of which it learned after
delivery. We express no view on the merits of this claim. We
note only that as for the application of the military contractor
defense against it, Bell would have to show that "in making
its decision whether to provide a warning . . .[it] was acting
in compliance with reasonably precise specifications imposed
on it by the United States." Butler, 89 F.3d at 586 (internal
quotation marks omitted). The issue here is whether Bell's
3 Although conformity with government-approved specifications is
likely to be the paradigm for the defense applied to manufacturing defect
claims, the defense might also be supported by evidence that the contractor,
in selecting a particular component or employing a particular process,
was following specific directions of a government officer reflecting the
latter's exercise of judgment.
obligations under its contract with the government were in
conflict with its performance of whatever duty state law might
have imposed on it. See id. Bell has shown neither that "the
government considered the appropriate warnings, if any, that
should accompany the product," Tate, 55 F.3d at 1156, nor
that it "approved reasonably precise specifications" constraining
Bell's ability to comply with whatever duty to warn it
may have had. See Butler, 89 F.3d at 586. Summary judgment
on this claim was therefore inappropriate.
We do not decide here whether Bell may be entitled to the
military contractor defense. We decide only that on the record
before us the defense has not been established as a matter of
law, i.e., that a reasonable jury would not be required to find
that the three prongs of the defense had been proved by a preponderance
of the evidence with respect to each of Snell's
claims. We therefore REVERSE the judgment and REMAND
for further proceedings consistent with this opinion.
REVERSED and REMANDED.
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