Rodriguez v. Lockheed Martin Corp.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHANIE RODRIGUEZ, individually 

and as Guardian Ad Litem of J.C.,

a minor; SAMUEL OYOLA-PEREZ;

JULIUS RIGGINS; NILDA MEYER,

individually and as Personal

Representative of the Estate of

Wilfredo Dayandante,

Plaintiffs-Appellees, No. 10-15813

v. D.C. No.

LOCKHEED MARTIN CORPORATION;  1:08-cv-00189-

ALEXIS INTERNATIONAL, INC.; SOM-KSC

COMMONWEALTH ALUMINUM SALES OPINION

CORPORATION; JOHN DOE

CORPORATION,

Defendants,

and

GENERAL DYNAMICS ARMAMENT AND

TECHNICAL PRODUCTS, INC.,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Hawaii

Susan Oki Mollway, Chief District Judge, Presiding

Argued and Submitted

August 9, 2010—San Francisco, California

Filed November 30, 2010

Before: Susan P. Graber, Consuelo M. Callahan, and

Carlos T. Bea, Circuit Judges.

18933

18934 RODRIGUEZ v. GENERAL DYNAMICS

Opinion by Judge Callahan

18936 RODRIGUEZ v. GENERAL DYNAMICS

COUNSEL

Peter K. Batalden (argued) and Lisa Perrochet of Horvitz &

Levy LLP, Encino California; J. Stan Sexton and Gregory L.

Fowler of Shook Hardy & Bacon, LLP, Kansas City, Mis-

souri; James J. Yukevich of Yukevich Calfo & Cavanaugh,

Los Angeles, California; and Edmund Burke and John Reyes

Burke of Burke McPheeters Bordner & Estes, Honolulu,

Hawaii, for defendant-appellant General Dynamics Armament

and Technical Products, Inc.

Ward K. Brown (argued) and David E. Larson of Withers,

Brant, Igoe & Mullennix, P.C., Liberty, Missouri; and Dennis

E.W. O’Connor, Jr. of O’Connor Playdon & Guben LLP,

Honolulu, Hawaii, for plaintiff-appellees Stephanie Rodri-

guez, Julius Riggins, Samuel Oyola-Perez, Nilda Meyer, indi-

vidually and as personal representative of the estate of

Wilfredo Dayandante.

Jonathan M. Hoffman and Joan L. Volpert of Martin Bischoff

Templeton Langslet & Hoffman, LLP, Portland, Oregon, for

amicus curiae The Product Liability Counsel.

RODRIGUEZ v. GENERAL DYNAMICS 18937

OPINION

CALLAHAN, Circuit Judge:

Defendant-appellant General Dynamics Armament and

Technical Products, Inc. (“General Dynamics”), seeks to

appeal from the district court’s denial of its summary judg-

ment motion in an action arising from the premature explo-

sion of a mortar cartridge manufactured by General Dynamics

during an army training exercise in Hawaii.1 The explosion

killed Oscar Rodriguez and injured Samuel Oyola-Perez,

Julius Riggins, and Wilfredo Dayandante (collectively,

“Plaintiffs”), the other soldiers in the training detail, who

brought suit against General Dynamics alleging, inter alia,

products liability and negligence claims under Hawaii law.

General Dynamics moved for summary judgment on the mer-

its of the Plaintiffs’ claims and also on the ground that the

government contractor defense, first articulated in Boyle v.

United Technologies Corp., 487 U.S. 500 (1988), barred

Plaintiffs’ claims. The district court denied both motions,

holding that a genuine issue of material fact as to what caused

the explosion precluded summary judgment. General Dynam-

ics filed a timely notice of appeal challenging the portion of

the district court’s order denying summary judgment on the

basis of the government contractor defense. General Dynam-

ics contends that the government contractor defense confers

an immunity from suit and that the denial of summary judg-

ment may be reviewed immediately under the collateral order

doctrine. We disagree and hold that the government contrac-

tor defense is not a grant of immunity. Accordingly, the denial

of summary judgment is not immediately appealable, and we

dismiss the appeal.

1

The parties stipulated that General Dynamics manufactured the mortar

cartridge, although it was actually manufactured by General Dynamics’s

predecessor-in-interest, Martin Marietta Aluminum Sales, Inc. (“Martin

Marietta”).

18938 RODRIGUEZ v. GENERAL DYNAMICS

I.

A.

During a live-fire U.S. Army training exercise in Hawaii on

March 10, 2006, an 81mm M374A3 HE (High Explosive)

mortar cartridge exploded prematurely in the barrel of a mor-

tar. Shrapnel from the explosion killed Staff Sergeant Rodri-

guez and caused serious injuries to Oyola-Perez, Riggins, and

Dayandante.

Following the explosion, the Army conducted an investiga-

tion, which identified several possible causes of the explosion

including material defects in the cartridge and a “double load-

ing” scenario in which a cartridge was already in the tube

when another cartridge was loaded. The Army’s report con-

cluded that “the evidence and test data cannot identify the

exact cause of the malfunction incident.”

B.

The Plaintiffs brought suit against General Dynamics as the

successor to Martin Marietta alleging, inter alia, strict prod-

ucts liability and negligence claims under Hawaii state law.

The complaint alleged that the explosion was caused by a

manufacturing defect in the mortar cartridge and that the car-

tridge did not comply with the design and specifications

issued by the government. General Dynamics’s theory of the

case was that human error, specifically double-loading of the

mortar cartridges, caused the explosion.

General Dynamics moved to exclude the Plaintiffs’

expert’s opinions and also filed two motions for summary

judgment. The first motion sought summary judgment on the

merits of Plaintiffs’ strict liability negligence claims. The sec-

ond motion rested on, inter alia, the government contractor

defense.

RODRIGUEZ v. GENERAL DYNAMICS 18939

In its order addressing all of General Dynamics’s motions,

the district court first denied General Dynamics’s motion to

exclude the Plaintiffs’ expert’s opinions. The Plaintiffs’

expert stated opinions about the cause of the mortar explosion

and the court found that he was qualified to do so and that his

opinions would be helpful to the trier of fact within the mean-

ing of Rule 702 of the Federal Rules of Evidence. In particu-

lar, the court found that the expert’s opinion that the

premature explosion was caused by a defect in the cartridge

body, voiding or cracking in the high explosive filling, or a

foreign body in the high explosive filling, was reliable and

based on techniques generally accepted in the relevant expert

community.

In support of its summary judgment motions, General

Dynamics introduced the Army’s specification documents for

the cartridges, as well as affidavits attesting to Martin Mariet-

ta’s compliance with the Army’s requirements, to demonstrate

that it had complied with the government’s specifications.

After reviewing the inconclusive results of the Army’s

investigation, the district court noted that the Plaintiffs’ expert

opined, to a reasonable degree of scientific certainty, that “the

explosion was caused by a defect in the cartridge body . . . ,

excessive voiding or cracking of the high explosive filling, or

a foreign body in the high explosive filling.” On the other

hand, one of General Dynamics’s experts opined, also to a

reasonable degree of scientific certainty, that the explosion

was caused by human error in double-loading cartridges in the

mortar. General Dynamics’ other expert testified that, absent

human error, if a mortar cartridge were manufactured accord-

ing to the government’s specifications it would not explode

inside the mortar. The court also noted that Oyola-Perez, who

was injured during the explosion, asserted that double loading

was not the cause of the explosion; and that, as part of its

investigation, the Army conducted double-load tests and none

of the mortars exploded in the barrel.

18940 RODRIGUEZ v. GENERAL DYNAMICS

Addressing the negligence and strict liability claims on the

merits, and viewing the evidence in the light most favorable

to Plaintiffs, the district court held that there were disputed

issues of fact sufficient to defeat General Dynamics’ motions

for summary judgment. The district court ruled that there

were triable issues of fact as to whether the cause of the

explosion was double-loading, or a defect in the cartridge at

the manufacturing stage, or some other cause (e.g., defects in

the fabricated parts that third-party companies manufactured

and that Martin Marietta then assembled as part of the manu-

facturing process). The court further noted that there was a

question of fact as to whether Martin Marietta manufactured

the cartridge according to the government’s specifications.

General Dynamics filed a timely notice of appeal, challeng-

ing only the portion of the district court’s order denying the

government contractor defense. It also filed a “Motion to

Confirm a Stay of all Proceedings,” which the district court

denied, commenting that General Dynamics was “clearly

attempting to appeal a nonappealable order.”

II.

A.

We first determine whether we have jurisdiction over this

interlocutory appeal. Under 28 U.S.C. § 1291, our jurisdiction

is limited to appeals from final judgments. A denial of a sum-

mary judgment motion is generally not reviewable because it

is not a final judgment. See, e.g., Brodheim v. Cry, 584 F.3d

1262, 1274 (9th Cir. 2009) (citing Jones-Hamilton Co. v.

Beazer Materials & Servs., Inc., 973 F.2d 688, 693-94 (9th

Cir. 1992)). In particular, a denial of summary judgment on

the basis of an issue of material fact is ordinarily not a final

judgment and not a basis for an interlocutory appeal. See

Johnson v. Jones, 515 U.S. 304, 315-18 (1995).

[1] However, a denial of summary judgment may be

appealable under the collateral order doctrine. “[A] decision

RODRIGUEZ v. GENERAL DYNAMICS 18941

of a district court is appealable if it falls within ‘that small

class which finally determine[s] claims of right separable

from, and collateral to, rights asserted in the action, too

important to be denied review and too independent of the

cause itself to require that appellate consideration be deferred

until the whole case is adjudicated.’ ” Mitchell v. Forsyth, 472

U.S. 511, 524-25 (1985) (quoting Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949)). Under the collateral

order doctrine, a party may appeal from an order that: (1)

“conclusively determine[s] the disputed question”; (2) “re-

solve[s] an important issue completely separate from the mer-

its of the action”; and (3) would effectively be “unreviewable

on appeal from a final judgment.” Coopers & Lybrand v.

Livesay, 437 U.S. 463, 468 (1978).

[2] A denial of a claim of immunity may be an immedi-

ately appealable order within Cohen’s “narrow exception.”

Del Campo v. Kennedy, 517 F.3d 1070, 1074 (9th Cir. 2008).

We have accepted interlocutory appeals under the collateral

order doctrine where the issue is a sovereign’s absolute

immunity from suit and where qualified immunity is at issue.

See, e.g., Paine v. City of Lompoc, 265 F.3d 975, 980-81 (9th

Cir. 2001) (“As a general matter, appeals from denials on

summary judgment of claims of absolute immunity come

within the collateral issue doctrine . . . .”); Schwenk v. Hart-

ford, 204 F.3d 1187, 1195 (9th Cir. 2000) (“Although the

denial of a summary judgment motion is not ordinarily an

appealable order, this court has jurisdiction to consider an

interlocutory appeal where the ground for the motion in ques-

tion is qualified immunity.”).

The rationale for allowing an interlocutory appeal when a

court denies a motion for summary judgment grounded on

immunity is that the claimed right to immunity includes the

right not to proceed to trial; this right would be lost if not

immediately reviewable. Mitchell v. Forsyth, 472 U.S. 511,

526 (1985).

18942 RODRIGUEZ v. GENERAL DYNAMICS

The availability of an interlocutory appeal from a denial of

qualified immunity is also “limited to the purely legal ques-

tion of immunity.” Rodriguez v. Maricopa Cnty. Cmty. Coll.

Dist., 605 F.3d 703, 707 (9th Cir. 2010). “ ‘[W]here the dis-

trict court denies immunity on the basis that material facts are

in dispute, we generally lack jurisdiction.’ ” Id. (quoting Cun-

ningham v. Gates, 229 F.3d 1271, 1286 (9th Cir. 2000)).

In addition, the Supreme Court has stressed that, in apply-

ing the collateral order doctrine, “it must ‘never be allowed to

swallow the general rule that a party is entitled to a single

appeal, to be deferred until final judgment has been

entered.’ ” Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599,

605 (2009) (quoting Digital Equip. Corp. v. Desktop Direct,

Inc., 511 U.S. 863, 868 (1994)). “The justification for imme-

diate appeal must therefore be sufficiently strong to overcome

the usual benefits of deferring appeal until litigation con-

cludes.” Id.

B.

General Dynamics frames the district court’s order as a

denial of its government contractor defense, and therefore as

a denial of immunity from suit, rather than as a denial of sum-

mary judgment based on a disputed issue of material fact.

Framed this way, General Dynamics contends that it has

established each of the elements of the government contractor

defense and, therefore, the district court erred by denying it

immunity. It also asserts that it has satisfied each of the three

elements allowing for an interlocutory appeal under the collat-

eral order doctrine. Because we hold that the government con-

tractor defense is not a grant of immunity and that the district

court denied summary judgment on the basis of a disputed

issue of material fact, we dismiss this appeal.

[3] In general, the government contractor defense shields

contractors from tort liability in state or federal actions where

plaintiffs allege they sustained injuries as a result of exposure

RODRIGUEZ v. GENERAL DYNAMICS 18943

to defective products or equipment manufactured or supplied

under a government contract. In Boyle, the Supreme Court

stated that the government contractor defense involved

“uniquely federal interests” that could preempt and bar the

plaintiffs’ state law design-defect claim where the facts sup-

ported each of the three elements of the defense. 487 U.S. at

505-14. To be invoked successfully by a government contrac-

tor, the defense requires that:

Liability for design defects in military equipment

cannot be imposed, pursuant to state law, when (1)

the United States approved reasonably precise speci-

fications; (2) the equipment conformed to those

specifications; and (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. Although Boyle was limited to design defects, we

have held that the government contractor defense also applies

to actions involving manufacturing defects. Snell v. Bell Heli-

copter Textron, Inc.,, 107 F.3d 744, 749 n.3. (9th Cir. 1997).

The Court in Boyle noted that “whether the facts establish the

conditions for the defense is a question for the jury.” Id. at

514.

[4] Although the source of the government contractor

defense is the United States’ sovereign immunity, we have

explicitly stated that “the government contractor defense does

not confer sovereign immunity on contractors.” United States

ex rel. Ali v. Daniel, Mann, Johnson & Mendenhall, 355 F.3d

1140, 1147 (9th Cir. 2004) We reiterated this statement in Del

Campo, 517 F.3d at 1078 n.10.

[5] Our decision in Phillips v. E.I. DuPont deNemours &

Co. (In re Hanford Nuclear Reservation Litigation), 534 F.3d

986 (9th Cir), cert. denied, 129 S. Ct. 762 (2008), is in accord.

There we held that, because the government contractor

18944 RODRIGUEZ v. GENERAL DYNAMICS

defense was not well established when Congress enacted the

Price-Anderson Act, it did not apply to the claims there in

issue. Id. at 1002. We noted, in passing, that the defense “al-

lows a contractor-defendant to receive the benefits of sover-

eign immunity when a contractor complies with the

specifications of a federal government contract.” Id. at 1000

(emphasis added). This wording implicitly recognizes our

consistent position that the government contractor defense is

not a grant of immunity but is only a corollary financial bene-

fit flowing from the government’s sovereign immunity.

[6] The government contractor defense applies only when

a contractor meets its burden of establishing three facts: (1)

the United States set forth “reasonably precise specifications”;

(2) “the equipment conformed to those specifications”; and

(3) the supplier provided the United States with adequate

warnings of the dangers. Boyle, 487 U.S. at 512. Here, there

is no proof to establish as a matter of law that the equipment

conformed to the government’s precise specifications. In fact,

the plaintiffs’ expert determined that the premature explosion

was caused by a defect in the cartridge body, voiding or

cracking in the high explosive filling, or a foreign body in the

high explosive filling. This evidence could allow a finding of

noncompliance with the government’s precise specifications.

[7] There is evidence from which the factfinder could con-

clude that General Dynamics complied with the government’s

specifications, in which case General Dynamics will be enti-

tled to the government contractor defense. However, contrary

evidence also appears in the record and, until the requisite

facts are determined, General Dynamics is not entitled to the

government contractor defense.

[8] Once the relationship of the government contractor

defense to the underlying claims is understood, it is clear that

the district court’s order does not qualify for an interlocutory

appeal under the collateral order doctrine. The denial of the

government contractor defense at the summary judgment

RODRIGUEZ v. GENERAL DYNAMICS 18945

stage does not conclusively determine General Dynamics’ lia-

bility or even determine whether it is entitled to the govern-

ment contractor defense. Also, the ruling does not resolve any

“important issue completely separate from the merits of the

action.” Coopers & Lybrand, 437 U.S. at 468. Questions as

to the government’s specifications and as to General Dynam-

ics’ conformance with those specifications go to the heart of

Plaintiffs’ claims for negligence and strict liability, as well as

to General Dynamics’ assertion of the government contractor

defense. Finally, the trial court’s denial of the government

contractor defense will be reviewable on appeal from a final

judgment. In contrast, the denial of a claim of qualified immu-

nity is not fully correctable on appeal from a final judgment

because immunity includes the right not to be required to go

to trial, as well as a defense against a judgment. See, e.g.,

Mitchell, 472 U.S. at 525-27; Mueller v. Auker, 576 F.3d 979,

987 (9th Cir. 2009).

[9] Even if we were to treat the government contractor

defense as a claim of qualified immunity, we could not grant

General Dynamics relief. “Our jurisdiction to review an inter-

locutory appeal of a denial of qualified immunity . . . is lim-

ited exclusively to questions of law.” Wilkinson v. Torres, 610

F.3d 546, 550 (9th Cir. 2010). Here, the district court’s denial

of summary judgment rested on its finding that there is a dis-

puted issue of material fact as to whether the cause of the

explosion was double loading, a defect in the cartridge at the

manufacturing stage, or some other cause. This ruling raises

factual issues, rather than legal questions, and thus would not

be reviewable on interlocutory appeal. See Rodriguez, 605

F.3d at 707.

III.

[10] We also decline General Dynamics’ request that its

notice of appeal be treated as a petition for writ of mandamus

to resolve the Boyle defense on the merits. “The writ of man-

damus is an ‘extraordinary’ remedy limited to ‘extraordinary’

18946 RODRIGUEZ v. GENERAL DYNAMICS

causes.” Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court

(Cebull), 408 F.3d 1142, 1146 (9th Cir. 2005) (quoting

Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004)). We

treat an appeal as a writ of mandamus “only [in] exceptional

circumstances amounting to a judicial ‘usurpation of

power,’ ” or where a “clear abuse of discretion[ ] will justify

the invocation of this extraordinary remedy.” Cheney, 542

U.S. at 380 (citation omitted). Although “[w]e may treat an

appeal from an otherwise nonappealable order as a petition

for a writ of mandamus,” “[w]hether we construe the appeal

as a writ of mandamus depends on whether mandamus is

itself justified.” Hernandez v. Tanninen, 604 F.3d 1095, 1099

(9th Cir. 2010) (citation omitted).

The court will issue the writ only under very limited cir-

cumstances:

[W]e review the district court’s orders, not for an

abuse of discretion, but for clear error. Under this

standard, we will only issue the writ for usurpation

of judicial power or a clear abuse of discretion. Five

“objective principles” guide the inquiry: whether (1)

[the appealing party] has no other adequate means,

such as direct appeal, to attain the relief, (2) he will

be damaged or prejudiced in a way not correctable

on appeal, (3) the district court’s order is clearly

erroneous as a matter of law, (4) the district court’s

order is an oft-repeated error, or manifests a persis-

tent disregard of the federal rules, or (5) the district

court’s order raises new and important problems, or

issues of law of first impression.

Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 998 (9th

Cir. 2003) (citations omitted). Not every factor must be satis-

fied, and the court may deny the petition even where the fac-

tors are satisfied, because granting the writ is discretionary.

See, e.g., San Jose Mercury News, Inc. v. U.S. Dist. Court

(Ware), 187 F.3d 1096, 1099 (9th Cir. 1999).

RODRIGUEZ v. GENERAL DYNAMICS 18947

[11] Here no extraordinary circumstances justify issuance

of a writ. As we have noted, the government contractor

defense does not confer an immunity from suit, the district

court’s finding of a genuine issue of material fact is not

clearly erroneous, and General Dynamics has not shown that

it will be damaged in a manner not correctable on appeal.

Rather, General Dynamics retains the right to raise the gov-

ernment contractor defense both at trial and on appeal from a

final order of the district court. See Cordoza, 320 F.3d at 998.

IV.

[12] We dismiss this appeal for lack of jurisdiction. Con-

sistent with our prior decisions, we hold that the government

contractor defense does not confer absolute or qualified

immunity. Accordingly, the denial of a motion for summary

judgment based on the government contractor defense is not

usually appealable under the collateral order doctrine. Cer-

tainly, the district court’s order in issue here, grounded on

genuine issues of material fact, is not immediately appealable.

General Dynamics has also failed to make the type of extraor-

dinary showing required for us to treat its appeal as a petition

for an extraordinary writ of mandamus. The appeal is

DISMISSED.