Petition for Writ of Certiorari — Patricia LaCourse, Individually and as Personal Representative of the Estate of Lt. Colonel Matthew LaCourse, Petitioner v. PAE Worldwide Incorporated, et al.

App. 1

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-13883

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D.C. Docket No. 3:16-cv-00170-RV-HTC

PATRICIA LACOURSE,

Individually and as personal representative

of the Estate of Lt. Colonel Matthew LaCourse,

Plaintiff - Appellant,

versus

PAE WORLDWIDE INCORPORATED, et al.,

Defendants,

DEFENSE SUPPORT SERVICES LLC,

Witness 7,

Witness 8,

Witness 9,

JOHN DOES,

1 through 10 inclusive,

Defendants - Appellees.

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Appeal from the United States District Court

for the Northern District of Florida

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(November 17, 2020)

App. 2

Before WILSON, NEWSOM, and ANDERSON, Circuit

Judges.

NEWSOM, Circuit Judge:

This appeal requires us to decide whether and to

what extent the Death on the High Seas Act, 46 U.S.C.

§§ 30301-08, applies to Patricia LaCourse’s wrongfuldeath action, in which she alleges that PAE Worldwide

Incorporated failed to properly service and maintain

the F-16 that her husband was flying when it crashed

into the Gulf of Mexico. We must also determine

whether PAE, which was operating under a services

contract with the United States Air Force, is shielded

from liability by the so-called “government contractor”

defense.

For the reasons that follow, we hold that DOHSA

governs LaCourse’s action, that it provides LaCourse’s

exclusive remedy and preempts her other claims, and

that PAE is entitled to the protection of the government-contractor defense.

I

A

The tragic story underlying this appeal began

when an Air Force F-16 fighter jet departed Tyndall Air

Force Base, east of Panama City, Florida, for a continuation-training sortie. The only person on board was

the pilot, Matthew LaCourse, a retired Air Force Lieutenant Colonel employed as a civilian by the Department of Defense. The plan was for Lt. Col. LaCourse to

App. 3

take the jet out over the Gulf of Mexico, perform a series of training maneuvers, and then return to Tyndall

Unfortunately, he never came back. During the flight—

for reasons the parties dispute—the F-16 crashed into

the Gulf more than twelve nautical miles offshore.

Sadly, Lt. Col. LaCourse was killed.

Five years prior to the accident, PAE’s predecessor—Defense Support Services—had been awarded a

contract with the Air Force to provide aircraft service

and maintenance at Tyndall, including, as it turns out,

on the F-16 that Lt. Col. LaCourse was flying when he

crashed. In performing under the contract, PAE was

required to follow detailed guidelines and adhere to

specific standards, including Air Force Instructions

(AFIs), Technical Orders (TOs), and Job Guides (JGs),

all of which were prepared by or on behalf of the Air

Force.

F-16s are equipped with two hydraulic systems: A

and B. The systems operate independently of one another and are designed to allow the plane to continue

to fly in the event that one of them fails. Beginning two

months before the crash, the jet at issue here experienced a succession of problems that implicated one or

both of its hydraulic systems. In particular, on separate

occasions: (1) hydraulic fluid was discovered in the outboard flight-control accumulator gauge; (2) System B’s

hydraulically actuated landing gear twice failed to retract during flight; (3) a hydraulic system pressure-line

clamp on System A broke; (4) System B’s reservoir accumulator was found to be depleted; (5) a pre-flight

control check revealed a hydraulic leak; (6) System A’s

App. 4

cockpit indicator showed no pressure and System B’s

flight-control accumulator pre-charge was low; and

(7) both systems failed a “confidence run.”1 The F-16

was serviced and parts were repaired or replaced as

these problems were identified.

On the day of the crash, the F-16 experienced two

issues shortly before takeoff. First, the emergencypower unit took longer than expected to activate during the pre-flight check. Second, and more importantly

for our purposes, the jet initially failed the “pitch-override check”—in which the pilot applies full pressure to

the stick and presses a switch to make the stabilizers

at the tail move a few inches or degrees in a nose-down

direction. Despite these two “hiccups,” as one witness

called them, the jet ultimately passed all of its preflight checks, which indicated no problem with the hydraulic systems. The PAE mechanics who conducted

the pre-flight checks were satisfied that the plane was

safe to operate, and they released it for flight.

During the sortie, the F-16 performed a number of

aerial maneuvers leading up to a “pitch-back”—an

over-the-shoulder tactical maneuver in which the pilot

uses the pitch axis to rejoin another aircraft. By all accounts, everything leading up to the pitch-back appeared normal—i.e., no gauge, light, warning, or caution

indicated any problem, and there were no reports of

any vibrations, shakes, etc. The issue that led to the

1

The district court assumed that each of these problems was

related to the hydraulic systems for purposes of deciding LaCourse’s claims on summary judgment but noted that this was

“far from certain.”

App. 5

crash occurred at the end of the pitch-back maneuver—Lt. Col. LaCourse appeared to level off and there

followed, as one witness described it, “a period of no

data, no inputs, no control or . . . no maneuvers,” at

which point the jet entered a “pitch-down” from about

12,000 feet. There is no evidence that Lt. Col. LaCourse

made any effort to eject or radio for help during his final descent.2

B

Lt. Col. LaCourse’s widow and personal representative, Patricia LaCourse, filed this wrongful-death

action and jury demand in Florida state court alleging

state-law claims for negligence, breach of warranty,

and breach of contract. PAE removed the case to federal court based on federal-officer jurisdiction, diversity jurisdiction, and jurisdiction under DOHSA—

which, in relevant part, confers admiralty jurisdiction

“[w]hen the death of an individual is caused by wrongful act, neglect, or default occurring on the high

seas.” 46 U.S.C. § 30302. Resisting PAE’s removal, LaCourse disputed that federal jurisdiction existed on

any basis.

2

Although it has no real bearing on the issues before us, it’s

worth noting—by way of background—that the parties vigorously

dispute the crash’s cause. LaCourse and her experts blame the F16’s dual-hydraulic system, as well as PAE’s failure to discover,

diagnose, and address the problems. PAE and its experts, by contrast, posit that Lt. Col. LaCourse suffered a G-induced loss of

consciousness following the pitch-back.

App. 6

Once in federal court, PAE moved for partial

summary judgment, arguing that DOHSA governed

LaCourse’s suit and, accordingly, that any potential recovery should (per the statute) be limited to pecuniary

damages. The district court granted PAE’s motion and

held that DOHSA applies and “provides the exclusive

remedy for death on the high seas, preempts all other

forms of wrongful death claims, and only permits recovery for pecuniary damages.”

PAE then filed a motion to strike—or, in the alternative, for partial summary judgment—asking

the district court to strike LaCourse’s state-law

breach-of-warranty and breach-of-contract claims, as

well as her jury demand. The district court again

granted PAE’s motion, concluding that because DOHSA

preempts all other wrongful-death causes of action,

LaCourse’s warranty and contract claims had to be

stricken. The district court further held that because

all that remained was the DOHSA claim, LaCourse

was not entitled to a jury trial.

PAE subsequently moved for final summary judgment, contending that it was protected by the “government contractor” defense, which extends the United

States’ sovereign immunity to a federal-government

contractor, thereby shielding it from civil liability,

provided that, among other things, the contractor

complies with reasonably precise government specifications. The district court once again agreed with

PAE and granted it summary judgment on government-contractor grounds.

App. 7

This is LaCourse’s appeal.3

II

Before us, LaCourse argues that the district court

erred in several ways. First, she contends that the

court wrongly held that DOHSA governs this case—

both (1) because by its plain terms DOHSA applies

only when a death is caused by “wrongful act, neglect,

or default occurring on the high seas,” whereas the alleged negligence here occurred on land, and (2) because, in any event, her husband’s plane crash lacked

a “maritime nexus.” Second, LaCourse argues that the

district court erred in striking her breach-of-warranty

and breach-of-contract claims because they don’t seek

3

As PAE points out, LaCourse’s notice of appeal identified

only two of the district court’s three orders—the order striking

her non-DOHSA claims and her jury demand (Doc. 90) and the

order granting PAE final summary judgment based on the government-contractor defense (Doc. 134). The notice did not specifically state that LaCourse was also appealing the district court’s

initial order concluding that DOHSA applied and supplied her exclusive remedy (Doc. 74). LaCourse acknowledges the oversight

in her reply brief, but as she explains, it is “well settled that an

appeal is not lost if a mistake is made in designating the judgment

appealed from where it is clear that the overriding intent was effectively to appeal.” KII Outdoor, LLC v. City of Trussville, 465

F.3d 1256, 1260 (11th Cir. 2006) (citation omitted). LaCourse’s

intent to appeal all three orders is apparent from the briefing, and

PAE addressed all three orders (and constituent issues) in its response. Moreover, and in any event, our review of the latter two

orders necessarily requires us to review the district court’s determination of DOHSA’s applicability. So in short, LaCourse’s oversight hasn’t prejudiced either party and, based on our case law,

it’s appropriate to let it slide under the circumstances.

App. 8

a remedy broader than DOHSA and therefore aren’t

preempted. Finally, she asserts that the district court

improperly applied the government-contractor defense

because PAE failed to show that it complied with the

Air Force’s reasonably precise specifications for maintaining the F-16.4

We will examine each contention in turn.5

A

The first question we must address is whether

DOHSA applies to LaCourse’s suit. The district court

held that it does; LaCourse insists that it doesn’t.

In relevant part, DOHSA’s operative provision

states that

[w]hen the death of an individual is caused by

wrongful act, neglect, or default occurring on

the high seas . . . the personal representative

of the decedent may bring a civil action in admiralty against the person or vessel responsible.

4

LaCourse also contends that the district court erred in

striking her jury demand. But because—for reasons we’ll explain—we hold that the district court’s grant of summary judgment in PAE’s favor is due to be affirmed, we needn’t reach the

jury-demand issue.

5

“We review the district court’s grants of partial summary

judgment and summary judgment de novo, reviewing all facts and

reasonable inferences in the light most favorable to the nonmoving party, and applying the same standard as the district court.”

Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir.

1999).

App. 9

46 U.S.C. § 30302. DOHSA’s applicability matters,

among other reasons, because it limits a plaintiff ’s recovery to “compensation for the pecuniary loss sustained by the individuals for whose benefit the action

is brought” and thereby forecloses recovery for emotional injury and punitive damages. Id. § 30303.

1

LaCourse first argues that the district court erred

in holding that DOHSA applies because the “wrongful

act, neglect, or default” asserted here—PAE’s negligent

maintenance of the F-16—did not “occur[ ] on the high

seas,” as the Act’s plain language requires. Rather, she

says, the alleged negligence occurred on land—when

the jet was improperly serviced at Tyndall Air Force

Base. Accordingly, LaCourse contends, DOHSA doesn’t

apply to her suit.

If we were writing on a clean slate, we would almost certainly agree. LaCourse is exactly right that,

according to its language, DOHSA applies only when

the “death of an individual is caused by wrongful act,

neglect, or default occurring on the high seas.” And she

is also right that the alleged “wrongful act, neglect, or

default” here occurred not “on the high seas,” but on

terra firma. Unfortunately for LaCourse, though, we

are bound by controlling precedent to reject her plaintext argument. In Offshore Logistics, Inc. v. Tallentire, for instance, the Supreme Court observed that

“admiralty jurisdiction is expressly provided under

DOHSA [where] the accidental deaths occurred beyond

App. 10

a marine league from shore.” 477 U.S. 207, 218 (1986)

(emphasis added). So too, in In re Dearborn Marine

Service, Inc., our predecessor court, whose decisions

bind us,6 recognized that “DOHSA has been construed

to confer admiralty jurisdiction over claims arising out

of airplane crashes on the high seas though the negligence alleged to have caused the crash occurred on

land.” 499 F.2d 263, 272 n. 17 (5th Cir. 1974) (emphasis

added); accord, e.g., Smith v. Pan Air Corp., 684 F.2d

1102, 1111 (5th Cir. 1982) (“[T]he simple fact that

[plaintiff ’s] death occurred as a result of an aircraft

crash into the high seas is alone enough to confer jurisdiction under the DOHSA. . . . [A]dmiralty jurisdiction has repeatedly been extended to cases in which

death or injury occurred on navigable waters even

though the wrongful act occurred on land. The place

where the negligence or wrongful act occurs is not decisive.”) (footnote omitted). It’s not for the three of us

to second-guess the correctness of Offshore Logistics or

Dearborn Marine. Because we are bound by those decisions, we are constrained to agree with the district

court that DOHSA applies despite the fact that PAE’s

alleged negligence occurred on land at Tyndall Air

Force Base.

2

LaCourse separately argues that DOHSA doesn’t

govern here because the plane crash that killed her

6

See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir. 1981) (en banc).

App. 11

husband lacked a “maritime nexus,” which she insists

is required by the Supreme Court’s landmark admiralty decision in Executive Jet Aviation, Inc. v. City of

Cleveland, 409 U.S. 249 (1972).

In that case, a plane flying from Ohio to Maine

crashed into Lake Erie after striking a flock of seagulls

shortly after takeoff. Id. at 250. Although the crew

wasn’t injured, the plane was a total loss, so its owners

brought an action in admiralty, alleging negligence by

several airport employees. Id. at 250-51. The Supreme

Court held that maritime locality alone—there, Lake

Erie’s navigable waters—is not a sufficient predicate

for admiralty jurisdiction in aviation-tort cases, and

that “in the absence of legislation to the contrary,”

claims arising from airplane crashes are not cognizable in admiralty unless the alleged wrong bears “a

significant relationship to traditional maritime activity”—i.e., has a maritime nexus. Id. at 268. Because the

flight in Executive Jet “would have been almost entirely over land . . . within the continental United

States” and was “only fortuitously and incidentally

connected to navigable waters,” the Court determined

that it bore “no relationship to traditional maritime activity”—and, accordingly, that admiralty jurisdiction

was lacking Id. at 272-73. LaCourse argues that, like

the flight in Executive Jet, her husband’s flight—which

was intended to begin and end at Tyndall Air Force

Base—was also only “fortuitously over water” and thus

bore no significant relationship to “traditional maritime activity.”

App. 12

The problem with LaCourse’s argument is that

Executive Jet didn’t involve DOHSA—there were no injuries, let alone any fatalities to support a wrongfuldeath claim. Id. at 250. And significantly, the Supreme

Court was careful there to include a caveat when announcing its holding—namely, that a maritime nexus

is required only “in the absence of legislation to the

contrary.” Id. at 268. And indeed, the Court in a footnote specifically identified DOHSA as an example of a

statute that would constitute “legislation to the contrary.” Id. at 274 n. 26.

If Executive Jet stood alone, LaCourse’s maritimenexus argument might still have a chance. In flagging

DOHSA as an example of “legislation to the contrary,”

the Court suggested that the Act might apply only to

flights that require traversing the high seas: “Some

such flights, e.g., New York City to Miami, Florida, no

doubt involve passage over ‘the high seas beyond a marine league from the shore of any State.’ To the extent

that the terms of the Death on the High Seas Act become applicable to such flights, that Act, of course, is

‘legislation to the contrary.’ ” Id. (emphasis added). Because Lt. Col. LaCourse’s sortie didn’t require him to

fly over the ocean, the argument would go, it wasn’t one

of the “such flights” that the Executive Jet Court

thought DOHSA would cover.

But Executive Jet wasn’t the Supreme Court’s last

word on DOHSA’s application to aviation-based torts.

Rather, as already explained, the Court held in Offshore Logistics that DOHSA applies to all cases—

including aviation-related cases—in which a death

App. 13

occurs on the high-seas. See 477 U.S. at 218. In the

course of so holding, the Court explained the applicability (or non-applicability, as the case may be)

of the maritime-nexus requirement in these terms:

“[A]dmiralty jurisdiction is expressly provided under

DOHSA [where] the accidental deaths occurred beyond a marine league from shore. Even without this

statutory provision, admiralty jurisdiction is appropriately invoked here under traditional principles because the accident occurred on the high seas and in

furtherance of an activity bearing a significant relationship to a traditional maritime activity.” Id. at

218-19 (emphasis added). Translation: Where a death

occurs on the high seas, DOHSA applies, full stop; separately, in a non-DOHSA case, maritime jurisdiction

might still exist, provided that there is a maritime

nexus. To the extent that Executive Jet’s New-York-toMiami footnote left any doubt, Offshore Logistics clarified that the occurrence of a death on the high seas is

a sufficient condition to DOHSA’s application—without any further maritime-nexus gloss.7

7

In support of her maritime-nexus argument, LaCourse

points to Miller v. United States, 725 F.2d 1311 (11th Cir. 1984),

in which we assumed (without actually considering or specifically

deciding) that a maritime nexus may be required under DOHSA.

See id. at 1315 (concluding that DOHSA provided jurisdiction

over an aviation crash after determining that there was a maritime nexus on the facts of that case). We think it a full answer to

Miller to recognize that it was decided before the Supreme Court

clarified in Offshore Logistics that DOHSA imposes only a locality

requirement, and not a separate maritime-nexus requirement.

Other courts have distinguished Miller on precisely this basis,

and we agree with their assessment. See, e.g., Ventura Packers,

App. 14

In sum, then, we agree with the district court that

DOHSA doesn’t require a maritime nexus—and therefore, that because (on the Supreme Court’s interpretation) the Act applies whenever a death occurs on the

high seas, it governs LaCourse’s wrongful-death suit.

B

Having concluded that DOHSA applies to LaCourse’s action, we must now determine whether it

provides her exclusive remedy, such that it preempts

all other claims arising out of her husband’s crash.

The district court concluded that LaCourse’s

breach-of-warranty and breach-of-contract claims—

both of which she initially brought under Florida’s

Wrongful Death Act, Fla. Stat. § 768.16—had to be

stricken on the ground that where DOHSA applies it

Inc. v. F/V Jeanine Kathleen, 305 F.3d 913, 918 (9th Cir. 2002)

(listing Miller as an example of how “several courts initially presumed” that DOHSA required a maritime nexus, but noting that

those cases came before Offshore Logistics and that now, “the

prevailing view holds that DOHSA established independent requirements for the exercise of admiralty jurisdiction”); see also

Palischak v. Allied Signal Aerospace Co., 893 F. Supp. 341, 345 &

n.5 (D.N.J. 1995) (holding that “the requirement of a traditional

maritime nexus is not a prerequisite to the exercise of admiralty

jurisdiction pursuant to DOHSA,” and (citing Miller) noting that

“[w]e are unable to locate a single decision after [Offshore Logistics] in which a lower court required a maritime nexus before

applying DOHSA”); Bernard v. World Learning Inc., 2010 WL

11505188, at *8 n.14 (S.D. Fla. June 4, 2010) (acknowledging the

circuit precedent in Miller but explaining that it was decided prior

to Offshore Logistics and holding that a maritime nexus is no

longer required in DOHSA cases).

App. 15

“preempts all other forms of wrongful death claims.”

LaCourse contends that the district court erred because, she says, her state-law claims don’t seek a

remedy broader than DOHSA and therefore aren’t

preempted.

Again, while it seems to us that LaCourse might

have the plain language on her side—in a section titled

“Nonapplication,” DOHSA expressly states that it

“does not affect the law of a State regulating the right

to recover for death,” 46 U.S.C. § 30308—the controlling precedent is squarely against her. In particular,

the Supreme Court held in Offshore Logistics that

“in light of the language of the Act as a whole, the

legislative history of [§ 30308’s predecessor], the congressional purposes underlying the Act, and the importance of uniformity of admiralty law,” the provision

that is now codified at § 30308 “was intended only to

serve as a jurisdictional saving clause, ensuring that

state courts enjoyed the right to entertain causes of

action and provide wrongful death remedies both for

accidents arising on territorial waters and, under

DOHSA, for accidents occurring more than one marine

league from shore.” 477 U.S. at 221. And, the Court continued, once it is determined that § 30308 (or there, its

predecessor) “acts as a jurisdictional saving clause, and

not as a guarantee of the applicability of state substantive law to wrongful deaths on the high seas, the conclusion that the state statutes are pre-empted by

DOHSA where it applies is inevitable.” Id. at 232.

Put simply, under Offshore Logistics, § 30308

preserves only state-court jurisdiction—not state

App. 16

substantive wrongful-death law—and where DOHSA

applies, it preempts all other wrongful-death claims

under state or general maritime law. Accordingly, we

hold that the district court was correct to conclude that

DOHSA forecloses LaCourse’s breach-of-warranty and

breach-of-contract claims.

C

Having concluded that DOHSA governs LaCourse’s suit and supplies her exclusive remedy, we

must now determine whether LaCourse’s claim is

barred by the so-called “government contractor” defense. Provided that certain conditions are met, that

defense—a creation of federal common law—extends

the United States’ sovereign immunity to a government contractor, thereby protecting it against civil liability. In essence, it allows the contractor to escape

liability on the ground that it was “just following orders.” LaCourse asserts that the district court erred in

applying the government-contractor defense because

PAE failed to establish that it conformed to the government’s reasonably specific maintenance procedures.8

8

LaCourse also argues that PAE shouldn’t be entitled to immunity in this case because its maintenance contract with the Air

Force specifically stated that PAE “shall be . . . responsible for all

injuries to persons or damage to property that occurs as a result

of its fault or negligence.” But the allocation of liability between

PAE and the government has nothing to do with PAE’s immunity

from liability to a third party. Given the point of the governmentcontractor defense—to allow the government to hire contractors

to perform uniquely governmental duties without subjecting

them to the risk of liability to third parties—it would make little

App. 17

The Supreme Court fashioned the governmentcontractor defense in Boyle v. United Technologies Corporation, 487 U.S. 500 (1988). There, the Court held, in

a suit alleging design defects in military equipment,

that a private contractor could partake of the United

States’ sovereign immunity so long as the following

three conditions were satisfied: “(1) the United States

approved reasonably precise specifications; (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 dealt specifically with government

procurement contracts, we extended its analysis to

cover government service contracts in Hudgens v. Bell

Helicopters/Textron, 328 F.3d 1329 (11th Cir. 2003). To

account for the contextual switch from a design-defect

case to a negligent-maintenance case, we rejiggered

the defense’s three elements as follows: “(1) the United

States approved reasonably precise maintenance procedures; (2) [the contractor’s] performance of maintenance conformed to those procedures; and (3) [the

contractor] warned the United States about the dangers in reliance on the procedures that were known to

[the contractor] but not to the United States.” Id. at

1335.

sense to interpret the contract language as LaCourse suggests.

The far better—and we think obvious—reading is that the quoted

text merely allocates liability between PAE and the Air Force, not

liability between PAE and a third party.

App. 18

Helpfully, the parties have narrowed the focus

here. LaCourse concedes that the Air Force provided

reasonably precise maintenance procedures, so there’s

no question that the first Boyle/Hudgens element is

satisfied. And the district court held that the third element “does not apply because (as PAE has argued, and

as the plaintiff has not disputed) there is no contention

that PAE had knowledge that it withheld from the government,” and neither party appears to take issue with

that conclusion. So all seem to agree that the application of the government-contractor defense here turns

on the second Boyle/Hudgens element—whether, in

servicing the F-16, PAE conformed to the Air Force’s

reasonably precise maintenance procedures.

In its summary-judgment motion, PAE argued

that its maintenance conformed to the government’s

reasonably precise procedures, and it cited an abundance of supporting evidence, including deposition

testimony from multiple employees, an Accident Investigation Board maintenance member, and the Safety

Investigation Board investigator. See Deposition of

Timothy Davis at 7:20-8:11, 117:17-118:18 (testifying

that all maintenance performed under the contract, including the service of Lt. Col. LaCourse’s F-16, conformed to the Air Force’s rules, regulations, and

technical orders); see also Deposition of Michael Reeves

at 106:4-106:18 (similar); Deposition of Michael Bogaert at 7:8-9:20 (similar); Deposition of AIB Investigator, Captain Michelle Chiaravelle at 26:10-26:17

(similar); Deposition of SIB Investigator, Senior Master

Sergeant Marquell Fallin at 13:10-13:22, 19:8-19:23

App. 19

(similar). In light of PAE’s extensive evidence of compliance, the district court held that LaCourse failed to

present evidence that PAE violated government procedures sufficient to create a genuine dispute of material

fact.

In the “Statement of Facts” section of her opening

brief on appeal, LaCourse identified three Air Force

maintenance procedures under the subheading “The

Defendant’s Lack of Compliance with the Air Force’s

Specifications and Instructions.” First, she stated that

under AFI 21-101 ¶ 7.1, when there are system malfunctions of a “chronic nature” the aircraft “should”

(her word) be impounded and prevented from flying

until there are “ ‘investigative efforts’ to uncover the

root cause.” Second, LaCourse said that under AFI 21101 ¶ 7.5.4 an airplane “must” be impounded “following an uncommanded flight control movement,” which

she claims occurred when the stabilizers didn’t move

as directed during the final pre-flight check. Finally,

she cited TO 1-1-300, which states that a procedure

called a “functional flight check” is “normally” conducted following maintenance work and before an airplane is released to fly.

LaCourse’s contention that PAE violated reasonably precise maintenance procedures—so as to foreclose

its reliance on the government-contractor defense—

fails on numerous grounds. As an initial matter, she

has almost certainly abandoned her arguments based

on the procedures she cites. We have repeatedly held

that an appellant abandons an argument on appeal

when she fails to “specifically and clearly identif [y]” it

App. 20

or “plainly and prominently” raise it in her opening

brief. Access Now, Inc. v. Southwest Airlines Co., 385

F.3d 1324, 1330 (11th Cir. 2004); Cole v. U.S. Att’y Gen.,

712 F.3d 517, 530 (11th Cir. 2013). In particular, we will

deem an appellant to have abandoned an argument

where she makes only “passing references” to it in the

background sections of her brief—or, for that matter,

even the brief ’s argument section. Sapuppo v. Allstate

Floridian Ins. Co., 739 F.3d 678, 681-82 (11th Cir.

2014). Under our consistent precedent, LaCourse’s

scattered references to Air Force procedures in the

“Statement of the Facts” section of her opening appellate brief—followed by a single (and vague) invocation

of “AFI 21-101” on a single page in the “Argument” section—were insufficient to present a legal argument

based on PAE’s alleged noncompliance with them.

Moreover, and in any event, LaCourse’s arguments fail on the merits. With respect to AFI 21-101

¶ 7.1 and TO 1-1-300, it is enough to note that they

merely permit, rather than require, impoundment and

functional check flights, respectively, under specified

circumstances. A government contractor doesn’t violate reasonably precise maintenance procedures by

taking a course of action—repair, replacement, retesting—that those procedures at least implicitly allow.9

9

LaCourse also asserted—albeit again only in the “Statement of Facts” section of her opening brief—that Lt. Col.

LaCourse’s F-16 “should” have been impounded for a “root cause”

investigation. When pressed at oral argument about what procedure required such an investigation, LaCourse’s counsel pointed

to the following language in AFI 21-101 ¶ 7.1: “Impounding

App. 21

Had LaCourse properly presented it, an argument

based on AFI 21-101 ¶ 7.5.4—which, unlike the other

two procedures on which she relies, requires impoundment following an “uncommanded flight control movement”—might have been somewhat stronger, but for

reasons we will explain, even it would fail.

In resisting the application of the governmentcontractor defense, LaCourse cited testimony from

Timothy Davis and Michael Bogaert—PAE employees

tasked with the preflight checks on the day of the

crash—both of whom testified that Bogaert (1) didn’t

see the stabilizers move as far as they should have during the initial pitch-override check and (2) instructed

Lt. Col. LaCourse to repeat the sequence until the stabilizers performed properly. LaCourse contends that

the jet should have been grounded after the first sequence. PAE counters that Bogaert’s description of the

check indicates that Lt. Col. LaCourse simply wasn’t

performing the sequence properly, not that there was

any sort of issue with the control.

By way of background, here is the relevant portion

of Bogaert’s testimony:

aircraft and equipment enables investigative efforts to systematically proceed with minimal risk relative to intentional/unintentional actions and subsequent loss of evidence.” Oral Argument at

32:10. But even if LaCourse had developed this assertion into a

legal argument outside of the background section of her brief, the

cited language says nothing about a root-cause investigation, let

alone a mandatory one.

App. 22

Q: During the pitch override check, did you

see the horizontal stabs move at all?

A: After I got on the headset, after when [Mr.

Davis] had finished checking brakes, I got on

a headset with [Lt. Col. LaCourse] and asked

him if he had done it. He said yes. I told him I

didn’t see it. He said do you want me to do it

again. I said yes, if you don’t mind. At which

point he tried to do it again, and they didn’t

move. And I asked him, are you holding the

stick full forward, and he wasn’t. He was just

pushing, and they’re reaching over and he’s

releasing his pressure on the stick, is my best

guess. But I told him, no, [Lt. Col. LaCourse],

that’s not it, and asked him, are you holding

the stick full forward as you hit that switch.

And he did that, and it worked perfect. He released. I said that’s what I was looking for,

technique.

Even aside from abandonment, there are several

problems with LaCourse’s AFI 21-101 ¶ 7.5.4 argument.

First, whereas that procedure triggers mandatory impoundment only upon the occurrence of an “uncommanded . . . movement,” Bogaert’s testimony describes

(at most) the exact converse—a commanded non-movement. In particular, Bogaert recounted that he saw Lt.

Col. LaCourse attempt to move the stabilizers by pushing the stick (the command) but explained that they

initially “didn’t move” (the non-movement). Accordingly, it’s not at all clear to us that, by its plain terms,

AFI 21-101 ¶ 7.5.4 even applies.

App. 23

Second, LaCourse has pointed to no expert testimony or other evidence connecting attorney argument

(or, more precisely, attorney factual recitation) to an actual AFI 21-101 ¶ 7.5.4 violation. Rather, she offers

only lay testimony describing what happened during

the test. She presents no expert (or even lay) testimony

explaining why what happened constituted an “uncommanded flight control movement” triggering a mandatory impoundment. LaCourse’s evidence, we think,

is insufficient to permit a reasonable jury to find that

PAE violated AFI 21-101 ¶ 7.5.4.

Finally, even under the most charitable reading,

Bogaert’s testimony describes not a breach of procedure, but a likely pilot error—Lt. Col. LaCourse, Bogaert

said, simply wasn’t performing the check properly. Bogaert explained that Lt. Col. LaCourse wasn’t “holding the stick full forward” and that once he performed

the check using the proper technique, it “worked perfect[ly].”

For all these reasons, even if LaCourse had

properly presented an argument that PAE violated

AFI 21-101 ¶ 7.5.4, we would reject it.

*

*

*

In sum, LaCourse failed to produce evidence sufficient to create a genuine issue of material fact that

PAE violated government procedures. LaCourse’s real

argument seems to be that PAE’s mechanics should

have dug deeper into the F-16’s hydraulic-related problems, because, had they done so, they would have discovered that the hydraulic systems were compromised.

App. 24

But while what LaCourse and her experts believe PAE

should have done differently surely has some bearing

on the merits of her DOHSA-based negligence claim, it

is irrelevant to the question whether PAE is protected

by the government-contractor defense. All that matters on that score is whether PAE violated reasonably

precise government procedures, and based on the evidence presented from both parties we conclude that it

did not. Accordingly, we affirm the district court’s decision that PAE is entitled to summary judgment on government-contractor grounds.

III

For the foregoing reasons, we hold that DOHSA

applies to and governs LaCourse’s case, that the Act

provides her exclusive remedy, and that PAE is

shielded from liability by the government-contractor

defense. Accordingly, we affirm the district court’s

grant of summary judgment in favor of PAE.

AFFIRMED.

NEWSOM, Circuit Judge, with whom WILSON, Circuit Judge, joins, concurring:

I write separately to explain that, while I agree

that we must follow existing precedent to hold that

DOHSA applies to (and thereby supplies the exclusive

wrongful-death remedy for) any claim arising out of a

death occurring on the high seas—even where, as here,

App. 25

the negligence alleged to have caused the death occurred on land—I do so holding my nose, as DOHSA’s

plain language is squarely to the contrary.

As a refresher, DOHSA’s operative provision

states in relevant part that “[w]hen the death of an individual is caused by a wrongful act, neglect, or default

occurring on the high seas . . . the personal representative of the decedent may bring a civil action in admiralty against the person or vessel responsible.” 46

U.S.C. § 30302. LaCourse contends (1) that DOHSA applies only when the negligence occurred on the high

seas, without respect to where the death occurred, and

(2) that all here agree that the alleged negligence occurred on land, when the jet was improperly serviced

at Tyndall Air Force Base. Accordingly, she insists,

DOHSA doesn’t govern her case.

LaCourse’s logic, it seems to me, is unassailable.

By its plain terms, DOHSA limits its application to instances in which the “wrongful act, neglect, or default

occur[ed] on the high seas,” regardless of where the resulting death occurred. Indeed, there is no reasonable

reading of the Act by which the phrase “occurring on

the high seas” modifies the word “death” rather than

the phrase “wrongful act, neglect, or default.” One

needn’t even resort to the canons to come to that conclusion—the plain, ordinary, and obvious meaning of

the words is sufficient. (Having said that, the canons

would lead to precisely the same determination. See

Nearest-Reasonable-Referent Canon, Black’s Law Dictionary (11th ed. 2019); Antonin Scalia & Bryan A.

App. 26

Garner, Reading Law: The Interpretation of Legal Texts

152 (2012).)

Somehow, though, precedent—mounds of it, some

of it binding on us—has whistled past the text’s unmistakable focus of the location of the alleged negligence

as the decisive factor for determining DOHSA’s applicability. For instance—

•

Miles v. Apex Marine Corp., 498 U.S. 19, 25

(1990) (“DOHSA . . . create[ed] a wrongful

death action for all persons killed on the high

seas.”)

•

Offshore Logistics, Inc. v. Tallentire, 477 U.S.

207, 218 (1986) (“Here, admiralty jurisdiction

is expressly provided under DOHSA because

the accidental deaths occurred beyond a marine league from shore.”)

•

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618,

620 (1978) (noting that DOHSA creates “a

remedy in admiralty for wrongful deaths

more than three miles from shore”)

•

In re Dearborn Marine Serv., Inc., 499 F.2d

263, 272 n. 17 (5th Cir. 1974) (“DOHSA has

been construed to confer admiralty jurisdiction over claims arising out of airplane

crashes on the high seas though the negligence alleged to have caused the crash occurred on land.”)

•

Bergen v. F/V ST. PATRICK, 816 F.2d 1345,

1348 (9th Cir. 1987) (“[DOHSA] has been held

to refer to the site of an accident on the high

App. 27

seas, not to where . . . the wrongful act causing the accident may have originated.”)

•

Smith v. Pan Air Corp., 684 F.2d 1102, 1111

(5th Cir. 1982) (“[T]he simple fact that [plaintiff ’s] death occurred as a result of an aircraft

crash into the high seas is alone enough to

confer jurisdiction under the DOHSA. . . .

[A]dmiralty jurisdiction has repeatedly been

extended to cases in which death or injury occurred on navigable waters even though the

wrongful act occurred on land. The place

where the negligence or wrongful act occurs is

not decisive.”) (footnote omitted)

I could go on and on and on—this is but a small sampling of cases holding that DOHSA applies to any

claim arising out of a death occurring on the high seas,

wholly without regard to where the underlying negligence occurred. But again, that seems obviously wrong

to me.

I’m not the first to recognize the textual disconnect. The Fifth Circuit, for instance, once remarked

that “[a]t first glance, the plain text of this statutory

provision seems to indicate that DOHSA is implicated

only when the wrongful act precipitating death occurs

on the high seas.” Motts v. M/V Green Wave, 210 F.3d

565, 569 (5th Cir. 2000). But the court went on: “As subsequent courts have interpreted DOHSA, however, the

statute’s application is not limited to negligent acts

that actually occur on the high seas. The Supreme

Court has repeatedly noted that when the death itself

occurs on the high seas, DOHSA applies.” Id. My only

App. 28

disagreement with the Fifth Circuit’s assessment is

the “[a]t first glance” part. I’ve read § 30302 over and

over—glanced, peered, gawked, and glared—and I can’t

make it say anything other than that DOHSA applies

when the alleged act of negligence—rather than the resulting death—occurs on the high seas.

So how did we get ourselves into this predicament—reading DOHSA to mean something that it obviously doesn’t say? The answer, apparently, traces

back to century-old admiralty law premised on a “consummation of the injury” theory. See e.g., In re Dearborn Marine, 499 F.2d at 274 (“Historically maritime

jurisdiction has been measured by the locality of the

wrong with locality defined as where the ‘substance

and consummation of the injury’ took place.”) (citing

The Plymouth, 70 U.S. (3 Wall.) 20, 33 (1886)) (footnote

omitted). Put simply, if a claim is premised on a negligence theory, the underlying negligence isn’t complete

until it is “consummated in an actual injury.” Lasky v.

Royal Caribbean Cruises, Ltd., 850 F. Supp. 2d 1309,

1312 (S.D. Fla. 2012). So, the argument goes, a DOHSA

claim for wrongful death based on negligent service—

as we have here—accrues at the time and place where

the allegedly wrongful act culminates in an actual injury (the high seas), not when and where the negligence itself allegedly occurred (at Tyndall Air Force

Base).

That’s fine. It’s just not what the statute says.

DOHSA doesn’t say that the decedent’s personal representative may bring an action “when the death of

an individual occurring on the high seas is caused by

App. 29

wrongful act, neglect, or default”; rather, it says that

the personal representative can sue “[w]hen the death

of an individual is caused by wrongful act, neglect, or

default occurring on the high seas.” 46 U.S.C. § 30302.

End of story.

Bottom line: As in all cases, we should give effect

to DOHSA’s unambiguous language. See, e.g., Estate of

Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992)

(“The controlling principle in this case is the basic and

unexceptional rule that courts must give effect to the

clear meaning of statutes as written.”). If it were up to

me, I would hold that DOHSA doesn’t apply here because the alleged negligence—the failure to properly

maintain the F-16 that Lt. Col. LaCourse was piloting

when he crashed—occurred on land, not on the high

seas.

App. 30

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PATRICIA LACOURSE,

individually and as Personal

Representative of the Estate

of Lt. Col. Matthew LaCourse,

Plaintiff,

Case No.

3:16cv170-RV/CJK

v.

DEFENSE SUPPORT

SERVICES LLC, et al.,

Defendants.

/

ORDER

(Filed Feb. 23, 2018)

Now pending before the court is a motion for

partial summary judgment filed by defendant PAE

Aviation Technical Services LLC, f/k/a Defense Support Services LLC (doc. 56). The plaintiff, Patricia

LaCourse, has filed a response in opposition (Pl. Resp.),

and the defendant has filed a reply in further support.

I.

Standard of Review

Summary judgment is appropriate if all the pleadings, discovery, affidavits, and disclosure materials on

file show that there is no genuine disputed issue of material fact, and the movant is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a), (c). The plain language of Rule 56(c) mandates the entry of summary

App. 31

judgment, after adequate time for discovery and upon

motion, against any party who fails to make a showing

sufficient to prove the existence of an element essential

to that party’s case, and on which that party will bear

the burden of proof at trial. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

Summary judgment is inappropriate “[i]f a reasonable factfinder evaluating the evidence could draw

more than one inference from the facts, and if that inference introduces a genuine issue of material fact[.].”

Allen v. Board of Public Educ. for Bibb County, 495 F.3d

1306, 1315 (11th Cir. 2007). An issue of fact is “material” if it might affect the outcome of the case under the

governing law. Anderson v. Liberty Lobby Inc., 477 U.S.

242, 248 (1986). It is “genuine” if the record, viewed as

a whole, could lead a reasonable fact finder to return a

verdict for the non-movant. Id. In considering a motion

for summary judgment, the non-movant’s evidence is

to be believed and all reasonable inferences drawn in

its favor. See Stephens v. DeGiovanni, 852 F.3d 1298,

1313 (11th Cir. 2017) (citing Anderson, supra).

II.

Background

A.

Facts

The defendant’s motion raises a pure issue of law,

so the pertinent facts can be stated very briefly.

On November 6, 2014, a U.S. Air Force F-16

Fighting Falcon jet fighter (also known as a Viper) departed Tyndall Air Force Base, east of Panama City,

App. 32

Florida, for a continuation training (CT) sortie. The

only person on board was the pilot, Matthew LaCourse,

a 58-year old retired Air Force Lieutenant Colonel employed as a civilian by the Department of Defense. During the flight—for reasons the parties dispute, but

which are not relevant here—the jet crashed into the

Gulf of Mexico more than twelve nautical miles from

shore where, tragically, LaCourse was killed.

B. Procedural History

Patricia LaCourse, LaCourse’s widow and personal representative of his estate, filed a wrongful

death action in Florida state court against numerous

individuals and corporate entities that reportedly serviced and performed maintenance on the jet prior

to the crash, including the defendant. The complaint

alleged that the aircraft had been negligently serviced/maintained before the flight, and it sought “all

damages permitted by law in an amount in excess of

five million dollars ($5,000,000). . . .” The defendant removed the action to this federal court based on admiralty jurisdiction and the Death on the High Seas Act

(DOHSA).1

III. Discussion

DOHSA provides that:

When the death of an individual is caused by

wrongful act, neglect, or default occurring on

1

The notice of removal asserted federal officer and diversity

jurisdiction as well.

App. 33

the high seas beyond 3 [now 12] nautical

miles from the shore of the United States, the

personal representative of the decedent may

bring a civil action in admiralty against the

person or vessel responsible. The action shall

be for the exclusive benefit of the decedent’s

spouse, parent, child, or dependent relative.[2]

46 U.S.C. § 30302. The statute limits recovery to “fair

compensation for the pecuniary loss sustained by the

individuals for whose benefit the action is brought.” 46

U.S.C. § 30303; see also, e.g., Dooley v. Korean Air Lines

Co. Ltd., 524 U.S. 116,123 (1998) (“By authorizing only

certain surviving relatives to recover damages, and by

limiting damages to the pecuniary losses sustained by

those relatives, Congress provided the exclusive recovery for deaths that occur on the high seas.”); accord

Martins v. Royal Caribbean Cruises, Ltd., 2017 WL

1345117, at *2 (S.D. Fla. 2017) (“DOHSA limits recovery to the pecuniary loss sustained by the individuals for whose benefit the action is brought. Therefore,

DOHSA bars recovery for non-pecuniary damages,

such as pain and suffering, mental anguish and loss of

2

As originally drafted in 1920, DOHSA applied to wrongful

death “on the high seas beyond a marine league from the shore,”

i.e., beyond three nautical miles In 1988, President Reagan issued

Proclamation 5928, “which . . . extended United States territorial

waters from three to 12 miles.” In re Air Crash Off Long Island,

New York, on July 17, 1996, 209 F.3d 200, 209 (2d Cir. 2000). In

light of this proclamation, DOHSA now applies to accidents occurring more than twelve nautical miles from the shore of any

state. Id. at 213 (“the effect of the Proclamation is to move the

starting point of the application of DOHSA from three to 12 miles

from the coast”).

App. 34

society. The amount of permissible damages available

[to plaintiffs] under DOHSA is extremely limited. . . .”);

Lasky v. Royal Caribbean Cruises, Ltd., 850 F. Supp. 2d

1309, 1312 (S.D. Fla. 2012) (noting “it is well-settled

that where DOHSA applies, it preempts all other forms

of wrongful death claims under State or general maritime law,” and further noting “DOHSA does not permit

Plaintiff to recover[ ] non-pecuniary damages”) (citing

multiple cases).

In its motion for summary judgment, the defendant seeks a ruling that this case falls under DOHSA

and is subject to its statutory limitation on damages.

Although the circumstances of LaCourse’s death fit

within the literal language of the statute—that is to

say, he died more than twelve nautical miles from

shore—the plaintiff contends that DOHSA does not apply to the facts of this case for two reasons: (1) the negligent service or maintenance of the aircraft “took

place only on land and not on water, and certainly not

more than 12 miles from the coast of Florida;” and

(2) the flight was a military training sortie “intended

to originate and terminate at the same spot, on land at

Tyndall AFB Florida, and it did not have a maritime

nexus.” See Pl. Resp. at 14. I will address each argument in turn.

A. Location of the Alleged Negligence

The plaintiff acknowledges that LaCourse’s death

was on the high seas, but she maintains that the negligence was on land at Tyndall Air Force Base. See Pl.

App. 35

Resp. at 8, 15. She contends that under the plain language of the statute, DOHSA only applies if death is

caused by a “wrongful act, neglect, or default occurring

on the high seas.” See id. at 15 (quoting 46 U.S.C.

§ 30302). In other words, as plaintiff reads the statute,

the negligence—and not necessarily the death—must

occur at sea. See id.

The plaintiff ’s interpretation “is a plausible reading of the act’s text, “Hassanati v. International Lease

Fin. Corp., 2011 WL 13177480, at *8 (C.D. Cal. 2011)

(noting same), but it is unsupported by case law. See id.

(citing and discussing multiple cases); see also, e.g.,

Motts v. M/V Green Wave, 210 F.3d 565, 567, 569 (5th

Cir. 2000) (“At first glance, the plain text of this statutory provision seems to indicate that DOHSA is implicated only when the wrongful act precipitating death

occurs on the high seas. . . . As subsequent courts have

interpreted DOHSA, however, the statute’s application

is not limited to negligent acts that actually occur on

the high seas.”) (citing multiple cases). Thus, as the former Fifth Circuit stated in In re Dearborn Marine

Serv., 499 F.2d 263 (5th Cir. 1974): “DOHSA has been

construed to confer admiralty jurisdiction over claims

arising out of airplane crashes on the high seas though

the negligence alleged to have caused the crash occurred on land.” Id. at 272 n.17 (emphasis added) (citing additional cases) (binding precedent under Bonner

v. Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)); see

also, e.g., Motts, supra, 210 F.3d at 567, 569-70 (noting

“when the death itself occurs on the high seas, DOHSA

applies,” and that is so “even if a party’s negligence is

App. 36

entirely land-based”); Ostrowiecki v. Aggressor Fleet,

2008 WL 3874609, at *4 (E.D. La. 2008) (“In order for

DOHSA to apply, the acts causing the death need not

occur on the high seas as long as the death itself occurs

there.”)

As the Ninth Circuit has stated:

[DOHSA] has been held to refer to the site of

an accident on the high seas, not to where . . .

the wrongful act causing the accident may

have originated. It is therefore irrelevant that

. . . decisions contributing to the St. Patrick’s

unseaworthiness may have occurred onshore

or within territorial waters. DOHSA applies

to plaintiffs’ suits because the St. Patrick’s accident causing death occurred on the high

seas.

Bergen v. F/V St. Patrick, 816 F.2d 1345, 1348 (9th Cir.

1987); accord Zapata v. Royal Caribbean Cruises Ltd.,

2013 WL 1296298, at *4 (S.D. Fla. 2013) (“DOHSA

cases have never distinguished between negligent acts

or omissions occurring on land and those occurring at

sea. Accordingly, the question ofwhether RCCL’s alleged wrongful acts or omissions occurred on land or

on high seas is irrelevant, and DOHSA provides the

only remedy to Plaintiff.”) (citing Balachander v. NCL

(Bahamas), Ltd., 800 F. Supp. 2d 1196, 1201 (S.D. Fla.

2011) (same)); Bernard v. World Learning, Inc., 2010

WL 11505188, at *8 (S.D. Fla. 2010) (noting “DOHSA

applies where an accident and death occur on the high

seas, regardless of whether death was proximately

caused by negligence on land”). As then-district (now

App. 37

circuit) Judge Marcus observed in Moyer v. Rederi, 645

F. Supp. 620 (S.D. Fla. 1986): “authority is clear that a

cause of action under DOHSA accrues at the time and

place where an allegedly wrongful act or omission was

consummated in an actual injury, not at the point

where previous . . . negligence allegedly occurred.” Id.

at 627; Varner v. Celebration Cruise Line, 2015 WL

12868132, at *2 (S.D. Fla. 2015) (citing Moyer); Lasky,

supra, 850 F. Supp. 2d at 1312 (same); Fojtasek v. NCL

(Bahamas) Ltd., 613 F. Supp. 2d 1351, 1354 (S.D. Fla.

2009) (same).

One oft-cited case, Lacey v. L. W. Wiggins Airways,

95 F. Supp. 916 (D. Mass. 1951), is factually very similar to ours. The defendant in that case was under contract to inspect and service an airplane at Logan

International Airport prior to take off. The airplane

later crashed into the sea, killing the pilot, and the decedent’s estate brought suit alleging that the “failure

to inspect the plane, or negligent inspection of the

plane, or failure to inform the owner of a defect discovered, while the craft was on land, resulted in an accident on the high seas which caused the death of the

[pilot].” Id. at 917. The district court stated there (exactly as plaintiff has argued here): “It appears that the

phrase ‘occurring on the high seas’ . . . is adjectival of

‘wrongful act, neglect, or default’, rather than of

‘death’. . . . The statute is taken to mean, therefore,

that the wrongful act, neglect or default which caused

the death must have occurred on the high seas if a

right of action is to exist.” Id. at 918. However, the court

then proceeded to ask: “What is the import of ‘wrongful

App. 38

act, neglect, or default occurring on the high seas?’ ” Id.

It answered that question as follows:

The court concludes that when the statute

speaks of “wrongful act, neglect, or default occurring on the high seas”, it contemplates the

substance of the occurrence which resulted in

death and gave rise to a right to recover. The

substance of the occurrence here was not

merely the act or omission to act attributable

to the respondent while the craft was on land.

If the respondent failed to make a proper inspection of the craft, or failed to remedy a defect properly, or failed to notify the owner of

defects discovered during inspection and repair, the effect of such failure was not spent

until the plane fell to the sea. It appears from

the allegations in the [complaint] that the

wrongful act was consummated wholly upon

the water where the victim met his death.

There is no “shore flavor” whatever to the substance of the occurrence, the consummation of

the wrongful act as distinguished from its

origin. Using the language of Mr. Justice Butler, delivering the opinion of the Supreme

Court in [Vancouver S.S. Co. v. Rice, 288 U.S.

445, 448 (1933)], the foundation of the right to

recover is a wrongful act or omission taking

effect on the high seas. This is a maritime tort

[under DOHSA], and upon it the [plaintiff ’s]

claim rests.

App. 39

Id. (emphasis added); see also Brown v. Eurocopter

S.A., 38 F. Supp. 2d 515, 517 (S.D. Tex. 1999) (noting

Lacey is “often cited” for this “instructive language”).3

None of the cases that plaintiff has cited are to the

contrary. See Pl. Resp. at 17. For example, she quotes

Lasky, supra, 850 F. Supp. 2d at 1312, which in turn

quoted Moyer, supra, 645 F. Supp. at 627, wherein the

courts noted that ‘the right to recover for death depends upon the law of the place of the act or omission

that caused it and not upon that of the place where

death occurred.’ ” However, as the defendant points out

in its reply memorandum, that quoted sentence was

made in the context of cases where a mortal injury occurred on the high seas, and those courts held that

3

The foregoing case law is just a small sample of the cases

holding that DOHSA is not limited to negligence at sea. There are

numerous others. In In the Matter of the Complaint v. Sea Star

Line, 2016 WL 6609219 (M.D. Fla. 2016), for example, a cargo

ship sank near the Bahamas and thirty-three people were killed.

Several of their estates filed suit under the Florida Wrongful

Death Act and maritime law, alleging negligence by both the ship

captain and the shipowners. The captain argued that “DOHSA

provides the exclusive relief against him in this case because the

deaths occurred on the high seas,” while plaintiffs argued in reply

that “DOHSA does not apply” because they alleged that some of

the negligence occurred on land while the ship was docked in the

Port of Jacksonville. See id. at *1-3. Citing several of the cases

noted above, Judge Schlesinger wasted little time holding that

“case law makes clear that DOHSA applies where death . . . occurs on the high seas, regardless of where other acts of negligence

may have occurred before . . . the fatal accident.” Id. at *3; see

also, e.g., Smith v. Pan Air Corp., 684 F.2d 1102, 1111 (5th Cir.

1982) (holding that DOHSA applied to fatal aircraft crash at sea

and stating “the place where the negligence or wrongful act occurs

is not decisive”).

App. 40

DOHSA applied even though the decedent survived

long enough to make it to the shore. Thus, applying

those two cases here would mean if LaCourse had initially survived the crash but later succumbed to his injuries while on land, DOHSA would still apply. The

cases do not say that DOHSA only applies if the underlying negligence occurred on the high sea. In fact, as

earlier noted, they literally say the opposite. Moyer,

645 F. Supp. at 627 (“authority is clear that a cause of

action under DOHSA accrues at the time and place

where an allegedly wrongful act or omission was consummated in an actual injury, not at the point where

previous . . . negligence allegedly occurred”); see also

Lasky, 850 F. Supp. at 1312 (quoting same).

Consequently, the plaintiff ’s argument that

DOHSA does not apply because she alleges negligence on land at Tyndall Air Force Base must be

rejected.

B. Maritime Nexus

In Executive Jet Aviation v. City of Cleveland, 409

U.S. 249 (1972), an airplane took off from Cleveland,

Ohio, heading for Portland, Maine. Shortly after take

off, the aircraft struck a flock of seagulls, and the birds

were ingested into the engine, which caused the plane

to almost completely lose power and crash into the

navigable waters of Lake Erie. The crew was not injured, but the aircraft soon sank and was declared a

total loss. Subsequently, the owners brought an action

against the City of Cleveland in admiralty for loss of

App. 41

the plane, alleging negligence by the airport, airport

manager, and air traffic controller. The district court

dismissed the case, holding that it was not “cognizable

in admiralty”—despite that most of the damage to the

aircraft occurred only after and because it sank in navigable water—and the Sixth Circuit affirmed. The

plaintiffs appealed to the Supreme Court. In affirming,

the Court held that a two-part test must be satisfied

for there to be admiralty jurisdiction on the facts of

that case: (1) the alleged wrong must have occurred or

been located on or over “navigable waters,” and, importantly, (2) it must “bear a significant relationship to

traditional maritime activity.” Id. at 268. Because the

airplane in Executive Jet was to fly from Cleveland to

Portland (which means it “would have been almost

entirely over land . . . within the continental United

States”), the Supreme Court found that it was “only

fortuitously and incidentally connected to navigable

water,” and thus it bore “no relationship to traditional

maritime activity.” Id. at 272-73.

For her second argument, the plaintiff contends

that DOHSA is not applicable to this case because

there is no admiralty jurisdiction under Executive Jet.

Specifically, she argues that because LaCourse’s sortie

was intended to begin and end at the same spot on

land at Tyndall Air Force Base—and it was merely

“fortuitously over water” at the time of the crash—it,

too, did not have a significant relationship to “traditional maritime activity.” See generally Pl. Resp. at 1622. This argument must be rejected, however, because

“the maritime nexus requirement has been explicitly

App. 42

adopted only for torts occurring on the navigable

waters within the United States and not for torts

occurring on the high seas.” Palischak v. Allied Signal

Aerospace Co., 893 F. Supp. 341, 344-45 (D.N.J. 1995)

(citing Executive Jet, 409 U.S. at 268) (emphasis

added).

Furthermore, the Supreme Court stated in Executive Jet that a maritime nexus is only required “in the

absence of legislation to the contrary,” and it expressly

stated in footnote 26 that DOHSA was such a statute:

Some [flights between points within the continental United States], e.g., New York City to

Miami, Florida, no doubt involve passage over

“the high seas beyond a marine league from

the shore of any State.” To the extent that the

terms of the Death on the High Seas Act become applicable to such flights, that Act, of

course, is “legislation to the contrary.”

409 U.S. at 268, 274 & n.26 (emphasis added). Thus, as

the Second Circuit has noted:

Appellant argues that it was error for the District Court to rule that her wrongful death

claim was governed by the Death on the High

Seas Act, 46 U.S.C. § 761 et seq. (“DOHSA”).

Although she concedes that the circumstances

of Mayer’s death clearly fall within the literal

language of DOHSA, she nevertheless urges

that DOHSA should apply only if the alleged

wrong bears a significant relationship to

traditional maritime activity. See Executive

Jet Aviation, Inc. v. Cleveland, 409 U.S. 249

(1972). In Executive Jet, the Supreme Court

App. 43

emphasized that the nexus requirement is a

predicate for admiralty jurisdiction in cases

where there is no controlling statute to the

contrary. Id. at 268, 271. DOHSA is specifically mentioned to illustrate such a statute. Id.

at 271 n.20, 274 n.26.

Mayer v. Cornell University, 107 F.3d 3, 4 (2d Cir. 1997)

(emphasis added). The Fifth Circuit has similarly

stated:

the Court in Executive Jet noted that the federal courts are to apply the two-pronged test

for admiralty jurisdiction “in the absence of

legislation to the contrary.” DOHSA qualifies

as “legislation to the contrary.” So even if the

two-pronged test for admiralty jurisdiction

has not been met, DOHSA confers federal admiralty jurisdiction where the injury or accident resulting in death occurred while the

decedent was at sea.

Motts, supra, 210 F.3d at 571 (internal citation omitted); see also, e.g., Wolf v. Tico Travel, 2011 WL

5920918, at *3 n.3 (D.N.J. 2011) (relying on footnote

26 in holding that “[b]ecause DOHSA applies . . . the

Court need not go through an Executive Jet analysis”);

Bernard, supra, 2010 WL 11505188, at *8 n.14 (noting

“DOHSA does not require a maritime nexus”) (collecting multiple cases); accord Palischak, supra, 893

F. Supp. at 345 (stating that “the two-pronged test referred to in Executive Jet . . . only applies in the absence of a statute to the contrary, and the Supreme

Court in Executive Jet repeatedly and explicitly emphasized that DOHSA was such a statute . . . therefore,

App. 44

the requirement of a traditional maritime nexus is not

a prerequisite to the exercise of admiralty jurisdiction

pursuant to DOHSA”) (quoting Friedman v. Mitsubishi

Aircraft Int 1, 678 F. Supp. 1064, 1065 (S.D.N.Y. 1988));

Kunreuther v. Outboard Marine Corp., 757 F. Supp.

633, 634 (E.D. Pa. 1991) (quoting Friendman and holding same).

The plaintiff acknowledges footnote 26 in Executive Jet, but because that case involved property damage and not wrongful death, she dismisses it as mere

dicta. See Pl. Resp. at 20 & n.3. There are at least two

problems with this.

First, as the Eleventh Circuit has stated, “there is

dicta and then there is dicta, and then there is Supreme Court dicta.” Schwab v. Crosby, 451 F.3d 1308,

1325 (11th Cir. 2006). Dicta from the Supreme Court

“ ‘is not something to be lightly cast aside.’ ” Id. (quoting Peterson v. BMI Refractories, 124 F.3d 1386, 1392

n.4 (11th Cir. 1997)); see also United States v. Becton,

632 F.2d 1294, 1296 n.3 (5th Cir. 1980) (“We are not

bound by dicta, even of our own court . . . Dicta of

the Supreme Court are, of course, another matter.”);

United States v. City of Hialeah, 140 F.3d 968, 974

(11th Cir. 1998) (stating that “[e]ven though that statement by the Supreme Court . . . was dictum, it is of considerable persuasive value”).

Second, and more importantly, as the district court

noted in Palischak, supra, 893 F. Supp. at 345, “any

confusion on this issue was cleared up” fourteen years

after Executive Jet when the Supreme Court decided

App. 45

Offshore Logistics v. Tallentire, 477 U.S. 207 (1986). In

Tallentire, the Court plainly stated that “admiralty jurisdiction is expressly provided under DOHSA” when

wrongful death occurs more than three (now twelve)

nautical miles off the shore. See 477 U.S. at 218. Following that decision, and as the previously-cited cases

make clear, federal courts have frequently (and, as far

as I can tell, uniformly) held that a maritime nexus is

not required for such deaths to fall within the statute.

See, e.g., Ventura Packers, Inc. v. F/V Jeanine Kathleen,

305 F.3d 913, 918 (9th Cir. 2002) (noting “several courts

initially presumed” the maritime nexus requirement,

but post-Tallentire “the prevailing view holds that

DOHSA established independent requirements for the

exercise of admiralty jurisdiction”); Motts, supra, 210

F.3d at 570-71 & n.4 (“the correct view” post-Tallentire

is “DOHSA supplies admiralty jurisdiction independent of any doctrinal test,” therefore, “the two-pronged

test for admiralty jurisdiction [does not have to be]

met”); see also Palischak, supra, 893 F. Supp. at 345 &

n.5 (holding “the requirement of a traditional maritime

nexus is not a prerequisite to the exercise of admiralty

jurisdiction pursuant to DOHSA,” and noting “[w]e are

unable to locate a single decision after Tallentire in

which a lower court required a maritime nexus before

applying DOHSA”).4

4

The plaintiff has cited two district court cases that applied

Executive Jet’s maritime nexus test to fatal plane crashes on the

high seas. See Pl. Resp. at 22 (citing Brons v. Beech Aircraft Corp.,

627 F. Supp. 230 (S.D. Fla. 1985), and Hayden v. Krusling, 531

F. Supp. 468 (N.D. Fla. 1982)). Brons, in turn, relied on Miller v.

United States, 725 F.2d 1311 (11th Cir. 1984), where the Eleventh

App. 46

In light of the foregoing law, it is irrelevant

whether LaCourse’s F-16 bore a “significant relationship to traditional maritime activity.” What matters is

that at the time of the crash it is undisputed he was

more than twelve nautical miles from shore. That is all

that is required under DOHSA. As the Fifth Circuit

has succinctly stated: ‘The simple fact that [the decedent’s] death occurred as a result of an aircraft crash

into the high seas is alone enough to confer jurisdiction under the DOHSA.’ ” Motts, supra, 210 F.3d at 569

(quoting Smith v. Pan Air Corp., 684 F.2d 1102, 1111

(5th Cir. 1982)); see also id. at 570 n.2 (a finding that

“admiralty jurisdiction could exist under DOHSA

without a maritime nexus” has been described as “consistent with DOHSA’ s framework and purpose”) (citation omitted).

Circuit presumed that a maritime nexus may be required under

DOHSA. See id. at 1315 (concluding that DOHSA provided jurisdiction over aviation crash after finding that there was a maritime nexus on the facts of that case). But, as several courts have

noted—including at least one district court in this circuit—those

decisions were all pre-Tallentire. See Ventura Packers, supra, 305

F.3d at 918 (listing Miller as an example of the “several courts

[that] initially presumed” DOHSA required a maritime nexus, but

noting the cases were before Tallentire); Palischak, supra, 893

F. Supp. at 345 (citing Miller and Brons and noting same); see also

Bernard, supra, 2010 WL 11505188, at *8 n.14 (S.D. Fla. 2010)

(acknowledging the circuit precedent in Miller, but noting it was

“decided prior to Tallentire” and a maritime nexus is no longer

required).

App. 47

IV. Conclusion

As stated above, the plaintiff ’s claims are subject

to DOHSA. Because DOHSA provides the exclusive

remedy for death on the high seas, preempts all other

forms of wrongful death claims, and only permits recovery for pecuniary damages, the plaintiff must proceed under that statute and is barred from seeking

non-pecuniary damages in this action. To that extent,

the defendant’s motion for partial summary judgment

(doc. 56) is GRANTED.

DONE and ORDERED this 23rd day of February

2018.

/s/ Roger Vinson

ROGER VINSON

Senior United States

District Judge

App. 48

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PATRICIA LACOURSE,

individually and as Personal

Representative of the Estate

of Lt. Col. Matthew LaCourse,

Plaintiff,

Case No.

3:16cv170-RV/CJK

v.

DEFENSE SUPPORT

SERVICES LLC, et al.,

Defendants.

/

ORDER

(Filed Oct. 31, 2018)

On November 6, 2014, a U.S. Air Force F-16

Fighting Falcon jet fighter (also known as a Viper) departed Tyndall Air Force Base, east of Panama City,

Florida, for a continuation training (CT) sortie. The

only person on board was the pilot, Matthew LaCourse,

a 58-year old retired Air Force Lieutenant Colonel employed as a civilian by the United States Department

of Defense. During the flight, the jet crashed into the

Gulf of Mexico more than 12 nautical miles from shore

where, tragically, LaCourse was killed.

Patricia LaCourse, LaCourse’s widow and personal representative of his estate, filed a wrongful

death action in Florida state court against numerous

individuals and corporate entities that allegedly serviced and performed maintenance on the jet prior to

App. 49

the crash, including defendant Defense Support Services LLC. The plaintiff alleged that the defendant

negligently serviced or maintained the aircraft before

take-off and that said negligence caused the crash. The

complaint asserted three wrongful death-based claims:

“Wrongful Death Caused by Negligence” (Count 1);

“Wrongful Death Caused by Breach of Warranty”

(Count 2); and “Wrongful Death Caused by Breach of

Contract” (Count 3). The plaintiff sought “all damages

permitted by law in an amount in excess of five million

dollars ($5,000,000),” and she requested a jury trial.

The defendant timely removed the action to this

federal court based on several jurisdictional bases, including federal officer and diversity jurisdiction. In addition, the defendant’s notice of removal asserted

jurisdiction based on the Death on the High Seas Act

(DOHSA). See, e.g., Motts v. M/V Green Wave, 210 F.3d

565, 569 (5th Cir. 2000) (“The simple fact that [the decedent’s] death occurred as a result of an aircraft crash

into the high seas [more than 12 nautical miles from

shore] is alone enough to confer jurisdiction under the

DOHSA.’ ”). However, the plaintiff disputed that there

was federal jurisdiction in this case on any basis (doc.

22 at 1-3 & ¶4). Subsequently, the defendant moved for

partial summary judgment, seeking a ruling from the

court (1) that plaintiff ’s claims did fall under DOHSA,

and (2) that, pursuant to the statute, any potential recovery would be limited to pecuniary damages. The

plaintiff opposed the motion.

By order dated February 23, 2018, I granted the

defendant’s motion for partial summary judgment on

App. 50

both contested points, expressly holding that “the

plaintiff ’s claims are subject to DOHSA” and that

“DOHSA provides the exclusive remedy for death on

the high seas, preempts all other forms of wrongful

death claims, and only permits recovery for pecuniary

damages.” See Order at 13 (emphasis added).

The defendant has now filed a motion to strike (or,

in the alternative, a motion for partial summary judgment), asking that I strike (or grant summary judgment as to) the plaintiff ’s breach of warranty and

breach of contract claims and her jury demand (doc.

82). The plaintiff filed a response in opposition (doc.

83); the defendant filed a reply to that response (doc.

84); the plaintiff filed a supplement in further opposition (doc. 86); and the defendant then filed a supplemental reply (doc. 87).

With respect to the breach of warranty and breach

of contract claims (both of which arise out of the alleged wrongful death), they must obviously be stricken.

My previous ruling that DOHSA applies and “preempts all other forms of wrongful death claims” is the

law of the case. Order at 13; see also id. at 3-4 (citing

and quoting Lasky v. Royal Caribbean Cruises, Ltd.,

850 F. Supp. 2d 1309, 1312 (S.D. Fla. 2012) (noting “it

is well-settled that where DOHSA applies, it preempts

all other forms of wrongful death claims under State

or general maritime law”) (citing multiple cases)).

Consequently, all that remains in this case is the

DOHSA claim. That means the jury demand must be

stricken, too. See, e.g., Tallentire v. Offshore Logistics,

App. 51

Inc., 800 F.2d 1390, 1391 (5th Cir. 1986) (specifically

holding that where the “sole predicate” for liability is

DOHSA, the plaintiff “is not entitled to a jury trial”)

(citing Curry v. Chevron, USA, 779 F.2d 272, 274 n.1

(5th Cir. 1985) (“DOHSA actions are brought in admiralty and as such no trial by jury may be had.”));

Reistetter v. Royal Caribbean Cruises Ltd., 2008 WL

5397139, at *1 n.2 (S.D. Fla. 2008) (“It is clear that

Plaintiff ’s claims arising under [DOHSA] are cognizable only in admiralty, with no right to trial by jury.”)

(citing Tallentire, supra, and Neenan v. Carnival Corp.,

2001 WL 91542 (S.D. Fla. 2008)); McAleer v. Smith, 791

F. Supp. 923, 930 (D.R.I. 1992) (“DOHSA claims are

generally tried by the Court sitting without a jury”);

Friedman v. Mitsubishi Aircraft Int’l Inc., 678 F. Supp.

1064, 1065-66 (S.D.N.Y. 1988) (rejecting plaintiff ’s contention that she was entitled to trial by jury in a

DOHSA action because there was diversity of citizenship; holding that “since DOHSA provides a remedy in

admiralty, admiralty principles are applicable and a

DOHSA plaintiff has no right to a jury trial of wrongful

death claims”) (citations omitted); Heath v. American

Sail Training Ass’n, 644 F. Supp. 1459, 1471-72 (D.R.I.

1986) (no jury trial for DOHSA claims). But see Lasky,

supra, 850 F. Supp. 2d at 1313-15 (surveying the law

and stating that plaintiff could potentially be entitled

to a jury trial by a federal court sitting in admiralty

over DOHSA cause of action if the plaintiff asserted

“an independent basis for diversity jurisdiction and/or

App. 52

a concurrent claim that entitles Plaintiff to a jury

trial,” neither of which is present here).1

The defendant’s motion (doc. 82) is GRANTED,

and the plaintiff ’s breach of warranty and breach of

contract claims, along with her jury demand, are

stricken.

DONE and ORDERED this 31st day of October

2018.

/s/ Roger Vinson

ROGER VINSON

Senior United States

District Judge

1

Assuming that plaintiff is not entitled to a jury trial as of

right (and I just said she is not), the plaintiff alternatively requests that I empanel “an advisory jury to promote judicial economy.” This request is denied without discussion.

App. 53

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PATRICIA LACOURSE,

individually and as Personal

Representative of the Estate

of Lt. Col. Matthew LaCourse,

Plaintiff,

Case No.

3:16cv170-RV/HTC

v.

DEFENSE SUPPORT

SERVICES LLC, et al.,

Defendants.

/

ORDER

(Filed Aug. 29, 2019)

On November 6, 2014, a U.S. Air Force F-16 fighter

jet departed from Tyndall Air Force Base, near Panama City, Florida, to join up with an F-4 fighter jet—

which was playing the part of a drone—for a continuation training sortie. The only person on board the F-16

was the pilot, Matthew J. LaCourse, a 58-year-old retired Air Force Lieutenant Colonel employed as a civilian by the Department of Defense. Tragically, the

aircraft crashed into the Gulf of Mexico toward the end

of the sortie and LaCourse was killed.

The plaintiff, Patricia LaCourse, is LaCourse’s

widow and was designated the personal representative

of his estate. She brought this wrongful death action in

App. 54

Florida state court against the defendant, PAE Aviation Technical Services (PAE), a company that was under contract with the government to provide service

and maintenance on aircraft at Tyndall, including the

F-16 (hereinafter, the Mishap Aircraft).1 PAE timely

removed the lawsuit to this federal court.2

Discovery is now closed and PAE moves for final

summary judgment (doc. 96) (Def. Mot.). PAE contends

in this motion that it is immune from liability based

upon the government contractor defense. The plaintiff

filed a response in opposition to the motion (doc. 108)

(Pl. Resp.), and PAE filed a reply to the response (doc.

111) (Def. Reply). In support of their respective pleadings, the parties filed a very large number of documents. These documents—which total approximately

6,700 pages—include, inter alia:

(1) Maintenance records for the Mishap Aircraft

(doc. 108-10) (Maint. Rec.).

1

The contract was actually awarded to PAE’s predecessor,

Defense Support Services LLC (DSS), which was the original

named defendant in this action. Because PAE took over the contract when it purchased the company—and DSS no longer exists—I will refer to the contractor/defendant as PAE for purposes

of this order.

2

The plaintiff initially sued three other PAE-related entities

as well, but they were voluntarily dismissed shortly after the

lawsuit was removed (docs. 19, 20, 21). She also sued several

individual “John Doe” defendants, but fictitious-party pleading

is generally not allowed in federal court. See, e.g., Weiland v.

Palm Beach County Sheriff ’s Office, 792 F.3d 1313, 1318 n.4 (11th

Cir. 2015). Thus, PAE is the only defendant in this case.

App. 55

(2) Deposition testimony of several PAE employees, including Timothy Davis (doc. 95-4, 5) (T. Davis

Dep.); Michael Reeves (doc. 95-12) (Reeves Dep.); Michael Bogaert (doc. 95-20) (Bogaert Dep.); and Steve

Davis (doc. 108-8) (S. Davis Dep.).

(3) Deposition testimony of Captain Michelle

Chiaravalle, maintenance member on the Air Force’s

Air Combat Command Accident Investigation Board

(AIB) (doc. 95-26) (Chiaravalle Dep.).

(4) Deposition testimony of Senior Master Sergeant Marquell DeOngelo Fallin, an investigator on

the Air Force’s Safety Investigation Board (SIB) (doc.

95-1) (Fallin Dep.).

(5) Deposition testimony of the plaintiff ’s four

expert witnesses, Scott E. Stutler (doc. 95-32) (Stutler

Dep.); Frederic G. Ludwig Jr. (doc. 95-33) (Ludwig

Dep.); Gary Kibbee (doc. 95-34) (Kibbee Dep.); and

Kent W. Ewing (doc. 95-35) (Ewing Dep.), and their respective expert reports (docs. 108-19, 108-15, 108-17,

108-20).

By Order and Notice dated March 4, 2019, the parties were directed to file any and all additional evidentiary material by March 19, 2019 (doc. 121). Neither

side did so.3 I later held an oral argument on May 23,

3

Although no additional evidence was filed in response to

my March 4th Order and Notice, PAE did file a “Notice of

Specific Page and Line Designations of Plaintiffs Experts” to

highlight specific portions of the plaintiff’s earlier-filed expert

testimony (doc. 125). In abundance of caution, and because of

App. 56

2019. See Transcript of Oral Argument, dated May 23,

2019 (doc. 129) (Tr.). At the end of oral argument, I took

the motion for summary judgment under advisement

and stated that this order would follow.

I.

Standard of Review

Summary judgment is appropriate if all the pleadings, discovery, affidavits, and disclosure materials on

file show that there is no genuine disputed issue of material fact, and the movant is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a), (c). The plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon

motion, against any party who fails to make a showing

sufficient to prove the existence of an element essential

to that party’s case, and on which that party will bear

the burden of proof at trial. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

Summary judgment is inappropriate if a reasonable factfinder evaluating all of the evidence could draw

more than one inference from the facts, and if that

inference raises a genuine issue of material fact. See,

e.g., Allen v. Board of Public Educ. for Bibb County, 495

F.3d 1306, 1315 (11th Cir. 2007) (citations omitted).

An issue of fact is “material” if it might affect the outcome of the case under the governing law. See Anderson

v. Liberty Lobby, 477 U.S. 242, 248 (1986). It is “genuine” if the record, viewed as a whole, could lead a

their significance to this case, I read the deposition testimonies of

the plaintiffs four expert witnesses in full—all 1012 pages.

App. 57

reasonable factfinder to return a verdict for the nonmovant. Id.

In considering a motion for summary judgment,

the record must be construed in the light most favorable to the non-movant; her evidence must be believed;

and all reasonable inferences must be drawn in her favor. Allen, 495 F.3d at 1315; see also, e.g., United States

v. Onabanjo, 351 F.3d 1064, 1065 n.1 (11th Cir. 2003).

But this favorable construction is not unlimited. In

opposing summary judgment, the non-movant “ ‘must

do more than simply show that there is some metaphysical doubt as to the material facts.’ ” Transcontinental Gas Pipe Line Co. LLC v. 6.04 Acres, More or

Less, Over Parcel(s) of Land of Approximately 1.21

Acres, More or Less, Situated in Land Lot 1049, 910

F.3d 1130, 1154 (11th Cir. 2018) (quoting Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986)). If the evidence produced by the nonmovant is “ ‘merely colorable, or is not significantly

probative, summary judgment may be granted.’ ” Id.

(quoting Anderson, 477 U.S. at 249-50).

Unsupported statements by counsel made in

briefs and at oral argument are not evidence. See, e.g.,

Green v. School Bd. of Hillsborough Cty., Fla., 25 F.3d

974, 979 (11th Cir. 1994); United States v. Smith, 918

F.2d 1551, 1562 (11th Cir. 1990); accord United States

v. Cardona, 302 F.3d 494, 497 (5th Cir. 2002) (“arguments in brief[s] are not evidence”). It follows therefrom that attorney arguments alone cannot preclude

summary judgment. See Rich v. Dollar, 841 F.2d

1558, 1565 & n.5 (11th Cir. 1988) (reversing denial of

App. 58

summary judgment for defendant where the district

court relied on “assertions in the memorandum prepared by Rich’s counsel rather than upon the factual

showing submitted under oath by Rich”); accord, e.g.,

Taylor v. Holiday Isle, LLC, 561 F. Supp. 2d 1269, 1275

n.11 (S.D. Ala. 2008) (“Unadorned representations of

counsel in a summary judgment brief are not a substitute for appropriate record evidence.”); Smith v. Housing Auth. of City of Prichard, 2007 WL 735553, at *6

n.14 (S.D. Ala. 2007) (“These assertions [by plaintiff in

opposition to summary judgment] are unaccompanied

by citations to the record, and lack support therein. Of

course, mere unsupported representations of counsel

do not constitute evidence that may be considered on

summary judgment.”) (quoting Nieves v. University of

Puerto Rico, 7 F.3d 270, 276 n.9 (1st Cir. 1993) (“Factual assertions by counsel in motion papers, memoranda, briefs, or other such ‘self-serving’ documents,

are generally insufficient to establish the existence of

a genuine issue of material fact at summary judgment.”); Bowden ex rel. Bowden v. Wal-Mart Stores, 124

F. Supp. 2d 1228, 1236 (M.D. Ala. 2000) (“opinions, allegations, and conclusory statements of counsel do not

substitute for evidence” on summary judgment)).

Thus, a party opposing summary judgment must

point to specific portions in the record where evidence

of a genuine disputed issue of fact can be found. See

Fed. R. Civ. P. 56(c)(1)(A) (party asserting that a fact is

genuinely disputed must support the assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored

App. 59

information, affidavits or declarations, stipulations (including those made for the purposes of the motion

only), admissions, interrogatory answers, or other materials”); accord N.D. Fla. Loc. R. 56.1(F) (parties on

summary judgment “must include pinpoint citations to

the record evidence supporting each factual assertion”); see also A.L. v. Jackson County School Bd., 635

F. App’x 774, 786-87 (11th Cir. 2015) (“ ‘district court

judges are not required to ferret out delectable facts

buried in a massive record’ ” and, therefore, they are

not required to “ ‘mine’ ” the record looking for evidence

that wasn’t cited by the parties) (citations omitted).

II.

Background

Except as otherwise noted, the following facts are

undisputed or, if disputed, resolved in the plaintiff ’s favor where supported by evidence in the record. In fact,

as will be seen, most of these facts come from the plaintiff ’s own expert witnesses.

On March 3, 2009, PAE was awarded a contract

with the government to provide aircraft service and

maintenance at Tyndall Air Force Base (doc. 86-1). In

performing under the contract, PAE was required to

follow very detailed guidelines and adhere to specific

standards, including Air Force Instructions (AFIs) and

Technical Orders (TOs), all of which were prepared by,

or on behalf of, the Air Force. See Affidavit of David

Olson, dated November 15, 2018 (doc. 96-2) (Olson

Aff.), at ¶¶ 7-19.

App. 60

F-16s are equipped with two hydraulic systems:

System A and System B. See Ludwig Dep. at 131-32.

The systems are independent of one another and designed to allow the pilot to continue flying the aircraft

if one of the systems fails. Id.; see also id. at 162 (agreeing that if one system goes down and the other one is

operating as it should, “the pilot will not even notice a

discrepancy in the handling”). Beginning in September

2014—two months before the crash—the Mishap Aircraft experienced several problems that implicated one

or both of its hydraulic systems. See Stutler Dep. at

244-45 (testifying that the hydraulic issues began in

mid-September 2014). These problems are as follows:

• On September 11th, the outboard hydraulic flight control accumulator gauge had hydraulic fluid in it.

• On September 17th, the Mishap Aircraft’s

hydraulically actuated landing gear (which is

part of System B) did not retract during a

flight.

• On October 22nd, a hydraulic system pressure line clamp broke on System A.

• On October 27th, there was a second inflight failure in System B when the landing

gear on the Mishap Aircraft once again failed

to retract.

• On October 29th, the System B reservoir

accumulator was depleted.

• On October 31st, the Mishap Aircraft was

manned up with the intent to fly, but a

App. 61

hydraulic leak was discovered during the

flight control check and the mission was

aborted before it took off.

• Also on October 31st, System A had no

pressure indication in the cockpit, and the

System B flight control accumulator precharge was low.

• On November 3rd, PAE servicers performed a “confidence run” and both System A

and System B failed.

See, e.g., Maint. Rec. at 2-3, 8-11, 13-14; S. Davis Dep.

at 69-70, 117-20, 129; accord Pl. Resp. at ¶ 33 (citing

the Mishap Aircraft’s maintenance records and summarizing these same “hydraulic system related failures”).4

4

The plaintiff goes on to identify an additional hydraulic

“problem” in her summary that I did not list above. Specifically,

during the maintenance performed on November 3rd, the PAE

servicers broke a tool (a scribe) and lost a 2-inch long part of the

tool inside the Mishap Aircraft. As a result, the aircraft was impounded to allow for an investigation and to find the missing tool.

Although the plaintiff notes that the Mishap Aircraft was impounded because of the missing scribe, that is not a hydraulic

problem; and her expert witness, Scott Stutler, has testified that

the impound was “proper” and “good maintenance.” See Stutler

Dep. at 278-79. Accordingly, I did not include the lost tool and

subsequent impound in the list of “hydraulic system related failures.”

As for the other problems that are listed above, I will assume

for purposes of this order that they were all related to the hydraulic systems (because that is what plaintiff’s experts have opined),

but that is far from certain. Take, for example, the failure of the

landing gear to retract on September 17th. Although Stutler

stated in his expert report that the failure of the landing gear to

App. 62

All of the foregoing problems were addressed and

corrected as they presented. See Maint. Rec. at 2-3,

8-11, 13-14. Thus, for example, PAE mechanics replaced the broken clamp and gauge, and they installed

two new accumulators. See id.; see also, e.g., Bogaert

Dep. at 58-63. After PAE installed the new accumulators, the mechanics ran a 24-hour “leak and bleed”

check to ensure that they were working properly and

not leaking. See Bogaert Dep. at 61-63. Notably, the

plaintiff doesn’t appear to claim that the corrective actions identified in the maintenance records had not actually been done, nor does she claim that they were

done improperly. See Ludwig Dep. at 76-77 (“Q: Do you

intend to express any opinion that the maintenance

performed . . . by PAE itself was inappropriate? They

put the wrong accumulator on, for example? They put

the wrong piece in? They followed the wrong procedure

retract was a hydraulic problem (doc. 108-19), he conceded at deposition under questioning by defense counsel that the landing

gear failed due to a faulty solenoid, which is “an electrical piece of

equipment” and “not a hydraulic valve.” See Stutler Dep. at 240;

see also id. at 240-41 (further conceding that the landing gear issue “related to an electrical problem”). He later tried to rehabilitate his testimony on this point during cross examination by the

plaintiff’s counsel when he testified that the landing gear problem

was “actually electric hydraulic” because there could have been

vibrations in the hydraulic system that were “sending a bad signal on the electrical side of the solenoid.” See id. at 332-33, 33536. However, as Stutler went on to admit on re-direct, he has no

evidence that it happened here and he has never heard, seen, or

read of it ever happening anywhere else. See id. at 336-38; see also

id. at 339 (“Q: [I]n all of your experience and all of your years and

your deployments and being at Homestead and all of your experience with F-16s, have [you ever] heard of that scenario happening

where vibrations caused a solenoid to fail? A: Specifically, no.”).

App. 63

or protocol? A: No. Q: Do you have any information

from any source that the records that you have seen

that indicate the maintenance that was performed are,

in fact, untrue? A: No.”); accord id. at 144-47 (testifying

that there is no allegation that PAE “missed a leak, an

overflow, a noise, [or] anything,” and conceding that the

maintenance work they did “appear[s] to have been

done properly”); Kibbee Dep. at 267 (“Q: . . . [Y]ou’re

not coming in as an expert to testify that the maintainers improperly installed a part? A: No . . . Q: Put it in

backwards . . . [or] something—A: No.”) Instead, as will

be discussed further infra, the gist of plaintiff ’s claim

is that PAE should have treated the hydraulic issues

as a chronic problem, grounded the Mishap Aircraft,

and sent it for additional (“depot- level”) maintenance.

See Ewing Dep. at 61-62, 172-76 (testifying that PAE

mechanics “changed a gauge here, they changed an

actuator there,” but the underlying problem was “something deeper” that warranted grounding and further

maintenance); see also, e.g., Stutler Dep. at 150-54, 28183; Ludwig Dep. at 75-76, 145-46, 160, 176, 183.

On the day of the crash, there were two issues with

the Mishap Aircraft shortly before takeoff. First, the

emergency power unit (EPU) took longer than expected to come on during the pre-flight check, but it

eventually came on and passed the check. See T. Davis

Dep. at 34. Next, there was an issue with the pitch

override (PO) check, which requires the pilot to apply

full pressure on the stick and press the PO switch to

make the stabilizers at the tail move a few inches or

degrees in a nose-down direction. See id. at 42-44; see

also Stutler Dep. at 133-34; Fallin Dep. at 216-17. The

App. 64

Mishap Aircraft failed the PO check two times before

passing it on the third try. See Bogaert Dep. at 71-74;

see also T. Davis Dep. at 42-53.

Despite these two issues (or “hiccups,” see T. Davis

Dep. at 42-43), the Mishap Aircraft passed all of its

pre-flight checks, there was no indication of a problem with the hydraulic systems, and the plaintiff ’s experts agree that everything appeared to be normal (or

at least they are aware of no evidence to suggest that

things did not appear normal). See, e.g., Ewing Dep. at

57-58, 88, 93-94; Stutler Dep. at 185-89, 201-03; Ludwig Dep. at 100-02, 144-47.5 The PAE mechanics who

5

The only thing plaintiff ’s experts have identified as possibly indicating a hydraulic problem on the day of the crash concerned the failed PO checks. See Ludwig Dep. at 104 (opining that

the failed PO checks were an “indicator that there’s something

possibly wrong, knowing what I know about [the] previous hydraulic issues, even though they seemingly may be unrelated”);

Ewing Dep. at 57-58, 84-85 (opining that the failed PO checks

could have been a “notification” that there was a hydraulic problem). PAE has pointed to evidence, however, suggesting that the

failed checks were actually the result of pilot error. Specifically,

Bogaert testified that:

After I got on the headset, after when Tim had finished

checking brakes, I got on a headset with Matt and

asked him if he had done [the PO check]. He said yes. I

told him I didn’t see it. He said do you want me to do it

again. I said yes, if you don’t mind. At which point he

tried to do it again, and they didn’t move. And I asked

him, are you holding the stick full forward, and he

wasn’t. He was just pushing, and they’re reaching over

and he’s releasing his pressure on the stick, is my best

guess. But I told him, no, Matt, that’s not it, and asked

him, are you holding the stick full forward as you hit

that switch. And he did that, and it worked perfect. He

App. 65

conducted the pre-flight checks were all satisfied that

the Mishap Aircraft was safe to fly and released it for

its final flight. LaCourse then taxied the aircraft down

the runway and took off to meet up with the F-4.

During the flight, the Mishap Aircraft performed

a number of aerial maneuvers leading up to a “pitch

back,” which is an over-the-shoulder tactical maneuver

where the pilot uses the pitch axis to rejoin another

aircraft. See Ewing Dep. at 22. From all accounts, everything leading up to the pitch back appeared normal,

i.e., there was no gauge, light, warning, or caution indicating any problems, and there were no reports of

any vibrations, shakes, or “sponginess in the controls.”

See id. at 125-26 (agreeing that “the aircraft appeared

to be functioning properly on engine start, taxi out, end

of runway, takeoff, initial join-up with the F-4, and

flight out to the Gulf, all of the steps before this pitch

back”); see also Kibbee Dep. at 279, 296 (agreeing that

there were no “warning lights going off in the cockpit”

during the flight because if there had been they would

have been “picked up on the flight data or crash flight

data recorder,” and conceding there was “no report by

the pilot or the chase plane next to him, or anyone, once

the airplane took off, of any control issues, any erratic

operation, any vibrations felt, anything to indicate [a

released. I said that’s what I was looking for, technique.

See Bogaert Dep. at 73. Nevertheless, because we are here on

summary judgment, I must (and do) accept the plaintiff ’s evidence on this point as true and assume that the initial failed PO

checks were possibly related to hydraulic problems.

App. 66

problem]”). The problem occurred at the end of the

pitch back maneuver. See, e.g., Ludwig Dep. at 72

(testifying that the problem presented “during the

termination of his pitchback . . . as he is finishing the

maneuver”); Ewing Dep. at 126, 128 (testifying that

everything appeared to be “okay until the last part of

the flight,” i.e., “at the conclusion of the pitch-back”).6

After the conclusion of the pitch back, LaCourse

appeared to level off and there was “a period of no data,

no inputs, no control or . . . no maneuvers.” See Ewing

Dep. at 24-25. The Mishap Aircraft then entered a

“pitch-down” from about 12,000 feet. See id. at 25-32.

LaCourse apparently made no effort to eject from the

aircraft or make a radio call during the descent. See,

e.g., Ludwig Dep. at 73, 108. At about 1,500 feet, “the

aircraft went wings level and went to military power

and pulled slightly degree within 6 ½ Gs,” after which

it hit the water. See id. at 72; see also Ewing Dep. at 32.

The AIB investigated the crash and concluded

that:

According to the results of the investigation,

the mishap occurred during intercept training

6

The “pitch back” has been described as a variation of an

“Immelmann” [Ewing Dep. at 23-24 (referring to the maneuver

as “a slashing Immelmann”)], which is a standard aerobatic

maneuver taught to military pilots. See, e.g., Flight Training

Instruction, Naval Air Training Command (2019), available at:

https://www.cnatra.navy.mil/local/docs/pat-pubs/P-764.pdf. It requires a rollout at the top of a loop, so that the aircraft makes a

high-G pull up and then a 180 degree roll at the top [see id.], both

of which can possibly cause the pilot to experience vertigo or black

out.

App. 67

with another aircraft. While attempting to

intercept the other aircraft, LaCourse performed a series of aircraft dynamic maneuvers that stimulated fluid in his inner ear

canals which are responsible for perceptions

of gravity, balance, movement and direction.

As a result, he misperceived his angle of bank,

angle of pitch and general position and became spatially disoriented, which resulted in

his crash.

News Release, U.S. Air Force, Release No. 020915 (September 8, 2015), available at: http://www.airforcemag.

com/DRArchive/Documents/2015/September%202015/

091015aibfl6.pdf.

Unsurprisingly, the parties disagree about the

cause of the crash. The plaintiff believes that it was

caused by a dual-hydraulic failure due to nitrogen in

the hydraulic system. Specifically, her experts have

opined that the accumulators allowed nitrogen to leak

into and contaminate the hydraulic system reservoir

(either due to faulty seals on both new accumulators or

because the nitrogen was not fully “purged” during the

leak and bleed check), so that when the Mishap Aircraft performed its series of aerial maneuvers, the nitrogen got “sucked” into the two hydraulic pumps

simultaneously (in the form of foam “bubbles”), which

caused both accumulators to fail and rendered the

flight controls non-responsive. See Kibbee Dep. at 10809, 161-66, 288-96; Ewing Dep. at 56-57, 66, 126-28,

174, 184-85; Stutler Dep. at 115, 205, 301; Ludwig Dep.

at 71-74, 98-99. According to this theory, the contamination occurred “days before the flight and continuing,

App. 68

and then continuing through pre-flight, taxi, and initial part of the flight also.” Ewing Dep. at 56-57; accord

Kibbee Depo. at 125-26 (testifying that it’s “entirely

possible” the accumulators were leaking nitrogen on

November 3rd, three days before the flight).

As previously indicated, the plaintiff does not allege that the maintenance and service that PAE performed on the Mishap Aircraft was itself negligent. She

does not allege, for example, that the PAE mechanics

installed the accumulators incorrectly or that they had

seen (or should have seen) that the accumulators were

leaking nitrogen. See Ewing Dep. at 58 (“Q: [D]uring

the final inspection of the aircraft, the release of the

aircraft, the preflight by the pilot, the engine start, and

the taxi out, am I correct you do not believe there

were any indications of this contaminated hydraulic

system? A: None that I could tell.”) Instead, the plaintiff believes that the PAE mechanics should have dug

deeper into the Mishap Aircraft’s hydraulic-related

problems, and if they had they would have discovered

the hydraulic system was compromised.

PAE succinctly summarizes and dismisses the

plaintiff ’s experts’ theory of the crash as follows:

Their speculative opinions are: that because

there was a crash there must have been air in

the hydraulic system, even though the hydraulic system functioned for start up, run up,

taxi out, end of runway, takeoff, join-up, initial

flight maneuvers including G-turns, first attempted drone join-up, and the second attempted join-up all the way to the point of the

App. 69

“pitch back” maneuver, and at that point,

somehow, mysteriously, air foamed in the hydraulic fluid causing both systems to fail, but

only until the last moment before impact,

when Decedent pulled back on the stick and

the hydraulic system functioned again and

moved the flight surfaces, and Decedent went

to full throttle—all while Decedent made no

radio call and no ejection despite at least

10,000 feet of altitude at the beginning of the

event.

Def. Reply at ¶ 5. PAE’s expert believes that LaCourse

suffered a G-induced loss of consciousness after the

pitch back and that caused the crash (doc. 108-21 at

41).

Ultimately, I don’t have to resolve the disagreement about the cause of the crash because it is irrelevant to the government contractor defense that PAE

has raised on summary judgment. Thus, I can and do

assume for purposes of this order only that the crash

was caused by the dual hydraulic failure that the

plaintiff has proposed.7

7

Although I have accepted the plaintiff ’s theory of the crash

solely for purposes of this order, her theory is highly questionable

for several reasons. First, despite that F-16s have been around

since the mid-70s—and over 4,500 of them have been built—the

plaintiff’s experts have all conceded that they have never seen (or

heard of) an in-flight dual hydraulic failure due to pre-flight contamination or excess nitrogen in the hydraulic systems. See, e.g.,

Ewing Dep. at 163; Stutler Dep. at 109-13; Ludwig Dep. at 13233, 173; Kibbee Dep. at 161-63; see also id. at 241 (“Q: Do you

know if Northrop or General Dynamics, or anybody who operates

and maintains F-16s, have ever seen the scenario you described

App. 70

III. Discussion

A. Government Contractor Defense

The government contractor defense was first established by the Supreme Court in the seminal decision of Boyle v. United Technologies Corp., 487 U.S. 500

today here of the foaming, the ingestion, and both systems failing,

and the degradation, leading to a crash? A: Never heard of that

before.”). Nor did the plaintiff ’s experts run any tests or conduct

(or read) any studies or analyses to see if such a thing was even

possible. See Ewing Dep. at 163-64; Ludwig Dep. at 167-68;

Kibbee Dep. at 107, 275-76.

Of course, just because something hasn’t happened before

(and no tests have been conducted to see if it could) doesn’t by

itself mean that it couldn’t happen. But even if I were to apply the

old adage that “there’s a first time for everything,” there is no evidence that it actually happened here. See, e.g., Stutler Dep. at

114-15, 205-06 (admitting that there is “no evidence” of contamination in the form of “nitrogen in the hydraulics,” and conceding

that there isn’t “any evidence” that nitrogen in the hydraulics—if

it did exist—"affected the flight controls”). To be sure, the plaintiff’s lead hydraulics expert, Gary Kibbee, was specifically asked

during his deposition if he could point to “any shred of evidence”

to suggest that there was “contamination of either hydraulic system,” and he replied: “No, I cannot.” See Kibbee Dep. at 276;

accord id. at 293-94 (“Q: So isn’t contamination in the system

purely speculative theory at this point? A: . . . Yes, it is. I have no

evidence of it . . . You’re right.”). Therefore, as plaintiff ’s own experts have acknowledged, “it’s entirely possible the aircraft was

airworthy at takeoff ” [see Ludwig Dep. at 185], and it’s possible

there was never any “degradation of the flight control system” at

all. See Kibbee Dep. at 280-81.

For these and other reasons, PAE has filed a separate motion

to exclude Kibbee’s testimony and opinions pursuant to Fed. R.

Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993). I will resolve that motion by separate order.

App. 71

(1988). Because of its significance to our case, I will discuss and quote from Boyle at length.

On April 27, 1983, David A. Boyle, a United States

Marine helicopter copilot, was killed when a helicopter

he was flying in crashed off the coast of Virginia Beach,

Virginia, during a training exercise. Although Boyle

survived the impact of the crash, he drowned after he

was unable to push through the helicopter’s emergency

escape hatch. His father later brought a diversity action in federal court against the Sikorsky Division of

United Technologies Corporation (Sikorsky), a private

company that built the helicopter for the military pursuant to a contract. The suit alleged design defect.8

The jury returned a verdict for the plaintiff and

awarded him $725,000, but the Fourth Circuit reversed. The Court of Appeals ruled that Sikorsky was

immune from suit under the “military contractor

defense” (also known as the government contractor

defense). The defense was recognized in several jurisdictions, but it had been applied inconsistently. The

Supreme Court granted the plaintiff ’s petition for writ

of certiorari to resolve the inconsistency.

Writing for a 5-4 majority, Justice Scalia began

with the following:

Petitioner’s broadest contention is that, in the

absence of legislation specifically immunizing Government contractors from liability for

8

The plaintiff alleged that the escape hatch was defectively

designed insofar as it opened out instead of in, and thus was ineffective in a submerged craft due to water pressure.

App. 72

design defects, there is no basis for judicial

recognition of such a defense. We disagree. In

most fields of activity, to be sure, this Court

has refused to find federal pre-emption of

state law in the absence of either a clear statutory prescription, or a direct conflict between

federal and state law. But we have held that a

few areas, involving “uniquely federal interests,” are so committed by the Constitution

and laws of the United States to federal control that state law is pre-empted and replaced, where necessary, by federal law of a

content prescribed (absent explicit statutory

directive) by the courts—so-called “federal

common law.”

487 U.S. at 504 (multiple citations omitted). The Court

found that the facts of Boyle implicated “two areas”

that involve uniquely federal interests: (1) the obligations to and rights of the United States government

under its contracts, and (2) civil liability of federal officials for actions taken in the course of their duty. Id. at

504-05.

The Court was careful to note, however, that the

presence of a uniquely federal interest is not the end of

the analysis:

That merely establishes a necessary, not a sufficient, condition for the displacement of state

law. Displacement will occur only where, as

we have variously described, a “significant

conflict” exists between an identifiable “federal policy or interest and the operation of

state law,” or the application of state law

App. 73

would “frustrate specific objectives” of federal

legislation.

Id. at 507 (citations and footnote omitted). As for how

it is to be determined whether a “significant conflict”

exists:

There is . . . a statutory provision that demonstrates the potential for, and suggests the outlines of, “significant conflict” between federal

interests and state law in the context of Government procurement. In the FTCA [Federal

Tort Claims Act], Congress authorized damages to be recovered against the United States

for harm caused by the negligent or wrongful

conduct of Government employees, to the extent that a private person would be liable under the law of the place where the conduct

occurred. 28 U.S.C. § 1346(b). It excepted from

this consent to suit, however,

“[a]ny claim . . . based upon the exercise or performance or the failure to

exercise or perform a discretionary

function or duty on the part of a federal agency or an employee of the

Government, whether or not the discretion involved be abused.” 28 U.S.C.

§ 2680(a).

We think that the selection of the appropriate

design for military equipment to be used by

our Armed Forces is assuredly a discretionary

function within the meaning of this provision.

It often involves not merely engineering analysis but judgment as to the balancing of many

App. 74

technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat

effectiveness. And we are further of the view

that permitting “second-guessing” of these

judgments through state tort suits against

contractors would produce the same effect

sought to be avoided by the FTCA exemption.

The financial burden of judgments against

the contractors would ultimately be passed

through, substantially if not totally, to the

United States itself, since defense contractors

will predictably raise their prices to cover, or

to insure against, contingent liability for the

Government-ordered designs. To put the point

differently: It 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. In

sum, we are of the view that state law which

holds Government contractors liable for design defects in military equipment does in

some circumstances present a “significant

conflict” with federal policy and must be displaced.

Id. at 511-12 (citation and footnote omitted). Ultimately, a “significant conflict” will be said to exist (and

therefore the contractor will have immunity from suit)

when the following three elements have been satisfied:

(1) the United States approved reasonably

precise specifications; (2) the equipment conformed to those specifications; and (3) the

App. 75

supplier warned the United States about the

dangers in the use of the equipment that were

known to the supplier but not the United

States.

Id. at 512.

One author has described the rationale for Boyle

this way:

In Boyle, and in government contractor defense cases generally, although the government is the “villain,” the contractor and the

injured plaintiff are the “victims” of that villainy. Thus, when a contractor produces a

product that conforms with reasonably precise specifications provided or approved by the

government, so long as the contractor has no

knowledge of the danger or, having such

knowledge, shares it with the government, it

is the government, and not the contractor,

that is ultimately responsible for the defects

of that product. In these circumstances, the

contractor can assert with regard to the

defect, “The government made me do it.”

Furthermore, in spite of the government’s

negligence in providing improper specifications, the FTCA provides immunity from any

liability to the government. This is the result

under the discretionary function exception to

the FTCA because [per Boyd] “the selection of

the appropriate design for military equipment

to be used by our Armed Forces is assuredly a

discretionary function within the meaning of

[that] provision.” The consequence of the discretionary function exception is that if the

App. 76

injured plaintiff is to have any judicial remedy

it would have to come in an action against the

contractor.

If the plaintiff recovers from the innocent contractor due to the government’s immunity, the

contractor cannot seek indemnification from

the culpable government. This inequity contributes significantly to the need for the government contractor defense to protect the

contractor.

David Seidelson, The Government Contractor Defense

and the Negligent Contractor: The Devil Made Me Do

It, 7 Widener J. Pub. L. 259, 262-63 (1998).

As noted above, Boyle dealt with the procurement

of an allegedly defectively designed product; it did not

address whether the government contractor defense

would apply (as in this case) to a services contract.

The Eleventh Circuit addressed that issue in Hudgens

v. Bell Helicopters/Textron, 328 F.3d 1329 (11th Cir.

2003).

The defendant in Hudgens (DynCorp) was under

contract with the government to service aircraft at

Fort Rucker Army Base in Alabama, and it overlooked

a fin spar crack on a helicopter that subsequently

crashed and injured the pilot and co-pilot. The district

court granted summary judgment for the defendant

based on the government contractor defense, and the

plaintiffs appealed, arguing that the defense didn’t

apply to a military aircraft services contract.

App. 77

The Eleventh Circuit recognized that Boyle involved a procurement contract, and not a services

contract. See 328 F.3d at 1334. The panel concluded,

however, that the rationale of Boyle did not turn on the

particular type of contract at issue but, rather, it

turned on whether subjecting the contractor to liability

under state law “would create a significant conflict

with a unique federal interest.” Id. As to that question,

the court concluded that the same “unique federal interest” recognized in Boyle was “manifest in the present case.” Id. And thus, the court continued, “[h]olding

a contractor liable under state law for conscientiously

maintaining military aircraft according to specified

procedures would threaten the government officials’

discretion in precisely the same manner as holding

contractors liable for departing from design specifications.” Id. The court then went on to say:

The Supreme Court’s references to “specifications” reflects the nature of the case before it in Boyle, which involved an alleged

defect in the design of a military helicopter’s

escape hatch. In the context of the present

[services contract] case, we rearticulate the

defense’s three elements to foreclose liability

under state tort law if (1) the United States

approved reasonably precise maintenance

procedures; (2) DynCorp’s performance of

maintenance conformed to those procedures;

and (3) DynCorp warned the United States

about the dangers in reliance on the procedures that were known to DynCorp but not to

the United States.

App. 78

Id. at 1335. Applying those elements to the facts presented, the Eleventh Circuit held that DynCorp was

entitled to judgment based on the government contractor defense.

B. Analysis

I will begin by briefly addressing the plaintiff ’s

threshold argument that it is not appropriate for me to

undertake the three-factor Boyle/Hudgens analysis because the government contractor defense is foreclosed

by the terms of PAE’s contract with the government.

See Pl. Resp. at I 80-81. Quoting from the contract, the

plaintiff argues that PAE has no immunity in this case

because the contract required that PAE “ ‘shall be . . .

responsible for all injuries to persons or damage to

property that occurs as a result of its fault or negligence.’ ” Id. at ¶ 24. Thus, the plaintiff asks: “How can

the government contractor defense shield a contractor

from liability when the contract itself expressly provides that the contractor is liable for its own faults and

negligence? The answer, Plaintiff suggests, is that it

cannot.” Id. at ¶ 30.

PAE responds by arguing that:

Defendant cannot by contract with the government eliminate immunity under the government contractor defense. Such immunity

exists to prevent government contractors like

Defendant from passing on the cost of risk

arising from performance of uniquely governmental activities. There are few activities

more uniquely governmental than repair and

App. 79

maintenance of military aircraft performing

military missions. Allocation of liability between Defendant and the government in the

contract has nothing to do with immunity

from liability to a third party, which the government would receive if it had maintained

the mishap aircraft and Defendant should receive for doing the exact same thing.

Def. Reply. at ¶ 3 (emphasis added). I agree with PAE.

There is no question that if the Air Force had maintained the Mishap Aircraft then it would have been

immune from this suit Immunity under the government contractor defense exists, at least in part, to save

the federal government money by allowing it to hire

contractors to do the same job without the contractors

incurring the risk of liability to third parties. As Judge

Jack Weinstein has observed:

The government contractor defense is essentially based on the concept that the government told me to do it, and knew as much or

more than I did about possible harms, so I can

stand behind the government (which cannot

be sued because of its immunity). It is designed in part to save the government money

in its procurement costs because suppliers,

less concerned with the risk of suits, can eliminate some difficult insurance factors from

cost projections.

In re Agent Orange Prod. Liability Litig., 373

F. Supp. 2d 7, 91 (E.D.N.Y. 2005). In light of the purpose of the government contractor defense (to prevent

the pass-through of costs), it would make little sense

App. 80

to interpret the contract language as the plaintiff suggests. I believe PAE is correct that the quoted language

merely allocated liability between PAE and the government, but it did not speak to liability between PAE and

a third party.

Thus, I hold that the three-factor test from

Boyle/Hudgens applies to this case. The question I

must decide is whether those three elements have

been satisfied. If they have, then PAE is immune from

this suit and is entitled to summary judgment. If they

haven’t, then PAE is not immune and summary judgment must be denied.

As for (1)—whether the United States approved

reasonably precise maintenance procedures—the

plaintiff concedes that the first factor has been satisfied. See Pl. Resp. at ¶ 82 n.12 (conceding that the AFIs

and TOs “are reasonably precise specifications that

applied to the maintenance of the mishap aircraft”);

Tr. at 10 (conceding same). As for (3)—whether PAE

warned the United States about the dangers in reliance on the procedures that were known to it but not

to the United States—this factor does not apply because (as PAE has argued, and as the plaintiff has

not disputed) there is no contention that PAE had

knowledge that it withheld from the government. See,

e.g., Brinson v. Raytheon Co., 571 F.3d 1348, 1351 (11th

Cir. 2009) (declining to address third factor where

“Brinson has not argued that RAC failed to prove the

third prong”); Harduvel v. General Dynamics Corp.,

878 F.2d 1311, 1322 (11th Cir. 1989) (holding that third

Boyle factor was satisfied as a matter of law where

App. 81

“[t]here is no evidence that General Dynamics had

knowledge it withheld”).

Consequently, as the plaintiff has agreed, the

question on summary judgment ultimately comes down

to whether factor (2) has been satisfied. See Pl. Resp.

at ¶ 82. That is, I must decide if there is a genuine disputed issue of material fact as to whether PAE’s

maintenance on the Mishap Aircraft conformed to—or

fell below—the AFIs and TOs that PAE was required

to follow. Before turning to that question, I need to

address a preliminary issue.

It is clear from reading the full testimonies of

plaintiff ’s experts—all of whom are highly experienced

and well credentialed in their respective fields—that

there are numerous things they would have done differently. For example, Kibbee believes the guideline

for the leak and bleed test should have been written

differently. See Kibbee Dep. at 255-60 (“I would write

it better than—I would write it a little bit differently. . . . I’d go longer . . . I would write it that way.”).9

9

An important point bears noting with respect to the leak

and bleed test. As previously stated, Kibbee’s theory of the case

is that both accumulators failed (either pre-flight or during the

flight) because they were leaking nitrogen when they were installed days prior. See Kibbee Dep. at 165-66, 288-96. He was

asked by defense counsel during deposition that if the accumulators were leaking when they were installed “wouldn’t you expect

that to show up when they were pre-charged, and then on a leak

and bleed check for 24 hours?” Id. at 166. Kibbee answered as

follows: “No. . . . Because the way the TO is written, it doesn’t say

to check these things 24 hours later. It just says do it real fast,

and then pressure goes back to 1600, and then you’re done, so

[there is] nothing in a TO that would pick this up.” Id. (emphasis

App. 82

Stutler believes that “a common sense mechanic”

should have gone above and beyond what the AFIs or

TOs required. See Stutler Dep. at 286; see also id. at

276-77 (conceding that no TO precluded PAE mechanics from asking LaCourse to repeat the initially failed

PO tests before takeoff, but opining that sometimes

mechanics should “troubleshoot a little bit further beyond what the TOs say”). And several of the experts

testified about their personal opinions and about what

they would have done if they had been at Tyndall that

day. See, e.g., Stutler Dep. at 150-52 (testifying that “if

it was me, I would [have] put a red X in the orders” and

grounded the aircraft based upon its maintenance history, but answering “I can’t” when asked to point to

where in the AFIs or TOs that was required); id. at

281-82 (“Personally, yes, I would have [grounded the

Mishap Aircraft]. . . . [but] I’m only speaking for myself. . . . I can only speak on my behalf. Yes, I would

have.”); Ludwig Dep. at 76 (“If I saw repeat gripes in

probably excess of three, I would not be wanting that

airplane to fly. I’d be very much concerned.”); see also

Ewing Dep. at 176 (testifying “I would have put that

plane down on the hangar deck of my carrier” until the

added); accord id. at 258 (testifying that the guideline as written

“would not pick up . . . this accumulator problem”). Whether the

TO should (or could) have been written differently so that the mechanics would have caught the alleged nitrogen leak is, arguably,

a drafting problem with the TO. But it says nothing about

whether PAE complied with the TO, which is the only thing that

matters here.

App. 83

“root cause” of the hydraulic problem was “fully discovered”).10

While the foregoing expert testimony (and other

similar testimony from their depositions) may bear on

the question of negligence, it is irrelevant to the issue

I must decide. The question isn’t whether the AFIs and

TOs were properly written, whether a reasonable mechanic should have gone beyond them, or whether and

to what extent the plaintiff ’s expert witnesses would

have done things differently. Stated simply, it’s irrelevant whether the Mishap Aircraft could (or even

should) have been grounded and sent for “deeper”

maintenance. The only question I must decide is

whether there is a genuine disputed issue of material

fact as to whether PAE’s maintenance conformed to the

AFIs and TOs as written.

In its motion for summary judgment, PAE argued

that its maintenance on the Mishap Aircraft conformed to the AFIs and TOs it was required to follow,

and it cited deposition testimony from several employees, the AIB maintenance member, and the SIB

10

Ewing further testified that the “biggest things” indicating

a hydraulic problem was the fact that both accumulators were

replaced, and he said that PAE should have sought “technical

assistance from Lockheed.” See Ewing Dep. at 143, 174. But he

answered “I don’t know . . . I can’t answer that” when asked to

identify an AFI and/or TO that required PAE to call Lockheed for

technical assistance. See id. at 144; accord Stutler Dep. at 107

(“Q: . . . Do you know of any particular FI section or JG section or,

for that matter, any Air Force written TO, regulation, or guide

that says there is a limit on the number of times a hydraulic accumulator can be changed? A: I’ll say no.”).

App. 84

investigator to that effect. See Def. Mot. at ¶¶ 22-27

(citing T. Davis Dep. at 117; Reeves Dep. at 106; Bogaert Dep. at 100; Chiaravalle Dep. at 26; Fallin Dep.

at 13, 15, 19, 35-36, 231).11 Relying on this testimony,

PAE further argued “[t]here is no evidence that Defendant ever deviated from the reasonably precise

specifications set forth in the Contract, TOs, or other

applicable U.S. Air Force regulations or standards, and,

in fact, Defendant submits [that the foregoing evidence] is uncontroverted that Defendant complied

with the Contract, TOs and applicable USAF requirements.” See id. at ¶ 28; see also id. at ¶ 49 (stating

“none of Plaintiff ’s experts have identified any specific

TO or other regulation that Defendant failed to follow”). PAE then continued in its motion:

Assuming and setting aside the highly speculative opinions of Plaintiff ’s experts as to

whether or not a hydraulic malfunction even

occurred, which led to or caused this crash,

and even if we assume that such a failure did

11

Captain Chiaravalle and Senior Master Sergeant Fallin,

in particular, testified that their respective AIB and SIB investigations made factual determinations that the Mishap Aircraft

had been maintained in compliance with Air Force guidelines and

standards. See Chiaravalle Dep. at 26 (the AIB factually determined “that the aircraft was being maintained per Air Force TOs,

AFIs, and requirements”); Fallin Dep. at 13, 15, 19, 35-36, 231

(the SIB factually determined that PAE was utilizing Air Force

requirements; that PAE was not using any non-Air Force requirements, TOs, or standards in maintaining the aircraft; that there

was no procedure that was missed or a part that was not installed;

that PAE used Air Force pre-flight checklists; and that there

wasn’t “anything out of the norm of what you would expect from

an active duty Air Force maintenance entity”).

App. 85

occur in flight, there is no procedure, guideline, or U.S. Air Force regulation that would

require additional in depth troubleshooting,

additional “grounding” as it has been referred to by Plaintiff ’s experts, or additional

return to “depot level” maintenance. Plaintiff

cannot cite a specific TO, guideline, or U.S. Air

Force requirement that Defendant allegedly

breached.

Id. at ¶ 50 (emphasis added).

To create a genuine disputed issue of material fact

in light of PAE’s evidence, the plaintiff was required in

her response in opposition to come forward with evidence that PAE did violate an Air Force guideline or

standard. However, she did not cite any evidence in her

response that is inconsistent with PAE’s evidence. See,

e.g., Pl. Resp. at ¶ 84 (arguing that PAE’s “repeated,

systematic and chronic failures” in maintenance were

“in direct violation of reasonably precise and applicable Air Force procedures,” but citing no actual evidence

to support that argument).12

12

The plaintiff didn’t produce any evidence of her own on this

point, but she did appear to challenge the weight that should be

afforded to PAE’s evidence. For example, as noted, Captain Chiaravalle testified that the AIB made a factual determination that

the Mishap Aircraft had been maintained pursuant to all relevant

“Air Force TOs, AFIs, and requirements,” but the plaintiff notes

that Captain Chiaravalle answered “I don’t know” forty six (46)

times in response to other questions during her deposition. See

Pl. Resp. at ¶¶ 90-92. Whether and to what extent Captain Chiaravalle was being an “evasive” and “typical” Air Force “bureaucrat” when responding to other questions, however, does not

contradict her deposition testimony—or similar testimony from

App. 86

Although the plaintiff didn’t cite any evidence in

her response in opposition to summary judgment on

this point, she did claim that PAE had breached two

Air Force guidelines: AFI 21-101 and TO 1-1-300. See

Pl. Resp. at ¶¶ 34-45, 84; accord Tr. at 10-11 (wherein

plaintiff ’s counsel argued “[t]here are two very specific

instructions that are in dispute in the Motion for Summary Judgment, and that is Technical Order 1-1-300

and Air Force Instruction 21-101”); see also Plaintiff ’s

Motion to Strike Air Force Opinions, Undisclosed Expert Opinions, and Other Inadmissible Evidence from

Defendant’s Motion for Final Summary Judgment,

filed February 21, 2019, at ¶ 12 (doc. 120) (“Plaintiff respectfully suggests that the Court’s summary judgment inquiry should focus on the reasonably precise

specifications that Defendant did not comply with: Air

Force Instruction (AFI) 21-101 and Technical Order

(TO) 1-1-300”).

In relevant part, AFI 21-101 sets out when an aircraft may be impounded:

7.1. Aircraft and Equipment Impoundment. Aircraft or equipment is impounded

when intensified management is warranted

due to system or component malfunction or

failure of a serious or chronic nature. . . . Impounding aircraft and equipment enables

investigative efforts to systemically proceed

other individuals, including PAE employees—that PAE’s maintenance conformed to all relevant Air Force guidelines and standards. See also Olson Aff. at ¶ 8 (testifying that PAE provided

maintenance “conforming” to the government requirements).

App. 87

with minimal risk relative to intentional/unintentional actions and subsequent loss of evidence.

TO 1-1-30 covers “check flights” after an aircraft

has undergone maintenance work, and it provides in

pertinent part that:

4.1. . . . Check flights are normally conducted following maintenance work and prior

to release of the aircraft for operational use.

For the purpose of this instruction, to ensure

aircraft is airworthy, primary aircraft systems

are those affecting engines; flight controls;

landing gear; and those systems affecting the

basic Instrument Flight Rules (IFR) capability of the aircraft (i.e., pitot static; compasses;

attitude references, air data computers, etc.).

A fair reading of AFI 21-101 is that it authorizes

aircraft impoundment, but it’s discretionary and not

required, and the same can be said of the check flight

described in TO 1-1-30. Nevertheless, the plaintiff has

argued that both guidelines were violated. But that is

all she has presented: attorney argument. And as earlier noted, that is not enough to avoid summary judgment. Nowhere in her response in opposition does she

cite actual evidence to support her argument that PAE

violated AFI 21-101 or TO 1-1-300. She has not, for

example, cited her experts on this issue. In fact, full

review of their testimony indicates the experts were

largely unfamiliar with the AFIs and TOs.

Stutler testified that he had not read or reviewed

“any portions” AFI 21-101, and thus it did not play “any

App. 88

part” in his opinions in the case. See Stutler Dep. at 7778; see also id. at 106 (testifying that there were no TOs

that he had any “particular interest in”). Ludwig answered “I’m not going to” when asked if he was planning to “render any opinions as to whether or not PAE

was . . . following Air Force technical orders[.]” See

Ludwig Dep. at 166. And Kibbee testified that he was

“not familiar” with many of the TOs—he was provided

some of them but not “the full set”—which led to the

following exchange: “Q: Well, let me ask this way: In

the TOs you’ve been given, can you point me to any TO

that you believe my clients did not follow? A: No, I can’t

do that.” See Kibbee Dep. at 87, 119; accord Tr. at 71

(where defense counsel noted that when the plaintiff ’s

experts were asked about the TOs at their deposition

“expert after expert said, ‘I can’t tell you exactly what

they breached. I can’t tell you specifically. I can’t tell

you which TO.’ Several of the key experts of the Navy,

well respected pilots said, ‘I haven’t even reviewed

them.’ ”).13

13

The plaintiff’s fourth expert, Kent Ewing, didn’t directly

and explicitly say during deposition that PAE violated AFI 21-101

and/or TO 1-1-300, but he did testify that in his opinion the Mishap Aircraft should have been impounded and only released after

a functional check flight. See Ewing Dep. at 141-44. As to the

former, he testified that he had read “words to the effect” in “121101” [sic] that an aircraft should be impounded if there are “continuous repairs that are made that are not satisfactory.” See id.

at 144. But he did not know (and offered no opinion as to) what

the Air Force defines as “continuous repairs that are not satisfactory.” See id. As to the latter, he didn’t cite TO 1-1-300 at all, and

in fact didn’t know what would be included in an Air Force functional check flight under that provision:

App. 89

It is also worth noting that after PAE filed its

motion for summary judgment on the government

contractor defense (in which it argued that “none of

Plaintiff ’s experts have identified any specific TO or

other regulation that Defendant failed to follow,” see

Def. Mot. at ¶ 49), the plaintiff did not submit any postmotion/post-deposition affidavits or other evidence

from her experts that mentioned AFI 21-101 and/or TO

1-1-3 00—even though my March 4th Order and Notice

Q: If this aircraft had had a functional check flight,

functional check pilot had taken it out, started it, just

like Mr. LaCourse did, flown it around the pattern,

brought it back and landed it, would it have been appropriate to release?

A: Only if it had been conducted as a functional check

flight in accordance with the TO or whatever the Air

Force calls it for a functional check flight— . . .

Q: What would a functional check flight post-maintenance include?

A: I don’t know. I know what it would be in the Navy.

I know what it would be in my experience. It would include all the maneuvers that the airplane is supposed

to be designed for. So it’s a pretty extensive document in

the Navy, post-maintenance check flight.

Id. at 141-42 (emphasis added). Because this testimony is not

“significantly probative” and leaves, at most, a “metaphysical

doubt” as to whether PAE violated AFI 21-101 and/or TO 1-1-300,

it is not sufficient to defeat summary judgment. See, e.g., Transcontinental Gas Pipe Line Co. LLC, 910 F.3d at 1154. Indeed, it

is telling that the plaintiff didn’t even cite or rely on this vague

testimony in her response in opposition to summary judgment or

suggest that it created a genuine disputed issue of material fact.

App. 90

explicitly granted her leave to file additional evidence.14

After close and careful review, I conclude that the

plaintiff has not produced evidence sufficient to create

a genuine disputed issue of material fact as to whether

PAE’s maintenance of the Mishap Aircraft conformed

to the Air Force’s reasonably precise standards and

guidelines. The uncontradicted evidence is that it

did. Therefore, PAE has met all three prongs of the

14

The plaintiff also failed to cite any evidence at the summary judgment hearing, which didn’t go unnoticed by defense

counsel. See, e.g., Tr. at 37 (“[T]he key, we believe, is the fact that

Plaintiff cannot cite to anyone who has testified or a report from

an expert . . . that says [PAE violated AFI 21-101 and TO 1-1300]. So really we’re on a Motion for Summary Judgment where

it’s the dearth of evidence from Plaintiff ’s side, or lack of it, that

we believe supports the summary judgment”); id. at 39 (“And

without that expert testimony that ties the links in the chain, the

Plaintiff does not have sufficient factual basis on which to go forward with their case. We believe, in a nutshell, that that is really

what our motion is directed at, Your Honor.”); id. at 63-64 (“What

the Plaintiff has to bring forward in this case is proof by—and

we’ve had a lot of us lawyers talking about things, but there’s no

testimony of any witness that says, ‘I read Air Force 21-101, I read

1-1-300, and this maintenance squadron, or contractor in the

place of a squadron, was the one required to perform a functional

check flight, and they failed to do so.”); id. at 65 (pointing out that

attorneys “don’t get to testify” and noting that “there’s no witness”

who testified that PAE violated AFI 21-101 and/or TO 1-1-300,

and without such evidence “we don’t have a case that can proceed”

because “[t]he time for advancing Rule 26 disclosures or amending them is gone. The depositions have been taken. The witnesses

can’t now contradict or expand their testimony to include new theories. We are here with what we have.”).

App. 91

Boyle/Hudgens test and is immune from this suit based

on the government contractor defense.

IV. Conclusion

For the above reasons, PAE’s motion for summary

judgment (doc. 96) must be, and is, hereby GRANTED.

The Clerk is directed to enter judgment in favor of

PAE, along with taxable costs, and close this case.

DONE and ORDERED this 29th day of August

2019.

/s/ Roger Vinson

ROGER VINSON

Senior United States District Judge