Record and brief — Boyle v. United Technologies Corp.
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NO.w. B6~492~-CFX Title: Delbert Boyles Personal Representative of the heirs
Status: GRANTED and Estate ot Davic A Boyles Deceasecs Petitioner
Ve
United Technologies Corporation
Docketed:
September 23, 1986 Court: United States Court of Appeals
for the Fourth Circuit
See also:
85-1529 Counsel for petitioner: FraneckesLouis S.
- 86-3/9 -
Counsel for respondent: BookersLewis Ter LacovararPhilio A.
Entry Date Note Proceedings end Orders
1 Sep 23 1986 G Petition for writ of certiorari filec.
2 Oct 6 1986 Brief of respondent United Technologies Corp. in oopesition
ftilec.
3 Oct 8 1986 DISTRIBUTED. October 314 1986
- 5 Nov 25 1986 REDISTRIBUTED. December 12 1986
EDITOR'S NOTE 7 Dec 22 1986 REDISTRIBUTED. January 9 1987
8 Jan 12 1987 Petition GRANTED. Justice Powell OUT.
THE FOLLOWING PAGES WERE POOR HARD COPY (RR RRRSBRABRESRRSASERSRRSR ERE RE RESO REREREER RRS ERSOSBESREBSERSBBSEES SD
AT THE TIME OF FILMING, IF AND WHEN A 9 Feb 5 198? Record filed.
BETTER COPY CAN BE OBTAINED, A NEW FICHE 10 Feb 5 1987 Certified copy of original recorc anc proceecings, 9
WILI BE ISSUED. volumess received.
11 Fed 25 1987 G Motion of Joan Se. Tozers et ale for leave to file a
brief as amici curiae filed.
12 Feb 25 1987 Briet amicus curiae of Edwin Lees Shaw filed.
13 Fed 25 1987 Joint appendix filed.
14 Fed 25 1987 Brief of petitioner Delbert Soyie filec.
15 Fed 25 1987 Brief amicus curiae of Assn. of Trial Lawyers of America
tilec.
16 Mar 9 1987 Motion of Joan S. Tozers et al. for leave to file a
brief as amici curiae GRANTED. Justice Powell CUT.
18 Mar 12 1987 Order extending time to file brief of responcent on the
merits until April 29 1987.
19 Apr 17 1987 Crder further extending time to file brief of resconcer:
on the merits until May 21 1987.
20 May 18 1987 G Moticn of Bell Helicopter Textron Inc. for leave to tile
a brief as amicus curiae filec.
21 May 21 1987 Brief of respondent United Technologies Corp. filec.
22 May 21 1987 G Potion of Chamber of Commerce of the Unitec States fer
leave to file a briet as amicus curiae filed.
23 May 21 1987 G Poticn of UNR Inogustriess Inc. for leave to file a dbrie*
as amicus curiae filed.
24 May 21 1987 Brief amicus curiae of Grumman Aerospace Corp. filed.
25 May 21 1987 G Motion of Defense Research Institutes Inc. for leave to
file a brief as amicus curiae filed.
26 May 21 1987 G Motion of Product Liability Advisory Councils Ince, et
an al. for Leave to file a brief as amici curiae filed.
27 May 22 1987 Lodging received.
28 Jun 1 1987 Potion of Bell Helicopter Textron Ince. for leave to tile
abrief as amicus curiae GRANTED. Justice Powell OuT.
29 May 21 1987 Brief amicus curiae of Natl. Security Incustrial Assr.- et
al. tiled.
BE-492-CFX
Date
Note
Proceedings and Orders
NO.
Entry
30 May
31 Jun
32 Jun
33 Jun
34 Jun
35 Jun
36 Jun
37 Jun
38 Jun
39 Jul
40 Jul
41 Jul
42 Aus
43 Sep
44 Oct
45 Oct
46 Oct
47 Oct
21
2
15
15
13
13
Brief amicus curiae of United
States filec.
Potion of petitioner for additional time for oral
argument filed.
Potion of Chamber of Commerce of the United States fcr
leave to file a briet as amicus curiae GRANTED. Justice
Powell OUT.
Motion of UNR Industries, Inc. for leave to tile a brie*
es amicus curiae GRANTED. Justice Powell OUT.
Moticn of Defense Research Institutes Inc. for leave to
tile a brief as amicus curiae GRANTED. Justice Pewell
OUT.
Potion of Product Liability Advisory Council, Ince, et
al. tor leave to file a brief as amici curiae GRANTED.
Justice Powell OUT.
Moticn of the Solicitor General for leave to participate
in oral argument as amicus curiae and tor divicec
argument filed.
Poticn of petitioner for additioral time for oral
argument DENIED. Justice Powell OUT.
Motion of the Solicitor General for leave to participate
im oral aergument as amicus curiae anc for dividec
argument GRANTED. Justice Powell OUT.
CIRCULATED.
Potion of Chamber of Commerce of the U.S. for leave to
file supplemental brief filed.
SET FOR ARGUMENT. Tuescays October 13, 1987. (2nc case).
Moticn of Chamber of Commerce of the UsS. tor leave to
tile supplemental brief GRANTED,
3
X Reply orief of petitioner Delbert Boyle filec.
X Supplemental brief of respondent United Technologies Corc.
°)
tilec.
Poticn of Edwin Dees Shaw for leave to submit
supplemental authority filed.
Potion of Edwin Dees Shaw for leave to submit
Supplemental authority DENIED.
ARGUED.
PETITION
FOR WRIT OF
CERTIORARI
; ( j r Supreme Court, U.S.
} FILED
8 6 4 92 | SEP 29 1986
No. | JOSEPH F. SPANIOL, JR,
CLERK
In The Soo
Supreme Court of the United States
October Term, 1986
sy.
MY
DELBERT BOYLE, personal representative of the
Heirs and Estate of David A. Boyle, deceased,
Petitioner,
v.
UNITED TECHNOLOGIES CORPORATION,
Respondent.
fy
aa
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT AND APPENDIX
ry.
’
Louis S. Franecke, Esq.
Joun O. Mack, Esa.
Mack, Haziewoop, Franecke & TINNEY
221 Pine Street, Suite 600
San Francisco, CA 94104
415/391-1560
Micuaet Moors, Esq.
CARTWRIGHT, SUCHERMAN & S.osoprn, [Nc.
101 California Street, 26th Floor —
San Francisco, CA 94111
415/433-0440.
Counsel for Petitioner
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
or call collect (402) 342-2831
I,
Il.
ITT.
IV.
I.
QUESTIONS PRESENTED FOR REVIEW
IN LIGHT OF THE CONFLICT IN DEFINITIONS
OF THE “GOVERNMENT CONTRACTOR DE-
FENSE”’ IN THE VARIOUS CIRCUITS, WHAT
ARE THE FACTUAL TESTS FOR THE GOV-
ERNMENT CONTRACTOR DEFENSE TO BE
UNIFORMLY APPLIED IN ALL CIRCUITS?
WAS PLAINTIFF’S CONSTITUTIONAL RIGHT
TO TRIAL BY JURY DENIED WHEN THE CIR-
CUIT COURT FAILED TO REMAND THE CASE
FOR TRIAL WHEN THE GOVERNMENT CON-
TRACTOR DEFENSE ADOPTED BY THE
FOURTH CIRCUIT WAS AT VARIANCE TO
THE INSTRUCTIONS ON THE GOVERNMENT
CONTRACTOR DEFENSE GIVEN TO THE
TRIAL JURY? IN OTHER WORDS, DID THE
COURT OF APPEALS DECIDE THE LAW AND
THE FACTS WITHOUT GIVING PLAINTIFF
TRIAL BY JURY ON THE LAW AS AN-
NOUNCED? APPELLANT BELOW HA! NOT
RAISED THE ISSUE OF IMPROPER JURY IN.
STRUCTIONS IN THEIR APPEAL.
WAS THE JURY DECISION BELOW IMPROP-
ERLY OVERTURNED BY THE COURT OF AP-
PEALS BECAUSE THEY ADOPTED AN IM-
PROPER TEST FOR THE GOVERNMENT CON-
TRACTOR DEFENSE?
SHOULD MILITARY EQUIPMENT MANUPFAC-
TURERS BE SHIELDED FROM EXPOSURE TO
il
PRODUCT LIABILITY AND NEGLIGENT MAN-
UFACTURE ACTIONS BY U.S. MILITARY PER-
SONNEL?
IS THE GOVERNMENT CONTRACTOR DE-
FENSE A JURY QUESTION OF FACT OR A
QUESTION OF LAW?
DOES THE PLAINTIFF OR THE DEFENDANT
HAVE THE BURDEN OF PROVING THE GOV-
ERNMENT CONTRACTOR DEFENSE?
ili
TABLE OF CONTENTS
Page
I. QUESTIONS PRESENTED FOR REVIEW ....
TABLE OF CONTENTS o..ccccccsssssnnnnnnnnnne iii
TABLE OF AUTHORITIES |... v
PETITION FOR WRIT OF CERTIORARI .... 1
II. OPINIONS BELOW 0 ence oe ta
i
IV. CONSTITUTIONAL AND STATUTORY PRO-
VISIONS INVOLVED oneness 2
V. STATEMENT OF THE CASE on. 3
A ieeoeucnor C(t‘! 3
B. THE NEGLIGENT REPAIR BY DEFEN-
a eS
C. THE DEFECTIVE CONTROL SYSTEM
AND THE DEFECT NOT COMMUNI-
CATED TO THE U.S. NAVY ................ ae 9
D. THE DEFECTIVE ESCAPE SYSTEM ... 12
VI. REASONS FOR GRANTING THE WRIT ........ 14
A. THERE IS A CONFLICT IN THE VARI-
OUS CIRCUITS REGARDING THE GOV-
ERNMENT CONTRACTOR DEFENSE... 14
B. THE COURT OF APPEALS DEPARTED
FROM ACCEPTABLE AND USUAL
COURSE OF JUDICIAL PROCEEDINGS
BECAUSE THE TRIAL COURT GAVE
THE ‘“‘AGENT ORANGE” TEST IN-
STRUCTIONS AND THE COURT OF AP-
PEALS ADOPTED THE ‘‘McecKAY” TEST
AND DID NOT REMAND FOR JURY
TRIAL ON THE LAW AS ANNOUNCED 19
iv
TABLE OF CONTENTS—Continued
Page
C. IF THE GOVERNMENT CONTRACTOR
DEFENSE IS A JURY QUESTION, THE
COURT OF APPEALS IMPROPERLY DE-
CIDED THE CASE ON LAW IT JUST AN-
NOUNCED WITHOUT REMANDING FOR
A TRIAL BY JURY ON THE FACTS RE-
GARDING THE JUST ANNOUNCED LAW 23
D. DID THE COURT OF APPEALS ADOPT
AN IMPROPER AND NON-FUNCTIONAL
SET OF TESTS FOR THE GOVERNMENT
CONTRACTOR DEFE..SE AND THUS IM-
PROPERLY REVERSE THE JURY VER-
aT OIL DP oot 25
K. DOES A SOUND POLICY EXIST FOR
THE ALLOWANCE OF THE GOVERN-
MENT CONTRACTOR DEFENSE
SHIELDING THE MILITARY EQUIP-
MENT MANUFACTURER FROM PROD- -
UCT LIABILITY OR NEGLIGENT DE-
ERT aT team Wkatee BPS 7 DNR Eas 27
VIIL. APPENDIX TO CERTIORARI 000000000000 AT
Vv
TABLE OF AUTHORITIES
Page(s)
CasEs
Ashland v. Link Ling-Tempco-Vaught, Inc., 711
F.2d 1431 (Qtlr Cir, 18S) nena ennsenceeeee 28
Atlantic and Gulf Stevedores, Inc. v. Ellerman
Lines (PA 1962) 82 S.Ct. 780, 369 U.S. 355 23
Boyle v. United Technologies Corp., 792 F.2d 413
SG Se SINE sostacsedeeinindeoaioomeienatians 1
Brown v. Caterpillar Tractor Company, 696 F.2d
a ee Ce Ee BD cece 29
Bynum v. FMC Corp., 792 F.2d 413 (4th Cir. 1986) ....... 15
Dowd v. Textron, Inc., 792 F.2d 409 (4th Cir. 1986) .... 1, 22
Foster v. Day and Zimmerman, Inc., 502 F.2d 867,
eB FI aactedescts hee nelcndnebislonintandaiiciaiaaeiinns 29
Helene Curtis Industries, Inc. v. Pruitt (Court of
Appeals TX 1967), 385 F.2d 841, cert. denied
a tr es Ne Tt I oictireectcccttsieiiccierrettreeene 24
Hunt v. Bradshaw (Court of Appeals N.C. 1957),
OI Se atc tasceierehcrestnksincnkstcpajensdhcncapeaiaceathantiiieiaeall 23, 24
In re Agent Orange, 534 F. Supp. 1055 (E.D.N.Y.
ITI ‘ceuisicesiesshlbenicccseiclehinada dedgnsileatenct h cpiahesanmalnidiaaaicaisiemscmnieandl passim
In re Air Crash Disaster at Manheim, Germany,
769 F.2d 115 (3rd Cir. 1985) eee ae nee 23
Klein v. Sears Roebuck Company, 773 F.2d 1421,
Renee err 21
Koutsoubos v. Boeing Company, 755 F.2d 352 (3rd
US TIED, isc. isniptetsidegeiena nitiliianbenannielouamadiainaaaendninoied passim
Krotkoff v. Goucher College, 585 F.2d 675, 677
CO ME RARER Se RI receeneoe sm eee HUN Aan 21
McKay v. Rockwell International Corp., T04 F.2d
444 (9th Cir. 1983), cert. denied 464 U.S. 1043
(1984), 104 S.Ct. 711, 79 L.Ed.2d 175 (1984) ...W... passim
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Schneider v. Lockheed Aircraft Corp., 658 F.2d
835, 838 (D.C. Cir. 1981), cert. denied 455 U.S.
ERS AI e NE Ms 28
Schoenborn v. Boeing Company, 586 F. season 711
(E.D. Pa. 1984) ........ ilaeesih enaaaseacsinadeah iliac Dea taidintaratacciaed 23, 28
Shaw v. Grumman Aerospace Corporation, 778
F.20°736 (11th Cir, 1985) 2 cccnnnnnnnnnen 1, 17, 23, 25
Tillett v. J I Case Company, 756 F.2d 591 (7th
Cir. 1985) ............. PEP TNT SET mT TEE ROTC 15, 23
Tozer v. LTV Corp., 792 F.2d 403 (4th Cir. 1986)
TS IS eA ARR Fell 8 Aaron rao EET enr:
OrTuHerR AUTHORITIES
BS U.S.C. § 19641) 2...
U.S. Const. Seventh Amendment .
TO: THE HONORABLE CHIEF JUSTICE AND AS-
SOCIATE JUSTICES OF THE SUPREME
COURT OF THE UNITED STATES:
Petitioner Respectfully prays that a Writ of Certi-
orari issue to review the judgment and opinions of the
United’ States Court of Appeals for the Fourth Circuit
entered in this matter on or about May 27, 1986.
II
OPINIONS BELOW
On July 24, 1985, judgment was entered in the United
States District Court, Eastern District of Virginia-Rich-
mond Division, on the jury verdict, in favor of Petitioner
in amounts totaliv $725,000 and is reprinted in the appen-
dix to this Petition, page A1.
On May 27, 1986, the United States Court of Appeals
for the Fourth Cireuit reversed this jury verdict and re-
manded with directions to enter judgment for Defendant.
This reversal is herein sought to be reviewed. This deci-
sion is reported at 792 F.2d 413 (4th Cir. 1986) and is
reprinted in the appendix to this Petition, page A3.
This decision was announced on the same day in con-
junction with two other cases involving the same legal
questions regarding the Government Contractor Defense;
Tozer v. LTV Corp., 792 F.2d 403 (4th Cir. 1986) which
is reprinted in the appendix to this Petition, page A10;
and Dowd v. Textron, Inc., 792 F.2d 409 (4th Cir. 1986).
This Court has likewise been requested to hear similar
issues in Shaw v. Grumman Aerospace Corporation, (1985)
778 F.2d 736.
Petitioner’s timely Petition for Rehearing In Banc to
the Fourth Cireuit Court of Appeals was denied on June
25, 1986, as is reprinted in the appendix to this Petition,
page A24.
Thereafter, the United States District Court for the
Eastern District of Virginia vacated its judgment and en-
tered judgment for Defendant on July 7, 1986, as is re-
printed in the appendix to this Petition, page A25.
ITI
JURISDICTION
The judgment of the Court of Appeals was entered on
May 27, 1986. Petitioner timely petitioned the United
States Court of Appeals for the Fourth Cireuit for a Re-
hearing In Bane which was denied on June 25, 1986.
The jurisdiction of this Court is invoked pursuant to
28 U.S.C. § 1254(1).
IV
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Constitution of the United States, Seventh
Amendment, Right To Trial By Jury:
‘*In suits at common law, where the value in contro-
versy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury,
shall be otherwise reexamined in any Court of the
United States, then according to the rules of the com-
mon law.”’
V
STATEMENT OF THE CASE
A.
INTRODUCTION
Petitioner’s decedeut, a United States Marine Helli-
copter Co-Pilot, was riding in a CH-53D Helicopter built
by Defendant, SIKORSKY CORPORATION DIVISION
OF UNITED TECHNOLOGIES CORPORATION, when
the aircraft made an uncontrollable right turn at low alti-
tude crashing approximately a mile and a half off the Vir-
ginia Beach shore, Virginia, on April 27, 1983. The pilot,
erew chief and passenger escaped, but Petitioner’s dece-
dent, co-pilot, drowned in the helicopter as it sank.
Suit was brought in United States District Court for
the Eastern District cf Virginia at Richmond on ihe ba-
sis of situs of the accident being within the 3 mile limit
of the Virginia coast and on diversity of citizenship
grounds. It was agrecd that Virginia substantive law ap-
plied.
Petitioner generally contended that decedent died ve-
cause of three causes:
First, Defendant had negligently repaired a part of
the control system of the helicopter which proximately
caused the helicopter to gc out of control and crash into
the sea; and
Second, the helicopter control system was defective
and did not conform to the U.S. Navy’s specifications; and
+
Third, the co-pilot escape system was defectively de-
signed such that the escape handle could not be reached;
the escape window, which only opens out, would not open
due to sea pressure forcing it in while the helicopter was
sinking and it was thus not in conformity to the U.S.
Navy’s specifications.
Petitioner’s case was presented by testimony of the
surviving pilot of the helicopier, Captain Tussing of the
U.S. Marine Corps (J.A. 109-227)*; the crew chief of the
helicopter, Sgt. Tubbs of the U.S. Marine Corps (J.A. 228-
289); the duly appointed Judge Advocate General’s in-
vestigator, Major Keown, of the U.S. Marine Corps and
his investigative report including many documents and
statements by numerous witnesses and factual personnel.
(PX1). (J.A. 293 - 296).
Also, by deposition, United States Navy’s duly ap-
pointed engineering and accident investigator, Mr. Terry
Fox, of the U.S. Navy at Pensacola, Florida. (J.A. 47-55,
299). Mr. Fox was acknowledged by Defendant to know
more about the control system of this type of helicopter
than anyone. (J.A. 455) Mr. Fox examined the wreckage
and tore apart the mechanical parts to discover the cause
of the crash. (J.A. 69, 826-852). His report and testimony
found a metal chip in the roll servo to have been the
cause. (.J.A. 826-852, 45-104).
By deposition, Defendant’s own employee investiga-
tor, Mr. Jessie Clemons, acknowledged that a metal chip
found by Mr. Fox would cause the helicopter to roll eaus-
ing the crash. (.J.A. 20, 34-59).
*|.A. refers to the Joint Appendix in the appeal to the Fourth
Circuit. These documents would be presented if the Court
should accept this case for full briefing.
Petitioner’s engineering expert witnesses, Dr. James
Hayes and (J.A. 322-349) Dr. Paul Packman, (J.A. 388-
429) explained and gave their opinions regarding the rea-
sons why the metallic chip caused the helicopter to crash
and why the escape system did not work.
Finally, the mother and father of Petitioner’s decedent
testified regarding the loss of their son and friend. (J.A.
349-367).
These witnesses were supported by a large number of
documents from the U.S. Navy, the Defendant’s design
documents and numerous photographs of the actual
crashed helicopter and similar helicopters. (J.A. 695-
1412).
The overwhelming conclusion of all of this testimony
was that Defendant had negligently repaired the control
system causing the helicopter to crash, the co-pilot escape
system did not work when it was needed, and the control
system was defective.
B.
THE NEGLIGENT REPAIR BY DEFENDANT
The pilot and co-pilot of a helicopter control their
flight by two control sticks, called the collective and eyelie,
and foot pedals. (J.A. 1182, 117-118). The pilot and co-
pilot controls are linked mechanically to one another as
well as to the various control places on the helicopter.
(J.A. 913, 914, 1055).
In addition, there are augmenting devices known as
servos, which also control the helicopter like an auto
pilot. (J.A. 886-887, 1196-1209). These servo devices af-
ford the pilots assistance in flying, something like power
steering in an automobile. (J.A. 159, 1184-1189). How-
ever, if one of these servos goes out of control, it can make
the helicopter go out of control and crash like the power
steering in an automobile, turning the wheel unexpectedly,
causing a crash into a tree.
The pilot of the ill-fated CH-53D helicopter, Captain
Tussing, clearly testified regarding his control stick’s sud-
den and continued movement to the right after he had ini-
tiated a right turn at about 200’ of altitude. (J.A. 171-178).
Captain Tussing testified to his inability to correct
the jammed stick, which-was over en his right leg, despite
his best efforts. (J.A. 173-178). He said he had no time
(due to the low altitude) to try and start the other correc-
tive measures to disengage his controls. (J.A. 117-178,
1194-1268). Finally, by pulling full collective, he was able
to soften the impact of the aircraft into the water. (J.A.
176-177). Captain Tussing was a 1,600 hour helicopter
aircraft commander and an instructor who was quite cap-
able of flying the helicopter had there not been some mal-
function with the control system. (J.A. 109-111)
Mr. Terry Fox, the appointed engineering investiga-
tor for the U.S. Navy, who had extensive experience both
as a mechanic and engineer with the servo systems, found
the most likely canseref+he crash to be the chip found in
the AFCS roll servo ‘‘Moog’’ valve. (J.A. 69, 850-852).
The ‘*Moog’’ valve is part of the servo and controls the
movements of the servo. (.J.A. 419).
Similarly, Dr. Paul Packman, Petitioner’s engineering
expert witness, Mr. Carlson, Defendant’s investigator, Mr.
Fox, the U.S. Navy’s Investigator, and numerous De-
fendant’s witnesses agreed that a metallic chip causing a
jam of the ‘‘ Moog’’ or pilot valve of the servo would cause
the aircraft to experience a right jam of the control stick.
(J.A. 69). In fact, the condition of the metallic chip being
flattened at one end, (J.A. 70), supported Dr. Packman’s
explanation regarding the jamming effect of the chip in
the small ‘‘Moog’’ valve, creating a steady control stick
movement over to the right. This is entirely consistent
with Captain Tussing’s testimony. (J.A. 400-409).
The helicopter became inverted in the mud in 35 feet
of dark and murky water with its hydraulic lines open to
the sea, admitting sea water, sand and other particles.
(J.A. 106-108).
Mr. Terry Fox, an independent witness, further testi-
fied that no sereens or filters were found to have holes in
them, which clearly established that the chip had been pre-
sent in the system for some period of time. (J.A. 638, 71,
427-429).
The metal chip could have only have gotten into the
servo in one of three ways. That is, due to maintenance
activities by the U.S. Marines, by minor repair work done
by the U.S. Navy at Pensacola, or by the complete rework
and remanufacture by the Defendant. The facts estab-
lished that it was the rework by the Defendant.
The screen filters, which were capable of filtering out
this metallic chip, did not have a hole in them, clearly
establishing that the chip was not introduced during ship-
hoard maintenance of the servo on the subject aircraft.
(J.A. 63, 427-429). -
Mr. Fox testified that in his investigation, other econ-
taminants found in the hydraulic system were consistent
with normal deterioration of the seals and aluminum
housings as well as immersion in the sea water. (J.A. 66,
86, 87, 1410-1412).
Further, the likelihood of the chip being introduced at
Pensacola, Florida, by the Navy was extremely unlikely
due to the fact that the Navy did not disassemble the
‘**Moog’’ valve from the servo (the chip being found in the
‘*Moog’’ valve). This was established by Mr. Fox’s testi-
mony of seeing the yellow paint on the screws being undis-
turbed (paint put on by Defendant) (J.A. 83) and finding
the nature and extent of the repair work done by Pensa-
cola to be relatively minor.
Also, Mr. Bill Herald, (PX 11), had done a quality
inspection audit and determined that the type of metal,
steel 1010, was not used in the shop at Pensacola. (PX 11).
This investigation was done at the time of the actual crash
and not some two years later as was the one conducted by
Defendant’s witness, Mr. Ashbury. (J.A. 579-581). Defen-
dant failed to produce the better evidence of the defendant
employee who actually was stationed in Pensacola at the
time of the crash. (.J.A. 582).
Finally, is was established that Sikorsky had totally
remanufactured the servo, including the ‘‘Moog’’ valve.
(J.A. 497-500). None of Defendant’s witnesses had actual
first-hand knowledge as to what metal wire was used in
their shop or at the Moog factory. (J.A. 497-498).
The jury found the Defendant had been negligent in
its repair of the metal part.
C.
THE DEFECTIVE CONTROL SYSTEM AND
THE DEFECT NOT COMMUNICATED TO
THE U.S. NAVY
The Court of Appeals below stated, ‘‘ Plaintiffs point
to nothing in the record that indicates there were any
hazards of which Sikorsky was aware and the Navy was
not. Sikorsky’s duty to warn the Navy of any hazards
known to it but not to the Navy was thus not brought into
question.’’ 792 F.2d 413 at 415.
However, evidence had been presented at the trial of
the elements of the design (defect) which Sikorsky was
aware and that had not been presented to the Navy. They
are:
-~
1. That the amount of force required for a pilot to
control the ‘‘roll’’ servo (override forces) under a worst
malfunction of the Automatic Flight Control System
(AFCS) is uncontrollable by a pilot; and
2. That there is a lack of redundancy in the system
when the overriding forces are not capable of being ex-
erted by the pilot when the pilot is close to the ground; and
3. That the safety shear pin is only connected to the-
number two system and not to the number one system
which necessitates such high override forces. The heli-
copter in this case was operating on the number one
system.
To briefly review, the AFCS on the subject helicopter
acted like power steering. When the power steering went
10
awry, the pilot was forced into an uncontrolled condition
where the power steering was working against his efforts
to control the helicopter.
Plaintiff’s Exhibit 20 (J.A. 888-895) was the detailed
specifications for the AFCS prepared by Defendant
Sikorsky. This was the only presentation to the Govern-
ment on this subject.
Specifically at page eight, (J.A. 892) the collective
and vaw aspects of the AFCS system were addressed, but
the ‘‘roll’’ system was not addressed with regard to the
worst case malfunction. Testimony at trial clearly indi-
cated that that amount of force was approximately fifty-
five (55) pounds or almost twice as much as any of the
other systems. (J.A. 556-558, J.A. 407-409).
Defendant’s own employee and designated expert, Mr.
Knute Hanson, testified that there was no warning by
Sikorsky to the United States government for the worst
malfunction of the AFCS and what it was going to take
to get out of the roll under this worst malfunction of the _
AFCS (See J.A. 556-558, J.A. 407-409). Likewise, no
evidence was introduced by Sikorsky that the U.S. Navy
was aware of this problem. Yet, this design limit was
knowledge which ought to be known by Defendant.
Defendant’s own employee, Mr. Jesse Clemons, who
was one of the investigators at the actual scene of this
11
particular crash, testified that the force to overcome
against the ‘‘hard-over’’ of the roll servo would be fifty-
five (55) pounds. (J.A. 42).
Defendant’s employee, engineer and designated ex-
pert, Mr. Roderick MacLennan, testified that the hard-
over force of the roll servo would be approximately fifty-
five (55) pounds to move against (See J.A. 534-536).
Nowhere did the Defendant ever warn the United
States government with regard to the force and magni-
tude required by the pilot to override the system. Defen-
dant presented no evidence on this critical issue.
Hence, how could the U.S. Navy accept and approve
the system without this knowledge? Sikorsky offered no
Navy testimony on this critical issue.
There also could be no doubt about the lack of redund-
ancy for the number one system under the conditions of
this case. The shear pin is only on the number two AFCS
system. Here, the pilot was on the number one system and
there was no shear mechanism available to him to override
the system that had gone awry. (JA 400-404). He could not
override 55 pounds of force and he had no shear pin.
This Court did not address the foregoing issues which
were considered by the jury and found to be a defect.
12
—
D.
THE DEFECTIVE ESCAPE SYSTEM
The aircraft, after crashing into the water, while
sinking rapidly, rolled left (toward co-pilot’s side). (J.A.
185). The co-pilot’s escape window only opens out, not in,
and could not have been opened against the sea water.
(J.A. 730, 1135-1140).
The facts establish that Lt. BOYLE had attempted to
escape during the actual sinking of the aircraft. He had
disconnected his seat belt and shoulder harness and had
suffered lacerations on his left hand that would correspond
to attempts to find the escape handle in the brown, murky
water where visibility was only three feet. (J.A. 106-108),
(PX-1).
When the collective handle is pulled full up, it blocks
the co-pilot’s access to his only escape hatch handle. (J.A.
861).
By stipulated facts, it was established that Petition-
er’s decedent suffered cuts on his left hand which would
correspond to his attempt to reach, unsuccessfully, for the
handle. (J.A. 106-108). He probably scratched it on the
safety wire. The pilot’s, on the other hand, is not so
blocked. .
Further, the testimony established that the col-
lective handle, when pulled in its full up-right position,
which Captain Tussing testified he had done just prior to
impact, does in fact, block access to the control handle as
shown by Petitioner’s witnesses testimony and photo-
graphic exhibits. (J.A. 301, 319, 861).
When the aircraft rolled, it rolled left, or toward the
co-pilot. (J.A. 185). This put the escape window under
water and non-useable due to water pressure. This design
13
did not conform to the Navy specifications for a useable
escape system under all conditions. (J.A. 700-708).
Tue stipulated facts also show that the water was
murky with visibility of only three feet. (J.A. 106-108).
The surviving crew members testified that it was by sheer
luck that they were able to get themselves out in the very
disorienting murky water after the helicopter had rolled
over. (J.A. 187-188, 252).
Also, Captain Tussing described in detail how he had
been sucked back into the aircraft as it sank. (J.A. 187).
This sucking clearly accounts for how Decedent was pulled
into the aft cabin in a dark, disoriented condition. Thus,
despite Decedent being the best swimmer among the crew,
he died. (J.A. 107).
There was no testimony by Defendant regarding any
test, any reports, any specifications or any dialogue be-
tween Defendant and the U.S. Navy that the co-pilot
escape window would not open while the aircraft was sink-
ing and the window was held in place by water pressure.
There was no evidence that there had ever been any
prior crash of said helicopter where this phenomenon was
demonstrated to the U.S. Navy.
The alleged mock-up that the Navy was shown was
not a working model which had been immersed in water.
There was no testimony that the Defendant tested this
system under water or demonstrated it to the U.S. Navy.
Nor did the Navy have any knowledge thereof, since the
Navy’s training for the pilots and their escape simulator,
while under water, were without windows at all. (J.A. 318-
319). No Navy personnel were called to testify regarding
this point or in support of Defendant’s position.
14
Therefore, not only did the Defendant knowingly fail
to inform the U.S. Navy of the overriding force on the
servo, they failed to inform the Navy of the escape window
being held in place by water pressure. Either one of these
issues was sufficient for the jury to find for the Plaintiff.
The jury unanimously returned a verdict for the
Plaintiff.
VI.
REASONS FOR GRANTING THE WRIT
A. -
THERE IS A CONFLICT IN THE VARIOUS
CIRCUITS REGARDING THE GOVERNMENT
CONTRACTOR DEFENSE
There is conflict and confusion in the lower Courts
regarding the Government Contractor Defense.
The various Circuit Courts have adopted two basic
forms of the Government Contractor Defense and two
hybrid versions.
The 9th Circuit announced in McKay v. Rockwell
International Corp., 704 F.2d 444 (9th Cir. 1983), cert,
denied, 464 U.S. 1043, 104 S. Ct. 711, 79 L. Ed. 2d 175
(1984), that a supplier of military equipment is not liable
for design defect where:
‘‘1. The supplier proves that the United States estab-
lished or approved, reasonably precise specifications
for the allegedly defective military equipment,
15
2. The equipment conformed to those specifications,
and,
3. The supplier warned the United States about pa-
tent errors in the government’s specifications or about
the dangers involved in the use of the equipment that
were known to the supplier but not to the United
States.’’
The 7th and 5th Cireuits adopted the McKay test with-
out modifications in Tillett v. JI. Case Company, 756 F.2d
591, 596-598 (7th Cir. 1985) and Bynum v. FMC Corpora-
tion, 770 F.2d 556, 561-562 (Sth Cir. 1985).
The other major version of the standard was -an-
nounced in Jn re Agent Orange Product Liability Litiga-
tion, 534 F.Supp. at 1055 (E.D. N.Y. 1982). Those three
elements are:
‘*1. Proof that the government established contract
specifications for the product;
2. Proof that the contractor complied in all material
respects with the specifications, and
3. Proof that the government knowledge of the haz-
ards of the finished product was at least equal to that
of the contractor.’’
The critical difference between McKay and Agent
Orange is how the two tests approach the government’s
knowledge and conscious acceptance of a defective product.
That is, McKay erroneously only requires the manufac-
turer to warn the government if the manufacturer has
knowledge of the defect. This does not insure that the
government, in fact, knows what it is buying.
On the other hand, the Agent Orange test requires the
government to have knowledge of the hazard (defect)
16
ind
equal to that of the contractor regardless of where the in-
formation may come from. There is no delineation between
patent or latent hazard.
Clearly, knowledge on the part of the military of the
defect is the thrust of the Government Contractor Defense.
Therefore, the Agent Orange test is more in the ballpark
of the policy theory behind the Government Contractor
Defense.
Another difference between the McKay and Agent
Orange test is the degree to which the government may be
involved in setting the product specifications. McKay
seems to acknowledge some minimal level of government
involvement below which the supplier should be held re-
sponsible for design defects. Yet, further under the
McKay test, mere governmental approval of the contrac-
tor’s design will shield the supplier from liability, with-
out showing knowledge of the defect in approval by the
government. The result is absurd and not in keeping with
the policy that the government actually knows what defect
it is buying for its own reasons.
In Koutsoubos v. Boeing Vertol, 755 F.2d 352-354-355
(3rd Cir. 1985) the Court announced a hybrid version. It
formally adopted the Agent Orange test, above, 755 F.2d
at 355, but added further to the first part of the McKay
—‘‘approval’’ reasoning. That is, as Koutsoubos said, ‘‘gov-
ernment approval of specifications developed through a
continuous series of negotiations between the contractor
and the military wo'.ld satisfy the first prong of the
‘‘Agent Orange’’ defense, even though the majority of the
17
specifications originated with the contractor.’’ The Court
unfortunately does not specify that the back and forth
actually addressed the specific defect.
The second hybrid was announced in Shaw v. Grum-
man Aerospace Corporation, 778 F.2d 736 at 745 (11th Cir.
1985) where that Court was not satisfied with either of the
two standards. That Court’s central concern was whether
or not the military actually made a decision to use a prod-
uct that it knew to be dangerous to servicemen. Thus, they
fashioned a test that a contractor may escape liability only
if it affirmatively proves:
1. ‘*That it did not participate, or participated only.
minimally, in the design of those products or parts
of the products know to be defective; or
2. That it timely warned the military of the risk of
the design and notified it of alternative designs rea-
sonably known by the contractor, and that the mili-
tary, although forewarned, clearly authorized the
contractor to proceed with the dangerous design.’’
778 F.2d 736 at 745.
The Court felt that the first element of the test was
fashioned to allow a military contractor to show when it
actually worked jointly with military personnel in produc-
ing detailed specifications or that it was so minimal to
excuse it from proving the second part of the test. 778
F.2d 736 at 746.
The Shaw Court went on to say that the second test
to be proven by the defendant by a preponderance of the
evidence was that the contractor both warned the military
of the risk of the product or product part that it designed
and informed it of a design alternative reasonably known
to the contractor. However, reasonable knowledge is not
18
synonymous with omniscience. A risk is reasonably known
when it is either actually known, or reasonably ought to be
known, given good design practices in the industry. 778
F.2d 736 at 746.
The Fourth Circuit, at variance to ali other circuits,
in Tozer v. LTV Corp., 792 F.2d 403, 408, adopted the
McKay test, but applied Kodutsoubos reasoning. The Tozer
law was then applied in this case.
Thus, clearly there is a conflict in the various circuits
pertaining to the Government Contractor Defense.
These conflicts in the various circuits are of no small
import when considered in light of the different burdens
of proof required of the Defendant and also of the Plain-
tiff in meeting the various tests.
For example, in some circuits the burden of proof is
to show that the government knew the hazards associated
with the specific design which later proved to be defective
and causing injury. On the other hand, the other circuits
only require that the manufacturer warn the government
of defects it knows about or ought to know about. In
other words, the government may have no knowledge of
the defect and may have not made any conscious decision
to purchase a defective product. This is very expensive
and dangerous.
Clearly, this is only one example of the chaos created
by the various conflicting interpretations in the Circuits.
These matters will be briefed in more depth should this
Court accept this Writ of Certiorari.
19
B.
THE COURT OF APPEALS DEPARTED FROM
ACCEPTABLE AND USUAL COURSE OF
JUDICIAL PROCEEDINGS BECAUSE THE
TRIAL COURT GAVE THE ‘‘AGENT OR.
ANGE”’ TEST INSTRUCTIONS AND THE
COURT OF APPEALS ADOPTED THE ‘‘Mc-
KAY’’ TEST AND DID NOT REMAND FOR
JURY TRIAL ON THE LAW AS ANNOUNCED
The jury below was instructed regarding the Govern-
ment Contractor Defenses as follows:
‘*In addition, Plaintiff cannot recover either under
a theory of negligence or breach of implied warranty
based on a design defect if Defendant UNITED TECH-
NOLOGIES CORPORATION proves, by preponder-
ance of the evidence:
1. That the United States Navy established or ap-
proved the specifications for the co-pilot egress sys-
tem,
2. That the helicopter conformed to these specifica-
tions, and
3. That the United States Navy knew as much or more
than the defendant-about the helicopter’s hazards and,
therefore, Defendant did not need to warn the govern-
ment of the dangers involved in the use of the equip-
ment.
It is not necessary for Defendant UNITED TECH-
NOLOGIES CORPORATION to prove that the gov-
ernment established every exact detail of the egress
system. However, Defendant must prove by a pre-
ponderance of the evidence that the United States
Navy specifications were more than just general re-
quirements, or that the Navy examined or agreed to a
detailed description of the system.’* (.J.A 662.)
20
However, the Court of Appeals announced in the Tozer
v. LTV Corp., 792 F.2d 403 (4th Cir. 1986) case, decided on
the same day as the case herein, that the 4th Circuit
adopted the following Government Contractor Defense:
‘*A military contractor can escape liability for a de-
sign defect if it can demonstrate that:
1. The United States is immmne from liability ;
2. The United States approved reasonably precise
specifications for the equipment;
3. The equipment conformed to these specifications;
and, ;
4. The supplier warned the United States about dan-
gers in the use of the equipment that were known to
the supplier but not to the United States.’’
Here, the United States District Court, in essence,
gave the Agent Orange test to the jury and the jury found
the defendant did not meet its burden of proof and that the
defendant was liable. However, the United States Court
of Appeals then applied, in essence, the McKay test and_
took the place of the jury to find that the defendant was
not liable.
The Court of Appeals decided the case based on a mix
of the other Circuits’ reasoning (per Koutsoubos) for its
own interpretation of the facts and law without the jury
having an opportunity to consider it (see appendix to this
Petition, page A3).
Importantly, Appellant below did not argue that the
trial Court had improperly instructed the jury regarding
the Government Contractor Defense. To the contrary, De-
fendant Appellant below merely argued that it had pre-
sented sufficient evidence to support that defense accord-
ing to the jury instructions on the law. The jury, who
heard the case, thought otherwise.
21
Consequently, Petitioner herein has never been af-
forded the opportunity of briefing and arguing the case
(with citations to appropriate evidence, ete.) regarding the
facts on the Government Contractor Defense as announced
by the Fourth Cireuit herein. This amounts to a trial with-
out due process and without right to trial by jury.
Petitioner had no reason to believe that the Fourth
Circuit Court of Appeals would not agree that the trial
Court’s instructions were appropriate since that issue was
not raised on appeal. Petitioner did not brief or argue
any of those issues at trial or on argument to the Court
of Appeals. 7 ‘
Thus, despite the conflict in the various circuits, it is
clear that the Petitioner has not received a trial by jury
based upon the law first announced by the 4th Circuit
Court of Appeals in variance to the law as given to the
jury in the District Court. This is clearly a violation of the
7th Amendment to the United States Constitution, Right
to Trial by Jury.
The Court of Appeals below should have remanded
the case for a new trial based on a change of the law of the
Government Contractor Defense from the law on which
the jury was instructed.
In determining whether or not evidence was sufficient
to uphold the verdict, the Court of Appeals ‘‘must view
the evidence in a light most favorable to the jury’s verdict
and give the prevailing party the benefit of all reasonable
inferences which can be drawn from the evidence. Klein v.
Sears Roebuck Company, 773 F.2d 1421, 1424 (4th Cir.
1985) citing AKrotkoff v. Goucher College, 585 F.2d 675,
677 (4th Cir. 1978).
22
Yet, the Court of Appeals, strained to reverse the case
by ignoring the wealth of evidence favorable to Petitioner’s
jury verdict. (See previous sections herein).
In light of the abundance of evidence presented by
Petitioner, it takes little inference to determine that the
jury placed more credence in the Petitioner’s evidence
‘than that of the Defendant. This was the case on both
the defect in the manufacturer’s product and also in the
negligent maintenance performed by the Defendant on the
subject aircraft. Yet, the Fourth Cireuit, reversing the
two other similar cases, decided on the same day (Tozer
and Dowd, supra,) were caught up in a momentum which
ignored Petitioner’s basic rights.
As previously stated, the District Court instructed
generally according to the Agent Orange definition of the
Government Contractor Defense. However, the Court of
Appeals then announced the criteria to be that of McKay
and Koutsoubos. In other words, the jury never had an
opportunity to consider the facts and the law as presented
in the case. The Court of Appeals announced its own law
and made its own fact decision. This is clearly a viola-
tion of the Seventh Amendment, Right to Trial by Jury.
At very least, the case should be remanded for trial based
upon the announcement of the provisions of the Govern-
ment Contractor Defense by the Circuit Court.
On the other hand, if this Court decides the provisions
of the Government Contractor Defense are in accord with
the District Court’s jury instructions below, the District
Court and jury findings siould be affirmed and the Court
of Appeals’ decision reversed. This is so since the jury
had an opportunity to consider the defense in light of that
applicable law and found that the Defendant’s burden had
not been met.
23
C.
IF THE GOVERNMENT CONTRACTOR DE-
FENSE IS A JURY QUESTION, THE COURT
OF APPEALS IMPROPERLY DECIDED THE
CASE ON LAW IT JUST ANNOUNCED WITH.
OUT REMANDING FOF A TRIAL BY JURY
ON THE FACTS REGARDING THE JUST AN-
NOUNCED LAW
All the various circuits which have adopted the Gov-
ernment Contractor Defense have agreed that the defense
is a jury question and that the burden of proof is on the
Defendant. Koutsoubos v. Boeing Co., 755 F.2d 352 (3rd
Cir. 1985), In re Air Crash Disaster at Manheim, Ger-
many, 769 F.2d 115 (3rd Cir. 1985), McKay v. Rockwell
International Corp., 704 F.2d 444 (9th Cir. 1983); Tillett
v. J I Case Company, 756 F.2d 591 (7th Cir. 1985), Schoen-
born v. Boeing Company, 586 F.Supp. 711 (E.D. Pa. 1984),
Shaw v. Grumman, 778 F.2d 736 (11th Cir. 1985).
If this is so and if the Fourth Circuit announced the
law pertaining to the Government Contractor Defense as
being what this Supreme Court wishes to have as its state-
ment in the matter, then the Fourth Circuit should have
remanded the case for trial on the facts before the jury.
The Seventh Amendment, Right to Trial by Jury, ex-
pressed the Federal policy favoring jury decisions of dis-
puted fact questions. Atlantic and Gulf Stevedores, Inc.
v. Ellerman Lines, Ltd., (PA 1962) 82 S. Ct. 780, 369
U.S. 355. When there is a debatable issue of fact in the
trial of a suit at common law in a Court of the United
States, the right to have it determined by jury is guaran-
teed by the Seventh Amendment. Hunt v. Bradshaw,
24
(Court of Appeals N.C. 1957) 251 F.2d 103. See also
Helene Curtis Industries, Inc. v. Pruitt, (Court of Appeals
‘TX 1967) 385 F.2d 841, Cert. denied 88 S. Ct. 1806, 391
U.S. 913.
Appellant below did not argue that the trial Court
had improperly instructed the jury regarding the Govern-
ment Contractor Defense. Defendant Appellant below
merely argued that it had presented sufficient evidence to
support the defense according to the jury instructions on the
law. Of course, the jury, who heard the case, thought oth-
erwise.
The Fourth Circuit Court of Appeals took it upon
themselves to not only change the law, but then to determine
the factual issues without the benefit of a jury.
This amounts to a trial without due process and right
to trial by jury. Petitioner Appellee had no reason to be-
lieve that the Court of Appeals would not agree that the
trial Court’s instructions were appropriate since that issue
was not raised on appeal.
The Fourth Circuit has not followed the mandate pre-
viously stated that the jury finds the factual issues.
Petitioner respectfully contends that the Fourth Cir-
cuit Court of Appeals has so far departed from the ac-
cepted and usual course of judicial proceedings as to call
for an exercise of this Supreme Court’s power of super-
vision herein.
25
D.
DID THE COURT OF APPEALS ADOPT AN
IMPROPER AND NON-FUNCTIONAL SET OF
TESTS FOR THE GOVERNMENT CONTRAC.-
TOR DEFENSE AND THUS IMPROPERLY
REVERSE THE JURY VERDICT BELOW.
The Fourth Circuit Court of Appeals has adopted the
McKay criteria regarding the Government Contractor De-
fense and applied some of the Koutsoubos reasoning.
However, as enumerated in Shaw v. Grumman Aero-
space, (11th Cir. 1985) 778 F.2d 736 at 744-746, that Court
properly was concerned whether or not the military actual-
ly made a decision to use a product that it knew to be dan-
gerous to servicemen. Did the government really know
what it was buying?
In other words, whose responsibility is it to accept the
product? When, following the McKay test, the manufac-
turer does not warn the government of a particular defect
because it did not know about it or did not spend enough
time to find out about it, then the government obviously
does not know what it is buying. Or, should the govern-
ment be shown to have been aware of the defect and ac-
cepted it anyway regardless from what source the informa-
tion came. (Agent Orange test) Clearly, the latter is the
better test.
As shown in Shaw, specifications may be minimal or
detailed, quantitative or qualitative, general or specific;
they may range from meticulous descriptions of each bear-
ing and bushing required, to vague hopes for ‘‘simple’’ or
‘*fail-safe’’ products. The central question is, did the mili-
tary truly know what it was buying with regard to the par-
ticular defect?.
26
In that light, it is submitted that the WcKay test does
not insure such knowledge. For the McKay test, the manu-
facturer may hide behind ignorance or non-testing of a
particular product and merely get out by saying, ‘‘We
didn’t know about it’’. This would cost the government
money as well as creating hazards for the military person-
nel who are expensive to train and maintain let alone the
loss of equipment and lives.
Further, the McKay test, puts the burden of proof on
the Plaintiff to prove that the Defendant knew or should
have known of the particular defect. Instead of requiring
the Defendant to go forward with his evidence to meet the
burden of proof, all the Defendant has to do is deny knowl-
edge and the burden shifts to the Plaintiff. It is no bur-
den on the Defendant at all to prove an act of omission
rather than an act of commission which is the criteria un-
der the Agent Orange test.
The Koutsoubos reasoning is also flawed in that the
reasoning allows for a back and forth between the military
and the manufacturer resulting in the final design. How-
ever, such back and forth does not necessarily mean that
the particular defect was addressed. It is a question of
what was being considered in the back and forth, not the
quantity. For example, a hundred telephone calls from
the military to the manufacturer regarding the cockpit of
an airplane, does not establish conversation regarding the
wing of the airplane.
The permutations and combinations of the Government
Contractor Defense are both lengthy and intricate. Its
ramifications will be felt throughout the entire United
States Government military industrial complex and poten-
tially involves trillions of dollars.
27
Petitioner therefore requests that this Supreme Court
review the Federal Court of Appeals’ decision which de-
cided this important question of Federal law and settle the
conflict bet-veen the Circuits.
DOES A SOUND POLICY EXIST FOR THE
ALLOWANCE OF THE GOVERNMENT CON-
TRACTOR DEFENSE SHIELDING THE MILI.
TARY EQUIPMENT MANUFACTURER FROM
PRODUCT LIABILITY OR NEGLIGENT DE-
SIGN?
The military industrial complex constitutes a perman-
ent part of the American way of life. Its symbiotic, even
nepotistic, relationship provides a strong industrial base
involving billions of tax-payer dollars.
It is precisely these billions of dollars of equipment
which are at risk to the government when the government
(through the Courts) ironically insulates the manufacturer
from being held accountable for defects and negligence.
This amounts to vicarious sovereign immunity.
Yet, the members of the Armed Forces using the
products constitute a distinct and insular minority dwin-
dling in numbers. Can providing compensation to those
few members of the Armed Forces injured by negligent or
defectively designed military products really be viewed as
a threat to this well entrenched, and well funded giant?
Today, the solitary inventor, tinkering- in his shop, has
been overshadowed by task forces of scientists and labora-
tories and testing fields.
28
Without considering any empirical data, the 9th Cir-
cuit stated that the demand for military equipment is not
elastic (WcKay v. Rockwell International Corp., 704 F.2d
444, 451 (9th Cir. 1983) Cert. denied 464 U.S. 1043, 79 L.
Ed. 2d 175 (1984)). They take the unsupported posi- -
tion that there would be increased costs to manufac-
turers due to liability for defective products and that in-
elastic prices would result in increased costs to the manu-
facturers’ decreasing profits and, hence, fear of manufac-
turers’ willingness to supply government needs.
However, military products clearly enter into the
civilian market and foreign governments. Every manufac-
turer maintains policies of liability insurance to cover suits
brought by civilians and other agencies with regard to their
products.
Use of military aircraft by civilians occurs with great
frequency. In Schneider v. Lockheed Aircraft Corp., 658
F.2d 835, 838 (D.C. Cir. 1981) Cert. denied, 455 U.S. 994
(1982), a military C5A transport plane evacuated Viet-
namese orphans from South Viet Nam on behalf of a pri-
vate organization. In Ashland v. Link Ling-Tempco-
Vaught, Inc., 711 F.2d 1431 (9th Cir. 1983), a military C135
aircraft carried civilian scientists, technicians, civilian and
Air Force employees, as well as, Air Force personnel. In
Schoenborn v. Boeing Company, Case No. 82-4339 (E.D.
Penn. 1983), a military helicopter carried civilian para-
chutists during an air show. Thus, military manufacturers
have clearly foreseen use of their products by civilians who
are not insulated by the Government Contractor Defense.
These military aircraft manufacturers are already
liable for and insured against injuries to civilians caused
by the defective design of their products.
29
Liability imposed on the manufacturer promotes re-
calls, refittings and new warnings by manufacturers of the
defective products. The manufacturer would thus have the
incentive to remedy the defect in other identical and sim- -
ilar products by altering the product’s physical character-
isties or warnings. In Brown v. Caterpillar Tractor Com-
pany, 696 F.2d 246, 253 (3rd Cir. 1982), the Court implied
that, generally, government specifications cannot be inter-
preted to require manufacture of a defective product.
In addition, liability promotes safer designs by de-
creasing the net profit in unsafe products. The analysis
of safety incentives in McKay (supra, 451-2) is funda-
mentally flawed because it focuses solely on demand and
implicitly assumes a market with one purchaser and one
supplier. The United States government is not always the
sole purchaser.
Liability deters unsafe designs by educating the in-
dustry. Litigation may require manufacturers to make
public information which may improve the safety of an en-
tire industry. In Agent Orange, several manufacturers
were unaware of the health hazards associated with dioxin
contamination (565 F.Supp. 1272-3). One manufacturer
developed a test for dioxin contamination (id. 1269-70).
Another manufacturer eliminated dioxin from its product
(id. 1274). Thus, elimination of this health hazard was
and is technically and economically feasible. Yet, absent
this litigation, these military manufacturers did not share
this information, or, with one exception, eliminate this de- |
fect. Clearly, the added incentive of products liability is
needed. (Accord, Foster v. Day and Zimmerman, Inc.,
502 F.2d 867, 871 (8th Cir. 1974)).
30
Many other analyses regarding this nationally import-
ant issue will be presented should this Court agree to hear
this important issue.
VII.
PRAYER FOR RELIEF
Petitioner respectfully requests to be heard before this
honorable Court.
VIII.
Respectfully Submitted,
/s/ Lovts 8S. Franecke, Ese. APPENDIX TO PETITION FOR WRIT
Mack, Haz.tewoop, Franecke & TINNEY OF CERTIORARI
Al
JUDGMENT IN A CIVIL CASE
(Filed July 24, 1985)
UNITED STATES DISTRICT COURT
District—
Eastern District of Virginia—Richmond Division
Docket Number—
Civil Action No. 84-0486-R
Name of Judge or Magistrate—
Richard L. Williams, U.S. District Judge
Case Title—
DELBERT BOYLE, etce.,
Plaintiff,
| »
UNITED TECHNOLOGIES CORPORATION
Defendant.
[X] Jury Verdict. This action came before the
Court and a jury with the judicial officer named above
presiding. The issues have been tried and the jury has
rendered its verdict.
{[ ] Decision by Court. This action came to trial or
hearing before the Court with the judge (magistrate)
named above presiding. The issucs have been tried or
heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the
plaintiff, DELBERT BOYLE, personal representative of
the Heirs and Estate of David A. Boyle, deceased, recover
A2
of the defendant, UNITED TECHNOLOGIES CORPORA-
TION, the sum of SEVEN HUNDRED TWENTY-FIVE
THOUSAND AND NO/i00 DOLLARS ($725,000.00)
with legal interest thereon at the rate of 7.60% per annum,
until paid, and his costs of action. It is further ORDERED
and ADJUDGED that the plaintiff, DELBERT BOYLE,
personal representative of the Heirs and Estate of David
A. Boyle, deceased, shall distribute this amount as follows:
DELBERT BOYLE, father of David A. Boyle:
$250,000.00 ;
WILMA BOYLBD, mother of David A. Boyle:
¥ $250,000.00 ;
KAREN LYNN BOYLE,
sister of David A. Boyle: $ 75,000.00 ;
JANICE BOYLE FREITAG,
sister of David A. Boyle: $ 75,000.00 ;
and
TERRY LYNN BOYLE,
sister of David A. Boyle: $ 75,000.00.
A TRUE COPY TESTE:
W. FARLEY POWERS, JR. Clerk
By: /s/ John W. Hawkins,
Deputy Clerk
Clerk—
W. FARLEY POWERS, JR., Clerk
(By) Deputy Clerk
/s/ John W. Hawkins,
Deputy Clerk
Date: July 24, 1985
A3
UNITED STATES COURT OF APPEALS
- FOR THE FOURTH DISTRICT
No. 85-2264
Delbert Boyle, personal representative of the
Heirs and Estate of David A. Boyle, deceased,
Appellee,
versus
United Technologies Corporation,
Appellent,
and
Sikorsky Aircraft,
Defendant.
Appeal from the United States District Court for the
Eastern District of Virginia, at Richmond. Richard L.
Williams, District Judge. (C/A 84-486).
Argue?: March 6, 1986 Decided: May 27, 1986
Before RUSSELL, HALL and WILKINSON,
Circuit Judges.
Lewis T. Booker (Lonnie D. Nunley, III; Hunton
& Williams on brief) for Appellant; Louis S. Franecke
(Mack, Hazlewood, Franecke & Tinney; James E. Moore;
Staples, Greenberg, Minardi & Kessler on brief for
Appellee).
A4
PER CURIAM:
David Boyle drowned after the Marine helicopter he
was flying crashed in the Atlantic Ocean. Boyle’s father,
Delbert Boyle, on behalf of himself, Boyle’s mother and
three sisters sued the Sikorsky Division of United Tech-
nologies Corporation, hereinafter ‘‘Sikorsky’’), the man-
ufacturer of the helicopter. Boyle alleged negligence and
breach of warranty in the design of the co-pilot’s escape
hatch and the rework of the helicopter’s control system.
The jury found for plaintiffs. Sikorsky moved for a
judgment notwithstanding the verdict, arguing that the
military contractor defense shielded it from liability for
the alleged design defect, and that plaintiffs had failed to
establish Sikorsky’s responsibility for the malfunction of
the control system. The district judge denied Sikorsky’s
motion.
We reverse and remand with directions to enter judg-
ment for defendant.
I,
On April 27, 1983, a Marine helicopter manufactured
by Sikorsky (a CH-53) crashed in the ocean off the coast
of Virginia Beach. The four crew members survived the
impact. Three of them escaped through emergency exits,
but the co-pilot, David Boyle, did not escape, and drowned.
At trial, plaintiffs attempted to show that Sikorsky
had defectively repaired the pilot valve of the helicopter’s
servo. The servo acts at a sort of power steering to assist
the pilot in flying the plane. After the accident, a small
chip of wire was found in the pilot valve. Plaintiffs argued
that the chip caused the servo to stop functioning, the pilot
A5
lost control of the helicopter, and the helicopter crashed
into the water.
The metal chip could have been introduced at one of
three times: when Sikorsky overhauled the helicopter in
late 198l-early 1982; when the Navy reworked it in late
1982; or during maintenance of the hydraulic system by
the marines. The parties agree that it is least likely that
the servo was contaminated during maintenance. Plaintiffs
contended at trial that the chip was most likely introduced
by Sikorsky.
Plaintiffs also contended that Sikorsky had defective-
ly designed the co-pilot’s escape hatch. Specifically, plain-
tiffs alleged that when the collective, one of the control
sticks, was pulled full up, it interfered with the co-pilot’s
access to his escape hatch.
The jury, in a general verdict, found for plaintiffs
and awarded them $725,000. Because we believe the mili-
tary contractor defense precludes any recovery for the
design defect, and because there was insufficient evidence
to conclude that Sikorsky was the party that introduced
the chip, we reverse the decision below.
II.
A military contractor can escape liability for a design
defect if it can demonstrate that 1) the United States is
immune from liability; 2) the United States approved
reasonably precise specifications for the equipment; 3)
the equipment conformed to those specifications; and 4)
the supplier warned the United States about dangers in
the use of the equipment that were known to the supplier
A6
but not to the United States. Tozer v. LTV Corp., No. 84-
1907, slip op. (4th Cir. 1986).*
Sikorsky and the Navy worked together to prepare
detailed specifications for the CH-53 helicopter. One of
Sikorsky’s program engineering managers for the CH-53
described in some detail the back-and-forth discussions
between Sikorsky and the Navy. We have previously said
that this type of exchange of information will normally
suffice to establish government approval of the design in
question. See Tozer, slip op at 13. In addition, Sikorsky
built a mock-up of the cockpit with all the instruments and
controls, including the collective stick and the emergency
escape hatch. The Navy reviewed the mock-up and ap-
proved the design. As a result, Sikorsky has adequately
demonstrated that the Navy approved reasonably detailed
specifications for the escape hatch.
Sikorsky then built the helicopter, and in 1970 the
Navy accepted it as fully complying with specifications.
The Navy thus had thirteen years of experience with this
particular helicopter at the time of Boyle’s crash. Plain-
tiffs point to nothing in the record that indicates there
were any hazards of which Sikorsky was aware and the
Navy was not. Sikorsky’s duty to warn the Navy of any
hazards known to it but not to the Navy was thus not
brought into question.
Because Sikorsky has satisfied the requirements of
the military contractor defense, it can incur no liability for
*Tozer and its companion cases have all involved isolated
incidents in the course of training exercises. We obviously have
no occasion to address the governing considerations at a time
of national emergency.
i
AZT
negligence or breach of warranty for the allegedly de-
fective design of the escape hatch.
III.
We need not consider in this case the applicability of
the military contractor defense to questions of manufac-
ture and overhaul, because Sikorsky’s liability can in no
event be established. Kven if the metal chip were the cause
of Boyle’s accident, plaintiffs must still show that defend-
ant’s defective rework introduced the chip, for the law of
products liability in Virginia does not permit recovery
where responsibility is conjectural. Logan v. Montgomery
Ward & Co., Inc., 219 S.E.2d 685 (Va. 1975).
Plaintiffs have failed to do more than speculate that
Sikorsky introduced the metal chip into the pilot valve of
the servo. It is true that when Sikorsky reworked the heli-
copter in late 198l-early 1982, it disassembled the servo.
After the rework was complete, Sikorsky put a tamper
seal of yellow paint on the valve. The yellow paint was
undisturbed, suggesting that no one had removed the valve
since the Sikorsky rework. However, when the Navy re-
paired the servo in late 1982, it removed the power piston,
exposing the hydraulic system to contaminants, and creat-
ing the substantial possibility that when the piston was re-
turned to the servo, the chip got into the valve from the
unsealed underside.
The chip was made of carbon steel. The manager of
product safety at Sikorsky testified that Sikorsky used
only stainless steel, in order to prevent corrosion, an dthat
it had no carbon steel in its inventory. Plaintiffs argued
that the size of carbon wire that formed the chip was so
A8
common that it would not have been listed in Sikorsky’s
inventory. Plaintiffs also introduced a Navy audit which
said that wire of the type and size of the chip found in the
servo was not used in the rework shop at the Pensacola
Naval Air Rework facility. In response a Sikorsky repre-
sentative at Pensacola testified that the Navy did have
carbon steel in its inventory from at least July of 1982.
It remained plaintiffs’ burden to prove that Sikorsky
was responsible for the introduction of the chip into the
pilot valve of the servo. Virginia products liability law is
assiduous in conditioning liability upon responsibility.
‘‘Under either the warranty theory or the negligence
theory the plaintiff must show ... that the unreasonably
dangerous condition existed when the goods left the de-
fendant’s hands.’’ Logan v. Montgomery Ward, 219 S.E.2d
at 687 (Va. 1975). It is well established that if there is
more than one possible cause of an injury, the plaintiff
must show that the defendant caused the injury:
When there is substantial evidence introduced which
tends to prove that plaintiff’s injuries may have re-
sulted from one of two causes, for one of which the
defendant is responsible and for the other of which he
is not responsible, such defendant is entitled to have
the jury told that the plaintiff must fail if his evidence
does not prove that his damages were produced by the
negligence of defendant; and he must also fail if it
appears from the evidence just as probable that dam-
ages were caused by one as by the other action because
the plaintiff must make out his case by a preponder-
ance of the evidence.
Cape Charles Flying Service, Inc. v. Nottingham, 47 8.F.2d
540, 544 (Va. 1948). See also, Spurlin v. Richardson, 128
S.E.2d 273, 277 (Va. 1962); Sneed v. Sneed, 244 S.E.2d 754,
755 (Va. 1978).
A9
‘*The evidence in the instant case fails to eliminate the
possibility that the blame attaches to some party other
than’’ Sikorsky. See Logan v. Montgomery Ward, 219
S.E.2d at 688. Both Sikorsky and the Navy reworked the
servo to an extent that would have permitted the chip to
enter the pilot valve. Sikorsky and Boyle presented con-
flicting evidence on the presence of carbon steel in the
rework shops at Sikorsky and Pensacola. ‘‘The evidence
must prove more than a probability of negligence. A plain-
tiff must show why and how the incident happened. And
if the cause of the event is left to conjecture, guess, or
random judgment, the plaintiff cannot recover.’’ Town of
West Point v. Evans, 299 S.E.2d 349, 351 (Va. 1983).
Defective rework by Sikorsky is by no means ‘‘the only
reasonable inference that can be drawn to explain’’ the
presence of the chip. Logan v. Montgomery Ward, 219
S.E.2d at 688. In Logan, the Virginia supreme Court de-
clined to permit a jury to speculate whether defective
manufacture or defective installation caused a gas range
to explode. Here also, a defendant whose responsibility is
not affixed with reasonable certainty is entitled to judg-
ment as a matter of Virginia law.
REVERSED
A10
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 84-1907(L)
Joan S. Tozer, surviving widow of Eliot F. Tozer, de-
ceased and to her own use and benefit and to the use and
benefit as mother and next friend of:
Katherine S. Tozer, surviving minor child of Eliot F. To-
zer, deceased and; Lindsay M. Tozer, surviving minor child
of Eliot F. Tozer, deceased and; Joan 8. Tozer, personal
representative of the estate of Eliot F. Tozer, deceased,
Appellees,
versus
LTV Corporation, a Texas Corporation; Jones & Laughlin
Industries, Inc.; Vought Corporation, a Delaware Cor-
poration,
Appellants.
Bell Helicopter Textron, Lockheed Corp., MeDonnell-Doug-
las Corp., United Technologies Corp.,
Amici Curiae.
No. 84-1962
Joan S. Tozer, surviving widow of Eliot F. Tozer, deceased
and to her own use and benefit and to the use and benefit
as mother and next friend of:
Katherine S. Tozer, surviving minor child of Eliot F.
Tozer, deceased and; Lindsay M. Tozer, surviving minor
child of Eliot F. Tozer, deceased and; Joan 8. Tozer, per-
sonal representative of the estate of Eliot F. Tozer, de-
ceased,
Appellants,
versus
LTV Corporation, a Texas Corporation; Jones & Laugh-
lin Industries, Inc.; Vought Corporation, a Delaware Cor-
poration,
Appellees.
All
Bell Helicopter Textron, Lockheed Corp., McDonald
Douglas Corp., United Technologies Corp.,
Amici Curiae.
Appeal from the United States District Court for the Dis-
trict of Maryland, at Baltimore. Herbert F. Murray, Dis-
trict Judge. (C/A 81-2134).
Argued: December 5, 1985 Decided: May 27, 1986
Before RUSSELL, HALL and WILKINSON, Circuit
Judges.
Drew Pomerance (Kern and Wooley; Charles F. Iliff, Jr.;
Semmes, Bowen & Semmes on brief) for Appellants; Mich-
ael J. Pangia (Smiley, Olson, Gilman & Pangia; Paul D.
Bekman on brief) for Appellees; (Lewis T. Booker; L.
Neal Ellis, Jr.; Hunton & Williams on brief) for Amici
Curiae.
WILKINSON, Circuit Judge:
In 1980, Lieutenant Commander Eliot Tozer was killed
when the Navy plane he was piloting crashed. His widow,
Joan Tozer, and his two minor children brought an action
against LTV Corporation and its subsidiary Vought Cor-
poration under the Death on the High Seas Act (DOHSA)
46 U.S.C. § 761 et seq. and general maritime law, alleging
the defective design of a modification to the airplane. The
jury returned a verdict in favor of the plaintiffs. Because
the government contractor defense shields the contractor
from liability for design defects under either a strict lia-
bility or a negligence theory when the government has
approved reasonably detailed specifications, we reverse
and remand for entry of judgment in favor of the defend-
ants.
I.
Tozer’s erash occurred off the coast of California
while his plane was executing a low-altitude, high speed
A12
fly-by of its carrier, the U.S.S. Kitty Hawk. At trial, Joan
Tozer contended that the plane had crashed because a pan-
el known as the “Buick Hood” had come off in mid-flight,
causing him to lose control of his Navy RF-8G Reconnais-
sance plane. The Buick Hood is a hinged panel that per-
mits access to the equipment underneath so that it can be
repaired and maintained; the panel should not open during
flight.
When the RF-8G was first designed, it had a one-piece
panel that wrapped around the top of the aircraft. In
order to do maintenance or repair work in the compart-
ment below, the whole panel had to be removed. The Navy
asked Vought to modify the panel so that the systems be-
neath it could be more easily and quickly maintained.
Vought cut the panel into three pieces, fixing the center
piece to the aircraft, and hinging the two outer pieces along
the center line. The non-hinged sides of the hood are fas-
tened with “camloes,” quick fasteners which can be released
by a turn of a screwdriver. Tozer contends that it is well
known that camlocs often come loose, because of wear, vi-
bration, or corrosion, and that usually many camlocs are
installed for safety. Tozer said that Vought was negligent
because it did not fasten the panel with redundant camlocs.
Vought contended the design had been carefully ana-
lyzed, tested, and found adequate. More fundamentally,
Vought argued that it could not be found liable for the
design of the aircraft since the Navy had approved it, and
the company shared the United States’ immunity through
the government contractor defense. The district judge in-
structed the jury that the government contractor defense
preciuded recovery on the basis of strict liability, but did
——
A13
not instruct the jury on the defense with respect to negli-
gence. The jury returned a special verdict, finding that
defendants were negligent in the design of the Buick Hood
modification and that the U.S. Navy had reviewed and
approved reasonably detailed specifications for the Buick
Hood modification. The jury awarded $350,000 to Joan
Tozer, and $50,000 to each of her two daughters.
Vought contends that the district judge should have
instructed the jury that the government contractor de-
fense precludes recovery for negligence as well as strict
liability. We agree that the defense applies here to pre-
vent recovery under either theory and reverse and remand
for entry of judgment notwithstanding the verdict in favor
of Vought.!
Il.
Traditionally, the government contractor defense
shielded a contractor from liability when acting under the
direction and authority of the United States. Yearsley v.
W. A. Ross Constr. Co., 309 U.S. 18, 20 (1940). In its
original form, the defense covered only construction pro-
jects, McKay v. Rockwell Int'l Corp., 704 F.2d 444, (9th
Cir. 1983), cert. dented, 464 U.S. 1043, 104 S.Ct. 711 (1984).
Its application to military contractors, however, serves
more than the historic purpose of not imposing liability
on a contractor who has followed specifications required
or approved by the United States government. It ad-
—_
'We do not accept Tozer’s argument that defendants
waived the government contract defense by not setting it out
in their answer. As the district court noted, the delay “was pri-
marily due to the fact that the McKay case, which was the sole
authority cited in their motion, had only recently been decided.”
Al4
vances the separation of powers and safeguards the pro-
cess of military procurement. We consider each of these
values in turn.
The judicial branch is by design the least involved in
military matters. “The complex, subtle, and professional
decisions as to the composition, training, equipping, and
control of a military force are essentially professional mili-
tary judgments, subject always to civilian control of the
Legislative and Executive Branches.” Gilligan v. Morgan,
413 U.S. 1, 10 (1973) (emphasis in original). Judges pos-
sess no power “To declare War .. . To raise and support
Armies ... To provide and maintain a Navy.” U.S. Const.
art. 1, see. 8, el. 11-13. Nor have they been “given the task
of running the Army,” Orloff v. Willoughby, 345 U.S. 83,
93 (1953). In the face of a ‘‘ textually demonstrable’’ com-
mitment of an issue to “a coordinate political department,”
Baker v. Carr, 369 U.S. 186, 217 (1962), judicial caution is
advisable. Even apart from matters of constitutional text,
the reservation of judicial judgment on strictly military
matters is sound policy. The judicial branch contains
no Department of Defense or Armed Services Committee
or other ongoing fund of expertise on which its personnel
may draw. Nor is it seemly that a democracy’s most se-
rious decisions, those providing for common survival and
defense, be made by its least accountable branch of govern-
ment.
It is diffieut to imagine a more purely military matter
than that at issue in this case — the design of a sophisti-
cated reconnaissance craft that was flying, on the day of
Tozer’s death, some 50 to 75 feet above the surface of the
water at a speed of 500-550 nautical miles per hour. It
eae
Ald
should be axiomatic that “considerations of cost, time of
production, risks to participants, risks to third parties, and
any other factors that might weigh on the decisions of
whether, when, and how to use a particular weapon, are
uniquely questions for the military and are exempt from
review by civilian courts.” In re Agent Orange Product
Liability Litigation, 534 F.Supp. 1046, 1054 n.1 (E.D.N.Y.
1982).
Here, however, the jury was invited to “second-guess
military deeisions,” see United States v. Shearer, 105 S.Ct.
3039, 3043 (1985), and to judge the design of a Navy-ap-
proved aircraft. Special interrogatory number one in-
quired of the jury whether defendants were “negligent in
the design of the Buick Hood modification,” and interroga-
tory five questioned whether the hood was “defective in
that its design rendered it unreasonably dangerous.” <A
group of laymen was thus ineluetably thrust into the intri-
eacies of military technology involving, in the words of the
district court, “the structural reaction of the modified
Buick Hood panel to aerodynamic forces and loads expe-
rienced by the aireraft.”
These are judgments, however, which lay men and
women are neither suited nor empowered to make. There
is a danger in transporting the rubric of tort law and pro-
ducts liability to a military setting and military technology.
While jurors may possess familiarity and experience with
consumer products, it would be the rare juror — or judge
—who has been in the cockpit of a Navy RF-8G off the
deck of a carrier on a low leve!, high speed fly-by maneu-
ver. Moreover, “the United States is required by the exi-
gencies of our defense effort to push technology towards
Al6
its limits and thereby to ineur risks beyond those that
would be acceptable for ordinary consumer goods.” Mc-—
Kay, 704 F.2d at 449-50. What would pose an unreason-
able risk to the safety of civilians might be acceptable —
or indeed necessary — in light of the military mission of
the aircraft. Cf. Note, McKay v. Rockwell International
Corp.: No Compulsion for Government Contractor De-
fense, 28 St. Louis U.L.J. 1061, 1071 (1984) (“Plaintiff's
comparison of the jeep to a civilian passenger vehicle was
inappropriate since the two vehicles were not made for sim-
ilar uses.”) Difficult choices, trade-offs, and compromises
inhere in military planning that simply find no analogue in
civilian life. “This is not to say that [military] designers
are unconcerned with safety. Rather, they attempt to de-
sign as safe a plane as possible within the scope of its mis-
sion.” Kropp v. Douglas Aircraft Co., 329 F.Supp. 447,
456 (E.D.N.Y. 1971).
The defense protects against judicial interference in
military matters in other ways as well. We cannot accept
the view that “the danger of interfering with [military]
discipline in military contractor cases ‘is too remote to be
accorded significant weight when the decision only indi-
rectly involves military orders or practices concerning ac-
tive duty soldiers.’” Shaw v. Grumman Aerospace Corp.,
778 F.2d 736, 743 (11th Cir. 1985), quoting Cole v. United
States, 755 F.2d 873, 879 (11th Cir. 1985). The fact that
the challenge here does not involve Tozer’s immediate com-
manding officer or relate to matters of personal disci-
pline is irrelevant. Military contractors ordinarily work
so closely with the military, see section LI, infra, that it is
nearly impossible to contend that the contractor defectively
designed a piece of equipment without actively criticizing
99
—
Al7
a military decision. Civilian scrutiny of such decisions is
generally exerted through executive and legislative over-
sight on behalf of the public at large, not, as here, through
the judiciary at the behest of an individual serviceman.
In cases such as these, “members of the armed services
would be allowed to question military decisions and obtain
relief from actions of military officials.” Bynum v. FMC
Corporation, 770 F.2d 556, 565 (5th Cir. 1985). Trial
“would often require members of the Armed Services to
testify in court as to each other’s decisions and actions.”
Stencel Aero Engineering Corp. v. United States, 431 U.S.
666, 673 (1977). While debate over the safety and neces-
sity of advanced weaponry is essential, the First Amend-
ment does not require that the forum be the courtroom or
the vehicle be a lawsuit.
The disallowance of recovery in these actions will not
leave servicemen or their survivors without relief. The
Veterans’ Benefits Act “provides a swift, efficient remedy
for the injured serviceman.” Stencel, 431 U.S. at 673.
Thus one classic rationale for tort liability — that of com-
pensation of victims — is less compelling in this context.
While the Veterans’ Act does not provide all elements of
damages in the usual wrongful death action, recovery is
more reliable, and not “reluced by the high transaction
costs present in ordinary produets liability litigation.”
McKay, 704 F.2d at 452, n.11.
Forcing military mishaps into the mold of produets
liability litigation carries one final drawback. Pilots of
the Navy and Air Force, whose service and sacrifice make
possible the security of this country, are not the military
doubles of civilian motorists. Their lives are led in the
Al18
company of peril. We can express it no better than Judge
Sneed did for the court in McKay:
[Pilots] recognize when they join the armed forces
that they may be exposed to grave risks of danger,
such as having to bail out of a disabled aircraft. This
is part of the job. The Nation sometimes demands
their very lives. This is an immutable feature of their
calling. To regard them as ordinary consumers would
demean and dishonor the high station in public esteem
to which, because of their exposure to danger, they are
justly entitled.
704 F.2d at 453.
Ill
The second set of reasons for the government contrac-
tor defense also has its roots in military soil. Permitting
recovery for design defects under any theory of liability
risks altering the nature of the procurement process. Spe-
cifically, we anticipate that in the absence of the defense,
there would be a decrease in contractor participation in
design, an increase in the cost of military weaponry and
equipment, and diminished efforts in contractor research
and development.
Contractor participation in design is essential to the
development of a military force that is competitively equip-
ped. Equipment designs often are the result of “contin-
uous back-and-forth” between the military and the contrac-
tor. Koutsoubos v. Boeing Vertol, 755 F.2d 352, 355 (3d
Cir.), cert. denied, — U.S. —, 106 S.Ct. 72 (1985). The
contractor and the military pool their expertise, matching
the latest advances in military technology with the specific
dictates of the mission. We recognize this back-and-forth
- -as a reality of the procurement process, as well as a valu-
A19
able part of that process; indeed if military technology is
to continue to incorporate the advances of science, it needs
the uninhibited assistance of private contractors.
Here the testimony at trial indicated that Vought
worked closely with the Navy in developing the specifica-
tions for the aircraft. Vought’s project manager for the
RF-8G program testified that the engineering change
proposal that included the Buick Hood modification was “a
continual source of discussion” between Vought and the
Navy, and that Navy engineers visited Vought every few
months for progress reviews. The contractor’s participa-
tion in design — or even its origination of specifications —
does not constitute a waiver of the government contractor
defense. If the defense were to be waived by such partici-
pation, the contractor would be trapped between its fear
of liability and its desire to provide needed ideas and in-
formation. The “incentives for suppliers of military equip-
ment to work closely with and to consult the military au-
thorities in the development and testing of equipment”
would be lost. McKay, 704 F.2d at 450. Without the de-
fense, “military contractors would be discouraged from
bidding on essential military projects.’’ Bynum v. FMC,
770 F.2d at 566. Thus the defense will be permitted to a
participating contractor so long as government approval
of design “consists of more than a mere rubber stamp.”
Schoenborn v. Boeing, 769 F.2d 115, 122 (3d Cir. 1985). If
there is genuine governmental participation in the design,
“the defense is available.” Jd.
Finally, disallowing the government contractor de-
fense might raise the already high costs of military equip-
ment. “Military suppliers, despite the government’s im-
A20
munity, would pass the cost of accidents off the the United
States through cost overrun provisions in equipment con-
tracts, through reflecting the price of liability insurance in
the contracts, or through higher prices in later equipment
sales.” McKay, 704 F.2d at 449. Such pass-through costs
would, of course, defeat the purpose of the immunity for
military accidents conferred upon the government itself.
Stencel, 431 U.S. at 673. While distribution of the costs of
mishaps to the consuming publie may be a familiar feature
of products liability law, we are loathe to grant courts and
juries a similar power to swell the public costs of meeting
the nation’s requirements in national security. Though one
court has speculated that tort liability would provide legal
incentives for “better-designed planes and fewer costly
accidents,” Shaw, 778 F.2d at 742, that judgment is not a
matter for the judicial economists but for the Executive
in its dealings with contractors and for the Congress in
defining the scope of immunities under the Federal Tort
Claims Act.
IV.
There remains the application of the elements of the
military contractor defense to the facts of this ease. In
McKay, the court held that
a supplier of military equipment is not subject to
[strict liability in tort] for a design defect where: (1)
the United States is immune from liability under Feres
A21
and Stencel*, (2) the supplier proves that the United
States established, or approved, reasonably precise
specifications for the allegedly defective military equip-
ment, (3) the equipment conformed to those specifica-
tions, and (4) the supplier warned the United States
about patent errors on the government’s specifications
or about dangers involved in the use of the equipment
that were known to the supplier but not to the United
States.
704 F.2d at 451.
There is no question that Vought qualifies for the gov-
ernment contractor defense under this test. It is undis-
puted that the United States was itself immune from
liability and that the Buick Hood modification conformed
to specifications. The jury specifically found that the
Navy reviewed and approved ‘‘reasonably detailed specifi-
cations for the Buick Hood modification,’’ and, further,
that the contractor did not fail ‘‘to notify the Navy of dan-
gers created by the specifications which were known to
defendants but ae | the Navy.”’
Nevertheless, the district court upheld the verdict for
Tozer on the basis of the jurv’s findings that defects in the
2In Feres v. United States, 340 U.S. 135 (1950), the govern-
ment was held not liable under the Federal Tort Claims Act for
injuries to servicemen in the course of military service. In
Stencel Aero Engineering Corp. v. United States, 431 U.S. 666
(1977), the United States was not required to indemnify a third
party for damages paid by it to a member of the Armed Forces
injured in the course of military service.
A22
design of the Buick Hood proximately caused plaintiff ’s
death. The district court considered the defense ‘‘appli-
cable to a cause of action based on strict liability,’’ but un-
available to a ‘‘government contractor who is alleged to
have established negligent design specifications. ’’
In so holding, the trial court was in error. The defense
applies ‘‘equally well to design defect cases based on negli-
gence and/or breach of warranty claims.’’ Tillett v. J. I.
Case Co., 756 F.2d 591, 597 n.8 (7th Cir. 1985); see also
Schoenborn. ‘The policies discussed earlier apply force-
fully in either a negligence or a strict liability context.
Courts are ill equipped to make military judgments, what-
ever a plaintiff’s theory of recovery. In this case, the
jury was instructed that the government contractor de-
fense barred recovery on strict liability, in part to prevent
second-guessing of military decisions. But the jury still
was compelled to evaluate the negligence claim, and thereby
second-guess a design that the United States Navy had
sanctioned. The danger that contractors will participate
less and charge more stems from the threat of liability for
government-approved technology, not from the particular
theory of recovery.
In holding that the government contractor defense bars
recovery on a theory of negligence as well as strict liabil-
ity, we join the growing ranks of circuit courts that recog-
nize the utility of the defense and its inescapable function
in the deflection of unwarranted judicial oversight over
matters of procurement and defense? Koutsoubos v. Boe-
3 Though the cause of action here was brought under federal
law, the defense would apply equally to suits under the diversity
(Continued on following page)
A23
ing Vertol, 755 F.2d 352 (3d Cir. 1985); Bynum v. FMC,
770 F.2d 556 (5th Cir. 1985); Tillett v. J. 1. Case, 756 F.2d
O91 (7th Cir. 1985); MeKay v. Rockwell Int’l Corp., 704
F.2d 444 (9th Cir. 1983). But see Shaw v. Grumman Aero-
space, 778 F.2d 736 (11th Cir. 1985). This case involves no
more than a standard application of such principles. The
judgment of the district court is accordingly reversed and
remanded for entry of judgment in favor of defendants.
REVERSED AND REMANDED.
(Continued from previous page)
jurisdiction. “With regard to the government contractor de-
fense, most of the courts that have considered the matter have
found that, at least when military design specifications provided
by the government are at issue, product liability actions are like-
ly to involve matters that are subject to exclusive federal con-
trol and necessitate the limited imposition of federal common
law.” Bynum, 770 F.2d at 567, et seq. The fact that a claim arises
under state law does not, of course, preclude a federal defense
in an area of paramount federal interest. /Id., Note, Government
Contract Defense: Sharing the Protective Cloak of Sovereign
Immunity After McKay v. Rockwell International Corp., 37 Baylor
L. Rev. 181, 214 (1985).
A24
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 85-2264
Delbert Boyle, ete.,
Appellee,
versus
United Technologies Corporation,
Appellant,
and
Sikorsky Aircraft,
Defendant.
Appeal from the United States District Court for the Kast-
ern District of Virginia, at Richmond. Richard L. Wil-
liams, District Judge.
(Filed June 25, 1986)
The appellee’s petition for rehearing and suggestion
for rehearing in bane were submitted to this Court. As no
member of the Court requested a poll on the suggestion for
rehearing in banc, and
As the panel considered the petition for rehearing and
is of the opinion that it should be denied,
IT IS ORDERED that the petition for rehearing and
suggestion for rehearing in banc are denied.
Entered at the direction of Judge Wilkinson, with tlie
concurrence of Judge Russell and Judge Hall.
For the Court,
JOHN M. GREACEN
CLERK
nls wee 2
A25
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
Civil Action No. 84-0486-R
DELBERT BOYLE,
Plaintiff,
Vv.
UNITED TECHNOLOGIES CORP.,
Defendant.
ORDER
(Filed July 7, 1986)
Obedient to the Fourth Circuit’s mandate and opinion
of May 27, 1986, the Court hereby VACATES the judg-
ment heretofore entered in favor of the plaintiff. Judg-
ment is ENTERED in favor of the defendant, and this ae-
tion is DISMISSED with prejudice, with costs to the de-
fendant.
Let the Clerk send a copy of this order to all counsel of
record,
/s/ Richard L. Williams
UNITED STATES DISTRICT JUDGE
DATE July 7, 1986
~ OPPOSITION
BRIEF
Supreme Court, U.S, |
FILED
' OCT G 1986
‘S | JOSEPH F. SPANIOL, JR,
IN THE CLERK
Supreme Court of the United janx: ~
October Term, 1986
DELBERT BOYLE, Personal Represenative Of The
Heirs and Estate of David A. Boyle, Deceased,
Petitioner,
v.
UNITED TECHS CORPORATION,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RESPONDENT’S BRIEF IN OPPOSITION
Lewis T. BOOKER
Lonnie D. NuNLeY, Ill
Hunton & Williams
707 East Main Street
P. O. Box 1535
Richmond, Virginia 23212
(804) 788-8200
Counsel for Respondent
October 6, 1986
u!
TABLE OF CONTENTS
Opinions Below
Statement of the Case
A. The Proceedings Below
a ie cin al dneeapbcone
Reasons for Denying the Writ
1. This Court should not grant certiorari to review
sufficiency of evidence and matters of state
law in product liability Cases ...................eeeeeeeee
2. This Court has previously denied certiorari
to review the military contractor defense applied
in this case by the Fourth Circuit
Conclusion
RMIT oc caseseccccisccseseccccencesccscsssccccsasccceseescoccssecces Al
TABLE OF CASES
Page
Boyle v. United Technologies Corp., 792 F.2d
413 (4th Cir. 1986)
Bynum v. FMC, 770 F.2d 556 (Sth Cir. 1985)
General Pictures Co. v. Electric Co., 304
U.S. 175, 178 (1938)
Koutsoubos v. Boeing Vertol, 755 F.2d 352 (3rd Cir.),
cert. denied, Be ees COO Oe CA. 72,
Se I icrenascunuadeesisscseadntenceosssseseses
Logan v. Montgomery Ward, 216 Va. 425,
i ie aa ceneanneaneqanensoonsees
McKay v. Rockwell International Corp., 704 F.2d
444 (9th Cir.), cert. denied, 464 U.S. 1043 (1984)
Shaw v. Grumman Aerospace Corporation,
778 F.2d 736 (1985)
Southern Power Co. v. N.C. Public Service Co.,
263 U.S. 508 (1924)
Tillett. v. J. 1. Case, 756 F.2d 591 (7th Cir. 1985)......... 6
United States v. Johnston, 268 U.S. 220 (1925)........+++ 5
OTHER AUTHORITIES
R. Stein. E. Gressman, S. Shapiro, Supreme Court
Practice 217 (6th ed. 1986)
u
IN THE
Supreme Court of the United States
October Term, 1986
. No. 86-
DELBERT BOYLE, Personal Representative Of The
Heirs And Estate Of David A. Boyle, Deceased,
Petitioner,
v.
UNITED TECHNOLOGIES CORPORATION,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RESPONDENT’S BRIEF IN OPPOSITION
Respondent United Technologies Corporation respect-
fully requests that this Court deny the petition for writ of
certiorari seeking review of the opinion of the United States
Court of Appeals for the Fourth Circuit.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Fourth Circuit is reported at 792 F.2d 413 (1986). The order of
the United States Court of Appeals for the Fourth Circuit
denying the petition for rehearing and suggestion for rehearing
in banc was not reported. It is reprinted ‘n the appendix at
page Al.
STATEMENT OF THE CA>!
A. THE PROCEEDINGS BELOW
This action was tried before a jury in the United States
District Court for the Eastern District of Virginia at Rich-
nw
mond. At conclusion of the Petitioner's evidence, and again at
conclusion of the trial, Respondent moved for a directed
verdict in its favor. Both motions were denied.
The case was then submitted to the jury. The jury
returned a verdict of $725,000.00 against Respondent. The
trial court entered judgment on the verdict. On August 2,
1985, Respondent filed motions for judgment notwithstanding
the verdict or, in the alternative, for a new trial on all issues.
The motions were denied without formal opinion by the
district court, and final judgment was entered September 10,
1985, by the district court.
Respondent appealed to the United States Court of
Appeals for the Fourth Circuit. The Fourth Circuit reversed
the decision of the district court. Petitioner filed a petition for
rehearing and suggestions for rehearing in banc with the
United States Court of Appeals for the Fourth Circuit. The
Fourth Circuit denied the petition and remanded the case with
directions to the district court that judgment be entered for
Respondent. The judgment was duly entered.
B. STATEMENT OF THE FACTS
Petitioner's evidence at trial tended to show that a
CH-53D helicopter built by Respondent and delivered by
Respondent to the United States Navy in 1970 made a right
turn at low altitude off Virginia Beach, Virginia on April 27,
1983. While executing this low altitude turn, the helicopter
crashed into the ocean. Three of the four crew members
aboard evacuated through the water without harm. Petition-
er’s decedent, the helicopter’s copilot, did not successfully
evacuate and was found by Navy divers during recovery of
the downed helicopter.
Petitioner's decedent was seated next to an emergency
escape hatch. He apparently made no attempt to open it.
While Petitioner coniends that the escape hatch was negli-
gently designed in that it had to be pushed out against the
water, in fact the pilot was able to push out his escape hatch
and depart the helicopter safely.
Petitioner alleged that the helicopter crashed into the
water and decedent subsequently drowned because Respon-
dent had been negligent had breached warranties in
overhaul work performed on the helicopter and in the design
of the helicopter. Specifically, Petitioner alleged that Respon-
dent was liable for allowing kontaminants to enter the heli-
copter’s hydraulic flight contral system during overhaul of
that system by Respondent a defectively designed
copilot’s escape hatch. The Petitioner alleged that a small
metallic chip caused a malfunction in the helicopter’s servo
flight-assist mechanism and that that, in turn, caused the
helicopter to crash.
The evidence established at least three possible sources
for introduction of the metallic chip. The United States
Government returned the servo to Respondent for routine
overhaul in late 1981 or early 1982. The chip could have been
introduced at that time, although the undisputed evidence at
trial was that Respondent had no metal corresponding to the
metallic chip at its overhaul facility. In late 1982 the United
States Government itself reworked the servo at the Naval Air
Rework Facility, Pensacola, Florida. The chip could have
been introduced at that time. The hydraulic system was
regularly maintained aboard ship. This maintenance included
injection of new hydraulic fuel, repairs of leaks in the system,
and repacking of fittings in the system. The chip could have
been introduced during any of these procedures.
The CH-S53 class helicopters were built to specifications
of the United States Navy, not Respondent. The design was
let out by the United States for competitive bidding. Respon-
dent was the successful bidder. Respondent and the United
States Navy then worked together in preparation of detailed
specifications. After give and take in the development of the
detailed specifications the United States Government ap-
proved and promulgated the detailed specifications under the
auspices of the United States Navy.
During the course of securing United States approval of
the plans and specifications, Respondent built a cockpit
mock-up showing the location and configuration of all instru-
ments, controls and facilities in the cockpit, including the
location of the copilot’s emergency escape hatch. The United
States Government approved the design and the location.
After receiving government approval, Respondent began to
manufacture CH-53 helicopters. The helicopter in question
was delivered to the United States Navy, and accepted and
approved by it, in 1970.
REASONS FOR DENYING THE WRIT
1. This Court should not grant certiorari to review sufficiency
of evidence and matters of state law in product liability cases.
Petitioner invoked diversity jurisdiction in the district
court as the basis for subject matter jurisdiction. The parties
agreed that Virginia law would be the substantive law of the
case. (Petition for Writ of Certiorari, p. 4).
This case was tried in the United States District Court for
the Eastern District of Virginia and was argued in the United
States Court of Appeals for the Fourth Circuit primarily as a
state-based common law product liability action. Most of the
Petitioner's expert evidence at trial was designed to show that
the servo had jammed, thus causing the accident, because
Respondent had allegedly defectively overhauled the servo.
Only when the case reached this Court did Petitioner begin to
lay such heavy emphasis upon the government contractor
defense.
Whether the chip could have caused the malfunction, and
the origin of the chip, were disputed issues at trial. The
evidence of trial suggested several possible modes of intro-
duction of the chip into the hydraulic system.
On appeal, applying Virginia product liability law, the
Fourth Circuit held that Petitioner had failed to carry the
burden of proof on the issue of the origin of the chip. Boyle v.
United Technologies Corp., 792 F.2d 413, 415 (4th Cir. 1986).
The Fourth Circuit held that Petitioner's evidence failed to
‘**eliminate the possibility that the blame attaches to some
party other than’ Sikorsky."’ Boyle, 792 F.2d 413, 416;
quoting Logan v. Montgomery Ward, 216 Va. 425, 429, 219
S.E.2d 685, 688 (1975). Accordingly, the Fourth Circuit ruled
that ‘ta defendant whose responsibility is not affixed with
reasonable certainty is entitled to judgment as a matter of
Virginia law.’’ Boyle, 792 F.2d 413, 416.
The Petitioner’s writ should be denied because granting it
would involve this Court in a review of the evidence and the
inferences drawn in what is essentially a common law product
liability action. See General Pictures Co. v. Electric Co., 304
U.S. 175, 178 (1938); citing Southern Power Co. v. N. C.
Public Service Co., 263 U.S. 508 (1924); United States v.
Johnston, 268 U.S. 220, 227 (1925) (‘‘We do not grant certio-
rari to review evidence and discuss specific facts.’’).
Review by this Court of the Fourth Circuit Court of
Appeals’ application of Virginia law would not involve a
‘‘legal controversy of importance’’ or the resolution of a
‘‘direct conflict as to the factual issues.’’ Hence certiorari is
not warranted. See R. Stein, E. Gressman, S. Shapiro,
Supreme Court Practice, 217 (6th ed. 1986). The Fourth
Circuit held, as a matter of Virginia law, that Petitioner's
evidence failed to reach the level necessary to create a jury
question. Boyle, 792 F.2d 413, 416. This Court should decline
certiorari to review a court of appeals’ determination as to the
sufficiency of the evidence to present a jury question, just as
it declines certiorari to review the sufficiency of evidence to
support a jury verdict. See R. Stein, E. Gressman, S. Shapiro,
Supreme Court Practice, 220.
2. This Court has previously denied certiorari to review the
military contractor defense applied in this case by the fourth
circuit.
Petitioner alleged that Respondent was negligent in the
design of the copilot’s escape hatch. The Fourth Circuit,
applying the criteria for the military contractor defense estab-
lished in McKay v. Rockwell International Corp., 704 F.2d
444, 448 (9th Cir. 1983), cert. denied, 464 U.S. 1043 (1984),
held that Respondent satisfied the requirements of the defense
and thus could incur no liability for the alleged defective
design of the escape hatch. Boyle, 792 F.2d 413, 415.
Petitioner asks this Court to grant certiorari to review the
propriety of the government contractor defense as that de-
fense was applied by the Fourth Circuit. The government
contractor defense applied by the Fourth Circuit is stated in
the same terms by the Third, Fifth, Seventh and Ninth
Circuits. See, respectively, Koutsoubos v. Boeing Vertol, 755
F.2d 352 (3rd Cir. 1985); Bynum v. FMC, 770 F.2d 556 (Sth
Cir. 1985); Tillett v. J. 1. Case, 756 F.2d 591 (7th Cir. 1985);
and McKay v. Rockwell International Corp, 704 F.2d 444
(9th Cir. 1983). This Court has previously refused to grant
certiorari to review the government contractor defense.
Koutsoubos v. Boeing Vertol, 755 F.2d 352 (3rd Cir.), cert.
denied, U.S. . 106 S. Ct. 72, 88 L.Ed.2d 89
(1985); McKay v. Rockwell International Corp., 704 F.2d 444
(9th Cir.), cert. denied, 464 U.S. 1043 (1984).
The petitioner seeks to justify a writ of certiorari in this
case by contending that there is a conflict between the
government contractor defense as announced in the Third,
Fourth, Seventh and Ninth Circuits, on the one hand, and the
defense as announced by the Eleventh Circuit in Shaw v.
Grumman Aerospace Corporation, 778 F.2d 736 (1985). A
petition for writ of certiorari is pending in this Court to review
the decision in the Shaw case. Respondent submits that the
government contractor defense applied by the Fourth Circuit,
adopted from McKay and Koutsoubos, is the proper formu-
lation of the defense. This Court can address the Eleventh
Circuit's formulation, if it so chooses, by granting a writ in
Shaw.
Even by the more rigorous standards announced by the
Eleventh Circuit in Shaw v. Grumman the government
contractor defense is available to Respondent here. Respon-
dent bid on a set of specifications established by the Navy and
worked closely with the Navy in preparing a cabin mock-up
and working drawings and specifications. The Navy was as
aware of any alleged deficiencies in the escape hatch as
Respondent was. Indeed, the uncontradicted evidence at trial
showed the escape hatch worked perfectly when the pilot
used it and safely escaped from the helicopter. The only
reason this case is in the courts today is because the decedent
made. no attempt to use the escape hatch which would have
saved his life. Certiorari does not lie to review that lapse in his
judgment.
CONCLUSION
For these reasons, the petition for writ of certiorari
should be denied. .
Respectfully submitted,
Lewis T. BOOKER
LONNIE D. NUNLEY, III
Hunton & Williams
707 East Main Street
P. O. Box 1535 i
Richmond, Virginia 23212
(804) 788-8200
COUNSEL FOR RESPONDENT
APPENDIX
A-2 7
UNITED STATES COURT OF APPEALS
FOR-THE FOURTH CIRCUIT
No. 85-2264
Delbert Boyle, etc., Appellee,
versus
United Technologies Corporation, Appellant,
and . .
Sikorsky Aircraft, Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA, AT
RICHMOND. RICHARD L. WILLIAMS, DISTRICT JUDGE.
The appellee's petition for rehearing and suggestion for
rehearing in banc were submitted to this Court. As no member
of the Court requested a poll on the suggestion for rehearing in
banc, and
As the panel considered the petition for rehearing and is
of the opinion that it should be denied,
IT IS ORDERED that the petition for rehearing and
suggestion for rehearing in banc are denied.
Entered at the direction of Judge Wilkinson, with the
concurrence of Judge Russell and Judge Hall.
For the Court,
JOHN M. GREACEN
Clerk
JOINT
APPENDIX
=,
Supreme Court, US.
FILE Dp
No. 86-492 FEB 25 1987
TOL, JR.
In The CLERK
Supreme Court of the United States
October Term, 1986
fa
Vv
DELBERT BOYLE, personal representative of the
Heirs and Estate of David A. Boyle, deceased,
Petitioner,
We
UNITED TECHNOLOGIES CORPORATION,
Respondent.
y /™
Vv
On Writ of Certiorari to the United States
Court of Appeals for the Fourth Circuit
ry
JOINT APPENDIX
Volume I—Pages 1 to 340
Vv
Louis S. Franecke, Esq. Lewis T. Booker, Esa.
Joun O. Mack, Esa. Lownie D. Nuntey, IIT, Esa.
Mack, Haziewoon, Hunton & WitiiamMs
Franecke & TINNEY 707 East Main Street
221 Pine Street, Suite 600 P.O. Box 1535
San Francisco, CA 94104 Richmond, VA 23212
415/391-1560 804/788-8200
Micuaeu Moore, Esq. Counsel for Respondent
CarRTWRIGHT, SUCHERMAN
& Stosoprn, Ine.
101 California Street,
26th Floor
San Francisco, CA 94111
415/433-0440
Counsel for Petitioner
Petition for Writ of Certiorari filed September 23, 1986
Certiorari granted January 12, 1987
COCKLE LAW BRIEF PRINTING CO.. (S800) 225-6964
or call collect (402) 342-2831
TABLE OF CONTENTS
Relevant Docket Entries
Index of Issues Raised by Respondent on Appeal from
the United States District Court to the Fourth Cir-
a eccipliiaie mn
Portions of the Deposition of Jesse Clemons Offered
in Evidence at Trial
Portions of the Deposition of Terence Fox Offered in
Evidence at Trial 29
Excerpts from the Transcript of the Trial, dated July
22-24, 1965... LS A
Direct Examination of Burt Tussing 00000000000.. 80
Direct Examination of Charles Tubbs 2000000. . 165
Direct Examination of James David Keown 211
Direct Examination of James Hayes 200.0. 235
Direct Examination of Paul Packman 0000000000... 246
Direct Examination of Thomas Dixon .0000000000000.. 283
Direct Examination of Roderick MacLennan .... 341
Direct Examination of Knute Hansen .000000WWW.. .. 369
Direct Examination of Thomas R. Conroy 00... .. 383
Direct Examination of Harry F. Asbury 0000000000... 394
Direct Examination of John L. Carson... 408
Excepts from Hearing on Post-trial Motions, dated
September 10, 1985
il
TABLE OF CONTENTS—Continued
Page
PETITIONER’s DESIGNATIONS
Plaintiff’s Exhibit 1, Cyclie AFCS Servo Hydraulic
ID steclcnncreneeiniiecnststeensiisasia iceland .. 470
Plaintiff’s Exhibit 11, 6/83 Quality Control Audit
IID ncsnsisitrcsisicsicanisinitrtstinpiaasciiiniamiiia in . 471
Plaintiff’s Exhibit 2, Photographs of Exterior of Air-
eat fram AG Mapes ................icee 473
Plaintiff’s Exhibit 3, Joint pais Re: Accident
BURT ooeniccesincictiicisncreiee
Plaintiff’s Exhibit 7, Photographs of Interior of
Aircraft 475
Plaintiff’s Exhibit 9, Sikorsky Internal Correspond-
omen, Cubed Suny 1, TOD cnncsiccteeeeeeeee
Plaintiff’s Exhibit 20, SER-65010, AF'CS Detail
Specifications for CH-53A 477
Plaintiff’s Exhibit 72, Excerpts from NATOPS Flight
| Neca 479
Plaintiff’s Exhibit 73, NAVAIR 05-45SK-66 00000. 484
Plaintiff’s Exhibit 77, NAVAIR 01-230HMA-2-2.3,
Flight Control Systems, CH53D oo 486
Plaintiff’s Exhibit 80, NAVAIR 01-230HMA-LP,
NATOPS Functional C heck Flight Cheek List ... 489
Plaintiff’s Exhibit 88, Military Specification MIL-C-
182444 (WET), December 1, 1962, Control and
A Man S
Defendant’s Exhibit 11, Department of the Navy, Gen-
eral Specification for Design and Construction of the
Aircraft Weapon Systems, SD-241P 20000000. 492
Defendant’s Exhibit 15, Department of the Navy, De-
tail Specification for Model CH-53D Helicopter, SD-
eT . 493
ill
TABLE OF CON TENTS——Continued
Page
Defendant’s Exhibit 18, Contract dated February 6,
1962 .. Slats . 494
Defendant’s Exhibit 20, Contract dated December 13,
EL SLES LT 497
Defendant’s Exhibit 31, Sikorsky Internal Correspond-
ence CHd3A/D) Servo Valve liuvestigation, dated
Neen ee nee SOO
Responvent’s DeEsiGNatioNns
Plaintiff’s Exhibit 25, SH R-65259, Hydraulic System,
EE 500
Plaintiff’s Exhibit 26, SER-6G5099, Substantiation Test
fer Hydraulie Flight Control Actuators 20000000. 504
Plaintiff’s Exhibit $5, SER-50296, CHIL-53.\ asada
namic Load and Hydrodynamic “Stability .00000.. 509
Plaintiff’s Exhibit 88, MIL-C-18244A, Control and
Ne OLS
Defendant’s Exhibit 11, Department of the eee (ien-
eral Specification for Design and Construction of the
Aircraft Weapon Systems, SD-24H 200m... 514
Defendant’s Exhibit 12, Department of the Navy, De-
tail Specification for Model CH-53A, SD-552-1 529
Defendant’s Exhibit 13, Department of the Navy, De-
tail Specification for CH-53D Helicopter, SD-552-
Defendant’s Exhibit 14, Department of the Navy,
Specification for Assault Transport Helicopter,
H-H(X) alta iniegtiepheesibesineeetn .. 544
Defendant’s Exhibit 15, Department of the Navy. Dem-
onstration Requirements for CH-53A(TH-TH(NX)) -
Nee attteeeennrerenennees OOO
Defendant’s Exhibit 16, Military Specifications, Mil-
EE EE 559
lv
TABLE OF CONTENTS—Continued
Pages
Defendant’s Exhibit 18, Contraet NOW 63-0150-f dated
I I TIT is scans sersciieiiicniiapisnoublaninnetinanhiababoiinbcnainint 563
Defendant’s Exhibit 20, Contract N00019-68-C-0471
A LNCS
Defendant’s Exhibit 22, NATOPS General Flight and
Operating Instructions, OPNAV Instruction
| ER ATs RAINE ae es a IN TY eke ea RD 571
Defendant’s Exhibit 24, Sikorsky Form 209-5 2000000 574
Defendant’s Exhibit 31, Internal Correspondence from
K. Wallischek to T. Dixon dated June 3, 1983 WW. 575
Defendant’s Exhibit 33, Photograph of co-pilot seat of
I I a enero 579
Defendant’s Exhibit 37, Photograph of Test Pilot at
co-pilot’s seat of CH-53D helicopter 580
Defendant’s Exhibit 38, Photograph of Test Pilot with
emergency escap* hatch lever on CH-53D helicopter .. 581
Yefendant’s Exhibit 39, Photograph of Exterior of
co-pilot’s seat of CH-553D helicopter 00000 AB2
Defendant’s Exhibit 40, Photograph showing release
of co-pilot’s escape hatch of CH-53D helicopter —.. 583
Defendant’s Exhibit 41, Photograph showing escape
from escape hatch of CH-55°.D helicopter 0000. d84
CIVIL DOCKET CONTINUATION SHEET
Plaintiff
DELBERT BOYLE, ETC., ET AL.
Defendant :
UNITED TECHNOLOGIES CORP.
Docket No. CA-84-0486-R
Page 2 of — Pages
Date NR. Proceedings
1985
July 12 — Pltf’s Proposed Jury Instructions. ree’d. len
July 15 46 Deft’s List of Exhibits, filed. len
July 15 — Deft’s Proposed Jury Charges, ree’d. len
July 17 54 PLtf’s Objections to Deft’s Proposed
Exhibits At Trial, filed. len
July 17 55 Deft’s Objections to Pltf’s List
of Exhibits, filed. apr
July 19 56 Deft’s Reply Memorandum in Support
of Motion in Limine, filed. apr
July 19 57 Pltf’s List of Exhibits, filed. apr
July 22 58 Stipulated Facts, filed. afw
July 22 — JURY TRIAL PROCEEDINGS:
Williams, J. Halasz, OCR. Appear-
ances: Parties by counsel, Jury.
Jury sworn & examined on voir dire.
Jury empaneled with one alternate; :
sworn to try issue. Witnesses excluded
on motion of parties. Opening state-
ments made. Stipulations of parties
~ read to jury. Pitf adduced evidence.
Case cont’d until tomorrow at 9 A.M.
(7 Hours 3 Mins.) JWH
July 23 59 ORDER granting deft’s motion in
limine ent’d 7-23-85 (RLW) filed.
Copies hand delivered to counsel
for the parties. JWH
Cont’d on Page 3
1
Date
July 23 —
2
NR. Proceedings
JURY TRIAL PROCEEDINGS
(2ND DAY): Williams, J. Halasz,
OCR Appearances: Pitf with counsel,
deft by counsel, jury. Pltf adduced
further evidence. Depositions of (1)
Terrence J. Fox, and (2) Jesse
Clemons used in trial & filed on behalf
of pltf. Deft’s motion to exclude issue
of punitive damages heard; granted.
Punitive damages issue dismissed,
Deft’s motion for a directed verdict
on flotation issue heard; granted.
Pitf rested. Deft’s motion for a
directed verdict on all issues heard;
denied. Case to go to Jury on implied
warranty issue. Deft adduced evidence.
Case cont’d until tomorrow at
9:30 AM. (8 Hours) JWH
July 23 — Deposition of TERENCE J. FOX
used in trial and filed. JWH
July 23 — Deposition of JESSE CLEMONS
July 24
used in trial and filed. JWH
JURY TRIAL PROCEEDINGS
(83RD DAY): Williams, J. Halasz,
OCR Appearances: PlItf with counsel,
deft by counsel, jury. Deft adduced
further evidence; rested. Deft’s
renewed motion for a directed verdict
on all issues heard; denied. evidence
concluded. Arguments of counsel
heard. Jury charged by the Court.
No further objections noted to the
charge. Alternate Juror discharged.
Jury retired. Inquiry of the jury
received; answered. Jury returned
verdict in favor of the plaintiff in
the sum of $725,000.00 Jury discharged.
Clerk to enter judgment on the Jury
Verdict. (6 Hours 8 Mins.) JWH
Date
July
July
Aug.
Aug.
Aug.
Sept.
Sept.
3
NR. Proceedings
24 60 Jury Verdict filed.
24 61 Judgment on Jury Verdict entered
by the Clerk 7-24-85 filed. Certified
copies to counsel of record.
1 62 Pltf’s Bill of Costs, filed.
2 63 Deft’s Motion For Judgment Not-
withstanding The Verdict Or, In The
Alternative, For A New Trial, filed.
2 64 Deft’s Memorandum of Law In
Support of Motion For Judgment
Notwithstanding the Verdict Or, In
JWH
JIWH
len
len
The Alternative, For A New Trial, filed. len
9 65 Pltf’s Brief in Opposition to Deft’s
Motion for Judgment notwithstanding
the verdict, Filed.
14 66 Deft’s Reply Memorandum In
Support of Motion For Judgment
Notwithstanding The Verdict Or,
In the Alternative, For A New Trial,
filed.
21 — Transcripts of Trial before Hon.
Richard L. Williams in IIT Vols., filed.
10 — IN OPEN COURT: Williams, J.,
Halasz, OCR. Parties by counsel.
Matter came on for hearing on deft’s
motion for judgment notwithstanding
the verdict or in the alternative for
a new trial. Arguments had. Motion
denied. Findings of fact & conclusions
of law stated from the bench. Order
to enter. (1 hr. O07 mins.) -
10 67 ORDER, that for the reasons stated
from the bench the Court denies deft’s
motion for judgment notwithstanding
the verdict, or in the alternative, for
a new trial. Supersedeas bond, if
afw
len
len
len
Oct. 10 68
Oct. 10 69
Nov. 1 —
Nov. 4—
1985
Nov. 1 —
1986
May 28 70
July 371
July 3 —
July 7 72
1987
Jan. 28 73
Feb. 3 —
4
requested, for appeal shall be set at
$750,000.00. Ent. by RLW on
09/10/85 & filed. Cps. mailed.
Deft’s Notice of Appeal, filed. Fee
paid. TPO mailed to counsel f/deft.
Deft’s Supersedeas Bond, filed.
APPROVED, Ent by RLW on
10/11/85, filed. Cps. mailed.
Transcript of Proceeding held
Sept. 10, 1985, filed.
Appeal Record, VIII Vols., del’d
to USCA.
Portion of Pltf’s Trial Exhibits not
sent to 4th Cireuit del’d to counsel
for the pltf.
Per Curiam Opinion of USCA
REVERSING decision of USDC, filed.
JUDGMENT of 4th Cireuit filed
5/27/85 reversing & remanding for
further proceeding consistent with
opinion ree’d and filed.
Record on appeal in 8 volumes
returned from 4th Cireuit to District
Court.
ORDER vacating judgment heretofore
entered in favor of pltf; entering
judgment in favor of deft; dismissing
action with prejudice with costs to
deft; ent’d, RLW, filed. Copies mailed.
ORDER of Supreme Court of U.S.
ALLOWING Certiorari, filed.
Appeal record in 8 vols. returned
to 4th Circuit.
len
sjl
sjl
sjl
pks
JWH
jlm
lkm
Ikm
lkm
jlm
or
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Reeord No. 85-2264
UNITED TECHNOLOGIES CORPORATION,
Appellant,
v.
DELBERT BOYLE, personal representative of the Heirs
and Estate of David A. Boyle, deceased,
Appellee.
On Appeal From The United States District Court
For the Eastern District Of Virginia
Richmond Division
BRIEF OF APPELLANT
UNITED TECHNOLOGIES CORPORATION
Lewis T. Booker
Lonnie D. Nunley, III
HUNTON & WILLIAMS
707 East Main Street
P. O. Box 1535
Richmond, Virginia 23212
Counsel for Appellant
December 13, 1985
TABLE OF CONTENTS
Page
I. BACKGROUND OF THE CASE 1
Il. THE ISSUES PRESENTED FOR DECISION — 2
Ill. STATEMENT OF THE CASE... rook sd 3
DO EE 3
Be TI OF I i sscttcrirtctertcertiineiemenetitcimn 4
IV. ARGUMENT ........ AMET ae eR OR SD 10
A. Sikorsky Is Not Liable For Any Alleged De-
fects In The Design Of The Emergeney Es-
eape Hatch Because It Strictly Followed
Navy-Mandated Plans And Specifications ....... 10
B. There Is No Evidence To Support A Finding
Of Any Defect In The Helicopter For Which
TG TN sii ncentaetaieetictattaenine 16
C. The Trial Court Committed Prejudicial Error
In Admitting PX-11 Over Sikorsky’s Objec-
Ie AA cc ee Bey a Ae -
D. The Verdict Of The Trial Court Is So Ex-
cessive As To Warrant A New Trial ...... SODAS 31
. fer Gl | SIRE ARAN Geet tae Seek Mea YE a RP 36
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
DELBERT BOYLE, PERSONAL
REPRESENTATIVE OF THE
HEIRS AND ESTATE OF
DAVID A. BOYLE, DECEASED,
Plaintiffs
Vs. Case + 84-0486-R
UNITED TECHNOLOGIES COR- April 2, 1985
PORATION,
Defendant
DEPOSITION OF JESSE CLEMONS
APPEARANCES:
FOR THE PLAINTIF» :
MACK, HAZELWOOD, FRANECKE &
TINNEY
221 Pine Street, Suite 500
San I’ranciseo, CA 94104
BY: LOUIS S. FRANECKE, Esq.
FOR THE DEFENDANT:
HUNTON & WILLIAMS
707 Kast Main Street
P. O. Box 1535
Richmond, VA 23212
BY: LEWIS T. BOOKER, Esq.
8
(p. 3) Q Mr. Clemons, would you state your name,
please?
A Jesse Clemons.
() And your present address?
A 60 Wainut Street, Stratford, Connecticut.
() by whom are you presently employed?
A Sikorsky Aircraft Company.
() How long have you been so employed?
(p.4) A Approximately twelve and a half years.
() And in what capacity!
A Design engineer.
() Any particular design group?
A It’s hydraulic mechanical flight controls.
() Are you a part of the Sikorsky accident investiga-
tive group?
A No, Lam not.
() Prior to about twelve years ago, | think, who were
you employed then by?
A Lockheed Aircraft Corporation.
Q Where was that?
A Marietta, Georgia.
() What general type of employment did you have
with them?
A Design engineer, mechanical flight controls.
() Was that also hydraulics?
A No, that was mechanical, just mechanical.
() Prior to coming to Sikorsky, had you been involved
with design engineering having to do with hydraulics?
. 9
A No.
Briefly, what is your educational background?
&
A BS degree in mechanical engineering.
(p.5) Q Where from?
A Finley Engineering College, Kansas City, Missouri.
( What year was that?
A 1958.
@ <Any military?
A Yes, three years in the Coast Guard.
() Have you ever had your deposition taken before?
A No.
() Mr. Clemons, prior to April of 1983, did you have
occasion to ever investigate any other accidents pertaming
to Sikorsky Aircraft product?
A Yes.
* * *
(p. 7) Q Did you have oceasion to examine the wreck-
age pertaining to an accident of a CH-53D marine helicop-
ter that crashed on 27 April 1983?
A Yes, I did.
() Did you go with Mr. Conroy to Norfolk to examine
the wreckage when it first came out of the ocean?
A Yes.
() Prior to that time, had you done any investigative
work pertaining to the investigation of the crash?
A No.
() What did you do, in general, when you got there at
Norfolk?) Give me an overview of that week that you were
there?
10
A When they removed the ship or the aireraft from
the ship, it was taken into a hangar on a trailer and we did
a visual check of the control systems to see if we could find
uny evidence of a bind or a disconnect anywhere in the
control system.
(p. 8) Q Anything else that you personally were in-
volved in in looking at?
A We found nothing. Our next step was to see if the
controls moved freely and they did,
() Did you personally move the controls?
A Yes, I did.
() How often did you move them around?
A I don’t really know, probably a half dozen times.
Did you fell any kind of binding or ratcheting in
the system?
A No.
() Was the power on or off when you did this
manuver?
A It was off.
() Did you ever move the controls with the power on?
A Not on that aireraft.
() By “power,’’ | mean the various hydraulic systems
being on, you undersiand?
A Yes.
() You understand that?
A Yes, I do. °
() You didn’t feel any binding mechanical difficulties
with the movement?
A No.
11
(p. 9) Q I note Exhibit 71(d) from your file appears
to be a letter from Sedlock, is that correct?
A Yes.
Q@ And then it goes to you as one of the copied re-
cipients, is that correct?
A Yes.
Q@ Was this a document prepared before or after
you went to Norfolk?
A That was after.
Q Whois Mr. Sedlock?
A He’s a design engineer with Sikorsky Aircraft.
Q Was Mr. Sedlock there at the accident investiga-
tion scene at Norfolk?
A No. He was at Pensacola with us.
() Is he from Pensacola as far as you know?
A No, he’s assigned to West Palm Beach at our
facility there.
Q But he assisted over at Pensacola?
A Yes.
Q Did he assist in Norfolk?
A No.
Q@ Okay, you moved the various control movements
around. Did you do anything else mechanically with re-
gard to moving (p. 10) the controls to determine whether
or not ther> was any binding or mechanical failure that
you know of?
A Notat Norfolk, no.
Q Is there anything else that you checked at Nor-
folk?
12
A We put the rigging pins in the system to verify
that the system was properly rigged.
Q Was it?
A Up to the main rotor servo. That’s as far as we
could go beeause of the damage to the main rotor head.
Up to that point, all pins went in freely.
() There was too much damage in the servos, rotor
servos to make an accurate determination ?
A Yes.
() Did you check to see the movement of the pilot’s
and co-pilot’s cyclic stick—strike that. -
Did you determine whether or not the pilot’s or
co-pilot’s eyelic stick was off center by two inches or so?
A Yes, we did.
() Was that part of your mechanical check or was
that something you did later?
A That was something we did at Norfolk. Basically
what we did there is we know what the distance between
the two sticks should be and we just simply measured
that distance and (p. 11) saw that it wasn’t the 48 inches
that it should be. P
() Okay, did you go underneath the floorboards to
see if there was anything that contributed to the off-
centeredness of the co-pilot’s stick?
A At Pensacola we did. The parts were sent to
Pensacola.
() De you mean the parts of the control stick and
the push rods were center to Pensacola?
A Yes, they were.
13
() What else did you do at Norfolk? You have done
the rigging pins. You mechanically moved the stick.
What else did you do?
A We removed all of the servo actuators and vir-
tually all of the mechanical linkages in the control system
to send to Pensacola for further investigation.
Q@ Did you examine any of the primary servos at
Norfolk to determine whether or not they would move
freely or not?
A No.
Did you take any photographs:!
I personally did not.
Did Mr. Conroy ?
Yes, he did.
Q Did you do any checking of pressures or fluid
samples (p. 12) of any of the hydraulic system while you
were there at Norfolk?
A I personally didn’t, no.
Q Do you know if anybody did?
A I believe Mr. Terry Fox did. I am not positive,
but I believe that he did take samples from the aircraft.
Q Mr. Fox was there at Norfolk?
> O&O PL
A Yes, he was.
() Were you wo.aing alongside or with Mr. Fox, to
to speak ?
A Yes,
() Did you take any oil samples from the hydraulic
system when they took the servos off?
14
A Not at that time. We capped all the ports on the
servos and when they got to Pensacola, they did take flood
samples from all of the servos there.
() That wasn’t done in Norfolk?
A No.
( All right, did you do anything else other than
what you have just told me? You checked the mechanical
movement of the stick. You checked the rigging by put-
ting in the rigging pins and that sort of thing up to the
main rotor head and you removed all the servos. Did you
do anything else other than that?
A Just visual inspection of the entire control sys-
tem (p. 13) to look for binds or disconnects, any sort of
damage.
() Pins that might have been broken or something
like that?
A Yes.
() Did you find anything that appeared to be a
failure other than impact damage?
A We found some, at crack in one of the mixer sup-
port fittings.
( Was that of significance to you?
A No.
() Was it a possibility of causing any or was it a
possibility of contributing to the accident crash as you
understood it?
A Not in my opinion.
() Anything clse that you found in your visual or
otherwise Inspection at Norfolk?
~
- - -
OM AALS + AD hee Ete ay 0 ee ee.
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:
15
A The only thing I can recall is there was a dis-
connect in the power takeoff from the mixer. I believe
that’s covered in some of the notes there.
Q Did that have any significance to you with regard
to the sequence of the crash?
A No.
Q Exhibit 71(c) is a copy, I believe. Are these your
(p. 14) notes?
A Yes.
Q Are these notes you took at Norfolk or in Pensa-
cola?
A Most of them were in Norfolk. There, in the back
there may be some from Pensacola.
( These are indicating your impressions as you
were observing the various parts of wreckage.
A Yes. I just wrote down the dimensions that I had
taken and just my own personal observations.
Q You went to Pensacola, is that correct?
A Yes.
@ And that was with the various servos and push
rods, that sort of thing?
A Yes.
() What did you do when you were in Pensacola?
A I was there primarily as a witness. They did run
an acceptance test on all of the servos.
That was a bench test?
A Yes, it was.
() [ts this according to the maintenance manual?
16
A Yes, it is a test that they give to any servo prior
to putting it on an aircraft.
() How did the servos check out?
(p.15) A All in all, they checked out very well. There
was a problem with the pitch AF'CS servo.
Q What was wrong with the pitch AF'CS servo?
A The trim would not drive in one direction. There
was a broken spring in the shuttle valve within the servo.
) Did that affect the performance of the servo valve?
A It would prevent it from driving in trim in one
direction. Llowever, the servo had been in salt water for
24 hours or more prior to testing.
@ Anything else that was out of the specifications
with regard to the various AF'CS servos?
A | don’t recall anything.
Q What about the—okay, did you notice any of the
maintenance plates on the various servos indicating times
of rework or rework activity?
A | recorded the name plate information somewhere
in my notes there.
Could you find that for me, if you would sir?
A (Witness checking exhibit.)
These are the four AFCS servos, part number, serial
number. These numbers 4Q80, that indicates that it was
either manufactured or overhauled in the fourth quarter
of 1980.
Q Okay. And these were from various tags or plates
that (p. 16) were on the various servos?
17
A Yes, that’s correct.
Q On the roll AFCS servo, I notice you recorded here
‘*NARF Pensacola fourth quarter ’82,’’ is that correct?
A No, it is, roll is this one first quarter ’82.
Q Right.
A Ido have NARF Pensacola fourth quarter 82 and
that indicates that it had been back at NARF in fourth
quarter of ’82.
@ The servo site in the aircraft looking forward,
which servo is on the outside?
A Can 1 refer to my schematic here?
Q Of course. By the way, refer to anything vou wish
as you go along.
A As you are looking forward, the AFCS servo would
be on the right hand to outboard side.
The next one, inboard, would be the collective. The
next one, inboard, could be the roll and the most inboard
servo would be the YAW.
Q Now, do you remember seeing whatever it was that
indicated that NARF Pensacola had done work on the roll
servo.
Do you recall that?
A It would have been stamped on the nameplate.
(p. 17) Q Is it a tag or is it an actual stamp on the
nameplate?
A Idon’t reeall. It would be one of the two.
Q Did you check with NARF Pensacola to determine
what work had been done on roll AFCS servo?
18
A_ No, I did not.
Q Did you ever see any documents or maintenance
records pertaining to what werk was done at NARF?
A No.
@ Did you ever discuss it with anybody as to what
work Pensacola may or may not have done to the roll
servo?
A You are referring to prior to the accident?
@ Yes, prior to the accident.
A No, I did not.
Q@ Asa part of the overhaul of the various roll servos,
is it part of that maintenance program to take apart the
Moog valve?
A Idon’t think so. 1 don’t know for certain. I think
what is done is they test that valve to its own acceptance
test procedure. If it does not pass that, then it would be
disassembled.
() Is the Moog valve downstream or upstream of the
input filter into the AF'CS roll servo?
(p.18) A It would be downstream.
Q Imean, just as a general comment, the filter is the
first thing that the inputting oil sees, more or less, when
it is coming into the servo?
A Yes. ;
Q Is there an output filter also?
A No.
Q Is there a second filter in the AFCS roll servo be-
sides the input filter?
A No. There might be a screen on that valve. | am
not sure of that.
es
19
Q Did you observe the teardown of the various AFCS
servo cylinders?
A Yes.
Q Did you participate by actually, physically assist-
ing in the teardown?
A Just as an observer.
Q You just watched?
A Yes.
Q Did you examine the various parts of the servos
as they were taken apart?
A Yes.
Q@ Did you find anything to be out of the ordinary
with (p. 19) regard to the various servos as they were
taken apart?
A That broken spring that we mentioned previously
was the only thing that I recall seeing.-
Q Did you observe the teardown of the roll AFCS
servo cylinder?
A Yes.
Q Did you find anything amiss with regard to the
roll AFCS eylinder?
A No.
Q@ Did you examine it in detail?
A Yes.
Q Did you use a microscope or a looking glass or
something like that?
A No, I did not participate in the teardown of the
Moog valve. That was done later.
() That’s what my next question was. Okay.
20
Did you take any hydraulic oil or fluid samples from
the roll AFCS servo eylinder?
A Pensacola did.
Q Did you?
A No, not personally.
() | gather you were not present when the Moog valve
was taken apart?
(p. 20) A No, 1 was not.
Q Did you record any of the nomenclature on the
Moog valve such as its date of manufacture, rework or any-
thing like that?
A No, | did not.
() Do the moog valves have on them a plate indicat-
ing when rework was done on them?
A lcannot answer that. | don’t know.
() | gather that the metallic chip that was indicated
by Mr. Fox as possibly causing the accident was not found
while you were there at Pensacola?
A No.
Q Did you ever see the metallic chip at some other
time?
A No.
( Were you ever present in Norfolk when the metallic
—well, did you ever see the metallic chip at any time?
A No.
() Have you ever seen any photographs of it?
A IL believe I have seen photographs, yes.
% *
21
(p. 21) Q Let me show you a copy of the last page
of Exhibit | for identification which I believe is a copy
of a schematic for a roll servo cylinder, is that correct?
A Yes, it is a eyelic AFCS servo. It doesn’t say
whether it is roll or pitch.
Q Now, did you ever talk to Mr. Fox as to whether
the chip was found in the servo cylinder?
A No.
() Did you ever determine from someone else where
the chip was found by Mr. Fox in the servo cylinder?
A It would have been in this valve which is a second
stage of the AFCS servo valve.
() Was it the second or first stage valve? I thought
it was the first. They are identical, I believe.
A I think it was in the first stage valve, but this is
the second stage of this valve.
Q It’s the pilot or commonly called the pilot valve?
A Yes.
@ And that’s an integral part of the moog valve
assembly ?
(p. 22) A Yes.
Q If I understand correctly, the pilot valve is the
valve that will move back and forth opening ports allowing
the hydraulic fluid pressure to go down and move the
power piston, is that correct?
A That’s correct.
() And if the pilot valve were jammed in an open
position to one of the ports, it would then drive the power
piston one way or the other, is that generally correct?
22
A Yes.
Q Have you personally participated in maintenance
procedures associated with these AFCS servo cylinders?
I mean, have you done it yourself, taken these apart
and that sort of thing?
A No.
Q Have you observed being done other than down in
Pensacola?
A Yes, | have. Cuan
() Have you observed the various maintenance pro-
cedure at Sikorsky with regard to reworking the various
AFCS servo eylinders?
A I have witnessed a good bit of the testing and
some of the disassembly and assembly. I haven’t witnessed
an entire (p. 23) overhaul procedure on a servo.
() Did you observe the various—at Pensacola had
you observed the teardown of the various filters of the
hydraulic system involved in the subject aircraft?
A I don’t recall other than just taking them out.
Q Did you see any contaminants in the various fil-
ters?
A I don’t recall seeing anything significant.
() In your notes, and let me show you this, of Exhibit
17(c), the largest paragraph on the bottom starting with
‘“Cyelic stick moves farther ...’’ Do you see that?
A Yes.
() You are indicating that ‘‘When the cyclic stick
moves to the right, the AFCS servo bottoms first and the
stick can be moved two or three inches before stick stop is
contacted. Do you see that?
23
A Yes.
@ Are you referring to the pilot’s or the co-pilot’s
stick?
A They would be both moving together.
Q Now, is that within the design tolerances associ-
ated with this particular movement of the cyclic stick?
A ‘The reason I noted this is because going both left
and right, the servos should have bottomed before you con-
tact (p. 24) the stick stop.
Q It is supposed to do it that way?
A Yes.
Q But indicating when moving to the left the sec-
ondary stop is contacted first, is that correct?
A Yes.
Q Did that have any significance to you with regard
to a possible contributing cause of the accident?
A No. The amount of travel that was lost was very,
very slight. I didn’t feel it had a bearing.
() Do you recall whether the roll AFCS servo ceylin-
ders’ shear pin was sheared or not when you observed it in
Norfolk?
-A To my knowledge, it was not.
() What is the purpose of the shear pin on the roll
AFCS servo cylinder?
A That’s in the event you do get a jam in that pilot
valve, the pilot could overcome the jam and free the con-
trols.
Q Did you test to see what force would be required
to shear the shear pin with regard to the roll servo ey-
linder involved in this accident?
24
A I did not.
Q Do you know if anybody did?
A I believe that Mr. Fox did.
(p. 25) Q If a pilot were receiving a hardover in
the roll AFCS servo cylinder started or precipitated by
a jammed pilot valve in the number one AFCS servo moog
valve, is it the function of the shear pin to allow the pilot
to overcome that inputting force and to, for lack of a
better word, gain control of the flight control system?
A Yes. The assumption is that this spool is jammed
solid which would lock up the cyclic stick and the shear
pin that is located near the input to the valve would shear
and allow the controls to move independently of the
jammed valve.
Q However, I am not sure you are answering my
question and maybe I should rephrase it a little better.
Let me ask you to assume that the pilot valve and the Moog
valve have been jammed in an open position one way or
the other to a port allowing the hydraulic fluid to pres-
sureize down, moving the power piston one way or the
other, left or right, it doesn’t matter.
Is it the shear pin’s function to shear and allow the
pilot to gain mechanical control of the flight control sys-
tem under that type of circumstance?
A Normally he would switch to the other stage of
the AFCS servo. By shearing this pin, this would give you
normal control back.
Q Let me ask you, during the period of time that a
(p. 26) pilot has not switched from one to number two, is
it the function of the shear pin to shear and allow the pilot
ee eee ed
25
to gain mechanical control again under the previous hypo-
thetical that I am giving you?
A He could overcome the hardover force that he
would have here, but he would be having to fight this stage
until he switched over.
Q Do you mean that the shear pin, then, has no effect
on the safety mechanism, so to speak, under the condition
I am describing?
A No, I don’t mean that.
@ Then what effect would the shear pin have under
the conditions we were just describing?
A The shear pin would allow him to regain normal
control with the other stage.
Q If he switches over to the other side?
A If he switches over.
Q But as long as he’s on the stage that’s jammed,
then the shear pin would have no effect on his gaining con-
trol. is that correct?
A That’s correct.
() So, the only means as long as he stays on the
jammed servo stage is for him to mechanically wrestle it
back to wherever (p. 27) he wants the stick to be.
A That’s correct.
Q Now, do you know what amount of force is re-
quired by the pilot to, given the hypothetical I am giving
you where you have a jammed pilot valve in the moog
26
valve, what would be required by the pilot to wrestle the
stick back, let’s say, to neutral given the hardover?
A No, I don’t know exact numbers. We have tested _
that exact condition to determine that it could be done,
but I don’t know the numbers.
—
Q When was this test performed? 7 ‘
A Within the past two years.
() Was it as a result of this accident?
A It was.
() Do you recall approximately how much force was
required to overcome the hardover under the condition
I’ve described?
A No, I don’t. All I could give you would be an
approximate number.
Q Well, did you participate in this test?
A No.
() Was it something somebody told you or a report
_ that you have seen?
(p. 28) A It was in a report I have seen.
Q Was this part of the post-accident investigative
study?
A I think that it was. I am not positive of that.
(p. 29) Q And I think the force then to move against
the hardover would be 55 pounds?
A Yes.
27
Q Do you know under what conditions this particular
hardover was generated?
A No, I don’t.
Q Do you know whether it was by blocked pilot valve
or jammed pilot valve?
A (No response)
Q Perhaps if I ask you another question. Well, your
answer is ‘‘ No,’’ you don’t know?
A No, I don’t know.
(p.31) Q Mr. Sedlock’s conclusions in the last page of
Exhibit 17(d), number one, indicate maintenance and
manual—strike that question.
His last paragraph, first paragraph of the last page
indicates ‘‘Certain maintenance procedures may not have
been followed subsequent to blade drop.’’ Do you see that?
A Yes.
—s
Do you know what Mr. Sedlock is referring to?
Yes, I do.
What is he referring to please?
> © FP &
He believes that the damage on the mixer could
have been a result of a blade drop, also note six on page two
of this same document.
I am sorry, it’s the wrong note. Note five of page two
of this document where he noted some brinelling in a ball
bearing and he-suspects that may have also been a result
(p. 32) of blade drops.
28
() What do you mean by ‘‘blade drops?’’
A When they fold the blades on helicoters, we have
what are called pitch locks that react to the load of the
blade. Actually, it is a moment on the spindle. You can
imagine when the blade drops ninety degrees to the spindle,
it gives you a pretty good moment arm.
Pitch locks are normally engaged to react that low. Li
for some reason the pitch locks are not engaged, this load
comes through the servos all the way back to whatever sys-
tem stop is contacted first.
* * *
29
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
DELBERT BOYLE, a personal
representative of the Heirs and
Estate of David A. Boyle, de-
ceased,
Plaintiffs,
vs. No. 84-0486-R
_
UNITED TECHNOLOGIES
CORPORATION,
Defendants.
DEPOSITION OF TERENCE J. FOX
April 8, 1985
(p. 2) at Law, 221 Pine Street, Suite 500, San Francisco,
California 94104, represented by LOUIS S. FRANECKE,
Esquire, appeared as counsel on belialf of the plaintiffs.
Messrs. HUTTON & WILLIAMS, Attorneys at Law,
707 East Main Street, Richmond, Virginia 23212, repre-
sented by LEWIS T. BOOKER, Esquire, appeared as coun-
sel on behalf of the defendants. |
Also present: Sandra McLaughlin, Paralegal.
—o0o—
TERENCE J. FOX,
called as a witness by the plaintiffs, having been first duly
sworn by the Notary Public to tell the truth, the whole
truth, and nothing but the truth, testified as follows:
30 -
EXAMINATION BY MR. FRANECKE:
Mr. Franecke: Q. Would you state your full name,
please?
A. Terence J. Fox.
And what is your present address?
361 East Hazelwood, Lemoore, California.
And that is near Fresno, California?
Yes, it is.
And what is your telephone number, do you know?
Area Code 209 924-7578.
oeprpererpe
By whom are you present employed?
A. By Naval Air Rework Facility, North Island, with
the field office at Lemoore.
(). Where is North Island located?
A. San Diego, California.
(p. 3) Q. And what generally is your job title or your
duties and responsibilities?
A. Engineering technician. Job responsibilities are
logistics management for the FA-18 fighter aircraft.
Q. FAA?
A. FA-18 fighter.
(). For the U.S. Navy?
A. Yes.
31
Q. Are you a civilian employee of the Navy or are
you—What are you?
A. Civil employee of the Navy.
@. How long have you been a civilian employee of
the Navy?
A. Since October 1961 or November 1961.
Q. Have you always been involved in the engineering
area for your employment with the Navy?
A. No. Since about 1970.
(). What were you then prior to 1970, from ’61 until
"70?
A. I worked in the shipyard for two and a half years.
I worked at the Naval Air Rework Facility from 64 to
’70 in hydraulic fuel! as a mechanie.
Q. Briefly what is your educational background?
A. It’s three years of college and various trade
schools.
Q. What subject did you study in eciions ?
A. Primarily business.
Q. Did you have any military service?
A. Yes, three years in the Marine Corps.
(). And what capacity?
A. Radio telegraph operator.
32
(p. 4) Q. This case that you’re being deposed on
involves a CH-53 helicopter, the hydraulics. Do you under-
stand that?
i
A. Yes.
Q. Can you give me a general description of what
your background has been in the area of hydraulics and
servo systems pertaining to helicopters? re
A. It’s been approximately ’67 or ’68 when the
CH-53 was first introduced to the fleet that I attended
a servo cylinder and repair school, had training on the
Moog servo controls, on the input valves, shop experience
up intil about 1970.
Q. Let me stop you there.
When you say shop experience until 1970 what kind
of shop experience did you have?
A. Overhauling and testing of hydraulic components.
(). And what do you mean by testing?
A. Evaluation, disassembly and reassembly.
. You took the servo cylinders apart and reassem-
bled them?
A. Yes, I did.
Q. Were you a supervisor or were you an actual
mechanic doing the actual work?
A. At that time I was a mechanic.
“ ee eee) haem
33
Q. Did you during this period of time up until about
1970, did you have occasion to disassemble and assemble
CH-53 roll servocylinders?
A. Yes, I did.
=Q. As well as I believe there’s yaw and collective
and pitch servocylinders ; is that correct?
(p.5) A. Yes.
Q. About how many of these servocylinders did you
disassemble and reassemble, just a general idea?
A. Probably around 50.
(p. 7) Q. It was your understanding that the Navy
which would include the Marine Corps had maintenance
contracts with Sikorsky for periods of time?
A. Yes.
Q. And as those contracts would then terminate or
run out then Pensacola would pick up the subsequent
work?
A. Providing they have the capabilities.
Q. Do you know when the contract ran out with
regard to the AFCS roll servocylinders?
Recognizing again, I draw your attention to what we
know about this case, that there was work done in the
first quarter of ’82 by Sikorsky and in the fourth quarter
by Pensacola.
A. Idon’t remember.
34
(). Was it in that time frame?
A. I think it was prior to then. I don’t remember
for sure. I know for a period of time that both Sikorsky
and Pensacola were doing the rework on the servos.
It was sort of a split of the workload.
Q. From about 1979 until 1984 were you involved in
evaluations pertaining to binding, sticking, and racheting,
referring to the roll AFCS servocylinder?
A. Yes, I was.
(p. 13) Mr. Franecke: Q. Now Mr. Fox, at some
time in 1983, presumably April, you received word that
there had been a crash of the CH-53D; is that correct?
A. That’s correct.
(). How many other accident investigations had you
participated in prior to that time?
A. Probably about 30.
. How many?
A. About 30.
Q. And did these all involve 53-type helicopters or
were there others?
A. There were also others, and then there was also
fixed wind aircraft.
(). How many of them involve 53-type helicopters?
A. Approximately 20.
35
Q. Did any of these 20 have problems having to do
with the hydraulic systems that may have contributed to
the crash?
A. None that 1 recall offhand.
. Did any of them have to do with imbalances hav-
ing to do with fuel transfers from the auxiliaries to the
main tanks?
A. One did, yes.
Q. When you say 20 crashes had to do with 53-type
helicopters, I’m using the whole general spectrum, is it
true that none of those involved anything having to do
with hydraulics?
A. Right now to the best of my recollection none
had directly to do with hydraulics.
(p. 14) Q. Do you remember about what date you
actually got word that there had been a CH-53D erash
that’s involved in this litigation.
The accident took place—
A. June 27th—I was just looking—
Q. That’s all right. You may refer to your notes.
You do have some of your notes with you?
A. Yes. Probably the 28th of April.
(). Do you remember what you first did?
A. We've requested to furnish technical and metal
lurgical expertise at the site where the aircraft was recov-
ered and brought to.
36
(). And were you to furnish this technical and metal-
lurgical expertise?
A. The squadron requested assistance.
(. When you say the squadron you mean the squad-
ron whose aircraft had crashed?
A. Yes.
(. Had you received any request for technical as-
sistance from any form of marine investigative board at
that point?
A. Yes. It would have been the investigative board
for HMH 461. -
Q. Now, there’s a JAG board also, is that correct, as
far as you know?
A. There were two investigations. This was the
Mishap Board that requested it.
Q. Who I believe was headed by a Major Miller; is
that right?
(p. 15) <A. Yes.
Q. Essentially what were you supposed to be doing,
look at the aircraft and do whatever investigations as
necessary?
A. Look at the aircraft in its condition as recovered
from the water.
The primary function was to look at the flight controls
completely from the sticks all the way up to the rotor head,
report on any damage that was done to it, and look for
anything that could have caused a malfunction.
ee OD NE
37
Q. Was it part of your responsibility to interview
any of the flight crew or other witnesses to the actual
crash?
A. No, it wasn’t.
Q. Did you do that in any way, either formally or
informally?
A. Informally I was allowed to talk to the pilot along
with John Combs from the Naval Safety Center.
Q. Mr. Combs was present?
A. Mr. Combs was present. He was doing the pri-
mary interrogation.
Q. Do you know whether or not he took a statement,
something written or recorded?
A. At that time, no. The actual interrogation of any
of the people involved with the aircraft was done by the
flight surgeon.
(. Do you recall what the pilot indicated as to what
happened?
A. No, sir. At the time we talked to him he felt that
when he took control that he either had a hard over or the
(p. 16) stick drove to the right.
(). Anything else that would be significant to you as
far as your investigation is concerned other than that?
A. No, sir. To the best of his recollection he said
that he did not notice any problems with any other channel
in the flight control as far as pitch or yaw or collective.
38
Q. Do you recall whether or not you talked with the
pilot before or after you started your investigation of the
actual physical wreckage itself?
A. When I talked to the pilot was after we had begun
our depo investigation of the various components.
(). That was done at Pensacola?
“A. We were at Pensacola and talked to them on the
phone.
(). So that was after you had removed various items
from the wreckage?
A. Correct.
(). Let’s go back then to | think it was Norfolk that
the wreckage was taken to?
A. Yes, it was.
(). What did you do in general when you went to
Norfolk to take a look at the wreckage?
A. First thing we did was check the position of the
various flight controls, stick position, pedal position, check
the positions of the AFCS servocylinders and primary
servoeylinders to assure that they coincided with stick
positions.
We went completely through all the torque tubes in
the flight controls to assure that all of them were intact.
There was no evidence of any bell crank having a foreign
(p. 17) object in it that could have bumped it or anything
in the linkage of the servos themselves.
Lue to the condition of the rotor head we disconnected
the primary servocylinders and checked the rigging of the
flight controls back up to the stick.
39
q. Anything you found on this there?
A. The only thing that was amiss was the fact that
the copilot’s cyelie stick was approximately two inches to
the left of center.
Q. And what is the total throw, if you will, of the
copilot’s stick from center position to the full left if you
know?
A. <As I recall it was about six inches or should be
approximately six inches.
. Or more?
A. No, it would be less.
The total throw is 15, 16 inches?
Something like that.
ope
So we know we’re talking about the right thing, I
show you exhibits that have been marked Plaintiffs’ Ex-
hibits 2-A through -E from previous depositions and ask
you if those are photographs of the wreckage of the air-
craft that you examined?
A. Yes, it is.
Q. Did you examine the tail rotor assemblies, so to
speak, if there had been any failure in the mounting feet
or any other part of that assembly?
A. Both myself and an individual named Eli Nicosia
who (p. 18) is a metallurgist from Pensacola looked at
the feet. In addition to their squadron personnel and John
Combs.
40
Q. And did you determine whether or not there had
been any failure in the tail rotor that may have contributed
to the accident?
A. There was no apparent failure that would have
contributed to the accident, no.
Q. Did you check the electrical system of the air-
craft to see if there was any contributing cause?
A. There was an electrician that did go up to the
aircraft and yank out some wires to determine if there
were any electrical failures.
He did not see anything that was indicative of an
electrical failure.
(). Eventually your investigation I believe started
honing in on the various parts of the hydraulic system; is
that correct?
A. That’s correct.
(). What did you do with regard to your initial in-
vestigation of the hydraulic system?
A. We removed selected components: the primary
(p. 19) servocylinders, the tail rotor servocylinder, the
AFCS servocylinders, the reservoir, the filter manifolds,
and a few of the shut-off valves that pertained to the servo
systems. And they were checked and they were shipped
back to Pensacola where we performed some functional
tests of the units and a teardown and examination.
41
Q. Before removing these particular itms did you ex-
amine the various hydraulic lines themselves at the top
of the record here shown in Exhibit 2-D?
A. Yes, I did.
Q. And were all of these lines, hydraulic lines intact
or were there breaks and openings in them?
A. Some of them had breaks and openings.
Q. Do you remember as you sit here now what lines
had breaks and openings and which didn’t?
A. To the best of my memory the majority of them
were on the upper portion of the hydraulic compartment
and lines that were aft of the main gear box and rotor
head.
Q. Was it your understanding that the aircraft when
it finally rested on the bottom of the sea was in an in-
verted position?
(p. 20) Q. Did you take anything apart other than
the various servos, et cetera, off of the aircraft while you
were at Norfolk?
A. No, we just removed the components as they were.
Q. When you say you removed the components I know
you probably had a mechanic do it; is that right?
A. That’s correct.
42
Q. Or maybe yourselves, too.
Were the lines for the various servos, were they
plugged in any fashion for transport down to Pensacola?
A. Yes, they were.
Q. And that was after they were removed?
(). Who was in charge, so to speak, of the hydraulic
system investigation when you removed the various com-
ponents for transport down to Pensacola?
A. Myself.
Q. You were in charge, okay.
A. Well, let’s put it this way: I was in charge as
far as what I wanted to remove. Of course, the military
is going to be in charge of themselves.
But | was present to make sure things were done the
way | wanted.
(). Was there a Mr. Combs also involved in this in-
vestigation at that point?
A. Yes, he was.
(. Was he in charge of some different investigation
or were you working together or what?
(p. 21) A. Mr. Combs is from the Naval Safety Cen-
ter, and he is in charge of the overall investigation both
from the standpoint of what the squadron does for their
Mishap Board and in addition what I do as far as the com.
ponents from a depo standpoint.
ent OFF we ke oh
43
~Q. He was overall in charge, but your responsibility
was the hydraulics?
A. Yes, sir.
Q. Prior to leaving for Norfolk did you also take a
look at the fuel system of the aircraft as much as there was
in the wreckage?
A. As much as there was. I did, yes.
(Diseussion off the record.)
(Whereupon, three photographs were marked
as Plaintiffs’ Exhibits 75-A, -B and -C respee-
tively for identification. )
Mr. Franecke: Q. Off the record I’ve had three
photographs which have been marked Plaintiffs’ Exhibits
75-A, -B and -C, and I ask you, Mr. Fox, if you ean tell me
what these various photograplis show.
A. Exhibit 75-B and -C show the fuel transfer valves
on the port and starboard side of the aircraft.
(. Can you tell by looking at those whether or not the
transfer valves are open or in the closed position?
A. By looking at the photos it would be in the closed
position.
(. These are the transfer valves that would be util-
ized to transfer fuel from the auxiliary tanks into the main
tanks?
(p. 22) A. That’s correct.
(). What does 75-A show?
A. 75-A is the fuel control panel that’s located in the
center console between the pilot and the copilot.
tt
(). And it appears that it’s been removed from the
panel in the aircraft; is that correct?
A. That’s correct.
Q. Then does it show what positions the fuel transfer
switches are in?
A. Yes, it does.
(). What position do they appear to be in?
A. The left aux and main showing off position, and
the right is showing fill position.
(). One of them is broken off, is it not?
The upper left one is broken off, yes.
Would that be the—
That would be for the aux.
Would that be for the left or right tanks?
For the right aux tank.
Is broken?
Yes.
re? Fre Ff
Q. Do you recall when you first examined the aircraft
in what position the various switches were in?
A. I recall the one being broken. I don’t recall the
exact position, no.
(). Was there any indication to you while you did your
investigation that there may have been a fuel center of
gravity imbalance that may have contributed to the crash
(p. 23) itself?
A. No, there wasn’t.
@. Now you took these various pieces of the aireraft,
servocylinders, et cetera, down to Pensacola.
What did you do down there with them?
A. The first thing we did to all the components was
to flush them to remove all the contaminants. We use
cheesecloth to collect anything coming out.
Our main concern was to get any obvious contaminates,
collect them, and also to purge any salt water from the
units prior to functionally testing them.
Q. Is it possible to check the freedom of movement of
these roll servocylinders by hand prior to putting them on a
test bench?
A. Yes, it is.
(). Was that done before you did any flushing or
purging of the salt water at any time?
A. Yes, it is.
(). Do you know whether it was done?
A. Yes, it was.
(). And honing in on the visual, was any binding or
sticking or anything else noticed by your hand examination
as to what m
This text is long and has been trimmed here. Open the source document for the complete record.
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