Opposition Brief — Eschler v. Boeing Co.

Supreme Court, U.S.

FILED

—p— PEE 2D 1985

No. 85-685 e { | JOSEPH oe

No. 85-703 (2/

IN THE

Supreme Court of the United States

OcroBer TERM 1985

IN RE Air CRASH DISASTER AT

MANNHEIM, GERMANY ON SEPTEMBER 11, 1982

MDL 555

CHERYL ANN ESCHLER,

Petitioner,

Vv .

THE BOEING COMPANY,

Respondent

URSULA SCHOENBORN,

Petitioner

Vv.

THE BOEING COMPANY,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITIONS FOR WRIT OF CERTIORARI

F. HASTINGS GRIFFIN, JR.

Counsei of Record E. Davip CHANIN

DECHERT Price & RHOADS

PERKINS COIE 3400 Centre Square West

1900 Washington Building 1500 Market Street

Seattle, Washington 98101 Philadelphia, PA 19102

(206) 682-8770 (215) 972-3400

Attorneys for Respondent

The Boeing Company

i

TABLE OF CONTENTS

Page

I cecal iiteinsssieenaneeticesacasebntintelieseontientn 2

ke Es sey 4 od. : aan 2

REASONS FOR DENYING THE PETITIONG.................. 6

SUMMARY OF ARGUMENT.............ccsccsscessssceescecesseeeeees 6

ARGUMENT iiicialietieiiactidatiaeeenidieheiasinieanldininemasasennsieienit 6

I. THERE ARE NO SPECIAL AND IMPORTANT

REASONS FOR GRANTING REVIEW ON

bape OF CERTIORARI IN THIS STATE LAW

iain 6

II. PETITIONERS’ QUESTIONS PRESENTED FOR

REVIEW ARE NOT RAISED BY THE DECI-

SION BELOW OR BY THE RECORD...................... 8

A. This Case Does Not Involve Transfer or Ex-

pansion of the Government’s Immunity

t meee Question #1 and Eschler Question .

SE a NEY Oe Pee Sa ee ne

B. The Third Circuit’s Decision Does Not Conflict

With the Decision of Any Other Court of Ap-

a. (Schoenborn Question #2 and Question

. oe ‘saa Circuit Did Not Review All of the

Evidence in a Light Most Favorable to Boeing

(Schoenborn Question #3 ) .............:ccceseseeeeeseeeeees 12

D. The Third Circuit Did Not Usurp the Function of

the Jury (Eschler Question #3 )................cc2eeeeee0- 12

E. This Case Does Not Present for Review Any Issue

Regarding the Separation of Powers Doctrine

(Eschler Question #2 ) Pe bo I 5 Si A 13

F. Compulsion as an Element of the Government

Contract Defense Is Not an Issue in This Case

( Escher Question $4) .......c.ccccccsccosscssssccssscoesceseees 13

G. Whether the Third Circuit Followed All of the

Law of Pennsylvania Is Not a Special and

Important Issue That Warrants Review by This

Court (Eschler Question #5 ) ..............cccccccsssseeeeees 14

ee cance caiecisanheinasincaseacrhinscnscoséensntanslienmecousaticane 14

i er Os eacetnk nena uabinochenensiatinamibt 1Sa

i

TABLES OF AUTHORITIES

CASES PAGE(S)

Brown v. Caterpillar Tractor Co., 696 F.2d 246

(3d Cir. 1982) 8, 9, 11, 13

Brown v. Caterpillar Tractor Co., 741 F.2d 656

(3d Cir. 1984) 8, 11, 14

~~ v. Colorado Serum Co., 772 F.2d 844 (llth Cir.

ASGS) secctinca 11

Bynum v. FMC Corp., 770 F.2d 556 (Sth Cir. 1985 )........ 10, 11

Ference v. Booth & Flinn Co., 88 A.2d 413 (Pa. 1952)............. 9

Feres v. United States, 340 U.S. 135 (1950).... 9

In re Air Crash Disaster at Mannheim, Germany on 9/1/82,

769 F.2d 115 (3d Cir. 1985) 4, 5, 7, 11, 12, 13, 14

Koutsoubos v. Boeing Vertol, 755 F.2d 352 (3d Cir. te

cert. denied, 106 S. Ct. 72 (1985) 8, 11

McKay v. Rockwell International Corp., 704 F.2d 444 (9th

Cir. 1983), cert. denied, 464 US. 1043. (1984)......... 8, 11, 13

Shafter v. United States, 273 F. Supp. 152 (S.D.N.Y. 1967),

aff'd, 400 F.2d 584 (2d Cir. 1968), cert. denied, 393 U.S.

1086 (1969) 10

Tillett v. J.I. Case Co., 756 F.2d 591 (7th Cir. 1985)....... 11, 13

United States v. Ortiz, 422 U.S. 891 (1975) ........sscssesssereesseees 11

Valley Forge Gardens, Inc. v. James D. Morrissey, Inc., 123

A.2d BEE (Pin. 1956) ccovnsissnssnsinarertihaniainaniiniaitisihiihesaatone 9

STATUTES AND REGULATIONS

Supreme Court Rule 17 ... 6, 12

Supreme Court Rule 21.1(1) ........ -

Supreme Court Rule 28.1 ibiaiiasdbindaaimabinhansineiicte 2

28 U.S.C. § 1332 ......... ienchiiioulbainedaaalidalataltisinialainns 2

28 USB.C. § SGROC) cscccccccnssecsesnnsicaciniaaaian an

OTHER AUTHORITIES

NATO Status of Forces Agreement (SOFA) ..............0ecc0ee00+ 10

NATO-SOFA, Article VIII(5), 4 U.S.T. 1792,

1906-6 ......00s.cccesssesaseessieenttennhaaiainaiaisinaiiaiianaaalial Appendix A

No. 85-685

No. 85-703

IN THE

Supreme Court of the United States

OcroBer TERM 1985

In RE AiR CRASH DISASTER AT

MANNHEIM, GERMANY ON SEPTEMBER 11, 1982

MDL 555

CHERYL ANN ESCHLER,

Petitioner,

Vv.

THE BOEING COMPANY,

Respondent

URSULA SCHOENBORN,

Petitioner

Vv.

THE BOEING COMPANY,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITIONS FOR WRIT OF CERTIORARI

Respondent The Boeing Company (“Boeing”) respectfully

submits that the Petitions for Writ of Certiorari should be

denied.

2

LIST OF PARTIES

_ Petitioners are identified in the two Petitions. Respondent

is Boeing.'

STATEMENT OF THE CASE

Neither Petition complies with Supreme Court Rule

21.1(i) which requires a showing of the basis for federal

jurisdiction in the court of first instance. In each of the cases

consolidated for trial in the United States District Court for the

Eastern District of Pennsylvania, subject matter jurisdiction was

founded solely on diversity of citizenship under 28 U.S.C.

§ 1332. Petitioners have never claimed sae existence of federal

question jurisdiction.

Petitioners’ Statements of the Case are otherwise in-

complete and inaccurate. They virtually ignore the undisputed

material facts which are contained in the Third Circuit’s

decision attached as Appendix A to the Schoenborn Petition.?

Summarized below are those and additional facts to correct the

more gross mischaracterizations and misrepresentations of the

record by Petitioners.

On September 11, 1982, a U.S. Army CH-47C “Chinook”

helicopter (Helicopter 22292) crashed near Mannheim, West

Germany. Although the Schoenborn Petition represents that

the helicopter was being used in a “civilian” capacity (Schoen-

born Petition at 3, 11, and 18), the uncontradicted record is

that the helicopter, which had been owned, maintained and

operated exclusively by the U.S. Army since 1974, was being

operated at the time of the accident by the U.S. Army during an

authorized U.S. Army mission.

1 Pursuant to Supreme Court Rule 28.1, Boeing states that all of its

current subsidiaries are wholly owned with the sole exception of Trans-

National Housing Association.

2Two Petitions for Writ of Certiorari have been filed. To avoid

confusion, the Petition filed in No. 85-703 will be referred to as the

Schoenborn Petition, whereas the one filed in No. 85-685 will be referred to

as the Eschler Petition.

3

Petitioners also ignore or obscure the key fact that the

accident was caused by the Army’s faulty overhaul and in-

spection of the helicopter’s forward transmission. The Army

itself determined that the transmission failed in flight because

jets which feed oil to the transmission became clogged by

walnut shell particles. Those particles had been introduced into

the transmission when it was cleaned and overhauled at the

Corpus Christi Army Depot. Use of walnut shells as a cleaning

abrasive was never approved by either Boeing or the appropri-

ate Army command and the practice was discontinued as a

result of this accident.

Petitioners also misrepresent the relative roles of Boeing

and the Army in the design of Helicopter 22292. Petitioners

repeatedly suggest that Boeing had broad discretion in the

design of Helicopter 22292, limited only by the Army’s general

performance and mission specifications. This is patently untrue.

The undisputed evidence, recognized as such by the Third

Circuit, was that Helicopter 22292 was built by Boeing under a

1974 defense contract issued by the U.S. Army Aviation

Systems Command and strictly in accordance with com-

prehensive, detailed specifications which the Army made part

of the contract. The specifications and incorporated engineer-

ing drawings spelled out the configuration of the forward

transmission and the drive shaft, including each and every

feature which Petitioners claim is defective. Boeing was

forbidden to deviate from the contract specifications. The

configuration of Helicopter 22292 could not be changed without

Army approval which could only be obtained after an elaborate

proposal and Army review process established by the contract.

4

Similarly, Petitioners claim that Helicopter 22292 was built

under a “purchase order” which “merely requested production

of the manufacturer’s pre-existing product.” Schoenborn Peti-

tion at 12.3 Here, too, Petitioners ignore both the uncon-

tradicted trial evidence and the Third Circuit’s holding. Rather

than being a product of Boeing’s “pre-existing” design,

Helicopter 22292 had a long history of Army involvement in its

design, as would be expected for amy sophisticated Army

weapons system. The Third Circuit correctly noted that the

design of the Chinook type helicopters was developed by

“Boeing and the Army” i= the 1960s. Jn re Air Crash Disaster

at Mannheim, Germany on 9/11/82, 769 F.2d 115, 118 (3d Cir.

1985). Moreover, the design of the particular Chinook in-

volved in this accident was “the culmination of years of

negotiations on earlier contracts for earlier models of the

Chinook.” Jd. at 124 n.10. The specific contract for Helicopter

22292 expressly provided that the Army retained final authority

over the design of the helicopter. Jd.

Petitioners also suggest that Boeing withheld from the

Army critical information concerning two 1966 accidents in-

volving Chinook helicopters. Petitioners imply that Boeing

alone investigated those accidents and withheld its findings

from the Army. In fact, Boeing personnel merely assisted the

Army’s investigation of the 1966 accidents. In each case,

Boeing submitted detailed reports and recommendations to the

Army. In each report, Boeing concluded that lubrication

starvation caused transmission failure which in turn caused

failure of the sync shaft. In 1967 Boeing recommended a

change in the design of CH-47 transmissions which would have

prevented this type of failure. The Army’s own civilian

3 The same blatant misrepresentation is repeated throughout both Peti-

tions. See, e.g., Schoenborn Petition at 4, 11, 15 and 18; Eschier Petition at 5,

14, 16, 20 and 23.

The Schoenborn Petition goes so far as to claim that the Chinook is the

same product which Boeing sold to civilian users like British Airways. In fact,

the reverse is true. Years after the Chinook was designed Boeing developed

the model 234 helicopter for certain civilian users. The model 234 differs

from the Chinook in numerous respects, most significantly in its transmission

lubrication system. The model 234 has a lubrication system which the Army

refused to install on the Chinook. This accident never would have happened

had the Army not made that decision.

5

engineers recommended the change. The Army command

nevertheless refused to adopt it. The uncontroverted evidence

at trial was that had the Army adopted this recommendation,

the Mannheim accident would never have happened

Petitioner Eschler’s argument on Question #5 further

claims there was inadequate clearance between the helicopter’s

sync shaft and the fuselage structure at Station 120. Eschler

Petition at 25. Both Petitioners make this claim elsewhere in

their Petitions. Only because it is repeated so many times in the

Petitions does Boeing feel it is necessary to respond by making

two observations. First, the clearance between the sync shaft

and Station 120 was mandated by the aircraft’s detail drawings

with which the Army required compliance. 769 F.2d at 123.

Petitioner Eschler acknowledges this uncontroverted evidence.

Eschler Petition at 25. Second, as the Third Circuit held,

knowledge about the tendency of the sync shaft to fail when it

hits structure “is irrelevant to the government contractor de-

fense in this case” because sync shaft contact with Station 120

could occur only after a massive transmission failure, something

the U.S. Army indisputably knew. 769 F.2d at 124-25. The

Mannheim accident was just such a failure. Everyone, in-

cluding Petitioners’ expert witness, agreed on that point. Peti-

tioners nevertheless obscure this key fact.

Finally, Petitioners’ arguments about what the jury did are

also misleading. The district judge allowed this case to be tried

as if Chinook helicopters were ordinary consumer products.

Applying Pennsylvania’s consumer products liability law (over

Boeing’s strenuous objections ), the district judge virtually com-

pelled the jury’s answers to the special verdict questions (there

was no general verdict). The district judge charged the jury:

If you find that the product, at the time it left the

defendant’s control, lacked any eleiment necessary to

make it safe for use ... , then the product was

defective. ...

His charge on negligence included this instruction:

If you find that product [sic] was defective, the

defendant is liable for all harm caused by such

defective condition.

6

Since Boeing itself had proposed a change in the design which

Boeing said was needed to make the helicopter safe, and the

Army rejected that change, the jury’s findings of defect and of

negligence were for all intents and purposes directed by the trial

judge.

REASONS FOR DENYING THE PETITIONS

SUMMARY OF ARGUMENT

The Petitions for Writ of Certiorari should be denied

because

I.

THERE ARE NO SPECIAL AND IMPORTANT

REASONS FOR GRANTING REVIEW ON WRIT

OF CERTIORARI IN THIS STATE LAW CASE

Il.

PETITIONERS’ QUESTIONS PRESENTED

FOR REVIEW ARE NOT RAISED BY

THE DECISION BELOW OR BY THE RECORD

ARGUMENT

L

THERE ARE NO SPECIAL AND IMPORTANT

REASONS FOR GRANTING REVIEW ON WRIT

OF CERTIORARI IN THIS STATE LAW CASE

None of the Supreme Court Rule 17 considerations gov-

erning review On certiorari is present in this case. Petitioners

are seeking review of the Third Circuit’s application of Pennsyl-

vania law in a diversity case. The Third Circuit, after reviewing

the entire trial record and drawing all inferences in favor of

>

Petitioners, held that Pennsylvania law does not impose tort

liability on the manufacturer of an aircraft for the U.S. Army

where the Army, exercising military judgment and with full

knowledge of the design of a critical component, not only

ordered the helicopter to the Army’s specifications, but also

specifically required the very design which was allegedly defec-

tive. Jn re Air Crash Disaster at Mannheim Germany on

9/11/82, 769 F.2d 115, 120 (3d Cir. 1985). That is all the

Third Circuit decided.

Significantly, Petitioners never claimed below that there is

a federal issue in this case. To the contrary, they sought and

obtained from the trial court a pretrial ruling that all issues in

this case would be governed by Pennsylvania law. Before the

Third Circuit they argued that “the Pennsylvania law of

government contractor defense was properly applied.”5 Only

after the Third Circuit concluded that Petitioners’ claims must

fail under “the Pennsylvania law of government contractor

defense” did Petitioners begin groping for a federal issue which

might be deemed worthy of consideration by this Court. Their

efforts in this regard are, to say the least, extreme. They raise

issues such as the scope of federal sovereign immunity which

are not even arguably raised by the record below or decided by

either of the courts below.

The Third Circuit merely applied reasonably settled Penn-

sylvania law to the facts of this case. The opinion is a sound

one and the record raises no question of federal law that might

jusufy review by this Court.

“In addition to the issue actually decided by the Third Circuit, Boeing

raised on appeal three other grounds for a judgment notwithstanding the

verdict and eleven grounds for a new trial. Given the Third Circuit's

disposition of the first ground of appeal, it was not necessary to address any of

these other fourteen issues. 769 F.2d at 120 n.6.

5 Brief of Appellees before Third Circuit at 17.

IL.

PETITIONERS’ QUESTIONS PRESENTED

FOR REVIEW ARE NOT RAISED BY THE

DECISION BELOW OR BY THE RECORD

Twice in the past two years this Court has declined review

of circuit court opinions involving the government contract

defense in Death on the High Seas Act cases where federal law

is applicable. See McKay v. Rockwell International Corp., 704

F.2d 444 (9th Cir. 1983), cert. denied, 464 U.S. 1043 (1984);

Koutsoubos v. Boeing Vertol, 755 F.2d 352 (3d Cir. 1985), cert.

denied, 106 S. Ct..72 (1985). Petitioners, having no federal

issue in this case, seek to raise federal issues which might have

been present in McKay and Koutsuubos. Whatever this Court’s

reasons were for denying review of those two cases, those same

reasons a fortiori justify denial of Petitioners’ efforts to seek

review vicariously of those federal issues in this state law case.

A. This Case Does Not Involve Transfer or Expansion of the

Government’s Immunity (Schoenborn Question #1 and

Eschler Question #1)

Both the Schoenborn and Eschler Petitions claim that the

Third Circuit’s opinion involves transfer or expansion of the

government’s sovereign immunity to include Boeing. Nothing

in the Third Circuit’s opinion warrants such an argument. The

Third Circuit did not hold that Boeing would be immune from

liability arising from its own conduct, such as a failure to

manufacture a product in accordance with government specifi-

cations. Rather, the Third Circuit applied Pennsylvania law in

holding that a contractor is not liable to persons injured by

design features which were mandated by government specifica-

tions. In so ruling, the Third Circuit acted consistently with its

own prior rulings under Pennsylvania law. See Brown v.

Caterpillar Tractor Co., 741 F.2d 656 (3d Cir. 1984) (“Brown

IT’); Brown v. Caterpillar Tractor Co., 696 F.2d 246 (3d Cir.

1982) (“Brown I”).

:

9

The Third Circuit’s opinion is also consistent with prior

Pennsylvania Supreme Court decisions. Those decisions

unequivocally state that the justifications for the defense are

privilege and efficiency, not any shared sovereign immunity as

Petitioners claim. Valley Forge Gardens, Inc. v. James D.

Morrissey, Inc., 123 A.2d 888 (Pa 1956); Ference v. Booth &

Flinn Co., 88 A.2d 413 (Pa. 1952). See also Brown I, supra, at

250-51. Indeed, the Pennsylvania Supreme Court in both

Valley Forge Gardens and Ference expressly recognized the

“hornbook law that the immunity from suit of the sovereign

state does not extend to independent contractors doing work for

the state.” 123 A.2d at 889; 88 A.2d at 414. Accordingly,

Petitioners’ claim that the Third Circuit’s opinion somehow

expanded sovereign immunity simply ignores clear Third Cir-

cuit and Pennsylvania Supreme Court authority to the contrary.

Petitioners further argue that expansion of sovereign

immunity is particularly unwarranted as to those claims

brought on behalf of civilians rather than U.S. Army service-

men. Petitioners reason that since the government’s immunity

under Feres v. United States, 340 U.S. 135 (1950), is limited to

servicemen, Boeing can only share the United States’ sover-

eignty with respect to claims on behalf of servicemen. See

Schoenborn Petition at 6-7; Eschler Petition at 12-13. This

reasoning suffers from two fatal flaws, however. First, as

already explained, the government contract defense under

Pennsylvania law is expressly based upon privilege and effi-

ciency rationales and “is distinct from the state’s sovereign

immunity.” Brown I, supra, at 251. Significantly, the plaintiffs

in both Valley Forge Gardens and Ference were civilians.

Second, the United States is immune against all of Peti-

tioners’ claims, not just those brought on behalf of US.

servicemen. This accident occurred in Mannheim, West Ger-

many. Since the United States has not waived its immunity

under the Federal Tort Claims Act for “any claim arising in a

foreign country,” the United States is immune against all

civilian claims arising from this accident. However, this does

$28 U.S.C. § 2680(k)

10

not leave the civilian plaintiffs uncompensated. The NATO

Status of Forces Agreement (SOFA)? establishes a mechanism

for compensating civilians who are injured or killed by Ameri-

can troops in Europe. Although the United States participates

in settlement of those claims, the remedy against the United

States under SOFA is exclusive. See, e.g., Shafter v. United

States, 273 F. Supp. 152 (S.D.N.Y. 1967), aff'd, 400 F.2d 584

(2d Cir. 1968), cert. denied, 393 U.S. 1086 (1969). The SOFA

treaty reflects the government’s considered decision that civil-

ians shall be compensated® under the treaty mechanism rather

than through litigation against the government. Therefore,

even if the Pennsylvania government contract defense were

based upon shared sovereign immunity, the civilians’ claims in

this case would still be barred by that defense.

B. The Third Circuit’s Decision Does Not Conflict With the

Decision of Any Other Court of Appeals (Schoenborn

Question #2 and Question #4)

The Schoenborn Petition contends that the Third Circuit

erred in applying Pennsylvania law rather than federal law with

respect to the tort liability of a government contractor. Citing

the Fifth Circuit’s recent decision in Bynum v. FMC Corp., 770

F.2d 556 (Sth Cir. 1985), which applied the government

contract defense under federal common law, Petitioner Schoen-

born then claims that the split in authority over whether state or

federal law controls justifies review of this case. Schoenborn

7 The relevant portions of Article VIII(5) of SOFA are set forth in

Appendix A to this brief.

® Petinoners describe the Third Circuit’s decision as one which will

“eliminate completely the legitimate claims of all civilians” by leaving them

without a remedy. Schoenborn Petition at 20; Eschier Petition at 11. This is

patently false. The SOFA treaty provides that “[c]laims shall be . . . settled

or adjudicated in accordance with the laws and regulations of [West

Germany].” Under the West German Air Traffic Law, the U.S. Army, as

owner and operator of a military aircraft, is automatically liable for full

compensable damages up to a statutory limit of 320,000 Deutsch Marks for

injury to or death of a civilian in a crash. Claims are processed by the

Defense Cost Office, an agency of the German government. The 320,000

Deutsch Marks limit on recovery is not applicable if the owner-operator is

guilty of gross negligence, as the U.S. government may have been in this case.

At the time of the trial all of the foreign civilian plaintiffs had filed

administrative claims with the Defense Cost Office.

11

Petition at 8-11. Petitioner buttresses this argument by sugges-

ting that the federal courts have followed widely differing

standards ‘* applying the government contract defense, resul-

ting in “total chaos.” Schoenborn Petition at 15. For three

distinct reasons this argument is without mezit.

First, as explained previously in this brief, Petitioners’

present claim that federal law on the government contract

defense applies in this action is diametrically opposed to the

position which they have heretofore taken in this litigation.

Before both the district court and the Third Circuit, Petitioners

strenuously and repeatedly argued for the application of Penn-

sylvania law. Brief of Appellees before Third Circuit at 17;

Appellees’ Petition for a Rehearing before Third Circuit at 10.

Because Petitioners’ argument for application of federal iaw is

being raised here for the first time, this Court should decline to

consider it. United States v. Ortiz, 422 U.S. 891 (1975)

Second, the Third Circuit, whatever its abstract view on the

question whether state or federal law should govern, specific-

ally held in this case that there is no conflict between them.

Since Boeing would not be liable under either Pennsylvania law

or federal law as articulated in Bynum, the question as to which

law governs is simply irrelevant.

Finally, the law in this area does not reflect “total chaos,”

notwithstanding Petitioners’ considerable efforts to create some.

To the contrary, the [Third Circuit’s opinion is thorough,

articulate and consistent with prior Third Circuit decisions and

governing decisions of the Pennsylvania Supreme Court. More-

over, the result is consistent with decisioz:s of the Fifth, Seventh,

Ninth and Eleventh Circuits in cases involving the government

contract defense under federal law or the laws of other states.

See Burgess v. Colorado Serum Co., 772 F.2 844 (11th Cir.

1985) (Alabama law); Tillett v. J.I. Case Co., 756 F.2d 591

(7th Cir. 1985) (Wisconsin law); Bynum v. FMC Coprp., supra

(federal law); McKay v. Rockwell International Corp., supra

(federal law); Koutsoubos v. Boeing Vertol, supra ( federal

law); Brown I and Brown II, supra (Pennsylvania law).

Petitioners may disagree with the approach taken by all five of

these circuits, but their claim that the opinions of these courts

represent “total chaos” could not be further from the truth.

12

C. The Third Circuit Did Not Review All of the Evidence in a

Light Most Favorable to Boeing (Schoenborn Question

#3)

The Schoenborn Petition makes the incredible allegation

that the Third Circuit based its decision on “facts interpreted in

the light most favorabie to the losing defendant.” See Schoen-

born Question Presented for Review #3; Schoenborn Petition at

11-13. This is preposterous. No circuit is more meticulous than

the Third in insisting that all factual issues be resolved by the

trier of fact. The Third Circuit in this case expressly noted that

entry of judgment in Boeing’s favor would be justitied “only

where, upon review of all of the evidence and drawing all

inferences in favor of the verdict winner, judgment for the

verdict loser is demanded as a matter of law.” 769 F.2d at 123.

To claim that the judges of the Third Circuit did otherwise

affronts the dignity and integrity of that court.

D. The Third Circuit Did Not Usurp the Function of the Jury

(Eschier Question #3)

Petitioner Eschler claims that in reviewing the evidence the

Third Circuit somehow usurped the function of the jury.

Eschler Petition at 15-20. This claim is similar to Petitioner

Schoenborn’s claim that the Third Circuit reviewed the record

improperly. See Section C of this brief, supra. The Third

Circuit opinion unequivocally states that it reviewed the trial

record and further identifies the proper standard utilized in that

review. In their Petition for Rehearing, the Petitioners invited

the Third Circuit to review that record again. Now they are

asking this Court to review all the trial evidence again. Particu-

larly where there is no federal question involved, a plea to

“review all the evidence again” certainly does not constitute a

“special and important” reason for granting a writ of certiorari.

See Supreme Court Rule 17.1.

13

E. The Case Does Not Present for Review Any Issue Regard-

ing the Separation of Powers Doctrine (Eschler Question

#2)

There is no issue for resolution in this case regarding

separation of powers. The Third Circuit held that Petitioners’

claims are barred by Pennsylvania law governing government

contracts, not by the federal separation of powers doctrine.

While the Third Circuit observed that separation of powers is a

proper concern in a design defect case involving military

weapons® (rather than consumer products) and this is one

justification for the defense under federal law, the Third Circuit

did not hoid that Petitioners’ claims are barred by that doctrine.

F. Complusion as an Element of the Government Contract

Defense Is Not an Issue in This Case (Eschler Question

#4)

Petitioner Eschler claims that Boeing cannot take advan-

tage of the government contract defense unless it was com-

pelled to produce a product in accordance with a particular

design. Eschler Petition at 21-23. Here again, Petitioners

would have this Court ignore the fact that this case was decided

(at Petitioners’ urging) under Pennsylvania state law. Under

that law, no showing of compulsion is required.'° Brown I,

supra, at 254. In any event, the Third Circuit conciuded that

Boeing was compelled by its contract with the Army to produce

Helicopter 22292 with the very design features which Petition-

ers claim are defective and without the transmission design

® Petitioner Eschler attempts to characterize this case as a simple

consumer product case not involving second-guessing of any military deci-

sions. Eschler Petition at 14. This characterization ignores the central and

undisputed fact that following two Army Chinook transmission failures in

1966 Boeing recommended a design change which would have prevented

similar failures, including the failure at Mannheim. The Army’s own civilian

engineers recommended the change, but the Army military command, for

reasons never disclosed, rejected that proposal. 769 F.2d at 125. Petitioners’

entire case draws into question that military command decision.

10 The Ninth Circuit has similarly determined that compulsion is not an

element of the defense under federal law. McKay v. Rockwell Int’l Corp., 704

F.2d at 450. The Seventh Circuit reached the same conclusion under

Wisconsin law. Tillett v. J. I. Case Co., 756 F.2d at 597. No federal circuit

court has ever held to the contrary.

14

change which Boeing and the Army civilian engineers recom-

mended, but the Army military command rejected. 769 F.2d at

. 124-25.

G. Whether the Third Circuit Followed All of the Law of

Pennsylvania Is Not a Special and Important Issue That

Warrants Review by This Court (Eschler Question #5)

Petitioner Eschler contends the Third Circuit should be

reversed because the court failed to apply “all of the applicable

law.” Eschler Petition at 24; Eschler Question #5. However, the

“applicable law” which Petitioner feels was not applied was the

Third Circuit’s own opinion in Brown II interpreting Pennsylva-

nia law. Eschler Petition at 24-25. The interpretation and

application of prior Third Circuit decisions is a function pecu-

liarly appropriate for the Third Circuit. Petitioners’ displeasure

over the outcome certainly does not create a special and

important issue that warrants review by this Court.

CONCLUSION

For the reasons set forth herein, the Petitions for Wnt of

Certiorari should be denied.

Respectfully Submitted,

STEVEN S. BELL

Counsel of Record

Barry J. REINGOLD

PERKINS COIE

1900 Washington Bldg.

Seattle, WA 98101

F. HASTINGS GRIFFIN, JR.

E. Davip CHANIN

DECHERT PRICE & RHOADS

3400 Centre Square West

1500 Market Street

Philadelphia, PA 19102

Attorneys for Respondent

The Boeing Company

15a

APPENDIX A

Article VIII(5) of SOFA provides, in relevant part:

Claims... arising out of acts or omissions of members of a

force or civilian component done in the performance of

official duty, or out of any other act, omission or occurrence

for which a force or civilian component is legally responsi-

ble, and causing damage in the territory of the receiving

State to third parties, . . . shall be dealt with by the

receiving State in accordance with the following provisions:

(a) Claims shali be filed, considered and settled or

adjudicated in accordance with the laws and regulations of

the receiving State with respect to claims arising from the

activities of its own armed forces.

(b) The receiving State may settle any such claims,

and payment of the amount agreed upon or determined by

adjudication shall be made by the receiving State in its

currency.

(c) Such payment whether made pursuant to a settle-

ment or to adjudication of the case by a competent tribunal

of the receiving State, or the final adjudication by such a

tribunal denying .payment, shall be binding and conclusive

NATO-SOFA, 4 U.S.T. 1792, 1806-08.