Opposition Brief — Dowd v. Textron, Inc.

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Supreme Court, US. ae

FILED

OCT 7 1986

JOSEPH F. SPANIOL, JR.

In the Supreme Court of the United States———

OCTOBER TERM, 1986” ~~

DONNA K. DOWD, etal. and

CATHERINE ELLIS, et al.,

- Petitioners,

vs.

TEXTRON, INC. and

BELL HELICOPTER TEXTRON, INC.,

Respondents.

On PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CourT OF APPEALS FOR

THE FourTH CrrcuIT

BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Of Counsel: CHARLES M. SHAFFER, JR.

JAMES M. FrrzSmvons Counsel of Record

James W. Hunt L. JOSEPH LOVELAND

MENDES & Mount Gary J. TOMAN

725 S. Figueroa Street JANE E. JORDAN

Los Angeles, California 90210 Kine & SPALDING

R. DAvip BROILES 2500 Trust Company Tower

Brown, HERMAN, SCOTT, Atlanta, Georgia 30303

Dean & MILES (404) 572-4600

Suite 203 Counsel for Respondents

Fort Worth Club Building

Fort Worth, Texas 76102

GEORGE GALERSTEIN

BELL HELICOPTER

TEXTRON, INC.

P.O. Box 482

Ft. Worth, Texas 76101

> E. L. MenDENHALL, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030 \ 4 \

‘

TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT .......00.000000002..... +

I. THE FOURTH CIRCUIT’S DECISION IN

THIS CASE IS CORRECT UNDER ANY

STANDARD FOR THE MILITARY CON-

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II. THERE WAS NO DEPRIVATION OF THE

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TABLE OF AUTHORITIES

Cases

Bynum v. FMC Corp., 770 F.2d 556 (Sth Cir. 1985) ... 4

In Re Air Crash Disaster at Mannheim, Germany, 769

F.2d 115 (3d Cir. 1985), cert. denied, 106 S. Ct.

UTE, A STII cnibcdbspodideshasoainiininingsaig aaaliaieeeiaa lei auebineahasiaeaaneuniics 4

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

cort. Genied, 166 G. C4. TE CEBBB) ..nnnce.-.nccceniccccsnees..-, 4

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

(9th Cir. 1983), cert. denied, 464 U.S. 1043 (1984)

Shaw v. Grumman Aerospace Corp., 778 F.2d 736 (11th

Cir.), petition for cert. filed, 54 U.S.L.W. 3632 (U.S.

pe 5 ener eT ny en 7,8

Tillett v. J.I. Case, 756 F.2d 591 (7th Cir. 1985) ........ 4

Tozer v. LTV Corp., 792 F.2d 403 (4th Cir. 1986) ........ 4,5

No. 86-379

In the Supreme Court of the United States

OCTOBER TERM, 1986

DONNA K. DOWD, et al. and

CATHERINE ELLIS, et al.,

Petitioners,

VS.

TEXTRON, INC. and

BELL HELICOPTER TEXTRON, INC..

Respondents.

On PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CouURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Respondents Textron, Inc. and its subsidiary, Bell

Helicopter Textron, Inc. (“Bell’’) respectfully submit this

Brief in Opposition to the Petition for Writ of Certiorari

in this matter.

STATEMENT OF THE CASE

This case involves the crash of an AH-1S(MC) Cobra

attack helicopter produced by Bell pursuant to a 1978

contract with the United States Army. The opinion of

the United States Court of Appeals for the Fourth Circuit

in this case is reported at 792 F.2d 409 and is included as

Appendix B to the Petition. Section I of that opinion

contains a concise and accurate summary of the relevant

facts. Respondents respectfully submit that the Fourth

Circuit’s statement of the facts is a far more accurate ac-

count than that set forth in the Petition.

In 1978 Bell and the United States Army entered into

a Modification Contract for the conversion of AH-1G

Cobras to AH-1S(MC) Cobras, a more powerful version

of the Cobra. The helicopter involved in this action was

one of those converted. Pursuant to that contract, the

Army specified that Bell install the 540 rotor system on

the helicopters, a two-bladed teeter rotor system with

which the Army had a great deal of experience prior to

1978. Indeed, as the Fourth Circuit noted, the Army’s

decision in 1978 to require installation of the 540 rotor

system on the AH-1S Cobra was made “in an atmosphere

of awareness and in the light of experience.” 792 F.2d

at 412.

Bell designed the 540 rotor system in the 1960’s and

“(t]he Army had been using helicopters equipped with

the teeter rotor system for some twenty years” before

the accident that gave rise to this suit. Id. Almost 9000

helicopters equipped with the teeter rotor system flew in

Vietnam, id., and the Army had investigated and analyzed

numerous incidents of mast bumping in helicopters equip-

ped with this rotor system. As early as 1973, the Army

prepared its own report on 46 accidents resulting from

mast bumping and concluded that the teetering rotor

system had inherently unstable characteristics. 792 F.2d

at 411.’

1. As the Fourth Circuit noted, mast bumping occurs when

the rotor dips at an extreme angle while the mast remains sta-

tionary, resulting in the hub of the rotor striking and perhaps

severing the mast. When this occurs, the rotor separates from

the mast and the helicopter cannot fly. 792 F.2d at 410.

During the 1970’s, Bell made various proposals to the

Army for possible modifications of the 540 rotor system

to reduce mast bumping. The Fourth Circuit noted that

“(t]he record suggests various reasons why the Army did

not adopt Bell’s proposed modifications: the modifications

were thought ineffective or too costly, or would have in-

terfered with the military mission of the helicopter by

impairing performance because of additional weight the

modifications might add.” 792 F.2d at 411. Moreover,

despite the risk of mast bumping in the 540 rotor system,

the statistical evidence demonstrated that such a two-bladed

teeter rotor system was safer than a non-teeter rotor sys-

tem. Whatever the Army’s ultimate reason, it made a

military judgment to continue use of the 540 system, and

Bell had no choice but to abide by that judgment.

Accordingly, in 1978 the Army and Bell entered into

a contract for the modification of AH-1G helicopters to

AH-1S helicopters with no significant change in the 540

rotor system. 792 F.2d at 411. As the district court rec-

ognized and the Fourth Circuit noted, under this contract,

“the Army did not request or order installment of any of

the available safety devices mentioned above, despite know-

ing something of the existence and/or efficacy of these

devices; and finally, Bell was not allowed under the con-

tract to install such devices without the permission of the

Army.” 792 F.2d at 412.

The record clearly demonstrates that the United States

Army made an informed judgment in 1978 to continue to

install the 540 rotor system on attack helicopters designed

to accomplish sophisticated military objectives. It is within

the context of this judgment that petitioners’ argument

must be assessed.

REASONS FOR DENYING THE WRIT

I. THE FOURTH CIRCUIT’S DECISION IN THIS

CASE IS CORRECT UNDER ANY STANDARD

FOR THE MILITARY CONTRACTOR DEFENSE.

While the Petition contains.a vigorous assault upon

the decision of the Fourth Circuit, petitioners fail alto-

gether to offer this Court any reasonable standard for the

military contractor defense that would not compel entry

of judgment for respondents. Respondents respectfully

submit that, under any standard for the military contractor

defense adopted by the various Circuit Courts, the con-

clusion that respondents were entitled to judgment is

correct.

The Fourth Circuit adopted a standard for the military

contractor defense substantially identical to the standard

previously adopted by the Third, Fifth, Seventh, and Ninth

Circuits. See McKay v. Rockwell International Corp., 704

F.2d 444, 449-50 (9th Cir. 1983), cert. denied, 464 U.S. 1043

(1984); Koutsoubos v,. Boeing Vertol, 755 F.2d 352, 354-55

(3d Cir.), cert. denied, 106 S. Ct. 72 (1985); Tillett v. J.I.

Case, 756 F.2d 591, 597 (7th Cir. 1985); In Re Air Crash

Disaster at Mannheim, Germany, 769 F.2d 115, 121 (3d

Cir. 1985), cert. denied, 106 S. Ct. 851 (1986); Bynum v.

FMC Corp., 770 F.2d 556, 565 (5th Cir. 1985); Tozer v.

LTV Corp., 792 F.2d 403, 408 (4th Cir. 1986). As orig-

inally set forth in McKay, a military contractor is insulated

from liability for injuries to servicemen arising from al-

leged design defects in military equipment if:

(1) The United States is immune from liability under

Feres and Stencel, (2) the supplier proves that the

United States established, or approved, reasonably

precise specifications for the allegedly defective mil-

itary equipment, (3) the equipment conformed ito

those specifications, and (4) the supplier warned the

United States about patent errors in 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. The Fourth Circuit, like the Third, Fifth,

and Seventh Circuits before it, adopted the McKay stan-

dard virtually unchanged in a decision announced the

same day as the decision in this action, Tozer v. LTV

Corp., 792 F.2d 403 (4th Cir. 1986), and applied that stan-

dard in this case.

It is difficult to determine from the Petition whether

petitioners are challenging the legal standard adopted by

the Fourth Circuit for the military contractor defense or,

instead, are simply arguing that the standard was mis-

applied by the Court in this case. In either event, how-

ever, petitioners would be incorrect.

Focusing upon the legal standard adopted by the

Fourth Circuit, petitioners actually appear to embrace the

standard for the military contractor defense set forth in

McKay. See Petition, at 14. Petitioners apparently be-

lieve that the McKay standard is correct, but that the

Fourth Circuit altered it by removing the burden of proof

from the defendant. This is patently incorrect. The

Fourth Circuit expressly held that “[t]o avoid liability

under the military contractor defense, Bell must demon-

strate that it has met the requirements outlined in Tozer.”

792 F.2d at 411. (Emphasis added). Based on a careful

review of the record, the court concluded that Bell had

met its burden of proving each of the elements of the

defense.’

To the extent that petitioners are challenging the

application of the military contractor defense to the facts

of this case, their argument is also incorrect. Petitioners

focus upon the original design of the 540 rotor system

in the 1960’s, rather than upon the 1978 contract that

led to the production of the AH-1S(MC). The Fourth

Circuit correctly rejected petitioners’ arguments in this

regard. There is no question but that Bell originally

designed the 540 rotor system. By the time the 1978

contract was executed, however, the United States Army

was intimately familiar with the 540 rotor system based

on twenty years of service in thousands of helicopters.

The Fourth Circuit correctly determined that the informed

decision by the Army in 1978 to install the 540 rotor sys-

tem on the AH-1S(MC) was the proper point for eval-

uating the application of the military contractor defense,

and petitioners offer no reason why this determination

should be reversed by this Court.’

2. At another point, petitioners appear to assert that a

military contractor should only be insulated from liability when

it can establish that it was compelled by the government to

design and manufacture a product in a particular manner. See

Petition, at 12-13. Not only does this argument rely on outdated

legal authorities, but, more importantly, it does nothing to aid

petitioners. Under the 1978 contract at issue in this case, it is

clear that Bell was in fact compelled to install the 540 rotor

system, without modification, to the helicopter involved in this

case.

3. Petitioners also devote a great deal of attention to the

fact that the 540 rotor system was patented by Bell when it

was originally developed, although the purported legal signif-

icance of this fact is unexplained. Given the Fourth Circuit’s

correct determination that the 1978 contract was the proper point

for evaluating the military contractor defense, the fact that

the design was patented by Bell is irrelevant to determining

whether Bell established the elements of the defense.

Significantly, even the district court agreed that, if

the 1978 decision of the Army controlled, the military

contractor defense would insulate Bell from liability in this

action. Indeed, the district court explained that, if the

case were viewed by reference to the 1978 contract, “this

case would never have gone to-trial. There was never

any contention that Bell was negligent in the mere act of

installing this particular rotor system pursuant to the modi-

fication contract.” (Memorandum opinion, Appendix A

to Petition, p. 8). Like petitioners, however, the district

court erroneously focused on the original design of the 540

rotor system. The Fourth Circuit rejected this approach,

reasoning that “[i]f, as the district court intimated, design

of the original equipment fixed Bell’s negligence for the

indefinite future, Bell’s incentive to propose safety modi-

fications for its product might will be undermined. Much

machinery undergoes safety refinements during the course

of its useful life, and we see every reason to encourage

such an evolution in military equipment.” 792 F.2d at

412. Thus, the Fourth Circuit concluded that the proper

focus was upon the 1978 contract.

Finally, respondents are aware that the Eleventh Cir-

cuit Court of Appeals has established a standard for the

military contractor defense that is markedly different from

that set forth in McKay and adopted by the Fourth Circuit

in Tozer and this case. See Shaw v. Grumman Aerospace

Corp., 778 F.2d 736 (11th Cir.), petition for cert. filed, 54

U.S.L.W. 3632 (U.S. Mar. 17, 1986) (No. 85-1529).4 Even

4. Respondent Bell Helicopter Textron, Inc. is one of the

amici curiae who have submitted a brief in support of Grumman

Aerospace Corporation’s pending petition for certiorari in Shaw.

As explained in that brief, the Shaw standard for the military

contractor defense is completely unworkable when applied to a

(Continued on following page)

if,

ulder the standard set forth in Shaw. however, the military

contractor is insulated from liability if it proves “that it

timely warned the military of the risks of the design and

notified it of alternative designs reasonably known by the

contractor, and that the military, although forewarned,

clearly authorized the contractor to proceed with the dan-

gerous design.” 778 F.2d at 746 (emphasis in original).

When applied to the 1978 contract at issue in this case,

the Shaw standard is met. This case does not involve

a design contract for a new product, but instead involves

a decision by the military to order installation of a com-

ponent part with which it had substantial experience. As

the Fourth Circuit explained, the United States Army was

fully aware of the possible dangers of the 540 rotor system

in 1978, having conducted its own detailed investigation

into the causes of mast bumping, and Bell clearly notified

the Army of modifications that could be made to the 540

rotor system. Nonetheless, the Army chose to require the

installation of the unmodified 540 rotor system in the

AH-1S(MC). Thus, even under the standard of Shaw, the

Fourth Circuit’s judgment in this case was unquestionably

correct.

In summary, the Fourth Circuit decided, based on

the uncontroverted facts in the record, that the decision

of the United States Army in 1978 to require installation

of the 540 rotor system in the AH-1S(MC) Cobra was

the critical event for determining application of the mil-

Footnote continued—

contract for the design of a weapons system, because it mandates

judicial second-guessing of the military’s knowledge and expertise

in deciding whether to accept a design. The present case is

substantially different, however, based on the Army’s extensive

experience with the 540 rotor system, and the Army’s undisputed

knowledge of the problem of mast bumping, before entering into

the contract at issue.

itary contractor defense. Petitioners offer this Court no

reason to reject this legal conclusion. Respondents sub-

mit that they established the elements of the military

contractor defense as a matter of law with regard to the

1978 contract, and the Fourth Circuit’s determination that

judgment should be entered in respondents’ favor should

not be disturbed.

II. THERE WAS NO DEPRIVATION OF THE RIGHT

TO TRIAL BY JURY.

Petitioners’ suggestion that the Fourth Circuit’s deci-

sion deprived them of the right to trial by jury is not

only unsupported in petitioners’ argument, but is absurd

on its face. As noted above, even the district court rec-

ognized that, if the proper focus were the 1978 contract,

“this case never would have gone to trial.” There simply

was no issue to be tried when the elements of the military

contractor defense were evaluated by reference to the

Army’s 1978 decision. Accordingly, once the Fourth Cir-

cuit determined that the Army’s 1978 decision was the

controlling event, the entry of judgment in favor of re-

spondents was clearly correct.

CONCLUSION

For the reasons set forth above, respondents respect-

fully submit that the petition for a writ of certiorari

should be denied.

Respectfully submitted,