Petition for Writ of Certiorari — Kleemann v. McDonnell Douglas Corp.

Supreme Court brief1990

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89-1510 | ie 2 ue

JOSEPH SPANIOL, JR,

cia

IN THE

Supreme Court of the Gnited States

October Term, 1989

CAROL ANNE KLEEMANN, et al.,

Petitioners,

McDONNELL DOUGLAS CORPORATION,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Robert S. Cooper, Jr.

LAW OFFICES OF

ROBERT S. COOPER, JR.

Woodstock, Route 14

Post Office Box 190

Port Haywood, Virginia 23138

(804) 725-9207 / 725-3937

Counsel for Petitioners

Appellate Printing Services * Heritage Building * Suite 908 * Richmond, VA 23219 * (800) 642-7789

QUESTIONS PRESENTED FOR REVIEW

Is a design defect in military equipment, resulting solely

from contractor negligence, thereby concealed from the

Government, rejected when discnvered, subject to the

Boyle government contractor defense?

Is conflict between the application of state law and the

significant government interest or policy as defined in

Boyle a_ prerequisite to the application of the

government contractor defense?

Did the Court of Appeals err in defining the first two

elements of the Boyle defense, thereby finding Navy

approval and product conformity when approval is legally

precluded and the design feature in question was

condemned by the Navy for non-conformity?

Does the Boyle government contractor defense, when

raised by Motion for Summary Judgment require that

Plaintiff prove non-conformity to the government

approved specifications?

Did the Fourth Circuit err in disregarding mandatory

statutory and binding authority in its affirmance of

summary judgment pursuant to F.R.C.P. 56?

II.

LIST OF PARTIES

Petitioners/Appellants/Cross-Appellees/Plaintiffs

CAROL ANNE KLEEMANN, As Surviving Spouse of

Captain HENRY M. KLEEMANN and Personal

Representative of His Estate

KATHERINE M. KLEEMANN, Minor Child of Captain

and Mrs. Kleemann

MICHAEL ANDREW KLEEMANN, Minor Child of

Captain and Mrs. Kleemann

SUSAN E. SEIDEN, Major Child of Mrs. Kleemann and

Step-Child of Captain Kleemann

STEVEN S. S. SEIDEN, JR., Major Child of Mrs.

Kleemann and Step-Child of Captain Kleemann

Respondent/Appellee/Cross-Appellant/Defendant

McDONNELL DOUGLAS CORPORATION

II.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ........... i

EE ii

es, ee iii

ge ee re vi

a 1

STATEMENT OF JURISDICTION ................. 1

CONSTITUTIONAL PROVISIONS AND STATUTES

ES ee 1

weeneeeeeen Ge Bete CASE ... 1... ce ee eee eee 2

REASONS FOR GRANTING THE WRIT ........... 4

1. The Importance Of The Issues Presented ....... a

2. The Panel’s Extension Of The Government

Contractor Defense To A Design Feature Solely

Attributable To Contractor Fault Or Negligence

Is In Irreconcilable Conflict With Boyle And

Decisions Of The Other Circuits ............. 7

A. The Significant Conflict Analysis Per

EE 8

B. The Panel Extended The Protection Of

The Defense To A Contractor Whose

Product Admittedly Breached The

Government’s Design Specifications ....... 11

ili

C. The Panel’s Opinion Has Immunized A

Contractor For A Design Defect For

Which The Government Would Be

Liable Had It Designed The

EP SSI woe ee Sine ee ness 12

3. The Fourth Circuit’s Definition And Application

Of The First Two Elements Of The Boyle

Limiting Criteria Are In Direct Conflict With

This Court’s Decision In Boyle As Well As

Decisions Of The Other Circuits ............ 13

A. There Neither Was Nor Could Be Boyle

Approval Of The Design Feature In

Question By The Navy ................ 13

B. The Court Of Appeals Erred In

Restricting The "Reasonably Precise

Specifications” To The Working Drawings... 15

C. The Panel’s Definition Of Conformity Is

Inconsistent With The Function Of The

First Two Limiting Criteria Adopted In

ee ee ee Oe ee oe. 17

D. Does The Boyle Government Contractor

Defense, When Raised By Summary

Judgment, Shift The Burden Of Proof

To The Plaintiff To Show That The

Equipment Does Not Conform To

MN So ee yeu rs yo". 18

E. The Key To Understanding The Panel’s

PC ken baer eer rere 19

4. The Court Of Appeals, In Affirming

The District Court’s Granting Of

Summary Judgment, Has Itself |

Disregarded Mandatory Statutory |

Provisions in F.R.C.P. 56 And Binding

oe EE eS eg ny nee 20 |

‘93 Oh. 4 er a ee ae ee oa 24

APPENDIX:

A) Panel Opinion of the Fourth Circuit ..... A1-10

B) Opinion of the District oe ee eee B1-4

C) Report and Recommendation of the United

States Magistrate .....----- eee errs C1-8

D) Order of the Fourth Circuit Denying Rehearing

with Suggestion of Rehearing En Banc .... D1-2

E) Judgment of the District ores re. El

F) Constitutional Provisions and Statutes

Perey Te es ee ee F1-2

G) Department of the Navy Letter and "Request

for Corrective Action” to McDonnelle Douglas

Corporation dated September 18, 1987 .... Gl-2

H) Excerpts from the Deposition Testimony of

Mr. David L. Bourisaw, with exhibit8 .... H1-6

1) Excerpts from the Deposition Testimony of

Mr. Robert W. Palmer ....--------+0:> 11-3

J) Excerpts from the Deposition Testimony of

Mr. Dennis Gendreau .....------+-++°? Ji

K) Excerpts from the Deposition Testimony of

Mr. Glen Kirland ......----+-eeeecree? Kl

TABLE OF AUTHORITIES

PAGE

U.S. Supreme Court Cases:

Adickes v. S. H. Kress & Co., 398 U.S. 144,

90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ............ 22

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) .......... 7,22

Andrus v. Charlestone Stone Products Co., 436 U.S.

604 98 S.Ct. 2002, 56 L.Ed.2d 570 (1978) ......... 13

Amett v. Kennedy, 416 U.S. 134, 98 S.Ct. 1633,

ET ee ce eet ccewseees 7,22

Automatic Radio Mfg. Co. v. Hazeltine, 339 U.S.

827, 70 S.Ct. 894, 94 L.Ed. 1312 (1950) .......... 22

| Berkovitz v. United States, 486 U.S. 531

108 S.Ct. 1954, 100 L.Ed. 531 (1988) ............ 14

Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074,

ee 7

Boyle v. United Technologies Corp., 487 U.S. 500,

108 S.Ct. 2510, 101 L.Ed.2d 442 (1988) ..... 3,4-11,13-18

Celotex Corp. v. Catrett, 477 U.S. 317, 106

S.Ct. 3541, 91 L.Ed.2d 265 (1986) .............. 19

Church of Scientology of Cal. v. I.R.S., 484

U.S. 9, 108 S.Ct. 271, 98 L.Ed.2d 228 (1987) ....... 13

Feres v. United States, 340 U.S. 135, 71 S.Ct.

I EOD cv bse ec cccecucees 12

Indian Towing Co. v. The United States, 350 U.S.

61, 106 S.Ct. 1348, 100 L.Ed. 538 ............ 5,12,14

Matsushita Elec. Indus. Co. v. Zenith Radio Co.,

475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed. 538 (1986) .... 7

Memphis v. Greene, 451 U.S. 100, 101 S.Ct. 1584,

em be OF). rr or ree 21

Miree v. DeKalb County, 433 U.S. 25, 97 S.Ct. 2490,

BR Ob 8 ee er ee 10

Mobil Oil Co. v. Federal Power Comm’n., 417 U.S. 283,

94 S.Ct. 2328, 41 L.Ed.2d 72 (1974) ............. 21

Poller v. Columbia Broadcasting Sys., Inc., 368 U.S.

464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) .......... 22

Richards v. United States, 369 U.S. 1, 82 S.Ct. 585,

7 Ee rect ee 5

U.S. v. Diebold Inc., 369 U.S. 654, 82 S.Ct. 993,

"ee res 22

U.S. Court of Appeals Cases:

Antonio v. Barnes, 464 F.2d 584 (4th Cir. 1972) ......... 23

Arguelles v. U.S. Bulk Carers, 408 F.2d 1065

(4th Cir, 19GB) 20. cere c reer eer cesene 21,23

Buxton v. Plant City, Fla., 871 F.2d 1037

(UGG Cie. BUD oc 5 cc cette sec cn sersen ees 23

Bynum v. F.M.C. Corp., 770 F.2d 556,

2 a. re 7,9,11,18

Goldstein v. Kelleher, 728 F.2d 32

to? Se eee rere re eee ee 23

Harduvel v. General Dynamics Corp., 878 F.2d

cope: Ce Ae. | rr es oe 16,17,18

vii

Joint Eastern and Southern District of New York

Asbestos Litigation, etc., et al v. Eagle-Pitcher

Industnes, Inc., 1990 West Law 17927,

Re! gi 8 Serer 8,9,11,14,17

Koutsoubos v. Boeing Vertol, 755 F.2d 352

EY ae erg 6a ek eS wp aie 8 ore hee 18

Leslie v. Ingram, 786 F.2d 1533 (11th Cir. 1986) ......... 23

McGonigal v. Gearhart Indus. Inc., 851 F.2d

be NN a a er 18

Nielson v. George Diamond Vogel Paint Co.,

Se Fae 1450 (re Ce. TO)... see 6,8,9,11,18

Ross v. Communications Satellite Corp.,

pe ow Be rae 23

Shaw v. Grumman Aerospace, 778 F.2d 736

(11th Cir. 1988), cert. denied 108 S.Ct.

que, 101 LO oe GE CIS) Sw. ww. wes, 15,16,17

Smith v. Xerox, 866 F.2d 135 (Sth Cir. 1989) ........ 6,16,19

Stearns v. Hertz, 326 F.2d 405 (8th Cir. 1964) .......... 23

Trevino v. General Dynamics Corp., 865 F.2d

1474 (Sth Cir. 1989), cert. denied 110 S.Ct.

I bc eas ae asa 6 oe a 8S 6-9,11,14,17,18

Williams v. Borough of West Chester, Pa,

Bee ge Be ee 7,19,22

U.S. District Court Cases:

Peng-Fei Chang v. University of Rhode Island,

soe Pee. 1s (BR. BA YS8S) .. ee ess 23

vill

Ramey v. Martin-Baker, et al, 656 F.Supp. 984

(D.Md. 1987), affirmed 874 F.2d 946

Cf 3 ere ee ee ee 16,19

_— v. ITT, 690 F.Supp. 1331 (S.D. N.Y. 1988) ........ 18

State Supreme Court Decisions:

Barker v. Lull, 20 Cal.3d 413, 573 P.2d 443,

oe Re ee ee er 10

Peterson v. Lamb Rubber Co., 54 Cal.2d 339,

353 P.28 375, 3 CalRptr G65 (1960) ...........:5. 10

Rules & Statutes:

Ts ener hbo ek ew Gece ae wee ad ace 8 oc Slee 1

Se a I ho a 6 oo ek Oe ed ces eee 3

eg er ee ee ee ae ee 5,8,12

ee I oh aoalls 5-0 a Oke Aree ow ween eae 1,5,8

eg a eee eS Pare ie ra area eee 20,21

ee es ee Fees ee Gohan s 1,19

a ee eae kee ec awe eed Goer eee 1,21

OG, Ces ae PU, PU. © BS anc oi hee ew ee 10

Constitutional Provisions:

ee ee eek ke awn we eee 1,5,12

es ne egg be we wee a aie at atal ee 1,23

Other Sources:

Barton, Millard V., "Fundamentals of Aircraft

Structures", Prentice-Hall (1948) .....

Bruhn, et al, "Analysis of Flight Vehicle

Structures", Tri-State Offset Company

Or eee ae

Congressional Record, December 10, 1985,

"Captain Henry M. Kleemann, American

ae i

Wright, Miller & Kane, Vol 10A

"Federal Practice & Procedure” § 2726

Wright, Miller & Kane, Vol 10A

"Federal Practice & Procedure" 5 2727

Wright, Miller & Kane, Vol 10A

"Federal Practice & Procedure" 5 2734

Wright, Miller & Kane, Vol 10A

"Federal Practice & Procedure” § 2739

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Fourth Circuit is reported at 890 F.2d 698 (4th Cir. 1989) and is

reproduced in Appendix A.

The opinion of the United States District Court for the

District of Maryland is unreported and is reproduced in Appendix

The Magistrate’s Report and Recommendation is unreported

and is reproduced in Appendix C.

The Fourth Circuit’s denial of panel rehearing and rehearing

en banc is unreported and is reproduced in Appendix D.

The judgment of the District Court is reproduced in

Appendix E.

STATEMENT OF JURISDICTION

This Court has Certiorari jurisdiction pursuant to 28 U.S.C.

1254 (1). The judgment of the Fourth Circuit Court of Appeals

was entered on December 6, 1989.

Plaintiffs’ Petition for Rehearing with a Suggestion for

Rehearing en banc, was denied December 29, 1989. This petition

was filed within ninety days thereof.

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

This case involves the “discretionary function exception” to

the Federal Tort Claims Act, 28 U.S.C. §2860(a); Article I, Section

1, United States Constitution; the Seventh Amendment Right to

Trial by Jury; United States Constitution Amendment VII; and

Rules 56(c) and (e) of the Federal Rules of Civil Procedure. The

full texts of these provisions are reproduced in Appendix F.

STATEMENT OF THE CASE

On December 3, 1985, United States Navy Captain Henry M.

Kleemann was killed when the F/A-18 aircraft he was landing went

out of control, departed the runway and overturned. (337).' The

Navy concluded that the accident was primarily caused by a failure

of the aircraft’s right main landing gear planing link assembly.

(267).

The McDonnell Douglas Corporation ("MDC") participated

in the design of the Navy’s F/A-18 aircraft. After deciding on the

type or style of landing gear required (390), MDC selected a

subcortractor, Cleveland Pneumatics Corporation ("C.P.C."), to

design and manufacture it. (221).

C.P.C.’s design of the landing gear incorporated a planing

assembly comprised basically of a planing link and axle lock

linkages. (491-493).

The planing link, through lock links, controls alignment of

the aircraft’s main wheels. When locked, the wheels are aligned

or "planed" in the same direction as the aircraft. When unlocked

the wheels "deplane" or move out of that alignment. Deplaning

should occur only during gear retraction. (491-493).

Contrary to the panel’s finding, there is no evidence that the

Navy or anyone else participated in the design of the planing link

(415-416); or that the Navy evaluated C.P.C.’s relevant design

choices prior to 1986-1987. (513-515).

Following the accident, and several intervening incidents, a

specially appointed team of MDC engineers (584) discovered a

serious flaw in C.P.C.’s design of the planing link. (552-556; 562-

563). Reduced to basics, C.P.C. failed to properly identify the

loads that the planing link would be subjected to during certain

type landings. (541-563). This resulted in an inadequate structural

design of the planing link? Redesign was recommended. (563-

564).

It was this design deficiency that caused the planing link

failure on the accident aircraft which permitted the right main

' Numbers in parentheses are references to the joint appendix utilized in the

Court of Appeals

2 The deficiency was too little cartridge stroke, which permits the planing link

to unlock the axle lock links when it should keep them locked. (574-577).

landing gear wheel to move abruptly out of proper alignment while

the aircraft was landing on a wet runway, with resultant loss of

control and runway departure. (287-290; 344-351; 543; 553-554;

562).

Meanwhile the Navy, apparently unaware of MDC’s finding,

conducted its own engineering investigation. (307-311). Based

thereon the Navy determined that the F/A-18’s main landing gear

planing link and associated lock linkages were simply too weak to

withstand normal landing loads (260-261, 307-311), and that this

violated the Navy’s contractually imposed design specifications with

regard to service life. (260-261). It also violates strength,

deformation, deflection and other contractually imposed Navy

design requirements. (346-350).

On September 18, 1987, the Navy formally demanded

redesign, production incorporation, and fleetwide retrofit at no

increase in contract price. (260-261). MDC accordingly

redesigned the planing link, agreed to production incorporation

(399), but balked at the Navy’s redesign classification and the

extent of retrofit demanded by the Navy on contractual grounds.

(397).

Captain Kleemann’s family then filed suit in the United

States District Court for the District of Maryland against MDC

claiming that the aircraft was negligently designed and tested, that

as delivered it was defective, and that Defendant had breached

express and implied warranties of fitness arising out of its Navy

contract upon which Decedent was entitled to rely. Jurisdiction

was based on 28 U.S.C. 1332 (1976).

While expert discovery was ongoing, Defendant filed a

motion for summary judgment based on the government contractor

defense enunciated by this Court in Boyle v. United Technologies

Corporation, 108 S.Ct. 2510 (1988). (36-37; 38-63).

Plaintiffs responded, denying that MDC was entitled to

invoke the defense because it had breached its contract in that

the design of the planing link did not conform to the Navy

approved specifications. (72-105). Plaintiffs moved by way of

cross-motion for a judgment on the issue of the inapplicability of

the defense to this case. (106).

In its response MDC contended that all it was required to do

was deliver the aircraft with all the "mechanisms" shown on the

specifications. (109).

The United States Magistrate recommended that the

Defendant’s motion be granted. (Appendix C-8). On appeal, the

District Court adopted the Magistrate’s report in full and dismissed

Plaintiffs’ suit. (Appendices B-1,4 & E-1).

Plaintiffs appealed to the Fourth Circuit alleging the full

panoply of errors in the District Court’s decision.

The Fourth Circuit Court of Appeals affirmed the decision

of the District Court. The panel, reduced to two by the death of

Judge C. F. Haynesworth, Senior Circuit Judge, rejected Plaintiffs’

contention that this case falls outside the ambit of the defense

because the "nature of the product” and "characteristics of the

design process" determine applicability. (Appendix A-4).

The panel rejected Plaintiffs’ contention that the Navy itself

determined the planing link violated the Navy’s design

specifications by holding that Plaintiffs relied on an earlier

1983/1984 Notice of Defect ("NOD") which was closed out by the

Navy in May of 1985°

The panel improperly found Navy approval by participation

and review, limited the reasonably precise specifications to the

"working drawings", defined conformity as the absence of deviations

in configuration, i.e. mismanufacture, and found no record evidence

of non-conformity as defined by it.

A petition for rehearing with suggestion for rehearing en

banc was filed December 20, 1989, and denied December 29, 1989.

REASONS FOR GRANTING THE WRIT

THE IMPORTANCE OF THE ISSUES PRESENTED

The importance of the issues presented herein cannot be

overstated.

The panel’s decision presents issues of extraordinary national

importance.

> This is, of course, incorrect. Plaintiffs do not rely on the 1983/1984 Notices

of Defect. Plaintiffs rely on a Navy “Request for Corrective Action” dated

September 18, 1987. MDC redesigned the planing link as a result of this "Request

for Corrective Action". The Request is still open because of disagreement over the

classification of the redesign and the extent of MDC’s retrofit liability. (402). A

copy of the 1987 Request is attached as Appendix G.

They run the gamut from federalism, to separation of powers,

to the liability of government contractors, to the infringement of

the right to trial by jury through improper use of summary

judgment procedure.

First, in finding the defense applicable to a situation devoid

of federal interest, the opinion presents issues inherently embodied

in concepts of federalism, i.e. the interplay between state and

federal law, essential to the proper functioning of the federal

system. In Boyle, this Court struck a very careful balance between

the interest protected by state and federal law by defining an

indispensable prerequisite for application of this defense which, if

respected, insured the balance would not be disturbed.

The panel, by substituting its own applicability standard, has

swept this away, upsetting the balance between the competing

federal and state interests therein struck.

Boyle was equally careful to ground the defense on a legal

basis that, if followed, would not infringe upon the powers

delegated to Congress in the Constitution. This is because Boyle

itself is ultimately based on an act of Congress.

Under Boyle, when the case falls within the defined scope of

the defense and the limiting criteria are satisfied, the contractor is

entitled to immunity to the extent that the United States would be

immune under the "discretionary function exception" of the Federal

Tort Claims Act ("FTCA") 28 U.S.C. 2860(a). No less, and

assuredly no more. Where the discretionary function exception

does not apply, the United States is subjected to liability under

"the law of the place where the act or omission occurred". 28

U.S.C. 1346(b). The United States is not entitled to a further

displacement of state law. Richards v. United States, 369 U.S. 1,

10-11 (1962). And, neither is a government contractor.

The panel’s opinion, by focusing on its perception of

governmental participation in the overall design and development

process, rather than on the specific conduct involved with regard

to the particular design feature in question, has extended a greater

degree of immunity to a government contractor than is enjoyed by

the United States. This involves not only a disregard of binding

authority, see e.g. Indian Towing Co. v. United States, 350 U.S. 61

(1955), but also a frank invasion of the powers reserved to

Congress in Article I, Section 1 of the Constitution of the United

States.

Next the panel’s decision, by misdefining the first two

elements of the limiting criteria adopted in Boyle, thereby all but

abolishing civil liability of government contractors for defectively or

negligently designed military equipment, will have a profound

national effect.

The decision below, if upheld, will bar the claim of every

citizen who is killed or injured by a defectively or negligently

designed product, designed and built under government contract,

whether the existence of the defect was negligently concealed from

the Government or not.

Next presented are issues concerning the proper definition

and application of the elements of the defense.

Following the Boyle decision, many commentators were

concerned by the number of issues left unresolved therein. See

articles listed in Nielson v. George Diamond Vogel Paint Co., 892

F.2d 1450, 1453 (9th Cir. 1990). Similar observations appear in

the case law; see Smith v. Xerox, 866 F.2d 135, 137 (Sth Cir. 1989);

and Trevino v. General Dynamics, 865 F.2d 1474, 1479 (Sth Cir.

1989), cert. denied 110 S.Ct. 1327 (1989); and as well appear in

the Magistrate’s report herein. (Appendix C-2).

Conflicts concerning the defense now abound in the Circuits.

The Second, Fifth and Ninth are on one side and the Fourth on

the other, with the Eleventh lining up with the Fifth on what are

the relevant specifications but with the Fourth, in dicta, on

conformity. On the facts presented there is no doubt that

Petitioners would have prevailed in the Second, Fifth and Ninth

Circuits, with the Eleventh being uncertain. There is also no

doubt that, on the facts presented, Trevino would be summarily

dismissed in the Fourth Circuit. This is an extremely undesirable

situation which raises questions related to fundamental fairness in

the administration of justice.

This case presents the opportunity for the Court to clarify

the defense. It contains virtually every issue left unresolved in

Boyle and every issue on which the Circuits presently disagree.

Finally, the panel’s decision in disregarding mandatory

statutory and binding judicial authority with regard to summary

judgment, in effect for decades, with regard to summary judgment

also raises issues of national importance. Since this Court’s trilogy

of 1986 decisions‘ involving summary judgment, its use has risen

substantially, Williams v. Borough of West Chester, Pa., 891 F.2d

458, 459 (3rd Cir. 1990). No reported decision has reduced a

mover’s burden of proof as low as here. "Evidence", which would

not justify submission of the issue to a jury, has become sufficient

for summary judgment. If unrectified this decision will open the

door to abuses and frauds on the courts thereby posing a

significant danger to the right of trial by jury.

And, now to the specifics.

THE PANEL’S EXTENSION OF THE GOVERNMENT

CONTRACTOR DEFENSE TO A DESIGN FEATURE

SOLELY ATTRIBUTABLE TO CONTRACTOR FAULT

OR NEGLIGENCE IS IN IRRECONCILABLE

CONFLICT WITH BOYLE V. U.T.C., 108 S.CT. 2510

(1988), AND DECISIONS OF THE OTHER

CIRCUITS

Plaintiffs alleged the design feature in question resulted solely

from contractor negligence (see e.g. Vol. 4 R. 83, p.3). This was

based in large part on MDC’s engineering investigation of the

design. (539-583). The Court of Appeals was bound to accept the

factual basis of Petitioners’ contention. Bishop v. Wood, 426 U.S.

341, 347 (1976); Arnett v. Kennedy, 416 U.S. 134, 139-140 (1974).

Thus, the issue presented is whether or not the government

contractor defense has any applicability to a design feature based

solely on contractor negligence.

Analysis of the rationale and basis of the defense as stated by

this Court in Boyle compels a negative answer. Not surprisingly,

up until now, the Courts which considered the issue have

responded in the negative. See Trevino, 865 F.2d at 1481 and

Bynum v. F.M.C. Corp., 770 F.2d at 574. (Sth Cir. 1985).

The panel, in order to reach a contrary conclusion had to

reject the criteria for application mandated by Boyle, which is now

“ Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 354, 91 LEd.2d 265

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d

202 (1986); and, Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 106

S.Ct. 1348, 89 L.Ed. 538 (1986).

explicitly followed by the Second, Fifth and Ninth Circuits,5 and

devise its own version of the defense which irreconcilably conflicts

not only with Boyle, but with decisions of the other Circuits as

well.

In so doing the panel applied the defense to a case where

application of state law design duties will generate no conflict with

the federal policy which underlies the defense, but rather is in

perfect harmony with it. This is further illustrated by the fact that

the panel’s decision immunized a contractor whose product as

designed breached the Government’s contractually imposed design

requirements. More ominously, the panel has immunized a

government contractor where the Government itself would be

liable to those entitled to bring suit under the Federal Tort Claims

Act ("FTCA"), 28 U.S.C. §1346(b), had it designed the device in

question on the same basis as C.P.C.

A. The Significant Conflict Analysis per Boyle

In Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct.

2510, 101 L.Ed.2d 442 (1988), this Court recognized and

established the government contractor defense. The Court,

however, limited the defense to cases where a state tort law design

duty poses a "significant conflict" with the duties imposed under a

federal contract. See Boyle 108 S.Ct. 2515-2516. This Court found

that the policies underlying the discretionary function exception to

the FTCA, 28 U.S.C. §2680(a) (1982), supplied both the rationale

for the defense and defined the nature of the requisite conflict.

Boyle, 108 S.Ct. at 2517; Eagle-Pitcher at 3.

Application of the defense is thus limited by a mandatory

requirement of conflict between the federal policy defined in Boyle

and state tort law design duties. "But conflict there must be.”

Boyle, 108 S.Ct. at 2516; and 2517-2518.

Some situations are so lacking in conflict potential that a

simple examination of the facts is sufficient to preclude application

of the defense. See e.g. Nielson, 892 F.2d 1455 (application of the

defense was reversed because of the absence of conflict potential,

5. See Joint Eastern and Southern District of New York Asbestos Litigation, etc.,

et al v. Eagle-Pitcher Industries, Inc., 1990 West Law 17927, F.2d ___ (2nd Cir.

2-20-90), hereafter "Eagle-Pitcher’, page references are to the West Law Opinion;

Trevino 865 F.2d at 1481; and Nielson, 892 F.2d at 1454.

owing to civilian context presented).

Likewise, when the design feature in question results solely

from contractor fault or negligence, no federal interest is

implicated and the defense is inapplicable. See Trevino, 965 F.2d

at 1484, 1486; Bynum, 770 F.2d 556, 574; see also Nielson, 892

F.2d at 1454.

This is even more obvious when, like here, the government

rejects the design feature in question as being violative of the

contractually imposed design requirements and is seeking to impose

"millions of dollars” of retrofit liability on the contractor for the

same design defect. (399-400).

Simply stated, the government has no interest in design

features in military equipment resulting solely from contractor

negligence.

Arguably, the government has an affirmative interest in

seeing state tort law design duties applied to design features like

this.

To suggest that application of state law to hold this design

feature defective would create the requisite conflict with a

significant federal interest or policy is unreasonable at best. The

Navy formally condemned the design feature in question prior to

the filing of this suit. (260-261).

The panel missed yet another obstacle to applicability.

This Court, in outlining the scope of the military contractor

defense, prefaced its explanation by observing that it would not

always displace state tort law, because state tort law does not

inevitably conflict with design duties imposed upon military

contractors in federal contracts. Boyle, 108 S.Ct. at 2516-2517; see

also Eagle-Pitcher at 3.

In illustrating how the existence of the requisite conflict may

be identified, this Court compared the state law design duty, with

regard to the relevant design feature in question, with the design

duty assumed by the contractor in that regard in its government

contract. Boyle at 2516. When such duties are shown to be

identical or compatible no federal interest is implicated and the

defense is inapplicable. Boyle at 2516.

When they conflict, and the equipment is not stock or "off-

the-shelf”, if the conditions of the limiting criteria are established,

the requisite conflict is present and the defense is applicable.

Boyle at 2518.

Comparison of the respective legal and contractual duties

likewise reveals that the defense is inapplicable to this case.

Succinctly put, MDC assumed the duty to deliver the aircraft

equipped with a planing link so designed that it would withstand

the motion encountered during landings such as Captain

Kleemann’s aircraft was making, without buckling, bending or

unlocking. (479-480; 482-482). Because of its subcontractor’s

failure to properly identify the loads in this type landing, among

others, MDC failed to do so (315; 415; 555; 582).

The contractual duties assumed by MDC with regard to the

relevant aspect of the design of the planing link are compatible

with the state law duty® to use reasonable care in the design of the

landing gear.’

The state law duties with regard to defective design are also

compatible with MDC’s contractual duties. See Barker v. Lull, 20

Cal.3d 413, 422-423, 573 P.2d 445, 454-456, 143 Cal.Rptr. 225, 236-

238 (Cal. Sup.Ct. 1978); and Plaintiffs’ breach of warranty claims

are based on MDC’s breach of the warranty clause of the contract

itself. Peterson v. Lamb Rubber Co., 54 Cal.2d 339, 353 P.2d 575,

5 Cal.Rptr. 863, (1960).

A clearer example of the compatability as well as identity of

duties in the procurement of military equipment, exemplified by

Miree v. DeKalb County, 443 U.S. 25, (1970), cited in Boyle, 108

S.Ct. at 2515-2516, would be hard to imagine.

Thus, no federal interest could possibly be implicated by

application of state law to the design feature in question.

How did the appeals court miss this when it was raised,

briefed and argued? Because the panel devised and used its own

applicability standard. Applicability of the defense is not governed

by conflict generated by the application of state law with a

significant federal interest or policy, but rather by the "nature of

the product" and the "characteristics of the design process.” (See

6. Maryland incorporates California substantive law in this case by statute.

Md. Court and Jud. Proc. Ann. §3-903.

”, There are no more basic duties in structural design than to property identify

the loads the component will be subjected to during intended use and to design the

component accordingly. See "Fundamentals of Aircraft Structures” Millard V.

Barton, Univ. of Texas, Prentice Hall (1948) at Chap. 2, p.6 42.1; "Analysis and

Design of Flight Vehicle Structures’, Bruhn, et al, Tri-State Offset Company (1965)

at Cl.14 ("Required Strength of Flight Structures”).

Appendix A-4). This standard is fraught with error. Utilization

has resulted in displacement of state law in the absence of a

conflict with any federal interest or policy, much less the significant

policy defined in Boyle.

This decision also conflicts with decisions on point in the

Second and Ninth Circuits. See Eagle-Pitcher at 2-3; and Nielson

892 F.2d at 1454.

In extending the defense to a design defect for which the

contractor is solely responsible, it conflicts with the expressed

intent of Boyle, as well as a post-Boyle decision on point in the

Fifth Circuit. Trevino 865 F.2d at 1481; also see Bynum v. F.M.C.

Corp., 770 F.2d at 574.

The panel has displaced state law without legal justification

raising serious questions involving federalism.

B. The Panel Has Extended The Protection Of The

Defense To A Contractor Whose Product Admittedly

Breached The Government’s Design Specifications

Following this accident the Navy conducted an extensive

investigation of the relevant design, condemned it, demanded and

received redesign and production incorporation and is demanding

fleetwide retrofit. (Appendix G; 396-402). MDC admitted C.P.C.’s

design was deficient. (260-261; 397; 523).

The panel’s misapprehension of this critical evidence is

affirmatively reflected in its opinion.®

The panel first mischaracterized the Navy's formal legal

determination that a contractor’s product is defectively designed as

"just an exchange of information." (Appendix A-9). It then

viewed the evidence and somehow concluded that the Navy’s 1987

determination was mooted because of the Navy’s 1985 closure of

1983/1984 NOD’s concerning a design defect in the hydraulic

system. The panel noted that Captain Kleemann’s plane had

hydraulic restrictors installed which somehow seemed important.

(Appendix A-10). Query: What does this have to do with the

adequacy of the structural design of the planing link? Answer:

Absolutely nothing. (354; 370-371; 387-388).

8. See Footnote 3 at p.4.

The panel simply never addressed Plaintiffs’ real contentions.

Further evidence of the panel’s confusion is demonstrated by

the fact that, after noting that one of the policies underpinning the

defense was the need to protect government contractors from legal

liability for doing the "government’s bidding" (Appendix A-8), it

extended the benefit thereof to a contractor which admittedly did

not do the government’s bidding. This is indeed puzzling.

However, what is clear is that this decision is bad law and

even worse policy - - unless rectified by this Court, military

contractors are now immune from civil liability for design defects

arising from their breach of government contracts.

This seems a very unwise policy indeed.

C. The Panel’s Opinion Has Immunized A Contractor

for A Design Defect For Which The Government Would

Be Liable Had it Designed The Device In Question

Had the government designed this device on the same basis

as C.P.C., there is no doubt that it would be liable to anyone,

otherwise entitled to sue,® damaged thereby. 28 U.S.C. §1346(b).

Thus the panel has immunized a contractor for acts that, if

performed by the government, would suffice to impose liability on

it. This exceeds the permissible scope of the defense defined in

Boyle, conflicts with Indian Towing Co., 350 U.S. at 69, and

constitutes a frank invasion of the powers reserved to Congress in

Article I, Section 1 of the Constitution raising serious issues of

separation of powers. Where does the power to immunize MDC

for acts for which the government would be liable come from?

The panel’s opinion should be reviewed and the judgment

thereafter reversed.

®. While Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152

(1950), would bar the Kleemann family from suing the government, if civilian

bystanders were injured in the accident they would undoubtedly be so entitled.

THE FOURTH CIRCUITS DEFINITION AND

APPLICATION OF THE FIRST TWO ELEMENTS OF

THE BOYLE LIMITING CRITERIA ARE IN DIRECT

CONFLICT WITH THIS COURT’S DECISION IN

BOYLE AS WELL AS DECISIONS OF THE OTHER

CIRCUITS

The panel’s opinion with regard to the scope of displacement

fares no better. The Appeals Court found (1) Navy approval of

the design defect when the Navy neither did, nor could, approve

it as a matter of law; (2) limited the Navy approved specifications

to the working drawings and (3) restricted non-conformity to

configuration deviation, i.e. mismanufacture, thereby rendering the

first two elements of the Boyle criteria meaningless. The panel

then imposed the burden to prove non-conformity, as defined by

it, on Plaintiffs.

A. There Neither Was, Nor Could Be, Boyle Approval

Of The Design Feature In Question By The Navy

The panel sua sponte held that the Navy approved the design

feature in question for the purposes of Boyle. (See Appendix A-

6 at Note 2). This holding is now subject to review. Church of

Scientology of Cal. v. LRS., 484 U.S. 9 (1988); Andrus v.

Charlestone Stone Products Co., 436 U.S. 604, 609 (1978).

The design feature in question is insufficient cartridge stroke

in the planing link. (573-576). It resulted solely from contractor

negligence (415-416; 315; 555). Neither the contractor nor the

Navy was aware of it prior to the accident. It did not result from

any choice made by the Navy. Nor did it, contrary to the panel’s

finding, result from a trade-off of "greater safety” for "greater

combat effectiveness." (Appendix A-5). It was unacceptable to

the Navy. (260-261). What the Navy "got" for it was anathema - -

an officer of unparalleled achievements, a naticnal hero being

groomed for entry into the highest levels of Navy command, dead

of a broken neck in the mud at Miramar. (337)."°

‘© See "Capt. Henry M. Kleemann, American Hero”, Cong. Rec. December

10, 1985, E 5537-5538.

These facts constitute an absolute legal impediment to the

panel’s approval holding. Boyle approval “must constitute a

discretionary function”. Trevino, 865 F.2d at 1480; Eagle-Pitcher at

A discretionary function is a judgment or decision of a public

official involving an element of choice based on considerations of

public policy. Berkovitz v. United States, 486 U.S. 531 (1988). It

insulates the government from liability if, and only if, "the action

challenged involves the permissible exercise of policy judgment.”

Berkovitz at 577. It does not cover the negligent discharge of a

duty assumed as a result of the exercise of a discretionary decision.

Indian Towing Co., 350 U.S. at 69.

Approval of C.P.C.’s design could never involve a "permissible

exercise of policy judgment” because of what it was based on.

Also, since the Navy would enjoy no immunity had it

designed the planing link as did C.P.C., there is no governmental

immunity to share with MDC. Indian Towing Co., 350 U.S. at 69.

Overlooking these absolute legal impediments, the panel

found "approval" in intimate Navy involvement "at various stages of

the design and development process” and such like. (Appendix A-

6). This is not the Boyle requirement. Boyle requires a

discretionary judgment in favor of the design feature in question.

Nothing less will suffice. Trevino 865 F.2d at 1480-1482; Eagle-

Pitcher at 6.

"Intimate involvement” can no more supply approval when it

is legally prohibited than "the nature of the product” can supply

applicability in the absence of conflict.

Further, the panel missed the fact that approval is also

precluded by the Navy’s inability to evaluate C.P.C.’s relevant

design choice. How could the Navy do so, when MDC’s project

engineers could not, even after they knew something was terribly

wrong with it? (513-515). It took an elite team of MDC

engineers, using a computer assisted design analysis with a special

computer program, to finally discover the basis of C.P.C.’s design

choice, improper loads analysis, in May of 1986! (517-583).

Since an inadequate or indifferent review is insufficient, a

review which cannot reveal the defect is likewise insufficient.

Trevino, 865 F.2d at 1481. A contrary rule would be farcical.

Trevino at 1482.

There being no approval, the defense is inapplicable, Navy

participation in design, continuous exchanges of information or

extensive drawing review notwithstanding."

B. The Court Of Appeals Erred In Restricting The

"Reasonably Precise Specifications" To The Working

Drawings

All three lower courts unabashedly limited the "reasonably

precise specifications” per Boyle to Type 1 specifications’? derived

in Shaw v. Grumman Aerospace, 778 F.2d 736 (11th Cir. 1988),

cert. denied 108 S.Ct. 2896, 101 L.Ed. 980 (1988). (See

Appendices A-7,8; B-2-3 & C-5-7).

The holding cannot withstand scrutiny.

It compels results which are illogical, unreasonable and

unjust. It is without precedential support, is in irreconcilable

conflict with the explicit language of the criteria adopted in Boyle,

108 S.Ct. at 2518, and conflicts with decisions on point from the

Fifth and Eleventh Circuits.

What all three lower courts overlooked is that limiting

"reasonably precise specifications” per Boyle to Type 1

specifications insures that a military contractor cannot lose a design

case. The result is inescapable. Why? Because the Shaw court

said so and derived the Type 1 - Type 2 specification dichotomy to

prove that very point.'® Shaw, 778 F.2d at 745.

''. There are numerous other errors in the panel’s approval analysis, mostly

involving prohibited fact finding, invasion of jury function and the like, discussed

infra at pp.20-23. In addition, the panel apparently identified the Navy’s

discretionary decision as the decision to deploy the F/A-18 to replace older model

aircraft on a new class of carriers as part of a broad defense initiative. (See

Appendix A-4,5).

‘2 Panet “working drawings”, i.e. “detailed engineering drawings”. (See

Appendix A-7 & 5).

Shaw. Type 1 "detailed, precise and typically quantitative specifications for

manufacture” which includes "detail drawings and written directives as well as

figures.". Shaw, 778 F.2d at 745, and in Note 15.

‘3. The point is if "reasonably precise specifications” are defined in Type 1

terms the contractor cannot lose; and if in Type 2 terms (everything else, no matter

how broad), the contractor cannot win. Shaw 778 F.2d at 745.

Rather than recognizing this, the panel concluded that

inclusion of the most basic requirement of structural design in the

relevant specifications would somehow make the defense "illusory"

and then did exactly what Shaw cautioned against. It defined the

relevant specifications in terms so precise,"* and non-conformity in

terms sO narrow, it was impossible for MDC to lose. Shaw, 778

F.2d at 745.

The panel characterized the Navy’s contractually imposed

structural strength requirements as "precatory goals” and "little

more than the hopes of (the) participants that the project ... will

turn out well.” (Appendix A-3,8,9). In so doing, the panel

excluded the most basic structural design requirements from either

Navy approval or the requirement of conformity. This is

inconsistent, to say the least, with the basis of the defense adopted

by the Court in Boyle, 108 S.Ct. at 2517-2518. The problem is the

panel’s failure to recognize the policy or legal basis of the defense.

This seems to be the root cause of the panel’s analytical errors,

including its erroneous limitation of the "reasonably precise

specifications” to the "working drawings.”

There is no support for the panel’s definition anywhere. It

conflicts with the modifier "reasonably" used to define the precision

criteria and with holdings on point in Smith v. Xerox, 866 F.2d at

138 (1989), and Harduvel v. General Dynamics Corp., 878 F.2d

1311, 1320 (11th Cir. 1989). Both squarely hold that the

government’s design specifications form part of the relevant

specifications per Boyle.

It is also inconsistent with the Fourth Circuit’s affirmance of

Ramey v. Martin-Baker, 656 F.Supp. 984 (D.Md. 1987), at 874 F.2d

946 (4th Cir. 1989). Ramey involved another subcontractor-

designed component of the F/A-18 - - the ejection seat. The

District Court held that the Navy-approved specifications were the

same type as Plaintiffs rely om—here.'’* A challenge based on

imprecision was rejected, in part because the "precision of the

‘4. Even more precise than Shaw. Shaw included written directives on the

drawings in Type 1 specifications. Shaw, 778 F.2d at 745. The panel excluded

them by limiting non-conformity to mismanufacture.

‘S| Ramey. Detail Specification 565-1, Procurement Specification 74-80020

and Military Specification 18471;

Kleemann: Detail Specification 565-4; Procurement Specification 74-

410051 and Military Specifications 8860, 8863A and 8866.

specifications (met) the standard set forth by the Fourth Circuit as

well as other courts." Ramey, 656 F.Supp. at 995.

The panel’s decision is the only reported case which has

affirmatively excluded ail government design specifications imposed

by contract from inclusion in the Boyle specifications.‘*° The

inherent error is demonstrated by the results achieved.

C. The Panel’s Definition Of Conformity Is

Inconsistent With The Function Of The First Two

Limiting Criteria Adopted In Boyle

The panel held that a product conforms to "reasonably

precise specifications” if it "satisfies an intended configuration’,

citing Harduvel, 878 F.2d at 1321. Thus, “conformity” requires only

configuration compliance, limiting non-conformity to

mismanufacture. Harduvel, 878 F.2d at 1321; Shaw, 778 F.2d at

74S.

This definition, coupled with the panel’s applicability standard

and specification definition, will arguably abolish military contractor

design liability. See Shaw, 778 F.2d at 745.

Boyle replaced the Feres doctrine as the basis of the defense,

in part, to avoid just such a result. Boyle, 108 S.Ct. at 2517.

Thus, the panel’s definition produces results in direct conflict with

the most basic premise of Boyle. Eagle-Pitcher at 6.

In addition, the panel’s definition disregards the function of

the first two elements of the limiting criteria, which is to assure

that the design feature in question was considered by a

government officer, and not merely by the contractor itself, and

that the contractor acted on that exercise of discretion. Boyle, 108

S.Ct. at 2518. Eagle-Pitcher at 4. If the approved specifications

include nothing but the "intended configuration’, how can this

possibly insure that "the design feature in question was considered

by a government officer"?

There is a lot more to structural design than size and shape,

as sadly illustrated by the facts of this case.

The panel’s definition also renders the second element of the

limiting criteria superfluous and therefore meaningless. Why? A

16 ~=While Trevino also held that “working drawings” were the relevant

specifications, it did so in the absence of anything else that could possibly qualify.

Trevino, 865 F.2d at 1487.

mismanfuactured product, by definition, does not present an issue

of defective design. Bynum, 770 F.2d at 574. Thus, the Boyle

defense is inapplicable to such claims. McGonigal v. Gearhart

Indus. Inc., 851 F.2d 774, 777 (Sth Cir. 1988). Therefore,

"conformity" as defined by the panel, can never come into play in

the context of the government contractor defense. See Trevino,

865 F.2d at 1481 in Note 6.

Where did the panel’s definition come from? Dicta in

Harduvel”’ which is in turn based on a district court decision”

arguably misapplying the defense in favor of a non-designing

manufacturer."®

Passing over the question of misapplication, the problem

presented is the panel’s conversion of a designer (MDC/C.P.C.)

into a nondesigning manufacturer, liable only for mismanufacture.

The panel’s unprecedented and illogical definition of

conformity should be reviewed and rejected.

D. Does The Boyle Government Contractor Defense,

When Raised by Summary Judgment, Shift The Burden

Of Proof To The Plaintiff To Show That The

Equipment Does Not Conform To Specifications?

All three courts below imposed the burden on Plaintiffs to

disprove the second element of the Boyle government contractor

defense. (See Appendices A-6; B-3,4 & C-6).

The second element of the Boyle defense requires proof that

"the equipment conformed to those specifications." Boyle, 108

S.Ct. at 2518. When invoked, the contractor must prove each and

every element thereof by a preponderance of the evidence.

Bynum, 770 F.2d at 574; Koutsoubos v. Boeing Vertol, 775 F.2d 352,

354 (3rd Cir. 1985).

MDC, in moving for summary judgment, had to support its

motion "with credible evidence . . . using any of the material

‘7. The Court recognized that the second element was not involved in that it

was neither raised nor briefed by the Plaintiff. Harduvel, 878 F.2d at 1321.

‘8 Zinck v. ITT, 690 F.Supp. 1331 (S.D. N.Y. 1988).

‘© ITT should have been able to obiain relief by way of the contract

specification defense. See Nielson, 892 F.2d at 1455.

specified in Rule 56(c) . . . that would entitle it to a directed

verdict if not controverted at trial.” Celotex v. Catrett, 477 U.S.

317, 331 (1986) (Brennen J. Dissenting); Williams, 891 F.2d at 457-

460 (1990); 10 A Wright, Miller & Kane "Federal Practice and

Procedure” §2727.

MDC failed even to allege, much less prove, what the Navy

approved specifications are or require. (51-52). It also failed to

offer proof that the planing link on the aircraft complied with any

design requirements whatsoever. (191-264).

Since Mover was relieved of proving what the design

requirements were, it was a trifle difficult for Non-movers to prove

that it did not conform to an unknown standard, but they tried.

There is record evidence that the design violates the

"reasonably precise specifications” as defined in Ramey, 656 F.Supp.

at 955; Smith, 866 F.2d at 138; and Harduvel, 878 F.2d at 1320.

(346-350); as well as the quantitative design requirements (335,

336; 523-537); and requirements on the engineering drawings (533-

534; 260-261).

On this record, in a properly run court, MDC could not get

the defense submitted to a jury, much less obtain a directed

verdict.

This appears to be the first reported decision which has

granted summary judgment to movant, which had the burden of

persuasion on the issues involved at trial, in the absence of any

admissible evidence on the relevant issues as required by F.R.C.P.

56(c).

E. The Key To Understanding The Panel’s Analysis

The key to understanding the panel’s analysis is its misuse of

an erroneous perception of Naval "participation in various stages

of the aircraft’s development" (Appendix A-6) to avoid the legal

impediments to the defense in this case.

In various guises and forms, it justifies “creation of the

defense. . ." (Appendix A-6); when combined with "the nature of

defendant’s product", it justifies an improper, and perhaps

constitutionally suspect displacement of state law (Appendix A-5);

next it supplies legally precluded "approval" of the design defect

20 The fact that MDC submitted no admissible evidence on the elements of

the defense is discussed further in Part 4 at pp. 20-23.

(Appendix A-5,6); and "enhances the likelihood of final product

conformity” (Appendix A-6); then it becomes "persuasive evidence

of product conformity to precise specifications" (Appendix A-8);

and last, but by no means least, it “establishes the military

contractor defense" (Appendix A-6).

The panel’s findings ignore what happened in the real world

as reflected by the record evidence. What design duty did MDC

assume? To design or obtain a design for the planing link with

sufficient stroke to withstand the design loads (277-279). What

duty did the procurement contract impose on MDC? The duty to

furnish F/A-18 aircraft so equipped. (450; 457; 480-488). When

MDC failed to do so, what happened? The Navy, by invoking

contractual remedies compelled MDC to do so. (260-261).

It is painfully obvious that the panel’s analysis is woefully

short of the mark. For example, it missed the fact that C.P.C.’s

structural design of the landing gear was an unmitigated disaster.

(494-583). In 1987, nine years after production commenced, every

major load bearing component was being redesigned. (673). The

panel failed to perceive that the "intimate" Navy involvement it

relied on so excessively was a series of demands that MDC make

good on its contractually imposed design obligations. (248-249; 26-

261; 387-388; 494-506). To hold that meetings concerning

extremely serious design defects and deficiencies are "persuasive

evidence of product conformity" is incomprehensible. To hold that

this design defect enhanced the combat effectiveness of the F/A-

18 is absurd. (Appendix A-5).

The panel’s analysis is lamentable and its opinion cries out

for review and reversal.

THE COURT OF APPEALS, IN AFFIRMING THE

“DISTRICT COURTS GRANTING, OF SUMMARY

JUDGMENT HAS ITSELF DISREGARDED

MANDATORY STATUTORY PROVISIONS IN

F.R.C.P. 56 AND BINDING AUTHORITY

Arguably the panel’s most egregious errors concern its

affirmance of summary judgment

While review of the Fourth Circuit’s action in this regard may

require a record review, this Court can grant such a review where

necessary when other important questions motivate grant of

Eee

certioran. See e.g. Mobil Oil Co. v. Federal Power Comm'n, 417

U.S. 283; and Memphis v. Greene, 451 U.S. 100, 102 (1981).

In its decision, the panel committed the following errors in

affirming summary judgment pursuant to F.R.C.P. 56;

(1) It invaded the function of the jury by resolving issues of

contested material fact,"

(2) It resolved an issue of credibility between engineers of

equal rank at MDC,” and,

(3) Then misrelied on the facts recited in an affidavit® of

one of them put at issue by the testimony of the other,

who was in an arguably superior position to know the

truth concerning the matter in controversy;**

(4) It misrelied on the facts recited in an affidavit invalid as

to form and content as required by F.R.C.P. 56(e) in

that the affidavit recites it was based, in part, on hearsay

(221); and the vast majority of the facts recited were

affirmatively shown to be outside the affiant’s personal

knowledge (639, 644-647; 649-650). Further, a serious

question of credibility about a material fact recited in the

affidavit was raised by the affiant’s deposition testimony;

(compare facts recited in q3 at 221, with affiant’s

testimony at 642-643). The affidavit is no evidence.*

Arguelles v. U.S. Bulk Carriers, 408 F.2d 1065, 1068 (4th

2’ A few are the panel's findings that the Navy (1) retained discretion over

the design; (2) proposed the configuration; (3) conducted extensive drawing review,

(4) rejected a remedial redesign proposed by MDC in 1983; and (5) that the design

defect in question "inhered” in the unique design which violated neither the military

nor the quantitative specification requirements. (See Appendix A-7-9).

22. Mr. J.C. Phillips and Mr. David L. Bourisaw.

23. The affidavit of Mr. J. C. Phillips (241-248).

24. The disputed issue of fact concerns whether a remedial redesign of the

planing link was formally proposed by MDC to the Navy in 1983. Mr. Phillips, in

his affidavit, claims it was and the Navy rejected it. (241-242). Mr. Bourisaw,

MDC’s Unit-Chief F/A-18 Main Landing Gear Design testified that it was not and

gave the reason why. (368-369). The panel found it was and made much of the

Navy’s rejection. (Appendix A-8). (Excerpts from Mr. Bourisaw’s deposition

testimony are attached as Appendix H).

25. The affidavit is Mr. Robert W. Palmer’s. (221-227). (Excerpts from Mr.

Palmer’s deposition testimony are attached as Appendix I).

cee ee epee... — ae —————

Cir. 1969).

(5) The panel rejected Petitioners’ version of contested facts,

where supported by admissions by MDC, unqualified

testimony of MDC’s cognizant engineers and

determinations by the Navy;*

(6) The panel viewed the evidence in the light most

favorable to Mover, and drew both permissible and

impermissible inferences therefrom in Mover’s favor?’

(7) Last, but by no means least, the panel relied on material

outside the record for facts critical to its opinion.”

To list all the binding and persuasive authorities which are

violated by the panel’s actions would exhaust the thirty page limit

on this petition. A few are: Automatic Radio Mfg. Co. v. Hazeltine

Research, Inc., 339 U.S. 827, 831 (1950); Poller v. Columbia

Broadcasting Sys., Inc., 368 U.S. 464 (1962); U.S. v. Diebold, Inc.,

369 U.S. 654, 655 (1962); Adickes v. S. H. Kress & Co., 398 U.S.

144, 159-161, (1970); Amett v. Kennedy, 416 U.S. 134, 139-140

(1974); Anderson v. Liberty Lobby, 477 U.S. 242, 247-252, (1986);

Williams v. Borough of West Chester, Pa., 891 F.2d at 459-460 (3rd

26. This included not only the items listed in Footnote 21, but also numerous

others. One such is the panel’s disregard of testimony that Navy drawing approval

was by acquiescence. (534-535); another is that the design did not violate the

quanttative requirements. See excerpts from deposition testimony of Mr. Dennis

Gendreau and Mr. Glen Kirkland, attached as Appendices J & K

27. Two such examples are: (1) The panel inferred extensive review of the

design drawings by the Navy from the fact that MDC was required to submit them

to the Navy. (Appendix A-8). (2) The panel inferred Navy participation in the

design of the planing link from the occurrence of periodic meetings between the

Navy and MDC personnel. (Appendix A-8). This required a whole series of

intervening inferences, all of which are prohibited.

=, (1) Opinion at Appendix A-5, sentence beginning "The F/A-18 aircraft

was part. . .", ending with ". . . all-weather fighters". There is no record evidence

to support this. Source: Unsupported allegation in MDC’s appellate brief.

(2) Opinion at Appendix A-5, sentence that starts "Beginning with bids

..." and ending with *. . . their submissions." There is no record evidence that

teams of Navy engineers met with any contractor as recited in the Court’s opinion.

Source; MDC’s appellate counsel’s oral argument.

(3) Opinion at Appendx A-5, sentence beginning with “The

Government also maintained . . .” and ending with *. . . in St. Louis". This is a

significant expansion of the facts recited in Paragraph 8 of the Palmer affidavit.

Cir. 1990); Ross v. Communications Satellite Corp., 759 F.2d 355,

364 (4th Cir. 1985); Antonio v. Bammes, 464 F.2d 584, 585 (4th Cir.

1972); Arguelles v. Bulk Carner, 408 F.2d at 1065, 1068 (4th Cir.

1968); Buxton v. Plant City, Fla., 871 F.2d 1037, 1041 (11th Cir.

1989); Leslie v. Ingram, 786 F.2d 1533, 1535 (11th Cir. 1986);

Stearns v. Hertz, 326 F.2d 405, 408 (8th Cir. 1964); and Goldstein

v. Kelleher, 728 F.2d 32, 37 (1st Cir. 1984); Peng-Fei Chang v.

University of Rhode Island, 554 F.Supp. 1203, 1205-1206 (D.C. R.I.

1983); F.R.C.P. Rule 56(e); also see cases collected in Vol. 10A

Wright, Miller & Kane §2726, §2727, §2734 & §2739.

Summary judgment has been affirmed in favor of a party who

bore the burden of persuasion at trial, in spite of the fact that

(1) Mover neither plead nor proved what the Navy-approved

specifications were or required (51-52; 191-266); (2) both of its

affidavits are no evidence; and (3) the balance of its documentary

submissions are either favorable to Non-movers (260-261), illegible

(219), or meaningless (e.g. 229-238); (4) there was no admissible

evidence to support it. This imperils the right to trial by jury

guaranteed by Amendment VII to the United States Constitution.

Such a decision, rendered in the most pedestrian case

imaginable, would commend itself to this Court’s attention.

The panel’s decision should be reviewed and reversed.

CONCLUSION

For the above reasons, Petitioners Carol Anne Kleemann,

individually, as executrix and personal representative of the estate

of Captain Henry M. Kleemann, as the guardian of the minors

Katherine M. Kleemann and Michael Andrew Kleemann; and

Susan E. Seiden and Steven S. S. Seiden, Jr., pray that their

petition for writ of certioran be granted.

Respectfully submitted:

Robert S. Cooper, Jr.

LAW OFFICES

OF ROBERT S. COOPER JR.

Woodstock, (Route 14)

Post Office Box 190

Port Haywood, Virginia 23138

(804) 725-9207 or 725-3937

Attomey for Petitioners

APPENDIX A

No. 89-2032

CAROL ANNE KLEEMANN, Individually

and as the Executive and Personal

Representative of the Estate of

Henry M. Kleemann, as the Guardian

of the minors Katherine M. Kleemann

and Michael Andrew Kleemann; SUSAN E.

SEIDEN; S. S. SEIDEN, JR.

Plaintiffs - Appellants

versus

McDonnell Douglas Corporation

Defendant - Appellee

No. 89-2047

CAROL ANNE KLEEMANN, Individually

and as the Executive and Personal

Representative of the Estate of

Henry M. Kleemann, as the Guardian

of the minors Katherine M. Kleemann

and Michael Andrew Kleemann; SUSAN E.

SEIDEN; S. S. SEIDEN, JR.

Plaintiffs - Appellees

versus

McDonnell Douglas Corporation

Defendant - Appellant

Appeals from the United States District Court for the District of

Maryland, at Baltimore. Joseph C. Howard, District Judge. (CA-

873249-JH).

Argued: October 4, 1989 Decided: December 6, 1989

Before WILKINSON, Circuit Judge, HAYNSWORTH, * Senior

Circuit Judge, and WILLIAMS, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Robert Sibley Cooper, Jr. for Appellants. Thomas C. Walsh

(Douglas E. Winter, Robert W. Shely, BRYAN, CAVE,

MCPHEETERS & MCROBERTS; George L. Russell, Jr., Robert

J. Mathias, PIPER & MARBURY, on brief) for Appellee.

* Judge Haynsworth participated in the consideration of this case

but died prior to the time the decision was filed. The decision is

filed by a quorum of the panel. 28 U.S.C. §46(d).

A-2

WILKINSON, Circuit Judge:

To avoid liability for accidents involving military equipment,

military contractors are required to show, inter alia, that their

products conformed to reasonably precise specifications approved

by the United States. Boyle v. United Technologies Corp., 108 S.

Ct. 2510 (1988). Here we must decide what conformity means.

Plaintiffs allege that the landing gear of an F/A-18 aircraft, in which

plaintiffs’ decedent was killed, did not conform to general

performance requirements contained in defendant's original contract

with the Navy. We cannot, however, equate as a matter of law a

failure of performance with an absence of conformity. Nor do the

precatory goals developed for a product at the start of the

procurement process establish the "reasonably precise specifications"

to which the product must conform. Because the landing gear

plainly did not deviate from the ultimate design required by the

Navy in the whole of its negotiations with the contractor, we

uphold the grant of summary judgment for defendant and affirm

the applicability of the government contractor defense to this case.

ib.

On December 3, 1985, Captain Henry M. Kleemann, a U.S.

Navy pilot, was killed when his F/A-18 aircraft went out of control

during landing, left the runway, and overturned. Defendant

McDonnell Douglas Corporation (MDC) had designed the F/A-18

for the Navy. The Navy concluded that Captain Kleemann’s

accident was caused, in part, by failure of the planing link assembly

on the main landing gear. The planing link assembly was designed

to assist folding and unfolding the wheel assemblies into and from

the wheel well and to lock the wheels appropriately for takeoff and

landing. It allows the wheels to "deplane” or move out of line with

the direction of the aircraft, during retraction and extension of the

landing gear.

Kleemann’s surviving spouse and children brought a diversity

action in the district court of Maryland claiming that the plane was

negligently and defectively designed by McDonnell Douglas.

Plaintiffs contended that the landing gear did not conform to

reasonably precise specifications contained in the Navy’s original

contract with MDC. Specifically, they alleged that the landing gear

failed to meet the requirement that it withstand normal landing

A-3

loads without bending, unlocking or causing uncontrolled motion

of the aircraft. (citing SD-24K-Volume 1, and Military

Specification MIL-A-8863A).

Defendant, on the other hand, argued that the specifications

proffered by plaintiff were mot the "reasonably precise

specifications" required by Boyle, because such general requirements

do not tell the contractor what to build and how to design the

product. MDC contended that the accident aircraft incorporated

all Navy-approved landing gear designs and modifications through

the date of delivery. As such, the landing gear conformed to all

precise, quantitative specifications which evolved out of the

continuous exchange between MDC and the Navy.

The district court held that the operative question was

whether the product conformed to the "ultimate design

specifications,” not to the qualitative, precatory specifications used

in the procurement process. The court concluded that plaintiffs

had not presented evidence that the landing gear on the accident

aircraft deviated from the ultimate design specifications approved

by the Navy. It granted defendant’s motion for summary judgment,

and this appeal followed.'

II.

We review at the outset the elements of the government

contractor defense. Under Boyle v. United Technologies Corp., 108

S. Ct. 2510, 2518 (1988), a contractor is not liable for design

defects in military equipment when: (1) the United States approved

"reasonably precise specifications"; (2) the equipment conformed to

those specifications; and (3) the contractor warned the government

about any dangers in the use of the equipment that were known

to the contractor but not to the government.

Plaintiffs’ claim is precisely the sort for which the defense was

intended. This is true both because of the nature of defendant’s

product and the characteristics of the process by which it was

designed. At issue here is a discretionary decision involving military

hardware in which the government was a substantial participant.

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' The district court also denied a motion to dismiss filed by defendant on the

grounds that the action was barred by California’s one-year statute of limitations

for wrongful death claims. The court found that Maryland’s three-year statute of

limitations applied, and we decline to disturb its decision.

See Boyle, 108 S. Ct. at 2517. The F/A-18 aircraft was part of a

broad defense initiative involving the Navy’s deployment of a new

"CV" class of aircraft carrier. The "CV" carrier had multi-mission

capabilities as compared to older, more specialized counterparts.

The F/A-18 was designed to provide support for the new carrier,

and to replace with a single aircraft the Navy’s clear weather

fighters and all-weather fighters. It is hard to imagine a matter

more uniquely in the province of the military - - and one less

appropriate to second-guessing by civilian courts - - than the

development of a high technology, multi-mission aircraft. see id.

at 2517-8.

Similarly, the design details of the F/A-18 illustrate the

balancing of military and technological factors, including "the trade-

off between greater safety and greater combat effectiveness." Jd. at

2517. For example, the main landing gear at issue here had to

absorb extremely high amounts of energy generated upon landing

on a carrier. On the other hand, stowage of the gears could not

interfere with external weapon storage. These competing concerns

required a unique “levered gear" design to provide adequate

distance between the extended right and left main landing gears

and thereby ensure stability of the aircraft upon landing. The

design, developed by MDC and approved by the Navy, employed

a planing link assembly to deplane the wheels during retraction and

extension of the landing gear.

The design and production of the F/A-18 also illustrate the

exchange of views in the procurement process between military

officials and the private contractor. See Harduvel v. General

Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir. 1989); Tozer v. LTV

Corp., 792 F.2d 403, 407 (4th Cir. 1986). Beginning with bids for

what would become the F/A-18, teams of Navy engineers met with

each contractor for extended discussions of their submissions.

When the Navy selected MDC to develop and build the F/A-18,

the final design contracts for the aircraft incorporated MDC’s

original proposal as modified during extensive negotiations between

the parties. During design development, MDC was required to

submit detailed engineering drawings to the Navy for approval. All

changes to the design or specifications of the aircraft required Navy

approval, including proposals to address problems with the allegedly

defective landing gear. The government also maintained an

extensive staff of aircraft engineers on site at MDC’s facilities in

St. Louis.

A-5

It is this salient fact of governmental participation in the

various stages of the aircraft’s development that establishes the

military contractor defense. Indeed, active governmental oversight

is relevant to all three elements of defendant’s burden. Where, as

here, the Navy was intimately involved at various stages of the

design and development process, the required government approval

of the alleged design defect is more likely to be made out. See

Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946, 950-51 (4th Cir.

1989); Dowd v. Textron, Inc., 792 F.2d 409, 412 (4th Cir. 1986).

Similarly, the Navy’s extensive participation, including reservation

of the power to approve or disapprove design modifications,

enhances the likelihood of final product conformity. Government

involvement in the process also make it more likely, thought not

certain, that a sharing of the information will occur with respect to

potential dangers in the use of the equipment. As a final matter,

extensive governmental participation provides tangible evidence of

the strong federal interest which justifies the creation of a federal

common law defense for government contractors in the first place.

Plaintiffs argue nonetheless that the government contractor

defense does not apply because the main landing gear of decedent’s

F/A-18 failed to conform to the government’s "reasonably precise

specifications” as required by Boyle. There is no evidence, however,

that the landing gear failed to conform to the precise quantitative

specifications embodied in the totality of documents exchanged

between the parties.?

Plaintiffs contest the district court’s conclusion that ultimate

design specifications are most relevant to the government contractor

defense. They contend that the reasonably precise specifications

A-6

2 Plaintiffs in their opposition to summary judgment below appear to dispute

only whether the landing gear conformed to reasonably precise specification.

However, we are persuaded by our review of the evidence that the Navy also

approved those specifications. Further, there is no evidence that MDC failed to

warn the Navy of dangers in the design of the landing gear that were unknown to

the government.

for the main landing gear of the F/A-18 are contained in "Detail

Specifications for Model F/A-18 Aircraft" (SD-565-1-4), certain

incorporated provisions from the Navy aircraft manual (SD24-K

Volume I-General Specifications For Design and Construction of

Aircraft Weapon Systems), three relevant incorporated Military

Specifications (MIL-A-8860, 8863A and 8866), and Procurement

Specification 74-410051. Plaintiffs allege that these documents

require that the landing gear be strong enough to withstand normal

landing loads without bending, that it remain locked after extension

until unlocked from the cockpit, and that any failure of the landing

gear not result in uncontrollable movement of the airplane.

We do not dispute that the documents referenced by plaintiffs

embody part of the universe of specifications to which the landing

gear must conform. However, plaintiffs fail to appreciate that

military hardware does not suddenly spring into being from initial

design and procurement specifications, but evolves through

drawings, blueprints and mockups agreed upon by the parties. See

Harduvel, 878 F.2d at 1320-21; Ramey, 874 F.2d at 948 n.4-5. The

ultimate design of the product is determined not only by the

original procurement and contract specifications, but also by

specific, quantitative engineering analysis developed during the

actual production process.

Indeed, many of the documents cited by plaintiffs reflect no

more than the initial, theoretical phase of the development of the

F/A-18 landing gear. The general qualitative specifications

contained therein were incorporated by reference into the full scale

development contracts issued to MDC for the development of the

F/A-18. As part of its duties under the contract, MDC used the

Navy specifications to develop required structural load parameters

which served as a basis for the detailed design of the aircraft.

These design loads comprised five volumes of material which were

submitted to the Navy. The contract also required MDC to submit

detailed design drawings to the Navy for approval as the general

specifications became embodied in the actual landing gear. The

Navy reserved the right to reject drawings and to require revisions

and modifications. These working drawings, and not simply the

general qualitative specifications from the procurement stage,

comprise "the reasonably precise specifications" contemplated by

Boyle

Where the military procurement process involves this kind of

continuous exchange between the contractor and the government,

A-7

the process it self becomes persuasive evidence of product

conformity to precise specifications. Here the government

maintained discretion over the design of the product throughout;

it did not simply turn over such discretion, and the military

decisions inherent therein, to the private contractor. In contrast

to the Fifth Circuit’s conclusion in Trevino v. General Dynamics

Corp., 865 F.2d 1474, 14878 n. 13-14 (Sth Cir. 1989), that there

had been inadequate review of the design drawings to make out the

defense, the Navy here performed extensive review of detailed

design drawings submitted by MDC. The Contract Data

Requirements List, which laid out required document submissions

under the contract, specifically required that Landing Gear Design

Reports and Landing Gear Specifications be submitted for Navy

review and approval. Moreover, Navy engineers and other

personnel participated in the F/A-18 design process through

periodic design review meetings including Detail Design Review

meetings, Technical Coordination meetings, F/A-18 Specialty Design

Reviews, Program Management Reviews, Flight Test Readiness

Reviews, and Production Readiness Reviews. Such meetings, of

course, bolster the underpinning of the defense, namely that the

contractor should not be held liable at law for performing the

government’s bidding. See Boyle, 108 S. Ct. at 2518.

It is also undisputed that the Navy exercised complete

discretion over suggested design changes in connection with the

landing gear design. Between 1979, when F/A-18 test flights began,

and 1985, the Navy expressly approved or required a substantial

number of landing gear design modifications and rejected others,

as evidenced by the Safety Action Record maintained by MDC.

For example, in 1983 the Navy declined to implement an MDC

proposal for an improved planing link that incorporated a coiled

spring design. MDC believed this design would offer greater

resistance to the buckling of planing link. On the other hand, the

Navy accepted a proposed modification in 1984 which incorporated

a hydraulic restrictor designed to protect the planing link from

bending due to excessive torque forces. (Several years later, the

Navy did incorporate a coiled spring design similar to the type

MDC had proposed in 1983).

Plaintiffs’ reference to the general failure of F/A-18 landing

gear to withstand normal landing loads without bending or

unlocking fails to take into account this significant history.

Requirements such as an ability to withstand normal loads and

A-8

prohibitions against operational failures represent little more than

the hopes of participants that the project on which they are about

to embark will turn out well. General qualitative specifications

must be distinguished from the “detailed, precise and typically

quantitative specifications for manufacture of a particular military

product.” Shaw v. Grumman Aerospace Corp., 778 F.2d 736, 745

(11th Cir. 1985). These two broad types of specifications often

overlap and may even be at cross purposes - - for example, design

specifications for a complex back-up system may conflict with the

qualitative requirements of ease of maintenance, combat

effectiveness or cost containment. Jd. at 745. Only the detailed,

quantitative specifications - - and not those calling for such vagaries

as a failsafe, simple or inexpensive product - -are relevant to the

government contractor defense.

In essence, plaintiffs’ argument is that the ultimate design of

the landing gear failed to produce an aircraft that performed

perfectly. Plaintiffs’ view would render the government contractor

defense illusory. Nonconformance to the precise specifications must

mean more than that the design does not work in compliance with

some "general admonition against an unwanted condition."

Harduval, 878 F.2d at 1319 n.3. A product involved in a design-

induced accident would, as a definitional matter, always be deemed

not to comply with such generalities since no performance

specifications approved by the government would purposely allow

a design that would result in an accident. In fact, plaintiffs describe

exactly the situation in which the government contractor defense

does apply; when the required ultimate military design failed to

produce a "reasonably safe” product under state law. Contrary to

plaintiffs’ assertions, a product conforms to reasonably precise

specifications if it satisfies "an intended configuration” even if it

"may produce unintended and unwanted results." Jd. at 1317. The

evidence demonstrates that the alleged defect inhered in the unique

design of the landing gear itself - - as required by the Navy - - and

-did not result from any deviation from the required military

specifications.

Plaintiffs further allege that the Navy had itself concluded that

the landing gear did not conform to specifications. They rely upon

a Notice of Defect issued by the Navy to MDC in November 1983,

A-9

in connection with the recurring problem of bending of the planing

link assembly on the main landing gear of the F/A-18.

Plaintiffs’ argument fails for several reasons. First, the very

purpose of the government contractor defense is to encourage

active communication between suppliers of military equipment and

military authorities in the development and testing of equipment.

McKay v. Rockwell Int’l Corp., 704 F.2d 444, 450 (9th Cir. 1983).

This cooperative effort must include identification by the parties of

actual and potential problems during the design and production.

If a mere notification of defect precluded application of the

government contractor defense, the climate of candid exchange

between the government and the contractor would be compromised.

Second, it is undisputed that MDC addressed the problem of

the bent planing links in response to the Notice of Defect. In

early 1984, MDC and the Navy mutually concluded that the

hydraulic system of the aircraft allowed the landing gear to rotate

into stowage before the wheel stopped spinning, exposing the

planing link to torque forces in excess of design specifications. In

response, MDC designed a "hydraulic restrictor” to slow the

rotation of the gear after takeoff and before stowage. The Navy

approved the design of the hydraulic restrictor and directed that it

be incorporated into all new production models, including the

aircraft that Kleemann was flying at the time of the accident. On

May 24, 1985, the Navy advised MDC that the Notice of Defect

was formally closed.

IV.

In sum, we find no evidence that the landing gear deviated

from the configuration which was proposed by the Navy and

reduced to precise specification by the continuous back and forth

exchange between the Navy and MDC. The judgment of the

district court is therefore

AFFIRMED.

A-10

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CAROL ANNE KLEEMANN, et al.

Plaintiffs

Vv. Civil No. JH-87-3249

McDONNELL DOUGLAS CORPORATION

Defendant

MEMORANDUM OPINION

This wrongful death action was referred to the Honorable

Deborah K. Casanow for a recommendation on all dispositive

motions. The instant matter under consideration is the defendant’s

motion for summary judgment on the government contractor’s

defense. It is recommended that the defendant’s motion be

granted. The plaintiffs have filed numerous objections and the

defendant has responded thereto. Upon de novo review of the

motion and objections filed, this Court adopts Magistrate

Chasanow’s Report and Recommendation in full.

Magistrate Chasanow’s Report

The government contractor’s defense provides that a

contractor is entitled to judgment if it can prove three elements:

(1) the United States approved reasonably precise specifications;

(2) the equipment conformed to those specifications; and (3) the

supplier warned the United States about dangers in the use of the

equipment that were known to the supplier but not to the United

States. Boyle v. United Technologies Corp., 108 S. Ct. 2510, 2518

(1988).

McDonnell Douglas Corp. ("MDC") moved for summary

judgment on this affirmative defense, and plaintiffs, in their

opposition, disputed only the second element of the defense, Le.,

whether the product conformed to the specification requirements.

The dispute between the parties in this case is whether those

B-1

specifications include all contract requirements from the beginning

of the design process, or whether they refer solely to the ultimate

design specifications for the particular landing gear which is alleged

to have failed. The defendants assert that these "reasonably precise

specifications” refer solely to the ultimate design specifications of

the landing gear, and not to the precatory specifications used at the

outset of a procurement process.

Magistrate Chasanow found the defendant’s argument

persuasive and relied on Shaw v. Grumman Aerospace Corporation,

778 F.2d 736 (11th Cir. 1985), for its definition of "specifications."

Therein the court stated:

Although we are conscious of some overlap, for purpose

of our analysis we divide specifications into two types:

(1) detailed, precise and _ typically quantitative

specifications for manufacture of a particular military

product - - that is to say, the design or blueprint for

production, and (2) more general and more qualitative

specifications, such as performance or missions criteria

- - that is to say, all other specs besides type one.

778 F.2d at 745.

The Eleventh Circuit held that only the first type of

specifications are relevant to the government contractor defense.

Moreover, a claim that the design of a product contained in the

precise type one specifications does not conform to general type

two qualitative specifications reflects a discrepancy that does not

defeat the defense. Jd. Magistrate Chasanow found that this

precise scenario existed in the instant motion and, accordingly,

recommended that the defendant’s motion be granted.

Il.

Plaintiffs’ Objections to Magistrate Chasanow’s

Report and Recommendation

The plaintiffs’ first allegation of error in the report is that the

Magistrate failed to consider whether the subject aircraft

conformed with all the terms of the Detail Specification SD-565-

1-4 as revised through August 1, 1983. These specifications

allegedly incorporate by reference all requirements for the landing

gear of this aircraft that are contained in the Navy’s General

Specifications for Fixed Wing Aircraft Design and various Military

B-2

Specifications including 8860, 8863A and 8866. In addition,

plaintiffs claim that LAFC 40 does not constitute a detailed

specification.

As Shaw, supra, points out, procurement specifications do not

constitute reasonably precise specifications. These specifications

are not the ultimate design specifications to which a court should

turn to determine the applicability of this defense.

Magistrate Chasanow did not determine that LAFA 40 was

the only reasonably precise specification applicable to the landing

gear in question. Rather, she determined that MDC was required

to manufacture and deliver the subject aircraft in accordance with

the design of the gear as a whole as of the time it was modified by

IAFC 40. Once the government accepted this modification, the

design of the landing gear was set and it was that design to which

the landing gear had to be manufactured and delivered. To date,

the plaintiffs have not presented evidence of any material deviation

in the landing gear from the ultimate design specifications.

Plaintiffs’ second allegation of error is that Shaw supra, does

not provide any support for the Magistrate’s opinion. Plaintiffs

discuss at length the merits of this case. They allege that the

present case is "on all fours factually” with Shaw, and therefore,

this Court should deny MDC the benefit of the government

contractor defense.

What plaintiffs fail to realize is that the Magistrate relied on

Shaw for one limited purpose; to illustrate the analytical distinction

between qualitative and quantitative specifications. Moreover,

Shaw is not "on all fours factually” with the present case because

the defendant in Shaw had not fulfilled the third element the

Boyle test: the requirement that the manufacture warn the

government of all dangers in the use of the product of which it is

aware and of which the government is not. See Shaw, 778 F.2d at

747.

Plaintiffs claim that Magistrate Chasanow completely ignored

the only case that offers any real guidance as to the meaning of

"reasonably precise specifications," Ramey v. Martin Baker Aircraft

Co., et al., 656 F. Supp. 984, 993-995 (D. Md. 1987), lack merit.

Her opinion expressly cites this case (Report at 4, N.2). Ramey is

distinguishable because the specifications discussed therein were

not the precatory specifications reliea upon here by the plaintiffs.

Plaintitfs additionally contend that Magistrate Chasanow

converted the government contractor defense into the much older

B-3

"specification defense.” Plaintiffs allege that it is insufficient for a

contractor to simply supply the device shown in the blueprints,

(Objections, p. 19) and that MDC does not enjoy the status of a

non-designing contractor who merely manufactures products made

in accordance with some third-party’s specifications (Objections, p.

21).

This argument misses the point. Contractors are prohibited

by contract from manufacturing and delivering anything except

equipment conforming to the ultimate quantitative design

specifications. Therefore, the Magistrate was correct in

determining that "[t]he second element - conformance - must be

tied to the first element . . . [w]hatever reasonably precise

specifications are approved are the ones to which the contractor’s

product must conform,” Report at 6. See Boyle, 108 S. Ct. at 2518.

Plaintiffs also claim that MDC failed to carry its burden of

proof on this dispositive motion and that there exist several

questions of material fact to preclude judgment in MDC’s favor.

They allege that Magistrate Chasanow improperly engaged in a

great deal of fact finding and resolution of disputes as to factual

matters. (Objections, p. 24). This motion does not involve

determination of facts; rather, it involves a question of law. This

Court agrees with Magistrate Chasanow that the plaintiffs have not

presented evidence which reveals a material breach in the landing

gear from the ultimate design specifications. Rather, the plaintiffs

have nc’ satisfied their burden in response to this motion.

Finally, plaintiffs claim that they were never granted leave to

file a rebuttal brief. The- Court notes that the plaintiffs did not

submit 2 copy of their rebuttal brief along with their motion, as is

customary. Nevertheless, plaintiffs have had an opportunity to

make any additional arguments through their objections. The

Court finds that there has been no prejudice to the plaintiffs, as

this Court has given de novo review of the motion. Moreover, the

filing of a rebuttal brief is not a right provided by the Local Rules.

Local Rule 6.

For the aforegoing reasons, the defendant’s motion shall be

granted. A separate order shall be entered.

Joseph C. Howard

United States District Judge

B-4

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CAROL ANNE KLEEMANN, et al.

V. Civil Action No. JH-87-3249

McDONNELL DOUGLAS CORPORATION

MAGISTRATE’S REPORT AND RECOMMENDATION

Currently pending before the court is defendant’s motion for

summary judgment on the basis of the government contractor

defense (Paper No. 38). Plaintiffs have filed a response to

defendant’s motion (Paper No. 48), and McDonnell Douglas filed

a reply (Paper No. 53).

The parties agree on the law controlling the government

contractor defense. A defendant is entitled to judgment if it can

prove three elements: (1) The United States approved reasonably

precise specifications; (2) the equipment conformed to those

specifications; and (3) the supplier warned the United States about

dangers in the use of the equipment that were known to the

supplier but not to the United States. Boyle v. United Technologies

Corp., 108 S.Ct. 2510, 2518 (1988). This is an affirmative defense,

and the defendant bears the burden of persuasion at trial on these

issues.

The Fourth Circuit has said the following about summary

judgment:

Summary judgment is proper only when it is clear that

there is no dispute concerning either the facts of the

controversy or the inferences to drawn from those facts.

Morrison v. Nissan Motor Co., 601 F.2d 129, 141 (4th

Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d

390, 394 (4th Cir. 1950). The party seeking summary

judgment carries the burden of showing that there is no

genuine issue as to any material fact in the case. Fed.

R. Div. P. 56(c); Charbonnages de France v. Smith, 597

C-1

F.2d 406, 414 (4th Cir. 1979). When determining

whether the movant has met its burden, the court must

assess the documentary materials submitted by the parties

in the light most favorable to the non-moving party. Gill

v. Rollins Protective Services Co., 773 F.2d 592, 595 (4th

Cir. 1985).

Pulliam Inv. Co., Inc. v. Cameo Properties, 810 F.2d 1281, 1286

(4th Cir. 1987). Because defendant bears the burden of proof on

the affirmative defense asserted, it is its responsibility, as the

moving party, to support its motion with appropriate affidavits or

other similar evidence. Defendant claims that the material facts

are not in dispute and that it is entitled to judgment as a matter

of law. Plaintiffs, in their opposition, dispute only the second

element of the government contractor defense, whether the

product conformed to the specification requirements. In addition

to contending that defendant is not entitled to summary judgment,

plaintiffs contend that they are entitled to judgment in their favor

on the inapplicability of the government contractor defense

because the evidence conclusively show that the product failed to

comply with the specifications.

The policy invigorating the government contractor defense is

that the inherent conflict between the assertion of state law

liability for defective design and the contractual duty imposed by

the federal government on the supplier to provide a product built

to precise specifications cannot be countenanced. The conflict is

resolved by immunizing the contractor from state law liability

regarding products for which specifications are prescribed by the

government. Few cases have confronted the issue in precisely the

way raised here. Unfortunately, little guidance is given as to the

identification of those specifications to which the product must

conform in order to meet the defense. The dispute between the

parties in this case is whether those specifications include all

contract requirements from the beginning of the design process, or

whether they refer solely to the ultimate design specifications for

the particular landing gear which is alleged to have failed.

Plaintiffs interchangeably refer to the element of the government

contractor defense as whether the product satisfies the

"contractually imposed requirements,” or the "government approved

specifications,” or the "imposed specification requirements,” or the

"government-approved design specifications.” Plaintiffs state that

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"under Boyle, it is McDonnell Douglas Corp. which must bear

responsibility for building a product which conforms to and satisfies

the requirements of the design approved by the Navy."

Defendant’s reply points out that there is and must be a distinction

between the ultimate specifications for particular mechanism and

the precatory specifications used at the outset of a procurement

process. Defendant assets that neither these early procurement

specifications nor ancillary contract requirements are the

"reasonably precise specifications” referred to in the government

contractor defense.

At the time of the accident, the landing gear according to

defendant, conformed to the specifications in LAFC 40A. (Def. Ex.

No. 8 and No. 2 at paragraph 18).' That design was a Navy

approved modification to the original design of the landing gear in

the F/A-18 aircraft.2 Plaintiffs do not dispute this assertion.

Rather, they claim that the design used in the LAFC 40A failed to

conform to other contractual specifications. Plaintiffs claim that

[t]he evidence conclusively shows that the design of the

F/A-18 main landing gear planing mechanism and

associated lock linkages does not now conform, and

never has conformed, to the specification requirements

and in fact and law materially deviates from those

specifications.

C-3

1 Exhibits will be identified as follows:

Appendix to Defendant’s Motion fcr

Summary Judgment: Def. Ex. No.

Appendix to Plaintiffs Response: Pl. Ex. No.

Appendix to Defendant’s Reply: Def. Reply

Ex. No.

2 For another case applying the Government Contractor Defense to a

component of the F-18, see, Ramey v. Martin-Baker Aircraft Co., 656 F.Supp. 984

(D.Md. 1987). Judge Northrop’s opinion contains a detailed description of the

design process, 656 F.Supp. at 993-95.

Plaintiffs’ Response at 4. They rely on Pl. Ex. 14,° a letter

from McDonnell Douglas to the Department of the Navy in

November of 1984. In that letter, defendant "acknowledges the

condition described in reference (a) as a defect, constituting non-

compliance with the requirements of the subject contract (s).”

Reference (a) is a Notification of Defect dated November 8, 1983,

Stating that conditions in the design of the F/A-18 cause bending

of the left and right main landing gear planing links.‘ That Notice

of Defect preceded the redesign that was on Captain Kleemann’s

plane, but plaintiffs claim that the letter acknowledges that bending

of the landing gear constitutes non-conformance with specifications.

The letter specifically states that a suspected defect in the skid

control valve was not the problem. Rather, the design change in

Interim Airframe Change (IAFC) 40A was the agreed upon

solution.

Similarly, plaintiffs point to Pl. Ex. No. 3, a September, 1987

letter from the Navy identifying the planing link failures as non-

conformance to service life requirements in the contracts.* The

specific provisions violated are MIL-A-88-66, found as Pl. Ex. No.

27, and imposed by S. D. 565-1-5, described in Def. Ex. No. 1 at

5-1.

Plaintiff would put a government contractor in a Catch-22

situation by making it possible to meet either of the first two

requirements of the government contractor defense, but not both.

The first prong requires government approval of reasonably precise

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3 Identical to Pl. Ex. No. 33.

* Pl. Ex. No. 31 is that Notification of Defect.

* Defendant’s assertion that post-accident developments may not be used to

assess its defense cannot withstand analysis. It claims, both under Fed. R. Civ.

Evid. 407 and general principles of relevancy, that consideration of later events is

improper. Evidence is excluded under Rule 407 when a subsequent remedial

measure is used "to prove negligence or culpable conduct.” Here, it is not the

implied admission inherent in a remedial measure that is being offered. Rather,

the explicit acknowledgements that the bending problem is a defect of some sort

is asserted as having evidentiary value. Further, the evidence is not offered to

prove culpability, but to prove defendant’s and the Navy’s interpretation of the

applicable specifications or requirements, see, e.g, Ryan v. Port of New York

Authonity, 281 A.2d 539 (NJ. Super. 1971), cited in 23 C. Wnght and K. Graham,

Federal Practice & Procedure §5290 at 149 (1980). Swmilarly, the interpretation of

specifications by contractor and government is a relevant inquiry in this case.

specifications, and not the mere setting of "performance

specifications.” Koutsoubous v. Boeing Vertol, Div. of Boeing Co.,

755 F.2d 352, 355 (3rd Cir.), cert. denied, 106 S. Ct. 72 (1985);

Wilson v. Boeing Co., 655 F.Supp. 766, 773 (E.D. Pa. 1987). The

second element - conformance - must be tied to the first element.®

Otherwise, it would be nearly impossible to establish the defense

in a design defect case. Plaintiffs would deny the defense

whenever the precise specifications ultimately approved by the

government turn out not to meet the more general performance

requirements set out at the beginning of the process. That is not

the law. Rather, whatever reasonably precise specifications are

approved so as to satisfy the first element of the defense are the

ones to which the contractor’s product must conform. Here, that

is LAFC-40A. Plaintiffs do not contend that there was a material

breach with regard to that detail specification and defendant’s

affidavits reveal none, Wilson, 655 F.Supp. at 744 ("Failure of

contractor to conform to the specifications defeats the defense only

it the discrepancy was a material one.”)

A contractor does not enjoy immunity when the government

contracts for a product and merely specifies capacity, for example,

and leaves "the precise manner of construction,” 108 S.Ct. at 2516,

to the contractor. When the precise construction specifications are

prescribed or approved by the government, the contractor cannot

be held responsible for compliance with what turn out to be

inconsistent capacity or performance specifications. Defendant was

not at liberty to change the landing gear design, once approved by

the Navy, even if it found the design not to meet general contract

requirements. Without approval from NAVAIR engineering, no

modifications were possible, see, e.g., Def. Ex. 30, entry no. 48 and

55. Furthermore, some of the contract requirements are so

general - and sweeping - so as to be meaningless. Certainly, a

requirement like "3.3.6.1 Flight Safety,” cannot be one of the

C-5

® The District Court in Koutsoubous, 553 F.Supp. 340, 343 (E.D. Pa. 1982),

aff'd, 755 F.2d 352 (3rd Cir. 1985), stated”

This element of the defense calls for a comparison between the

government’s specifications for [the product] with the characteristics

and quality of the product supplied.

7 "When designed according to the environmental and structural requirements

of this specification, the main landing gear assembly shall constitute no hazard to

the safety of flight.”

"reasonably precise specifications" necessary to the government

contractor defense.

Although the Supreme Court in Boyle, 108 S.Ct. at 2518,

ultimately rejected formulation of the defense adopted by the

Eleventh Circuit in Shaw v. Grumman Aerospace Corporation, 778

F.2d 736 (11th Cir. 1985), cert. denied, 108 S.Ct. 2896 (1988), that

opinion is instructive for its definition of "specifications:"

Specifications may be minimal or detailed, quantitative or

qualitative, general or specific; they may range from

meticulous descriptions of each bearing and bushing

required, to vague hopes for "simple" or "failsafe"

products. At times, several sets of specifications,

sometimes conflicting, may govern a product’s design all

at once: e.g., one “spec” requiring back-up or redundancy

systems in all products, another urging ease of

maintenance, a third mandating combat effectiveness, a

fourth seeking cost containment, and a fifth prescribing

the dimensions of a washer. Worse still, these

specifications may be promulgated by several different

sources, military or civilian, at different times over the

life of a product.

Although we are conscious of some overlap, for purposes

of our analysis we divide specifications into two type: (1)

detailed, precise and typically quantitative"* specifications

for manufacture of a particular military product - that is

to say, the design or blueprint for production; and (2)

more general and more qualitative specifications, such as

performance or mission criteria - that is to say, all other

specs besides type one.

This, of course, includes schematic and "detail’ drawings

and written directives as well as figures.

778 F.2d at 745.

Only the first type of specification is relevant to elements of

the government contractor defense. The second type is of no use

whatsoever in applying the defense for, as so aptly stated by the

Eleventh Circuit:

Where the resulting product "fails" (crashes, explodes,

aborts or otherwise injures someone) the design a prion

is unlikely to meet the military’s general qualitative

specifications: that is, it has not in fact accomplished its

mission, or performed prcperly, simply, or safely.

778 F.2d at 745 (footnote omitted). Thus, a claim that the design

of a product contained in the precise type 1 specifications does not

conform to general type 2 qualitative specifications reflects a

discrepancy that does not defeat the defense.

Plaintiffs’ claim here is that defendant designed,

manufactured, assembled, tested and distributed the F/A-18 and

that it failed to use reasonable care in the design, qualification,

fabrication, assembly, inspection, testing, and evaluation of the

main landing gear and component parts in testing and correcting

the failure of main landing gear planing link assemblies. Further,

the aircraft is alleged to have been in a defective condition,

unreasonably dangerous for its intended use. The goal of the

procurement specifications was to produce a product that was safe

for its intended use. If, as plaintiffs allege, the ultimate design of

the landing gear of the F/A-18 failed to produce a safe aircraft, a

conflict exists between the alleged state law duty to design a

reasonably safe product and the specifications for the main landing

gear, prescribed by the government. The contractor was not,

however, free to alter that design without approval from the

government. When the acts charged as negligent are precisely

those required by the government contract, the second element of

the defense is established.

This is not to say that defendant was at liberty to ignore

design problems. The third element of the government contractor

defense required that any problems perceived by the contractor be

communicated to the government. As stated at the outset,

however, plaintiffs do not contend that there were any dangers

known to defendant, but not to the government. Under these

circumstances, the contractor is immune.

For the foregoing reasons, it is respectfully recommended that

Defendant’s Motion for Summary on the basis of the government

contractor defense be granted.

Deborah K. Chasanow

United States Magistrate

Dated:November 23, 1988

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 89-2032

CAROL ANNE KLEEMAN, Individually

and as the Executive and Personal

Representative of the Estate of

Henry M. Kleemann, as the Guardian

of the minors Katherine M. Kleemann

and Michael Andrew Kleemann; SUSAN E.

SEIDEN; S. S. SEIDEN, JR.

Plaintiffs - Appellants

¥.

McDonnell Douglas Corporation

Defendant - Appellee

No. 89-2047

CAROL ANNE KLEEMAN, Individually

and as the Executive and Personal

Representative of the Estate of

Henry M. Kleemann, as the Guardian

of the minors Katherine M. Kleemann

and Michael Andrew Kleemann; SUSAN E.

SEIDEN; S. S. SEIDEN, JR.

Plaintiffs - Appellees

Vv.

McDonnell Douglas Corporation

Defendant - Appellant

On Petition for Rehearing with Suggestion for Rehearing In Banc

The appellant’s petition for rehearing and suggestion for

rehearing in banc were submitted to this Court. As no member of

D-1

this Court or the panel 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 Williams.

For the Court,

s/John M. Greacen

Clerk

D-2

APPENDIX E

IN THE UNITED STATES OF DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

CAROL ANNE KLEEMANN, et al

Plaintiffs

v. CIVIL NO. JH-87-3249

McDONNELL DOUGLAS CORPORATION

Defendant

ORDER AND JUDGMENT

Upon consideration of the record, the Report and

Recommendation of United States Magistrate Deborah K.

Chasanow dated November 23, 1988, plaintiffs’ objections taken

thereto dated December 5, 1988, and defendant’s response thereto

dated December 22, 1988, it is, pursuant to Fed. R. Div. P. 72,

this _30th day of December, 1988, by the United States District

Court for the District of Maryland,

ORDERED AND ADJUDGED:

1. That the Magistrate’s Report and Recommendation BE,

and the same hereby IS, AFFIRMED and ADOPTED;

2. That the defendant’s Motion for Summary Judgment BE,

and the same hereby IS, GRANTED;

3. That judgment BE, and the same hereby IS, ENTERED

in favor of the defendant and against the plaintiffs;

4. That the Clerk close this case; and

5. That the Clerk mail copies of the accompanying

Memorandum Opinion and of this Orde; and Judgment to

Magistrate Chasanow and all counsel of record.

Joseph C. Howard

United States District Judge

E-1

APPENDIX F

28 U.S.C. § 2860(a)

§ 2680 Exceptions

The provisions of this chapter and section 1346(b) of this title

shall not apply to - -

(a) Any claim based upon an act or omission of an employee

of the Government, exercising due care, in the execution of a

statute or regulation, whether or not such statute or regulation be

valid, or based upon the exercise of performance or the failure to

exercise or perform a discretionary function or duty on the part of

a federal agency or an employee of the Government, whether or

not the discretion involved be abused.

U. S. CONSTITUTION ARTICLE I

Section 1. All legislative Powers herein granted shall be

vested in a Congress of the United States, which shall consist of a

Senate and House of Representatives.

Fed. R. Civ. P. 56(c)

Rule 56. Summary Judgment

served at least 10 days before the time fixed for the hearing. The

adverse party prior to the day of hearing may serve opposing

affidavits. The judgment sought shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with affidavits, if any, show that there was no

genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. A summary judgment,

interlocutory in character, may be rendered on the issue of liability

alone although there is a genuine issue as to the amount of

damages.

Fed. R. Civ. P. 56(e)

Rule 56. Summary Judgment

(e) Form of Affidavits; Further Testimony; Defense Required.

Supporting and opposing affidavits shall be made on personal

knowledge, shall set forth such facts as would be admissible in

evidence, and shall show affirmatively that the affiant is competent

to testify to the matters stated therein. Sworn or certified copies

of all papers or parts thereof referred to in an affidavit shall be

F-1

attached thereto or served therewith. The court may permit

affidavits to be supplemented or opposed by depositions, answers

to interrogatories, or opposed by depositions, answers to

interrogatories, or further affidavits. When a motion for summary

judgment is made and supported as provided in this rule, an

adverse party may not rest upon the mere allegations or denials of

the adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial. If the

adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.

U. S. CONSTITUTION AMEND. VII

AMENDMENT VII - - CIVIL TRIALS

In Suits at common law, where the value in controversy 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, than according to the rules of the

common law.

F-2

APPENDIX G

DEPARTMENT OF THE NAVY

Naval Air Systems Command In Reply Refer To

Naval Air Systems Command Headquarters 13051

Washington, DC 20361-2140 AIR-5116F5/CR

Ser: 3302

SEP 18 1987

From: Contracting Officer, Naval Air Systems Command

To: McDonnell Douglas Corporation, McDonnell Aircraft

Company

P.O. Box 516, St. Louis, MO 63166

Via: Commanding Officer, Naval Plant Representative Officer,

McDonnell Aircraft Company, P.O. Box 516, St. Louis, MO

63166

Subj: CONTRACTS N00019-81-C-0157, | .N00019-82-C-0501,

N00019-83-C-0272, N00019-84-C-0063, N00019-84-C-0270,

N00019-85-C-0250, N00019-86-C-0207, N00019-83-C-0431,

N00019-85-C-0001, N00019-85-C-0009, N00019-86-C-0323,

N00019-84-C-0200, N00019-85-C-0002, N00019-85-C-0003,

and N00019-85-C-0228, Model F/A-18 Aircraft, Request for

Corrective Action, Main Landing Gear (MLG) Planing Link

Failures.

Ref: (a) MIL-A-8866, Aijrcraft strength and _ Rigidity

Requirements, Repeated Loads, and Fatigue

(b) SD-565-1-5, Detailed Specification for Model F/A-18

Aircraft Weapons System

JAN 84

(d) DOD-STD-480A, Configuration Control, Engineering

Changes, Deviations and Waivers

(e) MR-18-1-4, Project Management Specification

i. Notwithstanding the incorporation of ECP-142R2, and retrofit

of LAFC-040 REV A, the F/A-18 community continues to

experience MLG planing iink failures. The planing links continue

to fail due to the inability of the planing link and its associated

locking links and devices to withstand normal landing loads. This

deficiency is considered continuing non-conformance to service life

requirements for the Main Landing Gear and its components as

G-1

stated in reference (a) and imposed by reference (b). Reference

problem.

2. In order to effect new corrective action, MCAIR is directed to

prepare and submit a Class I Engineering Change Proposal (ECP)

to correct the deficiency cited. Submittal shall be in accordance

with reference (d) as implemented by reference (e). The ECP

shall have justification code "D" with an urgent priority and include

retrofit recommendations and in warranty retrofit provisions. The

contractor is authorized to proceed with earliest production

affectivity. The contractor is also authorized to prepare and

submit a proposed urgent Interim Airframe Change (IAFC), or

other ID as applicable, including total in-warranty and out-of-

warranty kit requirements. MCAIR is further authorized to

proceed with the procurement/manufacture/providing of in-warranty

kits/material. The in-warranty period shall be that as established

by ECP-00142R2.

3. The designated points of contact at NAVAIR are: Technical -

LCDR Chris Ryder, AIR-5116F5, (202) 746-1173: and Contracts -

Mr. William Stussie, AIR-214E, (202) 692-4835.

4. In the opinion of the PCO, the above direction should result

in no change to the prices of the above-referenced contracts and

authorizes no changes in contract terms of conditions except as

specifically referenced above. If the contractor agrees with all of

the above conditions, it is requested that acceptance be indicated

by signature of an authorized corporate official in the space

provided below within fifteen (15) days of the date of receipt by

MCAIR of this letter. If the contractor does not agree, no action

is to be taken and the PCO is to be so notified within fifteen (15)

days of the date of receipt by MCAIR of this letter.

Accepted

D. T. MUELLER, Director

Typed Name/Title Business Management-FA-18

Date _OCT 16 1987

* As accepted In MCAIR Letter MJA-014-51216

Copy to:

COMNAVAIRLANT NORFOLK VA (522)

COMNAVAIRPAC SAN DIEGO CA (7244)

COMNAVAIRESFOR NEW ORLEANS LA

G-2

APPENDIX H

Extracts From The Deposition Testimony Of David L. Bourisaw,

MDC Section Chief Design, F-18 Main Landing Gear (Retired).

Q Now, with regard to the F-18 main landing gear did CPC

design the gear?

A Yes.

Q Did CPC generate the loads data that the gear had to contend

or copy with in service usage?

Yes.

see

Q_ To your knowledge did McDonnell Aircraft supply data to CPC

in order for them to determine that landing loads that this gear

would be subjected to in service usage?

A Yes.

Q_ Did you have any contact with the furnishing of that data?

Any involvement with it?

A Yes.

Q Can you tell me what that, what your involvement was?

A Certainly. All modifications to the procurement specification

by them went out over my signature.

eee

Transcript Of Deposition Testimony Of David L. Bourisaw Of

August 25, 1988, At pp. 30-31; (415-416).

eee

Q Now, with regard to the attachment to the status report of 3

December 1982, which refers to a sketch depicting a planing

link change, and there’s some data on here about it, do you

know whether that change was ever formalized into a proposal?

A A similar redesign was proposed at a much later date.

Q I really want to know whether at this time, '82-’83, it ever was

formalized into a proposed redesign?

“eke

A The answer is no.

Q (By Mr. Cooper) Was there a reason or reasons it was not

formalized as a design, redesign?

Mr. Winter: The record is Mr. Bourisaw doesn’t know whether

it was formalized.

H-1

Q (By Mr. Cooper) Let me back up a minute. Mr. Bourisaw,

does your answer of no mean that you don’t know whether it

was proposed as a formal redesign or that you do and it was

not?

A The reason given for the redesign, the slapping of that cable

could not be duplicated in a subsequent test program at PAX river

and which resulted in no submittal of a redesign and the proposal.

Mr. Cooper: Miss, would you mark the Status Report of 3

December 1982 as Bourisaw eight? (Plaintiffs Deposition Exhibit

Bourisaw 8 marked for identification.)

*se%

Transcript Of Deposition Testimony Of David L. Bourisaw Of

August 25, 1988, At pp. 48-49; (368-369).

H-2

3 December 1982

Subject:STATUS REPORT: F-18 MLG PLANING/DRIVE LINK

FAILURES (BOWING)

To: W. J. O’Brien

CC: D.L. Bourisaw, R. A. Nunn, H. I. Phillips, D. D. Snyder,

C. T. Will, D. L. Williams

From: J. C. Phillips Plaintiffs Deposition

Exhibit 8

Bourisaw

1. Although we have been unable to conclusively establish the

cause for the bowed planing and drive links (including the F-3

instrumented flight test at PAX), the suspected cause is arresting

cable impact at lift-off.

2. Attached is a sketch depicting a planing link change under

consideration which replaced the internal Belleville springs (which

have been trouble prone) with a dual external concentric spring

package providing substantially more over-center spring force than

the Bellevilles.

FORCE REQ’D TO PULL

LOCK LINK OFF STOP

(GEAR FULLY EXTENDED)

0 Existing System (No "Slop") WEO/TYPE M-45"#

Bellevilles 77.6 LB P=45/SRD=8

Overcenter Spring 35.3 LB

Total 112.9 LBS

0 Existing System (w/Slop")

Bellevilles (.063 slop) 25.9 LB

Overcenter Spring 35.3 LB

Total 61.2 LBS

0 Proposed System (Never "Slop”)

External Springs 146.9 LB

Overcenter Spring 35.3 LB

Total 182.2 LBS

(Note: Stress now wants more force!)

H-3

3. Prototype details for the external spring package are in work

for aircraft trial installation(s) (expected week of 13 Dec). The

existing planing link can readily be reworked into the external

spring configuration simply by removing the Belleville washers and

adding the new components.

4. While there is a chance that this change may not solve the link

bowing problem, the external compression springs provide a

substantial lock link overcenter spring force increase and eliminates

the problem Belleville springs. with their inherent wear/slop

sensitivity.

5. An EJS is being prepared. We may be able to sell the change

as Class II if we can get around the spares situation. Updating

under the Repair of Repairables Contract is not applicable. (per

H. E. Schlichting).

J. C. Phillips

H-4

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Mr. Cooper: Do you know, sir, of your own knowledge

whether or not the United States Navy approved a reasonably

precise set of specifications for the main landing gear for the

F/A-18 main landing aircraft?

I know that the precise set of drawings has been submitted to

the customer for approval.

When you say drawings you're talking about engineering

drawings?

Yes.

Do those engineering drawings contain references to the

various requirements for the landing gear?

Yes.

And do you recall whether or not these drawings contain any

reference to the service life that’s required of the landing gear?

They do. We are stating engineering drawings here and I also

refer to a set of procurement specifications that documented

service life that were submitted to the customer along with the

detail drawings.

So you are now telling me that document that we discussed last

time which was marked for identification Palmer Exhibit

Number One the Procurement Specification PS 74-410051 was

likewise submitted to the Navy?

Yes.

Do you know of your own knowledge whether or not that

United States Navy approved that specification?

Approval is understood if contractor, I mean, if the

Government or United States Navy does not take exception in

the document as submitted.

Are you telling me approval by acquiescence?

Yes.

And if the Government or the customer, your customer, takes

exception to some portion of the procurement specification or

engineering drawings or any associated materials then that is a

rejection?

They would reject the drawing and we would have to revise the

drawings.

Or the procurement specification, or whatever we're talking

about?

Yes.

Transcript Of Deposition Testimony Of David L. Bourisaw Of

August 31, 1988, at pp. 48-50; (534-535).

H-4

APPENDIX I

Extracts From The Deposition Testimony Of Robert W. Palmer,

MDC’s Present United Chief-of-Design F-18 Landing Gear Group.

Q During the course of your work here at McDonnell Douglas,

have you ever had occasion to prepare what is known at a

procurement specification?

A Yes.

Q_ I have been furnished a copy of the procurement specification

for the F-18 main landing gear which reflects on its face page

that it was prepared by Robert W. Palmer. I presume you're

that individual?

A Yes.

Q Now, this thing carries a date of 1976, and that would seem to

fall within the period as to when you were working on the

F-18 program for approximately five years?

A. Yes.

Q. Tell me during that five year period when you were on the F-

18 program what your job title or titles were.

A Engineer, Design, and then toward the latter part I was

promoted to Senior Engineer.

Q Before you prepared procurement specification 74-410051, had

you worked on any similar document in the past?

A No.

Q (By Mr. Cooper) Let me show you a copy of the document

that I have been furnished by McDonnell Douglas, and it is

report number PS 74-410051 entitled Procurement Specification

For F-18 Main Landing Gear_Assembly and carries an issue

date of 27 March °76, and it has a revision date of 3

September 76. You just take as long as you need to.

Q ... Did you prepare that document?

A Yes.

Q Now, do you recall who assigned you that task?

A David Bourisaw.

Q Was he the man that gave you your work?

A Yes.

“ses

I-1

Q Were you given any guidance or direction or form to follow?

I'm really trying to get a feel for how this was done.

A Primarily all the procurement specs are begun with what they

call a boiler plate which gives a general outline as to what

should be contained in the spec, the order in which those items

appear, and based on that, that forms the outline for the spec.

And then respective groups give inputs for their specific areas.

*“*#ee

Q Now, where did you get the requirements for the gear, the

specific requirements that you included in the procurement

specification?

A They were derived by the various groups that supplied me

information. In other words, the loads people would supply

loading information,the stress people, stress information, and

those are based upon the total aircraft performance

specifications.

**#ee

Q Okay. Where did you get the information as to which military

spec would apply to which paragraph in the spec?

A That was based on the boiler plate in some cases, and in other

Cases it was based upon prior procurement specs on previous

airplane designs. And in other cases, based upon what I had

as input from other groups in the design of the F-18.

Q At the time that you were doing this work, had the detailed

specification for the F-18 been finalized with the Navy?

I don’t know.

Do you know whether or not any of the people who were

supplying you data and requirements were getting it from the

detailed specification applicable to the F-18?

A Some of it was, and the detailed spec does call out portions of

some of these military specifications. In fact, the landing gear

section does refer to certain military specifications which apply.

*“**ee

Q Now, thereafter did you have other work in this five year

period that we’ve been talking about when you were an

engineer-design and an engineer in the F-18 Program related

to the F-18 landing gear?

Was there other work besides the procurement specification?

Were you involved in other work?

Yes.

And could you tell me generally, sir, what that involved?

DPrOPY

1-2

rrr,

A It involved receiving and reviewing vender information or in

this case the Cleveland Pneumatics information that was sent

in; also information from other suppliers, I was involved with

doing some drawings, installation type drawings of the gear and

operational details. Primarily the work was wheels, tires and

brakes.

exe

Q To your knowledge, did CPC design the entire main landing

gear it,-luding this mechanism? [the planing link]

A Yes.

Q Okay. Now, at the time they submitted their design and their

verification data, was the amount of tension and compression

that the gear would be exposed to during retraction and

extension set out?

Mr. Winter: In some document?

Q (By Mr. Cooper) In sume document, year. Did they say this

is what’s going to happen?

A I can’t answer for firsthand information.

The Witness: Maybe I misunderstood your question. The spec

did not deal with planing link loads because that is not part of

the spec. It deals with the general landing gear loads.

**k*ee

Q Do you have any information or knowledge as to whether or

not CPC ever submitted verification data or test data or similar

material that purported to show McDonnelle Douglas how

much tension and how much compression forces would be

exerted on this gear through this planing mechanism when the

gear was extended or retracted?

A I can’t answer that.

Q So your answer is you do not know whether or not CPC ever

validated its design of this landing gear planing link mechanism

in terms of the amount of tension and compression forces that

would be exerted on the gear during retraction and extension?

A Yeah. I can’t remember the exact information that was

supplied. They supplied general information on the gear, but the

details of that I can’t recall.

Transcript Of Deposition Testimony Of Robert W. Palmer Of

August 18, 1988, At pp. 8-12, 17, 18, 35-37; (423, 640-645; 653;

655).

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APPENDIX J

Extracts From The Deposition Testimony Of Dennis Gendreau,

MDC Section Chief, Structural And Mechanical Design, Full

Time Member Of The F-18 Landing Gear Autonomous

Investigating Team.

Q What do you consider to be a quantitative requirement?

A Numbers applying to load, combination of loads, cycling, fatigue

spectra, reliability goals.

Q And where did you find those requirements?

A_ I believe most of those will be found in the procurement spec.

eee

Q Tell me what the .. . significance to you is of the fact that the

autonomous team was using the more recent data?

**&ee

A Well, our charter as an autonomous investigation team was to

do everything possible to root out the cause of the problem.

Q (By Mr. Cooper) And to do that, you used the most up-to-date

information you had, right?

A And different techniques, yes.

Q And with the use of up-to-date information and different

techniques, the team identified what it thought to be some

conditions which might be causing these lock links to unlock

and/or these planing links to buckle; is that fair?

“tee

A Yes.

Q Was there any work done to try to figure out how the load

gets from where it was supposed to be inducted into; namely,

the lever, up into this planing link?

****

A The work of the team.

Q (By Mr. Cooper) The autonomous team?

A Yeah, right.

Transcript Of Deposition Testimony Of Dennis Gendreau Of

November 15, 1988, At pp. 43-44, 52-53 & 64-65; (335; 313-315).

APPENDIX K

Extracts From The Deposition Testimony Of Glen Kirkland,

Branch Chief-Design At MDC And Head Of The F-18 Landing

Gear Autonomous Investigating Team

Q Mr. Kirkland, in that regard were the deflections that you all

came up with during the Tiger Team work for conditions 101

through 105 defined in the procurement spec and other

specification requirements, the overall conditions?

A Yes they were.

Q Now if your work, your team’s work, in analyzing this, was

correct and that the amount of deflection generated by one or

more of these five defined conditions was, in fact, what was

causing the planing link mechanism to unlock and planing links

to be bent, would that have been a violation of the

procurement specification paragraph that I just had reference

to?

A If the analysis that we did should turn out to be exactly

correct, then they would be in violation, yes.

**Ke

Q Is there any requirements that landing gear not permanently

deform as a result of a single load application during landing

within the design envelope?

A Yes I’m sure there is a requirement. I’m not sure what

paragraph it’s in.

Transcript Of Deposition Testimony Of Glen Kirkland Of August

31, 1988, At pp. 72 & 79; (394, 537).

K-1

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.