Petition for Writ of Certiorari — Chase v. Lockheed Corp.

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No. 96 §50 0CI 319%

LPS + # fee

In The

Supreme Court of the United States

October Term, 1995

+

SIGRID CHASE, DEBORAH CLEYMAN, JUDY

GORDON, SULEMA R. VILLARREAL, ELVIRA

HERRERA, SUSAN JEAN PRICE, SYLVIA GARZA,

individually and in their representative capacities;

BARBARA KNUTSON, DAVID EDWARD PEREZ,

JOSEPH MANUEL PEREZ, JOHN PAUL PEREZ,

DANIEL RICHARD PEREZ, individually; and

ESTHER PEREZ, as next friend and guardian

of JAMES PEREZ, a minor,

Petitioners,

Vs.

LOCKHEED CORPORATION and

GENERAL ELECTRIC CORPORATION,

Respondents.

¢

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

S

PETITION FOR A WRIT OF CERTIORARI

°

Mark Hicks

Counsel of Record

Hicxs, ANDERSON & B ium, P.A.

Attorneys for Petitioners

100 N. Biscayne Boulevard

Suite 2402

Miami, Florida 33132

(305) 374-8171

HAGGARD, Parks & Stone, P.A.

Speiser, Krause & Mapo e, P.C.

QUESTIONS PRESENTED

I. WHETHER THE GOVERNMENT CONTRACTOR

DEFENSE FORMULATED IN BOYLE V. UNITED TECH-

NOLOGIES SHIELDS A SUPPLIER OF MILITARY

EQUIPMENT FROM LIABILITY FOR INJURIES AND

DEATH CAUSED BY A DEFECT IN A COMPONENT

PART OF THE EQUIPMENT WHERE (1) THE GOVERN-

MENT DID NOT SUBSTANTIVELY EVALUATE AND

THEREAFTER APPROVE THE PARTICULAR FEATURE

OF THE COMPONENT CLAIMED TO BE DEFECTIVE;

(2) THE SUPPLIER ALTERED THE COMPONENT PART

MANUFACTURER’S ORIGINAL DESIGN, WHICH

COMPLIED WITH THE APPLICABLE SPECIFICATIONS,

WITHOUT INFORMING THE GOVERNMENT OR THE

COMPONENT PART MANUFACTURER; AND (3) THE

GOVERNMENT’S KNOWLEDGE OF THE COMPO-

NENT’S PHYSICAL CONFIGURATION DID NOT

EQUATE TO KNOWLEDGE OF THE SUPPLIER’S

DESIGN ALTERATION AND THE RISK POSED

THEREBY.

Il. WHETHER THE CHOICE AND APPLICATION

OF GEORGIA LAW TO PETITIONERS’ TORT CLAIMS

ARISING OUT OF AN AIRCRASH OUTSIDE OF GEOR-

GIA IS FUNDAMENTALLY UNFAIR AND VIOLATES

DUE PROCESS WHERE PETITIONERS AND THEIR

DECEDENTS HAD NO CONTACTS WITH GEORGIA

AND EVEN GEORGIA COURTS WOULD NOT HAVE

APPLIED GEORGIA SUBSTANTIVE LAW HAD SUIT

BEEN BROUGHT THERE.

ii

LIST OF PARTIES

The names of all parties to the proceedings in the

court whose judgment is sought to be reviewed are as

follows:

Veda Bradshaw

James W. Chase

Sigrid Chase

Deborah Cleyman

Alicia Galvan

Lorenzo Galvan

Laquinta Gardner

Samuel Gardner, Sr.

Sylvia Garza

General Electric Corporation

Judy Gordon

Elvira Herrera

Barbara Knutson

Glynda Knutson

Lockheed Corporation

Gloria Mendoza

Daniel Richard Perez

David Edward Perez

Esther Perez

James Perez

John Paul Perez

Joseph Manuel Perez

Olga Perez

Susan Jean Price

Veronica Sheffield

Sulema R. Villarreal

Ofelia Wilson

iii

LIST OF PARTIES - Continued

Petitioners are unaware of any parent or subsidiary

company of any party to be listed. Petitioners defer to -

Respondents Lockheed Corporation and General Electric

Corporation on this point.

iv

TABLE OF CONTENTS

Page

CAFS GGMUD WURMEWEINE? 0 os cccesn xadevusenswaxaga i

LPS SEN RONUUNUUEE WA GON4C CCAD) RRC Coa AL ORAS ineR CON ii

pe RS i err erere rer error iv

SO Ge PERF SOUR Co. Spc dace usdcctesesevaces vi

Cr ee IOE UURNEF Kit ban ckad es anseatipekssscaedans 1

STATEMENT OF JURISDICTION. ..............000. 1

CONSTITUTIONAL PROVISION INVOLVED....... 1

SEARS GO TERE CAGE. oo cc ccivccacsesussescs 2

(i) Overview of Proceedings Below ............... 2

Ce NE Sige y Sen VERE GAS KEK oad ee eae eae sais 3

Pin, WE NU 5 6 44504 cab ods Ke ncKAs eee enansy) 3

ie WE MINOR. ort inceeccehsvapedeesascs 5

C. Texas’ and Georgia’s contacts for choice-of-

PREETI rE ee re Te Cee Ory TT eT ee 6

D. The government contractor defense ....... 7

(iii) The Court of Appeals’ Ruling................ 8

REASONS FOR GRANTING THE WRIT ........... 10

Vv

TABLE OF CONTENTS —- Continued

Page

I. THE DEFENSE FORMULATED IN BOYLE DOES %

NOT SHIELD A SUPPLIER OF MILITARY

EQUIPMENT FROM LIABILITY FOR INJURIES

AND DEATH CAUSED BY A DEFECT IN A

COMPONENT PART OF THE EQUIPMENT

WHERE (1) THE GOVERNMENT DID NOT SUB-

STANTIVELY EVALUATE AND THEREAFTER

APPROVE THE PARTICULAR FEATURE OF

THE COMPONENT CLAIMED TO BE DEFEC-

TIVE; (2) THE SUPPLIER ALTERED THE COM-

PONENT PART MANUFACTURER’S ORIGINAL

DESIGN, WHICH COMPLIED WITH THE

APPLICABLE SPECIFICATIONS, WITHOUT

INFORMING THE GOVERNMENT OR THE

COMPONENT PART MANUFACTURER; AND

(3) THE GOVERNMENT’S KNOWLEDGE OF

THE COMPONENT’S PHYSICAL CONFIGURA-

TION DID NOT EQUATE TO KNOWLEDGE OF

THE SUPPLIER’S DESIGN ALTERATION AND

THE KISK POSED THEREBY ........ccecvscaee 12

Il. THE CHOICE AND APPLICATION OF GEOR-

GIA LAW TO PETITIONERS’ TORT CLAIMS

ARISING OUT OF AN AIR CRASH OUTSIDE OF

GEORGIA IS FUNDAMENTALLY UNFAIR AND

VIOLATES DUE PROCESS WHERE PETI-

TIONERS AND THEIR DECEDENTS HAD NO

CONTACTS WITH GEORGIA AND EVEN

‘GEORGIA COURTS WOULD NOT HAVE

APPLIED GEORGIA LAW HAD SUIT BEEN

PR NGE, - SERED 0-655 -c0 ccke<cn ek chb bon ene one 19

CRITI ha Fe CECE Coe bs be eu ebinbayes bo een hay ss 28

vi

TABLE OF AUTHORITIES

Page

Casss CiTeD

Allstate Ins. Co. v. Hague, 449 U.S. 302, 101 S.Ct.

633, 66 L.Ed.2d 521 (1981)............. 20, 21, 23, 24

Augustine v. Bell Helicopter Textron, 922 S.W.2d 287

CHU. FBG ZPOUR 005 sh ke sierd acess aes ye ORO Re Mek 14

Bardwell v. George Sharp, Inc., 1995 W.L. 386894 *7

CREA. Ets FOU ie BOOP 65 6685 0d UNS Chae Saeed ve 15

Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076

(5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S.Ct.

EGF, GR SRM BOF GEO 60 nkced sak biases re eais 27

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

2510, 101 L.Bd.2d 442 (1988)... ....ccceccscess passim

Butler v. Ingalls Shipbuilding, 89 F.3d 582 (9th Cir.

TFDG} vince scacevesdidenteceséteuedesupwebbavedeces 18

Feldman v. The Kohler Co., 918 S.W.2d 615 (Tex.

FG: THR os cninnsncctshisnnnbscnnuneneddeun ewes 18

Gray v. Lockheed Aeronautical Systems, 880 F.Supp.

ESow (OUER. COR, BORON sas ccccasies setae senseeuneceus 15

Grispo v. Eagle-Picher Industrs., 897 F.2d 626 (2d

CAR, BODE wk nikon kannese be une tesnh inc sebh aiebee Xa 14

Hartford Accident & Indem. Co. v. Delta Pine Land

Co., 292 U.S. 143, 54 S.Ct. 634, 78 L.Ed. 1178

4h | ae ee [ewe Cas taebexk las eubin berkeh eas 20

Home Ins. Co. v. Dick, 281 U.S. 397, 50 S.Ct. 338, 74

Leds: Dae SNE kos Wnd0 608 book cse cab enkkaeee 20, 21

Vii

TABLE OF AUTHORITIES - Continued

Page

Huddy v. Fruehauf Corp., 953 F.2d 955 (Sth Cir.),

cert. denied, 506 U.S. 828, 113 S.Ct. 89, 121

Re Oe Sis 0k 000 60s cancneanevennnds asters 26

In re San Juan Dupont Plaza Hotel Fire Litig., 745

F.Supp. 79 (D. P.R. 1990) .........seeeeeeeeeeeeeee 21

Jaurequi v. John Deere Co., 986 F.2d 170 (7th Cir.

TOR cb 6 ks cnn ecs 46banksi nee gs GARid eel Pe ORhs capes 25

Kleeman v. McDonnell Douglas Corp., 890 F.2d 698

(4th Cir. 1989), cert. denied, 495 U.S. 953 (1990) .... 16

Lopez v. Arco Corp., 584 S.W.2d 333 (Tex. App.

| er rmrre rrr wr recs eres rhe ee ee 27

Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242

C5 COE, SOc iene npie ds Kedent se seapins sé once she 26

Myers v. Hayes Intern. Corp., 701 F.Supp. 618 (M.D.

PR, Bea Kote eo kno bes Cnc donK CAs cakens onde sens 25

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105

S.Ct. 2965, 86 L.Ed.2d 628 (1985)........... 11, 20, 26

Ritch v. A.M. General Corp., 1996 W.L. 310297

(D.N.H. Mar. 28, 1996). .....ccccccccccscccescccess 17

Rolen v. Burroughs Wellcome Co., 856 S.W.2d 607

(Tex. App. 1993)....... cece cece cece ee eee eran eeees 27

Soo Line Railroad Co. v. Overton, 992 F.2d 640 (7th

Ne reer ese rr er Tirtey Tree ee tae 26

Stecyk v. Bell Helicopter Textron, 1996 W.L. 153555

(E.D. Pa. April 1, 1996).........ccceeeeeeevceveeee 18

Tate v. Boeing Helicopters, 55 F.3d 1150 (6th Cir.

Pees CP e eer ete oi TT oe TT TTC TTT ctrl 14, 17

viii

TABLE OF AUTHORITIES - Continued

Page

Trailways, Inc. v. Clark, 794 S.W.2d 479 (Tex. App.

BOs dake kee ee a eas deen him 26

Yates v. Lowe, 348 S.E.2d 113 (Ga. App. 1986)........ 24

CONSTITUTIONAL PROVISIONS AND STATUTES CITED

Be SEL Th ND SA a CRIN pees OCRed eee cb neee ak 13

United States Constitution, Section 1 of Amend-

RE BEN 6 Foose CL aba chhe ck aS Heel eeES 1

OTHER AuTHoritigs CITED

E. Scoles & P. Hay, Conflict of Laws (1988 Supp.) .... 22

George, “Choice of Law Outline for Texas

Courts,” 18 Tex. Tech L. Rev. 785 (1987) .......... 22

Posnak, “The Court Doesn’t Know its Asahi from

its Wortman: A Critical View of the Constitu-

tional Constraints of Jurisdiction and Choice of

Law,” 41 Syracuse L. Rev. 875 (1990).............. 23

R. Lefler, L. McDougal & R. Felix, American Con-

Pf ge error re Poer Pre ree 22

Restatement (Second) of Conflict of Laws

Bryer eres pears tree 20, 23, 24

Silberman, “Shaffer v. Heitner: End of an Era,” 53

PG, Caps UE ee ROE Sicec hose v ender eeintes thes 23

APPENDIX

Appendix 1 —- Opinion of the United States Court

of Appeals for the Fifth Circuit dated April 29,

ROW Aus 00s 50 4646 een d ed Pal ave Mees ee SeeN ES App. 1

ix

TABLE OF AUTHORITIES - Continued

Page

Appendix 2 — Opinion of the United States Court

of appeals for the Fifth Circuit dated July 6,

og EE ee ee TT Tet eT Pe er pone App. 21

Appendix 3 - Memorandum and Order of the

United States District Court Western District of

Texas dated November 26, 1993.............. App. 24

Appendix 4 — Excerpts of the Oral Deposition of

Richard E. Young taken on October 12, 1993 App. 34

Appendix 5 — February 10, 1992 letter to Mr. Charles

Jurek, Deputy Division Chief, Kelly Air Force

Base, Texas, from R. E. Young, Manager TF39 Pro-

grams, General Electric Corporation ........... App. 44

a

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition for a writ of cer-

tiorari to review the judgment of the United States Court

of Appeals for the Fifth Circuit.

¢

OPINIONS BELOW

The Court of Appeals’ opinion is reported at 81 F.3d

570, and is reproduced in the appendix filed herewith

(“App.”) at App. 1-18. The Court of Appeals’ amended

opinion which denied the petition for rehearing is

reported at 88 F.3d 340, and is reproduced at App. 21-23.

The unreported opinion of the district court which is

particularly pertinent to this petition is reproduced at

App. 24-33.

STATEMENT OF JURISDICTION

The Court of Appeals’ opinion was entered on April

29, 1996. The amended opinion denying the petition for

rehearing was entered on July 5, 1996. Petitioners timely

invoke this Court's jurisdiction under 28 U.S.C. § 1254(1).

7

CONSTITUTIONAL PROVISION INVOLVED

Section i of Amendment 14 to the United States

Constitution provides in relevant part:

No State shall . . . deprive any person of life,

liberty, or property, without due process of law

STATEMENT OF THE CASE

(i) Overview of Proceedings Below

On August 29, 1990, a United States Air Force C-5A

Galaxy aircraft crashed within seconds after takeoff at

Ramstein Air Base, Germany. Thirteen of the seventeen

servicemen aboard the aircraft were killed. Representa-

tives of eleven of the deceased servicemen and one ser-

viceman who survived the crash, some of whom are

Petitioners herein, filed lawsuits in the Texas and Florida

state courts seeking damages from Respondents Lock-

heed Corporation (“Lockheed”) and General Electric Cor-

poration (“GE”) under Texas products liability law. (App.

4-5). Petitioners contended that the crash was caused by

the uncommanded and inadvertent deployment of the

thrust reverser on one of the aircraft’s four engines

shortly after takeoff. (App. 5).

The lawsuits were removed by Respondents to fed-

eral district court in Texas and Florida on diversity juris-

diction grounds. (App. 6). Subject matter jurisdiction was

proper under 28 U.S.C. § 1332. Pursuant to motions filed

by Respondents, the Judicial Panel on Multidistrict Liti-

gation transferred the cases to the Western District of

Texas for pretrial proceedings since most of the plaintiffs

were Texas residents and many relevant documents and

witnesses were located at Kelly Air Force Base in Texas,

Pn CM Te ee Ne en ee en) eee See

ee eee aa ee ee

where the crash “aircraft was modified and maintained.”

(App. 6; R. 2986).

District Judge Morey Sear held that Georgia law gov-

erned the liability issues in the consolidated cases

because the C-5A was designed, manufactured, and

delivered to the Air Force in Georgia. (App. 6). Judge

Sear thereafter granted summary judgment for Respon-

dents, holding that Petitioners’ claims were extinguished

by Georgia’s products liability statute of repose. (App.

6-7). Judge Sear never ruled on Respondents’ alternative

ground for summary judgment, the “government contrac-

tor defense” set forth in Boyle v. United Technologies, 487

U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988).

On appeal, the United States Court of Appeals for the

Fifth Circuit affirmed. The court held that (1) all of Peti-

tioners’ claims, except the “failure to warn” claim, were

barred by government contractor immunity; (2) Georgia

law governed the failure to warn claim; and (3) Respon-

dents had no duty to warn the Air Force about the danger

posed by the circuit design on the facts of this case. (App.

8-19). On rehearing, the court held that Respondents also

had no duty to warn the pilots of the aircraft because the

Air Force was a “learned intermediary.” (App. 21-23).

(ii) Facts

A. The Defect

The C-5A which crashed was being used in support

of the Persian Gulf War’s Operation Desert Storm. The

C-5A was manufactured by Lockheed in Georgia under

contract with the Air Force. GE designed and manufac-

tured the aircraft’s engines, including the thrust

reversers, in Ohio. (App. 2-3).

The evidence was that the C-5A crashed because of

an uncommanded and undetected deployment of a thrust

reverser on one of the two engines on the left side of the

aircraft. Petitioners presented expert testimony that the

improper design and assembly of certain pylon! compo-

nents created a single point electrical failure on takeoff,

leading to an inadvertent deployment of a thrust reverser

which could not be detected by the aircraft’s crew. Speci-

fically, the ground wires for both the thrust reverser

enunciator (operating) circuit and the thrust reverser

indicator (warning) circuits were terminated to the same

grounding stud. The district court noted that if the “sin-

gle point malfunctioned, the thrust reverser system could

remain in an unlocked position [during takeoff] without

the crew being aware of it which could in turn lead to an

uncommanded deployment of the system,” and that the

crash “may have been caused by the design of the single

ground point.” (R. 2604-06).

The evidence furthermore showed that GE had origi-

nally designed the thrust reversers with two separate

grounds for the thrust reverser enunciator and indicator

circuits. (R. 947-48). This dual ground design was chosen

precisely to avoid a single point failure and its hazardous

consequences — a flight crew totally unaware that a thrust

reverser was in an unlocked position during takeoff. (R.

948; S.R. 358-60). Lockheed, however, altered GE’s design

! The pylon attaches the engine to the wing.

ieee ad het Mees

(without telling either GE or the Air Force) and attached

the ground wires for the two circuits to a single ground-

ing stud when it assembled the crash aircraft and other

C-5A’s.?

(S.R. 358-60, 366).

B. The Modification

In 1978, the Air Force complained to Lockheed that

the location of the pylon components on C-5A’s was

contributing to maintenance and overhaul problems.

(App. 3). Pursuant to the Air Force’s request, Lockheed

presented a proposal for the modification of the four

engine pylons on all C-5A’s in service. This proposal,

Engineering Change Proposal (“ECP”) 7054, involved the

redesign of the C-5A’s engine pylons, moved and

rerouted various conduits, including thrust reverser sys-

tems, and replaced original components, filters, bus bars,

wire terminals and grounding studs. (App. 3). Lockheed

thereafter designed and made a kit that the Air Force

used to retrofit the pylons on all C-5A’s. As part of its

assembly of these kits, Lockheed (again) placed the two

connections for the ground wires for the thrust reverser

enunciator and indicator circuits on the same grounding

stud, contrary (again) to GE’s original design. (App. 3; R.

2604, 2605).

2 As will be discussed below, GE asserts that it first learned

that Lockheed had altered its design after the crash occurred in

1990. Moreover, the Air Force ordered a redesign of this

electrical system when it too first learned of the hazardous

condition after the accident.

C. Texas’ and Georgia’s contacts for choice-of-law

Eleven of the twelve deceased/injured servicemen

represented in the consolidated actions were domiciled

and resided in Texas. The vast majority of plaintiffs bring-

ing actions as beneficiaries/survivors under the Texas

Wrongful Death Act and Survival Statute were likewise

Texas residents. None of the decedents or plaintiffs are

Georgia residents or have any contacts or connection with

Georgia. Neither Lockheed nor GE is incorporated in

Georgia and both conduct major business activities in

Texas and have registered agents there for service of

process. Directly pertinent to the sale and maintenance of

the C-5A, Lockheed had a technical representative based

at Kelly Air Force Base in Texas during all times material

to the history of the C-5A aircraft, and Lockheed engi-

neering personnel were in attendance in connection with

the installation of the pylon kits in Texas. The C-5A

aircraft underwent heavy depot-level maintenance in

Texas and it was from Texas that the Air Force lodged

complaints to Lockheed about the configuration of the

pylon components that led to the issuance of ECP 7054.

Further, Lockheed delivered the prototype kit directly to

the Air Force in Texas. Georgia’s only contact is that it

was the place where Lockheed designed, manufactured

and sold the C-5A and replacement pylon kits to the Air

Force. GE designed and manufactured the component

engines and thrust reverser systems in another state and

GE has no place of business in Georgia. The C-5A was

principally used, maintained and hangared outside of

Georgia.

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D. The government contractor defense

Respondents moved for summary judgment on

grounds which included the government contractor

defense. Respondents relied on the affidavits of Lock-

heed’s manager of military contracts and another Lock-

heed employee. These affidavits generally outline the Air

Force’s involvement with the development, production,

and procurement of the C-5A aircraft; neither affidavit,

however, specifically addressed the thrust reverser’s sin-

gle point ground feature which is the product defect

challenged by Petitioners. (App. 10-11; R. 1288-1305). On

that point, Respondents submitted the deposition testi-

mony of Air Force engineer Henry Fraser, who stated that

Air Force engineers involved in the development and

implementation of ECP 7054 (years after the USAF took

delivery of the crash aircraft) knew that the two wires

terminated to a single grounding stud. (App. 12-13).

Petitioners opposed summary judgment with evi-

dence that the electrical system installed by Lockheed

violated its own and government specifications, as well

as applicable Federal Aviation Regulations. (“FAR”). For

example, Lockheed Specification No. 41060 set the perfor-

mance, operational, design, and contractual requirements

under which the C-5A thrust reverser system was built.

This specification incorporated virtually all of the safety

requirements set forth in other specifications and the

applicable FAR’s, and furthermore provided that:

a. The basic fail-safe philosophy for the entire

T/R subsystem . . . shall be that more than

two unrelated failures or malfunctions occur

before the thrust reverser will extend or retract

inadvertently. (R. 1535; S.R. 343).3

Testimony from key GE employees established that:

(1) GE originally designed the thrust reverser electrical

circuitry with separate grounds for the enunciator and

indicator circuits; Lockheed nevertheless installed the

GE-designed system so that both circuits were attached to

the same grounding stud; GE first learned that Lockheed

altered the original design after the accident occurred;

two wires attached to the same grounding stud creates

the potential for a single point failure; and Lockheed’s

attachment of the two wires to one ground violated the

requirements of Specification 41060. (App. 34-45).

What’s more, Petitioners presented evidence that,

after the crash, the Air Force undertook to redesign the

electrical system and issued warnings to C-5A pilots and

flight crews to ensure that inadvertent and undetected

deployment of the thrust reverser would not occur. (R.

1539; S.R. 139, 485-86).

(iii) The Court of Appeals’ Ruling

The Fifth Circuit held that Respondents had estab-

lished all three conditions of the government contractor

defense enunciated in Boyle, 487 U.S 500. According to the

court, the first condition (governmental approval of rea-

sonably precise specifications) was met because Respon-

dents and the Air Force “worked closely together, on the

development of the C-5A from its planning stages to its

3 Throughout this Petition, all emphasis has been supplied

by counsel.

full production,” and Air Force personnel “inspected and

supervised every aspect of the production of the C-5A.”

(App. 10-11). The second condition (conformance to those

specifications) was met because “Air Force inspectors

were present and actively involved throughout the

design, review, development and testing of the C-5A,”

and the “Air Force accepted and has used the C-5A for

over 20 years without any significant problems.” (App.

11-12). The third condition (warning of dangers not

known to the government) was met because the Air

Force, as a result of ECP 7054, had knowledge of the

electrical circuit’s physical configuration and “had to

have seen the stud and been aware of its design.” (App.

12-13). The court thus held that Petitioners’ design defect

claims were barred by government contractor immunity.

i (App. 13).

The court also ruled that a “failure to warn” claim

which is distinct from a design defect claim is not de-

feated by the government contractor defense unless “the

Government was involved in the decision to give, or not

to give, a warning.” (App. 13-14). Without such govern-

mental involvement, the court reasoned, the defendant

cannot establish the “significant conflict between the fed-

eral interest or policy and the operation of state law”

which must be shown before the government contractor

: defense will shield a defendant from liability. (App.

13-14).

PBs DG I Patol Lee wi Posi be

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Pe eC Ne An RR, Mteits ss Soot eB a ae in

The court did not determine whether Petitioners’

| failure to warn claim survived the government contractor

defense, however, finding instead that the record did not

| disclose whether or not Respondents and the Air Force

had discussions about warnings. (App. 14). The court

[ee

10

thus addressed the choice of law issue and the Respon-

dents’ potential liability for failure to warn under the

appropriate substantive law.

The court ruled that Georgia law should apply here

because, in the court’s view, “[v]irtually all of the rele-

vant conduct complained of took place in Georgia,” and

Georgia “thus has the strongest interest in applying its

law to businesses that design, manufacture, and sell

products into its stream of commerce.” (App. 17-18). The

court then concluded that, under Georgia law, Respon-

dents had no duty to warn the Air Force because the Air

Force knew of the danger posed by the circuit design.

(App. 18). On rehearing, the court amended its opinion to

state that Respondents had no duty to warn the pilots of

the C-5A which crashed because the Air Force was a

“learned intermediary.” (App. 22-23).

+

REASONS FOR GRANTING THE WRIT

In Boyle v. United Technologies, 487 U.S. 500 (1988), this

Court recognized the government contractor defense and

rooted that defense in the United States’ immunity from

suit for discretionary decisions. The Fifth Circuit’s hold-

ing in this case is at odds with Boyle, Boyle’s theoretical

underpinnings, and subsequent decisions from the lower

courts since the defense was deemed applicable here as a

matter of law even though there was no evidence that the

Air Force actually substantively evaluated and approved

the particular design feature at issue in this case, and the

Air Force was never told that the contractor had altered

the original design of the challenged component which

11

complied with governing specifications. Moreover, the

Fifth Circuit’s decision in this case sets dangerous prece-

dent since it appears to immunize a contractor from

liability under state law upon mere proof that the United

States had significant involvement with the development

of a particular product in general, or that a governmental

employee came to know of the product’s physical config-

uration. Surely, this was not this Court’s intent when

Boyle was handed down, and the Fifth Circuit’s decision

accordingly should be overturned.

An independent and equally compelling reason for

this Court to grant the writ is to remedy the denial of due

process from the choice and application of Georgia law to

Petitioners’ negligence and product liability claims. The

Fifth Circuit’s choice of law of a state with which the

Petitioners and their decedents had no contacts or con-

nection whatsoever was grossly unfair and contrary to

the parties’ reasonable expectations and requires reversal

of the judgment. See, e.g., Phillips Petroleum Co. v. Shutts,

472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). More-

over, Georgia adheres to the lex loci delicti doctrine and

has disavowed any “state interest” in having its substan-

tive law applied to an extraterritorial aircrash. In a per-

verse twist of irony, had Petitioners filed suit in Georgia,

where Respondent Lockheed manufactured and sold the

defective C-5A, Georgia substantive law would not have

been applied. Given the unfair surprise and Georgia's

lack of any “legislative jurisdiction” over the Petitioners,

the choice of Georgia law and judgment based thereon

cannot stand.

12

I.

THE DEFENSE FORMULATED IN BOYLE DOES NOT

SHIELD A SUPPLIER OF MILITARY EQUIPMENT

FROM LIABILITY FOR INJURIES AND DEATH

CAUSED BY A DEFECT IN A COMPONENT PART OF

THE EQUIPMENT WHERE (1) THE GOVERNMENT

DID NOT SUBSTANTIVELY EVALUATE AND THERE-

AFTER APPROVE THE PARTICULAR FEATURE OF

THE COMPONENT CLAIMED TO BE DEFECTIVE; (2)

THE SUPPLIER ALTERED THE COMPONENT PART

MANUFACTURER’S ORIGINAL DESIGN, WHICH

COMPLIED WITH THE APPLICABLE SPECIFICA-

TIONS, WITHOUT INFORMING THE GOVERNMENT

OR THE COMPONENT PART MANUFACTURER; AND

(3) THE GOVERNMENT’S KNOWLEDGE OF THE

COMPONENT’S PHYSICAL CONFIGURATION DID

NOT EQUATE TO KNOWLEDGE OF THE SUPPLIER’S

DESIGN ALTERATION AND THE RISK POSED

THEREBY.

The Fifth Circuit’s opinion unduly expands the

defense formulated by this Court in Boyle, 487 U.S. 500, at

the expense of those who clearly deserve better - men

and women who serve in our nation’s armed forces, and

their loved ones. In Boyle, this Court ruled that contrac-

tors who supply the United States with military equip-

ment should, under limited circumstances, be immunized

from liability for the breach of duties imposed by state

tort law. The “government contractor defense” will dis-

place tort liability under state law “only where... a

‘significant conflict’ exists between an identifiab'e

‘federal policy or interest and the [operation] of state

law....’” Id. at 507 (citation omitted). This Court thus

held that liability for design defect cannot be imposed

under state law where (1) the United States approved

4

4

3

2

a

3

4

3

}

}

4

13

reasonably precise specifications; (2) the equipment con-

formed to those specifications; and (3) the contractor

warned the United States about the dangers in the use of

the equipment known to the contractor but not to the

United States. Id. at 512.

The policy justification for the defense enunciated in

Boyle is that “selection of the appropriate design for mili-

tary equipment to be used by our Armed Forces” is a

discretionary decision for which the Government would

be immune from suit by virtue of the Federal Tort Claims

Act’s discretionary function exception. See 28 U.S.C.

§ 2680(a). 487 U.S. at 511. This Court reasoned that per-

mitting state tort liability would “produce the same effect

sought to be avoided” by the discretionary function

exception since the financial burdens resulting from such

liability would “ultimately be passed through .. . to the

United States” by contractors who would “raise their

prices to cover . . . contingent liability for Government-

ordered designs.” Id. at 511-512.

The Fifth Circuit here unnecessarily strayed from

Boyle and the theoretical underpinnings of that case. The

court concluded that Respondents had met their sum-

mary judgment burden on Boyle’s first condition with the

evidence that Respondents and the Air Force worked

closely together on the development of the C-5A from the

planning stage to its full production and that Air Force

personnel inspected and supervised all aspects of the

production of the C-5A. The court missed the mark in its

analysis because governmental exercise of discretion —

the very basis for the government contractor defense -

cannot be established without proof that the Air Force

14

substantively reviewed and thereafter approved the par-

ticular design feature claimed to be defective. Id. at 512

(the first two elements of the government contractor

defense “assure that the design feature in question was

considered by a Government officer, and not merely by

the contractor itself.”); see Tate v. Boeing Helicopters, 55

F.3d 1150, 1154 (6th Cir. 1995) (defense not available

unless the government in fact made a “judgment as to the

particular feature” in question).

In the present case, Respondents presented no evi-

dence that the Air Force substantively reviewed and

approved the single point ground feature which Lock-

heed assembled after GE had designed a dual ground

mechanism in order to comply with specifications. The

Fifth Circuit’s holding that Respondents established that

the Air Force approved reasonably precise specifications

with evidence that the Air Force was significantly

involved in the development of the C-5A in general cannot

be squared with Boyle and subsequent decisions from the

lower federal and state courts. See Grispo v. Eagle-Picher

Industrs., 897 F.2d 626, 632 (2d Cir. 1990) (“Stripped to its

essentials, the military contractor defense under Boyle is

to claim, ‘The Government made me do it.’ Boyle displaces

state law only when the Government, making a discre-

tionary, safety-related military procurement decision con-

trary to the requirements of state law, incorporates this

decision into a military contractor’s contractual obliga-

tions, thereby limiting the contractor's ability to accom-

modate safety in a different fashion”); Augustine v. Bell

Helicopter Textron, 922 S.W.2d 287, 290 (Tex. App. 1996)

(summary judgment denied despite evidence that “the

Air Force approved reasonably precise specifications

15

regarding the general design of the helicopter” because

there was a fact dispute on whether the Air Force

approved reasonably precise specifications for “the

allegedly defective main driveshaft system”); Gray v.

Lockheed Aeronautical Systems, 880 F.Supp. 1559, 1567

(N.D. Ga. 1995) (defense deemed not applicable despite

evidence that Lockheed and the Navy had “a close work-

ing relationship . . . during the overall design and cre-

ation of the S-3” aircraft which crashed, the Navy

conducted various reviews, audits, and tests of the air-

craft, and the Navy accepted the aircraft: Lockheed “pro-

duced no evidence that the Navy reviewed and approved

specific engineering drawings of the servo [which

allegedly was defective] during any of these events”);

Bardwell v. George Sharp, Inc., 1995 W.L. 386894 *7 (E.D.

La. June 28, 1995) (government contractor defense will be

applied only where the “contractor’s defective design has

been approved by the government, as a matter of public

policy, following a thorough review in which the defec-

tive design received full government consideration”).

Likewise unfaithful to Boyle is the Fifth Circuit's con-

clusion that Boyle’s second condition was met because the

Air Force was closely involved in the production of the

C-5A and accepted and used the C-5A for a number of

years before the accident occurred. Evidence supplied by

GE established that it designed the system with separate

grounds for the enunciator and indicator circuits in order

to preclude the single point failure which occurred here.

(App. 34-45). The letter from GE’s representative to the

Air Force in response to the Air Force’s request for input

on the post-crash modification of the electrical system

speaks volumes on this point:

16

As you are undoubtedly aware, the proposed

modifications address aspects of the Thrust

Reverser System that were not originally designed

by [GE].

* * *

[GE] recommends that SAALC provides a separate

ground for the Thrust Reverser System indication

lights, i.e., split the common ground. In fact, [GE]

designed the system with separate grounds; thus

provisions for separate grounds are already

available in the existing Thrust Reverser wiring

harness. Splitting the common ground would pre-

clude a single point failure mechanism and provide

the desired redundant warning system. (App.

44-45).

For whatever reason, Lockheed, without telling GE or the

Air Force, assembled the system and attached the wires

for the enunciator and indicator circuits to a single

ground stud. Witnesses from GE furthermore testified

that Lockheed’s installation violated Specification 41060,

which expressly provided that “more than two unrelated

failures or malfunctions [must] occur before the thrust

reverser will extend or retract inadvertently.”

The Fifth Circuit concluded that the specifications

Petitioners relied upon to oppose summary judgment

related only to “general design specification[s] . . . not

contemplated by the first element of the Boyle test

because ‘[o]nly the detailed, quantitative specifications -

and not those calling for such vagaries as a failsafe,

simple, or inexpensive product — are relevant to the gov-

ernment contractor defense.’ ” (App. 11) (quoting Kleeman

v. McDonnell Douglas Corp., 890 F.2d 698, 703 (4th Cir.

1989), cert. denied, 495 U.S. 953 (1990)). Petitioners submit

17

that this holding finds absolutely no support in Boyle and

is furthermore belied by the unrefuted evidence that GE

designed the electrical system with separate grounds pre-

cisely to comply with Specification 41060 and to prevent a

single point ground failure. Under these circumstances, a

governing contract document such as Specification 41060,

which undoubtedly is detailed and quantitative, can

hardly be characterized as merely precatory or general

and thus entirely irrelevant to the contractor immunity

inquiry. At the very least, this Court should grant cer-

tiorari review in this case to flesh out the contours of this

aspect of Boyle.

The Court of Appeals also held that Respondents

established Boyle’s third condition because ECP 7054 did

not change the single point ground feature and Air Force

engineers involved in this modification years after the

Air Force took delivery of the C-5A “had to have seen the

stud and been aware of its design.” (App. 13). This inter-

pretation of Boyle all but nullifies Boyle’s final require-

ment for immunity from state tort liability.

This Court in Boyle mandated that contractors warn

the United States of dangers in the use of the equipment

not known to the United States “lest our effort to protect

discretionary functions perversely impede them by cut-

ting off information highly relevant to the discretionary

decision.” Boyle, 487 U.S. at 512-513; see Tate, 55 F.3d at

1156 (“the third condition of Boyle . . . encourages con-

tractors to provide the government with all information

required to soundly exercise its discretion”).*

4 See also Ritch v. A.M. General Corp., 1996 W.L. 310297 *2

(D.N.H. Mar. 28, 1996) (“The third condition was adopted to

18

Boyle's third condition, like the first two, plainly is

animated by the Court’s concern that military contractors

not be held liable for judgment calls which are properly

viewed as having been made by the United States. The

United States, however, cannot exercise discretion unless

“the contractor has fully conveyed all information necessary

to allow the government to make a fully informed deci-

sion.” Butler v. Ingalls Shipbuilding, 89 F.3d 582, 584 (9th

Cir. 1996).

Surely, this Court in Boyle did not intend to immunize

a contractor from liability under state law whenever an

employee of the United States merely acquires knowledge

of a product’s physical configuration. This is, however,

exactly what the Fifth Circuit has held. To establish such

immunity, Petitioners submit, the contractor must, at a

minimum, prove “that the government was aware not

only of the design, but also of the risks.” Stecyk v. Bell

Helicopter Textron, 1996 W.L. 153555 9 n. 7 (E.D. Pa. April

1, 1996). Furthermore, the evidence was that Lockheed

never informed the Air Force, prior to the crash of the

C-5A, that it had altered GE’s original dual ground

design, nor was the Air Force told that the single point

ground configuration which Air Force engineers

observed during ECP 7054 deviated from GE’s original

design and also violated the safety specifications. That

the Air Force’s failure to object to Lockheed’s attachment

encourage manufacturers to pass along their knowledge of any

risks, thereby increasing the flow of information available to the

government in making its discretionary decisions”); Feldman v.

The Kohler Co., 918 S.W.2d 615, 625 (Tex. App. 1996) (“the

contractor must warn the government of dangers such that the

government may make an informed choice”).

19

of the two wires to the same grounding stud was not a

fully informed, discretionary, decision is only under-

scored by the Air Force’s actions after the crash, when it

ordered that warnings regarding uncommanded and

inadvertent deployment of thrust reversers be given to

C-5A pilots and crews pending the redesign of the flawed

electrical circuitry. (R. 1539; S.R. 139, 485-486).

In sum, the tragic loss of life in this air disaster case

could have been avoided had Lockheed simply adhered

to GE’s original design and used the two grounding studs

which were readily available. Lockheed’s failure to do so

does not in any way represent an informed exercise of

judgment and discretion by the Air Force. Consequently,

the Fifth Circuit erroneously concluded that the defense

set forth in Boyle barred Petitioners’ design defect claims.

Il.

THE CHOICE AND APPLICATION OF GEORGIA LAW

TO PETITIONERS’ TORT CLAIMS ARISING OUT OF

AN AIR CRASH OUTSIDE OF GEORGIA IS FUNDA-

MENTALLY UNFAIR AND VIOLATES DUE PROCESS

WHERE PETITIONERS AND THEIR DECEDENTS

HAD NO CONTACTS WITH GEORGIA AND EVEN

GEORGIA COURTS WOULD NOT HAVE APPLIED

GEORGIA LAW HAD SUIT BEEN BROUGHT THERE.

The choice of Georgia substantive law in this case is

grossly unfair and violates Petitioners’ rights under the

Due Process Clause of the Fourteenth Amendment. The

Fifth Circuit’s ruling that “the district court correctly

concluded that Georgia law should apply” to Petitioners’

20

claims disregards the “constitutional constraints”5 on

choice of law under state conflicts rules. (App. 15-18). The

lower courts’ holdings directly collide with decisions of

this Court mandating that choice of substantive law not

be fundamentally unfair and contrary to the reasonable

expectations of the parties. See Phillips Petroleum Co. v.

Shutts, 472 U.S. 797, 818-822, 105 S.Ct. 2965, 86 L.Ed.2d

628 (1985); Hartford Accident & Indem. Co. v. Delta Pine

Land Co., 292 U.S. 143, 149, 54 S.Ct. 634, 78 L.Ed. 1178

(1934); Home Ins. Co. v. Dick, 281 U.S. 397, 402-410, 50

S.Ct. 338, 74 L.Ed. 926 (1930).

A choice-of-law decision that frustrates the justi-

fied expectations of the parties can be funda-

mentally unfair. This desire to prevent unfair

surprise to a litigant has been the central con-

cern in this Court’s review of choice-of-law deci-

sions under the Due Process Clause.

Allstate Ins. Co. v. Hague, 449 U-S. 302, 327, 101 S.Ct. 633,

66 L.Ed.2d 521 (1981) (Stevens, J., concurring in judg-

ment). :

In this case, given the complete absence of any con-

tacts between Georgia and the Petitioners or their dece-

dents, the application of Georgia law to the wrongful

death and personal injury claims could not be any more

unfair or unexpected. None of the decedents or benefici-

aries were residents of Georgia; none invoked the laws of

Georgia or claimed any Georgia common law or statutory

5 The lower courts applied the “Most Significant

Relationship” test set forth in Sections 6 and 145 of the

Restatement (Second) of Conflict of Laws [“Rest.”] adopted in

both Texas and Florida, the forum states.

21

rights; none entered or committed any actions within

Georgia territorial boundaries or entered into any con-

tracts with Georgia citizens; none consented to Georgia

state legislative or judicial jurisdiction or requested that

Georgia law govern their rights; none filed a cause of

action in a Georgia court or in any way utilized Georgia

judicial resources; and none had any expectation what-

soever that Georgia law could control or abrogate their

causes of action for injuries sustained in an aircrash out-

side of Georgia.

Without question, the choice of Georgia law worked

a markedly unfair surprise on the Petitioners. Petitioners

and their decedents not only lacked “minimum contacts”

with Georgia, they lacked any contacts at all. This Court

has never sanctioned the choice of law of a state to which

the adversely affected parties had no connection. To the

contrary, the adversely affected parties’ contacts with the

chosen forum have been critical to the Court’s prior due

process determinations. See Allstate, 449 U.S. at 317-318

(upholding choice of Minnesota law where adversely

affected party was at all times present and doing business

in Minnesota); Home, 281 U.S. at 402-410 (finding applica-

tion of Texas law violative of due process where

adversely affected Mexican insurer and New York rein-

surer had no connection to Texas). Lower courts address-

ing the constitutional limitations on choice of law have

likewise noted these essential party contacts. See In re San

Juan Dupont Plaza Hotel Fire Litig., 745 F. Supp. 79, 84 (D.

P.R. 1990) (“Parties cannot be bound by the laws of states

which have no interest in the controversy or to which they

have no contacts.”).

22

Certiorari review in this case would also allow this

Court to give much needed clarification on the relation-

ship between, and party contacts necessary for, choice of

law and “legislative jurisdiction.” The text writers and

legal commentators, who have been almost solely respon-

sible for developing the various conflicts theories

adopted by the states, have long recognized that it is

unconstitutional to choose the law of a state which lacks

legislative jurisdiction over the objecting party. See

George, “Choice of Law Outline for Texas Courts,” 18

Tex. Tech L. Rev. 785, 790-91, 795 (1987) (“Legislative

jurisdiction governs all choice of law problems. . . . This

minimal connection is similar to the minimum contacts

requirement for judicial jurisdiction over nonresident

defendants.”); R. Leflar, L. McDougal & R. Felix, American

Conflicts Law § 55, p.163 (4th ed. 1986) (“In conflict of

laws, [legislative jurisdiction] has come to define the

outer limits to which a court or a legislative directive may

go, and beyond which it may not go, in choosing what

state’s law (whether statutory or judge-made) is to be

applied to any given set of facts.”).

The Fifth Circuit’s decision simply ignores that Geor-

gia cannot exercise legislative jurisdiction over the Peti-

tioners or their decedents who have no connection to

Georgia and thus the application of its law to their tort

claims must be deemed unconstitutional. See E. Scoles &

P. Hay, Conflict of Laws § 3.27[4], p.13 (1988 Supp.) (“It is

unfair to exercise jurisdiction when the person has no

contact with the State. Fairness and the significance of

contacts are measured by purposeful activity directed to

the [state] or by the type and quantum of benefits derived

from the state seeking to exercise power.”). If Georgia

23

itself has no power to directly affect the rights of Peti-

tioners or their decedents, another state should hardly be

allowed to make an end-run around the Constitution

through choice-of-law. Indeed, as is the case with “judi-

cial jurisdiction,” the Constitution should demand that a

state’s contacts with the adversely affected party for

choice of law purposes be equal to or greater than for

purposes of exercising legislative jurisdiction. See Posnak,

“The Court Doesn’t Know its Asahi from its Wortman: A

Critical View of the Constitutional Constraints of Juris-

diction and Choice of Law,” 41 Syracuse L. Rev. 875, 876

(1990); Silberman, “Shaffer v. Heitner: End of an Era,” 53

N.Y.U.L. Rev. 33, 88 (1978).

Clarification on these matters is greatly needed. In an

effort to limit or completely absolve themselves of lia-

bility, defendants in product liability actions regularly

seek application of the law of a foreign jurisdiction to

which the plaintiffs have absolutely no connection. For-

eign manufacturers from all corners of the earth flood

state consumer markets with their goods. Where innocent

users or bystanders are injured by dangerous products,

they surely have no expectation that the manufacturers

can hide behind the law of a foreign jurisdiction (perhaps

half way around the world) in which the injured party

has never even stepped foot. See Allstate, 449 U.S. at 333

(Powell, J., dissenting) (“The touchstone here is the rea-

sonable expectation of the parties.”). Further, as a matter

of policy, were the place of product manufacture a consti-

tutionally sufficient nexus for choice of law in personal

injury actions, manufacturers would be encouraged to

seek asylum in conservative jurisdictions. Cf. Rest. § 145,

comment e (“The place where the defendant’s conduct

24

occurred is of less significance where . . . a potential

defendant might choose to conduct his activities in a state

whose tort rules are favorable to him.”).

Even putting aside that the choice of Georgia law

was fundamentally unfair and contrary to the expecta-

tions of Petitioners and their decedents, Georgia, by con-

tinuing to adhere to the /ex loci delicti doctrine, has made

it abundantly clear that it has no “state interest” in hav-

ing its law applied to actions arising out of an aircrash

outside of Georgia.®

Had the Petitioners filed suit in Georgia, there is

every indication that the substantive law of Georgia

would not have been applied to their claims. See, e.g.,

Yates v. Lowe, 348 S.E.2d 113, 113 (Ga. App. 1986) (“Under

Georgia law the lex loci delicti determines the substantive

rights of the parties in airplane crash cases.”). Georgia’s

own disavowal of any state interest in having its law

applied to an extraterritorial aircrash should end the

matter. Cf. Rest. § 145, comment e (“in judging a state’s

interest in the application of one of its local law rules, the

forum should concern itself with the question whether

the courts of that state would have applied this rule in

the decision of the case. . . . the fact that these courts

would not have applied this rule may indicate that no

important interest of that state would be infringed if the

rule were not applied by the forum”). In any event,

6 See Allstate, 449 U.S. at 307-320 (“[F]or a State’s

substantive law to be selected in a constitutionally permissible

manner, that State must have a significant contact or significant

aggregation of contacts, creating state interests, such that choice

of its law is neither arbitrary nor fundamentally unfair.”).

umes Pr,

25

whatever governmental interest Georgia might have had

dissipated when Respondents’ products were principally

used and maintained in another state and then caused

injury to innocent victims while in the stream of com-

merce outside of Georgia.”

Moreover, given the Georgia courts’ consistent appli-

cation of the lex loci delicti test irrespective of where the

defendant’s wrongdoing occurred, Respondents could

hardly claim they had a reasonable expectation that Geor-

gia law would apply to an aircrash in another jurisdic-

tion. In this regard, the district court’s application of

Georgia law and its statute of repose on the express basis

of Respondents’ justifiable expectations was completely

unfounded. (App. 31). Georgia’s statute of repose was not

even enacted until many years after the C-5A at issue was

designed and manufactured. Respondents clearly had no

expectation that a non-existent Georgia law would gov-

ern an extraterritorial aircrash.®

7 The Fifth Circuit’s opinion noted but failed to expressly

examine the “constitutional constraints” on choice of law. The

court concluded, however, that, because the thrust reverser’s

defective electrical system was manufactured and sold to the

Air Force in Georgia, “Georgia has the strongest interest in

applying its law to businesses that design, manufacture and sell

products into its stream of commerce.” (App. 17-18).

8 See, e.g., Jaurequi v. John Deere Co., 986 F.2d 170, 176 (7th

Cir. 1993)(“Nor can [defendant manufacturer] persuade anyone

that it molded its behavior to conform to the requirements of an

Indiana law enacted . . . three years after it had cast the Corn

Head in the stream of commerce”); Myers v. Hayes Intern. Corp.,

701 F. Supp. 618, 619-25 (M.D. Tenn. 1988)(where plane crashes

in Kentucky and products liability actions are brought in

Tennessee which adheres to lex loci doctrine, Tennessee statute

of repose is inapplicable).

26

The contacts between Georgia and Respondents

alone created no such reasonable expectation and were

constitutionally deficient. See Soo Line Railroad Co. v. Over-

ton, 992 F.2d 640, 643-645 (7th Cir. 1993) (in wrongful

death action filed in Minnesota arising out of extrater-

ritorial accident, choice of Minnesota law violates due

process even though defendant a Minnesota corporation).

Finally, the choice of Georgia law in this case works a

significant adverse impact on the governmental interests

of Texas whose law all Petitioners specifically invoked.

See Phillips, 472 U.S. at 824 (Stevens, J., concurring in part

and dissenting in part) (“potential impact of [choice of

law] on the interests of other sovereign States and the

fairness of [the] decision to the litigants should be sep-

arately considered”). Texas not only has a paramount

interest in providing an adequate remedy for wrongful

death and injury to its residents and those beneficiaries

whose rights are derivative thereof, but in protecting

them from dangerous and defective products especially

where such products are used or maintained in Texas.’

Texas provided Petitioners with negligence and products

9 See, e.g., Huddy v. Fruehauf Corp., 953 F.2d 955, 958-60 (Sth

Cir.), cert. den., 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 52

(1992)(“Texas has a strong commitment to protecting its

residents from defective and dangerous products.”); Mitchell v.

Lone Star Ammunition, Inc., 913 F.2d 242, 250 (Sth Cir. 1990)

(“The Texas legislature and courts have developed an almost

paternalistic interest in the protection of consumers and the

regulation of conduct of manufacturers that have business

operations in the state.”); Trailways, Inc. v. Clark, 794 S.W.2d 479,

486 (Tex. App. 1990).

27

liability causes of action unimpeded by the confines of

Georgia law.!°

In this case, Texas was the critical cross-roads where

the vast majority of the decedents and their beneficiaries

resided and their estates were administered; where both

Respondents did substantial business and had registered

agents for service of process; where the very C-5A aircraft

which would kill the servicemen underwent heavy main-

tenance and a significant modification; where Lockheed

had a technical representative based and engineering per-

sonnel present in connection with the installation of the

defective modified pylon kits; where the ECP 7054 retro-

fit kit was directly delivered; and where Respondents

failed to warn of the dangers or defects associated with

their products. Respondents knowingly subjected them-

selves to the legislative and judicial jurisdiction of Texas.

Texas’ contacts and interests were so overwhelming, of

course, that the actions were consolidated and transferred

to Texas on Respondents’ request. The district court’s and

Fifth Circuit’s subsequent choice of Georgia law to snuff

out Petitioners’ claims was perverse and unconstitutional

10 Texas law, for example, imposes an exacting duty to

warn the ultimate users and employee-users of a product in

addition to the employer-purchaser and limits the “learned

intermediary” doctrine to the physician-patient relationship.

E.g., Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1091 (5th

Cir. 1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107

(1974); Rolen v. Burroughs Wellcome Co., 856 S.W.2d 607, 609 (Tex.

App. 1993); Lopez v. Arco Corp., 584 S.W.2d 333, 335 (Tex. App.

1979). And, of course, Texas does not have a products liability

statute of repose. (App. 29).

28

and certiorari should be granted to rectify this grave

injustice.

«

CONCLUSION

Based on the facts and authorities set forth above, the

Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

Mark Hicxs

Counsel of Record

Hicxs, ANDERSON & BiuM, P.A.

Attorneys for Petitioners

100 N. Biscayne Boulevard

Suite 2402

Miami, Florida 33132

(305) 374-8171

Haccarp, Parxs & Stone, P.A.

Speiser, Krause & Mapore, P.C.

App. 1

APPENDIX 1

In re AIR DISASTER AT RAMSTEIN AIR BASE,

GERMANY, on 8/29/90, Plaintiff.

Olga PEREZ, etc., et al., Plaintiffs-Appellants,

v.

LOCKHEED CORP. and General Electric Company,

Defendants-Appellees.

No. 95-50091.

United States Court of Appeals,

Fifth Circuit.

April 29, 1996.

Plaintiffs brought action against manufacturers of

military aircraft, following fatal crash of aircraft, on

claims of negligence and products liability. The United

States District Court for the Western District of Texas,

Morey L. Sear, Chief Judge, granted summary judgment

for defendants. The Court of Appeals, Goodwin, Circuit

Judge, sitting by designation, held that: (1) manufacturers

had government contractor immunity from claims for

strict liability, negligence, breach of warranty, and gross

negligence in design, manufacture, and marketing of air-

craft; (2) under Georgia law, manufacturers did not have

duty to warn military of any danger in design of electri-

cal circuits on aircraft; and (3) plaintiffs were not entitled

to depose more than 16 witnesses on issue of liability.

Affirmed.

Appeal from the United States District Court for the

Western District of Texas.

App. 2

Before POLITZ, Chief Judge, and GOODWIN! and

DUHE, Circuit Judges.

GOODWIN, Circuit Judge:

Plaintiffs, bringing product liability claims arising

out of a fatal crash of an Air Force C-5A in Germany,

appeal the summary judgment in favor of defendants,

Lockheed and General Electric. We affirm.

I. BACKGROUND

The crash occurred approximately 17 seconds after

takeoff from Ramstein Air Base in Germany on August

29, 1990. Thirteen of the seventeen servicemen aboard the

aircraft were killed. Plaintiffs sued on theories of mariu-

facturer’s liability based upon Georgia state law failure to

warn, breach of warranty and gross negligence.

A. The Crash Aircraft

The C-5A was designed, manufactured and delivered

to the Air Force pursuant to a government contract with

Lockheed Corporation.? Although the original procure-

ment contract may have contained only general specifica-

tions, the actual development of the C-5A resulted in

detailed specifications designed by both the defendants

and the Air Force. Lockheed subcontracted with General

1 Circuit Judge of the Ninth Circuit, sitting by designation.

? Lockheed is a Delaware corporation and maintains its

principal place of business in Georgia.

App. 3

Electric to design and manufacture engines for the C-5A.5

General Electric manufactured and designed the thrust

reversers in Ohio. Lockheed installed the General Electric

engines into the C-5A and conducted the remainder of its

work on the C-5A in Georgia. The first C-5A was deliv-

ered to the Air Force, in Georgia, in 1971. The crash

aircraft was maintained at Kelly Air Force Base in San

Antonio, Texas, but flew missions all over the world.

B. Modification of the Crash Aircraft

From time to time, the C-5A, including the crash

aircraft, has undergone modifications based on recom-

mendations from the Air Force and from Lockheed itself.

The modification relevant to this case was made pursuant

to Engineering Change Proposal (“ECP”) 7054. As

requested and agreed to by the Air Force, the purpose of

ECP 7054 was to reconfigure the engine pylons to maxi-

mize the separation of flammable substances from igni-

tion sources. This reconfiguration also involved the

relocation of the ground stud whose failure allegedly

caused the accident. Importantly, however, the relocation

of the ground stud did not change the original design of

the circuit. Lockheed designed and manufactured a kit,

based on ECP 7054, that was used to retrofit the pylons

on all C-5As. The Air Force was to begin taking delivery

of these kits in 1981. The Air Force, and not Lockheed or

General Electric, installed the kits on the aircraft.

3 General Electric is incorporated and maintains its

principal place of business in New York.

App. 4

C. Air Force Involvement in the Design and Manufac-

ture of the C-5A

The Air Force was at all relevant times, and still is,

closely involved in the design, manufacture and mainte-

nance of the C-5A. The Air Force directly participated in

the design of nearly every part of the aircraft. In the

instances where the Air Force was not directly involved,

it approved the designs after reviewing them in detail

with the relevant personnel of the defendants. As the

planes were being manufactured and developed, the Air

Force required Lockheed to put the various components

through rigorous testing to ensure that all of the contract

specifications had been satisfied. The Air Force reviewed

and approved these tests. The Air Force did not merely

“rubber stamp” the tests and data, but placed its officers

on site to observe the development and manufacture of

the C-5A, including the electrical circuit design at issue in

this case. Once the planes were built, the Air Force and

Lockheed conducted joint tests before putting them into

active military service.

Il. PROCEDURAL BACKGROUND

Seven separate lawsuits were filed in Texas and Flor-

ida state courts. Representatives of eleven of the dece-

dents and one of the survivors filed products liability

lawsuits asserting claims based on strict liability, negli-

gence, negligent failure to warn, breach of warranty, and

App. 5

gross negligence in the design, manufacture and market-

ing of the C-5A aircraft.4

The plaintiffs theorized that the aircraft crashed

because of an uncommanded and undetected deployment

of the thrust reverser on one of the two engines on the

left side of the aircraft. The plaintiffs alleged that this

deployment was caused by the defective design and man-

ufacture, or modification, of the electrical system con-

tained in the pylon (the component that attaches the

engine to the wing). Although the plaintiffs’ brief charac-

terizes this as “one of the theories of liability” it is the

only one mentioned in the record.

The electrical system was configured so that the cir-

cuit that sends the signals to deploy or retract the thrust

reverser, the “enunciator”, and the circuit that sends sig-

nals back to the cockpit control panel, the “indicator”,

were grounded by physical attachment to the same

ground stud. The plaintiffs believe, but offered no proof,

that this ground stud failed, causing a single point electri-

cal failure, and simultaneously disabled both the enuncia-

tor and indicator circuits, making it impossible for the

crew to know that the thrust reverser was deployed.

The defendants, on the other hand, contended that

the accident was caused by crew inattention.

* Most of the plaintiffs are citizens of Texas, although

others are citizens of Florida, Kansas, Missouri and North

Dakota.

App. 6

The defendants removed all of the lawsuits to federal

district courts in Texas and Florida on the basis of diver-

sity jurisdiction. The Judicial Panel on Multidistrict Liti-

gation, pursuant to 28 U.S.C. § 1407, transferred the cases

to the Western District of Texas for pretrial proceedings

because most of the plaintiffs are Texas residents and

many relevant documents and witness [sic] were located

at Kelly Air Force Base.

The district court, applying Texas conflicts-of-law

rules borrowed from the Restatement (Second) of the

Conflicts of Law, held that Georgia substantive law,

instead of Texas law, governed the dispute. The court

granted summary judgment in favor of the defendants on

all of the plaintiffs’ claims based on the original design of

the electrical system in the pylons, and the pylon kit

modifications, because they were time barred by Geor-

gia’s statute of repose.5 (Memorandum and Order of July

14, 1994 and Memorandum and Order of January 6, 1995,

respectively). The court also applied the statute of repose

to the plaintiffs’ failure to warn claim because there was

no evidence that the defendants had actual knowledge of

5 Ga.Code Ann. § 51-1-11 (Michie 1993). The Georgia

statute of repose extinguishes certain products liability claims if

they are not brought within 10 years of the first sale of the

allegedly defective product. Modifications that change the

original design can restart the tolling of the statute of repose,

but the modifications in this case did not change the original

design of the circuit and therefore the statute of repose did not

restart. See Butchkosky v. Enstrom Helicopter Corp., 855 F.Supp.

1251, 1257 (S.D.Fla.1993) (modification must change original

design of critical component that is alleged to have caused the

injury).

App. 7

any danger that the system may have harbored.® The

court rejected the plaintiffs’ breach of warranty claims

because no privity of contract existed between the parties

as required under Georgia law. Finally, the court rejected

the claim based upon allegations of willful, wanton and

reckless misconduct (gross negligence) because the plain-

tiffs offered no evidence to support recovery under this

theory. The court did not rule on the defendants’ govern-

ment contractor immunity defense because at the time it

was presented the plaintiffs had not sufficiently articu-

lated what they thought was the cause of the accident.

Therefore, the court could not make the necessary factual

findings to determine whether government. contractor

immunity applied. See Memorandum and Order of

November 14, 1994 at 13. The court considered the

defenses based upon the statute of repose, and the lack of

any duty to warn the Air Force of obvious design charac-

teristics in which the Air Force had participated as suffi-

cient grounds to grant summary judgment.

Plaintiffs’ timely appeals were consolidated by this

Court sua sponte.

6 The district court misinterpreted Georgia law on failure to

warn claims. See Chrysler Corp. v. Batten, 264 Ga. 723, 450 S.E.2d

208, 211-13 (1994) (“the legislature carefully excluded failure to

warn causes of action from the statute of repose” where the

manufacturer has actual or constructive knowledge of a danger)

(emphasis added). That error does not affect the outcome of this

case.

App. 8

Ill. GOVERNMENT CONTRACTOR IMMUNITY

A. Standard of Review

We review the grant of summary judgment de novo.

FDIC v. Ernst & Young, 967 F.2d 166, 169 (5th Cir.1992).

Once a motion for summary judgment has been properly

made, the burden shifts to the nonmovant to go beyond

the pleadings and by his or her own affidavits, deposi-

tions, answers to interrogatories, or admissions to come

forward with specific facts showing that there is a genu-

ine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317,

324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986);

Fed.R.Civ.Proc. 56(e).

Although, as noted, the district court did not speci-

fically rule on government contractor immunity, that

defense is properly briefed in both the trial court and this

court. All the depositions and affidavits relevant to the

defense were before the court at the time of its final

ruling. We hold that the contractor immunity defense was

itself a sufficient basis for summary judgment with

respect to all claims, except possibly the “failure to warn”

claim. We are obliged, moreover, to affirm a correct deci-

sion for any appropriate reason supported by the record.

Pitts v. American Sec. Life Ins. Co., 931 F.2d 351, 357 (5th

Cir.1991).

B. The Boyle Test for Government Contractor Immunity

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

S.Ct. 2510, 101 L.Ed.2d 442 (1988) the Supreme Court

wrote that

App. 9

{l]iability for design defects in military equip-

ment cannot be imposed, pursuant to state law,

when (1) the United States approved reasonably

precise specifications; (2) the equipment con-

formed to those specifications; and (3) the sup-

plier warned the United States about the

dangers in the use of the equipment that were

known to the supplier but not to the United

States. Id at 512, [108 S.Ct. at 2518].

The Court explained that government contractor immu-

nity is derived from the Government’s immunity from

suit where the performance of a discretionary function is

at issue. Id at 511, 108 S.Ct. at 2518 (citing the Federal Tort

Claims Act, 28 U.S.C. § 2680(a)).7 The Court concluded

that “the selection of the appropriate design for military

equipment to be used by our Armed Forces is assuredly a

discretionary function.” Id at 511, 108 S.Ct. at 2518.

The first two elements of the test ensure that the

Government, and not the contractor, is exercising discre-

tion in selecting the design. The third element is neces-

sary to eliminate any incentive that this defense may

create for contractors to withhold knowledge of risks.

Boyle, 487 U.S. at 512, 108 S.Ct. at 2518.

1. The Air Force Approved Reasonably Precise

Specifications

In Stout v. Borg-Warner Corp., 933 F.2d 331 (5th

Cir.1991), this Court enumerated some of the constituents

7 Section 2680(a) creates an exception to the consent to suit

otherwise established by the Federal Tort Claims Act, 28 U.S.C.

§ 1346(b).

App. 10

of “reasonably precise specifications” and government

approval of those specifications for the purposes of satis-

fying the first element of the government contractor

immunity defense. We held that the government contrac-

tor immunity defense is available where “review [of the

project] involved, inter alia, [the contractor’s] submission

of detailed drawings at various progressive stages of the

design, critical design reviews where Army engineers’

critiqued [the contractor’s] work, and, finally, the produc-

tion of prototype models tested and evaluated for months

by the Army for its actual performance.” Stout, 933 F.2d

at 336. See Trevino v. General Dynamics Corp., 865 F.2d 1474,

1480 (1989) (if government engages in meaningful review

of design the first element of Boyle test is established); see

also Kleemann v. McDonnell Douglas Corp., 890 F.2d 698,

701 (4th Cir.1989) (“It is this salient fact of governmental

participation in the various stages of the aircraft’s devel-

opment that establishes the military contractor

defense.”); Harduvel v. General Dynamics Corp., 878 F.2d

1311, 1320 (11th Cir.1989) (requirement that government

approve reasonably precise specifications is met where

contractor incorporated design that government subse-

quently reviewed and approved).

In this case, the Air Force’s substantive review, eval-

uation and testing of the C-5A clearly implicates the

Government's discretionary function and approval of rea-

sonably precise specifications. The defendants included

with their motion for summary judgment unrebutted affi-

davits declaring that Lockheed, General Electric and the

Air Force worked closely together on the development of

the C-5A from its planning stages to its full production.

In addition, the Air Force, through its personnel,

App. 11

inspected and supervised every aspect of the production

of the C-5A. Clearly, the approvals in this case go far

beyond mere rubber stamping. See Trevino, 865 F.2d at

1480 (“When the government merely accepts, without any

substantive review or evaluation, decisions made by a

government contractor, then the contractor, not the gov-

ernment, is exercising discretion”). In this case, the Gov-

ernment did not leave “the critical design decisions to the

private contractor,” but worked closely with the defen-

dants every step of the way. Trevino, 865 F.2d at 1480.

2. The C-5A Conformed to the Reasonably Pre-

cise Specifications

The plaintiffs argued that the C-5A did not conform

to the original design specifications because “[w]hat the

Air Force chose in the C-5A procurement program was a

failsafe performance specification. ...” According to the

plaintiffs, the design of the circuit was not failsafe

because a single point electrical failure, such as the one

alleged to have occurred, could result in an accident.

However, such a general design specification is not con-

templated by the first element of the Boyle test because

“{o|nly 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.” Kleemann v. McDonnell Douglas Corp.,

890 F.2d 698, 703 (4th Cir.1989).

The defendants introduced evidence showing that

the Air Force inspectors were present and actively

involved throughout the design, review, development

and testing of the C-5A. Furthermore, the evidenced [sic]

App. 12

showed that the Air Force accepted and has used the

C-5A for over 20 years without any significant problems.

From this evidence the district court could have con-

cluded that the C-5A was built in accordance with Air

Force specifications. See Smith v. Xerox Corp., 866 F.2d 135,

138 (5th Cir.1989).

In an attempt to rebut the defendants’ evidence, the

plaintiffs included affidavits and other exhibits describ-

ing the general process of military procurement for mili-

tary aircraft, such as the C-5A, where the Government

has very little to do with the actual design and develop-

ment of the plane. However, none of that information

specifically addresses the actual development of the

C-5A; the information describes only how procurement

was to work in theory. This background information,

while interesting, is of no legal relevance because it does

not rebut the defendants’ highly specific information

about the actual development of the C-5A.

3. Warning of Dangers not Known to the Air

Force

Finally, the plaintiffs argue that the defendants did

not warn the Air Force about the dangers created by the

design of the electrical circuit. The defendants had a duty

to warn the Air Force only of design defects of which the

Air Force had no knowledge. See Stout, 933 F.2d at 336.

The unrebutted deposition testimony of an Air Force

engineer involved in the development and implementa-

tion of ECP 7054 described how wires were moved from

one place in the pylon to another, but that if two wires

terminated into the same ground stud that was not

App. 13

changed. This testimony places beyond all the doubt the

Air Force’s specific knowledge about the design of the

electrical circuit. This conclusion about the Air Force’s

knowledge is sound, even without the benefit of the

deposition testimony, because in order for the Air Force

to have changed the location of the ground stud in the

pylon pursuant to the modification, its responsible offi-

cers had to have seen the stud and been aware of its

design.

The unrebutted affidavits and exhibits describing the

development of the C-5A clearly establish that the Air

Force approved reasonably precise specifications of the

C-5A, the C-5A conformed to those specifications and the

Air Force was aware of any safety implications created by

the design of the electrical circuit. The plaintiffs did not

come forward, as is their burden on summary judgment,

with any evidence to create a triable issue of material

fact. Therefore, the defendants are entitled to the govern-

ment contractor immunity defense.

IV. FAILURE TO WARN

A separate failure to warn claim may survive the

government contractor immunity defense if the defen-

dant cannot establish “an identifiable federal interest or

policy in the existence or methods of warning and a

significant conflict between the federal interest or policy

and the operation of state law.” Garner v. Santoro, 865 F.2d

629, 635-36 (Sth Cir.1989). A conflict between federal pol-

icy and state law might arise if there is evidence that the

Government was involved in the decision to give, or not

to give, a warning. Id. But see Stout, 933 F.2d at 336-37

App. 14

(applying government contractor immunity to a failure to

warn claim without reference to a “significant conflict”);

Smith, 866 F.2d at 139 (same), Trevino, 865 F.2d at 1487

(same). However, if the failure to warn claim is part of the

design defect or unreasonably dangerous product theory

of liability, then government contractor immunity

applies.’ Garner, 865 F.2d at 632 n. 8, 635. We will not

address whether, under the facts of this case, the failure

to warn claim would be defeated by government contrac-

tor immunity because the record does not establish

whether or not the Air Force and Lockheed or General

Electric were involved in discussions about warnings.

Without such evidence in the record, it is not possible for

this Court to determine whether the Government exer-

cised sufficient discretion with respect to a warning to

bring the warning claim within the scope of Boyle. There-

fore, we will address the failure to warn claim only on the

point whether the manufacturer had a duty, under the

relevant state law, to give warnings of facts that were

equally within the knowledge of the Air Force.

* It is interesting to note that plaintiffs, in their summary

judgment reply brief, argued that their failure to warn claim is

“nothing more nor less than a type of a design defect.” (Record

at 1803). If the trial court accepted this argument, then the

plaintiffs’ failure to warn claim would also have failed because

of government contractor immunity. On appeal, however,

plaintiffs have asserted that a failure to warn claim is distinct

from a design defect claim, and is not preempted by

government contractor immunity.

Oe vee

App. 15

A. Choice of Law

1. Determining Which Choice of Law Rules to

Apply

We review a district court’s choice of law determina-

tion de novo. Allison v. ITE Imperial Corp., 928 F.2d 137, 138

(Sth Cir.1991). In a diversity action, a federal court must

apply the choice of law rules of the state in which it sits.

Klaxon Co. v. Stentor Elec. Manufacturing Co., 313 U.S. 487,

496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Where a

transferee court presides over several diversity actions

consolidated under the multidistrict rules, the choice of

law rules of each jurisdiction in which the transferred

actions were originally filed must be applied. Van Dusen

v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945

(1964); 28 U.S.C. § 1407. Both Texas and Florida have

adopted the same choice of law rules: the Most Signifi-

cant Relationship test set forth in Sections 6 and 145 of

the Restatement (Second) of Conflict of Laws (the

“Restatement”).? See Gutierrez v. Collins, 583 S.W.2d 312,

® Restatement Section 6 states:

(1) A-court, subject to constitutional restrictions, will follow a

statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the

choice of the applicable rule of law include:

(a) the needs of the interstate and international

systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states

and the relative interests of those states in the

determination of the particular issue,

App. 16

318 (Tex.1979); Bishop v. Florida Specialty Paint Co., 389

So.2d 999 (Fla.1980). Under this doctrine, a court, subject

to constitutional constraints, must apply the law of the

state with the most significant relationship to the particu-

lar substantive issues before the court. Because both par-

ties agree that either Texas or Georgia law applies, this

Court's inquiry is limited to the substantive law of those

two states. See Mitchell v. Lone Star Ammunition, Inc., 913

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field

of law,

(f) certainty, predictability and uniformity of result,

and

(g) ease in the determination and application of the

law to be applied.

Restatement Section 145 states:

(1) The rights and liabilities of the parties with respect to an

issue in tort are determined by the local law of the state which,

with respect to that issue, has the most significant relationship

to the occurrence and the parties under the principles stated in

§ 6.

(2) Contacts to be taken into account in applying the principles

of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury

occurred,

(c) the domicil [sic], residence, nationality, place of

incorporation and place of business of the

parties, and

(d) the place where the relationship, if any, between

the parties is centered.

These contacts are to be evaluated according to their relative

importance with respect to the particular issue.

App. 17

F.2d 242, 249 (5th Cir.1990); Crisman v. Cooper Industries,

748 S.W.2d 273, 276 (Tex.App.-Dallas 1988).

All of the causes of action in this case rely on the

same theory of liability: the defective manufacture and

design of the electrical system in the pylon. Therefore, the

district court correctly determined that the only substan-

tive issue for the purpose of conflicts analysis was the

alleged design defect. See e.g., Duncan v. Cessna Aircraft

Co., 665 S.W.2d 414, 421 (Tex.1984).

2. The Most Significant Relationship Analysis

Restatement Section 6 contains the general principles

involved in the conflicts analysis whereas Restatement

Section 145 lists the factual matters to be considered

when applying the Section 6 principles to a given case.

See Crisman v. Cooper Industries, 748 S.W.2d 273, 276

(Tex.App.-Dallas 1988). The application of the most sig-

nificant relationship test turns on the qualitative nature of

the contacts rather than the quantity of the contacts out-

lined in the Restatement. Id. Because the place of injury is

fortuitous, correct analysis should give more weight to

each state’s contacts with the design and manufacture of

the electrical system than to the residential choices of the

plaintiffs. See Foster v. United States, 768 F.2d 1278, 1282-83

(11th Cir.1985) (fortuitous nature of aircraft accident

locale entitled place of injury factor to little weight in

conflicts analysis); Restatement § 145, comment e.

Virtually all of the relevant conduct complained of

took place in Georgia, with some possible activity by

General Electric in Ohio. Georgia thus has the strongest

App. 18

interest in applying its law to businesses that design,

manufacture and sell products into its stream of com-

merce. Texas on the other hand, has its only relevant

contacts with this case in the fact that many, but not all, of

the plaintiffs are domiciled there. Because both the case

law and the Restatement instruct us to place more

emphasis on the place of the alleged misconduct, than on

the residential preferences of scattered plaintiffs, the dis-

trict court correctly concluded that Georgia law should

apply.

B. The Defendants Had No Duty to Warn

In order to defeat the summary judgment, the plain-

tiffs must offer evidence tending to prove that the defen-

dants knew about a danger created by the design of the

wiring and that the failure to warn of that danger was the

proximate cause of the injuries alleged. See Talley v. City

Tank Corp., 158 Ga.App. 130, 279 S.E.2d 264 (1981). How-

ever, there is no duty to warn a purchaser of a physical

fact that is open and obvious, or of any potential risk

which is equally known and appreciated by both the

manufacturer and the purchaser. Herschel McDaniel

Funeral Home, Inc. v. Hines, 124 Ga.App. 47, 183 S.E.2d 7, 9

(1971); YMCA v. Bailey, 112 Ga.App. 684, 146 S.E.2d 324

(1965); Gibson v. Consolidated Credit Corp., 110 Ga.App.

170, 138 S.E.2d 77 (1964).

As discussed with respect to the government contrac-

tor immunity defense, the Air Force was so involved in

the C-5A project it knew about the danger - if any -

inherent in the circuit design. Therefore, the defendants

App. 19

did not have a duty to warn the Air Force. We affirm the

summary judgment against the plaintiffs on this claim.

V. LIMITATIONS ON DISCOVERY

A. Standard of Review

We review decisions regarding discovery for abuse of

discretion. Duke v. University of Texas, 729 F.2d 994, 997

(Sth Cir.), cert. denied, 469 U.S. 982, 105 S.Ct. 386, 83

L.Ed.2d 320 (1984).

B. Number of Witnesses Permitted for Depositions

The plaintiffs argue that this Court should reverse

because the district court abused its discretion by limiting

the number of witnesses they could depose on the lia-

bility issue to 16 for each side. The plaintiffs also want

the opportunity to depose more witnesses on issues

related to the claims that were not based on the original

design of the C-5A. Limiting the number of deposition

witnesses to sixteen for each side is not an abuse of

discretion in this case. The plaintiffs actually deposed

only 15 of their allotted 16 witnesses. Furthermore, we

find nothing in the record to suggest that plaintiffs made

a timely request to go back and look into issues that were

unexamined in earlier discovery, or that plaintiffs were

prejudiced by the limitation. The decision to limit deposi-

tion testimony to 16 witnesses for each side does not

require reversal of this summary judgment.

App. 20

VI. CONCLUSION

In sum, the defendants have come forward with suf-

ficient evidence to support the assertion of the govern-

ment contractor immunity defense, and the plaintiffs

have failed to raise any genuine issue of material fact

regarding that defense. In addition, the defendants did

not have the duty to warn the Air Force of the danger — if

any — created by the design of the electrical circuit

because the Air Force knew as much as the defendants

knew about the design of the circuit. Finally, the district

court did not abuse its discretion by limiting each side to

16 depositions. The summary judgment for the defen-

dants Lockheed and General Electric is affirmed.

AFFIRMED.

App. 21

APPENDIX 2

Olga PEREZ, etc., et al. and David

Edward Perez, et al., Plaintiffs-

Appellants,

Vv.

LOCKHEED CORP. and General Electric

Company, Defendants-Appellees.

No. 95-50091.

United States Court of Appeals,

Fifth Circuit.

July 5, 1996.

Plaintiffs brought action against manufacturers of

military aircraft, following fatal crash of aircraft, on

claims of negligence and products liability. The United

States District Court for the Western District of Texas,

Morey L. Sear, Chief Judge, granted summary judgment

for defendants. The Court of Appeals, Goodwin, Circuit

Judge, sitting by designation, 81 F.3d 570, affirmed. On

plaintiff’s petition for rehearing, the Court of Appeals

denied petition but clarified prior opinion by holding that

under Georgia law, manufacturers did not have duty to

warn military or pilots of any danger in design of electri-

cal circuits on aircraft.

Petition denied.

Appeal from the United States District Court for the

Western District of Texas.

Opinion filed April 29, 1996,

81 F.3d 570 (1996).

App. 22

Before POLITZ, Chief Judge, and GOODWIN! and

DUHE, Circuit Judges.

PER CURIAM:

We clarify our panel opinion in this case by amend-

ing Section IV.B as follows:

B. The Defendants Had No Duty to Warn

In order to defeat the summary judgment, the plain-

tiffs must offer evidence tending to prove that the defen-

dants knew about a danger created by the design of the

wiring and that the failure to warn of that danger was the

proximate cause of the injuries alleged. See Talley v. City

Tank Corp., 158 Ga.App. 130, 279 S.E.2d 264 (1981). How-

ever, there is no duty to warn a purchaser of a physical

fact that is open and obvious, or of any potential risk

which is equally known and appreciated by both the

manufacturer and the purchaser. Herschell McDaniel

Funeral Home, Inc. v. Hines, 124 Ga.App. 47, 183 S.E.2d 7, 9

(1971); YMCA v. Bailey, 112 Ga.App. 684, 146 S.E.2d 324

(1965); Gibson v. Consolidated Credit Corp., 110 Ga.App.

170, 138 S.E.2d 77 (1964). The duty to warn extends to the

ultimate user of a product. See, e.g., White v. W.G.M. Safety

Corp., 707 F.Supp. 544, 547 (S.D.Ga.1988), aff’d 891 F.2d

906 (11th Cir.1989).

We need not determine whether, under Georgia law,

the Air Force or the pilots are the ultimate users of the

C-5A. As discussed, with respect to the government con-

tractor immunity defense, the Air Force was so involved

! Circuit Judge for the Ninth Circuit, sitting by designation.

ores ae

AO aS ce <A 0 hae FT ORE Eee ki Pw

App. 23

in the C-5A project it knew about the danger — if any -

inherent in the circuit design. Therefore, the defendants

did not have a duty to warn the Air Force. In addition,

the defendants had no duty to give a warning to the

pilots because the Air Force was a learned intermediary.

See, e.g., Stuckey v. Northern Propane Gas Co., 874 F.2d 1563,

1568-69 (11th Cir.1989) (manufacturer’s duty to warn ulti-

mate consumer is discharged where an intermediary

party has knowledge of the danger). We affirm the sum-

mary judgment against the plaintiffs on this claim.

With this amendment, IT IS ORDERED that the peti-

tion for rehearing is DENIED. No active judge of the

court or member of the panel has requested an en banc

poll, the suggestion for rehearing en banc is also

DENIED.

App. 24

APPENDIX 3

MINUTE ENTRY

SEAR, J.

NOVEMBER 23, 1993

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

IN RE AIR DISASTER AT * CIVIL ACTION

RAMSTEIN AIR BASE ‘

. MDL. NO. 919

GERMANY, ON 8/29/90 * ALL CASES

* SECTION “G”

MEMORANDUM AND ORDER

(Filed Nov. 26, 1993)

This action arises from the August 29, 1990 crash of

an United States Air Force C-5A Galaxy aircraft at Rams-

tein Air Base, Germany. Of the seventeen military person-

nel on board the aircraft when it crashed, thirteen were

fatally injured. Defendants Lockheed Corporation

(“Lockheed”) and General Electric Company (“G.E.”)

removed seven separate state causes of action filed

against them to federal court under the Courts’ diversity

jurisdiction.! Six cases were removed to the Southern

District of Florida and one to the Western District of

Texas. Upon motion by Lockheed, the Judicial Panel on

Multidistrict Litigation issued a Transfer Order pursuant

1 28 U.S.C. § 1332

—"

A ht tha! EE A 6 BE ALD PO Lei 6 Ci 5 atcha RENE gate

App. 25

to 28 U.S.C. § 1407 centralizing pretrial proceedings in all

cases in the Western District of Texas.2

Lockheed filed and G.E. joined in this motion to

apply Georgia law to the issues of liability involved in

this case. Plaintiffs oppose the motion, claiming that

Texas law should apply to all liability issues.

Analysis

I. Conflict of Laws Principles

A transferee court presiding over diversity actions

consolidated under the multidistrict rules must apply the

choice of law rules of the various jurisdictions in which

the transferred actions were originally filed. See Klaxon

Co. v. Stentor Electric Manufacturing Co., 61 S.Ct. 1020,

1021-22 (1944); In re Air Crash Disaster near Chicago, 644

F.2d 594, 610 (7th Cir.), cert. denied, 454 U.S. 878 (1981).

Accordingly, the choice of law rules of Texas and Florida

must be applied.

Both Texas and Florida have adopted the same choice

of law rule; the Most Significant Relationship approach

2 See Order of June 4, 1992.

App. 26

delineated in sections 63 and 1454 of the Restatement

(Second) of Conflict of Laws. See Gutierrez v. Collins, 583

3 § 6 Choice-of-Law Principles

(1) Acourt, subject to constitutional restrictions, will follow a

statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the

choice of the applicable rule of law include,

(a) the needs of the interstate and international

systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states

and the relative interests of those states in the

determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field

of law,

(f) certainty, predictability and uniformity of result,

and

(g) ease in the determination and applicability of the

law to be applied.

Restatement (Second) of Conflict of Laws § 6 (1971).

4 § 145 The General Principle

(1) The rights and liabilities cf the parties with respect to an

issue in tort are determined by the local law of the state which,

with respect to that issue, has the miost significant relationship

to the occurrence and the parties under the principles stated in

§ 6.

(2) Contacts to be taken into account in applying the principles

of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury

occurred,

App. 27

S.W.2d 312, 318 (Tex. 1979); Bishop v. Florida Specialty Paint

Co., 389 So.2d 999 (Fla. 1980). Under this approach the

law of the state with the most significant relationship to

the particular substantive issue will be applied to resolve

that issue. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414,

421 (Tex. 1984).

Il. Identification of Interested States

The first step in the analysis of choice of law is to

identify the relevant state contacts as set out in § 145.°

Plaintiffs’ action challenges the design and manufacture

of a Lockheed aircraft. Because the aircraft and pylon

component kits were designed, manufactured and

entered into the stream of commerce in Georgia,® the

conduct causing the injury occurred in Georgia.

(c) the domicile, residence, nationality, place of

incorporation and place of business or the parties,

and

(d) the place where the relationship, if any, between

the parties is centered.

These contacts are to be evaluated according to their relative

importance with respect to the particular issue.

Restatement (Second) of Conflict of Laws § 145 (1971).

5 The parties contend and I agree that factors (2)(a) & (d)

are inapplicable to this case.

6 See Lockheed’s Supporting Brief, Affidavit of Carl

Weaver, at 1-2. A product enters the stream of commerce when

“it is released in some manner to the consuming public.”

Armstrong Rubber Company v. Urguidez, 570 S.W.2d 374, 376 (Tex.

1978). The allegedly defective aircraft was delivered to the Air

Force on January 9, 1971 in Marietta, Georgia. See Lockheed’s

Supporting Brief, Affidavit of Carl Weaver, at 2. Accordingly,

the aircraft entered into the stream of commerce in Georgia.

App. 28

The parties to this action are located throughout the

United States. Defendant Lockheed is a Delaware corpo-

ration and maintains its principal place of business in

Georgia.” Defendant G.E. is incorporated and maintains

its principal place of business in New York.® The plain-

tiffs and intervenor are otizens of Texas, Florida, Kansas,

Missouri and North Dakota’

Despite the number of states having a relationship to

the parties and accident, only Texas and Georgia are

considered since no party contends that the law of any

other state should be applied. See Mitchell v. Lone Star

Ammunition, Inc., 913 F.2d 242, 249 (5th Cir. 1990); Cris-

man v. Cooper Industries, 748 S.W.2d 273, 276 (Tex. App-

Dallas 1988).

The second step of the analysis requires an examina-

tion of the relevant liability laws of Georgia and Texas to

determine whether they conflict with each other. Where

the laws do not conflict, the law of the forum generally

applies. See In re Air Crash Disaster at Washington, D.C.,

559 F.Supp. 333, 342 n.10 (D.D.C. 1983). If the laws do

Plaintiffs claim, however, that the pylon component kits

entered into the stream of commerce in Texas. Plaintiffs’

Response Memorandum, at 3. There is no evidence to support

this allegation. Furthermore, defendants proffer evidence that

the kits were delivered to the Air Force in Marietta, Georgia. See

Lockheed’s Reply Brief, Affidavit of Chuck Thompson.

Accordingly, the pylon component kits also entered into the

stream of commerce in Georgia.

” See Notices of Removal filed by defendants.

8 Id.

* It is alleged that twenty of twenty-five plaintiffs reside in

Texas. See Plaintiffs’ Memorandum in Opposition, at 3.

App. 29

conflict, the most significant relationship test is applied.

See In re Air Crash Disaster near Chicago, 644 F.2d at 605; In

re Disaster at Detroit Metro. Airport, 750 F.Supp. 793, 796

(E.D.Mich. 1989).

Ill. Evaluation of the Relevant Laws

Though other conflicts exist, the most apparent and

significant conflict between the products liability laws of

Georgia and Texas is Georgia’s statute of repose, which

bars all products liability claims if not brought within ten

years from the first sale of the product. See Ga. Code Ann.

§ 51-1-11 (b)(2), (c) (Michie 1993).1° Texas law does not

bar products liability actions in a similar fashion.”

Accordingly, the most significant relationship analysis

must continue.

IV. Evaluation of Competing Interests

Texas and Georgia both have numerous contacts to

this action. The application of the most significant rela-

tionship test, however, turns on “the qualitative nature of

[the] contacts as affected by the policy factors enumer-

ated in § 6.” Id. Furthermore, the relevant policies of the

competing forums are “the most popular and often the

© Texas construes a statute of repose as a matter of

substantive law and, therefore, such a statute must be

considered in a choice of law analysis. See Crisman, 748 S.W.2d

at 276.

"! Florida’s statute of repose was repealed by its legislature

in 1986.

App. 30

most important” of the § 6 criteria. Moorhead v. Mitsubishi

Aircraft Intern., 639 F.Supp. 385, 390-91 (E.D.Tex. 1986).

Texas’ only contact with this action is the citizenship

of some of the plaintiffs. Texas has an interest in protect-

ing its citizens from defective or dangerous products.

Accordingly, because some of the plaintiffs are citizens of

Texas, it has an interest in the resolution of this action. See

Mitchell, 913 F.2d at 249. Texas’ interest in protecting its

citizens, however, is no greater than that of any other

state whose citizens are plaintiffs.

Conversely, when the place of injury is largely fortu-

itous,!5 the Restatement provides that the law of the place

of the misconduct should be given greater weight. Digioia

v. H. Koch & Sons, 944 F.2d 809, 813-14 (11th Cir. 1991)

(citing Pittway v. Lockheed Corp., 641 F.2d 524, 528 (7th Cir.

1981)); Restatement (Second) of Conflict of Laws § 145(2)

comment e. Furthermore, as the situs of defendant’s man-

ufacturing facilities, Georgia is closely linked to plaintiffs’

cause of action, which challenges the design and manu-

facture of a Lockheed aircraft. Adams v. Gates Learjet

Corp., 711 F.Supp 1374, 1375 (N.D.Tex. 1988). Georgia’s

interest in determining the liability and controlling the

12 Plaintiffs contend that because so many of those affected

by this accident live or lived in Texas, that state has the most

significant interest in applying its law to the liability issue. This

contention, however, is misguided. It is well established that to

simply apply the law of the state with the greatest number of

actual contacts is improper. Mitchell, 913 F.2d at 249.

13 See Foster v. United States, 768 F.2d 1278, 1282-83 (11th Cir.

1985) (fortuitous nature of aircraft accident entitled first factor

to little weight); In re Air Crash Disaster at Sioux City, 781 F.Supp.

1307, 1310 (N.D.ILl. 1991) (same).

App. 31

conduct of Lockheed is even more pronounced because

the allegedly defective products were manufactured,

designed, and entered into the stream of commerce there.

See Mitchell, 913 F.2d at 250.

Products liability laws such as Texas’ render a manu-

facturer potentially liable for his product any time after

its initial sale. Through the enactment of the statue [sic]

of repose, Georgia has made a policy decision to limit the

liability of manufacturers by alleviating the heavy burden

imposed by this “perpetual” liability. See Weeks v.

Remington Arms Co., 733 F.2d 1485, 1487 (11th Cir. 1984);

Lamb v. Volkswagenwerk A.G., 631 F.Supp. 1144, 1147

(S.D.Fla. 1986). That decision is intended to attract indus-

try to Georgia.'* Accordingly, Georgia’s interest in having

its laws applied is more significant.

Furthermore, a defendant may justifiably expect to

defend itself in the state in which it designed, manufac-

tured, and placed a product into the stream of commerce.

See Crisman, 748 S.W.2d at 280. Conversely, a plaintiff

cannot justifiably expect to pursue a lawsuit in his home

state when both the injury and defective product arose

elsewhere. This is especially true when plaintiffs from

other states are similarly injured.

To hold that a manufacturer must defend itself

against the laws of a state simply because an injured

plaintiff is a citizen of that state circumscribes the

‘* The statute of repose was enacted long after Lockheed

commenced its operations in Georgia. Its enactment may,

however, serve as a strong inducement for Lockheed to remain

in Georgia.

App. 32

Restatement’s objective of certainty, predictability, and

uniformity of result. See Restatement (Second) of Conflict

of Laws § 6(f). In the present case, plaintiffs are citizens

of five different states. Therefore, even though plaintiffs

contend that only one of these five states has a significant

interest, it is impossible to ascertain which of the five, if

any, has a greater interest in protecting its citizens. To

base a choice of law decision solely on the citizenship of

the plaintiffs would potentially subject manufacturers to

the laws of all fifty states. In this case, only through

application of the laws of the state in which the defective

product was designed, manufactured, and released into

the stream of commerce will the Restatement’s objective

be achieved.

Finally, plaintiffs claim that if Georgia law is applied

to the liability issues, the harsh result will be that no

plaintiff will recover under Georgia’s products liability

provisions. However, no matter how harsh the final result

may be, it is not the function of the Court to question the

wisdom of the Georgia legislature.'>

Georgia’s policy interest in protecting those that

design, manufacture and release products into the stream

of commerce in Georgia bears the most significant rela-

tionship to the facts underlying plaintiffs’ cause of action.

Accordingly,

1S Texas.courts have not hesitated to apply foreign law to a

products liability case, even when that application leads to the

invocation of a statute of repose. See Crisman, 748 S.W.2d 273.

App. 33

IT IS ORDERED that defendants’ motion for the

application of Georgia law to the issue of liability is

GRANTED.

/s/ Morey L. Sear

MOREY L. SEAR

UNITED STATES

DISTRICT JUDGE

App. 34

APPENDIX 4

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

IN RE: AIR DISASTER AT ) MDL DOCKET

RAMSTEIN AIR BASE, ) NO. 5-92-MD-919

GERMANY, ON AUGUST 29, ) ALL CASES

1990 )

ORAL DEPOSITION OF RICHARD E. YOUNG

OCTOBER 12, 1993

+ x *

[p. 32] mainly because I don’t think I could understand it

well enough to ask you.

A. Yeah. But -

Q. So you and I are just going to be talking about

your memorandum that you wrote.

A. Yeah.

Q. Okay.

A. And that’s basically - I think we’ve pretty well

covered everything that I can offer in terms of this partic-

ular document.

Q. Well, let me see if I’ve got some more questions

with it and we'll see — we’re not quite through the para-

graph and perhaps we can ask. Did you talk to Mr. Gulik

about this?

a a eet

App. 35

A. Yes.

Q. And “about this,” I mean about paragraph 3?

A. Yeah. I showed him the wiring diagram and he

offered his comments and we discussed it to some degree.

Q. Did he tell you that G.E. had already designed it,

that there shouldn’t be two wires on one grounding con-

nection? m

A. No, I don’t think he said that.

Q. Well, did he say that you designed it to have

separate grounds?

[p. 33] A. He said it was designed with separate

grounding pins for each of the circuits.

Q. Now, would the separate grounding pins or

studs - strike that. Did you discuss with him the preclu-

sion of a single point failure mechanism as a result of

using two wires to one grounding pin?

A. I'm sorry. I didn’t quite understand what you

were —

Q. All right. Well, in the last sentence in that para-

graph the statement if made by you, “Splitting the com-

mon ground” — that means not having more than one

wire to one pin; is that what that means?

A. That’s what I would interpret that, yes.

Q. - “would preclude a single point failure mecha-

nism.”

A. That’s right.

App. 36

Q. And did Mr. Gulik tell you that?

A. If the stud broke off — off of the pylon, or wher-

ever it’s connected, and the two wires were together,

obviously, then you would lose both grounding — or both

circuits.

Q. And if you had - and that would be a single

point failure?

A. Yeah. If they had two wires connected to [p. 34]

the same ground and the ground broke off of the bulk-

head or the fixture and there was no affective [sic]

ground, yes, you would.

Q. Well, you would have the potential for a single

point failure by just putting the two wires on the pin,

would you not, sir?

A. If the pin breaks off, yes.

Q. If you put the two wires on the pin, you have

created a potential for a single point failure, have you

not, sir?

MR. SPRAGUE: Object to leading the witness.

THE WITNESS: I have already stated that I am

not an aircraft electrical engineer. I have no recollection —

or no background that I can consider myself to be an

expert in critiquing whether or not you run two wires to

the same pin or not. I can tell you from my experience,

yes, I know that if you lose that pin and it falls off and

you had two wires coming to it, yes, you lose your

ground.

Now, the advisability of that or not, I just don’t feel

that I’m in a position to be an expert witness to comment

App. 37

on that. I am not familiar with aircraft wiring, and design

practices, and military specifications, and those things. So

I

[p. 40] marked for identification)

Q. (BY MR. PARKS:) Was G.E. required to design

the electrical system of the thrust reverser system so that

it would not have a single point failure mechanism in it?

A. It stated - we met the design requirements as

specified in that particular document.

Q. Would that be one of those - is it your under-

standing that you do not have a single point failure

mechanism?

A. That would be my understanding of what the

words say.

Q. And was your understanding based upon what

Mr. Gulik told you at the time you wrote this —

A. Yeah.

Q. - letter that originally G.E. had complied with

that requirement; is that correct?

A. We complied with the requirements of that speci-

fication. That's correct.

Q. I’m only interested, sir, as to single point failure

mechanisms. You complied with that — that was a prohi-

bition by the specifications, was it not?

A. Yes.

App. 38

Q. And you complied with that is what [p. 41] Mr.

Gulik told you?

A. Yes.

Q. And was it your understanding then that Lock-

heed had changed that without you [sic] knowledge; is

that correct?

MR. SPRAGUE: I object to that leading ques-

tion.

THE WITNESS: I’ve answered that question

three times now.

MR. PARKS: Well, I don’t think so.

MR. O'NEILL: I'll let you go ahead and answer

it. I think he’s answered it twice, not three times. The last

one would have answered three times.

THE WITNESS: I had no prior knowledge that

there was a — that the two circuits in the wiring harness

that is the General Electric design end of the thrust

reverser. We have the thrust reverser wiring harness and

we provide connectors, and from there on out, it’s air-

frame wiring; and we provided for single ground capa-

bility. Not single point, but each circuit had it’s separate

ground pin. That’s the way we designed it. That design,

therefore, met the requirement of that specification. I

have no comment about what took - I have no knowledge

of how Lockheed and their

* + *

[p. 60] had two pins, but in fact had one pin; is that right?

MR. PARKS: Yes.

App. 39

MR. O'NEILL: Okay.

Q. (BY MR. PARKS:) I want you to assume that

General Electric had designed - pursuant to 41060 had

designed a system, this System we've been talking about,

which provided for two wires to one ground for the

thrust reverser indication lights. Would that be a viola-

tion of the safety provisions of this particular contract?

A. In my opinion, if we run two circuits into one

ground pin, it would have been a violation of the require-

ments of this document.

Q. Thank you, Mr. O’Neill Did you -

MR. O’NEILL: Excuse me one minute. Let’s

have that question read back.

(The requested material was read back)

MR. O’NEILL: Hold on just a second. Yes. The

indication system was on the same ground. I think you

need to rephrase your question. I think you misstated it.

MR. PARKS: I’m talking about the indication

system and the actuator system, the

* *

[p. 68] specification that you have in front of you.

THE WITNESS: Which specific paragraph of

the specification are you -

Q. (BY MR. PARKS:) Paragraph A, sir, on page 35.

A. Whether a single ground point contact would fall

into that category? I think that I’d have to take consider-

able more time to study it. And, as I’ve stated, I really

App. 40

have no expert opinion to say that a single point with two

separate wires going into it does or does not constitute a

single point failure.

Q. Well, if G.E. had not split the common ground, as

referred to in your letter of February 20, 1992, would that

have been a violation of the contract?

A. If we provided and hooked up both of them into

one pin, in my opinion we would not have met the

specification as it’s written in the spec.

MR. O’NEILL: Now, note that he’s saying it

would not have met this specification and you keep ask-

ing about the contract, which is the problem.

MR. PARKS: Okay. All right.

Q. (BY MR. PARKS:) So we're talking about the

specification which is contained in Deposition

* + *

[p. 171] it there?

A. Yes.

Q. - that you had written to the Air Force and your

statement in there concerning G.E.’s position about the

fact that a single ground had been provided in the design

as you —

A. Separate.

Q. Excuse me. — a separate ground had been pro-

vided in the design which you believe met G.E.’s compli-

ance requirements with the specifications.

A. Yes.

App. 41

Q. And you recall also you told me earlier that you

did not realize that there was a double ground being

utilized on this aircraft until Dover, when you and Mr.

Gulik were there with Mr. -

A. No. I'll clarify that. I was under the impression

that there were separate grounding circuits on the thrust

reverser circuitry.

Q. And you learned that they had been using a

double wire on one single ground when you got to Dover

is what you told me?

A. Two wires coming into one point.

Q. Yes.

A. Yes. That’s what was told to me, yes.

Q. At Dover?

[p. 172] A. At Dover.

Q. At any time between the time of the original

design of the thrust reversers and the information that

you got at Dover concerning that, do you know whether

the Air Force approved the double wire to the single

ground? —

A. No. I would have no way to know that.

Q. Do you know whether anyone at Lockheed

advised the Air Force of the double wire to the single

ground?

A. No. I would have no way to know that, no.

Q. Do you know of anyone at Lockheed who

advised, orally or in writing, anyone at General Electric

App. 42

of the fact that they were going to use a double wire to

the single ground?

A. No. I don’t have knowledge of any of that ever

taking place.

Q. Did you ever have any discussion with Mr. Gulik

at General Electric concerning that whole subject matter,

the double wire to the single ground?

A. Yes. Because it was brought up as part of the

safety investigation at Dover.

Q. Before that?

A. Before that? No. Didn’t know about it before

that.

[p. 173] Q. Was it your impression, and I realize that

it’s only an impression unless he indicated to you out-

right, that Mr. Gulik did not know that there was a

double ground - a double wire to the single ground being

used until Dover?

A. That's correct.

Q. Was he surprised?

A. I believe that that was the first that he was aware

that there was a single ground being brought off -

Q. With the double wire?

A. - with - you know, to a wire coming off of each

of our connectors and then connected to a single point.

Yes. That was - as far as I know, that was his first

knowledge of that.

Se

App. 43

2. Did he express any feelings or impressions or

opinions about that to Mr. - to anyone at Lockheed when

he found that out at Dover?

A. He didn’t find it out. Mr. Mills brought it up.

Q. Okay. When he learned about it from Mr. -

A. When he learned about it from Mr. Mills.

Q. What did he say to Mr. Mills, do you know?

A. He didn’t offer any real comments, to my knowl-

edge and recollection. You know, that’s just -

* * »

App. 44

APPENDIX 5

DEPOSITION EXHIBIT 1

[Letterhead Illegible]

February 20, 1992

SUBJECT: C5 TF39 THRUST REVERSER ELECTRICAL

SYSTEM MODIFICATION

REFERENCE: SAALC Proposed Thrust Reverser Electrical

System Modification Program

Mr. Charles Jurek

Deputy Division Chief

LAD

Kelly Air Force Base, Texas

On November 21, 1991 GEAE received a wiring dia-

gram and an outline of a SAALC program plan to modify

the C5/TF39 Thrust Reverser Electrical System. At

SAALC’s request, GEAE Thrust Reverser Design and Sys-

tems Engineering has completed a review of the refer-

enced Modification Program. As you are undoubtedly

aware, the proposed modifications address aspects of the

Thrust Reverser System that were not originally designed

by General Electric. However, in light of our long mutu-

ally satisfactory business relationship, GEAE is happy to

provide the following comments.

The proposed modifications will increase their com-

plexity of the overall system and introduce additional

electrical connections as well as a more complex arrange-

ment of switches. It is GEAE’s opinion that the additional

connectors and switches could have a significantly detri-

mental impact on overall system reliability.

App. 45

GEAE recommends that SAALC provides a separate

ground for the Thrust Reverser System indication lights,

i.e., split the common ground. In fact, GEAE designed the

system with separate grounds: thus provisions for sepa-

rate grounds are already available in the existing Thrust

Reverser wiring harness. Splitting the common ground

would preclude a single point failure mechanism and

provide the desired redundant warning system.

GEAE Thrust Reverser Design and Systems Engineer-

ing personnel are available to discuss our recommenda-

tions at you [sic] convenience, if desired. If you have any

questions, please advise.

/s/ R. E. Young

R. E. Young, Manager Phone 513 552-3133

TF39 Programs Fax_ 513-552-3299

L/B 94