C. Failure to Warn
Under the third prong of Boyle, the government contractor defense must fail if the defense contractor fails to warn the government of any defects with respect to which it has more knowledge than the government. Both defendants had a duty to provide to the government all knowledge they had regarding the effects of the seat data recorder on the ACES-II ejection seat. Defendant GD was responsible for installing the seat data recorder and defendant MDC had entered into a contract with the Air Force directing MDC to prepare an ECP evaluating the seat data recorder's impact.
As evidence that defendants had more knowledge than the government of the potential for parachute entanglement, plaintiffs offer a GD engineer's drawing dated February 11, 1980. This drawing states that MDC had expressed concern that seat buckling could cause parachute entanglement. Spriggs Dec., ex. 6. There is no evidence that this drawing was ever sent to the Air Force and, indeed, defendant GD denies that it was. Spriggs Dec. P 15.
The drawing suggests that both MDC and GD had actual knowledge that seat buckling could cause parachute entanglement. Although the drawing's statement constitutes inadmissible hearsay with respect to MDC's knowledge, MDC does not contest its knowledge of the danger. Rather, at oral argument, both defendants relied on the declaration of a Robert Billings as evidence that information regarding the potential for parachute entanglement was provided to the Air Force.
Billings worked on the ACES II Ejection Seat during the period between 1974 and mid-1982 as an employee of the Air Force Life Support SPO. Declaration of Robert Billings in Support of the Reply of McDonnell Douglas Corp. ("Billings Dec."), P 3. Billings asserts that during the course of the Douglas study on the impact of seat data recorder on the F-16 ACES II Ejection Seat, Douglas advised the Air Force that "the original installation as proposed by General Dynamics Corporation may not withstand a 40g deceleration drogue load without buckling the fairing on the side of the seat." Billings Dec. P 5. Billings also states that "Douglas believed that if the fairing buckled the personnel parachute suspension lines could become trapped within the personnel parachute housing." Id.
Billings' statements constitute evidence that the Air Force may have been informed that seat buckling could cause parachute entanglement. However, it is not clear when or how Douglas informed the Air Force of its suspicions regarding parachute entanglement, or if it did so at all. The court cannot grant defendants GD and MDC summary judgment on the failure to warn question simply on the basis of Billings' declaration. Therefore, limited discovery on the failure to warn question will be allowed as discussed below.
II. Plaintiffs' 56(f) Motion for Discovery Extension
As an alternative to denial of defendants' summary judgment motion, plaintiffs move for an extension of the discovery period under Federal Rule of Civil Procedure 56(f). Rule 56(f) requires affidavits which specifically set forth the information sought and how it would preclude summary judgment by creating a genuine issue of material fact. Hall v. Hawaii, 791 F.2d 759, 761 (9th Cir. 1986). Plaintiffs' Rule 56(f) motion is granted on the remaining genuinely disputed issue: whether the Air Force was warned that seat buckling could result in parachute entanglement. Plaintiffs are thus given leave to depose Billings on this issue. After Billings has been deposed, the parties shall contact the court regarding further briefing on the third prong of Boyle. If plaintiffs can show that further depositions are necessary before the briefing, they shall submit a declaration setting forth the depositions required and the reasons for them.
1. For the foregoing reasons, the court GRANTS summary judgment for defendants on the first two prongs of the Boyle test.
2. The court DENIES plaintiffs' cross-motion for summary adjudication on the issues.
3. Plaintiffs' Rule 56(f) motion for further discovery with respect to the third prong of the Boyle test is GRANTED. 4. Plaintiffs are allowed to depose Mr. Billings on the single question of failure to warn that seat buckling could cause parachute entanglement.
IT IS SO ORDERED.
Dated: JAN 7 1992
MARILYN HALL PATEL
United States District Judge