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January 7, 1992

KARI JOHNSON SUNDSTROM, et al., Plaintiffs,

The opinion of the court was delivered by: MARILYN HALL PATEL

 This action arises from the mid-air collision of two General Dynamics Corporation F-16C fighter aircraft that killed United States Air Force ("USAF") First Lieutenant Steven Sundstrom. Plaintiffs Kari Sundstrom, the widow of the decedent, and Daniel James Sundstrom and Kristin Nicole Sundstrom, the decedent's two children, bring this action for wrongful death against defendants McDonnell Douglas Corporation ("MCD") and General Dynamics ("GD"). Plaintiffs allege defective design, manufacture, and assembly of aircraft components by the defendants as well as negligence and misrepresentation. Defendants have moved for summary judgment, asserting the government contractor defense enunciated by the Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500, 101 L. Ed. 2d 442, 108 S. Ct. 2510 (1988). Plaintiffs have filed a cross-motion for summary adjudication on the government contractor defense issue. Plaintiffs contend that the government contractor defense should be stricken and that the jury not be instructed at trial on this defense. Alternatively, plaintiffs move for continued discovery under Rule 56(f). Having considered the submissions and oral arguments of the parties, and for the following reasons, the court GRANTS partial summary judgment for defendants. Summary judgment is granted on the first two prongs of the Boyle test. Plaintiffs are allowed limited discovery under Rule 56(b) on the third, "failure to warn" prong of the Boyle test. Plaintiffs' cross-motion for summary adjudication on the government contractor defense is DENIED. *fn1"

 On December 18, 1989, during a training mission in Germany, two F-16C aircraft were involved in a mid-air collision. The impact of the crash destroyed the left wing of decedent's aircraft and sheared off its left horizontal stabilizer. Joint Statement of Undisputed Facts Between General Dynamics and Plaintiffs ("GD Joint Statement") P 1. The pilot of one of the F-16C aircraft was able to eject successfully from the aircraft. The pilot of the other aircraft, plaintiffs' decedent, ejected unsuccessfully. Id. Defendant GD designs and manufactures F-16C aircraft. Defendant MDC, through its subdivision Douglas Aircraft Company ("Douglas"), designs and manufactures the ACES-II ejection seat system used in F-16 aircraft. The F-16C aircraft in this collision had ACES-II ejection seats. GD Joint Statement P 1.

 After the decedent ejected from his aircraft, the lines of his drogue stabilizing parachute became tangled between the side of the ejection seat ("fairing") and the electrical disconnect fitting of a seat data recorder which was mounted on the left side of the ejection seat. GD Joint Statement P 2. Lt. Sundstrom fell to his death. Joint Statement of Facts Between McDonnell Douglas and Plaintiffs ("MCD Joint Statement") P 4. The parties dispute the reason for the entanglement. Relying on the declaration of Edward Flora, plaintiffs maintain that the entanglement occurred because the ejection seat fairing buckled into the seat data recorder. Flora Dec. PP 8-9. Defendants deny that buckling caused the parachute entanglement; they contend that the entanglement was caused by the adverse movement of the decedent's aircraft following collision. Nonetheless, for the purposes of their summary judgment motions, defendants accept plaintiffs' statement regarding that seat buckling caused the entanglement.

 Although the parties' submissions discuss the history of the F-16 and the ACES-II at great length, only a brief history is necessary to decide the issues presented in this case. In the early 1970's, the USAF F-16 System Program Office ("F-16 SPO") was formed to design a new generation of fighter aircraft. GD Joint Statement P 3. The F-16 SPO then submitted Requests for Proposal to American aircraft manufacturers, including General Dynamics. The contract for the production model of the F-16 was awarded to GD. Id. GD developed detailed design specifications for the production of the F-16. The requirements for the F-16A aircraft (a single-seat aircraft) are set forth in air vehicle specification 16PS002 (and subsequent revisions) and for the F-16B (a two-seat aircraft) in air vehicle specification 16PS005 (and subsequent revisions). Id. at P 4.

 The air vehicle specifications for the F-16 include various components termed "Government Furnished Aeronautical Equipment" ("GFAE"). GD was required to install such components into the F-16 aircraft as they were supplied by the Air Force. The F-16 SPO coordinated with other Air Force organizations responsible for procuring GFAE components. GD Joint Statement P 8. In 1976, the Life Support System Program Office ("Life Support SPO") was set up. It was involved in the development and verification of a GFAE seat ejection system that was to be incorporated into the F-16 crew escape system. The F-16 SPO coordinated the integration of this ejection system into the aircraft. Id.

 After several years of production of the original F-16A and F-16B models, the F-16C and F-16D models were produced. The F-16C, like the F-16A, is a single-seat model. In 1986 and 1988-89, further sled tests were conducted by GD on the ACES-II ejection seat incorporated into the F-16C and F-16D models. No seat data recorder was attached to the ejection seat during these tests. GD Joint Statement P 11.

 In the late 1970s, the Air Force and GD developed a program to preserve F-16 flight data for later analysis. Two memory components of this program would be incorporated into existing flight control system components. A third memory component, designed primarily for accident analysis, would be attached to the ACES-II ejection seat. This third memory component would increase the chances that flight data could be retrieved intact following an aircraft accident. After study and evaluation, the Air Force issued Advanced Change/Study Notice ("ACSN") 711. ACSN 711 directed GD to prepare and submit an Engineering Change Proposal ("ECP") for production and incorporation of a flight control seat data recorder. GD Joint Statement P 14.

 In January 1979, GD issued ECP 106, which called for the installation of a Flight Data Recorder on the F-16 ACES II ejection seat. In March 1979, the Air Force notified MDC's subdivision Douglas that GD had issued ECP 106. The Air Force directed Douglas to evaluate and comment on the impact of the installation of the flight data recorder on ejection seat performance. MDC Joint Statement P 13, ex. 1. In July 1979, GD forwarded to Douglas drawings of the original proposed installation of the F-16 flight data recorder. MDC Joint Statement P 15. MDC's ACES II production contract was formally modified to direct Douglas to prepare Engineering Change Proposal ("ECP") 106 to reflect the impact of the seat data recorder on ejection seat performance. MDC Joint Statement P 17, ex. 2. Because of the anticipated attachment of the recorder to th GFAE ACES-II Ejection Seat, the Life Support SPO was also involved in evaluating the recorder. GD Joint Statement P 14.

 On March 12, 1980, a copy of the Douglas study was sent to John Glaser, Air Force Contracting Officer for the ACES II ejection seat system. MDC Joint Statement P 18. Subsequent letters exchanged between Douglas, GD, and the Air Force discussed engineering changes to the attachment of the seat data recorder occasioned by Douglas' fear that the positioning of the original attachment might cause the ejection seat fairing to buckle. MDC Joint Statement PP 19, 20.

 The Configuration Control Board, an entity within the F-16 SPO, maintains control over F-16 specifications and changes thereto. It is composed of representatives of technical organizations within the F-16 SPO. Miller Dec. PP 2, 4. After receiving input from various Air Force engineers and GD personnel, the Configuration Control Board approved ECP 106. Dabold Dec. P 7; Bailey Dec. P 10; Miller Dec. P 9.

 The seat data recorder was incorporated into the vehicle specifications for the F-16A and F-16B aircraft. Hudson Aff., ex. 1 at I-202; Hudson Aff., ex. 2 at I-208. It also became part of F-16C vehicle specifications when that aircraft was developed. Hudson Aff., ex. 3 at I-152.

 Defendant MDC is not involved in the installation of the seat data recorder. ACES II ejection seats are delivered directly to the government without the flight data recorder or its supporting hardware. MDC Joint Statement P 24. Plaintiffs have brought this wrongful death action against MDC and GD for their role in developing an allegedly faulty seat ejection system. Defendants have moved for summary judgment on the grounds that plaintiff's action is barred by the government contractor defense.


 Under Federal Rule of Civil Procedure 56, summary judgment shall be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). See also T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (the nonmoving party may not rely on the pleadings but must present specific facts creating a genuine issue of material fact); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").

 The court's function, however, is not to make credibility determinations. Anderson, 477 U.S. at 250. The inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the motion. T.W. Elec. Serv., 809 F.2d at 631.


 I. The Boyle ...

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