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January 6, 1993

KARI JOHNSON SUNDSTROM, et al., Plaintiffs,

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

 This is a wrongful death action alleging design defect, manufacturing defect, negligence and failure to warn. The action arises out of the death of plaintiffs' decedent, Air Force Captain Steven C. Sundstrom, when he ejected from his F-16 fighter jet after a head-on collision with another F-16 jet during a test flight over Germany.

 On October 11, 1991, defendants moved for summary judgment that this action is barred as a matter of law under the doctrine of government contractor immunity enunciated by the Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500, 512, 101 L. Ed. 2d 442, 108 S. Ct. 2510 (1988). By Memorandum and Order dated January 7, 1992, the court granted defendants partial summary judgment on the first two prongs of Boyle. On that date, the court also granted plaintiffs' Rule 56(f) motion for further discovery on the third, duty to warn, prong of the Boyle defense. On July 10, 1992, the court ordered all parties to file briefs by November 20, 1992 presenting excerpts from the depositions of Charles Gene Spriggs, George Larson and Jerry Kennedy of defendant General Dynamics ("GD"), A.B. McDonald of defendant McDonnell-Douglas Corporation ("MDC") and Robert Billings of the United States Air Force ("Air Force").

 In light of the deposition testimony of these witnesses, the matter is now before the court for a ruling on the third prong of the government contractor immunity defense. In addition, based on the lack of personal knowledge evident from Mr. McDonald's deposition testimony, plaintiffs have requested that the court consider (1) striking the declarations of Mr. McDonald filed by MDC, (2) sanctioning Mr. McDonald and MDC's attorney, (3) reconsidering the partial summary judgment rulings as to MDC and (4) striking the contractor immunity defense as to MDC. Plaintiffs now also argue that the evidence in the record raise a "pure" manufacturing defect issue which precludes granting summary judgment in this action based on the Boyle defense.

 Having considered the submissions and arguments of the parties, and for the reasons explained below, the court GRANTS defendants partial summary judgment as to the third prong of the government contractor immunity defense. Further, the court STRIKES the declarations of A.B. McDonald previously filed by MDC in this action because Mr. McDonald lacked sufficient personal knowledge to make those declarations. However, the court does not find it necessary to reconsider the partial summary judgment granted in favor of MDC and declines to sanction MDC or its counsel. The court also finds that there is no evidence in the record supporting plaintiff's theory of a "pure" manufacturing defect or supporting any other claim for relief precluding a grant of summary judgment as to this action as a whole under Boyle. Defendants' motions for summary judgment are therefore GRANTED.


The data recorder is attached to the drogue chute shroud line cover fairing on the side of the ejection seat. The data recorder weighs 3.2 lbs. McDonnell Douglas, subcontractor on the seat, has questioned whether the data recorder may cause the fairing to buckle and tangle in the chute shroud lines. The job is being coordinated through George Larson in the design group.

 Id. at 1.

 Because there is no evidence that the Kennedy Drawing was ever sent to the Air Force, plaintiffs offered the document as evidence that defendants had more knowledge than the government of potential parachute entanglement dangers. Therefore, they argued that summary judgment should be denied on the failure to warn prong of Boyle.

 In response, defendants relied on a declaration by Robert Billings, who worked on the ACES II seat as an employee of the Air Force Life Support System Program Office ("SPO") between 1974 and mid-1982. Declaration of Robert Billings in Support of the Reply of McDonnell-Douglas Corp. ("Billings Dec.") P 3. In this declaration, Billings stated that MDC had, in the course of a study on the impact of the seat data recorder on the F-16 ACES-II ejection seat, advised the Air Force that "the original installation as proposed by General Dynamics Corporation may not withstand a 40-G deceleration drogue load without buckling the fairing on the side of the seat." Billings Dec. P 5. Billings also stated that "Douglas believed that if the fairing buckled the personnel parachute suspension lines could become trapped within the personnel parachute housing." Id.

 The court found that Billings' declaration provided evidence that the Air Force may have been informed that seat fairing buckling could cause parachute entanglement. However, the court concluded that it was not sufficiently clear based on Billings' declaration when or how defendants had informed the Air Force of the danger of parachute entanglement to grant summary judgment on the third prong of the government contractor immunity defense. For that reason, the court granted plaintiffs leave to conduct additional discovery on the third, or warning, prong of Boyle.

 The court must now determine whether defendants are entitled to summary judgment that they warned the Air Force of any dangers with respect to the ACES-II ejection seat of which they had more knowledge than the Air Force.


 I. Federal Rule of Civil Procedure 56

 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, 322-23, 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 significant probative evidence supporting the claim); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 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.").

 II. The Government Contractor Immunity Defense under Boyle

 Under Boyle, 487 U.S. at 512, liability for design defects in military equipment cannot be imposed pursuant to state law when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier 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. While the federal contractor immunity defense relieves suppliers of military equipment of liability for design defects, it does not relieve them of liability for pure manufacturing defects. McKay v. Rockwell International Corp., 704 F.2d 444, 451 (9th Cir. 1983), cert. denied, 464 U.S. 1043, 79 L. Ed. 2d 175, 104 S. Ct. 711 (1984); McGonigal v. Gearhart Industries, Inc., 851 F.2d 774, 777 (5th Cir. 1988).

 The contractor's duty to warn under the third prong of Boyle extends only to those dangers in the use of the equipment which are unknown to the government. Stout v. Borg-Warner Corp., 933 F.2d 331, 336, cert. denied, U.S. , 112 S. Ct. 584 (1991). Further, the contractor is held to an actual knowledge standard whereby the contractor has no duty to warn the government of hazards of which it is not actually aware. McKay, 704 F.2d at 451; In re Aircraft Crash Litigation, 752 F. Supp. 1326, 1364 (S.D. Ohio 1990), aff'd sub nom. Darling v. The Boeing Co., 935 F.2d 269 (6th Cir. 1991) ("Under Boyle, a contractor has no duty to warn of dangers in the use of its equipment of which it has no actual knowledge."); see also Boyle, 487 U.S. at 513 ("it does not seem to us sound policy to penalize, and thus deter, active contractor participation in the design process, placing the contractor at risk unless it identifies all design defects.").


 The court granted plaintiffs leave to take the depositions of Messrs. Spriggs, Larson and Kennedy of GD, Mr. McDonald of MDC and Mr. Billings of the Air Force in order for plaintiff to substantiate their claim that defendants failed to warn the Air Force that seat fairing buckling could cause parachute entanglement or entrapment. In light of those depositions, the court now finds that defendants have met their summary judgment burden as to the third prong of the Boyle defense. The deposition testimony submitted by the parties shows that defendants warned the Air Force of all dangers associated with buckling and parachute entanglement or entrapment which were known to defendants but not to the Air Force.

 Plaintiffs rely on several different theories to raise a genuine issue of material fact as to the duty to warn. For the reasons explained below, all of these theories fail. Plaintiff also argue that the fact that the fairing on plaintiffs' decedents' seat buckled even though the Air Force did not want it to buckle raises the issue of whether there was a manufacturing defect in the fairing, to which the ...

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