The government contractor defense: breaking the Boyle barrier.

• Author: Cantu, Charles E.

INTRODUCTION

On the afternoon of April 27, 1983, off the Virginia coast, Marine First Lieutenant David A. Boyle and three crew members flew a CH-53D assault helicopter on a practice approach to the USS Shreveport. Lieutenant Boyle, the copilot, sat in the left seat.(1) The pilot in command sat to Boyle's right, and the two other crew members occupied the rear. Boyle's helicopter was the second of a two-ship flight.(2) As the two aircraft approached the Shreveport, the lead helicopter began slowing down too soon. To avoid collision, Boyle's crew decided to take the aircraft around for a second approach.(3) The pilot in command took the controls and attempted to execute the necessary maneuvers, but the helicopter was too close to the water for a successful turn.(4) As a result, the aircraft crashed into the water right side down.(5) Although the other three crew members successfully exited the sinking helicopter, Boyle was unable to open the emergency exit due to the severe pressure from the water.(6) His body was later recovered with the aircraft.(7)

When Boyle's father sued the helicopter manufacturer, the case made history. In a 1988 decision, Boyle v. United Technologies Corp.,(8) the United States Supreme Court barred the claim and affirmed the "[g]overnment contractor defense," now also known as the "Boyle defense."(9) In Boyle, the Court concluded that governmental contractors are immune from tort liability under certain circumstances.(10) Since then, the government contractor defense has grown in strength, shielding those successfully invoking it from liability for injuries caused by defective products they manufactured. Through Boyle and its progeny, the bench has placed obstacles in a plaintiffs path to recovery which become more stringent with each decision.

The purpose of this Article is to discuss the weaknesses of the Boyle defense and to show how, by using skillful discovery tactics, plaintiffs may defeat the defense in order to successfully recover for their injuries. Part I outlines the history of the government contractor defense.(11) Part II describes the evolution of the defense under Boyle.(12) Part III reviews the three independent elements set forth in Boyle, and the ways by which a plaintiff may overcome each element.(13) Finally, Part IV discusses whether the collateral source rule presents an additional barrier to a plaintiffs recovery in a suit against a government contractor.(14)

1. ORIGINS OF THE GOVERNMENT CONTRACTOR DEFENSE

   1. Agency Principles

      The government contractor defense originated in a series of public work cases.(15) In these decisions, courts applied principles of agency to cloak the contractor with the government's sovereign immunity(16) when the contractor had complied strictly with government-provided specifications.(17) Over time, courts have expanded this early version of the government contractor defense, applying it to products liability actions based on theories of negligence, strict liability, and breach of warranty.(18)

      A seminal case illustrating this early version of the government contractor defense is the 1940 United States Supreme Court decision in Yearsley v. W. A. Ross Construction Co.(19) In that case, a contractor, under the direction and authority of the government, was hired to improve navigation on the Missouri River.(20) The government required the contractor to build several dikes along the river.(21) During the construction of the dikes, ninety-five acres of the plaintiffs land were flooded.(22) The plaintiff brought suit against the contractor for damages to his land.(23)

      Recognizing the government contractor defense for the first time, the Supreme Court held that the action of the contractor-agent is the "act of the government."(24) In addition, the Court determined that "there is no ground for holding [a governmental] agent liable [when he] is simply acting under [government authority]."(25) Therefore, under Yearsley, a contractor who follows the government's guidelines may avoid liability arising from the contractor's performance.(26)

      This agency version of the government contractor defense has proved difficult to apply because the defendant contractor must show that an agency relationship existed between it and the government.(27) Manufacturers who contract with the military are not hired as employees; rather, the basis of the relationship is contractual.(28) Thus, for many military contractors, this defense is ill-suited.(29) Further, changes in military contracting procedures and the military procurement process have limited the applicability of this defense to a non-military contractor context.(30)

   2. The Contract Specification Defense

      A second historical means of shielding government contractors from liability is traditionally referred to as the "contract specification defense."(31) This defense is not limited to contractors who are hired by the government.(32) The contract specification defense is afforded to both private and government contractors when they follow the directions and specifications of a third party, usually the employer.(33) When a contractor is hired to manufacture or perform under very specific orders, the contract specification defense protects him from liability for any defect in the product.(34) Instead of apportioning liability to the contractor, the employer ordering a specific product design assumes responsibility for any consequence of an unsafe product.(35)

      As the contract specification defense is grounded on the theory of reasonable reliance, the contractor is not protected by the defense if he follows specifications that contain obviously dangerous defects that would cause a reasonable person not to follow them.(36) Courts have determined that an average contractor cannot be expected to possess the expertise needed to examine every design it is given.(37) Therefore, when reasonable, a contractor may rely on a third-party's design specifications without fear of liability.(38) This reasonableness requirement, however, is irrelevant to cases not sounding in negligence.(39) Consequently, the contract specification theory, like the defense based on agency principles, is limited in its application.

   3. The Feres-Stencel Doctrine

      Both versions of the government contractor defense discussed above were limited in scope when applied to a military contractor situation.(40) As stated earlier, the military contractor's relationship with the government does not create an agency relationship; and in addition, most defective product actions are alleged under strict products liability which renders the contract specification defense useless.(41) As years passed and products liability litigation against military contractors increased, courts formulated the Feres-Stencel doctrine, which did not protect the government contractor in every situation.(42) This doctrine emerged from two United States Supreme Court cases,(43) Feres v. United States(44) and Stencel Aero Engineering Corp. v. United States.(45)

      In Feres, the Supreme Court determined that the "[g]overnment is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service."(46) The Court reasoned that the relationship between the government and members of the armed forces has a very distinctive character that requires unique protection.(47) Specifically, the Court determined that if suits were allowed against the military for negligent orders given or negligent acts committed, the special relationship of a soldier to his superiors would be harmed.(48)

      Because the Feres decision barred members of the service from bringing suit against the military, servicemen injured by military equipment began bringing suit against manufacturers of the allegedly defective products.(49) In response, the manufacturers argued that they had little control over the design specifications that caused the injury.(50) This argument proved futile, however, and contractors were forced to pay for injuries resulting from their implementation of government specifications.(51)

      In Stencel, Captain John Donham was seriously injured when his fighter aircraft malfunctioned during a midair emergency.(52) Donham sued both Stencel, the manufacturer of the aircraft's ejection system, and the government under the Federal Tort Claims Act (FTCA).(53) Stencel cross-claimed against the government, seeking indemnity for any damages that Stencel might have to pay.(54) The district court granted summary judgment for the government finding that Donham's injuries were within the scope of his military service, and consequently Donham could not recover under the FTCA.(55) The Supreme Court also granted the government's motion for summary judgment against Stencel, thereby disallowing Stencel to indirectly recover what Donham could not recover.(56) In so holding, the Court broadened governmental immunity and barred contractors from seeking indemnity from the military when the contractor was forced to pay for injuries sustained by a serviceman.(57) Thus, the Feres-Stencel doctrine was born.

      Johnson v. United States(58) illustrates how the Feres doctrine has been broadly applied to bar a plaintiffs claim against the military. In Johnson, Sergeant Jimmy Ray Johnson was hospitalized for a mental illness, the doctor concluding that Johnson suffered from "severe psychosis accompanied by homicidal and suicidal tendencies."(59) Johnson was released from the hospital and then readmitted after he assaulted his wife.(60) Again released from the hospital, Johnson requested leave, which was denied by his captain.(61) Johnson's executive officer overruled the captain and granted Johnson's request.(62) On leave, Johnson "killed his brother-in-law, Carroll Johns, shot his wife and then killed himself."(63)

      As a result of these events, the widow of Carroll Johns filed a wrongful death action against the United States under the FTCA.(64)...