Liability Issue : Servicemen Sue Defense Contractors

Times Staff Writer

Marine Lt. David A. Boyle was in the co-pilot's seat on the afternoon of April 27, 1983, when his helicopter left the Virginia coast and headed out to sea. He and three other crewmen were returning to their ship after a routine exercise of ferrying troops to shore.

The copter slowed and banked as it approached the ship. But suddenly, without warning, it lurched to the right and crashed into the sea. Three crewmen struggled out of open windows in the back of the sinking craft and swam to the surface. The window next to Boyle, however, opened only outward--against the pressure of the sea--and the 26-year-old Marine was trapped and drowned.

Now, as a result of the death of David Boyle, the Supreme Court is pondering what one lawyer calls "a billion-dollar question": whether the contractors and manufacturers who make up the nation's huge defense industry may be held liable if shortcomings in the planes, tanks and other hardware they produce contribute to the injury or death of servicemen who use those products.

Family Filed Suit

Soon after his death, Boyle's family filed suit against United Technologies Corp., maker of the Sikorsky CH-53 helicopter in which he was flying. They charged that their son died because of a defective steering control and an improperly designed escape window. After a trial in Richmond, Va., a jury agreed and awarded Boyle's family $725,000 for their loss.

What happened next was no surprise to lawyers who have represented servicemen and their families in such situations: The U.S. 4th Circuit Court of Appeals in Richmond threw out the verdict, concluding that military contractors, like the U.S. military itself, cannot be sued for liability.

Now, the Supreme Court has agreed to review the case, confronting for the first time the issue of whether the shield of immunity which protects the government should extend to defense contractors as well.

'Billion-Dollar Question'

"This is a billion-dollar question," said Boyle's attorney, Louis S. Franecke of San Francisco, who argued the case before the high court on Oct. 13.

The Defense Department spends an estimated $130 billion a year on new weapons, and hundreds of accidents involving aircraft and weapons are reported annually. Not only will the high court's ruling determine the fate of the many lawsuits growing out of these accidents, Franecke said, but it may also affect suits still pending over the explosion of the space shuttle Challenger and the Army's use of the chemical defoliant Agent Orange during the Vietnam War.

Despite a lack of guidance from Congress and the Supreme Court, lower federal courts have concluded that suits against the military contractors would unduly harm the nation's defense.

"This so-called 'military contractor defense' was invented by the (lower) courts as a special law to cover a special group of people," Franecke charges.

He and other trial lawyers say it is unfair to make servicemen "second-class citizens" who cannot sue when they are injured, whether by a bungled surgery in a military hospital or by a rotor blade that suddenly falls off a helicopter.

But lawyers representing military contractors argue that it is equally unfair to hold manufacturers of sophisticated, high-tech weapons to the same standards of liability as the makers of children's toys.

"You could make a very safe bomber that traveled 150 miles per hour," said Kenneth S. Geller, a Washington lawyer who filed a friend-of-the-court brief in behalf of the National Assn. of Manufacturers and a series of other military contractors.

Companies that produce aircraft or other weapons for the military do so under precise specifications drawn up by government engineers, he said.

"Unquestionably, safety may be sacrificed when you are making a weapon, but the military makes those decisions. You (contractors) have to meet the military's specifications," Geller said.

The government intervened in the case of Boyle vs. United Technologies, 86-492, on behalf of the defense contractors, arguing that the courts and juries should not "second guess" decisions made by the military.

Although design work on new aircraft and other weapons is done by private companies, "the military is nonetheless ultimately in control of the specifications of the products it purchases," the Department of Justice told the court.

These products are "inherently dangerous," it said. If servicemen and their lawyers may sue companies for design defects, it "will generally call military judgments into question and will disrupt the cooperative working relationship necessary if the procurement process is to operate efficiently," the government warned.

Ruling From 1950

In dismissing suits against military contractors, the lower courts have relied on a still controversial 1950 Supreme Court ruling. In the case of Feres vs. the United States, the court declared that military employees may not sue the government for injuries that "arise out of or . . . are incident to service" in the military.

If the military is immune for its actions, contractors who make products at the direction of the military should also be immune, the lower courts reasoned.

But some members of the Supreme Court have recently expressed second thoughts about the legal shield that protects the military. Undaunted by his status as the high court's rookie, Justice Antonin Scalia in May challenged the so-called Feres doctrine as an unwarranted exercise in judicial law-making.

In 1946, Congress said Americans may sue the U.S. government for injuries or a loss of property due to "the negligent or wrongful act" of a government employee. No exception was made for the military services, Scalia noted.

If even federal prisoners can sue the government for official neglect, it is "clearly wrong," Scalia said, to deny the same right to servicemen and their families. He was joined by Justices William J. Brennan Jr., Thurgood Marshall and John Paul Stevens in a dissent that called for an overturning of the Feres doctrine. Five members of the court, including the now-retired Justice Lewis F. Powell Jr., voted in May to affirm the Feres doctrine.

Citing this high court decision, a federal appeals court in California recently dismissed a malpractice suit brought by a pregnant servicewoman who lost her baby after a medical problem was repeatedly misdiagnosed by military doctors. Despite their ruling, the three judges in the case wondered aloud what this situation has to do with the wartime necessities that led to the Feres doctrine.

After the Challenger explosion killed seven crew members in January, 1986, the families of several filed suits against NASA and Morton Thiokol Inc., the maker of the shuttle booster rocket. All but one have been settled.

A lawyer for the family of shuttle pilot Michael J. Smith has charged NASA and Morton Thiokol with negligence for launching the rocket during unusually cold weather. Because his suit focuses on negligence and not the design defect in the rocket, "I don't think it will be affected by the ruling in the Boyle case," said attorney William F. Maready of Winston-Salem, N.C.

However, attorneys for Morton Thiokol have contended the company, as a government contractor, cannot be sued for its work and has urged a trial judge in Orlando, Fla., to dismiss the suit.

Settled in 1985

Much of the massive Agent Orange litigation was settled in 1985 after a federal appeals court in New York cited the "military contractor defense" in dismissing the charges against the Dow Chemical Co. But a group of 287 Vietnam veterans have appealed that conclusion to the Supreme Court (Lombardi vs. Dow Chemical, 87-436).

In the October arguments in the Boyle case, the eight justices appeared troubled by the prospect of either declaring military contractors off-limits to liability or by creating a new wave of extensive and costly litigation.

Perhaps reflecting this ambivalence, all the appeals courts which have considered the issue have permitted some form of shield for military contractors, but they have differed sharply on the standards.

One court has upheld a suit against an aircraft maker, concluding that a company is immune only when it did not design the plane or the crucial part that caused the accident or when it specifically warned the government of a potential hazard. Other courts would exempt contractors if the government required a specific design change.

Take the example of an Army request for Jeeps with the roll bars removed. If a serviceman were killed or injured when a Jeep rolled over, he could not sue the manufacturer because the company merely complied with a military request.

Want Broader Shield

The Assn. of Trial Lawyers of America, whose members represent plaintiffs against the contractors, has urged the high court to adopt this limited shield for contractors.

But the defense industry lawyers want a much broader shield. They say companies cannot clearly and specifically anticipate each hazard for a sophisticated new product like the stealth bomber or the space shuttle. If a weapon or aircraft is built for the military, the maker should be shielded entirely from design liability, they contend.

Government lawyers endorse this view, saying the makers of all products made especially for the military should be immune. However, in October, Deputy Solicitor General Donald Ayer told the court that the legal shield would not cover makers of an ordinary product purchased by the military, such as "a can of beans" or a standard model Jeep.

In the dozen briefs filed in the case, the justices have been given sharply different views of the military procurement process.

According to defense industry attorneys, close cooperation between military contractors and experts at the Defense Department helps to produce new high-tech military products.

"It is a slander and pure nonsense to say that our government gives our men in the military second-rate equipment," said Los Angeles lawyer James M. FitzSimons, who represents Grumman Aerospace Corp. in a suit involving the A-6 fighter plane that awaits the high court decision in the Boyle case. He and other attorneys say the national security will be harmed if the courts drive a wedge between the military and its contractors.

Cozy Relationship

But lawyers on the other side say a cozy relationship shields companies from responsibility for "nuts and bolts" mistakes.

Deaths in highly sophisticated military airplanes are often the result of ordinary defects, such as a crucial cockpit wire placed in an exposed area and severed, or a poorly designed escape window as in the accident that killed Boyle, said Dale Haralson, a Tucson lawyer who has tried several cases against military contractors.

"Now they can sweep those kinds of things under the rug," said Haralson. "The history of the last 25 years is that exposure to liability has made manufacturers of autos and toys and aircraft a lot more concerned about safety. And if a military contractor designs a defective product, you are darn right that they ought to be responsible too."

Lawyers on both sides say the wording of the high court's decision will be crucial in resolving the many, often highly technical lawsuits arising from aircraft crashes.

A written decision in the case is expected shortly. Since William H. Rehnquist became chief justice in 1986, the high court has issued opinions in nearly all its cases within three or four months of the oral argument. Since October, the court has twice found itself deadlocked 4 to 4 on cases, but both deadlocks were announced within a few weeks of the oral argument.

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