Ritch, Adm. v. A M Gen. Corp. CV-93-451-SD 03/28/96 P UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Manton Ritch, as Administrator of the Estate of Todd Ritch

v. Civil No. 93-451-SD

A M General Corporation

O R D E R

Manton Ritch, administrator of the estate of Todd Ritch,

brings this wrongful death action against A M General

Corporation, the manufacturer of a vehicle in which plaintiff's

decedent was a passenger while on active duty with the National

Guard in Saudi Arabia. The complaint contains two counts,

sounding in strict liability and negligence, both premised on the

defendant's alleged inadeguate warnings regarding the vehicle's

safety.

Presently before the court are (1) defendant's motion for

summary judgment (document 13) based on the government contractor

defense, to which plaintiff objects, and (2) plaintiff's cross­

motion for summary judgment (document 22) striking the government

contractor defense, to which defendant objects. Background

On February 20, 1991, Todd Ritch was killed in the desert of

Saudi Arabia while a passenger in a vehicle known as a M998

HMMWV, also known as a "Hummer" or "Humvee". Amended Complaint

55 8, 9; Defendant's Memorandum at 1. Ritch, a member of the New

Hampshire Army National Guard, was on active duty in Operation

Desert Storm at the time. Amended Complaint 5 7.

The driver of the Humvee and Ritch were discovered at the

accident scene beneath the vehicle, which had overturned. Army

Investigative File (attached as Exhibit J to Defendant's

Memorandum); Statement by Dr. Jay Brodie (attached as Exhibit 1

to Plaintiff's Memorandum). Ritch's chest was pinned under the

passenger door of the vehicle. Brodie Statement. The Humvee's

roll-over protective devices, referred to by the parties as A and

B pillars, were apparently not in place at the time of the

accident. Plaintiff's Memorandum at 3; Defendant's Memorandum at

3. The A pillar is the windshield frame; the B pillar is a

multi-piece bar assembled in several sections and bolted to the

vehicle. Id. Plaintiff's theory of the case is that Ritch's

death could have been avoided had the defendant provided a

warning against operating the vehicle without first securing the

roll-over structures. Amended Complaint 55 20, 25.

2 The Humvee's lineage can be traced back to July of 1979,

when the Army, through the Tank & Automotive Command (TACOM)

first solicited private industry to develop and sell to the Army

a high mobility multi-purpose wheeled vehicle. Affidavit of

Robert J. Gula 5 3, dated July 28, 1995 ("Gula 1 Aff.") (attached

as Exhibit 1 to Defendant's Memorandum in Support of Motion for

Summary Judgment). From the initial phase of the project, when

the government first accepted bids to build prototypes of the

vehicle, through the last stages of development, the government

provided A M General with detailed specifications for the

manufacture of the Humvee. Affidavit of John D. Weaver 55 2, 3

("Weaver Aff.") (attached as Exhibit H to Defendant's

Memorandum); Affidavit of Robert J. Gula, dated July 12, 1995, 5

2 ("Gula 2 Aff.") (attached as Exhibit AA to Defendant's

Memorandum). The specifications included safety features such as

the roll-over protection devices. Gula 2 Aff. 55 14, 15. The

government's specifications also indirectly affected the design

of safety features. For example, to comply with the Army's

packaging and shipping restrictions, the B pillar was designed to

be removed during shipment. Id.; Gula 1 Aff. 55 14, 15.

Through periodic tests and inspections, the Army

continuously monitored the manufacture of the Humvee to determine

whether the vehicle conformed to such specifications. Weaver

3 Aff. 5 3; Gula 2 Aff. 55 2, 16. For example, in phase one of the

project, prototype development contracts were awarded to three

manufacturers, including A M General; the prototype vehicles were

then tested to determine whether they conformed to government

specifications. Gula 2 Aff. 5 2.

Before A M General was awarded the production contract, the

government and all bidders, including A M General, participated

in a guestion and answer period entitled Errors, Omissions and

Clarifications (EOCs). Gula 1 Aff. 5 7. The government asked A

M General about whether its proposed vehicle would provide

"suitable roll over protection." Id. In response, A M General

stated that the roll-over protection of the Humvee would be

superior to that of other vehicles and that, in any event, the

vehicle would meet federal regulations regarding safety standards

for motor vehicles. Id. at 55 8, 9. AM General further

provided TACOM with detailed diagrams of the pillar system and a

proposal for how A M General expected to meet the roll-over

protection reguirement. Id. at 5 10.

A M General was subseguently awarded the production

contract. Id. at 5 6. The next phase of the project involved

final acceptance and approval by the Army of the vehicle. Id. at

5 10. During such phase, the government performed tests and

4 inspections designed to evaluate the production vehicles against

the reguirements of the contract. Id.

Discussion

1. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to a

judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; Lehman

v. Prudential Ins. Co. of Am.,

, 327 (1st Cir. 1996) .

Since the purpose of summary judgment is issue finding, not issue

determination, the court's function at this stage "'is not [] to

weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.'" Stone &

Michaud Ins., Inc. v. Bank Five for Savings,

(D.N.H. 1992) (guoting Anderson v. Liberty Lobby, Inc.,

(1986) ) .

When the non-moving party bears the burden of persuasion at

trial, to avoid summary judgment he must make a "showing

sufficient to establish the existence of [the] element[s]

essential to [his] case." Celotex Corp. v. Catrett,,

(1986). It is not sufficient to "'rest upon mere

allegation[s] or denials of his pleading.'" LeBlanc v. Great Am.

Ins. C o .,

(1st Cir. 1993) (guoting

477 U.S. at 256), cert, denied, ___ U.S. , 114 S. C t .

1398 (1994). Rather, to establish a trial-worthy issue, there

must be enough competent evidence "to enable a finding favorable

to the non-moving party." Id. at 842 (citations omitted).

In determining whether summary judgment is appropriate, the

court construes the evidence and draws all justifiable inferences

in the non-moving party's favor.

.

2. The Government Contractor Defense

Defendant's claim has its genesis in Boyle v. United

Technologies Corp.,

(1988), which embellished

federal common law in order to recognize the so-called government

contractor defense. Boyle held that a government contractor

cannot be subject to liability under state law for design defects

in military eguipment when

(1) the United States approved reasonably precise specifications; (2) the eguipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the eguipment that were known to the supplier but not to the United States.

. This standard was formulated to ensure that the

federal policy protecting the government in its exercise of

discretionary functions is not thwarted by the application of

6 state tort law.1

. The first two conditions were

devised to determine whether the government's discretionary

functions have been implicated in the suit. "[T]hey assure that

the design feature in guestion was considered by the Government

officer, and not merely by the contractor itself."

.

The third condition was adopted to encourage manufacturers to

pass along their knowledge of any risks, thereby increasing the

flow of information available to the government in making its

discretionary decisions.

.

Presently in contention is the interpretation of Boyle's

first condition in the context of a failure-to-warn claim. As a

general matter, courts tend to distinguish between failure-to-

warn claims and design defect claims in determining the

discretionary function guestion. The government's exercise of

discretion in choosing a product's design does not by itself

establish that the government also exercised discretion in the

selection of accompanying warnings. See Tate v. Boeing

1The Federal Tort Claims Act subjects the federal government to suits arising from the negligent or wrongful conduct of government employees.

(citing

6(b)). The FTCA exempts the government from claims arising from the performance of a discretionary function, whether or not such discretion was abused.

(citing

(a)). The FTCA does not expressly mention whether such exemption extends beyond the government to those entities that contract with the government.

7 Helicopters,

, 1156 (6th Cir. 1995); In re Hawaii

Federal Asbestos Cases,

(9th Cir. 1992);

Dorse v. Eagle-Picher Indus.,

(11th Cir.

1990); In re Joint Eastern & Southern Dist. N.Y. Asbestos Litiq.,

(2d Cir. 1990). The possibility remains

that while the government contract may focus on the content and

design of the product, the issue of warnings was left to the

contractor's discretion. In re New York Asbestos, supra, 897

F .2d at 631.

There is less agreement, however, as to how to determine

whether the government exercised the level of discretion reguired

by Boyle's first condition in approving the subject warnings.

The generally accepted approach is to focus on whether the

contractor could have complied with both its state law duty to

warn and its duty under the military contract. See

; In re New York Asbestos, supra,

. Such decisions have found that if the contract does not

prohibit or otherwise conflict with defendant's ability to place

safety warnings on the product, the federal contractual duty does

not displace the defendant's duty to warn imposed by state law.

In re

;

. The reasoning is as follows. "Stripped to its essentials, the military contractor's defense under Boyle is to claim, 'The Government made me do it.' Boyle displaces state law only when the Government, making a discretionary, safety-related military procurement decision contrary to the requirements of state law, incorporates this decision into a military contractor's contractual obligations, thereby limiting the contractor's ability to accommodate safety in a different fashion."

In reHawaii, supra,

(quoting In re New York

Asbestos, supra,

).

In addition, Boyle's first condition can be satisfied by

evidence that the government meaningfully and substantively

approved and evaluated warnings proposed by the contractors.

Tate, supra, 55 F.3d at 1157; Oliver v. Oshkosh Truck Corp.,

(E.D. Wis. 1996)(agreeing with Tate that

requiring defendant to establish government dictation or

prohibition of warnings "seems too onerous a burden in light of

the reasoning of the Boyle Court"). Such approval must transcend

rubber-stamping, see Tate, supra, 55 F.3d at 1157, so that it can

be fairly said that the warning ultimately selected "reflect[s] a

significant policy judgment by Government officials."

.

The First Circuit has addressed the issue of when the

government's failure to warn can be a "discretionary function"

within the meaning of the FTCA,

(a)--although it has not yet reached the issue of when a government contractor

enjoys like protection for its failure to warn. To be

discretionary, the government's conduct must include the making

of a policy judgment or choice. Dube v. Pittsburgh Corning,

(1st Cir. 1989) (citing Berkovitz v. U.S.,

(1988)); see also Aver v. United States,

(1st Cir. 1990) (a discretionary function "'often involves

not merely engineering analysis but judgment as to the balancing

of many technical, military, and even social considerations,

including specifically the trade-off between greater safety and

greater combat effectiveness'") (guoting

). The mere failure to consider whether or not a warning

should be given does not support the idea that the government

exercised discretion. Id. at 796-97. Rather, it is critical

that the government's failure to warn represented an affirmative

decision, including consideration of whether the risks posed by a

product justify a warning. Compare id. (Navy's failure to warn

domestic bystanders of asbestos hazards was not policy choice

where Navy had never considered or adopted a policy to forego

such warning) with Barnson v. United States,

(10th Cir.) (discretionary function exception covered federal

official's affirmative decision not to warn of risks of radiation

exposure, where government produced factors influencing its

10 decision), cert, denied,

(1987) and Ford v. American

Motors Corp.,

(5th Cir. 1985) (affirmative

decision of postal service not to warn buyers of surplus vehicles

of risk of roll-overs was policy choice within meaning of

discretionary function exception).

Against the above basic legal principles, the court will now

examine the merits of the parties' respective motions for summary

judgment.

Defendant first argues that it is entitled to summary

judgment because the "totality of the procurement process"

establishes that the government issued and approved reasonably

detailed specifications for the Humvee's design, including that

of the vehicle's roll-over protection system. Defendant's

Memorandum at 18. AM General contends that because the complete

development of the vehicle was dictated by the Army, the court

can determine as a matter of law that the decision regarding

warnings was solely within the government's discretion.

Defendant further relies on conversations between the Army and A

M General regarding the safety of the A and B pillars, but such

communications do not appear to concern the issue of warnings.

Thus defendant here attempts to establish the government's

discretion regarding warnings by showing the extent to which the

government was involved in other aspects of the vehicle's

11 design.2 To support such position, defendant understandably

relies on a strain of cases holding that Boyle's first criteria

is satisfied by evidence of the government's continuous

participation at various stages in the design and development of

the offending military eguipment. Stout v. Borg-Warner Corp.,

(5th Cir.) (governmental review and critigues of

detailed drawings of air conditioning unit during design stages

and testing and evaluation of prototype models amounted to

approval of reasonably precise specifications), cert, denied, 940

(1991); Harduvel v. General Dynamics Corp., 87

, 1320 (11th Cir. 1989) (extensive analysis and review by

government of fighter aircraft's electrical system establishes

governmental approval), cert, denied,

(1990); Smith

v . Xerox Corp.,

(5th Cir. 1989) (Boyle's

first element established by government's initial supply of

relevant specifications for shoulder-mounted weapon which were

incorporated into production contract, and government's

subseguent review and approval of contractor's final drawings and

specifications).

2Defendant also asserts that it is entitled to summary judgment because of the government's involvement in the provision of warnings. The court addresses such argument infra at p. 18 n. 3.

12 Defendant's position is problematic for several reasons.

First, and obviously, defendant's basic premise--that the

government's involvement in the provision of warnings can be

inferred by its participation in the design--is flawed. See,

e.g., Tate, supra, 55 F.3d at 1156 ("Simply because the

government exercises discretion in approving a design does not

mean that the government considered the appropriate warnings, if

any, that should accompany the product."). See also Bailey v.

McDonnell Douglas Corp.,

(5th Cir. 1993)

("Boyle makes clear that the reguirements of 'reasonably precise

specifications' and conformity with them refer to the particular

feature of the product claimed to be defective." (guoting

)) (emphasis in Bailey) . Second, the cases

relied upon by defendant are distinguishable from the case at bar

in that they primarily address design defect claims and do not

offer meaningful discussion regarding a failure-to-warn claim.

See, e.g. Harduvel, supra, 878 F.2d at 1316, 1322;

; c f . Stout, supra,

n.2 (noting

that Smith potentially conflicts with In re New York Asbestos,

but declining to reconcile the conflict). Indeed, in one case

analyzing a design defect claim, the court explicitly declined to

decide whether its reasoning is transferable to a failure-to-warn

claim.

n.2.

13 Defendant next asserts that because the government contract

required that the B pillar be disassembled and packed flat, the

government assumed responsibility for the final assembly of the B

pillar. However, such evidence does not support, as a matter of

law, that the government also assumed the responsibility to

purvey warnings about the importance of securing the B pillar.

Again, the court "do[es] not see how a federal contract

specification requiring a certain product design conflicts with

state law requiring a certain set of warnings incident to use of

that product or design." In re New York Asbestos, supra, 897

F .2d at 630 .

The remaining arguments within defendant's motion for

summary judgment relate to Boyle's second and third criteria.

Having found that defendant has not met the first condition

necessary to establish the government contractor defense against

a failure-to-warn claim, the court need go no further.

Accordingly, the court finds and herewith rules that the

defendant is not entitled to summary judgment.

The court now turns to plaintiff's cross-motion for summary

judgment. Plaintiff contends that defendant's government

contractor defense should be stricken because defendant fails to

offer evidence that the government provided reasonably precise

specifications concerning warnings. The court will now examine

14 the evidence in a light most favorable to the nonmovant, which in

this case is the defendant.

Relying on the following, plaintiff argues that the

responsibility for providing warnings in the operators' and

maintenance manuals for the Humvee rested with A M General:

"Prior to the deployment of the first HMMWV, and as part of the R034 contract reguirements, AM General worked with the Government to prepare documentation on the use and maintenance of the HMMWV. In particular, AM General provided an operators manual and maintenance manuals on the HMMWV. These manuals set forth detailed information concerning the maintenance and service of the HMMWV. These manuals also include warnings on the operation of the HMMWV."

Plaintiff's Memorandum in Support of Cross-Motion for Summary

Judgment at 5-6 (guoting Gula 2 Aff. 5 18).

"Warnings may come from many sources. The Government may direct the warning, AM General may initiate the warning or other similar vehicle system literature may be the source of the warning. No record is maintained as to the origin of all of the warnings. In all cases, the Government has final approval authority for all warnings."

Id. at 6 (guoting Defendant's Responses to Plaintiff's Fourth Set

of Interrogatories (attached as Exhibit 6 to Plaintiff's Cross-

Motion Memorandum)).

"The contractor shall prepare, validate and deliver technical manuals in accordance with Contract Data Reguirements List, DD Form 1423, Data Item DI-M-6153 (MOD) inclusive of all addendums thereto. The Government's right to

15 inspect, reject and require revision to the contractor's validation schedule shall be exercised within 30 days following receipt by the Government of contractor's submittal to the Government."

Id. (quoting Defendant's Response to Plaintiff's Sixth Request

for Production, at 22 (attached as "Exhibit 7" to Plaintiff's

Cross-Motion Memorandum)).

"Technical manuals are the official medium for providing technical information, instruction, and safety procedures, pertaining to the operation, installation, maintenance, and modification of equipment[] and materials . . . . Publications will be prepared in accordance with the current specifications and instructions listed on the addenda to this data item description."

Id. (quoting Exhibit 7, at 2) .

Plaintiff further observes that the primary focus of the

production contract is to dictate the format of the technical

manuals. With the exception of requiring the manual to contain a

warning concerning the use of compressed air, the contract

appears to leave the development of additional warnings to the

contractor's discretion, subject to final approval by the

government. Finally, plaintiff claims that the "vast majority"

of the warnings within the operators' manual were prepared by A M

General, without significant involvement of the Army. See

Plaintiff's Reply Memorandum at 3 (and attachments).

16 According to defendant, however, there is sufficient

evidence to support its position that the government cooperated

with A M General in the development of the warnings contained in

the operators' manual. Defendant attaches to its objection

certain government documents which it claims "demonstrate an

exchange between the contractor and the military as to various

suggested warnings or changes in the specifications."

Defendant's Memorandum at 3. Defendant relies upon assorted

documents, the first of which is entitled "Inclusion of 'Warning'

on Transporting Personnel in the High Mobility Multipurpose

Wheeled Vehicle (HMMWV) Manual." See documents attached to

Defendant's Memorandum as Exhibit B. In said documents, the

government records its "concern about the lack of rollover

protection on [Humvee] troop seats" and reguests that a "caution

note" be added to the operators' manual. Exhibit B at 5. The

documents further indicate that the government reviewed in detail

and possibly proposed that the following warning be included in

the Humvee operators' manual:

WARNING

Extreme caution shall be taken when transporting personnel. Rollover protection is available for the crew area only and is not provided in the troop/cargo area. Failure to use basic safe driving skills may result in injury or death to personnel and damage to eguipment.

17 a. Exercise extreme caution when transporting personnel. Rollover protection is available for the crew area only and is not provided in the troop/cargo area. Although certain design characteristics of the vehicle, such as vehicle width, ground clearance, independent suspension, etc. provide improved capabilities, accidents can still happen. b. Operators are reminded to observe basic safe driving technigues/skills when operating the vehicle, especially when transporting personnel. Vehicle speed must be reduced consistent with weather and road/terrain conditions. Obstacles such as stumps and boulders must be avoided. Failure to use basic safe driving technigues/ skills may result in injury or death to personnel and damage to eguipment.

Exhibit B at 1.

The court is persuaded that it would not be appropriate to

strike the government contractor defense in its totality at

present, as defendant has established the existence of a genuine

issue of fact.3 See In re New York Asbestos, supra,

. The record raises conflicting inferences as to whether the

warnings within the operators' manual "reflect a significant

policy judgment by Government officials," see

, and as to whether the government controlled or

significantly limited A M General's ability to provide a warning.

3Defendant avers that the evidence it has submitted in support of its objection provides further fodder to support its motion for summary judgment. However, the existence of a genuine issue of fact precludes entry of summary judgment in defendant's favor.

18 see, e.g.. In re New York Asbestos, supra,

.

Plaintiff's submissions indicate, in part, that A M General had

the power to select which warnings were to be included in the

manual. However, defendant's evidence, and portions of

plaintiff's own submissions, call that inference into question,

as there is evidence that the manual was a joint effort between A

M General and the government, that the manual had to comply with

government specifications, and that the government dictated or

controlled the content of at least one warning concerning the

safety of the roll-over protection system. It thus appears that

the government may have made a reasoned, policy-based judgment as

to how the manual would describe the dangers of the roll-over

protection system. Therefore, the question of the extent to

which A M General had discretion to warn of other dangers of the

roll-over protection system is best left to the trier of fact.

Plaintiff also maintains that A M General had the discretion

to provide a warning on the vehicle itself in the form of a

sticker or decal. Defendant responds with a battalion of

evidence that it believes contradicts plaintiff's assertion. For

example, defendant submits government specifications which

provide for the nature of the painted finish of the vehicle. See

Specifications (attached as Exhibit A to Defendant's Objection

Memorandum). In addition, defendant proffers an affidavit of the

19 vice president and general counsel of A M General Corp., who

states that under its contract with the government, A M General

is not free to make unilateral changes and that "[a]ny changes to

the vehicle, including the posting of decals, placards, or other

such warning labels on the vehicle would reguire the specific

approval and direction of . . . TACOM." Affidavit of Thomas R.

MacDougall 5 7 (attached to Defendant's Motion for Leave to File

Reply Memorandum Affidavit).

As an example of how the approval process takes place,

defendant describes the procedure by which a warning decal

relating to the use of the vehicle's hand throttle came into

being. First, A M General wrote a letter to the Army stating its

concern about the danger of the hand throttle and recommending

that a warning decal be affixed to the dashboard. See Letter

dated May 13, 1986 (attached as "Exhibit C" to Defendant's

Objection Memorandum). The military subseguently reviewed A M

General's recommendation and then incorporated in the vehicle's

specifications a specific section entitled "Hand Throttle Decal".

See Specification 3.4.1.14 (attached as Exhibit A to Defendant's

Objection Memorandum) and Exhibit C. Defendant contends that

such process shows that the government approved reasonably

precise specifications, within the meaning of Boyle, and thus

20 defendant would not have had the discretion to provide other such

labels.

Defendant's submissions arguably show that the government

"approved reasonably precise specifications" regarding the paint

finish and hand throttle warning label; they also show that

before defendant could provide any additional warning labels A M

General would have to go through government channels. However,

such evidence does not shed light on whether the government even

considered the possibility of adding a label to the Humvee

concerning the general safety features of the roll-over

protection device, much less a more specific warning to secure

the A and B Pillars before operation. Because no reasoned,

affirmative decision by the government was made to forego warning

of such risk, it does not appear that the government exercised

discretion. See

(before failure

to warn can constitute discretionary function, government must

make affirmative decision, based on policy concerns). Nor does

it appear that the government prohibited or significantly limited

A M General's ability to provide a warning label of the kind

desired by plaintiff, or that the government itself "dictated"

the contents of such warnings. Indeed, the evidence suggests

just the opposite, as the evidence submitted by A M General shows

that A M General could have made changes to the warning labels,

21 albeit subject to the government's approval. Accordingly, the

court must grant plaintiff's motion for summary judgment insofar

as plaintiff seeks to strike the defense regarding the provision

of warning stickers.

Conclusion

For the reasons set forth herein, the court denies

defendant's motion for summary judgment (document 13) and grants,

in part, plaintiff's cross-motion for summary judgment striking

the government contractor defense (document 22).

SO ORDERED.

Shane Devine, Senior Judge United States District Court

March 28, 1996

cc: Stephen R. Fine, Esg. Robert G. Whaland, Esg.

22