By Government Contracts Editorial Staff
The plaintiffs in a multidistrict products liability action against the manufacturer and its predecessor were granted summary judgment on the defendants’ government contractor defense because no government contract applied to the design of allegedly defective earplugs. Arguing the government contractor defense entitled them to summary judgment on the plaintiffs’ design defect and failure-to-warn claims, the defendants contended they were immune from tort liability under state law because the earplug was designed according to the military’s specifications. In Boyle v. United Technologies Corp. (34 CCF ¶75,489), the Supreme Court held disputes involving the government’s procurement of equipment may implicate “uniquely federal” interests and federal policies underlying the discretionary function exception to the Federal Tort Claims Act (28 USC 2680(a)), which may require displacement of state tort law. Under Boyle’s three-part test for determining when a state law claim for design defects is preempted, the first requirement is that the government approved reasonably precise specifications.
No Specifications. Here, the parties’ dispute concerned a design defect, but the defendant had no government contract when it designed the earplug, when it redesigned the earplug to fit in the Army’s carrying case, or when the Army began using the earplug. Thus, the defendant never performed work under a government contract that contained a design component for the earplug, and the defendants provided no evidence that the government approved reasonably precise specifications for the earplug. Moreover, even if the Army’s interest in the earplug’s design was “uniquely federal,” there was no evidence that the Army “actually participated in discretionary design decisions either by designing [the earplug] itself or approving specifications prepared by” the defendant. Therefore, the design defect claims did not implicate the uniquely federal interests that Boyle sought to protect, and the plaintiffs were entitled to summary judgment on the government contractor defense with respect to design-defect claims.
No Government Constraint on Warnings. The plaintiffs were also entitled to summary judgment on the government contractor defense as to their failure-to-warn claims because the defendants identified no contract, formal specification, or incorporated government publication in which the Army forbade them from fulfilling any state law duty to warn or instruct of the alleged risks or dangers inherent in the use of the earplug or otherwise dictated the specific warnings to be given. (In re: 3M Combat Arms Earplug Products Liability Litigation, DC ND Fla, 64 CCF ¶81,964)
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