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Kleemann v. McDonnell Douglas Corp.

decided: December 6, 1989.

CAROL ANNE KLEEMANN, INDIVIDUALLY AND AS THE EXECUTRIX AND PERSONAL REPRESENTATIVE OF THE ESTATE OF HENRY M. KLEEMANN, AS THE GUARDIAN OF THE MINORS KATHERINE M. KLEEMANN AND MICHAEL ANDREW KLEEMANN; SUSAN E. SEIDEN; S. S. SEIDEN, JR., PLAINTIFFS - APPELLANTS
v.
MCDONNELL DOUGLAS CORPORATION, DEFENDANT - APPELLEE; CAROL ANNE KLEEMANN, INDIVIDUALLY AND AS THE EXECUTRIX AND PERSONAL REPRESENTATIVE OF THE ESTATE OF HENRY M. KLEEMANN, AS THE GUARDIAN OF THE MINORS KATHERINE M. KLEEMANN AND MICHAEL ANDREW KLEEMANN; SUSAN E. SEIDEN; S. S. SEIDEN, JR., PLAINTIFFS - APPELLEES V. MCDONNELL DOUGLAS CORPORATION, DEFENDANT - APPELLANT



Appeals from the United States District Court for the District of Maryland, at Baltimore. Joseph C. Howard, District Judge. CA-873249-JH.

Wilkinson, Circuit Judge, Haynsworth,*fn* Senior Circuit Judge, and Williams, United States District Judge for the Eastern District of Virginia, sitting by designation.

Author: Wilkinson

WILKINSON, Circuit Judge

To avoid liability for accidents involving military equipment, military contractors are required to show, inter alia, that their products conformed to reasonably precise specifications approved by the United States. Boyle v. United Technologies Corp., 487 U.S. 500, 108 S. Ct. 2510, 101 L. Ed. 2d 442 (1988). Here we must decide what conformity means. Plaintiffs allege that the landing gear of an F/A-18 aircraft, in which plaintiffs' decedent was killed, did not conform to general performance requirements contained in defendant's original contract with the Navy. We cannot, however, equate as a matter of law a failure of performance with an absence of conformity. Nor do the precatory goals developed for a product at the start of the procurement process establish the "reasonably precise specifications" to which the product must conform. Because the landing gear plainly did not deviate from the ultimate design required by the Navy in the whole of its negotiations with the contractor, we uphold the grant of summary judgment for defendant and affirm the applicability of the government contractor defense to this case.

I.

On December 3, 1985, Captain Henry M. Kleemann, a U.S. Navy pilot, was killed when his F/A-18 aircraft went out of control during landing, left the runway, and overturned. Defendant McDonnell Douglas Corporation (MDC) had designed the F/A-18 for the Navy. The Navy concluded that Captain Kleemann's accident was caused, in part, by failure of the planing link assembly on the main landing gear. The planing link assembly was designed to assist folding and unfolding the wheel assemblies into and from the wheel well and to lock the wheels appropriately for takeoff and landing. It allows the wheels to " deplane," or move out of line with the direction of the aircraft, during retraction and extension of the landing gear.

Kleemann's surviving spouse and children brought a diversity action in the district court of Maryland claiming that the plane was negligently and defectively designed by McDonnell Douglas. Plaintiffs contended that the landing gear did not conform to reasonably precise specifications contained in the Navy's original contract with MDC. Specifically, they alleged that the landing gear failed to meet the requirement that it withstand normal landing loads without bending, unlocking or causing uncontrolled motion of the aircraft (citing SD-24K-Volume I, and Military Specification MIL-A-8863A).

Defendant, on the other hand, argued that the specifications proffered by plaintiff were not the "reasonably precise specifications" required by Boyle, because such general requirements do not tell the contractor what to build and how to design the product. MDC contended that the accident aircraft incorporated all Navy-approved landing gear designs and modifications through the date of delivery. As such, the landing gear conformed to all precise, quantitative specifications which evolved out of the continuous exchange between MDC and the Navy.

The district court held that the operative question was whether the product conformed to the "ultimate design specifications," not to qualitative, precatory specifications used in the procurement process. The court concluded that plaintiffs had not presented evidence that the landing gear on the accident aircraft deviated from the ultimate design specifications approved by the Navy. It granted defendant's motion for summary judgment, and this appeal followed.*fn1

II.

We review at the outset the elements of the government contractor defense. Under Boyle v. United Technologies Corp., 487 U.S. 500, 108 S. Ct. 2510, 2518, 101 L. Ed. 2d 442 (1988), a contractor is not liable for design defects in military equipment when: (1) the United States approved "reasonably precise specifications;" (2) the equipment conformed to those specifications; and (3) the contractor warned the government about any dangers in the use of the equipment that were known to the contractor but not to the government.

Plaintiffs' claim is precisely the sort for which the defense was intended. This is true both because of the nature of defendant's product and the characteristics of the process by which it was designed. At issue here is a discretionary decision involving military hardware in which the government was a substantial participant. See Boyle, 108 S. Ct. at 2517. The F/A-18 aircraft was part of a broad defense initiative involving the Navy's deployment of a new "CV" class of aircraft carrier. The "CV" carrier had multi-mission capabilities as compared to older, more specialized counterparts. The F/A-18 was designed to provide support for the new carrier, and to replace with a single aircraft the Navy's clear weather fighters and all-weather fighters. It is hard to imagine a matter more uniquely in the province of the military -- and one less appropriate to second-guessing by civilian courts -- than the development of a high technology, multi-mission aircraft. See id. at 2517-8.

Similarly, the design details of the F/A-18 illustrate the balancing of military and technological factors, including "the trade-off between greater safety and greater combat effectiveness." Id. at 2517. For example, the main landing gear at issue here had to absorb extremely high amounts of energy generated upon landing on a carrier. On the other hand, stowage of the gears could not interfere with external weapon storage. These competing concerns required a unique "levered gear" design to provide adequate distance between the extended right and left main landing gears and thereby ensure stability of the aircraft upon landing. The design, developed by MDC and approved by the Navy, employed a planing link assembly to deplane the wheels during retraction and extension of the landing gear.

The design and production of the F/A-18 also illustrate the exchange of views in the procurement process between military officials and the private contractor. See Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir. 1989); Tozer v. LTV Corp., 792 F.2d 403, 407 (4th Cir. 1986). Beginning with bids for what would become the F/A-18, teams of Navy engineers met with each contractor for extended discussions of their submissions. When the Navy selected MDC to develop and build the F/A-18, the final design contracts for the aircraft incorporated MDC's original proposal as modified during extensive negotiations between the parties. During design development, MDC was required to submit detailed engineering drawings to the Navy for approval. All changes to the design or specifications of the aircraft required ...


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