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Avoiding Flak: The Regional Challenges Faced in Prosecuting Military Aviation Cases

January 5, 2022

By: Justin T. Green, Partner, Evan Katin-Borland, Partner

January 2022

While the United States has finally wound down wars in Iraq and Afghanistan, the American military remains engaged in operations all over the world. An unfortunate byproduct of those operations are aviation accidents in which military service members are injured or killed.

Tort claims against the U.S. government for the death or injury of members of the military in aviation accidents are precluded through multiple legal defenses and exceptions to the Federal Tort Claims Act. Tort claims by service members or their surviving families against government aviation contractors remain viable under some circumstances. Government contractors, however, have unique defenses available to them that any practitioner bringing a claim against a government contractor must overcome.

Two main defenses available to government contractors are the political question doctrine and the government contractor defense. The political question doctrine may protect government contractors if the court determines that the claims implicate military policy decisions. The government contractor defense protects government contractors from suit where the government approved reasonably precise design specifications for the aspect of the product at issue in the lawsuit. Boyle v. United Techs., 487 U.S. 500, 512 (1988).

Attorneys bringing claims against a government contractor arising out of a military aviation crash, however, must understand the different ways courts have applied the defenses across the country. These regional variations can be the difference between winning or losing the case.

The Political Question Doctrine: Even Affirmative Defenses Are Bigger in Texas

The political question doctrine excludes:

from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill-suited to make such decisions, as courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.

Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221, 230, 106 S.Ct. 2860 (1986) (interior quotation marks and citation omitted).

“If the case would require the court to decide a political question, it must be dismissed for lack of jurisdiction.” McMahon v. Presidential Airways, 502 F.3d 1331, 1358 (11th Cir. 2007). In the context of claims brought against government contractors arising from military aviation accidents, the issue is usually whether litigating the case will require second-guessing decisions of military policy relating to issues like communication, training, or procedures that should not be second-guessed by the courts. Id. at 1359.

For instance, McMahon involved a suit arising from the death of three Army soldiers serving in Afghanistan killed when the plane transporting them under contract with the United States crashed. 502 F.3d 1331, 1336 (11th Cir. 2007). Plaintiff alleged that the pilots, employed by a government contractor, were negligent. The defendant contractor raised the political question doctrine as a defense. Id. The district court denied the defendant’s motion based on the defense and the Eleventh Circuit affirmed, finding the plaintiffs’ claims related only to operation of the flight at issue, rather than military policy decisions. Id. at 1361-62. Defendants in other cases have been successful in invoking the political question doctrine by alleging that the military is at fault for the accident at issue.

While Harris v. Kellogg, Brown & Root Services is not an aviation case, it is a leading political question decision. In Harris, an Army servicemember was electrocuted in the shower on an Army base in Iraq due to negligent maintenance of the electrical systems on the base by defendant contractor Kellogg, Brown & Root (KBR). Harris v. Kellogg Brown & Root Servs., 724 F.3d 458, 463 (3d Cir. 2013). KBR moved to dismiss plaintiff’s claims under political question doctrine arguing that consideration of the military’s role in overseeing KBR would implicate a political question. The Third Circuit determined that whether the claim would need to be dismissed would depend upon what state’s law applied to the issue of joint and serval liability. Id. at 474-75. If Texas or Tennessee law applied, then the claims would implicate a political question because both states used a proportional liability system where a jury must consider the military’s share of fault based on its decisions. Id. In contrast, if Pennsylvania law applied, the claim would not implicate a political question because Pennsylvania employs a joint and several liability regime where KBR would be liable for all of plaintiff’s damages regardless of its proportion of fault compared to the Army. Id. The Third Circuit remanded the case to the district court for determination of choice of law. Id. at 482.

Lofgren v. Polaris Industries, 509 F. Supp. 3d 1009 (M.D. Tenn. 2020), is similarly not an aviation case, but it further shows how implications of state law are brought into play by the political question doctrine. In that case, a West Point cadet was injured while operating a military ATV during training with an Army Special Forces Unit in Tennessee. Id. at 1013-14. Plaintiff sued the ATV’s manufacturer claiming the cadet’s injuries were caused by the defective design of the ATV’s seat base. Id. at 1013. Judge Eli Richardson of the Middle District of Tennessee denied the ATV manufacturer’s motion to dismiss. He noted that plaintiff’s injuries occurred during training in the United States, rather than in a war zone, so the military’s policy decisions were less likely to implicate a political question than in a case like Harris, which occurred in a war zone. Id. at 1025-26. Judge Richardson held that, while the case did involve application of Tennessee law, which under the reasoning of Harris would have rendered plaintiff’s claims a political question, unlike in Harris, plaintiff raised an exception to Tennessee’s proportional liability rules whereby a plaintiff’s employer—the United States—was excluded from determination of proportional liability because it is immune from suit under workers’ compensation law. Id. at 1022-23.

Lawyers bringing military cases must, therefore, mind the choice of law rules of the jurisdiction where he or she brings a suit against a military contractor, and must also consider the applicable loss allocation rules of any jurisdiction whose law might apply in the case. As Harris and Lofgren show, knowing the nuances of state law could easily determine whether a plaintiff’s claims are dismissed under political question doctrine, or proceed to trial.

Lawyers representing military service members or their families should also consider unique features of state law that can impact a political question analysis. In Texas, for example, state courts have developed a parallel political question doctrine under the State Constitution that has been interpreted more broadly than the political question doctrine under the Federal Constitution applied in Harris and Lofgren. It appears everything is truly bigger in Texas.

In American K-9 Detection Servs. v. Freeman, 556 S.W.3d 246, 254 (Tex. 2018), the Texas Supreme Court adopted a formulation of the political question doctrine in military contractor cases that is informed by federal jurisprudence on political question, but is rooted in the Texas Constitution rather than federal law. The holding of that case established a broader application of a political question defense than in any federal court—to any case involving a military contractor where a defendant raised a proportionate liability defense and claimed the Army bore some responsibility of the injuries at issue, rather than limiting it to cases involving proof that consideration of a military decision was necessary in deciding a case. Id. at 258.

That rule was then applied in the aviation context in Preston v. M1 Support Servs., L.P., 628 S.W.3d 300, 313 (Tex. App. 2020), review denied (Jan. 22, 2021), order withdrawn (May 28, 2021), review granted (May 28, 2021). That case arose from the crash of a Navy helicopter off the coast of Virginia during training allegedly caused by defective Kapton electrical wiring. Id. at 304. Plaintiffs brought suit against the company contracted to maintain the helicopter. Relying heavily on American K-9, the Texas Court of Appeals affirmed the lower court decision dismissing plaintiff’s case reasoning that there was “no way to determine damages without evaluating military decisions,” id. at 314, regardless of whether those decisions were ones of policy or whether they occurred in the United States rather than in an overseas war zone. This case is currently on appeal to the Texas Supreme Court, so it remains unclear whether the ruling will stand.

The bottom line is that while consideration of state law and how it can impact a political question analysis is necessary when bringing a claim in any jurisdiction, a practitioner bringing a claim against a military contractor should, for now, avoid Texas if other jurisdictions are available.

The Government Contractor Defense: Seeing the Forest or the Trees

In Boyle v. United Technologies, the Supreme Court determined that a contractor that designed or built a military aircraft was immune from suit “when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” 487 U.S. 500, 512 (1988).

The Boyle decision itself indicated that to qualify for the government contractor defense, the court must “assure that the design feature in question was considered by a Government officer.” Id. Some courts have found, however, that the government’s approval of specifications for the overall design of the aircraft is sufficient, rather than specific approval of specifications of the precise feature that is claimed to be defective.

Courts in different Federal Circuits have interpreted aspects of the government contactor defense varying ways that can have significant impact on a claim. In a non-aviation case, the D.C. Circuit joined courts in the Third and Fourth Circuits in assessing approval of reasonably precise specifications in the context of the entire approval process, rather than evidence of approval of the specific feature claimed to be defective, suggesting that it would take the same approach in an aviation case. Haltiwanger v. Unisys, 949 F. Supp. 898, 902-04 (D.D.C. 1996) (holding that the overall involvement of the USPS in the design process of a mail-sorting machine claimed to be responsible for repetitive stress injuries was sufficient to show approval of reasonably precise specifications, rather than evidence of specific approval of aspects of the keyboard design claimed to be defective). In contrast, other Circuits have taken the opposite approach, considering only whether the government approved reasonably precise specifications of the specific design feature plaintiff claims to be defective. The approach employed by the court is often outcome determinative as you can see in relevant decisions.

In Kleeman v. McDonnell Douglas, the family of a Navy F/A-18 pilot killed in an accident caused by a landing gear failure brought suit against the airplane’s manufacturer. 890 F.2d 698, 700 (4th Cir. 1989). The Fourth Circuit affirmed summary judgment for the defendant on the government contractor defense based on the overall process of procurement, which included extended discussions and revisions of the design of the F/A-18, and involved submission of design drawings of nearly every aspect of the aircraft, including the landing gear plaintiff claimed to be defective, even if there was no evidence of specific discussions of the landing gear design at issue. Id. at 701.

Similarly, in Maguire v. Hughes Aircraft, plaintiff, a member of the New Jersey Army National Guard, brought suit for injuries he received in a helicopter accident caused a sudden engine failure. 725 F. Supp. 821, 822 (D.N.J. 1989), aff’d, 912 F.2d 67 (3d Cir. 1990). The helicopter engine was developed and manufactured under a contract with the Army, id. at 822, and there was ample evidence that the government was deeply involved in the development of the engine’s original design, id. at 823. The bearing claimed to be defectively designed, however, was added to the design after this initial design, and plaintiff claimed that there was no evidence that the Navy was involved or ever actively approved specifications of the updated bearing. Id. at 823-24. While there was evidence suggesting that the Army had rubber-stamped the updated bearing’s design, the District of New Jersey court noted that it is not necessary for there to be discussion regarding the “specific design deficiency alleged in the case” so long as there is approval of the overall design. Id.

In Snell v. Bell Helicopter Textron, three Marines were killed in the crash of a UH-1N helicopter due to defects in the design of the helicopter’s drive shaft. 107 F.3d 744, 745 (9th Cir. 1997). The Ninth Circuit reversed the district court’s grant of summary judgment to the helicopter manufacturer, specifically rejecting the district court’s finding of approval of reasonably precise specifications of the entire aircraft. Id. at 747. The appeals court was explicit that approval of the design of the drive shaft was required and, even though there was evidence of detailed discussions of certain aspects of the design, there was no such evidence that the government actually engaged in active consideration of the design of the drive shaft. Id. at 748. Instead there was evidence that the Navy left the manufacturer discretion to design the drive shaft as it pleased. Id.

Similarly, in Gray v. Lockheed Aeronautical Systems Co., the families of three Navy servicemembers killed in the crash of their S-3 airplane brought suit claiming the crash was caused by design defects in the aircraft’s aileron servo. 125 F.3d 1371, 1373-74 (11th Cir. 1997), cert. granted, judgment vacated on other grounds, 524 U.S. 924 (1998). The Eleventh Circuit affirmed the decision of the district court denying dismissal under the government contractor defense, finding that there was no evidence of discussion or active approval of the design of the aileron servo by the Navy, even if Lockheed submitted a design drawing of the servo to the Navy. Id. at 1378

In a recent decision in Lofgren v. Polaris Industries, the court addressed the conflicting case law across circuits as to whether the government must have given consideration of the precise design feature at issue or only approved the overall design of the product. See No. 3:16-CV-02811, 2021 WL 2580047, at *6 (M.D. Tenn. June 23, 2021). In that case, plaintiff, a West Point cadet, was injured while driving a side-by-side military ATV, and he claimed that the seat base was defectively designed. Id. at *1. Defendant, the designer and manufacturer of the ATV, argued that the government contractor defense applied because, even though there was no evidence that the government approved the design of the seat base itself, there was evidence that the government had been involved in the overall design. Id. at *6. The court, however, found that under Sixth Circuit precedent, the government must have approved reasonably precise specifications of the specific feature the plaintiff claimed to be defective—the seat base—and denied defendant’s motion. Id. (citing Tate v. Boeing Helicopters, 55 F.3d 1150, 1154-55 (6th Cir. 1995)) (which considered approval of reasonably precise specifications of the tandem hook at issue, not the entire aircraft).

Conclusion

A careful look at the application of the political question doctrine and government contractor defense by courts across the country reveals meaningful regional differences that can have significant impact on the viability of a claim. This highlights the need to know the battlefield in choosing the best available forum for suit. The decision on where to file can determine whether the claim succeeds or fails.

Article originally published by New York Law Journal.

Authors

  • Justin T. Green

    Justin Green serves as the Co-Chair of the Plaintiffs’ Executive Committee for the ongoing litigation against Boeing Co. following the 2019 crash of the Boeing 737 Max in Ethiopia. Justin is a prominent Aviation Analyst for CNN and is featured in dozens of on-air TV news segments regarding the Boeing 737 MAX disaster. Having authored many influential articles and CLE courses, Justin is seen as an authority on aviation law and is often invited to speak before legal organizations across the country.
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  • Evan Katin-Borland

    Evan Katin-Borland joined Kreindler in January 2012. Named Partner in 2023, Evan currently works on a variety of cases in state and federal courts with a focus on complex products liability cases arising from aviation accidents and other transportation accidents. He has played an active role in litigation arising from numerous military, general aviation, commercial aviation and train accidents. Evan was one of the lead lawyers in ‘Lofgren v. Polaris Industries’ and is also heavily involved in the firm’s representation of former NFL players and their families in claims through the NFL Concussion Settlement Program.
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