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Liability Issue : Servicemen Sue Defense Contractors

January 04, 1988|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — 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.

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