New Ninth Circuit case on the governmental contractor defense. It is Rodriguez v. Lockheed Martin, and can be downloaded here. During military training on the island of Hawaii, one soldier was killed and another two soldiers were injured by an explosion in the 81mm mortar they were firing. The widow and survivors brought suit against the manufacturer of the mortar cartridge asserting products liability and negligence claims under Hawaii law. The manufacturer sought summary judgment asserting "immunity" from the suit under the government contractors defense, first articulated in Boyle v. United Technologies Corp, 487 U.S. 500 (1988). The trial court denied the motion, on disputed factual grounds. An interlocutory appeal was taken. Issue: is the government contractor defense tantamount to immunity from suit or is it merely an affirmative defense. Analysis: The Ninth Circuit only had jurisdiction over the interlocutory appeal, if the government contractor defense was a grant of immunity. That defense is as follows: In general, the government contractor defense shields contractors from tort liability in state or federal actions where plaintiffs allege they sustained injuries as a result of exposure to defective products or equipment manufactured or supplied under a government contract. In Boyle, the Supreme Court stated that the government contractor defense involved "uniquely federal interests" that could preempt and bar the plaintiffs' state law design-defect claim where the facts supported each of the three elements of the defense. 487 U.S. at 505-14. To be invoked successfully by a government contractor, the defense requires that: Liability for design defects in military equipment cannot be imposed, pursuant to state law, 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. Id. at 512. Although Boyle was limited to design defects, we have held that the government contractor defense also applies to actions involving manufacturing defects. Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 749 n.3. (9th Cir. 1997). The Court in Boyle noted that "whether the facts establish the conditions for the defense is a question for the jury." Id. at 514. Although the source of the government contractor defense is the United States' sovereign immunity, we have explicitly stated that "the government contractor defense does not confer sovereign immunity on contractors." United States ex rel. Ali v. Daniel, Mann, Johnson & Mendenhall, 355 F.3d 1140, 1147 (9th Cir. 2004) We reiterated this statement in Del Campo, 517 F.3d at 1078 n.10. Absent immunity, with a finding of disputed facts, the summary judgment was properly denied. As a side note, local media reports that a Hawaii jury found against the Plaintiffs in this case.
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