Ninth Circuit Affirms District Court Ruling Based On Government Contractor Defense

Today, the Ninth Circuit, issued a seminal decision regarding the Government Contractor Defense in Getz et al. v. The Boeing Co. et al., No. 10-15284 (D.C. No. 4:07-cv-06396-CW) (9th Cir. Aug. 2, 2011). The decision was authored by Senior Circuit Judge Wallace and joined by Judge Noonan and Judge Clifton. The Ninth Circuit's fact-intensive analysis of the three prongs of Boyle, as well as the state law failure-to-warn claim, provides a well-written analysis of current Ninth Circuit precedent, and serves as a roadmap for future government contractor defense cases in the Ninth Circuit.

GOVERNMENT CONTRACTOR DEFENSE

The Government Contractor Defense establishes that government contractors can be protected from tort liability that arises as a result of the contractor's "compli[ance] with the specifications of a federal government contract." Getz, No. 10-15284 at 9963, citing In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1000 (9th Cir. 2008). In order to establish the government contractor defense, a contractor needs to establish: (1) government approval of reasonably precise specifications, (2) conformance to those specifications, and (3) warnings of dangers known to the contractor but not the government. See Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988).

ANALYSIS OF GETZ DECISION

The Ninth Circuit created new circuit precedent related to the second element of Boyle, and held that "the operative test for conformity with the reasonably precise specifications turns on whether 'the alleged defect . . . exist[ed] independently of the design itself." Getz at 9969, citing Miller v. Diamond Shamrock, 275 F.3d 414, 421 (5th Cir. 2001). The Getz Court continued "[t]herefore, absent some evidence of a latent manufacturing defect, a military contractor can establish conformity with reasonably precise specifications by showing '[e]xtensive government involvement in the design, review, development and testing of a product' and by demonstrating 'extensive acceptance and use of the product following production.'" Getz, No. 10-15284 at 969, citing Kerstetter v. Pac. Scientific Co., 210 F.3d 431, 435-36 (5th Cir. 2000).

The decision by the Ninth Circuit also acts to solidify current Ninth Circuit precedent related to the Government Contractor Defense's first and third prongs. For the first prong of Boyle, a contractor must demonstrate that the government approved reasonably precise specifications. To achieve this, the Ninth Circuit...