In Determan, et al v. The Boeing Company, et al., Case No. 18-15515 (9th Cir. November 1, 2019), the plaintiffs appealed the district court’s grant of summary judgment on their state law claims for product liability, negligence, and wanton design in favor of The Boeing Company, Bell Helicopter Textron, Inc., and Eaton Aerospace LLC. The suit arose from the crash of an Osprey aircraft, which killed Matthew Determan and another non-party soldier. The district court granted summary judgment to the Contractors based on the three-part government contractor affirmative defense. See Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988) (granting immunity from tort liability for design defects if (1) the government approved reasonably precise specifications, (2) the equipment conformed to those specifications, and (3) the supplier warned the government about the dangers known to it but not the government).
The Court stated: ?The undisputed evidence establishes that the government considered and approved reasonably precise specifications for the design feature at issue, the Osprey’s Engine Air Particle Separator (EAPS) system. The Determans fail to support an inference that the government merely approved performance standards; the undisputed evidence shows that the government approved the detail specification and the final, top-level drawing of the aircraft, which both incorporate by reference design specifications for the EAPS system. And the Determans’ argument that the government was required to approve the impacts of reactive sand on the EAPS system, rather than just the EAPS system itself, fails because Boyle established that a contractor need not obtain the government’s consent for every possible defect or alternative design.? Determan v. Boeing Co., Id. at pp. 2-3.