912 F.

2d 67

Prod.Liab.Rep.(CCH)P 12,559
Edward J. MAGUIRE, III, Appellant,
v.
HUGHES AIRCRAFT CORPORATION, Allison Gas Turbine
Company
Division of General Motors Corporation, MPB Corporation,
John Doe, Inc. (a Fictitious Name for a Corporation),
Richard Roe Associates (a Fictitious Name for an Entity
Other Than a Corporation), and XYZ, Inc. or ABC Associates
(Fictitious Names for the Manufacturer of the Engine and/or
Power Plant Components of a Certain Hughes Aircraft
Corporation OH-6A Army Scout Single Engine Helicopter),
Jointly, Severally or in the Alternative.
ALLISON GAS TURBINE DIVISION OF GENERAL
MOTORS CORPORATION,
Defendant/Third Party Plaintiff,
v.
MPB CORPORATION, Third Party Defendant.
No. 89-5970.

United States Court of Appeals,

Third Circuit.
Submitted Under Third Circuit Rule 12(6)
July 10, 1990.
Decided Aug. 23, 1990.
Rehearing and Rehearing In Banc Denied Oct. 5, 1990.

Saul J. Steinberg, Steinberg and Ginsberg, Voorhees, N.J., for appellant.

Anthony J. Andolino, Gallo, Geffner, Fenster, Turitz & Harraka,
Hackensack, N.J., for MPB Corp.
Raymond J. Tierney, Jr., Theodore S. Smith, Shanley & Fisher, P.C.,
Morristown, N.J., for Allison Gas Turbine Div. of General Motors Corp.

Before HUTCHINSON and NYGAARD, Circuit Judges, and

VANARTSDALEN, District Judge* .
OPINION OF THE COURT
HUTCHINSON, Circuit Judge.

In this appeal, we must decide whether the district court correctly granted
summary judgment in favor of a military contractor and its subcontractor under
the government contractor defense that the Supreme Court reformulated in
Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101
L.Ed.2d 442 (1988). Finding no error, we will affirm.

I.
2

On the night of August 14, 1984, appellant Edward J. Maguire, III (Maguire),
was forced to crash land the helicopter he was piloting while on duty for the
New Jersey Army National Guard. Doctors who examined Maguire on the
night of the crash and the next day concluded that the only injuries he suffered
were minor bruises to his back. Two days following the crash, an Army flight
surgeon certified that Maguire was able to return to active flight status. On
August 18, 1984, four days after the crash landing, Maguire lost consciousness
while driving his motorcycle and collided with a curb, sustaining serious
injuries.

In August of 1987, Maguire brought suit in the Law Division of the Superior
Court of New Jersey, Monmouth County, against Hughes Aircraft Corporation
(Hughes), the manufacturer of the helicopter, and Allison Gas Turbine Division
of General Motors Corporation (Allison), the manufacturer of the helicopter's
engine. In his complaint, Maguire alleged that his motorcycle crash was a result
of injuries he sustained in the helicopter crash and that Hughes and Allison
were responsible for the injuries sustained in both incidents.

In November of 1987, Allison removed the suit to the United States District
Court for the District of New Jersey pursuant to 28 U.S.C.A. Sec. 1441 (West
1973 & Supp.1990). The district court had subject matter jurisdiction pursuant
to 28 U.S.C.A. Sec. 1332 (West 1966 & Supp.1990) because Maguire did not
share the same citizenship as either of the defendants and the dollar figure in
controversy exceeded the then-applicable amount of $10,000, exclusive of
interest and costs.

On October 5, 1988, Hughes, which had become the McDonnell Douglas

Helicopter Company (McDonnell Douglas), moved for summary judgment.
The district court granted the motion in favor of McDonnell Douglas on
November 23, 1988. Maguire has not appealed from this order.

In February of 1989, based upon the report of one of Maguire's experts who
concluded that a defectively designed engine ball bearing caused Maguire's
helicopter to crash, Allison filed a third party complaint against MPB
Corporation (MPB), the designer and manufacturer of the ball bearing. In April
of 1989, Maguire moved to add MPB as a direct defendant. This motion was
later granted, and Maguire filed an amended complaint.

In May of 1989, Allison filed a motion for summary judgment based upon the
government contractor defense that the Supreme Court announced in Boyle.
Shortly thereafter, MPB filed its own motion for summary judgment also based
upon the same defense.

In a reported opinion, see Maguire v. Hughes Aircraft Corp., 725 F.Supp. 821
(D.N.J.1989), the district court held that the government contractor defense
precluded Maguire's suit against Allison and MPB. As a result, on November 8,
1989, the district court entered an order granting summary judgment in favor of
both defendants. Maguire filed a timely notice of appeal to this Court on
December 5, 1989.

II.
9

We have appellate jurisdiction over the final order of the district court pursuant
to 28 U.S.C.A. Sec. 1291 (West Supp.1990). Since this appeal is taken from a
grant of summary judgment, our scope of review is plenary. See International
Union, UMWA v. Racho Trucking Co., 897 F.2d 1248, 1252 (3d Cir.1990).
We apply the test provided in Federal Rule of Civil Procedure 56(c): (1) is
there no genuine issue of material fact and (2) is one party entitled to judgment
as a matter of law?

III.
10

Prior to the Supreme Court's opinion in Boyle, this Court looked to state law in
diversity actions to decide whether it was appropriate to apply the government
contractor defense in favor of a military contractor. For example, in Brown v.
Caterpillar Tractor Co., 696 F.2d 246 (3d Cir.1982), we had to decide whether
the government contractor defense barred an injured Army reservist from

recovering for injuries that allegedly resulted from an improperly designed

tractor-bulldozer that Caterpillar had built for the Army. As an initial matter,
we held that state law, not federal law, governed the existence and application
of the government contractor defense. See id. at 247-49.
11

Later, in a suit brought under the Death on the High Seas Act, 46 U.S.C.A.App.
Secs. 761-768 (West 1975 & Supp.1990), where the district court exercised
admiralty jurisdiction, we evaluated the government contractor defense as a
matter of federal law. See Koutsoubos v. Boeing Vertol, 755 F.2d 352 (3d Cir.),
cert. denied, 474 U.S. 821, 106 S.Ct. 72, 88 L.Ed.2d 59 (1985).

12

Shortly after our decision in Koutsoubos, however, we reaffirmed our holding

in Brown that the existence and application of the government contractor
defense would be determined under state law in diversity actions. See In re Air
Crash Disaster at Mannheim Germany, 769 F.2d 115, 120 & n. 7 (3d Cir.1985),
cert. denied, 474 U.S. 1082, 106 S.Ct. 851, 88 L.Ed.2d 891 (1986). That case,
like the appeal now before us, resulted from the crash of a military helicopter.

13

The Supreme Court's decision in Boyle requires us to reexamine our application

of the government contractor defense. In Boyle, the Supreme Court held that
before resort is made to state law in a diversity case that involves the
application of the government contractor defense to a military contractor, it is
necessary to determine whether state tort law is in significant conflict with the
federal interests associated with federal procurement contracts. See 487 U.S. at
507-09, 108 S.Ct. at 2515-16. If such a significant conflict is found to exist,
state tort law is pre-empted and the government contractor defense as defined
by federal law will apply. See id. at 512, 108 S.Ct. at 2518.

14

The Supreme Court in Boyle announced a three-pronged approach for

identifying when displacement of state tort law is proper in a suit against a
military contractor:

15
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.
16

Id.

17

The Supreme Court in large measure based the identification of a government

contractor defense at federal common law upon the contours of the

discretionary function exception to liability under the Federal Tort Claims Act
(FTCA), 28 U.S.C.A. Sec. 2680(a) (West 1965). See 487 U.S. at 511, 108 S.Ct.
at 2517. It explained that the first two prongs "assure that the suit is within the
area where the policy of the 'discretionary function' would be frustrated." Id. at
512, 108 S.Ct. at 2518. The Supreme Court adopted the third and final prong
"lest our effort to protect discretionary functions perversely impede them by
cutting off information highly relevant to the discretionary decision." Id. at 51213, 108 S.Ct. at 2518.
IV.
18

The district court examined all three prongs of the government contractor
defense as set forth in Boyle and found that both Allison and MPB were entitled
to summary judgment. On appeal, Maguire maintains that the district court
erred in granting summary judgment because genuine issues of material fact
remain in dispute concerning the first and third prongs of the Boyle test.1

A.
19

Maguire's first contention is that genuine issues of material fact remain

concerning the level of government participation in connection with the alleged
defect that caused Maguire's helicopter to crash. In order to satisfy the first
prong of the Boyle test on a motion for summary judgment, Allison and MPB
had to show that there existed no genuine issue of material fact concerning their
assertion that the United States approved reasonably precise specifications.

20

We have carefully canvassed the record in a light most favorable to Maguire,

the non-moving party, and we conclude that the district court was correct in
holding that Allison and MPB met the test for summary judgment on the first
prong of the Boyle test.

21

The record on summary judgment shows that the helicopter Maguire piloted on
the night of his crash was powered by a model T63 engine that Allison
manufactured. The origin of the engine can be traced to the late 1950's, when
the Army sought a highly maneuverable and reliable lightweight observation
helicopter with a gas turbine engine to replace its aging fleet of piston engine
helicopters. Because the Army could not find a suitable gas turbine engine at
that time, it asked its Light Observation Helicopter Program to design and
develop the engine it desired. Soon after, the Army transferred a large part of
the responsibility for development and testing of the engine to the Air Force.

22

The military submitted to government contractors from whom it sought bids a

document known as Military Specification (Military Spec) E-8593. The
Military Spec contained detailed design and performance specifications for the
gas turbine helicopter engine that the military desired. See Appellees' Appendix
(App.) at 183-205. Allison submitted a bid and was awarded the contract.

23

During the construction of the original T63 engine, Allison worked closely with
Air Force officials. The Air Force's senior project engineer reviewed and
approved every element of the proposed design and every proposed design
change. See id. at 101-06. Once the design was complete, the military subjected
the original T63 engine to stringent qualification testing.

24

After the engine passed the qualification tests, the Air Force's senior project
engineer gave a detailed presentation of the T63's design to the Air Force
Engine Review Board (Board). In 1965, the Board approved the original T63
design. Soon after, the military transferred responsibility for the T63 engine
from the Air Force to the Army Aviation Systems Command.

25

The design development of the T63 engine continued under the Army's control
pursuant to its Component Improvement Program. As part of this program, both
the Army and Allison were expected to propose improvements to the T63
engine as a result of their collective military and commercial experience with
the engine.

26

In 1970, pursuant to the Component Improvement Program, Allison proposed

incorporating into the T63 engine bearing number 6876008, the ball bearing
that Maguire alleges was the cause of his injuries. The record shows that
whenever the Army or Allison proposed a change in the T63 engine, it was
documented in an Engineering Change Proposal. See id. at 43. Allison would
then submit to the Army its change proposal together with an Advanced
Engineering Memorandum, specifying in precise detail the proposed change.
See, e.g., id. at 375-98, 400-03 (copies of Allison's change proposal and
engineering memorandum for ball bearing number 6876008). The Army
Aviation Systems Command's Configuration Control Board would receive the
proposal and distribute it among its departments for consideration of the
engineering, material requirements, technical publications, maintenance, depot
overhaul and financial impact of the proposal.

27

Once these departments reported back on the various impacts of the proposed
change, the Configuration Control Board would convene a meeting of the
interested departments to consider their sometimes competing interests. After

completing the entire internal evaluation, the Army approved the proposed
bearing change. Id. at 47. It then amended Allison's contract, and Allison
revised its specifications and drawings to incorporate the bearing into the
design. See id. at 47-48, 417. After the Army approved the bearing, Allison
proceeded to purchase the approved bearing from MPB. MPB strictly adhered
to the model specifications in manufacturing the bearing. See id. at 74.
28

This evidence about the design modification that resulted in the inclusion of
ball bearing number 6876008 in the T63 engine shows that the government
approved reasonably precise specifications. It stands unrebutted. Nevertheless,
Maguire claims on appeal that the Army's approval of the ball bearing
amounted to no more than a "rubber stamp."

29

In advancing his "rubber stamp" argument, Maguire relies upon Trevino v.

General Dynamics Corp., 865 F.2d 1474 (5th Cir.), cert. denied, --- U.S. ----,
110 S.Ct. 327, 107 L.Ed.2d 317 (1989). In Trevino, the Fifth Circuit held that
the government contractor defense did not apply, and thus state tort law was not
pre-empted, because the Navy left the design of the submarine diving chamber
there at issue entirely in General Dynamics' control. See id. at 1486.

30

In In re Air Crash Disaster, 769 F.2d at 122, before the Supreme Court's
decision in Boyle, we wrote that "the government contractor defense is
available to a contractor that participates in the design of the product, so long as
the government's approval consists of more than a mere rubber stamp." If the
reasoning of Trevino is correct, the "rubber stamp" exception has survived the
Supreme Court's decision in Boyle.

31

The rationale behind the "rubber stamp" exception to the government

contractor defense is twofold. First, the Supreme Court in Boyle grounded the
government contractor defense within the parameters of the FTCA's
discretionary function exemption. It is clear that where the government rubber
stamps a design that a contractor has proposed, government officials have not
performed a discretionary function.2 Second, the Supreme Court in Boyle held
that the government contractor defense pre-empts state tort law when "the stateimposed duty of care that is the asserted basis of the contractor's liability ... is
precisely contrary to the duty imposed by the Government contract." Boyle,
487 U.S. at 509, 108 S.Ct. at 2516. Thus, the rubber stamp exception ensures
that state tort law is not pre-empted absent an actual policy judgment by federal
officials.

32

Here, the district court was correct in holding that Maguire failed to point to any

genuine issue of material fact that suggested the Army had rubber stamped
Allison's proposed change in the T63 engine. Instead, Allison and MPB
identified in the record undisputed evidence showing that the Army's approval
of this type of design change was measured and clearly discretionary. Further,
the Army's approved design required Allison to include in the T63 engine the
particular ball bearing that Maguire says is to blame for his injuries. Thus, the
federal contract is in direct conflict with the state tort law duty that Maguire
identifies. Since there was no "rubber stamp" involved, the district court
correctly held that the Army approved reasonably precise specifications and
that Allison and MPB therefore qualified for the government contractor defense
under the first prong of the Boyle test.
B.
33

We now turn to Maguire's argument that Allison and MPB failed to rule out any
genuine issue of material fact about whether they warned the United States of
dangers in the use of the equipment that were known to them but not to the
United States.

34

The record contains unrebutted deposition testimony that Allison disclosed to

the Army the known safety risks regarding the proposed bearing. See App. at
54, 57, 74. Furthermore, the record contains unrebutted evidence that Allison
informed the Army, in its engineering memorandum, that the proposed bearing
had a "B-10" life of 1870 hours, meaning that ten percent of the proposed new
bearings would fail within the first 1870 hours of operation. See id. at 56, 400.

35

In accordance with the usual standards for summary judgment, once Allison
and MPB established their entitlement to judgment under the third prong of the
government contractor defense, Maguire, as the party with the ultimate burden
of proof, could not rely upon mere allegations against the proof that Allison and
MPB had disclosed the ball bearing's known safety risks to the Army. See
International Union, UMWA v. Racho Trucking Co., 897 F.2d 1248, 1254 (3d
Cir.1990) (when moving party has established its entitlement to summary
judgment, opposing party may not rest on mere allegations but must set forth
specific facts showing that a genuine issue of material fact exists).

36

Maguire failed to show that a genuine issue of material fact existed concerning
the third prong of the Boyle test. Thus, the district court correctly held that
Allison and MPB were entitled to summary judgment.

V.

37

We have carefully examined each of Maguire's assignments of error and find

that all lack merit. We will therefore affirm the order of the district court
granting summary judgment in favor of Allison and MPB pursuant to the
government contractor defense that the Supreme Court announced in Boyle.

Hon. Donald W. VanArtsdalen, Senior District Judge of the United States

District Court for the Eastern District of Pennsylvania, sitting by designation

While Maguire argued before the district court that Allison and MPB failed to
meet the second prong of the Boyle test, on appeal Maguire has not raised any
arguments concerning the second Boyle prong. We therefore assume that
Maguire has abandoned his effort to show that the equipment at issue here did
not conform to the applicable specifications

By definition, the "rubber stamp" exception to the government contractor

defense applies only where the contractor proposes a design to the government.
However, the mere fact that a design proposal originates with the government
contractor is not enough to make the defense inapplicable. In Boyle, the
Supreme Court explicitly rejected such a course, writing:
The design ultimately selected may well reflect a significant policy judgment
by Government officials whether or not the contractor rather than those
officials developed the design.
487 U.S. at 513, 108 S.Ct. at 2518.