Academic journal article William and Mary Law Review

Boyle V. United Technologies Corp. and the Government Contractor Defense: An Analysis Based on the Current Circuit Split regarding the Scope of the Defense

Academic journal article William and Mary Law Review

Boyle V. United Technologies Corp. and the Government Contractor Defense: An Analysis Based on the Current Circuit Split regarding the Scope of the Defense

Article excerpt

In its present form, the federal government contractor defense extends the federal government's immunity from suits by government employees injured by defective equipment to contractors who provide equipment to the government under government-provided specifications.(1) The U.S. Supreme Court attempted to clarify the basis for the defense in Boyle v. United Technologies Corp.,(2) yet important questions about the scope of the defense remain unanswered. Most important, confusion exists over exactly which types of contractors may assert the defense. Specifically, courts disagree whether contractors in nonmilitary procurements should enjoy the protection of the government contractor defense. Lower courts looking to Boyle for the answer to this question have foundered, resulting in a circuit split.(3) Commentators have attacked Boyle by criticizing its status as a decision of federal common law and by denouncing the general suitability of the judiciary to decide such empirical policy questions.

This Note examines the current split among the federal courts of appeals over the intended scope of the federal government contractor defense as articulated in Boyle. Analysis of each side of the split will show that neither side has crafted an approach that is both true to Boyle's adopted rationale and consistent with traditional notions of the interpretation of federal common law. This Note will conclude that Boyle and its progeny have failed to provide an adequate articulation of the federal government contractor defense, and that Congress should address the complex empirical and policy issues presented by a comprehensive government contractor defense.


On April 27, 1983, a helicopter carrying U.S. Marine helicopter copilot David A. Boyle crashed off the coast of Virginia.(4) Lieutenant Boyle survived the impact of the crash, but drowned when he could not activate the helicopter's escape hatch.(5) Investigators determined that the hatch, which engineers had designed to open outward, failed to operate because of water pressure exerted on the submerged helicopter and because instruments blocked Lieutenant Boyle's access to the hatch.(6) Boyle's heirs and estate filed a diversity action for wrongful death under Virginia state tort law against the helicopter manufacturer Sikorsky.(7) The complaint alleged that Sikorsky had designed the hatch defectively, causing Boyle's death.(8) After the jury in the initial trial returned a verdict for Boyle's estate, Judge Richard Williams, of the U.S. District Court for the Eastern District of Virginia, denied Sikorsky's motion for judgment notwithstanding the verdict.(9) On appeal, the U.S. Court of Appeals for the Fourth Circuit vacated and remanded the case with an order to enter judgment for Sikorsky.(10) The court of appeals held that the "military contractor defense" protected Sikorsky from liability.(11) The court based its decision on the common-law version of the military contractor defense,(12) declaring that a military contractor shared the immunity of the United States when it could demonstrate that: "[(1)] the United States approved reasonably precise specifications for the equipment; [(2)] the equipment conformed to those specifications; and [(3)] the supplier warned the United States about dangers in the use of the equipment that were known to the supplier but not to the United States."(13)

Lieutenant Boyle's estate appealed and the United States Supreme Court granted certiorari.(14) Justice Scalia issued the opinion of a five-justice majority that vacated the Fourth Circuit's decision and remanded the case to the district court.(15) The Court agreed with the Fourth Circuit's general application of the government contractor defense to the facts of Boyle; however, it rejected the Fourth Circuit's rationale and established a version of the defense formed by federal common law.(16)

Justice Scalia's majority opinion expressed disagreement with the petitioner's contention that "in the absence of legislation specifically immunizing Government contractors from liability for design defects, there is no basis for judicial recognition of such a defense. …

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