The government contractor defense is a potentially dispositive defense that can be raised by contractor-defendants in certain product liability cases. Understanding the basics of this defense, and in particular the requirements and scope of its application, is extremely important to companies that provide products with a military application. Quite often, the government contractor defense becomes the focal point in product liability matters involving aviation equipment. The application of the defense is not always clear-cut, particularly when a product is sold to both the government and the general public.

Thus, we advise clients to get out in front of this issue by immediately conducting the necessary fact gathering to determine whether the relevant factors might be satisfied.

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. The United States Supreme Court established this defense in Boyle v. United Technologies Corp. (1988) 487 US 500, 101 L Ed 2d 442, 108 S Ct 2510. That case involved a U.S. Marine helicopter copilot who was killed when the helicopter in which he was flying crashed off the Virginia coast during a training exercise. In extending immunity to contractors, the Supreme Court expressed concern that imposing liability on government contractors would affect the terms of federal contracts and could result in companies’ declining to manufacture equipment, raising their prices or otherwise passing the costs of liability judgments rendered against them to the United States. The Supreme Court in Boyle set forth a now well-known three-pronged test a company must pass to prevail on the government contractor defense. Boyle, 487 U.S. 511-512.

Specifically, the defendant contractor must prove that:

  1. The United States approved reasonably precise specifications
  2. The equipment conformed to those specifications
  3. The contractor warned the United States about any dangers in the use of the equipment that were known to the company but not to the government.

The purpose of the first two prongs is to ensure that the government exercises its discretionary function in approving the products or equipment. The third prong ensures that the contractor conveys all information necessary to allow the government to make a fully informed decision.

One issue that arose in a recent aviation products liability case handled by Wilson Elser was whether the government contractor defense applies where the government contracts for the equipment with the intention to resell it to foreign powers. In support of the position that the defense did apply to these facts, the firm relied on Miller v. United Technologies Corp. (1995) 233 Conn 732, 660 A2d 810, a case in which the court ruled that the Supreme Court decision inBoyle did not limit or precondition the defense according to the intended use of the equipment, but determined generally that the procurement of the equipment by the United States is an area of uniquely federal interest. The court reasoned that regardless of whether the government intends to include aircraft in its own Air Force fleet, use it as an instrument of negotiation in matters of international diplomacy or make it a gift to our allies, the government contractor defense ensures that the government can dictate precisely what it requires for any purpose and that the contractor will not be held accountable for the government’s specifications.

Relying on this argument, the firm was able to successfully extract its client from this products liability case. It is important for clients to recognize that while the immunity from product liability lawsuits for products that were designed for government use is potentially dispositive, the road to get there is not easily traveled. Successfully executing this defense in product liability litigation takes more than just the mechanical application of case law factors; rather, it requires experience and knowledge of the specific facts that a court will consider.