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NIEMANN v. MCDONNELL DOUGLAS CORP.

June 22, 1989

CLARA NIEMANN, Administrator of the Estate of Vincent M. Niemann, Deceased, Plaintiff,
v.
McDONNELL DOUGLAS CORPORATION, ET AL., Defendants


William L. Beatty, United States District Judge.


The opinion of the court was delivered by: BEATTY

WILLIAM L. BEATTY, UNITED STATES DISTRICT JUDGE

 This matter is before the court on General Dynamics Corporation's (General Dynamics) motion for summary judgment based upon the "government contractor's defense"; McDonnell Douglas Corporation's (McDonnell Douglas) motion for summary judgment based upon the "government contractor's defense"; and McDonnell Douglas' motion for summary judgment based upon the theory that certain asbestos strips which were originally on aircraft produced by McDonnell Douglas had been replaced prior to the plaintiff's decedent having worked on the aircraft.

 FACTS AND BACKGROUND

 Plaintiff herein, Clara Niemann, Administratrix of the Estate of Vincent M. Niemann, Deceased, originally filed this action in state court on August 9, 1985. Initially, the state court action was against eight defendant corporations, six of which were subsequently dismissed from this case, leaving McDonnell Douglas and General Dynamics as defendants. The plaintiff seeks recovery for the wrongful death of her husband, alleging that he died from asbestosis and lung cancer.

 The complaint was originally brought in two counts, alleging that the defendants are liable as a result of the design and sale of aircraft containing asbestos chafing and rub strips on pieces of the engine cowling (covering). Count I was a strict liability claim and Count II seeks recovery for negligence based upon design defects and inadequate warnings. On November 2, 1988, this court granted summary judgment in favor of both defendants with respect to Count I, based upon the Illinois Statute of Repose. Ill. Rev. Stat. 1985 Ch. 110, para. 13-213. The remaining count is based upon the plaintiff's allegations that General Dynamics and McDonnell Douglas were negligent in designing certain aircraft and in failing to warn of potential health hazards with respect to certain portions of the inside of the aircraft engine cowling.

 Plaintiff's decedent, Vincent M. Niemann, worked at the Scott Air Force Base Sheet Metal Shop from approximately 1963 to 1980. His position entailed performing repair work on aircraft manufactured by General Dynamics and McDonnell Douglas. The aircraft in question are: General Dynamics' T-29 and C-131 *fn1" and McDonnell Douglas' C-54 and C-118. Mr. Niemann's work also consisted of cleaning and repairing engine cowlings which included replacement of chafing or rub strips. Plaintiff alleges that during the period Mr. Niemann worked at Scott Air Force Base in the sheet metal shop, he was exposed to asbestos allegedly contained in these aircraft.

 Mr. Niemann retired from this position on November, 1980, at age 63. In January of 1984 he was diagnosed as having lung cancer and on June 4, 1984, Mr. Niemann died, at age 68.

 General Dynamics manufactured the T-29 and C-131 aircraft from the mid 1940's through the late 1950's pursuant to contracts with the United States Air Force. The last of these aircraft was sold and delivered to the U.S. Air Force in approximately 1956.

 McDonnell Douglas originally manufactured the C-54 and delivered it to the Army Air Forces (predecessor of the United States Air Force) during World War II. The last C-54 aircraft manufactured by McDonnell Douglas was sold and delivered to the United States Air Force on January 22, 1946. The C-118 was manufactured and delivered to the Air Force and the Navy from 1949 to 1956. The last C-118 aircraft was manufactured by McDonnell Douglas and delivered to the Air Force on January 21, 1956.

 Two of the pending motions for summary judgment are based upon the "government contractor defense," as adopted by the U.S. Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S. Ct. 2510, 101 L. Ed. 2d 442 (1988).

 APPLICABILITY OF GOVERNMENT CONTRACTOR DEFENSE

 In Boyle, the Supreme Court recognized and set forth the scope, purpose and requirements of the Government Contract Defense.

 In formulating the Government Contractor Defense, the Boyle Court analyzed whether the selection of the appropriate design for military equipment was a discretionary function within the meaning of the exception to the Federal Tort Claims Act (FTCA), which shields the government from liability in certain circumstances. *fn2" Arriving at the conclusion that the selection of appropriate design for military equipment is within the discretionary function of the government, the Court held that this selection

 
often involves not merely engineering analysis but judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness. And we are further of the view that permitting 'second-guessing' of these judgments, See United States v. Varig Airlines, 467 U.S. 797, 814, 104 S. Ct. 2755, 2765, 81 L. Ed. 2d 660 (1984), through state tort suits against contractors would produce the same effect thought to be avoided by the FTCA exemption. Boyle, 108 S. Ct. at 2517-2518.

 Thus, the court extended the exemption regarding discretionary functions of the government which is provided by the FTCA to military equipment contractors themselves. The Court's reasoning in so holding was based upon the potential passing of the financial burden of judgments against contractors to the United States itself.

 
It makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production. In sum, we are of the view that state law which holds Government contractors liable for design defects in military equipment does in some circumstances present a 'significant conflict' with the federal policy and must be displaced.
 
Id. at 2518. (Footnote omitted).

 The plaintiff contends that the government contractor defense is inapplicable for several reasons. Initially, plaintiff argues that the defense does not apply with respect to these particular aircraft because of the "stock product" exception to the defense. In support of this position, the plaintiff cites the Boyle Court's example of a federal procurement officer ordering a quantity of stock helicopters, by model number, which happened to be equipped with the escape hatches opening outward, i.e., the defect which caused the injury in Boyle. Under this situation, the Boyle Court found that it would be impossible to say that the government had a significant interest in the particular feature, i.e., the escape hatches. Boyle, 108 S. Ct. at 2516.

 Although the court is cognizant of the "stock product" exception to the government contractor defense, the court is unpersuaded by the plaintiff's analogy. The products at issue before the court are the aircraft themselves, and not each individual component part, nor is this a situation wherein the government merely ordered a quantity of a product. The defendants have presented to the court various declarations and affidavits of persons with actual knowledge of procurement of the aircraft. A review of the supporting documentation to the defendants' memoranda reveals that the government provided the defendants with detail specifications for the design and manufacture of the aircraft. (See Declaration of General Gabriel Disosway, Exhibit 1 to Defendant General Dynamics' Factual Memorandum in Support of its Motion for Summary Judgment; Affidavit of Donald W. Douglas, Jr., Exhibit A to Defendant McDonnell Douglas' Motion for Summary Judgment; Declaration of Mort Rosenbaum, Exhibit 3 to General Dynamics' Memorandum; Exhibit 14 and 15 to General Dynamics' Memorandum; Exhibits 1 through 22 to Exhibit A, Affidavit of Donald W. Douglas, Jr., attached to Defendant McDonnell Douglas' Memorandum in Support of its Motion for Summary Judgment; Exhibit B, Affidavit of Larry L. Fogg, and the attached Exhibits 1 through 4, to McDonnell Douglas' Memorandum in Support of its Motion for Summary Judgment.) It is clear that the procurement of the aircraft at issue involved a great deal more than merely a procurement officer contacting General Dynamics and McDonnell Douglas to order a quantity of these aircraft, and that the aircraft in question were indeed "military equipment" and not, as plaintiff suggests, merely "stock products."

 The plaintiff further urges that the government contractor defense is inapplicable in that the asbestos containing product was of such a commercial nature that there can be no federal interest, and thus no conflict exists between federal and state law. The plaintiff argues that the government must have a significant interest in the particular feature it ordered the contractor to make. (See Plaintiff's Memorandum in Opposition to Motions for Summary Judgment at Page 11). As previously stated, the particular products at issue in the instant case are the aircraft themselves and not, as plaintiff urges the court to find, the pieces of asbestos that was a component of the aircraft. A conflict therefore exists between federal and state law. Through requiring the military equipment to contain asbestos the government exercised a discretionary function. State ...


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