August 9, 2011
Practice Groups:
Product Liability
Toxic Tort
Getz et al. v. The Boeing Company et al.:
Ninth Circuit Confirms the Broad Reach of
the Government Contractor Defense
On August 2, 2011, the United States Court of Appeals for the Ninth Circuit issued its opinion in
Deborah Getz et al. v. The Boeing Company et al., 1 which rejects a narrowed application of the
government contractor defense in failure to warn claims, which many plaintiffs’ counsel have
advocated for some time. Specifically, the court held that the government contractor defense
elucidated in Boyle v. United Technologies, 487 U.S. 500, 512 (1988) is not limited to instances where
the government specifically forbids warnings.
The Getz case arises from a tragic February 2007 crash in Kabul, Afghanistan of a Boeing
manufactured Army Special Operations Aviation Regiment MH–47E Chinook helicopter that
encountered snow, rain, and ice.
In responding to claims made on behalf of the eight deceased and fourteen injured servicemen against
various defendants, Boeing, and the manufacturers of the various engine and electronic components
for the helicopter, argued that the Army was responsible for all warnings contained in the Army
Operator's Manual. Boeing argued it was contractually obligated to supply a copy of the manual,
which was issued by the Army's Technical Publications Department, with each helicopter. 2
In response, the plaintiffs argued that the product manufacturers provide recommendations as to what
is placed in the manual, and that the Army relies on the product manufacturers for this information,
which renders Boeing responsible for the contents of the manual. 3
Under Boyle v. United Technologies, the government contractor defense precludes product liability
claims against those who supply a product to the United States when (1) the United States
Government approved reasonably precise specifications for the product at issue, (2) the equipment
conformed to those specifications, and (3) the contractor warned the United States about dangers in
the use of the equipment that were known to it, but not known to the United States. 4 As noted in Getz,
federal courts have unanimously held that the government contractor defense applies to product
liability claims based upon a failure to warn theory. 5
In claims based upon a failure to warn theory, a majority of circuits have stated expressly that
contractors need not show an express government prohibition on a certain type of warning, but rather,
must establish only that the government exercised its discretion regarding warnings to be placed on a
defendant’s product. 6 In holding so expressly, the Getz decision clarifies two prior Ninth Circuit
1
Deborah Getz et al. v. The Boeing Company et al., --- F.3d ----, 2011 WL 3275957, No. 10-15284, slip op. 9949 (9th Cir.
Aug. 2, 2011).
2
Boeing’s Brief, 2010 WL 6039410 at *50.
3
Appellant’s Opening Brief, 2010 WL 3625843 at *69.
4
Boyle v. United Technologies, 487 U.S. 500, 512, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988).
5
Getz, 2011 WL 3275957 at *10, No. 10-15284, slip op. at 9973.
6
Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003 (7th Cir.1996), cert. denied, 520 U.S. 1116, 117 S.Ct. 1246, 137 L.Ed.
2d 328 (1997); In re Joint Eastern & Southern District New York Asbestos Litigation, 897 F.2d 626 (2d Cir.1990);
Kerstetter v. Pacific Scientific Co., 210 F.3d 431, 437 (5th Cir. 2000); Tate v. Boeing Helicopters, 140 F.3d 654, 660 (6th
Cir. 1998).
Getz et al. v. The Boeing Company et al.: Ninth Circuit
Confirms the Broad Reach of the Government Contractor
Defense
opinions that have been misinterpreted by courts and regularly cited by plaintiffs for the proposition
that the Ninth Circuit required defendants to produce evidence that the government prohibited
warnings. 7 Specifically, the court held that an interpretation of the prior Ninth Circuit case law “as
limiting preemption to those instances where the government forbids additional warning or dictates
the precise contents of a warning would be inconsistent with the Court's decision in Boyle.” 8
The Getz opinion should be a welcome clarification of the state of Ninth Circuit law for defendants
embroiled in litigation because they supplied equipment to the United States military.
In particular, the Getz decision should enable defendants who are sued in asbestos litigation as a result
of their historical role as a Navy or government supplier to meet the requirements of the government
contractor defense with expert testimony in the fields of government procurement practices, the
specifications applicable to the defendant’s historical products, and the state-of-the-art of the Navy’s
knowledge with respect to asbestos hazards to build a successful defense.
Author:
James B. Insco
james.insco@klgates.com
+1.412.355.6744
Additional Contact:
Michael J. Zukowski
michael.zukowski@klgates.com
+1.412.355.6397
7
In re Hawaii Fed. Asbestos Cases, 960 F.2d 806 (9th Cir. 1992); Butler v. Ingalls Shipping, Inc., 89 F.3d 582, 586 (9th
Cir. 1996).
8
Getz, 2011 WL 3275957 at *11, No. 10-15284, slip op. at 9975-6.
2