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In an unusual rejection of government contractor immunity, the 2nd U.S. Circuit Court of Appeals has upheld a $22.9 million jury verdict against United Technologies Corp. in a products liability action arising out of a 1993 crash of a U.S. Army Black Hawk helicopter. The plaintiffs contended that United Technologies could not claim immunity because it had failed to warn the Army that the Black Hawk helicopter, made by UTC’s Sikorsky division, could become uncontrollable during foreseeable flight conditions. United Technologies contended that the verdict was barred by the government contractor defense because the government controlled and approved the design, the Black Hawk was manufactured in accordance with those specifications, and the Army knew the dangers associated with lateral center-of-gravity imbalance — the cause of the crash. The 2nd Circuit recently rejected United Technologies’ appeal, finding that the company could not claim immunity. The government contractor defense, the court ruled, “applies only when the government, for reasons of federal interest, chooses to limit the warnings provided by the seller to end-users. It does not apply to limit the warnings that a reasonable seller would provide to the government itself.” This ruling is in conflict with the doctrine of government contract immunity established by the U.S. Supreme Court in 1988 in Boyle v. United Technologies Corp., 487 U.S. 5000 514 (1988), said United Technologies appellate counsel Andrew Frey of the New York office of Mayer, Brown, Rowe & Maw. In Boyle, Frey said, the court determined that a contractor could claim vicarious immunity “if the government was substantially involved in the design decision, if the product was manufactured in accordance with these product specifications and the manufacturer did not know any material fact not known by the government.” The defense in this case, he said, met all three of these requirements. The decision, Frey added, is also in conflict with post- Boyle rulings by several federal circuits. Appellate decisions since Boyle established the government contractor defense “have expanded this doctrine,” agreed plaintiffs’ attorney Robert F. Spohrer of Jacksonville, Fla.’s Spohrer, Wilner, Maxwell & Matthews. The decision, he said, “represents a halt to this incremental expansion of this immunity.” CREW MEMBERS KILLED The lawsuit followed the crash of an Army Black Hawk helicopter on Feb. 23, 1993. The Black Hawk was on approach to land at the U.S. Army base at Wiesbaden, Germany, but when the pilot put the helicopter into a shallow turn, “he could not roll out of the turn,” said Spohrer. “It kept turning to the right.” Pilot Christopher Mancini lost control and the helicopter crashed, killing Major General Jarrett Robertson, Col. William Densberger, Col. Robert Kelly and crew chief Gary Rhodes Jr. Two others, including Mancini, suffered extensive burns. The plaintiffs filed a products liability action against United Technologies, charging that the crash was caused by a defect in the Black Hawk’s design and that Sikorsky had failed to warn of the dangers of asymmetrical fuel transfers that could occur in the helicopter, said Spohrer. Densberger v. United Technologies Corp., No. 3-96-CV-532 (D. Conn.). At the Army’s request, Sikorsky had placed on the helicopter an external stores support system, which consisted of two small struts on the side of the aircraft from which fuel tanks or missiles could be suspended. In effect, he said, Sikorsky “took a streamlined aircraft and hung weights alongside of it. This changed the aerodynamic properties.” During flight, he said, “there had been a fuel flow interruption. One tank was emptying, while the other remained full, causing an imbalance.” United Technologies contended that it was not liable, because the company had simply designed the aircraft at the request of the Army, and that there was no failure to warn. Prior to trial, the defendant had sought a summary judgment, citing the government contractor defense. But in March 1999, U.S. District Judge Janet C. Hall of the District of Connecticut denied the motion to dismiss, determining that a jury would have to decide whether United Technologies and Sikorsky met the three elements required to assert a government contractor defense. In June 2000, the jury found this defense was not applicable because United Technologies and Sikorsky had failed to warn the Army. United Technologies will be seeking a rehearing, Frey said. If this is unsuccessful, the defendant will seek review by the U.S. Supreme Court. If the decision is upheld, he said, it will have a substantial impact on government contractors, which will have to conduct more testing and provide massive warnings on products: “Contractors will have to engage in a lot of CYA.”

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