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While the destruction of the space shuttle Columbia evokes memories of the Challenger disaster 17 years ago, changes in the legal landscape since 1986 have altered the remedies that may be available to the seven Columbia astronauts’ survivors. Meanwhile, NASA has announced its program for processing claims filed by people who may have sustained an injury to their person or property as a result of contact with Columbia’s wreckage, which rained down over east Texas and Louisiana on the morning of Feb. 1. Four Challenger families filed lawsuits in the wake of the first shuttle accident. Three of them were settled for an aggregate $14 million, a former NASA attorney said. The fourth was defeated in court. But a 1988 U.S. Supreme Court ruling, extending limited governmental immunity to its contractors, will bar survivors of the Columbia accident from bringing similar claims. Challenger was felled by a ruptured solid rocket booster seal that allowed propellant to burn through and detonate the spacecraft’s external fuel tank. The booster’s manufacturer, Morton Thiokol (now ATK Thiokol Propulsion), settled claims filed by the mother of Judith Resnik, the father of Gregory Jarvis and the family of Ronald McNair. EXTENDING IMMUNITY Houston attorney Ronald D. Krist represented those three Challenger claimants. He says that both sides were compelled to settle before trial because they knew that the U.S. Supreme Court was about to make a decision in Boyle v. United Technologies, 487 U.S. 500 (1988), a case that would decide whether a government contractor could be held liable for building a dangerous product in accordance with government specifications. The 5-4 Boyle ruling came down in a case filed by the family of a U.S. Marine helicopter pilot, David Boyle, who died when his chopper crashed into the Atlantic Ocean near Virginia. Unable to open a hatch that swung only outward, Boyle drowned inside. His family sued United Technologies’ Sikorsky division, arguing that the hatch was defectively designed. Affirming the reversal of a $725,000 verdict, the justices said that sovereign immunity should displace state tort law in cases where the federal government had approved “reasonably precise specifications,” the contractor’s product met those specifications and the contractor had disclosed to the U.S. any knowledge it had of any dangers arising out of the use of that product that was not already known to the government. Dissenting Justice William Brennan called the ruling “an injustice,” adding that “the Court’s newly discovered Government contractor defense is breathtakingly sweeping. “It applies not only to military equipment like the CH-53D helicopter, but (so far as I can tell) to any made-to-order gadget that the Federal Government might purchase after previewing plans — from NASA’s Challenger space shuttle to the Postal Service’s old mail cars.” Asked if Boyle would bar potential claims against Lockheed Martin, maker of the external fuel tank that may have contributed to the Columbia’s destruction, Krist says that if the manufacturer discharged its duty under Boyle by meeting government specifications and disclosing any design defects it is aware of, then it would enjoy immunity. “But, if they manufactured and didn’t comply with the plans, then the tank maker would still be liable,” he adds. Krist acknowledged that an attorney can skirt the Boyle bar by pleading a manufacturing defect or by pleading a failure to disclose. “It’s more difficult, but certainly not impossible.” He has not been contacted by any survivors of the Columbia seven. Jane J. Smith, the wife of Challenger pilot Michael Smith, was the fourth Challenger plaintiff. Williamsburg, Va., attorney Edward Frankle, then deputy general counsel for NASA, said Smith’s suit, filed against the U.S. government, ran into the Feres doctrine. The doctrine, set forth by the U.S. Supreme Court in its 1950 ruling Feres v. U.S., 340 U.S. 135, states that the government is not liable under the Federal Tort Claims Act for injuries to servicemen, sustained in the course of active duty. “The Feres doctrine is a total bar for families of people who are on active duty,” Frankle says. Now, with the Boyle ruling in place, “you can’t sue the contractor either.” Not all of the Columbia crew were members of the U.S. military. Mission specialist Kalpana Chawla was a civilian aerospace engineer employed by NASA. Ilan Ramon, the first Israeli astronaut, was a colonel in the Israeli Air Force. Either astronaut’s survivors would have to file an administrative claim for damages before suing the government, Frankle says. Chawla’s family cannot sue the government because, as a federal employee, her avenue of recovery is limited by the Federal Employee Compensation Act and the Federal Tort Claims Act. Another potential class of claimants may be people who sustained injuries from falling shuttle debris. NASA has issued warnings that the wreckage may be toxic and that direct contact with it should be avoided. On its Web site, the agency details its procedure for processing bodily-injury and property-damage claims. A spokesperson says no claims have been filed yet. Frankle speculates that “there’s lots of toxic stuff,” including parts containing poisonous hydrazine. Noting the difficulty in recovering all of the wreckage, he adds, “This could go on for years.” Henry Hertzfeld, an attorney and lead scientist at George Washington University’s Space Policy Institute, says that it’s too early to tell just what kinds of claims may arise out of the Columbia disaster. “Space is unique,” he adds. “It’s the only economic activity I’ve come across, and I can think of, where we have a U.N. treaty.” In 1972, the United Nations adopted the Convention on International Liability for Damage Caused by Space Objects. Under the treaty, a nation that launches an object into space is liable for any damage it causes when it comes crashing back to earth.

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