Government Contractor Defense
The government contractor defense is a common law defense based on the discretionary function exception of the Federal Tort Claims Act. In instances when a government contractor is being directed by, and following direct orders from the U.S. government, the government contractor is not liable and is immune to litigation.
Partner Justin Green, a licensed airplane and helicopter pilot who learned to fly in the Marine Corps, has written several articles on the expansion of federal court jurisdiction in aviation cases and the increasing difficultly for plaintiffs to file and keep cases in state court.
Defendants have also argued that all cases against government contractors should be removable to federal court based on the federal officer removal statute. This would provide for federal court jurisdiction in almost every case against manufacturers of military aircraft.
Government contractor defense is based on the idea that imposing liability on government contractors for actions they have performed at the behest of the United States would affect the terms of federal contracts, as well as affect the government’s cost and ability to purchase needed products.
However, in order for immunity to apply, contractors must be able to prove:
- The U.S. approved reasonably precise specifications for the contractor to follow.
- The product conformed to those specifications.
- The contractor warned the U.S. about any dangers of which the U.S. was not aware.
Partner Justin Green authored a related article for the American Bar Association titled “Defenses for Government Contractors in Combat Zone Cases: The Political Question Doctrine.”
In November 2019, partner Dan Rose was interviewed by Fox46 in Charlotte, NC, regarding a proposed bill that could allow troops the right to sue the government for medical malpractice, which is not allowed under the 1950 Supreme Court ruling known as the Feres Doctrine.
The government contractor defense was established in 1988 in the case Boyle v. United Technologies. In that case, a U.S. Marine Corps co-pilot drowned when he could not escape a helicopter that had crashed into the ocean. Plaintiffs claimed that the design of the helicopter’s emergency escape system was defective and could not operate effectively underwater leading to the serviceman’s wrongful death.
The Supreme Court ultimately decided that when a manufacturer designs a helicopter based on instructions from the government the manufacturer cannot be held liable.
Partner Justin Green and of counsel Steven Pounian authored the article “Military Contractors Defend Tort Suits,” in which they discuss the government contractor defense.
Since 2001, the use of private contractors to actively support U.S. military operations has risen to "unprecedented levels."Numerous injury and death cases have been brought against those contractors. These include cases against private airlines chartered by the government to carry passengers and cargo and companies hired to maintain military aircraft.
Courts have also held that the government contractor defense preempts state law causes of action and that a “colorable” (i.e. a plausible and valid) defense can provide the basis for the removal of state law claims under the Federal Officer Removal Statute.