design originated with the Postal Service, the Postal Service actively participated in the evolution of the final product from the initial Rabinow plans introduced in the 1950's. The generally detailed specifications regarding the keyboard and console, as well as the requirement that any minor changes be submitted to the Postal Service for acceptance, illustrate the consistent control and discretion of the Postal Service over every aspect of the design and manufacturing processes. Defendant followed exceedingly detailed specifications that, even if not necessarily designed by the Postal Service, were submitted to a complicated substantive review by the Postal Service, undergoing intense scrutiny before being approved as a part of the final design.
Moreover, long-term use of a given design often indicates de facto acceptance of the design and thus constitutes approval for purposes of the Boyle test. The continued and consistent use of a product without grievances or modifications implies endorsement of the design and consent as to its production and operation. In Dowd v. Textron, Inc., the court held that "length and breadth of the Army's experience with the 540 rotor system -- and its decision to continue using it -- amply establish government approval of the alleged design defects." Dowd, 792 F.2d at 412; see also Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946 (4th Cir. 1989). The Postal Service has used the MPLSM as manufactured by Burroughs consistently for more than 20 years without any problems or objections based on Burroughs's role in the design process. Even if the Postal Service's specifications had been broadly constructed and Burroughs had substituted its own judgment to complete the design, the Postal Service's extended use of the final product manifests its substantive acceptance and approval of the basic design and its specific features, thus satisfying the first prong of the Boyle test regardless of the nature of the Postal Service specifications.
There is thus no question of material fact with respect to the "approval" requirement of the Boyle test. The law delineates the contours of approval under the Boyle standard. Defendant has established approval based on the facts in the written record and documents, regardless of the parties' divergent interpretation of those facts.
The second part of the Boyle test ensures that a defendant has actually implemented the discretion of its government counterpart. It requires that the manufacturer's final product actually conform to the reasonably precise specifications initially provided by the government agency. In this case, plaintiff has conceded that defendant conformed to the specifications provided by the Postal Service. Pl.'s Opp. to Summ. J. at 2.
C. Relative Knowledge
The third prong of the Boyle test requires that the contractor had "warned the United States about the dangers in the use of the equipment that were known to the [contractor] but not to the United States." Boyle, 487 U.S. at 512. The contractor is thus bound only to disclose information about which it is more knowledgeable than the government. Proving either that the contractor lacked actual knowledge of the danger or that the government was independently aware of the defect demonstrates that the government was at least as aware as the contractor. See In re Aircraft Crash Litig., 752 F. Supp. 1326, 1339 (S.D. Ohio 1990); Niemann v. McDonnell-Douglas Corp., 721 F. Supp. 1019, 1028 (S.D. Ill. 1989). If the government was already independently aware of a risk and chose to act regardless of that knowledge, defendant may still employ the government contractor defense without further warning the government. See Stout v. Borg-Warner Corp., 933 F.2d 331, 336-37 (5th Cir. 1991).
Plaintiff argues that defendant did not inform the Postal Service about potential dangers arising from the MPLSM and that the government contractor defense therefore cannot be used because the government was not operating with complete knowledge. However, defendant was not fully aware of the potential danger. Moreover, the Postal Service was independently aware of the information defendant did in fact know. Ten documents dating from 1963 and originating with the Postal Service discuss human engineering factors that relate to the operation of the MPLSM and potential problems in that area. While these evaluations do not draw specific conclusions regarding the danger of the MPLSM and repetitive stress injuries, they show the Postal Service's awareness of the relevant issues with respect to human factors. Several studies supported or endorsed by Postal Service employees in the early 1980's proposed a correlation between the MPLSM and repetitive stress injuries. While they do not directly involve official Postal Service efforts, the extensive involvement of the postal workers and their primary union makes it unlikely that the Postal Service administration and officials would not be aware of the studies and their outcomes. Even without knowledge of the early studies, however, the Postal Service was aware of some risk of injury in 1983, after receiving a letter in July from Dr. Dean J. Seibert, the Postal Service's Area Medical Officer in Portland, Maine, attributing cumulative trauma disorder to excessive keying. See Def.'s Mot. for Summ. J., Ex. 37.
In 1984, Congressional hearings were held on the "Effects of Carpal Tunnel Syndrome and Tendonitis on Postal Employees," at which several Postal Service representatives testified. See Def.'s Mot. for Summ. J., Ex. 33. The Postal Service was thus aware of the available information at that point as it was presented at the hearings, and there is no indication that defendant knew or should have known more than what was revealed during the hearings. Following the hearings, the Postal Service would more likely have been aware of any new information, which consisted primarily of public material such as pamphlets and newspaper articles, some of which were produced by the American Postal Workers' Union and others within the Postal Service, as such information was directly relevant to a vital aspect of the Postal Service's daily operations.
Just as long-term use implies acceptance and approval of a design, it also suggests an understanding of the machinery and awareness of all the implications of its operation. Regardless of articles and studies regarding the machinery, actual, real-world use of the equipment is the best means by which to truly understand its nature as well as its shortcomings. Acceptance and continued use of a product, especially where the government agency participated in the design process, reflects a cognizance of any risks involved. See Galik v. Lockheed Shipbuilding Co., 727 F. Supp. 1433, 1437 (S.D. Ala. 1989). Using equipment for four years, the government "would have become aware of any limitations or dangers associated with . . . use." Zinck v. ITT Corp., 690 F. Supp. 1331, 1337 (S.D.N.Y. 1988); see also Harduvel v. Gen. Dynamics Corp., 878 F.2d 1311 (11th Cir. 1989). The government would be particularly aware of dangerous precedent where problems have arisen during prior use. See In re Air Crash Disaster at Mannheim, 769 F.2d 115, 124 (3d Cir. 1985). After 30 years of continuous use and experience with the machine, the Postal Service was in the best position to recognize and remedy any dangers associated with its design. After production, the Postal Service retained exclusive control of employee training and the continued operation of the MPLSMs, and conducted extensive research efforts with respect to human factors issues and the MPLSM. Only the Postal Service, overseeing its workers on a daily basis and carefully monitoring the machine's effects, could fully understand the long-term impact of the apparatus. There is no question of fact regarding the Postal Service's continued and consistent use of the MPLSM over the years. The record demonstrates that the Postal Service was as well informed, if not more so, than defendant. Defendant was thus not bound to disclose any information to the Postal Service regarding the MPLSM or repetitive stress injuries in order to employ the government contractor defense.
II. The Failure To Warn Claim
Plaintiff argues that defendant violated state law requiring warning labels concerning the potential dangers of using the MPLSMs. Defendant contends that the government contractor defense applies to the failure to warn claim as well, noting that the government exercised its discretion regarding the placement of warning labels, and defendant was thus bound to follow the government's decisions. The Boyle standard applies to failure to warn claims in certain instances, "providing guidance in determining when state law governing a failure to warn claim can be displaced." Tate v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995); see also In re Hawaii Fed. Asbestos Cases, 960 F.2d 806 (9th Cir. 1992); Dorse v. Eagle-Picher Indus. Inc., 898 F.2d 1487, 1489 (11th Cir. 1990); In re Joint E. and S. Dist. N.Y. Asbestos Litig., 897 F.2d 626, 629 (2d Cir. 1990).
Plaintiff suggests that the Boyle test should be applied to failure to warn claims stringently, compelling defendant to show that the warnings were specifically mandated or prohibited by the terms of the government contract. Plaintiff argues that there must be a genuine conflict between the state duty to warn and the provisions of the government contract, such that defendant cannot unilaterally add warnings or safety features without contravening the terms of the contract. Dorse, 898 F.2d at 1490. Under this view, in order to use the government contractor defense, the government must dictate the specific content of the warnings to be posted. In re Joint E. and S. Dist. N.Y., 897 F.2d at 630. Plaintiff argues that defendant's inability to use additional warnings must be explicitly denoted in the government contract in a way that specifically limits the contractor's ability to accommodate safety in another way. In re Hawaii Fed. Asbestos Cases, 960 F.2d at 813.
While plaintiff's theory finds support in some jurisdictions, the recent holding of the Sixth Circuit specifically challenges those findings, setting a new precedent by which failure to warn cases are to be evaluated. In Tate v. Boeing Helicopters, 55 F.3d 1150 (6th Cir. 1995), the court held that, in order to apply the government contractor defense to a failure to warn claim, defendant need only demonstrate government discretion and general approval of the warning, and that the government agency need not dictate or specifically prohibit the warnings. Tate applies the three prongs of the Boyle test to the warning issue in the same manner in which it is used in design defect cases, noting that "the rationale for applying the government contractor defense to a failure to warn claim tracks the Boyle analysis closely." Id. at 1157. Tate recalls that the Boyle defense was originally based on the discretionary function exception of the FTCA; consequently, exercise of the government's discretion, rather than the specific dictation or prohibition of warnings, controls approval with respect to the failure to warn. As with design defect claims, government approval depends primarily on whether the government substantively reviews and approves the warnings. Tate specifically notes that prior cases, including Dorse and In re New York Asbestos, that insist that the government agency explicitly impose or prohibit specific warnings require too high a level of government involvement. Tate, 55 F.3d at 1157.
This Court is persuaded by, and follows, the court's analysis in Tate, and thus applies the Boyle test to plaintiff's failure to warn claim. Defendant satisfied its duty to warn obligation under Tate. Moreover, defendant satisfied the more stringent test proposed by plaintiff, which demands specific dictation or exclusion of warnings by the government. The original MPLSM specifications, which required explicit Postal Service approval of any deviations or modifications, apply to warnings as well as design features. The Postal Service provisions dictated the precise nature of the workmanship, materials, design, construction and assembly, providing a complete image of the final product encompassing its appearance as well as its safe and effective operation. Any label or warning not explicitly included in the specifications could be added only after an intensive, complicated procedure. Had the Postal Service wanted to include additional safety warnings, it would have done so as a part of its carefully crafted and detailed plans; it is not defendant's position to substitute its own judgment for that of the government. "When the government provides or approves specifications of a product which call for some safeguards but not others, the government contractor is not under a duty to provide every known safety device where it is not called for by the government contract." Nicholson v. United Technologies Corp., 697 F. Supp. 598, 603 (D. Conn. 1988). In the present case, the contract specifically forbids any deviation from the Postal Service plans without express prior approval and permission. It was explicit that any changes or adjustments which "differ in the slightest detail from those specified or shown on the drawings shall be subject to approval by the Postal Service." MPLSM Model 120/121 Spec. § 3.14. The very terms of defendant's contract with the Postal Service not only suggest but require deferral to the government's judgment regarding the design and manufacture of the MPLSM. Consequently, the contractor should not be liable for a defective design or absent label that was not dictated by the government.
The Court concludes that Tate provides the appropriate standard by which to evaluate the failure to warn claim, and the facts show that defendant satisfies that standard. The overall specifications that encompassed safety features and their corresponding warnings were developed and approved by the Postal Service. The final set of specifications and warnings was officially issued by the Postal Service after a rigorous substantive review in which every detail was carefully monitored and controlled by the Postal Service. The Postal Service's overall acceptance and approval of the specifications included approval of the warning labels and safety provisions, thus demonstrating the exercise of the government's discretion in selecting warnings as a part of the MPLSM's design.
Accordingly, for the foregoing reasons, defendant's motion for summary judgment is granted on all counts. An appropriate Judgment accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: DEC 18 1996
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that defendant's motion for summary judgment is granted.
Stanley S. Harris
United States District Judge
Date: DEC 18 1996