Fair dinkum, does anybody not sue somebody else for something in the USA?

 

The bloke signed up (volunteered) to serve in the military. Stuff happens. Tis a dangerous enterprise he is in. Had he been killed in combat would his family sue the enemy?

 

Besides, how does he "know" that Boeing knew it was defective?

 

Curious.

 

Stilwell alleges Boeing knew or should have known the F-15 was defective, dangerous and could result in a catastrophic in-flight breakup as manufactured.

 

Military aircraft manufacturers are often the subject of investigation by the survivors of military personnel fatally injured in military air crashes. To successfully sue the manufacturer, one must prove that the product which caused injury was defective in design, manufacture, or that there was a failure to warn of an unsafe condition. The "unreasonably dangerous" standard is used to prove defect in design under the laws of some states. In other states, a "risk-utility balancing test" is employed to evaluate whether the product was defective. An important question is whether an alternatively, safer way to design the product existed at the time of manufacture.

 

Investigation for defects in military aircraft often focuses on the airframe and the major subcomponents such as the engines, flight controls, avionics, navigation equipment, safety and escape devices. Other possible defendants include local and state governments, companies that sell navigation and instrument approach charts, owners and operators of private vehicles involved in accidents with military vehicles, private suppliers who provide negligent services or supplies, civilian groups who have trained service personnel by contract, and non-governmental rescue services who negligently fulfill the responsibilities they assume.

...

In military air crash cases, pilot error is often the cause of the crash. When a pilot flies into a mountain, has a mid-air collision or looses control during training exercises, there is often no private entity to blame. Sometimes, even if a defect is present in the equipment, the air crew may have contributory fault for failing to compensate for the defect in time to prevent the crash.

 

Another major hurdle exists for the families of services personnel who are injured or killed in military air crashes, even if they can prove that there is a design defect in the airplane or one of its components parts. Military aircraft manufacturers can avoid liability for a defective product if they can show that the government allowed them to design it that way.

The Government Contractor's Defense

In 1988, the Supreme Court of the United States ruled that manufacturers are not liable for design defects in military equipment [25] when:

 

*The United States government approved reasonably precise specifications for the design of the equipment; *The equipment conformed to those specifications; or *The supplier warned the government about the dangers in the use of the equipment which were known to the supplier, but not to the government.

 

The Government Contractor Defense creates a unique challenge for anyone who decides to sue a government contractor. One must become familiar with government procurement regulations and documents which define the development process for creating specifications for military aviation products. In addition, a highly technical investigation is necessary to determine if a design or manufacturing defect exists or whether the manufacturer failed to warn of a hazard not known to the government. Finding liability and a way around the Government Contractor's Defense, can be particularly difficult when the military equipment involved is a state-of-the-art jet airplane, with systems built using classified technology or embarked on a classified mission. Also, there may be absolute immunity for combat crashes because the "combat pre-emption" doctrine may apply.[26]

 

The government contractor defense was established because military aircraft may need to be designed to function under abnormal stress on both combat and non-combat missions. Under these circumstances, the government may approve a design which would be unacceptable in civilian aviation. The poorer design may be permitted for military use due to budgetary restraints and a trade off between either greater safety or enhanced combat efficiency.

 

The unfairness of the government contractor's defense is exemplified by recalling the 1992 made-for-television movie entitled "Afterburn." This was the story of the widow of an F-16 pilot whose airplane crashed due to what the investigator said was "pilot error." The widow's attorney convinced a jury that a wire chafing control defect in the F-16 fighter caused the aircraft to become uncontrollable and crash. The widow and her child won a recovery of $3.1 Million.

 

Notably, in the Harduvel case, about which the movie was made, the widow's attorney litigated the case on a theory that the problem was a manufacturing defect. The Supreme Court had recognized the Government Contractor's Defense for design defects. What many who saw the movie Afterburn may not remember, is that after the trial victory, an appeal was filed with the 11th Circuit Court of Appeals which reversed the verdict and deprived the family of a recovery. The federal court ruled that the defect involved was not a manufacturing defect, but was a design defect, covered by the immunity afforded to manufacturers by the government contractor's defense.[27]

 

There have been some recent decisions in the Ninth Circuit (California and Western states), which make the western states a good place to overcome the Government Contractor's Defense in order to successfully sue a manufacturer on a failure to warn theory.[28] In the Ninth Circuit, California Federal and Washington State Courts have applied liberal product liability laws to allow plaintiffs to proceed against manufacturers where the state law duty to warn does not conflict with federal procurement requirements. There has also been a mixed bag of recent decisions in other jurisdictions, some supporting and others circumventing the Defense.[29]

 

A well-managed investigation may also uncover other ways around the defense by showing the government had "rubber-stamped" a design with no close supervision over the development of a product. Another way around the defense is to show that the product was defective by product liability standards applied to civilian aircraft, and that the military merely purchased or modified a civilian model "off-the-shelf" without prescribing new specifications.

...

In conclusion, the government has set up so many immunities, defenses, and double standards, that representation of victims in military air crashes requires the ultimate in skill, perseverance and funding to achieve a recovery.