Trial Magazine

The millions of men and women around the world in active U.S. military service or serving in the National Guard and reserve units work daily with thousands of products—from aircraft and vehicles to weapons and heavy equipment.¹ As in the civilian world, injury or death can result from equipment failure caused by design and manufacturing defects or from failure to warn.

Military products cases present unique challenges because manufacturers of military hardware may have legal protections that shield them from liability. But when servicemembers are injured or die from a product failure, the victims or their surviving family members may have viable civil claims against the corporations that provided these hazardous products to the military.²

First Steps

To properly evaluate these cases, you must gather significant background information. When determining how to proceed, knowing the incident’s location, potential defendants, and the product’s manufacturer will be key. The forum state will largely depend on the parties and which court has personal and subject matter jurisdiction over them.³ Once the forum state is determined, litigants will use the choice of law rules for that venue to evaluate which jurisdiction’s law applies.

Typically, the law of the place where the harm occurred, or “lex loci delicti,” governs the substantive rights of the parties.⁴ Ask clients questions such as: Did the incident occur on U.S. or foreign soil? Who has custody of the failed product? Who provided maintenance? The answers will help you identify which state or country’s laws will apply, what remedies are available under those laws, and what statutes of limitations or repose exist.

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Military equipment is maintained according to very detailed procedures published by the U.S. government that designate what type of military unit can conduct certain levels of maintenance.

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Take a detailed history from the victim or family that includes the names of all of the victim’s friends and unit members who may have knowledge about the product’s use and maintenance, as well as any reported problems. Military equipment is maintained according to very detailed procedures published by the U.S. government that designate what type of military unit can conduct certain levels of maintenance.⁵ Some maintenance is contracted out to private companies, which may conduct the maintenance, remanufacture a part, or replace a part with a new one from a different manufacturer. Unit personnel have important information about this that will help attorneys identify previously unknown defendants.

Secure the equipment. As with any products liability case, securing the equipment involved is critical. This can be problematic when it is located on a military base. The military unit where the incident occurred usually retains the physical evidence pending further investigation. If the failed equipment has been disposed of or lost, the military will have detailed records regarding its history and ultimate disposition, and the military investigates every incident involving military equipment. Even when access to the equipment may be impossible (for example, due to combat loss), usually enough of a paper trail exists to investigate potential causes of the failure and pursue a case.⁶

Immediately contact the Judge Advocate General’s (JAG) office with jurisdiction and the commanding officer for the unit where the injury occurred in writing and follow up with a call to confirm a point of contact. A written request should advise that you are representing the servicemember and request that all physical evidence be identified, sequestered, and held for future inspection. Future examination, expert inspections, testing, and protocols can be negotiated with the responsible JAG office and all interested parties.

To achieve military standardization objectives, the U.S. Department of Defense has adopted hundreds of standards—often called “military standards” and abbreviated as “MIL-STD” or “MIL-SPEC”—which are available online and should be thoroughly reviewed for applicability to the equipment in question.⁷ A product’s failure to meet the specification or standard may be evidence of a defect due to a failure in the manufacture or assembly of the equipment.⁸

Carefully evaluate potential defendants. Determining all potentially responsible parties may be complicated.⁹ Take, for example, a military aircraft designed by one civilian corporation, built by another company, modified by a third, and maintained by a fourth. Assume the aircraft crashes during an exercise on U.S. soil, killing all five people on board and that the cause of the crash is determined to be a component failure compounded by poor maintenance and pilot error.

If retained, what causes of action do you bring? Against which defendants? What are the issues? First, you must identify the product that failed. By the time the client contacts an attorney, an investigation already will have been initiated by the military, National Transportation Safety Board, or another agency. By filing a Freedom of Information Act (FOIA) or “Touhy” request (discussed later), you can get a copy of the redacted investigation results. A careful review will usually reveal enough information to identify the failed component, the manufacturer, the owner, the maintainer, the operator, and any other entity or person who touched the part. If the failed part is identified but not the cause of the failure, it may be wise to name each of the entities listed above as defendants to save the statute of limitations.¹⁰

Your investigation and discovery should focus on the specific defect and how and by whom it was approved. Be aware that the revolving door between the military and the military-industrial establishment may compound this difficulty as retired military decision-makers may now be civilian employees who work for the defendant.

Military Investigations

The service branch involved in the incident will always conduct at least one official investigation.¹¹ Reporting and investigations follow specific processes and procedures outlined in Department of Defense Instruction (DODI) 6055.07, as well as service-specific regulations for each military branch.¹² The definitions and process used by each branch have differences and commonalities, but this article will describe the version used by the U.S. Army.

The Army defines an “accident” as an “unplanned event or series of events that results in” injury or illness to Army or non-Army personnel or damage to Army or non-Army property as a result of Army operations caused by the Army.¹³ These incidents are classified based on the severity of damage as “A” through “D,” with a Class A event, the most serious, defined as resulting in property damage of more than $2 million or in fatal or permanently disabling injuries.¹⁴ Army regulations and publications regarding investigations are available online and can help you understand the investigation materials that should be available based on the different classifications.¹⁵

Collateral board reports. After an incident occurs, an officer is appointed by a JAG officer to investigate, take witness statements, consult with experts, make findings of fact, and issue a formal report. These investigations are frequently, though not exclusively, used to determine fault by service personnel involved, whether they were acting in the line of duty, whether they or their heirs are entitled to military benefits, whether military discipline should be imposed, and whether compensation may be owed to non-military people.

You can request the collateral board report from the military branch that conducted the investigation. In a civil case, the most valuable use of the collateral board report is to identify key personnel involved, get witness statements and interview summaries, and learn of any human errors that the military found contributed to the harm.

Safety board reports. Upon notification of an incident, the unit installation or the Army Combat Readiness Center will initiate a formal investigation, which results in a safety board report. The board members consist of officers and enlisted personnel with subject matter expertise related to the equipment involved. The report’s purpose is limited to the promotion of safety. Often, because the equipment or mission may be complex or classified, the findings are not made public. Informal or back channel inquiry may disclose some or all of the report, and contacting unit personnel and witnesses is the best way to get copies of unredacted safety and collateral reports.¹⁶

FOIA requests. Any case-specific requests for information should be directed to the appropriate military or government agency as soon as feasible as FOIA requests. In the case of a servicemember injured in a military airplane crash, for example, you could request Freedom of Information Office documents from the Army such as the preliminary incident report; any and all documents related to their investigation (such as aircraft maintenance records, air crew flight records, and air crew service records); witness statements; copies of the flight plan; and any radio communication recordings or transcripts concerning the flight.

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Remember that the primary purpose of military investigations is to improve safety. The investigators are not attempting to identify legally responsible parties.

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Collateral information may become available that may not have been supplied or reviewed by the investigating authority. Remember that the primary purpose of those military investigations is to improve safety. The investigators are not attempting to identify legally responsible parties. Significant details and information that may be important to your products liability case—such as references to other incidents outside the military, the identification of alternative part suppliers, industry studies, or government contract bids—are often overlooked or not considered relevant in those military investigations.

Military Discovery Requests

A wealth of open-source information can be helpful. For example, you can find information about military equipment, including maintenance manuals, at the Army Publishing Directorate website.¹⁷ One source for determining which private companies have military contracts is usaspending.gov.¹⁸ Most military regulations can also be found at the Department of Defense’s website¹⁹ or through a simple internet search. By carefully reviewing those regulations, you can better understand issues such as military operations, responsibilities, standard operating procedures, and maintenance practices.

The military is typically helpful in scheduling equipment and wreckage inspections and complying with discovery requests. Since these product failures normally involve multiple military witnesses who may be transferred every few years to different bases or through overseas deployments, budget a significant amount of travel for deposing these witnesses. In our experience, the attorneys for the military are typically flexible in scheduling these depositions and may be willing to do video depositions when necessary to conserve time and expenses.

Touhy requests. While the military and government may be forthcoming with helpful information, they will also invoke a number of precautionary measures to prevent plaintiffs from viewing any classified information and deposing certain witnesses. Active duty and retired guard and reserve military witnesses may be deposed only if counsel complies with the prerequisites established in United States ex rel. Touhy v. Ragen.²⁰ A Touhy request seeks official information in support of litigation when the government is not a party. Government witnesses cannot provide opinion testimony, expert testimony, or classified information.

First, determine which executive agency you are dealing with and figure out which larger agency, if any, it falls under. The regulations for that agency will control how and to whom you send your request. Counsel should reach out to the appropriate JAG or government office to explain the importance of the witnesses’ testimony. Each government agency has regulations that describe the factors that it must consider when reviewing a Touhy request.²¹ These factors typically are

• the inability to obtain the information from another source
• the appropriateness of the testimony under federal law
• the effect on the agency’s ability to conduct official business unimpeded
• the effect on the agency’s ability to maintain impartiality in conducting business
• the effect on the agency’s ability to avoid spending employees’ time for private purposes
• the effect on the agency’s ability to ensure that privileged matters remain confidential
• and the effect on the agency’s ability to avoid an undue burden on it.

A denial of a Touhy request for documents, or subpoena of a government witness, is reviewable by a court.²² In most cases, the testimony allowed will be limited to factual matters and will be limited in scope. Identify the necessary government or military witnesses early, and initiate the Touhy request as soon as possible. This will give you time to litigate any contested matters regarding your request without unnecessarily delaying the case.

You must thoroughly understand how military missions and operations work before you start deposing military witnesses, so make sure you have acquired all relevant documents before requesting depositions. In most cases, due to executive agency regulations governing the release of information by subordinates, including testimony, you will have only one opportunity to depose these witnesses. Each military branch has a Touhy procedure, which makes it very difficult to depose witnesses more than once.

You should depose maintenance personnel, accident investigators, and any high-level personnel you can identify who have been involved in the design and acquisition of the failed product. Videotape any depositions of high-ranking personnel since, due to their significant responsibilities and the uncertainty of deployment time lines, it will be more difficult to compel them to attend trial.

Special Defenses

In addition to the customary affirmative defenses common to all products liability litigation, defendants frequently invoke some special doctrines in military products cases.

Feres doctrine. In Feres v. United States, the U.S. Supreme Court held that the federal government could not be held liable under the Federal Tort Claims Act (FTCA) for injuries to servicemembers arising from activities incident to military service.²³ The Court further solidified the Feres decision, in United States v. Brown, reasoning that “the peculiar and special relationship of the soldier to his superiors” might be affected if suits were allowed under the FTCA “for negligent orders given or negligent acts committed in the course of military duty.”²⁴

Creative defense attorneys may attempt to argue that the civilian defendant is a de facto part of the military or should be given government status and therefore immunity under Feres. Be prepared to argue in response that the defendant is a civilian for-profit corporation.²⁵

Government contractor defense. In Boyle v. United Technologies Corp., the Supreme Court outlined when a private contractor is immune from tort liability for work performed pursuant to a government contract.²⁶ The Court held that liability for military equipment design defects cannot be imposed under state law when the U.S. government approved reasonably precise specifications, the equipment produced conformed to those specifications, and the contractor warned the U.S. government about any dangers in the use of the equipment that were known to the supplier but not to the government.²⁷

This defense shields the manufacturer from liability when the military decides to field equipment that it knows has vulnerabilities.²⁸ It’s a potent defense that creates a fact-driven issue as to the relative roles of the government and the defendant in the design, manufacture, assembly, and subsequent modification of the product. Plaintiff attorneys should attempt to acquire initial design and procurement specifications, contracts, purchase agreements, proposals, drawings, and blueprints exchanged by the contractor and the government. Keep in mind that this is an affirmative defense, and the burden is on the defendant to prove each and every element of the doctrine.²⁹

The Boyle defense is usually the subject of a defense motion for summary judgment. Once asserted with factual support, the plaintiff must demonstrate that the precise design defect at issue resulted from the defendant’s decision, not the government’s, or at least that a factual dispute exists on that issue for resolution by the jury.³⁰ If the motion is denied, this defense is difficult to present to jurors who may view the manufacturer as seeking to avoid responsibility for an injury its defective product caused.

Servicemembers harmed by defective products deserve aggressive advocacy. Successful litigation can result in relief for them and their families and in changes to design, maintenance, and inspection procedures that can prevent future similar events.

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Robert F. Spohrer and Keith L. Maynard are partners at Spohrer & Dodd in Jacksonville, Fla. They can be reached at rspohrer@sdlitigation.com and kmaynard@sdlitigation.com.

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Notes

1. DoD Personnel, Workforce Reports & Publications, Def. Manpower Data Ctr., www.dmdc.osd.mil/appj/dwp/dwp_reports.jsp; DLA at a Glance, Def. Logistics Agency, http://www.dla.mil/AtaGlance.aspx.  

2. Plaintiffs have prevailed in cases involving products as diverse as helicopters with external fuel tanks that caused lateral imbalance, a defective submarine hangar diving system, and defective mortar shells that killed or seriously injured servicemembers. See Densberger v. United Techs. Corp., 297 F.3d 66, 68 (2d Cir. 2002); Trevino v. Gen. Dynamics Corp., 865 F.2d 1474, 1476 (5th Cir. 1989); Mitchell v. Lone Star Ammunition, Inc., 913 F.2d 242, 243 (5th Cir. 1990)

3. See, e.g., Clay v. AIG Aerospace Ins. Servs., Inc., 61 F. Supp. 3d 1255 (M.D. Fla. 2014) (analyzing appropriate venue in fatal airplane crash). 

4. See, e.g., Carroll Fulmer Logistics Corp. v. Hines, 710 S.E.2d 888 (Ga. Ct. App. 2011).

5. The Army, for example, has one maintenance standard, outlined in Army Regulation 750-1, Army Materiel Maintenance Policy, https://dmna.ny.gov/foodservice/docs/references/AR_750-1_TAMMS.pdf.  

6. Attorneys should seek additional information regarding equipment issues from the manufacturers themselves, other branches of the military or government departments, and even from foreign governments that may have purchased the same equipment from U.S. manufacturers. Typically, the manufacturer will be asked to participate in an investigation involving a foreign military incident involving its product. If the root cause seems similar to the one you are investigating, you can gain valuable information from these findings. 

7. Specifications and Standards, U.S. Dep’t of Defense, www.dsp.dla.mil/Specs-Standards/; U.S. Department of Defense (DoD), IHS Markit, https://ihsmarkit.com/products/dod-standards.html; Department of Defense Single Stock Point (DODSSP), Win Gov’t Contracts, www.wingovermentcontracts.com/department-of-defense-single-stock-point.htm; Office of the Assistant Secretary of Defense for Logistics & Materiel Readiness, Maintenance Policies and Programs, www.acq.osd.mil/log/MPP/index.html.

8. For example, in July, a military contractor agreed to pay $9.1 million to the U.S. government in a whistleblower lawsuit regarding defective earplugs issued to thousands of servicemembers. The complaint alleged that the manufacturers manipulated test results to make it appear that the plugs met government standards. 3M Company Agrees to Pay $9.1 Million to Resolve Allegations That It Supplied the United States With Defective Dual-Ended Combat Arms Earplugs, U.S. Dep’t of Justice (July 26, 2018), www.justice.gov/opa/pr/3m-company-agrees-pay-91-million-resolve-allegations-it-supplied-united-states-defective-dual.

9. The biggest challenge with multiple defendants in a military products case is jurisdiction. Laugelle v. Bell Helicopter Textron, Inc., 2014 WL 2699880, at *1 (Del. Super. Ct. June 11, 2014), for example, involved a fatal helicopter crash and presented complicated questions regarding personal jurisdiction, venue, choice of law, conflict of laws, applicable damages law, and statute of limitations tolling. A pre-suit issue analysis is imperative and will help you avoid the costly mistakes of filing in the wrong venue or jurisdiction, having less favorable law applied to the case, and even having your case dismissed after the statute of limitations has passed.

10. Each defendant will have an interest in disclosing more information about its involvement and any investigation it conducted about the component to get out of the case as early as possible. This information can be useful in pursuing the other responsible parties without having to hire multiple experts. 

11. Department of Defense Instruction 6055.07: Mishap Notification, Investigation, Reporting, and Record Keeping, U.S. Dep’t of Defense (June 6, 2011), www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/605507p.pdf.

12. See, e.g., Air Force Instruction 91-204 Safety Investigation and Hazard Reporting, Dep’t of the Air Force (Apr. 27, 2018), http://static.e-publishing.af.mil/production/1/af_se/publication/afi91-204/afi91-204.pdf; Navy & Marine Corps Mishap and Safety Investigation, Reporting, and Record Keeping Manual, U.S. Dep’t of Navy & U.S. Marine Corps (Jan. 7, 2005), www.safety.marines.mil/Portals/92/Docs/MCO%20P5102.1B.pdf.

13. Army Regulation 385-10: The Army Safety Program, U.S. Army Installation Mgmt. Command Directorate-Europe. 25, Ch. 3-3 (Nov. 27, 2013), www.imcom-europe.army.mil/webs/docs/safety/2007%2008%2027%20AR385_10.pdf.

14. Id. at 3–4. 

15. Id.; Department of the Army Pamphlet 385-40: Army Accident Investigations and Reporting, U.S. Army-Fort Campbell (Feb. 25, 2010), www.campbell.army.mil/Installation/Documents/DA%20PAM%20385-40%20Army%20Accident%20Investigations%20and%20Reporting.pdf.

16. Witnesses may include personnel with knowledge of maintenance procedures, government contracts, procurement procedures, and the equipment supply chain.

17. https://armypubs.army.mil/default.aspx.

18. www.usaspending.gov.

19. DOD Regulatory Program, U.S. Dep’t of Defense, https://open.defense.gov/Regulatory-Program/Rules.

20. 340 U.S. 462 (1951).

21. See, e.g., Dep’t of Defense Directive 5405.2 Release of Official Information in Litigation and Testimony by DoD Personnel as Witnesses, Exec. Servs. Directorate, U.S. Dep’t of Defense (Nov. 21, 2003), www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/540502p.pdf.

22. An objection to a Touhy request or subpoena for documents should be challenged in the district where the general counsel of the agency is found and served. A denial of a Touhy request or subpoena for testimony can be challenged in the issuing court. See Ceroni v. 4Front Engineered Solutions, Inc., 793 F. Supp. 2d 1268, 1275 (D. Colo. 2011).

23. 340 U.S. 135 (1950).

24. 348 U.S. 110, 112 (1954).

25. See, e.g., McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1346 (11th Cir. 2007).

26. 487 U.S. 500 (1988).

27. Id. at 511–12.

28. See Lewis v. Babcock Indus., Inc., 985 F.2d 83, 89 (2d Cir. 1993).

29. See Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 802 (5th Cir. 1993) (citing the affirmative defense discussion in Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991)).

30. Boyle, 487 U.S. at 514; see Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 748 (9th Cir. 1997); Butler v. Ingalls Shipbuilding, Inc., 89 F.3d 582, 584–85 (9th Cir. 1996).