that the government subsequently reviewed and approved." 878 F.2d at 1320.
This case fits within the law established by these decisions. The parties agree that a "continuous back and forth" between the Postal Service and Burroughs occurred. Furthermore, like Stout, Kleeman, and Harduvel, Burroughs constructed the operator's station and keyboard of the MPLSM according to precise design specifications formulated by Burroughs and the Postal Service. Although the specifications did not rule out the ergonomic design features suggested by Dr. Lueder, they did not allow for them either. Furthermore, the record also indicates that Burroughs could not unilaterally add these features to the MPLSM design without Postal Service approval, and that any attempt to do so may have led to rejection of the goods.
Indeed, even those cased cited favorably by plaintiffs do not challenge this conclusion. For example, both Boyle and Trevino relied in part upon a finding that "reasonably precise specifications" at issue did not apply to the particular feature challenged by the plaintiff. Bailey, 989 F.2d at 799; Trevino, 865 F.2d at 1486. Here, the MPLSM specifications included detailed descriptions and drawings of the operator station and the keyboard, which Burroughs followed.
Plaintiffs have cited one case which truly supports their position, Anzalone v. WesTech Gear Corp., 141 N.J. 256, 661 A.2d 796 (July 26, 1995) (per curiam).
In that case, the contractor built a "ram tensioner" for the Navy in accordance with "very detailed and specific" government approved specifications. 141 N.J. at 266, 661 A.2d at 801. However, the specifications "neither required nor prohibited" the safety feature at issue in the case. 141 N.J. at 267, 661 A.2d at 802. On the basis of this record, the court below concluded that the contractor was not entitled to summary judgment on the government contractor defense. See 271 N.J. Super. 522, 638 A.2d 1365 (App. Div. 1994).
An equally divided New Jersey Supreme Court affirmed. Justice Handler, concurring for three members of the court, wrote that in order to find federal preemption, a court must find that "the government made an affirmative and definite decision to exclude safety features from the . . . ram tensioner and whether, therefore, the omission of any such specifications was an exercise of government discretion." 141 N.J. at 271, 661 A.2d at 804. The concurring justices concluded that such a showing was not made in that case because "the absence of either an express prohibition or requirement for 'any type of safety mechanisms or warnings on the ram tensioner' did not evidence a decision by the Navy 'not to adopt safety devices or guards.'" 141 N.J. at 272, 661 A.2d at 804 (quoting 271 N.J. Super. at 537).
Dissenting for three other members of the court, Justice Pollock found that the concurrence's view "stands Boyle on its head." 141 N.J. at 275, 661 A.2d at 806. The Navy participated in the production of detailed specifications for the ram tensioner and approved these specifications. Furthermore, the ram tensioner conformed to the specifications, and the government and the contractor had equivalent knowledge regarding the dangers posed by the product. This, Justice Pollock concluded, was all that was necessary to meet Boyle. Justice Pollock then went on to distinguish cases where Boyle would not apply -- such as where the government bought products off the shelf or in accordance with only general performance specifications -- from the instant case, "involving the government's procurement of military equipment designed by, or in conjunction with, military engineers." 141 N.J. at 277, 661 A.2d at 807.
The Court finds that Justice Pollack's view is more in line with the Third Circuit's holding in Carley that the government need only approve, rather than create, the reasonably precise specifications at issue. 991 F.2d at 1125. Otherwise, if Boyle were available only when the government imposed specific contractual duties upon the contractor, one of the dangers envisioned by the Supreme Court, that the contractor would pass the potential cost of product liability suits on to the government, would not be abrogated. See Anzalone, 141 N.J. at 276, 661 A.2d at 806 (Pollack, J., dissenting) (discussing Boyle, 487 U.S. at 511-12).
We also find the concurrence's opinion in Anzalone to be unpersuasive because the New Jersey court did not even address the Fifth Circuit's opinion in Stout, and attempted to distinguish Kleeman and Harduvel by stating that in those cases "the design feature in question . . . was itself considered by a Government officer, and thus falls within the area where the policy of the discretionary function would be frustrated." 141 N.J. at 268, 661 A.2d at 802 (internal quotations omitted). To the extent that this distinction has merit, we find that it does not apply here. The current record shows clearly that the Postal Service carefully considered the design of the MPLSM operator console and keyboard, and did not delegate its discretion to Burroughs. Defendant has therefore met the first condition of the Boyle government contractor defense.
2. The Parties' Relative Knowledge of Risk
Plaintiffs next contend that even if the MPLSMs conformed to reasonably precise Postal Service specifications, Burroughs knew more about the risks of RSIs associated with the operation of MPLSMs and failed to notify the Postal Service of these risks. Plaintiffs also contend that, despite the Postal Service's knowledge of the danger of RSIs from MPLSM operation, Burroughs effectively negated the Postal Service's knowledge by convincing it that operation of MPLSMs was unlikely to cause RSIs.
The Court first notes that if either of these allegations were true, defendant's government contractor defense would fail. As the Court held in Boyle, the government contractor defense will not succeed if the contractor failed to warn the government about risks associated with the product that were known to the contractor but not to the government. 487 U.S. at 512. This condition is intended to assure that the contractor does not withhold knowledge of risks in order to maintain the contract while avoiding state law products liability. Therefore, if Burroughs either (1) failed to disclose RSI risks known to it but not to the Postal Service, or (2) attempted to convince the Postal Service that operation of the MPLSMs would not cause RSIs despite its knowledge to the contrary, its government contractor defense would fail.
Defendant has offered evidence to show that the Postal Service had some knowledge of the danger of RSIs in 1970, that the NIOSH study began by 1976, that its results released in 1981 connected MPLSM operation with RSIs, and that by 1984 Congress held hearings on the subject. Defendant has also offered the affidavits of several former Burroughs employees indicating that they were not aware that MPLSMs could cause RSIs until Burroughs began to face lawsuits in 1986 or 1987. (Okun Aff. at P 12; France Aff. at P 7; Vogel Aff. at P 14; Lazzarotti Aff. at P 18; Ross Aff. at P 6; Selin Aff. at P 8; Clarke Aff. at P 13; Stotler Aff. at P 10; Tartar Aff. at P 10.)
Statements that Burroughs was not aware that extended keying could cause RSIs until 1986 or 1987 are simply incredible. Congress held hearings on the subject in 1984, and Dr. Michael Companion, a human factors engineer at Burroughs between 1983 and 1984, offered deposition testimony in a previous case that Burroughs began to explore ergonomically correct keyboard alternatives as early as 1975. (Plaintiff's Ex. 19 at 127.)
While the Court cannot believe that Burroughs knew nothing of RSI risks until 1986 or 1987, Burroughs has offered adequate evidence to establish a prima facie case that its knowledge of these risks did not exceed the knowledge of the Postal Service. For instance, in 1974 Burroughs suggested that the MPLSM utilize an asynchronous keyboard and a "heel of hand" rest, both of which would have cured defects later identified by Dr. Lueder. (See Lazzarotti Aff. at P 9 and Attachment "B" at 4-7.) The Postal Service, however, rejected both changes. This evidence tends to show that Burroughs fully disclosed its knowledge of RSI risks to the Postal Service.
Having concluded that defendant has made a prima facie showing of full disclosure, the burden shifts to plaintiffs to offer "significant, probative evidence" of a knowledge differential between Burroughs and the Postal Service. Bailey, 989 F.2d at 802. Plaintiffs could accomplish this task in two ways: first, by showing that Burroughs generally "knew more" than the Postal Service regarding the causation or frequency of RSIs due to MPLSM operation; or second, by showing that Burroughs knew of specific design alterations that would reduce the chance of RSIs but failed to disclose those potential alterations to the Postal Service.
Plaintiffs have wholly failed to offer evidence suggesting either of these conclusions. The only evidence offered by plaintiffs regarding Burroughs' knowledge of RSI risks is the deposition testimony of Dr. Companion, which was taken in connection with a previous case. Dr. Companion began working for Burroughs in the spring of 1983, and testified that he became aware of the RSI dangers associated with keyboard operation within a month after he began employment. (Plaintiffs' Ex. 19 at 90.) He also testified that in 1979, Dr. Grandjean, an ergonomic consultant, helped Burroughs develop a keyboard meeting the "highest ergonomic standards in the world," (id. at 127-28), and that in the 1980's Burroughs had experimented with ergonomic concepts such as split keyboards and integral palm rests, (id. at 158-59.)
While this testimony might tend to show that Burroughs knew something of RSI keyboard risks as early as the 1970's, it does not show either that its knowledge of such risks from the MPLSM keyboard exceeded that of the Postal Service or that it failed to disclose any relevant results of its research to the Postal Service.
In their brief following supplemental discovery, plaintiffs assert that Burroughs "had a duty to inquire of the Post Office what it knew about the potential risk of physical harm to LSM users" (Pl. Brf. at 19). As a legal matter, plaintiffs' argument misstates the third prong of Boyle, which requires disclosure where a manufacturer knows more than a purchasing governmental agency (487 U.S. at 512), but does not require a manufacturer to continually evaluate the purchaser's level of knowledge. And as a factual matter, plaintiffs' argument fails to acknowledge that the Postal Service clearly knew at least as much about such risks as Burroughs did, and probably a good deal more.
A Kansas District Court has reached a similar conclusion in a case involving nearly the same record as is currently before this Court. Wisner v. Unisys Corp., 1996 U.S. Dist. LEXIS 2583, No. 94-1380-PFK (D. Kan. Feb. 21, 1996). There, the Court concluded that,
the uncontroverted facts establish that the Postal Service, which had exclusive authority over the use of the MPLSMs and the employment and training of its operators, was in a markedly superior position to monitor the effects of use of the machine, and was, in fact, in possession of at least as much information on the dangers of MPLSM use as Burroughs.
Slip op. at 21. Similarly, a Texas district court, also faced with a record much like ours, concluded that,
there is no evidence that the defendant had any knowledge of any defect in the design that it failed to warn USPS about. In fact, the evidence shows that the USPS had first hand and superior knowledge of the problems associated with repetitive stress injuries.
McCoy v. Unisys Corp, 1996 U.S. Dist. LEXIS 4349, No. H-95-1487 (S.D. Tex. Jan. 16, 1996) (slip op. at 15). We agree with both of these courts that there is simply no evidence that Burroughs had any more knowledge of risks than did the Postal Service. Indeed, the opposite is true: the Postal Service controlled the design of the MPLSMs, used the machines every day, and was in the best position to monitor employee complaints and injuries.
D. Failure to Warn
Plaintiffs have argued that the government contractor defense does not bar their failure to warn claim. The federal appellate courts that have addressed the issue, however, have all concluded that Boyle applies to failure to warn claims. See Tate, 55 F.3d at 1156; In re Hawaii Federal Asbestos Cases, 960 F.2d 806, 812-13 (9th Cir. 1992) ("Hawaii Asbestos") ; Stout, 933 F.2d at 336-37 & n.2; Joint E. & S. Dist. New York Asbestos Litig., 897 F.2d at 629-30 ("N.Y. Asbestos"); Dorse, 716 F. Supp. at 590-91. These courts have applied differing tests to failure to warn claims. First, Hawaii Asbestos, N.Y. Asbestos, and Dorse all require that the specifications at issue affirmatively prohibit warnings before a manufacturer may invoke the government contractor defense. These courts rely on the rationale that "the state-imposed duty of care that is the asserted basis of the contractor's liability (warning of the danger) is not 'precisely contrary' to the duty imposed by the government contract (the duty of manufacture and deliver [sic] cement containing asbestos)." Dorse, 716 F. Supp. at 591. See also Hawaii Asbestos, 960 F.2d at 812 (manufacturers "could have provided detailed and prominent statements regarding the dangers of asbestos insulation without violating the terms of their procurement contracts or their product specifications"). Therefore, "to establish that Boyle displaces any state law duty to warn, [defendant] must show that the applicable federal contract includes warning requirements that significantly conflict with those that might be imposed by state law. N.Y. Asbestos, 897 F.2d at 630.
More recently, in Tate, the Sixth Circuit rejected this line of cases and held that a state law failure to warn claim would be preempted only where "(1) the United States exercised its discretion and approved the warnings, if any; (2) the contractor provided warnings that conformed to the approved warnings; and (3) the contractor warned the United States of the dangers in the equipment's use about which the contractor knew, but the United States did not." 55 F.3d at 1157. This approach has recently been adopted in Oliver v. Oshkosh Truck Corp., 911 F. Supp. 1161, 1996 WL 15538 at *22 (E.D. Wis. 1996). The Tate court made clear that a failure to warn action based on an alleged defect in design could lie even where the contractor had established a Boyle defense as to the underlying design defect. Id. at 1156. The court stated:
Warning the government of dangers arising from a specific design--the third condition of Boyle --does not encompass or state a failure to warn claim; it simply encourages contractors to provide the government with all the information required to soundly exercise its discretion. "By contrast, tort law duties to warn accomplish an entirely different objective of helping those who use or otherwise come into contact with a product to protect their own safety."
Id. (quoting N.Y. Asbestos, 897 F.2d at 632).
Plaintiffs urge the Court to follow the first line of cases, while defendant contends that Tate should apply. The Court finds that the cases cited by plaintiffs are incompatible with Carley. In Carley, the Third Circuit made clear that the government contractor defense applies if the government either promulgates or approves of reasonably precise specifications. Hawaii Federal Asbestos, N.Y. Asbestos, and Dorse all require specific warnings or prohibitions of warnings before the defense will apply. See, e.g., N.Y. Asbestos, 897 F.2d at 632 ("Stripped to its essentials, the military contractor's defense under Boyle is to claim, 'The Government made me do it.'"). Because these cases are incompatible with Carley, and because the Court does not believe that the Third Circuit would modify Carley in failure to warn claims, we will not follow this route.
Furthermore, while defendant urges the Court to follow Tate, the Court finds that a line of cases from the Fifth Circuit involving the government contractor defense and failure to warn claims is more instructive. First, in Smith v. Xerox Corp., 866 F.2d 135 (5th Cir. 1989), the court affirmed a grant of summary judgment on a failure to warn claim without discussion where it also affirmed a grant of summary judgment on the underlying design defect claim. In affirming summary judgment on the design defect claim, the court found that the product at issue conformed to "reasonably precise specifications" because the government had supplied specifications regarding the feature at issue and reviewed and approved the final drawings and specifications for the product. 866 F.2d at 138 (emphasis in original).
Next, in Stout, the court was again faced with a failure to warn claim premised upon an alleged design defect. In addressing the third prong of Boyle as applied to the design defect claim, the court noted that the contractor "only had the duty to warn the government of dangers of which the government had no knowledge." 933 F.2d at 336. In a concluding footnote, the court pointed out that the plaintiff did "not contend that his failure to warn claim can survive the government contractor defense if his design claim does not." Id. at 337 n.2. While the plaintiff did cite N.Y. Asbestos, he did so "only to support his argument that [the contractor's] summary judgment evidence did not meet Boyle 's third prong as a matter of law." Id. The court therefore declined to address any "alleged conflict" between its Smith opinion and the Second Circuit's holding in N.Y. Asbestos.
Finally, in Bailey, the plaintiff did not challenge the disposition of her failure to warn claim. 989 F.2d at 797. However, in that case, the court made clear that the first element of Boyle, reasonably precise specifications, applies only to "the particular feature of the product claimed to be defective." Id. at 799 (emphasis in original). Furthermore, in distinguishing a design defect claim from a manufacturing defect claim, the court noted that the term "design defect," as used in cases under Boyle, in effect refers to "a defect in the government specifications." Id. at 801 (emphasis in original).
Smith, Stout, and Bailey all involved cases where a plaintiff brought a failure to warn claim premised solely on a manufacturer's failure to warn of an alleged design defect claim. Furthermore, in all the cases, the plaintiff also brought an underlying design defect claim. While not stated expressly, these cases may be read as standing for the proposition that, where the manufacturer has established a Boyle defense as to the design defect, and the relevant specifications are silent as to warnings, Boyle bars the failure to warn claim as well.
The Court believes that this approach is most consonant with Carley. As a general principle of law, a failure to warn is a defect in the design of the product. See, e.g., W. Page Keeton, Prosser and Keeton on Torts § 99(2) at 697 (5th ed. 1984). See also Anzalone, 1995 WL 447377, at *8 ("We have recognized the parallel between the duty to provide a safe product with adequate warnings and the duty to provide a product that is safely designed"); Coffman v. Keene Corp., 133 N.J. 581, 593-94, 628 A.2d 710 (1993) ("In a failure-to-warn case, the alleged product defect is not a flaw in the structure or design of the product itself. Rather, the defect is the absence of a warning to unsuspecting users that the product can potentially cause injury."). Furthermore, in some jurisdictions, including New Jersey, a failure to warn claim requires proof of the same elements as a design defect claim. Coffman, 133 N.J. at 594. Therefore, a defendant may meet the first prong of Boyle on such a claim if it shows that it and the government engaged in a "continuous back and forth" as to the product feature containing the alleged design defect, and that this back and forth resulted in a government-approved specification that did not include warnings. This approach preserves the important point in Carley that, "it is necessary only that the government approve, rather than create, the specification." 991 F.2d at 1125.
The Court notes that in jurisdictions such as New Jersey, where a failure to warn may simply be based on a design defect, any other approach would effectively eliminate the government contractor defense in failure to warn cases. Where the contractor and the government have equal knowledge regarding an alleged defect, as they must to meet the third prong of Boyle, a specification that does not require warnings should be treated as the equivalent of a specification that warnings are not required. Otherwise, the contractor will be liable for the failure to warn of the design defect, and therefore effectively liable for the design defect itself, unless the specifications prohibit warnings. We do not believe that a contractor must, in order to enjoy the protection of Boyle, negotiate with the government for a clause that affirmatively excludes warnings. Where the contractor and government have equal knowledge of the risk of injury, and the government approves a reasonably precise specification that includes no warnings, Boyle should apply.
We note that a contractor will not always succeed in establishing a Boyle defense on a failure to warn claim where it does so on a design defect claim. For example, specifications may encompass both the actual design of the product and warnings, and the product may conform to these specifications while the warnings may not. In such a case, the contract will have established the second element of Boyle as to the design defect claim but not the failure to warn claim. Of course, if the contractor has undisclosed knowledge regarding the risk of injury from the product, it will fail on the third prong of Boyle as to both claims. However, in a case such as this, where the contractor and government have equal knowledge regarding the risk of injury and the contractor builds the product in accordance with reasonably precise specifications that do not require warnings, we find that the contractor has established a Boyle defense as to both the design defect and the failure to warn claims.
Defendant's motion for summary judgment, based on the government contractor defense, will be granted both on plaintiffs' design defect and failure to warn claims. An appropriate order will enter on even date herewith.
Joseph E. Irenas
DATED: April 10th, 1996