the MPLSM conformed to Postal Service specifications. See id. If deficiencies were discovered during the live mail test, Unisys made adjustments to the MPLSM, and a second test was conducted. See id. at P 9. At an exit conference following the completion of the live mail test, a representative of the Postal Service certified that the MPLSM had been tested and that it conformed in all material respects to the specifications. See id.
Houghtaling offers nothing to contradict Unisys' evidence that the MPLSMs which it manufactured conformed to Postal Service specifications. Therefore, on the undisputed facts, the Court finds that the MPLSMs manufactured by Unisys conformed to Postal Service specifications. Unisys has met the second requirement of the government contractor defense.
Relative States of Knowledge of the Postal Service and Unisys
In order to satisfy the third prong of the government contractor defense, Unisys must show that it warned the Postal Service about dangers associated with MPLSM use which were known to it but not to the Postal Service. Unisys presents evidence showing that, in 1970, the United Federation of Postal Clerks notified the Postal Service about hand, wrist, and arm problems experienced by MPLSM operators. See Def.'s Ex. 22. Furthermore, in 1976, NIOSH began a study of hand, wrist, and arm problems suffered by MPLSM operators, which was completed in 1981. See Def.'s Ex. 33. Finally, Postal Service officials testified at Congressional hearings in 1984 regarding repetitive stress injuries suffered by MPLSM operators. See Def.'s Ex. 30. Nothing presented by Houghtaling contradicts this showing that the Postal Service was well aware of the risks inherent in MPLSM use.
Furthermore, Unisys presents affidavit evidence which shows that several of its managerial employees involved in MPLSM production since 1964 were unaware of hazards associated with the MPLSM keyboard design. See Vogel Aff., P 14; France Aff., P 7; Okun Aff., P 13; Ross Aff., P 7; Stotler Aff., P 10; Selin Aff., P 8; Clarke Aff., P 13; Picus Aff., P 7; Tartar Aff., P 10; Lazzarotti Aff., P 18 (Def.'s Exs. 2, 7-15). In response, Houghtaling argues that the earliest study linking Carpal Tunnel Syndrome with specific design defects in the MPLSM keyboard appeared in 1984. See Def.'s Ex. 35. Furthermore, she argues that there is no evidence that the Postal Service was aware of this study or earlier studies of Carpal Tunnel Syndrome in MPLSM operators. Finally, Houghtaling contends that a 1983 paper about wrist and lower arm problems associated with traditional keyboards written by Michael Campion, a Unisys employee, shows that Unisys had knowledge of MPLSM keyboard design defects. See Lakind Aff., P 11, Tab G.
Even assuming that the Campion study, which does not mention MPLSMs, establishes that Unisys was aware of the risks associated with its MPLSM keyboard design in 1983, Houghtaling presents no evidence to counter Unisys' evidence that the Postal Service was aware of these risks well before that date. Nor does Houghtaling present any evidence that Unisys knew of dangers associated with MPLSM use before 1983. Therefore, the Court finds that Unisys did not fail to warn the Postal Service about dangers associated with MPLSM use which were known to it but not to the Postal Service. See Crespo at 34 (similar record supports conclusion that Unisys did not fail to disclose risks associated with MPLSM keyboard design that were known to it but not to the Postal Service); Russek, 921 F. Supp. at 1291 (Unisys meets third part of Boyle test and is entitled to summary judgment). Having satisfied all three prongs of the government contractor defense, Unisys is entitled to summary judgment with regard to Houghtaling's design defect claims.
Failure to Warn Claim
The Third Circuit has not yet confronted the application of the government contractor defense to failure to warn claims. Houghtaling urges the Court to adopt the view taken by the Second, Ninth, and Eleventh Circuits, which have held that the government contractor defense does not preempt a failure to warn claim unless the specifications at issue affirmatively prohibit warnings or contain specific warning requirements that significantly conflict with those required by state law. See In re Hawaii Fed. Asbestos Cases, 960 F.2d 806, 812-813 (9th Cir. 1992); In re Joint E. and S. Dist. New York Asbestos Litig., 897 F.2d 626, 630 (2d Cir. 1990); Dorse v. Eagle-Picher Indus., Inc., 898 F.2d 1487, 1489 (11th Cir. 1990).
Other courts in this district have refused to use this standard. See Crespo at 36; Pierce at 4; Russek, 921 F. Supp. at 1292-93. The Court finds the reasons set forth by the court in Crespo for rejecting this standard to be persuasive. There, the court explained that adopting this standard would "increase transaction costs by encouraging contractors to obtain contractual language from the government prohibiting them from providing any warnings not specifically required in the specifications." Crespo at 36. Furthermore, "if the contractors could not negotiate such a clause, the increased costs of their assuming the risk of adverse tort judgments would also be passed on to the government." Id. Either result would undermine the rationale of Boyle. See Boyle, 487 U.S. 500 at 507 ("The imposition of liability on Government contractors will directly affect the terms of Government contracts: either the contractor will decline to manufacture the design specified by the Government, or it will raise its price. Either way, the interests of the United States will be directly affected.")
Courts have also analyzed the problem in two other ways. Unisys argues that the Court should apply the standard adopted by the Sixth Circuit in Tate v. Boeing Helicopters, 55 F.3d 1150 (6th Cir. 1995). However, the Court need not choose between this analysis, utilized in Crespo, and that employed in Russek and Pierce, as both produce the same result.
The Tate court held that the government contractor defense applies to failure to warn claims 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.