                                    United States Court of Appeals,

                                              Fifth Circuit.

                                              No. 92-2184.

 Penny BAILEY, Individually and as Next Friend of Elizabeth Bailey and Bryan Bailey, Minors,
and as Personal Representative of the Estate of John Bailey, Deceased, Plaintiffs-Appellants,

                                                    v.

                  McDONNELL DOUGLAS CORPORATION, Defendant-Appellee.

                                             April 29, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before DUHÉ and BARKSDALE, Circuit Judges, and HUNTER, Senior District Judge.1

          BARKSDALE, Circuit Judge:

          At issue in this second appeal of this Texas product liability action is the effect of the

government contractor defense, as formulated in Boyle v. United Technologies Corp., 487 U.S. 500,

108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), when claims of both manufacturing and design defects are

asserted. Penny Bailey appeals the summary judgment awarded McDonnell Douglas (M-D) in her

wrongful death action concerning an M-D aircraft. Following summary judgment for M-D based on

the go vernment contractor defense, an appeal to this court, and remand for clarification of the

summary judgment order, the district court amended that order to include Bailey's manufacturing

defect claim, as well as her design defect claim. We REVERSE as to the former.

                                                    I.

          Air Force Major John M. Bailey was killed in 1987 when his aircraft, an F-4D "Phantom II"

twin-engine jet fighter manufactured by M-D2, crashed during a "pitch-out" landing approach to

Carswell Air Force Base, near Fort Worth.3

   1
       Senior District Judge of the Western District of Louisiana, sitting by designation.
   2
       The aircraft had been delivered in 1967.
   3
     The pitch-out is a standard maneuver, in which the pilot overflies a portion of the runway then
breaks away, executing a tight, high-speed, steeply banked 360-degree turn back toward the
runway, with the aircraft descending at a relatively rapid rate. The maneuver proceeded smoothly
at first, but when the aircraft should have leveled out, it remained in a steep bank, its nose
        In February 1988, Penny Bailey, Major Bailey's wife, sued M-D under Texas law for wrongful

death, claiming strict liability for, and negligence in, the design, manufacture, and sale of a defective

product, and the failure to warn of dangers associated with that product. Throughout the litigation,

it was undisputed that the crash was caused, at least in part, by a failure in the bellows assembly in

the aircraft's longitudinal feel trim system, which relates to control of the aircraft's "pitch", or nose

up/nose down movement.4 Bailey's theory of liability was that a defect in the metallurgic content of

the bellows canister caused a loss of bellows pressure during the flight; that Major Bailey's response

to the resulting "heavy stick" sensation was to "over control" the aircraft with a number of rapid

movements on the control stick; and that the rapid stick inputs caused the controls to "lock" with

the plane in a nose-down position. The alleged tendency of the controls to lock formed the basis of

the design defect claim, and the alleged metallurgic defect in the bellows canister formed the basis of

the manufacturing defect claim. M-D denied that the controls had locked, and asserted that the

bellows failure was caused by careless maintenance of the system by Air Force personnel, not by any

product defect.

        In November 1989, after extensive discovery, M-D moved for summary judgment, contending

that the basis of Bailey's theory of liability had eroded when the two Air Force investigators who had

studied the remains of the flight control system recanted their "imprecise" use of the term "lock" in

their report to describe what happened to the controls. Bailey contested this, and also presented the

affidavit of her expert, Dr. Paul Packman, who articulated the theory of manufacturing defect, based

upon his observation of an unusual crack in the remains of the bellows canister. Although, as noted,

the complaint contained a manufacturing defect claim, this was the first time that the manufacturing

defect theory was articulated.


continuing to drop as it rapidly lost altitude, and ultimately crashed.
   4
     Because of the size and weight of the F-4D, a pilot cannot adequately control it by manual
means. Therefore, it is controlled by hydraulic power, which removes the pilot's sense of feel as
he grasps the control stick. The feel trim system is designed to simulate the forces a pilot would
feel if he were controlling the plane manually. It is operated by a bellows system that uses air
pressure differentials to transmit the artificial "feel" to the pilot's hand. It is undisputed that the
accident was caused, at least in part, by a loss of bellows pressure in the longitudinal section of
the feel trim system.
          M-D moved to strike Dr. Packman's affidavit, contending that it untimely introduced a new

theory of liability. While that motion was pending, Dr. Packman retreated from his position, at least

somewhat, when the results of a metallurgic examination of the bellows components conflicted with

his theory.5 Ultimately, in August 1990, the district court denied M-D's motion to strike the affidavit,

and also denied summary judgment, citing a genuine issue of material fact.

          Shortly before those rulings, M-D filed a second motion for summary judgment (which

eventually gave rise to this appeal), relying on the government contractor defense. In its supporting

memorandum, it discussed only the control system's alleged tendency to lock, although, as noted, the

metallurgic defect theory had already surfaced. Likewise, despite M-D's prayer that all claims be

dismissed with prejudice, Bailey made no mention of the metallurgic defect theory in opposing the

motion. In response, Bailey did, however, incorporate, inter alia, the discovery materials and

affidavits in the record. In January 1991, the district court granted the motion and dismissed the case.

          Bailey appealed, conceding that her design defect claim was properly dismissed, but

contending that her manufacturing defect claim was not.6 In late 1991, our court affirmed summary

judgment on the government contractor defense and the design defect claim, but vacated and

remanded for further consideration of the manufacturing defect issue, stating that it was unclear

whether the district court had intended to dismiss that claim. Bailey v. McDonnell Douglas Corp.,

947 F.2d 1486 (5th Cir. Oct. 21, 1991) (unpublished).

          In January 1992, the district court heard oral argument, then amended its prior order to

include that claim in the summary judgment. This appeal springs from that order.

                                                    II.

           The government contractor defense, as formulated in 1988 by the Supreme Court in Boyle,


   5
    The parties dispute the extent to which Dr. Packman abandoned his theory. Although he
admitted that there was no evidence of a metallurgic defect in the area of the suspicious crack, he
retained some suspicion about the cause of the bellows leak and wanted to "finish off that last five
percent" of his investigation. It is unclear whether he still suspected some type of manufacturing
defect. At oral argument in our court, Bailey reiterated that her manufacturing defect claim was
based on the theory of metallurgic defect in the canister.
   6
       Bailey has not challenged the disposition of her failure to warn claim.
generally immunizes government contractors from civil liability arising out of the performance of

federal procurement contracts. 487 U.S. at 505-06, 108 S.Ct. at 2515. It is a federal common law

doctrine whereby state law is preempted in certain situations because it presents a "significant

conflict" with identifiable federal interests. Id. at 507, 108 S.Ct. at 2516. Specifically, it is designed

to protect the exercise of discretion by government officers in "the selection of the appropriate design

for military equipment to be used by our Armed Forces". Id. at 511, 108 S.Ct. at 2518.

        The defense stems from the immunity enjoyed by the United States from claims based on the

performance of so-called "discretionary functions", pursuant to the Federal Tort Claims Act (FTCA),

28 U.S.C. § 2680(a).7 Boyle, 487 U.S. at 511, 108 S.Ct. at 2518. The rationale behind the defense

is that, in its absence, the financial burden of liability judgments against government contractors

ultimately would be passed through to the United States. Id. at 511-12, 108 S.Ct. at 2518. As noted

in Boyle: "It makes little sense to insulate the Government against financial liability for the

[discretionary decision] that a particular feature of military equipment is necessary when the

Government produces the equipment itself, but not when it contracts for the production." Id. at 512,

108 S.Ct. at 2518.

         In order to effectuate this objective, Boyle provides that "[l]iability for design defects in

military equipment cannot be imposed, pursuant to state law, when (1) the United States approved

reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the

supplier warned the United States about the dangers in the use of the equipment that were known to

the supplier but not to the United States". Id. (emphasis added). "The first two of these conditions

assure that the suit is within the area where the policy of the "discretionary function' would be

frustrated—i.e., they assure that the design feature in question was considered by a Government

officer, and not merely by the contractor itself." Id. "The third condition is necessary because, in its

absence, the displacement of state tort law would create some incentive for the manufacturer to

withhold knowledge of risks, since conveying that knowledge might disrupt the contract but


   7
   Section 2680(a) creates an exception to the consent to suit otherwise established by the
FTCA, 28 U.S.C. § 1346(b).
withholding it would produce no liability." Id.

       Of Boyle's three conditions, in issue is the second—conformity with government

specifications. As noted, the district court previously held, and our court affirmed, that M-D was

entitled to invoke the defense with respect to Bailey's design defect claim, which was based on the

control system's alleged tendency to lock. This holding included a finding that the feel trim system,

including any tendency to lock, conformed to the government's specifications (Boyle's second

condition). On remand, M-D contended that this finding of conformity on the design defect claim

compelled a like ruling on the manufacturing defect claim. Bailey countered by contending first, that

the Packman affidavit established a material fact issue as to a manufacturing defect8; and second,

that, in any event, because the government contractor defense applies only to design defect claims,

the summary judgment motion did not implicate the manufacturing defect claim.

       In ruling, the district court stated that Bailey "fail[ed] ... to articulate the precise nature of the

manufacturing defect", and that her only "theory of the case [was] that a defect in the design of the

feel trim system ... caused the ... lock and that this occurrence" caused the crash. It then agreed with

M-D, and reasoned that its prior finding that "the aircraft conformed to those specifications"

necessarily precluded the existence of a manufacturing defect. It concluded:

               Because the Court previously determined, and the Court of Appeals affirmed, that no
       fact questions exist concerning whet her the plane conformed to the Government's design
       specifications, the Court is of the opinion that the manufacturing defect question has been
       resolved. As stated by the Eleventh Circuit Court of Appeals:

               To say that a product failed to conform to specifications is just another way of saying
               that it was defectively manufactured.

       Harduvel v. General Dynamics Corp., 878 F.2d 1311 (11th Cir.198[9] ) [, cert. denied, 494
       U.S. 1030, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990) ].

In relying on the statement from Harduvel (quoted by our court in Mitchell v. Lone Star Ammunition,

Inc., 913 F.2d 242, 247 (5th Cir.1990)), the district court apparently assumed that the converse must

also be true—i.e., that a claim of manufacturing defect is equivalent to an allegation that the

equipment failed to conform to specifications. In the district court's apparent estimation, therefore,

   8
    Bailey also made reference to other possible manufacturing defects that Dr. Packman might
address. Obviously, the district court could consider only material in the record.
the question of conformity with specifications could never be divorced from the question of

manufacturing defect.

        Thus, the district court did not apply the defense to Bailey's manufacturing defect claim. In

fact, as noted, the theory supporting it was not really argued. After stating that there was a genuine

issue of material fact on the manufacturing defect, Bailey contended that the motion did not apply to

that defect. The district court simply used the finding of conformity—made while considering only

the design defect theory—to preclude the existence of any manufacturing defect. We address that

ruling first.

        After reviewing that ruling, we face two other related—and principal—issues: (1) whether

Bailey's labeling her claim as one for a manufacturing defect precludes, per se, application of the

government contractor defense; and (2) if not, and in light of the fact that the district court did not

rule on whether there was a material fact issue regarding the manufacturing defect claim, whether

summary judgment was nonetheless appropriate because Bailey failed to properly present her

manufacturing defect theory in opposition to the motion. As always, we review an award of summary

judgment de novo, using the same standards as are applied by a district court. E.g., Solomon v.

Walgreen Co., 975 F.2d 1086, 1089 (5th Cir.1992).

                                                   A.

        As stated, before reaching the two principal issues, we address the district court's broad ruling

that a manufacturing defect claim is equivalent to asserting that the item failed to conform to

specifications. We hold that, for two reasons, it erred.

          First, it is possible to have an allegedly defective feature about which the government

specifications are silent. For example, if the government specifications regarding the bellows canister

did not specify the type or quality of metal to be used, a metallurgic defect in the canister would not

be inconsistent with a finding that the canister conformed to specifications.9

   9
    We note that if a court were applying the defense to a claim based upon such a feature (which
the district court did not do), Boyle's first condition—reasonably precise specifications—would
probably be in issue with respect to that feature. E.g., Trevino v. General Dynamics Corp., 865
F.2d 1474, 1486 (5th Cir.) (first condition lacking where government specifications set only
general performance standards for a submarine hangar diving chamber, and were "silent" on
        Second, Boyle makes clear that the requirements of "reasonably precise specifications" and

conformity with them refer to the particular feature of the product claimed to be defective. 487 U.S.

at 512, 108 S.Ct. at 2518 (the first two conditions address "the design feature in question") (emphasis

added); see also Trevino v. General Dynamics Corp., 865 F.2d 1474, 1486 (5th Cir.1989) (Boyle

protects government contractors from liability only where "discretion over the design feature in

question was exercised by the government") (emphasis added).10 Here, there were two allegedly

defective features—the control system's tendency to lock and the bellows canister's metallurgic

content. M-D's evidence in support of its motion established only that the first feature conformed to

government specifications. No evidence was introduced to support a finding that the canister's

metallurgic content conformed with government specifications. The scope of the district court's

finding, therefore, is limited to the particular feature in issue when it was made, notwithstanding its

broad wording to the contrary.11

                                                  B.

        We next consider whether the manufacturing defect label precludes, per se, application of

the defense; and, if not, and even though the district court did not determine whether there was an

issue of material fact, whether summary judgment was nonetheless appropriate because Bailey failed


precise location of allegedly defective vent valve and safety devices), cert. denied, 493 U.S. 935,
110 S.Ct. 327, 107 L.Ed.2d 317 (1989).

                In Boyle, the Court explained this situation as one in which "the [state law] duty
        sought to be imposed on the contractor is not identical to one assumed under the contract,
        but is also not contrary to any assumed". 487 U.S. at 509, 108 S.Ct. at 2517. "If, for
        example, the United States contracts for ... an air conditioning-unit, specifying the cooling
        capacity but not the precise manner of construction, a state law imposing ... a duty of care
        to include a certain safety feature would not be a duty identical to anything promised the
        Government, but neither would it be contrary". Id. In that case, "[t]he contractor could
        comply with both.... No one suggests that state law would generally be pre-empted in this
        context". Id.
   10
     This principle clarifies the statement: "[t]o say that a product fails to conform to
specifications is just another way of saying that it was defectively manufactured". Mitchell, 913
F.2d at 247. Obviously, not all deviations from specifications will constitute defective (i.e.,
unreasonably dangerous) conditions. This statement logically refers, therefore, only to the
particular deviation that is alleged to be defective.
   11
     Naturally, had both features been better presented to the district court before the motion was
decided, this problem would not have arisen.
to present adequate evidentiary support for her theory of manufacturing defect in opposition to M-D's

motion.12 Asserting here, as she did to the district court on remand, that, as a matter of law, the

defense can apply only to "design defect" claims, Bailey maintains that she had no burden to present

her manufacturing defect theory in opposition to M-D's motion, in spite of M-D's prayer that all

claims be dismissed. Initially, we note that, although Boyle involved only a design defect claim, the

Court did not indicate whether the defense was limited to that situation.13

                                                   1.

          We first must determine whether the "manufacturing defect" label on Bailey's claim precludes,

per se, application of the government contractor defense to it. On first glance, our court's decisions

regarding the scope o f the defense may seem inconsistent. In McGonigal v. Gearhart Industries,

Inc., 851 F.2d 774 (5th Cir.1988), we stated: "it remains the law of this Circuit [after Boyle ] that

military contractor immunity does not apply in cases of defective manufacture: "federal law provides

no defense to the military contractor that mismanufactures military equipment' ". Id. at 777 (quoting

Bynum v. FMC Corp., 770 F.2d 556, 573 n. 21 & 574 (5th Cir.1985)). In Trevino, 865 F.2d at 1481

n. 6, we reiterated: "[a] manufacturer is liable for manufacturing defects no matter who designed or

approved the specifications". Likewise, in Mitchell, 913 F.2d at 246-47 & n. 9, we rejected an

argument that the defense applied to a manufacturing defect resulting from the government's design

of the manufacturing process, st ating that this would "extend the defense unnecessarily".

Furthermore, in Skyline Air Service, Inc., v. G. L. Capps Co., 916 F.2d 977, 980 (5th Cir.1990), we

stated that manufacturing defect claims are "arguably not covered by the [defense]". (Emphasis

added.)

          In contrast to these statements, however, we stated in Smith v. Xerox Corp., 866 F.2d 135,


   12
     As she did in district court at the remand hearing, Bailey contends that Dr. Packman's
affidavit did present a genuine issue of material fact, even after his subsequent retreat. For the
reasons discussed infra, we need not reach this issue and instead assume, without deciding, that
the affidavit did not create a genuine issue of material fact.
   13
      For the reasons explained infra, we interpret Boyle's statement that the defense bars
"[l]iability for design defects ", 487 U.S. at 512, 108 S.Ct. at 2518 (emphasis added), to mean
liability for defects in the government specifications.
137 (5th Cir.1989), handed down by a different panel on the same day as Trevino, that "Boyle ... held

that the government contractor defense applies to both negligence and strict liability actions, as well

as to other state law tort claims". We then affirmed a summary judgment based on the defense that

dismissed all claims, including manufacturing defect, design defect, failure to warn, and breach of

warranty. Id. at 141.

        After carefully reviewing these and other cases, we conclude that the seeming inconsistencies

stem from uses of the term "manufacturing defect", instead of nonconformity with government

specifications, and the term "design defect", instead of a defect in the government specifications.14

Although usually there will be no significant difference between these terms and the intended

meanings, that will not always be the case. As explained above, a manufacturing defect is not

necessarily equivalent to nonconformity with government specifications, because those specifications

may be silent about some features, making possible the existence of a manufacturing defect in spite

of conformity with the specifications. Likewise, such silence in the specifications may leave room for

design discretion by the manufacturer, making possible the existence of a design defect in spite of

conformity with the government specifications.15

        Furthermore, the denomination of a claim as one of "manufacturing defect" or "design defect"

is a matter of state law, which varies by state. In Harduvel, for example, the Eleventh Circuit was

faced with a presumption under Florida law that "where a product is destroyed in an accident, and

the plaintiff presents evidence to negate possible causes other than a product defect, an inference of

manufacturing defect arises". 878 F.2d at 1317. Thus, although the alleged defect was one inherent

in the government specifications, the plaintiff's recovery was for manufacturing defect because the

aircraft was almost completely destroyed.

         Because of such peculiarities in state law, the Harduvel court held that the state law


   14
    Throughout this opinion, we use the term "government specifications" rather than
"government designs" to avoid further confusion over terminology.
   15
     Again, we note that where the government specifications are silent with respect to the
particular feature in issue, Boyle's first condition—government approved reasonably precise
specifications—would probably be in issue if the defense were applied to that feature.
denomination of a claim as one of "design" or "manufacturing" defect could not govern the

applicability of the government contractor defense. Id. It explained: "[w]ere this not so, state law

could operate either to defeat the defense or to expand it improperly, and the defense could not be

applied with the uniformity that is a key justification for application of federal common law". Id. It

concluded that, despite its state law label, the claim was for a design defect for purposes of federal

law, precluding recovery.

        We agree with the Eleventh Circuit that whether the defense will apply cannot be determined

by the label attached to the claim. Strict adherence to the three Boyle conditions specifically tailored

for the purpose will ensure that the defense is limited to appropriate claims. In evaluating an assertion

of the defense, therefore, the state law label on the claim(s) sought to be dismissed is irrelevant.

        Upon closer analysis, our prior decisions are consistent with this principle. In McGonigal,

for example, despite the above-quoted statement and the fact that the only theory presented was

negligent manufacture, we proceeded to determine that the government contractor defense did not

apply because Boyle's second condition was not met. 851 F.2d at 777. Likewise, in Mitchell, despite

our rejection of the above-mentioned argument, we held that the defense did not apply because the

jury found that the defective mortar shell failed to conform to the government specifications. 913

F.2d at 248. Additionally, when read in context, it is clear that our use of the term "manufacturing

defect" in the above-quoted statement from Trevino refers simply to a failure to meet Boyle's second

condition. 865 F.2d at 1481 n. 6 ("the second element functions [in part] to remove the government

contractor defense for manufacturing defects"). Finally, in Smith, we stated that summary judgment

on the manufacturing defect claim was proper, based on Boyle's second prong. 866 F.2d at 139.

        In sum, the government contractor defense does not necessarily apply only to claims labeled

"design defect". Whether it will apply to a particular claim depends only upon whether Boyle's three

conditions are met with respect to the particular product feature upon which the claim is based.16

As stated by the Supreme Court, those conditions are designed to assure that the defense will apply

   16
     This means, of course, that in cases involving allegations of multiple defective features,
summary judgment may not be appropriate if the defense applies to only some of those features,
unless it is clear which features relate to which claims.
only where the discretionary function policy behind it would be frustrated. Bailey's contention that

M-D's motion necessarily related only to her design defect claim, therefore, lacks merit.

                                                   2.

        Having determined that M-D's motion based on the defense was not necessarily limited to

Bailey's design defect claim, we must determine whether M-D established entitlement to summary

judgment with respect to the manufacturing defect claim. As noted, in its order on remand, the

district court stated that Bailey "fail[ed] to articulate the precise nature of the manufacturing defect."

But, as also noted, Bailey, at the post-remand hearing, referenced the Packman affidavit on file and

reiterated Dr. Packman's desire to further investigate the possibility of a manufacturing defect.17

        Because the government contractor defense is an affirmative one, M-D bore the burden of

proof to establish it. "Where ... the moving party [will bear] the burden of proof at trial, it must come

forward with evidence [on summary judgment] which would entitle it to a directed verdict if the

evidence went uncontroverted at trial." International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257,

1264-65 (5th Cir.1991) (internal quotation omitted), cert. denied, --- U.S. ----, 112 S.Ct. 936, 117

L.Ed.2d 107 (1992). In this situation, only after the moving party meets thi s burden must the

non-moving party produce its "significant, probative evidence". Id. at 1265 (citing Chanel, Inc. v.

Italian Activewear of Florida, Inc., 931 F.2d 1472, 1477 (11th Cir.1991)).

        Because M-D did not present evidence that the three Boyle conditions were satisfied with

respect to the metallurgic content of the bellows canister, upon which Bailey's manufacturing defect

claim was based, it did not meet its burden of proof with respect to that claim; and, therefore, the

burden did not shift to Bailey to present evidence to support her claim. In so holding, we emphasize

that the metallurgic defect theory had arisen before M-D moved for summary judgment; it is not

being held to the impossible burden of negating the possibility of yet unarticulated theories of defect.18


   17
     Additionally, the day before the hearing, Bailey submitted an affidavit by Dr. Packman to that
effect. She agrees that because it was untimely, this affidavit should not have been considered in
the district court.
   18
     As noted, for the first summary judgment motion, the district court denied M-D's motion to
strike Dr. Packman's affidavit, which articulated the theory.
                                            III.

      For the foregoing reasons, the summary judgment as to the manufacturing defect claim is

REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

      REVERSED and REMANDED.
