State tort claims are pre-empted where the plaintiff’s injury is caused by the
allegedly defective design of military equipment manufactured by the
defendant pursuant to a contract with the federal government. Boyle v United
Technologies Corp., 487 U.S. 500 (1988). This case established the
government contractor defense to tort liability. The Court reasoned that
although state tort law may allow products liability claims against military
manufacturers, this is an area of uniquely federal concern, regardless of the
lack of federal legislation specifically claiming the immunity the absence. In an
effort to determine the scope of this defense, the Court stated that this pre-
emption is limited to areas of "significant conflict" between federal policy and
state law. For guidance on the extent of "significant conflict", the court applied
the discretionary function exception of the FTCA, which is to say that state law
will be pre-empted wherever it threatens a discretionary function of the federal
government. Here, the design of the allegedly defective product was a military
In sum, Boyle established that state law which imposes liability on a military
manufacturer is pre-empted when (1) the US approved reasonable precise
product specifications, (2) the equipment conformed to those specifications,
and (3) the supplier warned the US of the known dangers of using the
An important issue is whether the defense applies only to contracts with the
military, or whether it can be used by other government contractors. The
Supreme Court has employed language hinting that it may apply to all
contractors, but has never spoke directly on the issue.
See Hercules, Inc. v.
U.S., 516 U.S. 417, 421 (1996) ("The Government contractor defense . . .
shields contractors from tort liability for products manufactured for the
Government in accordance with Government specifications, if the contractor
warned the United States about any hazards known to the contractor but not
to the Government"). The lower federal courts are split on the issue.
Courts that favor applying the defense to non-military contractors include the
Western District of Wisconsin, Western District of Kentucky, District Court of
Maryland, Southern District of Mississippi, District of South Carolina, and District
Court of New Jersey. These courts apply the