LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 47
helicopter crashed off the coast of Virginia. 185
The court recognized the potential conflict
between federal interests and state tort law with respect to government procurement contracts. 186
The court examined the government contractor defense in the context of the Federal Tort Claims
Act (“FTCA”), 187 which is a consent to suit against the United States for the negligent or
wrongful conduct of Government employees, except as to those claims that are “based upon the
exercise or performance or the failure to exercise or perform a discretionary function or duty on
the part of the federal agency or an employee of the Government, whether or not the discretion
involved be abused.” 188
Accordingly, government contractors are not subject to liability “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.” 189
Perhaps the most significant requirement of this three part test in the context of NRD
actions is the United States’ approval of “reasonably precise specifications.” The United States
Supreme Court discussed the discretionary function exception in Berkovitz v. United States:
In examining the nature of the challenged conduct, a court must first consider
whether the action is a matter of choice for the acting employee. This inquiry is
mandated by the language of the exception; conduct cannot be discretionary
unless it involves an element of judgment or choice . . . Thus, the discretionary
function exception will not apply when a federal statute, regulation, or policy
specifically prescribes a course of action for an employee to follow. In this event,
the employee has no rightful option but to adhere to the directive. And if the
employee’s conduct cannot appropriately be the product of judgment or choice,
185 Id.
186 Id. at 511.
187 28 U.S.C. § 1346(b).
188 Boyle, 487 U.S. at 511 (quoting 28 U.S.C. § 2680(a)).
189 487 U.S. at 512.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM