PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HAROLD H. EMORY, JR., Individually
and as Administrator of the Estate
of Rosemary Marie Emory,
deceased,
Plaintiff-Appellant,

v.
                                                                 No. 97-2577
MCDONNELL DOUGLAS CORPORATION,
Defendant-Appellee,

and

UNITED STATES OF AMERICA,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-95-1827-CCB)

Argued: May 6, 1998

Decided: June 22, 1998

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and
BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Luttig and Senior Judge Beezer joined.

_________________________________________________________________
COUNSEL

ARGUED: Dean Elliot Swartz, SWARTZ & REED, Washington,
D.C., for Appellant. Douglas E. Winter, BRYAN CAVE, L.L.P.,
Washington, D.C., for Appellee. ON BRIEF: Robert E. Wilson,
WILSON & PARLETT, Upper Marlboro, Maryland, for Appellant.
William C. Edgar, BRYAN CAVE, L.L.P., Washington, D.C.;
Michael G. Biggers, Robert J. Dwyer, BRYAN CAVE, L.L.P., New
York, New York, for Appellee.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Rosemary Emory was killed when an F/A-18 jet fighter crashed
and slid into her truck. Appellant Harold Emory, her husband, sued
the manufacturer of the aircraft, the McDonnell Douglas Corporation
(MDC), under myriad strict liability and negligence theories. The dis-
trict court granted MDC's motion for summary judgment, holding
that the government contractor defense barred Emory's design defect
and failure to warn claims. Emory appeals only with respect to his
negligent failure to warn claim, arguing that the government contrac-
tor defense applies only to design defect claims. Because we find that
Emory has failed to satisfy the basic state-law requirements for his
failure to warn claim, we affirm the judgment of the district court.

I.

This appeal arises from an October 1, 1992 crash of an F/A-18 jet
fighter at the Patuxent River Naval Air Station (Pax River) in Mary-
land. Prior to its arrival at Pax River, the crash aircraft was kept at
the Naval Air Station at Cecil Field, Florida as a"hangar queen" --
a plane cannibalized to provide parts for the repair of other planes in
the squadron. The Navy reassembled the aircraft and transferred it to
Pax River in August 1992. In accordance with normal procedure, a
Navy maintenance crew performed an acceptance inspection of the
aircraft upon its delivery at Pax River. While conducting a flight con-
trol check during the course of that inspection, the maintenance crew

                    2
discovered a problem. The flight computer displayed codes indicating
a failure in the aircraft's flight control system (FCS).

The F/A-18's flight computer performs a variety of built-in tests
(BITs) to identify FCS failures. Periodic BITs are run automatically
by the flight computer to check limited aspects of the FCS. In addi-
tion, the flight and maintenance crews may initiate distinct BITs on
their own. For example, pilots run a preflight BIT to check the air-
craft's FCS before takeoff. The FCS failures detected by these BITs
are indicated in a number of ways, including the display of BIT Logic
Inspection (BLIN) codes and X's on the cockpit screen. BLIN codes
correspond to different types of FCS failures. When used in conjunc-
tion with the F/A-18 maintenance manuals, BLIN codes direct spe-
cific procedures for identifying and fixing FCS failures. The display
of an X on the cockpit screen indicates the failure of a computer chan-
nel connected to one of the flight control surfaces.

In this case, the BLIN codes discovered during the acceptance
inspection indicated a failure related to the aircraft's rudders. Work-
ing alongside Michael Kidder, MDC's Contract Field Service Repre-
sentative, the Navy maintenance crew attempted numerous repairs to
eliminate the BLIN codes. Despite such attempts, the BLIN codes
could not be eliminated. Neither the Navy maintenance crew nor Kid-
der could determine the cause of the codes. Yet because no X's had
appeared on the cockpit screen, and because repeated checks and
functional tests of the rudders uncovered no problems, the aircraft
was not placed in a down status. Kidder testified that, although his
final advice was to identify and fix whatever problem was causing the
BLIN codes, he did not believe the aircraft was unsafe for flight. The
Navy too concluded the aircraft was safe to fly and thereafter flew it
in approximately ten missions.

On October 1, 1992, the aircraft was assigned to another mission.
Major Douglas Yurovich and Lieutenant Colonel Troy Pennington
served as the pilot and copilot respectively of the crash aircraft that
day. Sometime before takeoff, the cockpit screen displayed X's and
BLIN codes with respect to the aircraft's rudders. Yurovich
responded by activating the FCS reset to clear the displays. Because
the X's and BLIN codes did not reappear, the pilots decided the plane
was safe to fly and took off.

                    3
Almost immediately upon leaving the ground, however, the X's
reappeared. The aircraft simultaneously experienced a mild left yaw
-- a side-to-side, fishtailing movement. Yurovich gained control of
the aircraft and then reset the FCS. The response seemed successful,
as the flight proceeded without incident for a period of between forty-
five and eighty minutes. At that point, though, the X's and BLIN
codes reappeared and the aircraft experienced another mild yaw.
Yurovich again activated the FCS reset, but the X's and BLIN codes
returned. In light of these repeated indicators of FCS failures,
Yurovich and Pennington decided to discontinue the mission and to
return to Pax River.

As the aircraft approached the runway, it experienced yet another
yaw. Fearing a potentially fatal crash landing, Yurovich aborted the
approach, reset the FCS, and began to prepare a second landing
attempt. Soon thereafter, however, the aircraft experienced a signifi-
cant yaw, rolled to the right, and pitched down. Believing a crash to
now be a certainty, Pennington pulled his ejection handle, causing
both himself and Yurovich to eject safely. Sadly, however, the aircraft
crashed and slid into Mrs. Emory's truck, resulting in her death.

Mr. Emory filed this suit on behalf of himself and as the adminis-
trator of his wife's estate. Emory sued the United States and MDC,
stating a negligence claim against the government and both negli-
gence and strict liability claims against the contractor. The United
States settled its claims with Emory for $800,000. The district court
later granted MDC's motion for summary judgment, finding that the
government contractor defense barred both Emory's design defect and
failure to warn claims. The district court also concluded that Emory's
manufacturing defect claims were not supported by the evidence.
Emory now appeals only the dismissal of his negligent failure to warn
claim.

II.

The district court dismissed Emory's negligent failure to warn
claim on the basis of the government contractor defense recognized
in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Emory
claims that dismissal on this ground was error. He argues that Boyle
bars only a design defect claim and that the defense adopted in that

                    4
decision should be held inapplicable to a failure to warn claim. While
it is true that the Court in Boyle adopted the government contractor
defense in the design defect context, many circuits have since held
that the defense should also apply to failure to warn claims. See, e.g.,
Tate v. Boeing Helicopters (Tate II), 140 F.3d 654 (6th Cir. 1998);
Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 749-50 (9th Cir.
1997); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003-04 (7th Cir.
1996), cert. denied, 117 S. Ct. 1246 (1997); Butler v. Ingalls Ship-
building, Inc., 89 F.3d 582, 586 (9th Cir. 1996); Perez v. Lockheed
Corp. (In re Air Disaster at Ramstein Air Base), 81 F.3d 570, 576
(5th Cir.), modified on other grounds, 88 F.3d 340 (5th Cir.) (per
curiam), cert. denied, 117 S. Ct. 583 (1996); Tate v. Boeing Helicop-
ters (Tate I), 55 F.3d 1150, 1156-58 (6th Cir. 1995); In re Joint E. &
S. Dist. N.Y. Asbestos Litig., 897 F.2d 626, 629-30 (2d Cir. 1990).
While we find these decisions to be reasoned soundly, we hold that
Emory's claim founders on an even more fundamental point -- the
failure to satisfy the basic state-law requirements of his negligence
claim.

Under Maryland law,* a manufacturer has no duty to warn of an
open and obvious danger in its product. Mazda Motor Co. of Amer.,
Inc. v. Rogowski, 659 A.2d 391, 395 (Md. Ct. Spec. App. 1995);
Nicholson v. Yamaha Motor Co., Ltd., 566 A.2d 135, 145 (Md. Ct.
Spec. App. 1989). Of course the question of whether a danger is open
and obvious cannot be analyzed in a vacuum. Rather, the determina-
tion turns on the expected user's knowledge of that product: "Whether
there is a duty to warn and the adequacy of warnings given must be
evaluated in connection with the knowledge and expertise of those
who may reasonably be expected to use or otherwise come into con-
tact with the product . . . ." Mazda, 659 A.2d at 395 (quoting 1 Ameri-
can Law Product Liability 3d § 32:61 (1987)); see also W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 96, at 686-
_________________________________________________________________
*As Emory filed his suit in the United States District Court for the
District of Maryland, we follow Maryland's choice of law rules. Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Maryland fol-
lows the lex loci delictus principle in determining which jurisdiction's
law applies to tort actions. Chambco v. Urban Masonry Corp., 659 A.2d
297, 299 (Md. 1995). Maryland law applies because the site of the crash
was in Maryland.

                    5
87 (5th ed. 1984) ("[C]ourts have usually meant by `obvious danger'
a condition that would ordinarily be seen and the danger of which
would ordinarily be appreciated by those who would be expected to
use the product.") (emphasis added). Accordingly, if the expected
user possesses extensive knowledge about the relevant product, it is
difficult to establish a duty to warn on the part of the manufacturer.
Under Maryland law, "a manufacturer or supplier has no duty to warn
if the hazard is one of which the plaintiff or other user has equal
knowledge . . . . The duty to warn extends only to those who can rea-
sonably be assumed to be ignorant of the danger." Mazda, 659 A.2d
at 395 (quoting 1 American Law Product Liability 3d§ 32:61 (1987)
(footnotes omitted)).

This elementary principle controls this case. Emory asserts that
MDC's on-site representative, Michael Kidder, knew the crash air-
craft was unsafe and yet failed to alert the Navy of this fact. To estab-
lish that MDC had a duty to warn the Navy, however, Emory must
prove that the Navy could "reasonably be assumed to be ignorant" of
the dangers present in the aircraft. The evidence submitted to the dis-
trict court, however, establishes convincingly that the Navy had
extensive knowledge of the hazards associated with the F/A-18 air-
craft.

Initially, at a general level, the Navy played a significant and
instrumental role in the design and production of the F/A-18. We have
previously recognized "the Navy's extensive participation" in the
F/A-18's evolution, concluding specifically that"the Navy was inti-
mately involved at various stages of the design and development pro-
cess." Kleemann v. McDonnell Douglas Corp. , 890 F.2d 698, 701
(4th Cir. 1989). In that case, we noted that the final design contract
issued by the Navy to MDC incorporated the company's original
specifications as well as modifications agreed upon through extensive
negotiations between the parties. During the F/A-18's development,
the Navy required MDC to submit detailed drawings at each stage.
MDC could implement changes to the F/A-18's design only with the
Navy's approval. The Navy even maintained representatives at
MDC's facilities in St. Louis throughout the F/A-18 design and pro-
duction phases. Id.

The Navy's active involvement is also amply demonstrated by the
record in this case. The evidence confirms that the Navy required

                     6
MDC to submit detailed drawings of the aircraft's FCS, as well as
FCS failure analysis reports. MDC was obligated to apprise the Navy
of the specifications defining each individual component of the FCS.
The record also reveals that the Navy's review of MDC's submissions
was careful and detailed, as the Navy commented on and regularly
identified desired changes in the FCS. Finally, the Navy and MDC
conducted extensive tests on eleven F/A-18 aircraft-- including the
FCS of each -- at Pax River between 1979 and 1981. The Navy then
performed its own tests and evaluations of the FCS. In sum, the
Navy's substantial participation in the aircraft's design and develop-
ment demonstrates that it was hardly a party who could reasonably be
assumed to be ignorant of the F/A-18's potential dangers. In a similar
case the Fifth Circuit, applying principles of Georgia tort law, con-
cluded that the Air Force's involvement in the C-5A project negated
the existence of a duty to warn on the part of the government contrac-
tor there. See Perez, 88 F.3d at 341 ("[T]he Air Force was so involved
in the C-5A project it knew about the danger -- if any -- inherent
in the circuit design. Therefore, the defendants did not have a duty to
warn the Air Force.").

The evidence submitted to the district court also makes clear that
the Navy had specific knowledge of possible FCS failures and the
precautions and responses that should accordingly be taken. Just as
the Navy participated extensively in the F/A-18's design and produc-
tion, it also worked closely with MDC in the development of the man-
uals designed for use in connection with the aircraft. The Naval
Aviation Training and Operations Standardization (NATOPS) Manual
contains information on ground and flight procedures for the F/A-18
and is issued to all air crews. F/A-18 maintenance manuals outline
procedures for the troubleshooting and repair of the aircraft. Although
MDC prepared the initial drafts of both the NATOPS and mainte-
nance manuals, the Navy subjected all of the manuals to a rigorous
validation process. Since the manuals were first developed, the Navy
has retained complete control over their text. Naval officers who note
a deficiency in the NATOPS manual are obliged to bring it to the
attention of the manual's manager. The Navy also continually recon-
firms the accuracy and sufficiency of the maintenance manuals.

The Navy's involvement in the development and constant revision
of these manuals again reveals its knowledge of the potential dangers

                    7
associated with the F/A-18's use. The Navy's own maintenance man-
uals in use at the time of the crash explained that BLIN codes signi-
fied FCS failures. With respect to the specific BLIN codes discovered
during the acceptance inspection of the crash aircraft, the Navy main-
tenance manuals directed the Navy to check the cross channel discrete
wires and connector pins. The codes also signaled to the Navy that a
functional test of the rudders should be performed by the maintenance
crew. The presence of such information in the Navy's own manuals
demonstrates that it had considerable knowledge concerning the FCS
problems ultimately encountered on the crash aircraft. Indeed, the
Navy manuals themselves contain a plethora of warnings that pertain
to plaintiff's allegations in this case.

Just as telling is the history of the Navy's involvement with the
NATOPS Manual's instructions concerning preflight procedures. The
1981 preliminary NATOPS manual contained a requirement that each
flight crew conduct a successful BIT -- one that does not result in the
display of X's or BLIN codes -- before takeoff. Although this
requirement was removed later that year, MDC recommended at a
1983 NATOPS review conference that the requirement be reinstated
to the manual. The Navy agreed and incorporated a similar recom-
mendation once again as part of the NATOPS manual's required pre-
flight procedure. But in 1984 the Navy reversed course again and
removed the requirement. This history shows that the Navy was well
aware of another of the very hazards ultimately experienced with the
crash aircraft in this case.

In light of the overwhelming evidence of the Navy's knowledge of
the F/A-18 generally, and its plain awareness of potential FCS fail-
ures specifically, we find that the Navy could not reasonably be
assumed to be ignorant of the dangers associated with the crash air-
craft. Accordingly, we hold that Emory has failed to establish that
MDC had a duty to warn the Navy of potential hazards making the
crash aircraft unsafe for flight.

Emory contends, however, that we must focus on what the Navy
actually knew about the crash aircraft in this case. He asserts, without
elaboration, that the Navy was unaware of dangers known only to
MDC that made the crash aircraft unsafe for flight. Emory thus main-
tains that because the Navy did not know the plane was unsafe to fly,

                    8
MDC did bear a duty to warn. We disagree. The determination of
whether a danger is obvious to an expected user is an objective one.
We do not inquire whether the user in the case before us had actual
knowledge of the danger identified in the plaintiff's pleadings. As the
Maryland courts have explained, "The question is not whether the
particular plaintiff actually foresaw the potential danger but whether
the danger was sufficiently evident that a reasonable buyer in the
plaintiff's position would have foreseen it." Nicholson, 566 A.2d at
145. The user here, the Navy, occupied a unique position. It not only
participated in the design and development of the product it purchased
and used, but it also played an instrumental role in the creation and
revision of procedures for use and repair of that product. In sum, the
Navy's actual knowledge is irrelevant; we can confidently conclude
that a reasonable buyer in the Navy's position would be assumed to
be aware of such dangers.

Moreover, Emory cannot maintain a claim that MDC failed to warn
the particular pilots about the unsafe condition of the crash aircraft.
As the district court noted, "nothing in the case law suggests that a
military contractor is responsible for directly warning the individual
military personnel who fly the planes under military command."
Under Maryland's sophisticated user defense, a supplier is not negli-
gent when it relies on an intermediary "already well aware of the dan-
ger" to relay any necessary warning. Eagle-Picher Indus., Inc. v.
Balbos, 604 A.2d 445, 463-65 (Md. 1992). Indeed, when the Navy
possesses the same knowledge as its contractor, a requirement that the
contractor provide additional warnings to individual pilots risks dis-
ruption of the chain of command. A contractor cannot be forced to
provide warnings to officers that would contradict orders received
from their superiors. When, as here, the Navy examines and decides
upon the content of specific warnings, the requirement of further
warnings to particular pilots presents a real conflict with -- and seri-
ously undermines -- the Navy's structure of command. The district
court therefore correctly concluded that "whether or how those warn-
ings are conveyed to individual Naval officers under military com-
mand seems beyond the scope of any duty appropriate to impose on
the contractor."

The settled grounds of state products liability law thus suffice to
protect the precise federal interest identified by the Supreme Court in

                    9
Boyle -- the government's ability to make discretionary decisions
about military defense. See Boyle, 487 U.S. at 511. The government's
capacity to exercise its discretion is implicated whenever the alleg-
edly tortious decisions attributed to the contractor are actually discre-
tionary decisions made by the government itself. See id. at 512. In this
case, the evidence demonstrates that the Navy participated exten-
sively in the F/A-18 program. It knew the aircraft intimately, and it
ultimately called the shots. Its decision to fly the plane in the face of
potential FCS failures was an informed, if ultimately incorrect, one.
Under Maryland law, MDC had no duty to warn. The government
contractor defense adopted in Boyle rests at bottom on conflict
between federal and state law. See id. at 507-08. Application of Mary-
land law here, because it in fact reinforces the federal interest pro-
tected by the Boyle defense, poses no conflict. Inasmuch as Maryland
law reflects the general rule that the Navy's intimate participatory role
negates the existence of a duty to warn on MDC's part, it affords a
sound basis upon which to affirm the judgment of the district court.

III.

The district court also found that MDC shared everything it knew
with the Navy, and that there was no evidence that MDC representa-
tives "believed the flight was unsafe and failed to tell the Navy." In
view of our foregoing discussion, however, we need not address the
various other grounds defendant has advanced for upholding the dis-
trict court. The judgment of the district court is affirmed.

AFFIRMED

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