                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 1 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL J. DETERMAN; CHARLESA            No. 18-15515
A. DETERMAN, as personal representatives
of the Estate of Matthew J. Determan,    D.C. No.
Deceased,                                1:16-cv-00144-LEK-KJM

                Plaintiffs-Appellants,
                                                MEMORANDUM*
 v.

THE BOEING COMPANY; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                     Argued and Submitted October 17, 2019
                              Pasadena, California

Before: NGUYEN and OWENS, Circuit Judges, and VITALIANO,** District
Judge.

      Michael and Charlesa Determan—the parents and personal representatives

of the estate of Matthew Determan—appeal from the district court’s grant of


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
summary judgment on their state law claims for product liability, negligence, and

wanton design in favor of The Boeing Company, Bell Helicopter Textron, Inc., and

Eaton Aerospace LLC (together, the Contractors). The suit arises from the crash of

an Osprey aircraft, which killed Matthew Determan and another non-party soldier.

The district court granted summary judgment to the Contractors based on the three-

part government contractor affirmative defense. See Boyle v. United Techs. Corp.,

487 U.S. 500, 512 (1988) (granting immunity from tort liability for design defects

if (1) the government approved reasonably precise specifications, (2) the

equipment conformed to those specifications, and (3) the supplier warned the

government about the dangers known to it but not the government).

      On appeal, the Determans argue that the district court erred because genuine

issues of material fact exist regarding the first and second factors. They do not

challenge the district court’s conclusion regarding the third factor. As the parties

are familiar with the facts, we do not recount them here. We affirm.

      The district court correctly concluded that there are no genuine issues of

material fact regarding the first Boyle factor. The undisputed evidence establishes

that the government considered and approved reasonably precise specifications for

the design feature at issue, the Osprey’s Engine Air Particle Separator (EAPS)

system. The Determans fail to support an inference that the government merely

approved performance standards; the undisputed evidence shows that the


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government approved the detail specification and the final, top-level drawing of

the aircraft, which both incorporate by reference design specifications for the

EAPS system. And the Determans’ argument that the government was required to

approve the impacts of reactive sand on the EAPS system, rather than just the

EAPS system itself, fails because Boyle established that a contractor need not

obtain the government’s consent for every possible defect or alternative design.

See id. at 513.

      The district court also correctly determined that there are no issues of

genuine fact regarding the second Boyle factor. The undisputed evidence

establishes that the government certified that the subject Osprey, including its

EAPS system, conformed with the design specifications. See Getz v. Boeing Co.,

654 F.3d 852, 864 (9th Cir. 2011) (holding that certification after careful scrutiny

is “sufficient proof of conformity”). The Determans point to testing data indicating

that a generic EAPS system failed to meet the government’s efficiency

requirements, but those tests have no bearing here because they were conducted in

experimental testing conditions on a different EAPS system than the one in the

subject Osprey.

      AFFIRMED.




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