The Government Contractor Defense: The Devil Is in the Details

    15 December 2008

    Over 20 years ago, the United States Supreme Court adopted the government contractor defense ("GCD") and expressed the need to immunize federal contractors from tort liability in certain circumstances. Now, more than two decades later, companies continue to utilize the GCD as a shield against product liability claims. However, the devil is often in the details as to whether a client can successfully seek cover behind the GCD. The Supreme Court’s rationale in adopting the GCD was that, although explicit legislation may not trump state tort law in a particular context, some matters involve "uniquely federal interests" that are "so committed to federal control" that state law must be preempted and replaced by "federal common law." Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988). In the Court’s view, this displacement of state law can occur only where "a ‘significant conflict’ exists between an identifiable ‘federal policy’ or interest and the [operation] of state law." (citing Wallace v. Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966)). With respect to suits

    Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988). In the Court’s view, this displacement of state law can occur only where "a ‘significant conflict’ exists between an identifiable ‘federal policy’ or interest and the [operation] of state law." (citing Wallace v. Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966)).