Full opinion text
RICE, District Judge. DECISION AND ENTRY SUSTAINING MOTIONS FOR SUMMARY JUDGMENT FILED IN CONSOLIDATED CASE; MOTION FOR SUMMARY JUDGMENT OF DEFENDANT BOEING (DOC. # 150) SUSTAINED; RENEWED MOTION FOR SUMMARY JUDGMENT OF DEFENDANT McDonnell douglas (doc. # 215) SUSTAINED; RENEWED MOTION FOR SUMMARY JUDGMENT OF DEFENDANT LEAR (DOC. # 217) SUSTAINED; JUDGMENT TO BE ENTERED IN FAVOR OF MOVING DEFENDANTS AND AGAINST PLAINTIFFS IN CONSOLIDATED CASE AND IN ALL CASES CONSOLIDATED THEREIN (Darling v. The Boeing Co., et al., C-3-82-195; Hodge v. The Boeing Co. et al.,-C-3-82-196; Wetzel v. The Boeing Co., et al., C-3-82-197; Resides v. The Boeing Co., et al., C-3-82-198; Frederick v. The Boeing Co., et al., C-3-82-199; Middleton v. The Boeing Company, et al., C-3-82-200; Harris v. The Boeing Company et al., C-3-82-201; Bayliss v. The Boeing Company, et al., C-3-82-202; Ross v. The Boeing Company, et al., C-3-82-206; Presley v. The Boeing Company, et al., C-3-82-208; Fonke v. The Boeing Company, et al., C-3-82-365; (in behalf of David Fonke estate); Masters v. The Boeing Co., et al., C-3-82-785; Juergens v. The Boeing Company, et al., C-3-83-407; Bernhold v. Boeing Co., et al., C-3-82-204; Riley v. Boeing Co., et al., C-3-82-211; Fonke v. Boeing Co., et al., C-3-82-366, (on behalf Linda Fonke estate); FOLLOWING ENTRY OF JUDGMENT, CASES C-3-82-204, C-3-82-211, AND C-3-82-366 ARE TO BE SEVERED FROM THE OTHER 13 CASES; TRIAL UPON THE MERITS OF THE SEVERED CASES REMAINS SET FOR FEBRUARY 19, 1991; FINAL JUDGMENT TO BE ENTERED IN CASE NOS. C-3-82-195; C—3—82—196; C-3-82-197; C-3-82-198; C-3-82-199; C-3-82-200; C-3-82-201; C-3-82-202; C-3-82-206; C-3-82-208; C-3-82-365; C-3-82-785; AND C-3-83-407 These consolidated cases are the result of a true catastrophe — the crash of an Air Force EC-135N jet aircraft, and the loss of all on board, on May 6, 1981. The Plaintiffs, who are the personal representatives of certain military and civilian decedents, have filed suit on alternative theories of strict liability, breach of express and implied warranty and negligence in connection with the design and testing process for the aircraft, and seek damages from the Boeing Company (“Boeing”), which designed and manufactured the aircraft pursuant to an Air Force contract, Lear Sie-gler, Inc. (“Lear”), which, also pursuant to an Air Force contract, designed and manufactured the aircraft’s autopilot system, and McDonnell Douglas Corporation (“MDC”), which modified the aircraft under an Air Force contract some six years after its original construction. The United States is also a Defendant in three cases filed by the representatives of civilian decedents (Case Nos. C-3-82-204, C-3-82-211, and C-3-82-366). This case is currently before the Court on Boeing’s Motion for Summary Judgment (Doc. # 150) and the renewed Memorandum of Law in support thereof (Doc. # 221) (“Boeing Memorandum”), on MDC’s Renewed Motion for Summary Judgment and Memorandum in support thereof (Doc. # 215) (“MDC Memorandum”), and on Lear’s Renewed Motion for Summary Judgment and Omnibus Memorandum in Support thereof (“Lear Memorandum”) (Doc. # 217). All three Defendants have invoked the government contractor defense set forth in Boyle v. United Technologies Corp, 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), as grounds for their respective motions. I. BACKGROUND A. The Accident On May 6, 1981, at 10:05 a.m., an Air Force EC-135N aircraft departed Wright Patterson Air Force Base, Dayton, Ohio, on a round-trip training flight scheduled to last approximately five hours. On board were a crew of seventeen, and four authorized observers, including two wives of crewmembers participating in the Air Force Systems Command’s Have Partner spouse orientation program. The pilot in command was Captain Joseph C. Emilio. No stressful or unusual training requirements were planned for the flight. Air Force Systems Command Press Briefing, June 12, 1981, Plaintiffs’ Exhibit # 2. The aircraft was cruising eastward near Walkersville, Maryland, at approximately 29,000 feet when, at 10:49 a.m. (some 45 minutes into the flight) Federal Aviation Administration air traffic control lost radar contact with it. No distress calls or emergency transmissions were received from the aircraft, which crashed at approximately 10:51 a.m. There were no survivors. USAF Aircraft Accident Investigation IAW AFR 110-14, Plaintiffs’ Exhibit # 1 [hereinafter AF Investigation Report]. At the time of the crash the left pilot seat was occupied by Mrs. Peggy Emilio, one of the participants in the Have Partner spouse program, and the right pilot seat was occupied by Captain Emilio. Two navigators and two passengers were also in the crew compartment. The locations of other persons in the aircraft could not be determined. Id. Examination of the wreckage resulted in the recovery of the actuator which controlled the stabilizer trim, the moveable leading edge of the horizontal portion of the aircraft’s tail which, in conjunction with the elevators located at the trailing edge of the horizontal tail section, controls the aircraft’s “pitch,” or nose-up/nose down position. The position in which the actuator was found corresponded to the full aircraft nose-down position. Id. at Tab 2.5; Boeing Memorandum at 8. The cockpit pitch trim indicator and the horizontal stabilizer trim jackscrew were also recovered from the wreckage, and each was found to indicate full nose-down trim. AF Investigation Report, at Tab. 3.2.1. The position of the aircraft’s horizontal stabilizer can be adjusted in three ways. It can be controlled electrically, by means of an AC motor, which is in turn controlled by identical switches located on each pilot’s control wheel. Id. It can also be controlled manually, by means of a pitch trim wheel. Id. In the EC-135N this wheel is located on the left side of the aisle console placed between the two pilot’s seats. Boeing Memorandum, Doc. # 221, at 10 and Appendix 1. Use of the trim wheel is a “laborious” process requiring the pilot to turn the wheel thirty-five full revolutions to retrieve the trim from full nose down to zero. AF Investigation Report at Tab 3.2.-1. It is undisputed that the horizontal stabilizer can also be controlled by an autopilot such as the one with which the aircraft in this case was equipped. The Air Force’s analysis of possible causes of the crash led it to conclude that [f]or undetermined reasons, the aircraft pitch trim moved to the full nose down position. The aircraft then rapidly pitched over, most likely upon release of the auto-pilot, and induced sufficient negative “G” forces to cause [its AC] generators to trip off line, resulting in the loss of all AC electrical power. The pitch trim could not then be moved electrically. This condition, while unusual, can be controlled [manually, by use of the trim wheel] if prompt corrective action is taken; however, if corrective action is delayed approximately 8 seconds, the aircraft pitch angle will be greater than 30 degrees nose-down and the airspeed in excess of 350 knots indicated airspeed. Under these conditions, the aircraft cannot be controlled until the pitch trim is moved toward neutral. While it is evident that recovery was delayed, the reason for the delay is unknown. The aircraft became uncontrollable and entered a steep descent. During the rapid descent, an explosion occurred at approximately 1300 feet above ground level followed immediately by catastrophic failure, and complete break-up of the aircraft. AF Investigation Report at “Synopsis” and Tab 3.3. It is not disputed that rapid pitch-over of the aircraft could and did result in loss of AC electrical power so that the pitch trim could not be corrected electrically. It is also not disputed that after approximately eight seconds of full nose-down pitch, the aircraft pitch angle and airspeed would be such as to make manual recovery of the aircraft impossible. B. The Parties’ Contentions Concerning the Accident’s Cause The parties to the instant Motions differ markedly in their theories of the cause of the aircraft’s pitch-over and succeeding events leading to loss of the airplane. Plaintiffs contend that the aircraft’s sudden pitch-over was the result of a “flight control system malfunction,” most probably in the autopilot. Plaintiffs’ “Omnibus” Memorandum of Law in Opposition to Defendants’ Motions for Summary Judgment [hereinafter Plaintiffs’ Memorandum], Doc. # 219, at 3-5. They claim that the aircraft’s automatic flight control system was designed to be capable on its own (i.e., without a command from the flight crew) of moving the pitch trim to the full nose down position while the autopilot is in altitude hold mode. Plaintiffs’ Liability Contentions, Doc. #31 at HI. They contend that the flight control system was defective in that the autopilot was “failure prone” and because “single point failures in the system [that] caused uncommanded trim inputs which threatened the safe operation of the plane were commonplace.” Plaintiffs’ Memorandum at 12. Plaintiffs’ contend that the design of the aircraft’s autopilot was defective in several respects, id. at 12-14 (quoting Plaintiffs’ Responses to Liability Discovery Requests, Doc. # 144 at 35-38). Plaintiffs allege that the aircraft was defectively designed such that the combination of unanticipated trim malfunction leading to full nose-down attitude and complete loss of electrical power [as a result of the aircraft’s AC generators’ characteristic of tripping off a few seconds following the sustained negative gravity or “G” forces attendant upon a dive such as that experienced by the aircraft in this case] led to a “failure mode” from which a reasonably qualified pilot such as Captain Emilio could not recover the aircraft. Plaintiffs’ Memorandum at 16. They also contend that the location of the single manual trim wheel (by means of which the pitch trim might have been corrected after loss of electrical power) was a design defect, in that “[t]he aircraft could not be operated in a flight control systems emergency as safely from the right [pilot’s] seat as from the left [pilot’s] seat when a full range of motion of the mechanical trim wheel was necessary.” Id. at 15. Plaintiffs further contend that the aircraft was defectively designed in that (1) it lacked visual and/or aural warning systems to alert the crew that the pitch trim was in motion, or in an abnormal position for a given phase of flight; (2) its flight manuals did not disclose how quickly the aircraft would could become unrecoverable after entering the full nose-down trim position; (3) the aircraft was inherently defective because it was unrecoverable once eight seconds had elapsed following a flight control system malfunction; (4) it lacked devices- to prevent trim malfunctions and/or warnings of those malfunctions’ impending occurrence. Id. at 16-17. Defendants contend that the aircraft’s pitch-over was caused when Mrs. Emilio, seated in the left pilot’s seat, inadvertently activated the trim stabilizer switch located on the left pilot’s control wheel, and that the failure to correct the pitch-over in the time period before the situation became irremediable was due to human error attributable to Captain Emilio. Boeing Memorandum, Doc. # 221, at 8; Lear Memorandum, Doc. #217, at 14; MDC Memorandum, Doc. # 215, at 23. Nevertheless, Defendants assume, per arguendo, that Plaintiffs’ contentions are correct, for purposes of their Motions for Summary Judgment. Boeing Memorandum, Doc. # 221 at 10; Lear Memorandum, Doc. # 217 at 19. MDC Memorandum, Doc. # 215 at 29. II. THE GOVERNMENT CONTRACTOR DEFENSE A. Boyle v. United Technologies Corp. As noted above, Boeing, Lear and MDC argue that they are entitled to absolute immunity under Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). The Court now turns to a discussion of the elements of the Boyle defense. In Boyle, a United States Marine helicopter pilot was killed when his helicopter crashed off the coast of Virginia during a training mission. 487 U.S. at 502, 108 S.Ct. at 2513. The pilot survived the impact, but he drowned when he was unable to open the escape hatch, which had been designed pursuant to a government contract to open outward, thereby rendering it ineffective against water pressure once the helicopter was submerged. Id. at 502-03, 108 S.Ct. at 2513. The pilot’s father sued the helicopter’s manufacturer, Sikorsky Division of United Technologies Corporation (“Sikorsky”), alleging that Sikorsky had defectively repaired the component of the helicopter’s automatic flight control system that allegedly caused the crash and alleging that Sikorsky had defectively designed the emergency escape hatch. Id. at 503, 108 S.Ct. at 2513. Plaintiff had argued that state tort law imposed a duty upon Sikorsky to design the escape hatch to open inward and to position the escape hatch handle so that access to it would not be obstructed by other equipment. Id; see also Boyle v. United Technologies Corp., 792 F.2d 413, 414 (4th Cir.1986). Following a general verdict for the Plaintiff, the district court denied Sikorsky’s motion for a judgment notwithstanding the verdict. Boyle, 487 U.S. at 503, 108 S.Ct. at 2513. The Fourth Circuit reversed and remanded, directing that judgment be entered for Sikorsky. It held, as a matter of federal common law, that Sikorsky could not be held liable for the alleged defect in the design of the escape hatch, because it had satisfied the elements of the military contractor defense, as set forth in Tozer v. LTV Corp., 792 F.2d 403 (4th Cir.1986). On appeal, the United States Supreme Court considered the question whether there was a basis in federal law for immunizing government contractors from liability under state tort law for design defects in military equipment, and the question whether the Fourth Circuit's formulation of the defense was appropriate. Boyle v. United Technologies Corporation, 487 U.S. 500, 503, 108 S.Ct. 2510, 2513, 101 L.Ed.2d 442 (1988). The Court held that the government contractor defense does exist as a matter of federal common law. The basis for such a defense, the Court reasoned, lies in the “discretionary function” exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(a), which protects the United States from liability for its agents’ performance of duties involving discretionary decisions. Id. at 511-13, 108 S.Ct. at 2517-19. In the absence of the defense, the Court reasoned, the government’s own immunity in tort for its actions taken pursuant to its discretionary functions would be undermined. Contractors held liable for design features which had been approved pursuant to an exercise of governmental discretion would inevitably pass the costs of liability on to the government, thereby imposing costs on the government which the FTCA was enacted to prevent. Id. at 512, 108 S.Ct. at 2518. Under Boyle, state tort law is displaced where the liability it would impose touches upon an area that is of “uniquely federal interest.” Id. at 504-07, 108 S.Ct. at 2514. The procurement of military equipment, the Boyle Court held, is an interest that is “uniquely federal.” Id. at 507, 108 S.Ct. at 2515. A second condition to the displacement of state law under Boyle is that there exist a “significant conflict” between the area of uniquely federal concern and the operation of state law. Id. The Boyle Court provided three scenarios to illustrate the parameters of this “conflict” requirement. Where, for example, the duty imposed by state law is contrary to the duty imposed by the government contract, the requisite significant conflict exists. Id. at 509, 108 S.Ct. at 2516. This was true in Boyle itself, where the design of the escape hatch mechanism, which Plaintiff asserted was defective under state law, was mandated by specifications in the government contract. Id. Where, however, the government merely orders a particular piece of equipment from stock, the requisite conflict does not exist, the Supreme Court reasoned, because it cannot be said that the federal government has a significant or unique interest in the design features of that piece of equipment. Id. Similarly, state tort law requiring a particular safety feature is not preempted where a government contract for a piece of equipment specifies a particular operational characteristic but does not mandate “the precise manner of construction ” and therefore does not preclude the inclusion of that safety feature. Id. (emphasis added). The Boyle Court held that the FTCA “suggests the outlines of” its “significant conflict” requirement. Id. at 511, 108 S.Ct. at 2517. That Act provides a private cause of action for damages, stemming from the negligent or wrongful conduct of federal employees, that is coextensive with a private person’s liability under state law, 28 U.S.C. § 1346(b), except where the claim is “based upon [the federal employee’s or agency’s] exercise or performance or ... failure to exercise or perform a discretionary function or duty....” 487 U.S. at 511, 108 S.Ct. at 2517 (quoting 28 U.S.C. § 2680(a)). The Court went on to state We think that the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function within the meaning of [the FTCA’s “discretionary function” exception]. It often involves not merely engineering analysis but judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness. Id. at 511, 108 S.Ct. at 2517. In setting forth the scope of the defense it enunciated, the Court adopted the elements of the defense employed by the Fourth Circuit in Tozer and by the Ninth Circuit in McKay v. Rockwell International Corporation, 704 F.2d 444, 449 (9th Cir.1983), cert. denied, 464 U.S. 1043, 104 S.Ct. 711, 79 L.Ed.2d 175. See 487 U.S. at 512-13, 108 S.Ct. at 2518-19. According to Boyle, “liability for design defects in military equipment cannot be imposed, pursuant to state law, 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.” Id. at 512, 108 S.Ct. at 2518. The Boyle Court intended both that the immunity provided by the defense it enunciated be broad and that active participation of the contractor in the design process not be preclusive of that defense. This is clear from the Court’s stated reasons for its formulation of the elements of the defense: The first [two elements] assure that the suit is within the area where the policy of the “discretionary function” would be frustrated — i.e., they assure that the design feature in question was considered by a Government officer, and not merely by the contractor itself. The third condition is necessary because, in its absence, the displacement of state tort law would create some incentive for the manufacturer to withhold knowledge of risks, since conveying that knowledge might disrupt the contract but withholding it would produce no liability. We adopt this provision lest our effort to protect discretionary functions perversely impede them by cutting off information highly relevant to the discretionary decision. 487 U.S. at 512-13, 108 S.Ct. at 2518 (emphasis added). The Court rejected an alternative formulation of the elements of the defense that would have provided immunity only if the contractor did not participate in, or only minimally participated in, the design process or if the contractor, in effect, warned the government of all design defects. Id. (citing Shaw v. Grumman Aerospace Corp., 778 F.2d 736, 746 (1985). In this Court’s view, Boyle means that the defense applies where the “discretionary function” exception to the FTC A would prevent liability on the part of the federal government in the area of military procurement. Thus, where the government exercises its discretion with regard to the design of a particular piece of equipment (instead of simply ordering it from stock), discretion expressed through “engineering analysis” and the exercise of judgment regarding technical and military factors, and trade-offs between safety and mission effectiveness, see Boyle, 487 U.S. at 500, 108 S.Ct. at 2510, and where the three Boyle elements are satisfied, a military contractor is entitled to immunity from suit under state tort law. If state law would impose liability where the three Boyle elements are met, the requisite “significant conflict” is present, and state law is preempted. There is no doubt that the Boyle defense can be established as a matter of law. Cases following Boyle have so held, either in the context of a motion for summary judgment, see, e.g., Kleeman v. McDonnell Douglas Corp., 890 F.2d 698 (4th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2219, 109 L.Ed.2d 545 (1990); Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946 (4th Cir.1989); Smith v. Xerox Corp., 866 F.2d 135 (5th Cir.1989); Niemann v. McDonnell Douglas Corp., 721 F.Supp. 1019 (S.D.Ill.1989); Nicholson v. United Technologies Corp., 697 F.Supp. 598 (D.Conn.1988), or in the context of a judgment notwithstanding the verdict, see e.g., Boyle, 487 U.S. at 514, 108 S.Ct. at 2519; Harduvel v. General Dynamics Corp., 878 F.2d 1311 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990). Although Boyle itself involved claims brought on behalf of a military serviceman, the defense also applies to claims brought against military contractors by or on behalf of civilians. Boyle, 487 U.S. at 510-11, 108 S.Ct. at 2517-18 (dicta); Garner v. Santoro, 865 F.2d 629 (5th Cir.1989); Ramey v. Martin Baker Aircraft Co Ltd., 874 F.2d 946 (4th Cir.1989); Nicholson v. United Technologies Corp., 697 F.Supp. 598 (D.Conn.1988). Boyle holds that the government contractor defense is applicable to claims based upon design defects, 487 U.S. at 512, 108 S.Ct. at 2518, and most cases following Boyle have involved strict liability and/or negligence claims arising from design defects. See, e.g., Harduvel v. General Dynamics Corp., 878 F.2d 1311 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990); Kleeman v. McDonnell Douglas Corp., 890 F.2d 698 (4th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 2219, 109 L.Ed.2d 545 (1990); Ramey v. Martin-Baker Aircraft Co., 874 F.2d 946 (4th Cir.1989); Smith v. Xerox Corp., 866 F.2d 135 (5th Cir.1989); Niemann v. McDonnell Douglas Corp., 721 F.Supp. 1019 (S.D.Ill.1989); Nicholson v. United Technologies Corp., 697 F.Supp. 598 (D.Conn.1988). The Boyle defense has been applied to claims of breach of warranty in tort arising from design defects. Ramey, 874 F.2d at 948. See also Crossan v. Electron Tube Division of Litton Systems, Inc., 693 F.Supp. 528, 529 (E.D.Mich.1986) (government contractor defense applies to strict liability, negligence and breach of warranty claims) (citing Tozer v. LTV Corp., 792 F.2d 403 (4th Cir.1986) and applying the McKay formulation of the elements of the defense). Several courts had held that the defense may be applied to failure to warn claims. See, e.g., In re Joint Eastern & Southern District New York Asbestos Litigation, 897 F.2d 626, 629 (2d Cir.1989); Dorse v. Eagle-Picher Industries, Inc., 898 F.2d 1487 (11th Cir.1990); Garner, 865 F.2d at 635; Niemann, 721 F.Supp. at 1024-25; Nicholson, 697 F.Supp. at 604 (claims arising out of alleged omissions in landing gear service manuals). Plaintiffs allege that all three Defendants herein were negligent in failing to conduct certain tests of the airplane and its autopilot. See Plaintiffs’ Liability Contentions, Doc. # 31, at 12-15; Plaintiffs’ Memorandum, Doc. # 219, at 21-34, 56. In one sense, such claims are clearly related to Plaintiffs’ general negligent design claims, since the flight testing of the KC-135a, the C-135A and the EC-135N was an integral part of the process culminating in the ultimate configuration of the accident aircraft. On the other hand, Plaintiffs’ negligence-in flight-testing claims can be viewed as setting forth a tort theory arguably separate from their negligent design claims. Therefore, the Court briefly addresses the applicability of Boyle, a design defects case, to Plaintiffs’ flight testing claims. The Court is unaware of any case applying Boyle to claims of negligence in testing a product pursuant to a government contract, and the parties have cited none to the Court. Where, as here, the testing of an aircraft produced pursuant to government contract is itself governed by that contract, the rationale of Boyle dictates that the defense be available to claims arising from alleged omissions in the testing process. Thus, if a military contractor were to be held liable for what is in effect a defect in the “Government-ordered design,” Boyle, 487 U.S. at 512, 108 S.Ct. at 2518, of the testing program associated with a product designed under government contract, such liability would be as subversive of the Government’s relationship with its contractors, and of the Government immunity under the “discretionary function” exception to the FTCA, as contractor liability for defects in government-ordered product design. In terms of the applicability of Boyle, therefore, this Court holds that Plaintiffs’ flight testing claims are indistinguishable from their other claims related to the design of the accident aircraft. Several courts following Boyle have been called upon to interpret the meaning of the elements of the government contractor defense. Boyle did not elaborate upon the meaning of government “approval of reasonably precise specifications,” the first element of the defense. The Eleventh Circuit addressed this requirement in Harduvel v. General Dynamics Corp., 878 F.2d 1311, 1320 (11th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1479, 108 L.Ed.2d 615 (1990). Harduvel was a products liability action brought by the widow of an Air Force pilot killed when his F-16 fighter jet crashed. Plaintiff’s theory of liability centered on defects in the F~16’s all-electric control system. Id. at 1316. The jury returned a verdict for Plaintiff and the district court denied Defendant’s motion for a judgment notwithstanding the verdict, which was based upon the version of the government contractor defense that the Supreme Court ultimately rejected in Boyle. The Eleventh Circuit reviewed the district court’s decision in light of Boyle, which had been decided in the interim. Id. at 1315. The Harduvel Court described the “continuous back and forth” in the design process which it held satisfied the first element of Boyle as follows: The Air Force initiated the F-16 project in the early 1970’s by issuing a Request for Proposals_ General Dynamics responded with proposed Air Vehicle Specifications, that were evaluated by the Air Force System Program Office. The Office conducted an extensive review of the aircraft, including the electrical system, examining specifications, drawings and blueprints.... One group of Air Force engineers was specifically assigned to review the electrical system_ The Air Force conducted independent review and analysis of the electrical system design ... and evaluated designs in a Preliminary Design Review, Critical Design Review, and later Physical Configuration Audit that took place ... prior to the start of production_ Government review and approval of design and production methods continued after production began. Indeed, the Air Force requested an increase in wiring capacity on the particular block of F-16’s from which Harduvel’s came.... Id. at 1320 (citations omitted). “[WJhere, as here, the contractor incorporated government performance specifications into a design that the government subsequently reviewed and approved,” the Court held, the first element of the Boyle defense is satisfied as a matter of law. Id. (quoting Smith v. Xerox Corp., 866 F.2d 135, 138 (5th Cir.1989). The Harduvel Court distinguished the Fifth Circuit’s decision in Trevino v. General Dynamics Corps, 865 F.2d 1474, 1480 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 327, 107 L.Ed.2d 317 (1989), upon which Plaintiffs in the instant case rely for the proposition (which this Court accepts) that mere “rubber stamp” government approval does not satisfy the first element of the Boyle defense. See, e.g., Plaintiffs’ Memorandum at 81-83. Trevino was an action brought under the Death on the High Seas Act, 46 U.S.C.App. § 761 et seq., and under federal admiralty law, 28 U.S.C. § 1333, against General Dynamics by the survivors of Navy personnel who died when a vacuum formed in their submarine’s diving chamber. 865 F.2d at 1476. The trial court held that General Dynamics was not entitled to the Boyle defense, and the Fifth Circuit affirmed. Id. The Court described the design and procurement process thus: The contracts required General Dynamics to produce working drawings of the [diving chamber] and the lock in/lock out system and to assume full responsibility for all necessary technical research, to review its work product to assure compliance with the [Navy’s handbook of for modifications to the submarine], and to conduct all quality assurance, including inspection of the end product, before issue to the Navy. General Dynamics supplied 37 employees, who worked on-site at [the Navy shipyard] and produced 71 pages of detailed working drawings. Each of the drawings was signed by a government employee in a box marked “approved.” After General Dynamics completed the drawings, their employees left [the shipyard], and the Navy performed all the manufacturing and conversion work on the [submarine].... The Navy never performed nor required a formal design/safety review of the [submarine’s] diving system prior to the accident. Id. at 1477 (emphasis added). It is in reference to this process that the Trevino Court held that the first element of Boyle was not satisfied and that “[a] rubber stamp is not a discretionary function; therefore, a rubber stamp is not ‘approval’ under Boyle. Id. at 1480. Harduvel also sheds light on the “conformity” element of the Boyle defense, by stating that the question whether this element is satisfied is answered by distinguishing between a manufacturing defect and a design defect. 878 F.2d at 1321. The distinction drawn by the Court is one between “an unintended configuration” — i.e., a defect in the workmanship of the particular product which failed — and “an intended configuration that may produce unintended and unwanted results”— i.e., a defect inherent in the design of the product the government has approved. Id. at 1317. In Kleeman v. McDonnell Douglas Corp., the Fourth Circuit also addressed the meaning of conformity and “reasonably precise specifications” under Boyle. 890 F.2d 698 (1989), cert. denied, — U.S. -, 110 S.Ct. 2219, 109 L.Ed.2d 545 (1990). In Kleeman, a Navy pilot was killed when his F/A-18 aircraft went out of control during landing. Id. at 700. Plaintiffs brought a wrongful death action against McDonnell Douglas, alleging that the landing gear, which the Navy had implicated in the accident, failed to conform to the general performance specifications in McDonnell Douglas’ contract with the Navy. The district court had held that the operative specifications to which the landing gear must conform under the first two elements of the Boyle defense were the “ultimate design specifications” that result from the design process, and not the “qualitative, precatory specifications used in [in the initial phases of] the procurement process.” Id. The Fourth Circuit affirmed. Since there was no evidence in the record that the landing gear had failed to conform to “the precise quantitative specifications embodied in the totality of documents exchanged between the parties,” id. at 702, the Court rejected Plaintiff’s argument that the first element of Boyle had not been met. Failure of performance of the landing gear did not “equate as a matter of law with an absence of conformity” under Boyle. Id. at 700. The Kleeman Court described the design and production process for the F/A-18, which closely mirrored that for the F-16 in Harduvel, The Court stated that it is the “salient fact of governmental participation in the various stages of the aircraft’s development that establishes the military contractor defense.” Id. at 701. “[Ajetive governmental oversight,” the Court reasoned, “is relevant to all three elements of defendant’s burden” under the defense. Id. The Court continued Where, as here, the Navy was intimately involved at various stages of the design and development process, the required government approval of the alleged design defect is more likely to be made out.... Similarly, the Navy’s extensive participation, including reservation of the power to approve or disapprove design modifications, enhances the likelihood of final product conformity. Government involvement in the process also makes it more likely, though not certain, that a sharing of information will occur with respect to potential dangers in the use of the equipment. As a final matter, extensive governmental participation provides tangible evidence of the strong federal interest which justifies the creation of a federal common law defense for government contractors in the first place. Id. The third element of the Boyle defense, the requirement that the contractor “warned the United States about the dangers in the use of the equipment that were known to the [contractor] but not to the United States,” Boyle 487 U.S. at 512, 108 S.Ct. at 2518 requires the least discussion by this Court. The language of Boyle indicates that this element requires actual knowledge by the contractor. Id. Several Courts following Boyle have so held. Har-duvel, 878 F.2d at 1321; Trevino, 865 F.2d at 1487; Niemann, 721 F.Supp. at 1028. As the Kleeman, Court stated, where there is evidence of pervasive government involvement in the procurement and design process, this element of the Boyle defense is more likely (though not certain) to be established. 890 F.2d at 701. In this Court’s view, if Defendants actually knew of an asserted defect and alerted the Air Force thereto, or if the Air Force knew of the defect independently of anything the Defendants did or did not do, this element is established. Harduvel, 878 F.2d at 1322. B. Affidavits of Colonel C. Russell Webb From July, 1954, through July, 1959, Colonel C. Russell Webb was Development Command Chief of the Air Force’s Joint Weapons System Project Office for the KC-135A. Three affidavits executed by Colonel Webb are in the record before this Court. The first, dated July 10, 1984 (“July Affidavit”), forms the basis of Boeing’s chronology of events surrounding the procurement of the KC-135A and its autopilot. Doc. # 151, Exhibit accompanying Boeing’s original Motion for Summary Judgment. The second Webb affidavit, dated January 25, 1985 (“January Affidavit”), was obtained by Plaintiffs. Doc. # 159, Exhibit # 6. The third Webb affidavit, obtained by Boeing, is dated February 22, 1985 (“February Affidavit”). Doc. # 227, Appendix 1. Plaintiffs contend that the January Affidavit “is sufficient standing by itself” to defeat the three instant Motions for Summary Judgment. Plaintiffs’ Memorandum at 73. Without adverting to the February Affidavit, Plaintiffs also argue that the January Affidavit creates an issue of fact as to the Air Force’s “reliance” upon Defendants’ “greater knowledge” about the 135 aircraft. Id. Plaintiffs also argue that the January Affidavit demonstrates that the Defendants, and not the Air Force, “designed” the aircraft and the components that Plaintiffs allege to be defective. See, e.g., Plaintiffs’ Memorandum at 46. The Court disagrees with these contentions. The January Affidavit consists of a series of terse, and the Court believes potentially misleading, statements giving the appearance of inconsistency with the earlier July Affidavit. Indeed, at oral argument on the instant motions, held on June 4, 1990, Plaintiffs’ counsel maintained that all three Webb affidavits are internally inconsistent. In order to demonstrate the lack of inconsistency among the Webb affidavits, the Court provides the following examples of statements which Plaintiffs claim give rise to a genuine issue of material fact. Example One In the July Affidavit, Col. Webb states: “As Chief of the Weapons System Project Office I participated actively in the development and negotiation of the initial ‘Detail Specification’ of the KC-135 in the summer and fall of 1954. The Detail Specification spelled out just what sort of aircraft the Air Force wanted. This specification incorporated by reference a large number of military specifications, military drawings, and Boeing drawings.... ” July Affidavit at ¶ 9. In the January Affidavit, Col. Webb states: “Boeing, not the Air Force, prepared the Detail Design Specification for KC-135 airplanes.” January Affidavit at 112. In the February Affidavit, Col. Webb states: “In stating in my January affidavit (11 2) that ‘Boeing, not the Air Force, prepared the Detail Design Specification for KC-135A airplanes,’ I intended to say that Boeing typed and printed the Detail Specification. It is also true that Boeing prepared much of the initial draft for the Detail Specification. The Final Detail Specification, as approved by the Air Force, however, was the product of a very substantial amount of Air Force input and many Air Force directed revisions. As I stated in my affidavit of July 10, 1984, the Air Force ‘negotiated’ the Detail Specification with Boeing.” February Affidavit at 112 Example Two In the January Affidavit, Col. Webb states: “The Air Force relied on Boeing’s representations to the degree approved by the Air Force.” January Affidavit at 119. In the February Affidavit, Col. Webb states: “I said in my January affidavit (¶ 9) that “the Air Force relied on Boeing’s representations to the degree approved by the Air Force ” (emphasis added). Boeing’s representations were simply input to the decision-making process. It was certainly input that I came to have a great deal of confidence in, but I was required always to make my decisions in terms of the effect on the military mission. I was required also to take into account Air Force policy and the judgments of Air Force engineers and pilots. Indeed, the Air Force “relied” on input from its own people in the same way that it relied on Boeing’s input. The only input that would ultimately control a decision was a command input from my Air Force superiors.” February Affidavit at 118. As these examples demonstrate, the February Affidavit, which is explanatory in nature, merely provides a clarification of what Colonel Webb meant by each statement set forth in the affidavit he executed for Plaintiffs. There is no inconsistency between the January and February Affidavits; the statements set forth in each are based upon identical, and not opposing, premises. See Boeing’s Reply Memo, Appendix 2, Doc. # 227. When read together, these affidavits are wholly consistent (and for the same reason) with the July Affidavit. Their statement to the contrary notwithstanding, Plaintiffs’ January Webb Affidavit does not, therefore, create a genuine issue as to any fact, whether related either to Boeing’s or to Lear’s Motion, that is set forth in Colonel Webb’s July Affidavit. Finally, the Court is bemused by Plaintiffs’ suggestion, Doc. # 219 at 73, that the January Affidavit could defeat MDC’s Motion. None of the Webb affidavits concerns MDC; all merely concern the design of the C-135 and its autopilot, years before the A/RIA modifications were contemplated. As noted above, Colonel Webb left the KC-135A program in July 1959, before the A/RIA contract was awarded to MDC. January Affidavit, Doc. # 159, at ¶ 1. As noted above, by introducing their January, 1985, Webb Affidavit, and by citations to the depositions of other Air Force personnel, Plaintiffs seek to inject into this case the issue of Air Force reliance upon Boeing’s and Lear’s expertise and “higher knowledge” concerning the KC-135A and its autopilot. Plaintiffs assert that “the United States relied upon Boeing’s and Lear’s expertise in designing the KC-135 and its flight control system.” Plaintiffs’ Memorandum at 51. Indeed, Colonel George Leslie and Wilson Hale testified in depositions that the Air Force had relied on the expertise of Boeing and Lear, respectively, in designing the aircraft and autopilot. Id. at 51-53 (quoting Leslie Deposition at 19-20; Hale Deposition at 64-65). In his January Affidavit, Colonel Webb also stated that the Air Force “relied” upon Lear’s higher knowledge and expertise. Doc. # 159, Exhibit # 6. Plaintiffs also quote the deposition testimony of Maurice L. Fowler, the Air Force’s contracting officer for the A/RIA program, that the Air Force relied on MDC to “meet its contract.” Id. at 55 (quoting Fowler Deposition at 23, 26-28). The issue whether the Air Force relied upon these Defendants’ expertise and “higher knowledge” as aircraft designers and manufacturers, however, is not relevant to the Boyle defense, and is therefore not an issue of fact material to the instant Motions. The Air Force’s reliance is, in fact, beside the point, for Boyle fully contemplates such reliance as necessary to the military procurement process. 487 U.S. at 512-13, 108 S.Ct. at 2518-19. The Boyle Court sought to encourage the active involvement of military contractors in the design process, and held that such contractors are immune from suit under state tort law, as long as the design features at issue had been considered by the Government and not solely by the contractor. Id. at 512, 108 S.Ct. at 2518. Plaintiffs have repeatedly sought to structure the Court’s inquiry under Boyle so as to require the Court simply to determine who, as between the Defendant contractors and the Air Force, “designed” the KC/C-135, its autopilot and the A/RIA modifications. Relying upon the deposition testimony of Air Force personnel, Plaintiffs assert, specifically, that Boeing (and not the Air Force) “prepared” the Detail Specification for the KC-135 series aircraft, Plaintiffs Memorandum at 45 (quoting Leslie Deposition at 20, 33, 118), and that Boeing “prepared” the specifications for the autopilot, which specifications were incorporated into the contract between Lear and the Air Force, id at 48 (quoting Hale Deposition at 59-60). Plaintiffs also quote the testimony of Mr. Wilson Hale that “Lear had to design the detailed components of the autopilot.” Id (emphasis added). Plaintiffs further assert that MDC (and not the Air Force) “designed” the A/RIA modifications, and “MDC's design concept" was incorporated into its contract with the Air Force. Id. at 53. Plaintiffs misconstrue the focus of this Court’s inquiry under Boyle. The principal issue for this Court is not who “designed” the particular features of the EC-135N which Plaintiffs assert were defective, but whether the Air Force approved specifications for those features which were reasonably precise. Therefore, the argument that a Defendant’s “design” or “design concept” became part of its contract with the Air Force, supports, rather than vitiates, the Boyle defense. It is necessary under Boyle merely that a contractor incorporate the government’s performance specifications into “a design that the government subsequently review[s] and approve[s].” Harduvel, 878 F.2d at 1320. If this occurs in the context of a design process marked by continuous interchange between the contractor and the government (and subject to government final approval of the design), the fact that the particular “design concept” at issue was the contractor’s does not of itself defeat the defense. III. PROCUREMENT, DESIGN AND DEVELOPMENT HISTORY OF THE EC-135N A. Introduction The following chronology of the procurement, design and development of the EG-135N is derived from uncontroverted facts set forth by Defendants in support of their Motions for Summary Judgment. The aircraft involved in the tragic accident giving rise to this litigation was manufactured and delivered by Boeing to the Air Force in 1961 as a C-135A personnel and materiel transport. Smith Affidavit at ¶ 16; Shanks Affidavit at If 31. As delivered, the C-135A was equipped with an automatic flight control system (hereinafter “autopilot” or “MC-1”) designed and built pursuant to specifications in a contract between the Air Force and Lear’s predecessor, Lear, Inc., and supplied to Boeing by the Air Force as Government Furnished Aeronautical Equipment (“GFAE”) for installation in the aircraft by Boeing. Webb Affidavit at If 20; Utterstrom Affidavit at 1f 7; Hale Affidavit at ¶¶ 8, 16. The C-135A is a modified KC-135A jet tanker. In 1952, Boeing had begun work on its model 367-80 (“Dash 80”), a prototype four-engine jet transport having potential for both military and commercial use. Shanks Affidavit at 114. In 1954, the Air Force announced a design competition for a new jet tanker to be used for mid-air refueling of its B-52 bomber, and Boeing submitted a proposal based on the Dash 80. Webb Affidavit at 11112, 6-7. Although Boeing did not win that competition, the advanced stage of development of the Boeing proposal resulted in, first, the selection of the Boeing proposal for an “interim” order for tankers, to be designed and delivered on an expedited basis, and denominated KC-135A’s. Shanks Affidavit, H 31. Second, when the Air Force decided to employ KC-135As as its B-52 refueling tankers, Boeing was awarded the long-term contract for their design and manufacture. Smith Affidavit at ¶ 15; Webb Affidavit at 118. In 1961, seven KC-135A jet tankers in production, including the accident aircraft, were modified by Boeing, again pursuant to a contract with the Air Force, to convert them into personnel and material transports. Shanks Affidavit at H 31. The C-135A is (for all intents and purposes relevant to the instant litigation) simply a KC-135A with its air refueling boom and certain fuel tanks removed. Smith Affidavit at 1116; Shanks Affidavit at 1131. In 1965, MDC was awarded an Air Force contract to modify the accident aircraft and seven other Air Force C-135s (to convert them for use in the Apollo Space Program) by installing electronic telemetry equipment and by making certain modifications to the aircraft’s interior and nose to accommodate that equipment. Barnes Declaration 112; MDC Exhibit A-l at 16. As modified by MDC, the aircraft was designated an EC-135N and redelivered to the Air Force in late 1967. Barnes Declaration at 1125. B. Procurement and Design of the KC-135A As the Court understands it (and as has been amply documented by Boeing by means of affidavits of various Boeing and Air Force personnel and accompanying exhibits), the procurement process leading to the final design and configuration of the KC-135A was a cumulative one which lasted through the flight testing phase. Thus, Boeing’s original design proposal, based on its “DASH 80” prototype, submitted to the Air Force in the design competition phase of procurement, was not the ultimate design of the KC-135A. Many systems on the KC-135A, and particularly those which Plaintiffs have implicated herein, differed from those on the Boeing prototype. Webb Affidavit (February 22, 1985), Doc. # 227, Appendix 1, at 11 5. Item-by-item negotiations ensued between the Air Force and Boeing, with the Air Force having the final decision as to each design item. Webb Affidavit at 111110-11; Smith Affidavit 1111 2, 4-5, 7, 9, 10, 24-25; Shanks Affidavit 111110, 12, 14-15, 20, 22. These negotiations resulted in the KC-135A Detail Specification, i.e., the specification which, along with the documents and drawings it incorporates, told Boeing exactly how to build the aircraft. Air Force responsibility for supervision, control and direction of the KC-135A design and manufacturing effort lay in a joint Systems Project Office. Shanks Affidavit, Exhibit N-10. Within the Systems Project Office, responsibility was shared by the Air Force Material Command, which was in charge of coordinating and overseeing manufacturing and matters relating to maintenance and support, and the Development Command, in charge of design development. Webb Affidavit at 114. The Chief of the Development Command was supported by the laboratories and engineers of the Wright Air Development Center (“WADC”). Id. at 115. A large number of Air Force engineers having expertise in the entire range of aeronautical specialties participated in the technical reviews of the KC-135A project. Id. at 10; Leslie Deposition, Doc. # 222, Exhibit 4, at 45-47, 89. Once the initial draft of the Detail Specification was agreed upon in the summer of 1954, procedures were developed for implementing Air Force concerns or evaluations regarding design development through the Engineering Change Proposal (“ECP”) process. Shanks Affidavit at ¶ 3; Webb Affidavit at H 11. It was only through this process that Boeing could submit to the Air Force its suggestions for deviations from, i.e., design changes in, the Detail Specification for the aircraft. ECPs did not become effective absent Air Force approval thereof. Leslie Deposition at 20. There were bimonthly design-related meetings between Boeing and Air Force personnel at which ECPs were considered and approved or disapproved by the Air Force; these meetings began in the fall of 1954 and continued to take place throughout the production phase of the process. Shanks Affidavit at ¶¶ 7, 10 and accompanying Exhibits C-l and C-2. In the course of KC-135A development, mock-up inspections of the cockpit, Townsend Affidavit at ¶ 3, and ultimately a full-scale mockup of one side of the aircraft, Smith Affidavit at 1111 6, 7; Shanks Affidavit at 111113-14, as well as other technical reviews and inspections, were conducted by Air Force personnel including pilots, officers, engineers and contract personnel. Shanks Affidavit 111111-13, 16. A Development Engineering Inspection, conducted by fifty Air Force engineers under the direction of Colonel C. Russell Webb, Chief of the Development Command, took place on March 8-10, 1955. Shanks Affidavit at ¶ 12. This inspection involved evaluation of the design’s conformity to Air Force requirements; and where Boeing and Air Force engineers differed on aspects of the design, Colonel Webb made the final design determination. Smith Affidavit at ¶ 5. The full-scale mock-up conducted by Air Force personnel involved inspection of the model and relevant drawings, again with the Air Force as final arbiter of design disputes between Boeing and Air Force personnel. Webb Affidavit, 1113. The final Air Force review of the KC-135A before flight testing, the Contract Technical Compliance Inspection (“CTCI”) or “rollout conference,” took place in July, 1956. Smith Affidavit at II9. The CTCI’s purpose was to assure that the aircraft complied with the Detail Specification, as it had evolved, to conduct design analysis and to recommend changes if necessary. Shanks Affidavit Exhibit I. This extensive review resulted in a number of Air Force requests for design changes. See, e.g., Shanks Affidavit, Exhibit J. After requiring those changes, the Air Force CTCI Board accepted the KC-135A as being manufactured in compliance with its Detail Specification. Smith Affidavit at II9; Shanks Affidavit, Exhibits J and K. There was, throughout the design and manufacturing process, a steady stream of correspondence between the Air Force and Boeing. Webb Affidavit at 11 23. From 1956 to 1965 an Air Force engineering section office was located at the Boeing plant in Seattle. Smith Affidavit at ¶ 3. This office monitored Boeing compliance with design specifications under the contract and was involved in the process by which design changes in those specifications were approved or disapproved by the Air Force. Id. at Hit 4-10. It was also involved in the design of the aircraft’s flight test program and in analysis of test data. Id. at 1111. Flight tests were carried out by Air Force personnel, and by Boeing and Air Force personnel jointly. Id; Webb Affidavit at HU 18-19. C. Procurement and Design of the MC-1 Autopilot The Boeing DASH-80 prototype from which the Detail Specification for the KC-135A was developed did not have an autopilot. Webb Affidavit (February 22, 1985), Doc. # 227, Appendix 1, at ¶ 5. The Air Force determined that an automatic flight control system was “mission essential” for the KC-135A, because the jet tanker would necessarily fly long missions during which an autopilot could provide relief for the crew. Hale Affidavit • at 1113. As noted above, the Air Force procured the MC-1 autopilot with which the accident aircraft was equipped from Lear and supplied it to Boeing as Government Furnished Aeronautical Equipment (“GFAE”). In the 1950s, the Air Force procured subsystems, including automatic flight control systems, as GFAE directly from the subsystem manufacturer, for installation by the aircraft (“airframe”) manufacturer, because, inter alia, the GFAE process allowed the Air Force to be directly involved in design and development of such subsystems. Id. at ¶¶8-9. Pursuant to its contract with the Air Force, Boeing prepared the performance specification for the jet tanker’s autopilot (this document is designated DIO-2572). Id. at 1114 and accompanying Exhibit A. Also pursuant to its Air Force contract, Boeing prepared document D-14095, which defined characteristics of the aircraft necessary for the design and analysis of the autopilot. Id. and accompanying Exhibit B (which incorporates document DIO-2572 by reference). Both the performance specification and document D-14095 were the result of detailed discussions between Air Force personnel and Boeing. Id. Although the performance specification, as initially drafted by Boeing, gave Boeing a role in approving the autopilot’s Detail Specification and in qualifying the autopilot, the Air Force ordered a revision of the performance specification that denied Boeing any such role. Utterstrom Affid. at 114-5. The Air Force initially sought to acquire an “off-the-shelf” autopilot system, and pursuant to that interest Boeing undertook a study of several existing autopilots, including one manufactured by Lear, the Lear L-10. Hale Affid. at 1110 and accompanying Exhibit C. Although it felt that both the L-10 and an autopilot produced by Minneapolis-Honeywell (“MH-43”) would serve the purpose equally well, Boeing recommended the MH-43 over the L-10. Hale Affidavit, Exhibit C. Ultimately, in any event, the Air Force rejected Boeing's recommendation. The Air Force’s own analysis led it to conclude that new autopilot system development, and not an “off-the-shelf” autopilot, was called for. Hale Affidavit at 1115. On March 4, 1955, the Air Force issued a Request for Proposals (“RFP”) for development of an autopilot system to major manufacturers of automatic flight control systems. Id. at 1120; C. Brown Affidavit at ¶¶ 5-6. The RFP incorporated both document D-14095 and the performance specification (DIO-2572), which had undergone review by Air Force entities including the Strategic Air Command (the user command), the Air Logistics Command, and other Air Force engineering groups. Hale Affidavit at ¶ 19. The Systems Project Office’s autopilot contracting office had also made revisions in the performance specification. Id. Thus, the performance specification was approved by the Air Force for procurement of the autopilot before Lear’s selection as the contractor. Id. at 16. On April 3, 1955, Lear submitted its proposal in response to the RFP. C. Brown Affidavit at 117. The Air Force conducted both contracting reviews and technical reviews of all proposals. Technical feasibility studies were conducted by the automatic flight control system group as well as Air Force engineers in other aeronautical disciplines. Hale Affidavit at ¶¶ 23-25. After these reviews were completed, Lear was awarded the contract for the autopilot, which the Air Force denominated “MC-1,” in June of 1955. Id. at H 26; C. Brown Affidavit at 117. As was true for the procurement of the KC-135A, the awarding of the contract to Lear does not signify that the autopilot’s design was at that point set in concrete. Indeed, once the contract was awarded, negotiations began among Boeing, Lear and the Air Force, the purpose of which was to develop the detail specification for the autopilot by expanding upon and refining the requirements of the performance specification (DIO-2572) and document D-14095. Hale Affidavit at UK 28, 30; C. Brown affidavit at II10. These discussions continued through the fall of 1955. The Air Force set up offices, staffed by full-time Air Force personnel, at both Boeing’s and Lear’s production facilities in order to oversee the autopilot’s design and development. Hale Affidavit at 1128. Lear prepared draft detailed specifications for each autopilot component after Boeing and the Air Force. Id. at 1130; C. Brown Affidavit at ¶ 11. In December, 1955, having concluded that the detailed specification for the autopilot was in a sufficiently advanced state of development, the Air Force authorized Lear to building four prototypes. The first of these was delivered to Boeing in January, 1956. Hale Affidavit at If 31. It was subjected to flight simulator testing by Boeing, which testing necessitated design changes. Id. In the course of the autopilot’s design development, the ECP process was employed. Thus, where Lear or Boeing suggested changes in the developing autopilot detailed specification, the Air Force had first to give its approval for a request for an ECP. If that approval was given, Lear then had to submit the ECP to the Air Force for a second level of review. Id. at ¶ 31-¶ 32; C. Brown Affidavit at ¶¶ 15-16. The Air Force had the final decision regarding all design changes. Once the design changes necessitated by flight simulator testing had been effectuated, the prototype autopilot was installed in Boeing’s prototype aircraft and flight tested, by Boeing and the Air Force, from April to August, 1956. Hale Affidavit at 1133. Lear employees were observers to the flight testing, and made recommendations as to testing content. Further changes in the autopilot following flight testing were also handled by the ECP procedure, with Air Force final approval a continuing requirement. Id. After flight testing by Boeing and the Air Force in August, 1956, was complete, the Air Force ordered Lear to start production of the MC-1 for installment into KC-135As as they were produced. Id. at 11 34. Additional changes to the autopilot were required by the Air Force (as a result of Air Force testing and analysis) during the production phase, which changes were incorporated into the detail specifications for the components. C. Brown Affidavit at H 18. The first KC-135A to have an MC-1 in its final configuration was flight tested by the Air Force in 1958. Hale Affidavit at ¶ 37. After it flight-tested this aircraft, the Air Force determined that no further development was required for the autopilot. Id. Once the Air Force had determined that the detail specifications for the components were in their final form, Lear was required to retrofit autopilots produced in advance of that determination. C. Brown Affidavit at 1118. The retrofitting was completed in 1959. Id. With the incorporation of these changes, the Air Force determined that the autopilot met its detail specifications, which were incorporated into the Detail Specification for the aircraft. The Air Force approved the Detail Specifications for each component and designated the autopilot as standard equipment. Hale Affidavit at H 40