has repeatedly explained the essence of the government contractor defense is it's not my fault the government made me do it and you cuz we were on summary judgment here it is the contractors burden to prove that every reasonable juror would say that the government made them defectively designed test in manufacture the particle separator that killed matthew betterman the contractors did not meet that burden and that's for two reasons st the government gave the contractors almost complete freedom to design the particle separator in whatever way they chose subject to only very general performance standards the design and testing choice of this particle separator were made by the contractors not by the government and so it couldn't possibly have been an exercise of the government's discretion and the nd reason they have not met their burden is that there's evidence  particle separator didn't even meet the performance standards that the government said and i actually want to start by discussing the nd reason because you don't even need to get to the st reason given the evidence on the  so to turn to that the nd prong of the government contractor defense one of the few things the government did require of the contractors was a particle separator that could filter out a certain percentage of certain size particles but seemingly unbeknownst to the navy when it signed off on the osprey that crashed here the contractors had analysis demonstrating that the particle separator did not in fact meet the efficiency standards of the government had set that is that it filtered out fewer particles than the government told it it had to and this accords with the finding of the crash investigation that too much sand and dust got into the engine you know the contractors they don't dispute that this is that evidence that suggests that the particle separator didn't meet these efficiency standards the standards for how much had to get out how much it had to filter out they don't dispute that evidence that demonstrate that the separator didn't meet those standards would undermine the government contractor defense at this point and that they would not be entitled to summary judgment what they say and what they asked the district court to hold is that this evidence is irrelevant as a matter of law in other words  reasonable juror could possibly infer from this evidence that the contractors did not meet the government standards and that's just not the case the main argument they made is that the sand used in conducting this analysis had some very small particles in it some small percentage of the sand had very small particles and the government didn't have any standards about these very small particles and so they say that it's just totally irrelevant and particularly they explain the way a particle separator works is that it's better at filtering out big particles than small particles so the fact they tested on that sand that has some tiny particles means it's not going to work as well so of course it didn't meet the government standards in that situation but there's evidence of the record to show that their explanation is not necessarily true so st at the excerpt of six hundred and twenty six dollars show that the tests of the prototype for the particle separator result in almost the same efficiency st small and large particles so this idea that the separator is just way better at filtering out large particles than small particles is just not true and we see that in other places in the record as well when they were testing prototypes very slight variations in the particle separator would mean that it filtered out some are part small particles great but actually large particles were the particles it had trouble with because they would go balancing all over the place apparently is not necessarily better at filtering out large particles than it is at filtering out small particles and in fact in many cases it's the reverse so if the particle separator fails to meet the basic performance requirements when there are some extra small particles included in the tests and that may in fact demonstrate then even worse problem when it comes to the large particles and what the government was concerned about and given that at this stage all inferences have to be drawn in favor of the detriments is certainly sufficient to create a dispute the fact as to whether the particle separator in fact complied with the government's requirements and that's all that's needed to reverse here and the contractors make an argument about how this evidence doesn't come from the specific aircraft that failed but again a reasonable juror could certainly infer that if the general particle separator doesn't meet the standard so too will every other particle separat and in fact the contractors don't argue that there's any difference between the particle separator this analysis comes from and the one that was on the aircraft that crashed didn't meet the specification for the twenty micro particle it's  actually you know it's not clear so there are some tests of a prototype in the record that show after a bunch of jiggering they met the it met the specifications for twenty microns but then we also have this analysis leader that the government didn't know about that shows that it might not have met those specifications with that analysis was the subject of that analysis particles that was more than twenty micron the subject of that analysis as i understand it  s sand that included a wide variety of particles so i believe seventy percent of the sand in that analysis did include twenty microns or greater and thirty percent included sand that was smaller than twenty microns and so to the extent that there's evidence particularly since there's evidence that in fact even if you change just slight variations in the particle separator it is better at filtering out small particles than large particles a reasonable jury could take a look at this in say i can  from this that it probably didn't meet the government standards and that's all there is here they have to prove that no reasonable juror could possibly infer from this evidence that they didn't meet the standard and that's just not the case and so for that reason alone that reason alone is sufficient to reverse the district court here but i want to move on briefly to the st prong of a government contractor defense which also is not met here so the contractors have also failed to establish that the government approved reasonably precise specifications to begin with and i think here before diving into the facts it's helpful to take a step back and talk about what this problem is getting at the government contractor defense is federal common law and it stems from the federal tort claims act which is about the government's liability not contractors liability and what the federal tort claims act says is the government is liable for its own harms except when it's the government we're going to say there's a defense so in other words what boyle says is if you can say the government made me do it if you can say it's the government's choices and not my choices then there's a defense if you can't say that if it's the contractors exercising discretion and not the government then there's no defense and so the point of this st prong the point of the requirement that the specifications be precise is that the discretion over significant details and choice design choices has to be exercised by the government in order for the defense to apply if the government only gives the contractor general guidelines  contractor all of the important design choices it's the contractors discretion and not the government's discretion that is at issue and the government contractor defense just simply doesn't apply in that case and that's exactly what happened here here the government gave the contractors almost complete freedom to design whatever they wanted all the government said is make sure a certain percentage of certain types particles stay out minimize the intake everything else and make it into a girl to the into existence oh yeah and make it self cleaning that's it that's like if the government went to home depot and said you know in the example of boil i want an air conditioner that clean cools a room to seventy degrees and i want it to be a window air conditioner and not a central air conditioner and that's it then all of the discretion to design that airconditioner all of the discretion to design how this particle separator actually worked was the government's and in fact there's a language in the contract that explicitly says the point of this is to allow the contractors quote flexibility that's the opposite of the government made me do it  court held in snow that is just not enough when the government imposes only minimal or very general requirements for the contractor the defense is in applicable and that's certainly the case here and i just wan briefly address the government's argument rather the contractors argument that that this is all remedied because eventually the government rubber stamped its designs and with this court's cases have held over and over again is that a rubber stamp is just not enough there has to be in the words of get substantial substantive involvement in the decision making process by the government the government has to in adopting the design choices the contractor made support what i just heard and i think it probably makes the most sense to kind of walk through it from the beginning and then at the end all address this is power point slide that is sort of the that she began with which has to do with conformity so back in the mid eighty's the way this program starts at least as we get to this particle separator component is the contractors and the government are in negotiations over how to do this the government picks the design and to say that you know we just have performance standards here and we'll be very clear about this when the specification says self cleaning system that right there is a significant policy choice by the military so you can go to directions on things like this a military aircraft frequently present situations like this where you know we can do a filter but the problem with the filter is it chokes off too much air to the engine and we want big high performance engine is because we're going to fly up out of places where they're shooting at us and fly away really fast so the military right there has to make a tradeoff and if you go to the declaration of mr pauling who's a navy engineer in the navy program who's very familiar with this program he talks all about this that's a trade off we made we didn't want the filter so filters aren't self cleaning so when they go with a self cleaning system they are making a trade off in a policy decision we don't want the filter so they pick what is this inertial system so it what happens is the air comes rushing in you make it fly around corners and then the particles can't make the corner and then they fly away and they get blown out so that's the st design choice that that the military makes which is the st prong a boil so then we have a negotiation over the specifications on ok how much sand needs to be screened out and at what size and that was also negotiated with the military so that's more back and forth then and that's where you get the numbers the threshold numbers ok then and this is one of the most important things i can emphasize and if i could read through the brief today i would have made this more prominent is it's very important when talking about the government's involvement to read the test report and the test plan for both in the record of the test plan starts and excerpts are record for twenty two dollars the test report starts the excerpts of record four hundred and fifty eight and those two documents along with the declaration of dale sours who's the chief engineer for bell and then mr pauling just really put to rest any notion that sort of the government has delegated all the contractors and they they just figured it all out and it's just like buying an air conditioner at home depot and of course the air conditioner example comes from the supreme court's decisions or decision and boil they're like you know if you just said cooling capacity and nothing else then you know that's that's not enough government involvement if you if you go to the test plan and the test report there is no way to say that so here's what happened they're making this inertial system they write up a test point the test plan itself specifies the type of sand that is used is right in there and actually i can give a citation on that if it's helpful to the specified sand you can see it at excerpts of record seven hundred and seventy four and seventy six and also eight hundred and seventy nine it's right in there so if you're using a different type of sand you're not following the specified test procedure so they go in to the testing with these different configurations and it's very delicate because what's critical in that inertial system is the  contours that you're making the air flow around the test these different contours and actually there was more than one that passed the efficiency standards and they're not just testing for efficiency in getting the sand out they're also looking at are you distorting the air flow into the engine and if i can make one cabbie on the engine the engine is not part of the scenes made by rolls royce these defendants have nothing to do with the engine it comes to them as government furnished equipment so another piece of this is what is the tolerance of that engine to operate with some sand and that's another issue that's a rolls royce government issue that's not even the defendants but as you'll see in the test report they go through ten different configuration to make these little tweaks and it is all spelled out i mean you've got the diagrams and the math and along with ms bennett i am also not an aerospace engineer or a particle i've heard anything like that and that's going to be significant when i talk about conformity because i think the only way she can make the kinds of arguments she's making is if she had expert testimony so they test these configurations they they've see what the results are for both screening out sand but also distortion of the air flow into the engine they pick one mr souers testifies the government is involved in all this the military representatives are there they approve the test plan there at the testing he says i had regular contact with them my quarterly reviews with them that's the kind of back and forth ok that's not going to home depot ok that's working on a design with the government so then they pick the design that the government is ok with in terms of both screening out sand and also getting the best airflow the airflow that the government wants to the engines and then what they do is they digitize that and that's that's the inlet that's the contour and that goes into the specification and so to go to mr bennett's kind of bright line headline in the beginning the government made me do it when they did digitize those contours and they write it into the contract at that point the government is making you do it you have to build it that way bell and boeing can't go changing anything at that point to comply with the contract you must build it down to the millimeter and they specify all the materials every last piece of that thing is specified and it comes right out of that testing that the government was part of so i think that back and forth easily satisf school nd standard is whether we have conformity and if i could just speak to that a little bit just to clear up the record so that the document at issue is excerpts of record three hundred and twenty nine i will just  it's a single powerpoint slide ok and it's from two thousand and eleven and i want to make one important clarification if you look at it it was produced by the navy so this notion that you know that's this was going on the government wasn't aware of the government had no idea this document came from the navy and it was part of if i can hold up the beginning of that  e kicked off a meeting between the contractors and now they're about looking at different concepts for the screening of sam ok so to the extent i heard you know this this when i wanted the government to know that is not that's not fair that the document come from the navy in the government knew it was from a meeting then we get to what it says and it's just this should small table and says if you're using a particular type of sand i soak or seen and here's what we think the current keeps system would do and that is that is really a simple mathematical exercise that's based on the fineness of the sand and the type of sand the ice of course sand as explained in the nd declaration of david lowe who's the team leader for the program that type of sand that they're talking about there is a finer type of sand and it doesn't matter whether it's finer whether it's bigger whatever it's not the tests and it's not the tests and so you can't go from from this single slide to say every v twenty two i think every  sata compliance that's not a fair inference that is classic speculation classic speculation they have stray slide here's my speculation about where that goes from speculation to a type of evidence they could stop summary judgment you really need expert testimony or you need to take the deposition of mr lowe and i will end with this the plaintiffs for whatever reason did not submit declarations they didn't take the depositions of any of these folks they didn't put in an expert report and that if they had questions they they had the test reports in october of two thousand and sixteen dale sours david lowe are all in the initial  disclosures if they had wanted to learn more about any of this if they wanted to test you know mr souers how much you say there was this interaction exactly how much was it what did you talk about and if so if they could have deposed deal sours and if they want to make the argument that you know this this live here at a kickoff meeting is saying something significant about compliance or then they could depose mr lowe or they could have an  this accident was preceded in two thousand and thirteen by accident in the vatican creech air force base it's very similar very similar and it led to a change in the operating manual and then this accident occurred on the menu was changed to say you shouldn't hover in these brown are conditions for more than sixty seconds and what this this accident they come in once for like thirty five seconds and they go out and then they come back in for about forty five seconds and they get overwhelmed and unfortunately a decision is made let's try and go up to get out of it so then when the engine has a problem they're falling even farther and there are two fa that report the command investigation report if there's any question about any of this so the excerpts of record three hundred and seventy dollars it goes through the whole scenario the marines do not come out of that focused whoa you know i mean they say you know we should look into having a you know better better system here but their primary criticism and their recommendations for discipline are about you should have done a better site survey of where you were going to land those aircraft you should have had better supervision of those young pilots you should have put them in this situation and you need to clear up your manual and that's what they did so that that's how they deal with this risk that's how they deal with the risk trade off and there's no argument that the government didn't know about these risks and and voile is very clear that the contractors only have to learn about risks that the contractors know that the government is not aware of the navy's been well aware of these risks for of i want to time their lead they u s military the only operator of these aircraft and there have been many incidents and they have dealt with it through training and supervision there are no questions i will sit down  address some of the points that the contractors counsel have made so st we agreed that there was a back and forth there's evidence of back and forth on that initial general performance standards of how much is it going to filter out the government said we want to high number the contractor said that's going to take us a long time let's have a lower number and there is that there is a back and forth about that and we agree that the government decided that it should be generally a particle separat that if you look closely at the record that's where the back and forth ends after that there is no evidence at all of the government's involvement in any substantive choice of how to then design a particle separator that filters out x percentage of particles none there's literally nothing in the record about that and the contractors cite the testing and they say st they say there was this detailed test plan and that test plan was created by the contractors  it was and there's no evidence that the government had substantial involvement in developing it and in fact the declarations that they cite for that site you are six hundred and twenty six dollars and all that declaration says the government approved the report all that shows th government rubber stamped it there and there specifically nothing in the record that shows that the government had anything said anything about what kind of sand you should test with they haven't demonstrated at all that they suggesting there's no evidence on the record that the design specifications to the contrary no i agree that once the contractors designed made the drawings of of this part as well as the rest of the aircraft that those were then incorporated into the contract that's exactly what happened in snell as well where this court held that the government contractor defense doesn't apply where you have these broad requirements you know design x kind of a thing with y performance specification and the contractor does all that work the fact that at the end the government rubber stamps it and says ok now manufacture this that's not enough this court has repeatedly held that that's not enough the nd thing i want to mention is they say they put a lot of emphasis on the fact that the government chose one of ten possible configurations and they say it's not true that only one met the specifications that's not what the record says if you look at our four  three the record shows the different particle separator produce prototypes and only one listed there meets the requirements there's nothing in there if they're saying that there were other options that's not in the record which means that they have not met their burden to show that at this stage maybe further discovery would show that and maybe that would then go to a jury but right now on this record the government had one choice and some choosing the only choice if i say we only have one air conditioner that cools to seventy degrees the fact that the government chooses that air conditioner is not saying that it is supporting or choosing or even reviewing all of the design choices that went into that particular one it's saying that's only one you gave me and that's the only one that meets my requirements and i'm not saying that they have to present a bunch of alternative designs but what i am saying is that the fact that they only picked presented one that worked means that there couldn't have been discretion in just choosing that one so to find the exercise of discretion in approving a design you have to go back to what get says and what snell says there has to be detailed substantive review and i think comparing this case to get this actually is useful here because it shows what is lacking here so in gets there were regular technical meetings about this specific part as it was being designed the government issued formal requests for information about aspects of the design the government called its own meetings to discuss and test aspects of the part the government even rejected the design it one point none of this has happened here none of it and i see my position there is there is simply just no indication in the record the briefs make these broad statements about the back and forth but if you look at every record site none of the record cites actually show that none