Judge Richard Arcara
Oshkosh Corp.’s 1988 contract to make Medium Tactile Vehicle Replacement (MTVR) trucks for the U.S. Marine Corps was approved in 2001. Auther was hurt in 2007 after a tire and wheel separated from a truck, allegedly due to a defectively designed diaphragm in a brake chamber. By early 2004 USMC informed Oshkosh about cracked diaphragms. Oshkosh continued to make MTVR trucksincluding the subject truckwith the original diaphragm specifications through August 2004. District court denied Oshkosh judgment under the government contractor defense. It denied Oshkosh interlocutory appeal on whether the first prong of the test in Boyle v. United Technologies Corp.whether USMC approved the reasonably precise specifications for the subject truckwas met. Even if the prong were met fact issues identified by a magistrate judge exist, which could materially affect summary judgment and litigation’s outcome. Even if USMC’s continued use of the diaphragm, while investigating and implementing improvements, constituted approval of the diaphragm’s reasonably precise specifications, there was a fact question whether Oshkosh had any responsibility over the retrofitting program and for the failure to retrofit the subject truck.
