Cite as: 516 U. S. 417 (1996)
Breyer, J., dissenting
These background facts and circumstances, say the companies, show that the Government knew far better than they that its Agent Orange contract specifications would force them to produce a risky product for risky use. They add that all parties knew of legal doctrines that made the Government responsible in analogous circumstances for analogous risks. They argue that the Government would not have wanted to force them (under the DPA) to enter into a contract subjecting them (through its specifications) to serious risks of damage, in respect to which (because of the Government's superior knowledge) they could not bargain for compensation. They conclude that the Government, in the contracts, took responsibility for those risks by implicitly promising to assume responsibility for the consequences of specification defects, including indemnification for the settlement of defect-related tort suits.
The Federal Circuit affirmed a grant of summary judgment against the companies. But, in doing so, it did not decide against the companies in respect to their claimed promises. Instead the Federal Circuit assumed (reluctantly and for argument's sake) that the companies would be able to prove the existence of the promises, but it went on to hold against them regardless. Even assuming the promises, the Circuit wrote, the companies will not be able to prove causation between promises and damages. The Circuit believed that, had the companies litigated the Agent Orange tort suits instead of settling them, they would have asserted a "government contractor defense," see Boyle v. United Technologies Corp., 487 U. S. 500 (1988), and thereby won the lawsuits. It concluded that, since the companies could readily have won the suits, the settlement amounts to a "voluntary payment" that cuts any causal link between a broken promise, or warranty, and resulting harm.
The companies, in their petition for certiorari and initial brief on the merits, primarily asked us to review, and to re-
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