By Robert B. Barnett Jr., J.D.
In a design defect products liability suit by Pittsburgh firefighters alleging that the firetruck siren that Federal Signal Corporation manufactured caused them permanent hearing loss, the trial court was correct when it granted summary judgment to Federal Signal because the firefighters, who offered the Bromley Shroud as an alternative design, failed to offer any expert opinion regarding the effectiveness of the alternative design in warning motorists and pedestrians, the Superior Court of Pennsylvania has ruled. In this context, the court held, motorists and pedestrians are no less "users" of the product than are the firefighters. As a result, summary judgment was appropriate where the firefighters failed to offer prima facie evidence that the alternative siren was safe and effective for all users. One dissenting judge, however, would have reversed the lower court’s ruling (Dunlap v. Federal Signal Corp., August 20, 2018, Bowes, M.).
Federal Signal Corporation manufactures the Q2B siren, an omni-directional, high-decibel warning siren designed for use on firetrucks. Approximately 247 firefighters filed a mass tort products liability suit in Pennsylvania state court alleging that the Q-siren was unreasonably dangerous and defective and was negligently designed because its sound caused permanent hearing loss to the firefighters in the truck. The firefighters pursued a risk-utility theory of design defect, and they submitted the testimony of an acoustics expert, who offered as an alternative design the Bromley Shroud, which could be applied to the Q-siren to divert the noise to the front of the vehicle while still meeting industry standards for warning sirens. Federal Signal responded that attaching a shroud to reduce the angle at which the sound was emitted rendered its product less safe for pedestrians and motorists. At the conclusion of discovery, the court granted Federal Signal’s motion for summary judgment on both the strict liability design defect claim and the negligence design defect claim. Two of the firefighters appealed the decision to the Superior Court.
Alternative design. The firefighters proceeded under the risk-utility test, which required them to prove that a reasonable person would conclude that the probability and gravity of harm caused by the product outweighed the burden or cost of taking precautions (Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014); see Products Liability Law Daily’s November 21, 2014 analysis). In appealing the grant of summary judgment against them, the firefighters argued that the trial court erred in requiring expert testimony that the alternative design would provide as much protection to motorists and pedestrians as it would to firefighters in the truck. They referred to the motorists and pedestrians as non-users. All that they were required to prove, they argued, was that the shrouded siren met all industry requirements.
The trial court determined that the unreasonably dangerous design could be established with proof of an alternative feasible design that would reduce the decibel level of the noise experienced by the firefighters but still provide effective warnings to the public. The firefighters’ expert testimony established that the alternative design would reduce the decibel level for the firefighters. What was missing, however, and ultimately fatal to their case, was proof that the alternative would "still provide effective warnings to the public." The trial court concluded—and the appeals court agreed—that Tincher stood for the proposition that expert testimony was required to prove the alternative device’s effectiveness as a warning device to all users. The appeals court also agreed with the lower court (citing its own decision in Webb v. Volvo Cars of America, LLC, 148 A.3d 473 (Pa. Super. 2016); see Products Liability Law Daily’s September 12, 2016 analysis) that compliance with government or industry standards was not evidence that an alternative design satisfied all requirements. Because the firefighters’ expert witness never offered any opinion as to the effectiveness of the design for motorists and pedestrians, the firefighters failed to meet their proof requirements, and Federal Signal was entitled to judgment as a matter of law.
Dissent. Judge Lazarus filed a dissent in which she took issue with the majority’s interpretation of Webb as having "definitively reestablished a bright line evidentiary rule barring evidence of a product’s compliance with governmental and/or industry standards." According to Judge Lazarus, Webb revisited whether courts must prohibit defendants from presenting evidence of government or industry standard evidence in strict liability cases. In her view, the Webb holding was narrow, ruling only that Tincher did not undermine the rationale that a defective design could be widespread in an industry (one of the rationales for not relying on industry standards). She also interpreted Webb to say that whether standards can be offered as evidence is best left to a post-Tincher case. Contrary to what the majority believes, she said, the evidentiary rule is still to be finalized. As a result, she argued, a plaintiff in a strict liability case (like the firefighters here) may open the door to the introduction of evidence of compliance with industry or governmental standards. She would, therefore, have considered the evidence in this case for purposes of the risk-utility standard, and she would have reversed the trial court’s order granting summary judgment to Federal Signal.
The case is No. 2018 PA Super 231.
Attorneys: Clem C. Trischler, Jr. (Pietragallo, Gordon, Alfano, Bosick & Raspanti, LLP) and James David Duffy (Thompson Coburn, LLP) for Federal Signal Corp.
Companies: Federal Signal Corp.
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