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2018 PA Super 231

RONALD M. DUNLAP

Appellant

v. FEDERAL SIGNAL CORPORATION

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DINO ABBOT Appellant

v. FEDERAL SIGNAL CORPORATION

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KEITH BRADLEY Appellant

v. FEDERAL SIGNAL CORPORATION

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BRIAN CAVANAUGH

Appellant

v. FEDERAL SIGNAL CORPORATION

***
GLENN GASIOROWSKI : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIAJ

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- Appellant

v. FEDERAL SIGNAL CORPORATION

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ROGER MAHER Appellant

v. FEDERAL SIGNAL CORPORATION

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CARL ROELL Appellant

v. FEDERAL SIGNAL CORPORATION : : : : : : : : : : : : : : : : : : : : :

No. 1747 WDA 2016 Appeal from the Order Entered October 21, 2016 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD

- 13

- 006083, GD

- 13

- 009820, GD

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- 010550,

GD

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- 013251

BEFORE: BOWES, J., LAZARUS, J., and OTT, J. OPINION B Y BOWES, J.: FILED AUGUST 20, 2018 Appellants Roger Maher and Carl Roell (“ Maher and Roell”) appeal from the order granting summary judgment in favor of Federal Signal Corporation (“Federal Signal”), and dismissing all remaining claims. We affirm.J

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Maher and Roell are members of the Pittsburgh Bureau of Fire. They are part ies in a mass tort products liability action commenced by approximately 247 firefighters who allegedly suffered permanent hearing loss due to exposur e to siren noise from the Q2B siren (“Q

- siren”) manufactured by Federal Signal. Their cases were consolidated for trial with cases filed by six other firefighters (collectively “plaintiff firefighters”) under the Dunlap caption and designated as Trial Gro up 1A. 1 The underlying complaint of the plaintiff firefighter s is that the Q

- siren
is unreasonably dangerous and defective and negligently designed because it emits omnidirectional , high

- decibel sound that , over time , causes permanent hearing loss to fir efighters occupying the fire truck

. They offered the expert testimony of Christopher J. Struck, an acoustics expert, to the effect that a shroud, particularly the Bromley Shroud, could be applied to the Q

- siren to divert the noise to the front of the vehicle while still meeting industry
stan dards for warning sirens. Instead of emitting sound in all directions, the shroud would funnel the noise in a cone

- shaped direction in front of the firetruck , thereby reducing the noise level in the cab of th at vehicle. Federal Signal argued that atta ching a shroud to reduc e the angle at which the sound was emitted would render its product less safe for the pedestrians and motorists it was intended to warn. It pointed to the danger presented by the proposed design to motoris ts and pedestrians, especia lly a t

_________________ __________ ______ ____ _______ 1 Originally, Trial Group 1A consisted of eight plaintiffs. The claims of Christopher Wilson were dismissed prior to the order at issue herein.J

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intersection s , as the shroud would reduce the noise level of the siren to the rear and sides of the vehicle. The company contended that plaintiff firefighters had failed to offer prima facie evidence that the shrouded alternative was effective and safe for all users, including th e pedestrians and motorists it was intended to warn. After th e completion of discovery and the filing of all expert reports, Federal Signal filed a Frye 2 motion to preclude the expert testimony of Mr. St ruck, and a motion for summary judgment on the strict liability claim

. The Group 1A plaintiff firefighters opposed both motions. Following argument on January 21, 2016, the trial court denied the Frye motion, but granted summary judgment on the strict products liability claim . In response to Federal Signal’s motion for clarification of the order, the trial court pointed out that the plaintiff firefighters’ negligence claim was still outstanding , and granted leave to Federal Signal to seek summary judgment on th at claim a s well. Federal Signal filed the motion, the f irefighter plaintiffs opposed it, and on October 21, 2016, the trial court granted summary judgment in favor of Federal Signal on the remaining negligence claims. Maher and Roell timely appealed and complied w ith the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and the trial court penned its Rule 1925(a) opinion. They raise one issue for our r eview:

_________________ __________ ______ ____ _______ 2 Frye v. United States , 293 F. 1013 (D.C. Cir. 1923).J

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- Whether the [t]rial [c]ourt made an error of law in gr anting [Federal Signal’s] [m]otion for [s]ummary [j]udgment and dismissing the action due to the lack of expert testimony on the issue of whether the proposed feasible alternative design “will provide as much protection to motorists, pedestrians, and firef ighters occupying the fire truck as the design of the Federal Signal siren that provides unrestricted 360

- degree noise projection.” Memorandum of the Hon. R. Stanton Wettick, Jr. , [4/14/16, at 8.] Appellant s’ brief at 4.
It is well settled that “ s ummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Truax v. Roulhac , 126 A.3d 991, 996 (Pa.Super. 2015) ( en banc ) (quoting Summers v. Certainteed Corp. , 997 A.2d 1152, 1159 (Pa. 2010) )

. In ruling on such a motion, “the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non

- moving party” and “r esolve all doubts as to the existence of a genuine issue of material fact against the moving party.” Id . “ Where the non

- moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary jud gment.” Babb v. Ctr. Cmty. Hosp. , 47 A.3d 1214, 1223 (Pa.Super. 2012) (citations omitted). “[F]ailure of a non

moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlem ent of theJ

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moving party to judgment as a matter of law.” 3 Id

. Thus, “a proper grant of summary judgment depends up on an evidentiary record that either (1)
shows the material facts are undisputed or (2) contains insufficient facts to
make out a prima fa cie cause of action or defense.” Basile v. H & R Block,
Inc. , 777 A.2d 95, 100 (Pa.Super. 2001) (quoting McCarthy v. Dan Lepore & Sons Co., Inc. , 724 A.2d 938, 940 (Pa. Super. 1998) )

. On appeal, this Court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo . This means we need not def er to the determinations made by the lower tribunals.
Truax , supra at 996 (quoting Weaver v. Lancaster Newspapers, Inc. , 926 A.2d 899, 902

- 03 (Pa. 2007)). “To the extent that this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record.” Id . at 903. Thus, our responsibility as an appellate court is to dete rmine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact

- finder. If there is evidence tha t would allow a

_________________ __________ ______ ____ _______ 3 In Tincher v. Omega Flex , 104 A.3d 328 (Pa. 20 14), our Supreme Court noted that , in California, when a plaintiff proceeds on a strict products liability theory based on the risk

- utility standard, the burdens of production and persuasion shift to the defendant to prove that its product is not defective in design. See Barker v. Lull Eng'g Co. , 573 P.2d 443, 445 (Cal. 1978). The Tincher Court declined to address, however, whether such a burden

- shifting rule applied in Pennsylvania.J

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fact

- finder to render a verdict in favor of the non

- moving party, then summary judgment should be denied. Id . (quoting Reeser v. NGK N. Am., Inc ., 14 A.3d 896, 898 (Pa.Super. 2011)) (citations omitted). Implicated herein is Pennsylvania’s strict products liability law governing design defects. The Restatement (Second) of Torts § 402A remains the law of Pennsylvania in such actions. In Tincher v. Omega Flex, 104 A.3d 328, 399 (Pa. 2014), our Supreme Court declined to adopt the Restatement (Third) of Torts, but clarified that a plaintiff could prove defective design in two ways: 1) by showing that the product’s danger is unknowable and unacceptable to the average consumer (the consumer expectations test); or 2) that a reasonable person would conclude that the probability and gravity of the harm caused by the product outweigh the burden or cost of taking precautions (the
risk

- utility standard). Plaintiff firefighters proceeded under the risk

- utility test. The relevant factors for such an a nalysis were set forth in Tincher : 1. The usefulness and desirability of the product

– its utility to the user and the public as a whole.
2. The safety aspects of the product

– the likelihood that it will cause injury, and the probable seriousness of the injury

. 3. The availability of a substitute product which would meet the same need and not be as unsafe.
4. The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utilit y.J

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5. The user’s ability to avoid danger by the exercise of care in the use of the product.
6. The user’s anticipated awareness of the dangers inherent in the product and their availability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions.
7. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. Tincher , supra at 398

- 99 (quoting John W. Wade, On the Nature of Strict Tort Liability for Products , 44 Miss. L. J. 825, 837

- 38 (1973)). The Tincher Court recognized that trial courts would not necessarily have the expertise to balance these factors, and thus, in the majority of cases, experts would be required to analyze them. According to Maher and Roell , their design for the shrouded siren would eliminate the unsafe character of the siren without impairing its usefulness as a warning device. They claim that the trial court erred in requiring exper t testimony to the effect that the proposed alternative design would provide as much protection to motorists, pedestrians, and firefighters occupying the fire
truck as Federal Signal’s Q

- siren. They contend first that the trial court looked
at the risk

- utility test, focused on the third factor, and incorrectly expanded it
to include non

- users of the product, namely pedestrians and motorists. In addition, Maher and Roell contend that such expert testimony is unnecessaryJ

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in light of evidence that the proposed alternative design, the shrouded siren, meets all industry requirements set forth in SAE J1849. 4
Federal Si gnal counters first that Maher and Roell’s argument based on the SAE standard is not properly before this Court , as the standard and
tes timony regarding its promulgation were only s ubmitted to the trial court
with the motion for reconsideration. They maintain that e vidence that was not before the trial court in ruling on the motion for summary judgment is not part of the record on appeal. Second, Federal Si gnal argues that the trial court correctly granted summary judgment since Maher and Roell did not present expert testimony necessary for a prima facie case. Not only were the plaintiff firefighters required to demonstrate a feasible alternative design, but also that the
alternative design was effective and did not introduce a new or greater hazard. Mr. Struck’s expert testimony did not address the general effectiveness of the
shrouded siren versus the Q

- siren vis

- ‘ a - vis the public

. Third, Federal Si gnal a rgues that even if the SAE standard is considered, compliance therewith is not de facto proof that a siren is safe and effective.
It maintains that the standard only sets minimum noise outputs in the front

_________________ __________ ______ ____ _______ 4 The Society of Automotive Engineers promulgates industry standards. SAE J1849 contains performance requirements, guidelines, and test methods for electronic siren systems and electromechanical sirens used on emergency vehicles with the right

- of

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of the vehicle and does not contemplate the general risk to pedestrians and
motorists. Finally, Federal Si gnal maintains that the trial court properly considered
the s afety of the public, namely pedestrians and motorists, as well as firefighters in determining whether th e product’s design was defective. It points to language in Tincher , supra at 399, advising courts to consider the “utility to the user and to the public as a whole.” Federal Si gnal observes t hat
Maher and Roell cite no authority in support of their conte ntion that pedestrians and motorists are n ot users of the warning device

. As the trial court noted, sirens are dangerous products. They emit noise calculated to warn motorists and pedestrians of the presence of a speeding emergency vehicle. In order to prevail in the instant products liability action , plaintiff firefighters had to prove that Federal Signal’s Q

- siren was unreasonably dangerous, and that exposure to the noise caused the firefighters’ hearing loss. The trial court found that the medical evidence in the record, if credited by the factfinder, established the requisite causation. Unreasonably dangerous design could be established with proof of an alternative feasible design that would reduce the decibel level of the noiseJ

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experienced by the firefighters , but still provide effective warnings to the public. 5 The court found that proof lacking. Plaintiff firefighters’ acoustics expert, Mr. Struck, presented a n alternative siren design that would afford greater protection for firefighters
fr om hearing loss by adding a Bromley Shroud, which would direct the noise to the front of the fire truck and away from the cab. However, he focused solely on the benefits of the shrouded design to the firefighters occupying the cab of the firetruck; he did not opine whether that design would protect the public. The expert offered no opinion whether this alternative design was as effective in warning all users, including pedestrians and motorists, located to the side and rear of the vehicle. In addition, M r. Struck expressly stated that
he had no opinion as to what specific angle the siren needed to project in order to be effective as a warning device, and that he “would simply defer to the industry standard, the SAE J1849.” Struck Deposition, 4/19/13, at 150. The trial court concluded that, after Tincher , expert testimony was required regarding the alternative product’s effectiveness as a warning device for all users . It rejected the notion that the SAE J1849 standard, or the proposed alternative’s com pliance with the standard, was a substitute for such

_________________ __________ ______ ____ _______ 5 The trial court noted evidence in the record from an expert in an Illin ois case that, in forty to fifty

- two percent of accidents involving emergency response vehicles, the initial point of collision was the side or back of the emergency vehicle. Trial Court Memorandum, 4/14/16, at 7 n.6 (citing Arndt Tr., 11/17/11, at 1216:5

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expert testimony, as it was only a minimum industry standard. 6 We agree for the reasons that follow.
For decades after Section 402A became the law of Pennsylvania, defendants in strict products liability actions sought to introduce proof of their product’s compliance with minimum industry standards in order to negate the existence of a design defect. We held such evidence to be inadmissible under
the then

- prevailing law of Azz arello v. Black Bros. Co. , 391 A.2d 1020 (Pa. 1978) ( overruled by Tincher , supra ), reasoning that compliance with minimum standards is not proof of non

- defective design and that negligence concepts ha ve no place in strict liability

. This Cou r t recently noted in Webb v. Volvo Cars of America, LLC , 148 A.3d 473 (Pa.Super. 2016), that the prohibition against evidence of government or industry standards had “its genesis in the now

- defunct

_________________ __________ ______ ____ _______ 6 We find no merit in Federal Signal’s position that the SAE standard is not before us on appeal because a copy of the standard was not initially provided to the court. The standard was identified in Mr. Struck’s report and discussed at his deposition

. Plaintiff firefighters contended that a jury could find that the alternative design provided the same protection to the public based merely on its compliance with th at i ndustry standard. At oral argument on the motion for summary judgment, counsel for Federal Signal explained why the expert’s opinion that the proposed alternative design met the industry standard was insufficient to demonstrate that it was effective in pr otecting the public. See N.T., 1/21/16, at 33. In granting summary judgment in favor of Federal Signal, the trial court did not need a copy of the standard in order to find that industry standards are minimum standard s only, and that plaintiff firefighte rs could not prevail without expert testimony that the alternative design was effective in protecting motorists and pedestrians.J

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Azzarello regime.” Id . at 483. Nonetheless, we concluded therein that the overruling of Azzarello did not provide a sufficient basis to disregard the evidentiary rule e spoused in Lewis v. Coffing Hoist Div., Duff Norton Co.,
Inc. , 528 A.2d 590 (Pa. 1987) , and Gaudio v. Ford Motor Co. , 976 A.2d 524, 547 (Pa.Super. 2009) , that a product’s compliance with government
standards is irrelevant and inadmissible in a strict products liability action

. 7
Id . at 483

. In particular, we found that Tincher did not undermine the concern, identified in Lewis , that defective design could be widespread in the industry , and hence, e vidence that a product comported with industry standards was not proof of non

- defectiveness

. See Lewis , supra at 594. 8

_________________ __________ ______ ____ _______ 7 We do not disagree with the learned Dissent that this Court posited in Webb v. Volvo Cars of America, LLC , 148 A.3d 473 ( Pa.Super. 2016) , that the evidentiary rule prohibiting admission of industry standards might be re

examined post

- Tincher . Nonetheless, in Webb , this Court reasoned that Tincher did not abrogate the accepted notion that defective design c an be widespread in an industry, and that compliance with industry standards is not proof of non

- defectiveness

.
8 The continued viability of the evidentiary rule espoused in Lewis and Gaudio is not before us. However, that issue arose in Renninger v. A&R Mach. Shop , 163 A.3d 988 (Pa.Super. 2017), a post

- Tincher design defect case. The plaintiff proceeded under a risk

- utility analysis. Plaintiff worked in a plant that constructed modular homes. Casters were attached to the bottom of the frame of the home s to enable them to move along the assembly line. Plaintiff sustained a serious injury when a caster designed and manufactured by the defendant ran over his foot. Prior to trial, plaintiff filed a motion in limine to preclude evidence of industry standar ds applicable to casters, as well as OSHA standards. The trial court denied the motion, reasoning that , “industry standards may supply the jury with a useful starting point from which to evaluate the caster’s design.” Id . at 997. At trial, plaintiff’s e xpert opined that the casters were defective because they lacked a toe guard; the defenseJ

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The question herein is whether Maher and Roell adduced sufficient evidence on the effectiveness of their proposed alternative design to withstand summary judgment. They argue that proof that their design comported with industry standards is enough to prov e its effectiveness for all users. The trial court concluded that expert opinion to that effect was necessary and that , although Mr. Struck opined that the proposed alternative design was safer for firefighters, he did not offer any expert opinion regard ing the effectiveness of that design in warning motorists and pedestrians. In lieu of expert opinion on that subject, Mr. Struck merely d eferred to the SAE standards, which are minimum requirements only. In ruling on the motion, the trial court conside red evidence of the industry standards and the compliance of the firefighters’ proposed design
with those standards. The court determined that compliance with standards
alone wa s not prima facie evidence that a product’s design was non - defective and effec tive , and held that e xpert opinion was necessary to establish that the

_________________ __________ ______ ____ _______ expert testified that the casters met the industry and ANSI standards, which did not require a guard. The jury returned a defense verdict. On appeal, plaintiffs

- app ellants purported to challenge the trial court’s admission of industry standards regarding casters, as well as th e OSHA standards. Unfortunately, they limited their argument to the latter . Accordingly, we confined our analysis to the arguments actually p resented and did not reach the question whether the court erred in permitting the defense expert to introduce and rely upon industry standards for casters after Tincher

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proposed alternative design was effective and met the need of all users , not just firefighters. At issue are technical matters that are beyond the ken of ordinary persons and within the knowledge of expert witnesses available to the parties. We agree with the trial court that expert opinion on the effectiveness of the alternative design as a warning for pedestrians and motorists was required, and that it was lacking herein. 9 While Maher and Roell offered expert opinion that the ir proposed alternative design was safer for firefighters, they failed to adduce competent expert opinion that it also met the need for an effective warning for motorists and pedestrians. Maher and Roell’s pr oof that their proposed design met the industry standard was not enough to establish a prima facie case that it was more effective for all users than the Q

- siren

. Order affirmed. Judge Ott joins the opinion. Judge Lazarus files a dissenting opinion.

_________________ __________ ______ ____ _______ 9 The Dissent expresses disagreement with the notion “ that we must disregard the evidence in this case purporting to show Maher and Roell’s alternative design is effective for purposes of the risk

- utility standard ” and maintains that “[t] he evidence of record is sufficient to make a prima facie case that the Q

siren was defective and Maher and Roell’s proposed alternative design provided as much protection to the public as the Q

- siren. ” Dissenting Opinion at 7

- 8. The record reflects , however, that the trial court did not disregard the standards in ruling on the motion for summary judgment. Rather, the court concluded that expert opinion was required on the efficacy of the alternative design with regard to p edestrians and motorists ; evidence of compliance with the standards alone did not suffice for purposes of making out a prima facie case.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/20/2018