Pennsylvania Product Liability Class Action Dismissed

Pennsylvania Product Liability Class Action Dismissed

Recently, the Pennsylvania Superior Court, in Dunlap v. Fed. Signal Corp., affirmed a trial court’s entry of summary judgment for a defendant in a products liability case wherein it was asserted that the design of the siren caused the hearing loss of a class of firefighters.

247 members of the Pittsburgh Bureau of Fire were plaintiffs in a mass tort products liability action who allegedly suffered permanent hearing loss due to exposure to siren noise from the Q2B siren (“Q-siren”) manufactured by Federal Signal. The firefighters complained that the Q-siren was unreasonably dangerous and defective and negligently designed because it emits omnidirectional, high-decibel sound that, over time, causes permanent hearing loss to firefighters occupying the fire truck.

The firefighters’ claim was supported by the expert testimony of an acoustics expert, who opined that a shroud 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. More specifically, the shroud would funnel the noise in a cone-shaped direction in front of the fire truck, thereby reducing the noise level in the cab of that vehicle.

In its defense, Federal Signal argued that attaching a shroud to reduce the angle at which the sound was emitted would render its product less safe for the pedestrians and motorists it was intended to warn, especially at intersections, as the shroud would reduce the noise level of the siren to the rear and sides of the vehicle. Thus, the defendant filed a motion for summary judgment (motion to dismiss) contending that the firefighters had failed to offer sufficient evidence to show that the shrouded alternative was effective and safe for all users, including the pedestrians and motorists it was intended to warn. The trial court determined that the firefighters failed to produce expert testimony to show that the proposed feasible alternative design “will provide as much protection to motorists, pedestrians, and firefighters occupying the fire truck as the design of the Federal Signal siren that provides unrestricted 360-degree noise projection.” The firefighters appealed the trial court’s decision to the Pennsylvania Superior Court.

The Superior Court initiated its analysis by referencing the seminal Pennsylvania Supreme Court case of Tincher v. Omega Flex, which held 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). Here, the firefighters proceeded under the risk-utility test, which required the satisfaction of the following factors:

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 utility.

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.

The plaintiffs argued that the court focused on the third factor, and incorrectly expanded it to include non-users of the product, namely pedestrians and motorists. In addition, the firefighters contended that such expert testimony is unnecessary in light of evidence that the proposed alternative design, the shrouded siren, meets all SAE industry requirements.

Federal Signal argued that the trial court correctly granted summary judgment since the firefighters did not demonstrate that the alternative design was effective and did not introduce a new or greater hazard. It also argued that compliance with the SAE is not de facto proof that a siren is safe and effective. It maintained that the standard only sets minimum noise outputs in the front of the vehicle and does not contemplate the general risk to pedestrians and motorists. Finally, Federal Signal, citing to Tincher, maintained that the trial court properly considered the safety of the public, namely pedestrians and motorists, as well as firefighters in determining whether the product’s design was defective.

The Superior Court determined that defective design could be widespread in the industry, and hence, evidence that a product comported with industry standards was not proof of non-defectiveness. Ultimately, the court ruled that an alternative product design’s compliance with governmental or industries standards, in the absence of expert testimony, was insufficient to establish that an alleged defective product was unreasonable dangerous.

More specifically, the Superior Court agreed with the trial court’s finding that the plaintiffs required expert testimony to establish that an alternative design of the siren just as an effective warning device for all persons, such as pedestrians, as the plaintiff’s reference to the industry standard was not an acceptable substitute for such required expert testimony.

Ultimately, the Superior Court affirmed the trial court’s ruling that the firefighters’ expert’s failure to provide an opinion regarding the alternative design of the siren for the safety for “all users,” namely pedestrians and motorists was fatal to the firefighters’ claim.