J-A18023-17

                      2018 PA Super 231

ROBERT M. DUNLAP             :        IN THE SUPERIOR COURT OF
          Appellant          :             PENNSYLVANIA
                             :
         v.                  :
                             :
FEDERAL SIGNAL CORPORATION   :

                             *****

DINO ABBOT                   :
        Appellant            :
                             :
         v.                  :
                             :
FEDERAL SIGNAL CORPORATION   :

                             *****

KEITH BRADLEY                :
         Appellant           :
                             :
         v.                  :
                             :
FEDERAL SIGNAL CORPORATION   :

                             *****

BRIAN CAVANAUGH              :
        Appellant            :
                             :
         v.                  :
                             :
FEDERAL SIGNAL CORPORATION   :

                             *****

GLENN GASIOROWSKI            :
        Appellant            :
                             :
         v.                  :
                             :
FEDERAL SIGNAL CORPORATION   :

                             *****
J-A18023-17


ROGER MAHER                         :
        Appellant                   :
                                    :
          v.                        :
                                    :
FEDERAL SIGNAL CORPORATION          :

                                   *****
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,
    Nos. GD-13-006083, GD-13-009820, GD-13-010550, GD-13-013251



BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

DISSENTING OPINION BY LAZARUS, J.:               FILED AUGUST 20, 2018

      I am constrained to disagree with the learned Majority’s conclusion that

this Court’s decision in Webb definitively reestablished a bright line

evidentiary rule barring evidence of a product’s compliance with governmental

and/or industry standards. Therefore, I respectfully dissent.

      Prior to Tincher, Pennsylvania courts had long prohibited defendants

from including governmental and industry standard evidence in cases that

implicated a so-called cost/risk-benefit analysis.   In Lewis, our Supreme

Court determined that evidence of industry standards relating to the design

of a product in strict products liability cases creates a strong likelihood of

diverting the jury’s attention away from the product to the reasonableness of

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the manufacturer’s conduct in choosing its design.       Later, in Gaudio, this

Court similarly held that manufacturers could not attempt to prove the quality

of the design of their product by showing that it comports with industry or

governmental standards or is in widespread industry use. However, as the

Majority correctly states, the Lewis and Gaudio Courts premised these

evidentiary rules on Azzarello, which strictly prohibited the introduction of

negligence concepts into strict liability claims.    Later, the Tincher Court

concluded that the firm division between strict liability and negligence

concepts no longer exists and reopened the question of whether the

prohibition against governmental and industry standard evidence was still

valid.

         Following Tincher, the Webb Court revisited whether courts must

prohibit defendants from presenting evidence of governmental or industry

standard evidence in strict liability cases. The plaintiff in Webb was involved

in a fatal automobile crash between a 1997 Volvo sedan and another vehicle.

Webb, like Maher and Roell here, sued Volvo Cars of North America on various

theories of liability, including both negligence and strict product liability,

alleging the Volvo sedan was defective because it lacked rear door bars to

prevent side-impact intrusion during a side-impact collision. Following a jury

trial, the trial court entered non-suit on Webb’s negligence claim against Volvo

and later directed a verdict in favor of Volvo on Webb’s strict product liability

claim. In doing so, the trial court allowed the jury to consider Federal Motor

Vehicle Safety Standards (“FMVSS”) evidence proffered by Volvo while

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deliberating Webb’s strict product liability claim, over Webb’s objection. On

appeal, Webb argued that governmental standard evidence, i.e., the FMVSS

evidence proffered by Volvo, became irrelevant to Webb’s strict product

liability claim after the negligence claim was non-suited. The Webb Court

determined that the trial court erred in permitting the jury to consider FMVSS

evidence in connection with Webb’s strict product liability claims. Specifically,

the Court concluded that the acknowledgement of the commonalities between

strict product liability and negligence theory, as stated in Tincher, does not

provide a sufficient basis for disregarding the evidentiary rules expressed in

Lewis and Gaudio prohibiting governmental and industry standard evidence

in strict product liability cases.   The Majority believes the Webb Court, in

stating that Tincher did not provide “a sufficient basis for disregarding the

evidentiary rule expressed in Lewis and Guadio,” definitively reestablished a

bright line rule barring governmental/industry standard evidence in strict

product liability cases. I disagree.

      I believe that, contrary to the Majority’s assertion, the Webb holding is

narrow and does not sufficiently discuss the negligence and strict liability

principles underlying the evidentiary rule barring governmental/industry

standard evidence. To the extent that the Webb Court discusses its rationale

for barring the FMVSS evidence proffered by Volvo, it states only that Tincher

does not undermine the rationale that that “a defective design could be

widespread in an industry.” Webb, 148 A.3d at 483. The Majority echoes

this in its opinion. However, the Webb Court goes on to say that

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      [w]hile it is clear after Tincher that the firm division between
      strict liability and negligence concepts no longer exists, it is not
      clear that the prohibition on evidence of government or industry
      standards no longer applies.

                                       ...

      It is possible that government/industry standards could be
      admissible under [the consumer expectation and risk-utility]
      theories[.] . . . It is also possible that the admissibility of such
      evidence will depend upon the circumstances of a case.

Webb, 148 A.3d at 483 (emphasis added).

      Based on the foregoing, I believe we must interpret the Webb Court’s

holding narrowly. The Webb Court explicitly states only that the Tincher

decision does not undermine the rationale that a defective design could be

widespread in an industry, which I believe is distinct from the rationale the

Majority relies on.1   The Webb Court also stated that it “believe[s] the

continued vitality of the prohibition on governmental and industry standards

evidence is a question best addressed in a post-Tincher case.” Id. I believe

this belies the Majority’s contention that the validity of the evidentiary rule in

question remains intact.

1I interpret the Majority’s opinion as acknowledging this distinction.        The
Majority, citing different cases, delineates each rationale as follows:

      We reiterated our concern that such evidence improperly placed a
      focus on the reasonableness of the manufacturer’s conduct in
      making the design choice, and diverted attention from the product
      itself. Webb, supra at 476. Furthermore, evidence that a
      product itself comports with industry standards was not proof of
      non-defectiveness as defective design could be the industry
      standard. See Lewis, supra at 594.

Majority Opinion, at 12.

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      In other words, the Webb Court acknowledges the necessity of

additional post-Tincher cases discussing the negligence and strict liability

principles underlying the reestablishment of a bright line rule definitively

barring government/industry standard evidence. Namely, it calls for cases

discussing the fundamental principle underlying the decisions in Lewis and

Gaudio – i.e., governmental and industry standard evidence creates a strong

likelihood of diverting the jury’s attention from the product to the

reasonableness of the manufacturer’s conduct in choosing its design.         The

Webb court simply did not rely on such a rationale in determining that the

trial court erred in permitting the jury to consider FMVSS evidence following

non-suit of plaintiff’s negligence claim; the reasonableness calculus critical to

negligence theory was sparsely discussed. See generally Webb, 148 A.3d

at 438. Therefore, I believe the question of whether governmental/industry

standard evidence is admissible in some products liability cases post-Tincher

remains mostly unanswered.

      It remains, though, that paramount to strict product liability theory, as

Lewis and Gaudio suggest, is the understanding that liability attaches

regardless of the reasonableness of a manufacturer’s actions even if the

defendant exercised all possible due care. See Restatement (Second) of Torts

§ 402A. Accordingly, to prove a strict products liability claim, a plaintiff need

only show that a seller (i.e., a manufacturer or distributor) placed in the

market a product in a defective condition. Post-Tincher analysis should focus

on the product itself rather than the reasonableness of the manufacturing,

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design, or distribution the product.        Therefore, I agree that nothing in

Tincher, as recognized by Webb, necessarily allows factfinders to consider

governmental or industry standard evidence as dispositive in strict liability

cases.

      Even so, a plaintiff in a strict product liability action, like Maher and Roell

here, may open the door to the introduction by a defendant of evidence of

compliance with industry or governmental standards if a plaintiff introduces

witness   testimony    regarding   such    standards    during   direct or    cross-

examination. Plaintiffs may be willing to assume this risk, but to the extent

that a plaintiff introduces governmental/industry standard evidence, the

opening so created should be reasonably related in scope to the substance of

the offending testimony. See Gaudio, 976 A.2d at 544.

      Here, Maher and Roell, not Federal Signal, proffered through Expert

Struck testimony regarding industry standards for sirens, but only to show

their alternative design was effective. As proffered, such evidence does not:

(1) draw our attention to the reasonableness of Federal Signal’s conduct in

choosing its design; or (2) suggest defective designs are widespread in the

siren industry.   Rather, it purportedly proves that a different design that

comports with siren industry standards is still effective.

      In sum, I do not believe this Court’s decision in Webb stands for the

broad holding the Majority characterizes in its opinion.         The Webb Court,

multiple times, expressly states that the question of whether governmental or

industry standard evidence is admissible in strict products liability cases

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remains open. See generally Webb, 148 A.3d at 483. Therefore, I disagree

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. The 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. Thus, plaintiff’s

product liability claim should have survived summary judgment.

      Accordingly, I would reverse the order of the trial court granting

summary judgment in favor of Federal Signal.




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