J-A18023-17


                                2018 PA Super 231

 RONALD M. DUNLAP                        :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                    Appellant            :
                                         :
              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                       :
                                         :
J-A18023-17


                    Appellant          :
                                       :
              v.                       :
                                       :
 FEDERAL SIGNAL CORPORATION            :
                                       :
                   ***                 :
                                       :
 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 at
                          No(s): GD-13-006083,
                       GD-13-009820, GD-13-010550,
                              GD-13-013251


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

OPINION BY 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.




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       Maher and Roell are members of the Pittsburgh Bureau of Fire. They

are parties in a mass tort products liability action commenced by

approximately 247 firefighters who allegedly suffered permanent hearing loss

due to exposure 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 Group 1A.1

       The underlying complaint of the plaintiff firefighters 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 firefighters occupying the firetruck. 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

standards 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 that vehicle.

       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. It pointed to the danger

presented by the proposed design to motorists and pedestrians, especially at
____________________________________________


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

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intersections, 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 the pedestrians and motorists it was

intended to warn.

        After the completion of discovery and the filing of all expert reports,

Federal Signal filed a Frye2 motion to preclude the expert testimony of Mr.

Struck, 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 that claim as

well. Federal Signal filed the motion, the firefighter 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 with 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 review:

____________________________________________


2   Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

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               Whether the [t]rial [c]ourt made an error of law in granting
        [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
        firefighters 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.]

Appellants’ brief at 4.

        It is well settled that “summary 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 “resolve 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 judgment.” 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 entitlement of the




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moving party to judgment as a matter of law.” 3       Id. Thus, “a proper grant

of summary judgment depends upon an evidentiary record that either (1)

shows the material facts are undisputed or (2) contains insufficient facts to

make out a prima facie 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 defer 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 determine
       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 that would allow a


____________________________________________


3 In Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), 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.

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J-A18023-17


      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 analysis 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 utility.



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J-A18023-17


      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 expert

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 unnecessary




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J-A18023-17


in light of evidence that the proposed alternative design, the shrouded siren,

meets all industry requirements set forth in SAE J1849.4

       Federal Signal counters first that Maher and Roell’s argument based on

the SAE standard is not properly before this Court, as the standard and

testimony regarding its promulgation were only submitted to the trial court

with the motion for reconsideration. They maintain that evidence 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 Signal 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 Signal argues 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-way.

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J-A18023-17


of the vehicle and does not contemplate the general risk to pedestrians and

motorists.

      Finally, Federal Signal maintains 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.       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 Signal observes that

Maher and Roell cite no authority in support of their contention that

pedestrians and motorists are not 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 noise




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J-A18023-17


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 an

alternative siren design that would afford greater protection for firefighters

from 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, Mr. 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 compliance with the standard, was a substitute for such

____________________________________________


5 The trial court noted evidence in the record from an expert in an Illinois 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 1216:5-8).



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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 Azzarello 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 have no place in strict liability.

       This Court 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 that industry 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 protecting 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 standards only, and that plaintiff firefighters
could not prevail without expert testimony that the alternative design was
effective in protecting motorists and pedestrians.



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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 espoused 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, evidence 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 can 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 homes 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 standards 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 expert opined
that the casters were defective because they lacked a toe guard; the defense



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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 prove 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 regarding

the effectiveness of that design in warning motorists and pedestrians. In lieu

of expert opinion on that subject, Mr. Struck merely deferred to the SAE

standards, which are minimum requirements only.

       In ruling on the motion, the trial court considered evidence of the

industry standards and the compliance of the firefighters’ proposed design

with those standards. The court determined that compliance with standards

alone was not prima facie evidence that a product’s design was non-defective

and effective, and held that expert 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-appellants purported to challenge the trial court’s admission of
industry standards regarding casters, as well as the OSHA standards.
Unfortunately, they limited their argument to the latter. Accordingly, we
confined our analysis to the arguments actually presented 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 their 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 proof 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 pedestrians and motorists; evidence of compliance with
the standards alone did not suffice for purposes of making out a prima facie
case.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2018




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