Pittsburgh-area firefighters lose hearing loss lawsuit, couldn't prove different sirens would protect motorists

By Nicholas Malfitano | Aug 28, 2018

HARRISBURG – According to a majority panel of the Superior Court of Pennsylvania, a group of Pittsburgh firefighters did not prove that a different design for a fire truck siren they say permanently damaged their hearing would have been safer.

On Aug. 20 in a 2-1 decision, Superior Court judges Mary Jane Bowes and Paula Francisco Ott upheld a granting of summary judgment to Federal Signal Corporation and dismissing the case brought by firefighters Ronald M. Dunlap, Dino Abbot, Keith Bradley, Brian Cavanaugh, Glenn Gasiorowski, Roger Maher and Carl Roell.

Judge Anne E. Lazarus dissented from the majority of her colleagues.

Plaintiffs Maher and Roell serve on the Pittsburgh Bureau of Fire, and are among 247 firefighters who claimed Federal Signal’s Q2B siren was defectively-designed and caused them to suffer permanent hearing loss. Plaintiffs Dunlap, Abbot, Bradley, Cavanaugh and Gasiorowski had their cases consolidated with those of Maher and Roell.

A number of lawsuits filed nationwide have also been filed against Federal Signal that also claim that firefighter plaintiffs suffered permanent hearing loss from allegedly defective sirens manufactured by the company.

“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 fire truck,” Bowes said.

“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 fire truck, thereby reducing the noise level in the cab of that vehicle.”

In response, Federal Signal countered that attaching a shroud to reduce the angle at which the sound was emitted would pose a danger to pedestrians and motorists, especially at traffic intersections – and that the firefighters did not offer prima facie evidence that alternate design was safe for all who came in contact with it.

Federal Signal later received summary judgment verdict on both claims of strict liability and negligence in the Allegheny Court of Common Pleas in 2016, leading the plaintiffs to appeal to the Superior Court.

In reflecting the Court’s majority opinion, judges Bowes and Ott said that the alternative siren design merely meeting industry safety requirements for motorists and pedestrians was not sufficient, and that an acoustic expert’s direct testimony on that specific subject was needed.

“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,” Bowes stated.

“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.”

The ruling appeared to indicate a continued divide over how to interpret the meaning of the landmark Tincher v. Omega Flex decision from 2014, in which the Supreme Court of Pennsylvania decided plaintiffs in product liability actions can attempt to prove their claims through either a risk-utility test or a consumer expectation test.

The decision also replaced long-held jury instruction guidelines established in the Azzarello v. Black Brothers decision from 1978, which also sought to draw a line in the legal sand between product liability actions and consideration of industry standards.

Meanwhile, the majority ruling in the firefighters' case referenced the court’s own 2016 decision in Webb v. Volvo Cars of North America, which believed that compliance with government or industry standards did not necessarily constitute evidence that an alternative design would satisfy all safety requirements.

Lazarus dissented from the opinion held by Bowes and Ott in an eight-page opinion of her own.

“I am constrained to disagree with the learned majority’s conclusion that this Court’s decision in Webb definitively re-established a bright line evidentiary rule barring evidence of a product’s compliance with governmental and/or industry standards. Therefore, I respectfully dissent,” Lazarus said.

Lazarus, in contrast to the majority view, went on to label the Webb decision as a “narrow” one which “did not sufficiently discuss the negligence and strict liability principles underlying the evidentiary rule barring governmental/industry standard evidence.”

“The Webb Court acknowledges the necessity of additional post-Tincher cases discussing the negligence and strict liability principles underlying the re-establishment of a bright line rule definitively barring government/industry standard evidence,” Lazarus stated.

“Post-Tincher analysis should focus on the product itself rather than the reasonableness of the manufacturing, design, or distribution of 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.”

Superior Court of Pennsylvania case 1747 WDA 2016

Allegheny County Court of Common Pleas cases GD-13-006083, GD-13-009820, GD-13-010550 & GD-13-013251

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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