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
-2- J-A18023-17
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
-3- J-A18023-17
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.
-5- J-A18023-17
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
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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
-2- J-A18023-17
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
-3- J-A18023-17
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
-4- J-A18023-17
[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.
-5- J-A18023-17
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,
-6- J-A18023-17
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
-7- J-A18023-17
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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