A group of firefighters claiming a siren damaged their hearing failed to provide enough evidence to show that a proposed alternative design was actually safer, the Pennsylvania Superior Court has ruled in an opinion that sheds light on how courts are treating the intersection of expert testimony and industry standard evidence in the wake of the seminal 2014 decision Tincher v. Omega Flex.

A split three-judge panel issued a precedential decision Aug. 20 in Dunlap v. Federal Signal saying the plaintiffs needed to have an expert testify that their proposed alternative design was safer than the sirens the defendants made, and that simply relying on the fact that the proposed design met industry standards was insufficient to allow the case to go forward.

“At issue are technical matters that are beyond the ken of ordinary persons and within the knowledge of expert witnesses available to the parties,” said Judge Mary Jane Bowes, who wrote the majority's 16-page opinion. The plaintiff's “proof that their proposed design met industry standard was not enough to establish a prima facie case that it was more effective for all users.”

The majority's 3-1 ruling hinged in part on an interpretation of the court's 2016 decision in Webb v. Volvo Cars of North America, which had held that Tincher did not overrule precedent indicating that a product's compliance with industry standards was irrelevant and inadmissible.

Bowes said Tincher did not hold that courts should disregard the rules outlined in Lewis v. Coffing Hoist Division and Gaudio v. Ford Motor, “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.”

However, in an eight-page dissent, Superior Court Judge Anne Lazarus said she disagreed with the majority's interpretation of Webb.

“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,” Lazarus said. “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.”

Tuesday's opinion in Dunlap marks the latest in only a handful of precedential opinions from Pennsylvania's appellate courts that interpret the meaning of the state Supreme Court's ruling in Tincher, which practitioners and trial courts have been grappling with since it came out nearly four years ago.

In late 2014, Tincher resulted in a landmark ruling by the Supreme Court that did away with the strict separation of negligence and strict liability principals. The decision specifically held that plaintiffs in products liability cases can pursue claims on either a risk utility or consumer expectation test. The decision also overruled Azzarello v. Black Brothers, which is a foundational opinion from 1978 that provided guidance on what questions juries should be allowed to consider and said proof that a product complied with industry standards had no place in a strict products liability case.

Dunlap involves a group of 247 firefighters who claim the sirens on their trucks were defective and caused hearing loss. The plaintiffs had produced an expert who said the siren could have been designed with a shield that would have redirected the sound to the front of the truck, which would have been safer for the firefighters.

The siren manufacturer, however, contended the alternative design would have failed to properly warn pedestrians and other motorists near the sides of the truck, meaning the proposed design was not safer for all users.

Bowes noted that the plaintiffs expert did not opine on how the alternative design would have impacted pedestrians and other motorists, but, instead, relied on the fact that the design would have met industry standards.

The trial court had tossed the case on summary judgment, saying the plaintiffs failed to meet their burden, and the Superior Court's majority affirmed.

Both Shawn Sassaman of Marc J. Bern & Partners, who is representing the plaintiffs, and Clem Trischler of Pietragallo, Gordon, Alfano, Bosick & Raspanti, who is representing the defendant, did not return a call seeking comment.