September 27, 2018
In August 2018, the Pennsylvania Superior Court, in Dunlap v. Federal Signal Corporation (“Dunlap”), ruled that the plaintiffs’ evidence that their alternative product’s design met the applicable industry standard was not sufficient to establish a prima facie strict liability design defect tort case.In its opinion, the court discussed the admissibility of industry standards in a product defect cause of action under the risk-utility test.The court did not consider the viability of a longstanding evidentiary rule that a product’s compliance with government or industry standards is irrelevant and inadmissible in a strict products liability action.But the court seemed to agree with the trial court that it was proper to consider the industry standard.Just as a defendant-supplier cannot escape a finding of defect because the product met industry customs or standards on safety, the court ruled, so a plaintiff must establish more than that a substitute design meets the industry standard in order to establish a prima facie design defect case.
For many decades in Pennsylvania, courts prohibited defendants in strict liability actions from introducing evidence of industry standards.Similarly, courts previously held that compliance with governmental standards, including OSHA standards, was inadmissible in product liability actions.The courts reasoned that a product’s compliance with an applicable standard improperly would introduce a negligence concept and is irrelevant and inadmissible in a strict liability action.
In 2014, however, the Pennsylvania Supreme Court decided that it was too difficult, in practice, to separate negligence and strict liability theories.In Tincher v. Omega Flex, Inc., (“Tincher”), the Court rejected the prevailing standard that a defective product is one that lacks every element necessary to make it safe for its use.In its place, the Court adopted a standard for proving when a defect makes a product unreasonably dangerous.The new standard includes a risk-utility test.The Court also explicitly overruled a decades-old decision used to justify the exclusion of evidence that the manufacturer’s design was widespread in the industry or complied with a government standard.
Since Tincher, lower courts in Pennsylvania have struggled to determine the admissibility of industry and government standards in strict liability design defect cases. Plaintiffs still argue that the introduction of industry standards creates a strong likelihood of diverting the attention of juries from the product to the reasonableness of the manufacturers conduct.A defendant, often eager to introduce evidence of its product’s compliance with a standard, contends that the standard bears on whether the product was defective so as to render it unreasonably dangerous.
In Dunlap, the roles of the plaintiffs and defendant were reversed. The plaintiffs’ expert opined that his proposed alternate product design complied with the applicable industry standard.The plaintiffs were firefighters who suffered hearing loss due to the use of a high-decibel sound emitted by emergency-vehicle warning sirens manufactured by the defendant.The siren served to warn pedestrians and motorists, especially at intersections, of an emergency vehicle’s movement.The plaintiff’s expert opined that the manufacturer could have used a shroud to divert the siren noise to the front of the vehicle while still meeting the applicable industry standard.The expert offered no evidence that the use of the shroud would render the product non-defective and effective as a warning for pedestrians and motorists.According to the court, the plaintiff’s evidence was insufficient to prove the alternative product’s effectiveness. The court affirmed the lower court’s entry of summary judgment in favor of the manufacturer.
The Dunlap opinion suggests that it is appropriate in certain strict liability cases for the fact finder to consider an industry or governmental standard. Nothing in Dunlap allows fact finders to consider industry standard evidence as dispositive in strict liability cases. A defendant seeking to introduce evidence that its product meets the standard should be prepared to argue why an objective standard is relevant when liability attaches regardless of the reasonableness of a manufacturer’s actions and even if the defendant exercised all possible due care.Future decisions will have to determine the vitality of the rule barring government and industry standard evidence.