Baley v. Fed. Signal Corp.

• Decision Date: 07 February 2013
• Docket Number: 1–09–3313,1–09–3316,1–09–3318,1–09–3314,1–09–3317,Docket Nos. 1–09–3312,1–09–3315,1–09–3319,1–09–3320.
• Citation: 982 N.E.2d 776,367 Ill.Dec. 626,2012 IL App (1st) 093312
• Parties: Thomas E. BALEY, Earl E. Bybee, Edward J. Doherty, Donald J. Freza, Thomas J. Hosty, Robert J. O'Toole, Richard J. Reimer, Mauricio Rodriguez, and James P. Voris, Plaintiffs–Appellees, v. FEDERAL SIGNAL CORPORATION, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 093312

982 N.E.2d 776

367 Ill.Dec. 626

Thomas E. BALEY, Earl E. Bybee, Edward J. Doherty, Donald J. Freza, Thomas J. Hosty, Robert J. O'Toole, Richard J. Reimer, Mauricio Rodriguez, and James P. Voris, Plaintiffs–Appellees,

v.FEDERAL SIGNAL CORPORATION, Defendant–Appellant.

Docket Nos. 1–09–3312, 1–09–3313, 1–09–3314, 1–09–3315, 1–09–3316, 1–09–3317, 1–09–3318, 1–09–3319, 1–09–3320.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 13, 2012.

Rehearing Denied Feb. 7, 2013.

Bartlit, Beck, Herman, Palenchar & Scott, LLP, of Chicago, (Philip S. Beck, Jeffrey A. Hall, Sean W. Gallagher, Elizabeth L. Thompson, Carolyn J. Frantz, and Vincent S.J. Buccola), for appellant.

Torshen, Slobig, Genden, Dragutinovich & Axel, Ltd. (James K. Genden, of counsel), and The Margolis Firm, PC, (Jordan Margolis, Todd D. Carcelli, and Ray Lang, of counsel), both of Chicago, for appellees.

OPINION

Justice PUCINSKI delivered the judgment of the court, with opinion.

[367 Ill.Dec. 629]¶ 1 The plaintiffs-appellees are nine Chicago firefighters who brought action against the defendant-appellant, Federal Signal Corporation (Federal Signal), claiming that the Federal Signal sirens on Chicago Fire Department trucks are unreasonably dangerous and defective because the sirens exposed the firefighters to excessive noise. Federal Signal supplies sirens to emergency vehicle manufacturers who make and sell vehicles that are designed to meet the Chicago Fire Department specifications and standards. After a two-week trial, the jury returned a verdict for the plaintiffs for a total amount of $445,000. Federal Signal's motion for judgment notwithstanding the verdict was denied and Federal Signal appealed. Federal Signal argues that the jury's strict product liability verdict cannot stand because: (1) plaintiffs failed to prove a feasible alternative design; (2) the trial court abused its discretion in allowing the testimony of plaintiffs' expert where his opinion about a feasible alternative design was speculative; and (3) the trial court abused its discretion in excluding evidence of the firefighters' ability to avoid the danger, namely, the use of hearing protection in other fire departments outside the city of Chicago.

¶ 2 We affirm the circuit court's denial of defendant's motion for judgment notwithstanding the verdict because we hold that a feasible alternative design is one factor to consider in a strict product liability design-defect case, and there is no rule that public safety devices require proof of a feasible alternative design to be deemed unreasonably dangerous under a strict liability theory. We also hold that the trial court did not abuse its discretion in allowing the testimony of plaintiffs' expert where the expert was qualified and his opinion was regarding a feasible alternative design was based on Federal Signal's own data and there is no requirement that the feasible alternative design actually be built. We further hold that the trial court did not abuse its discretion in excluding evidence of the use of hearing protection in other fire departments, as the court allowed testimony concerning the use of hearing protection within the Chicago Fire Department to demonstrate ability to avoid the danger, and ultimately Federal Signal had a nondelegable duty to manufacture a product that was not unreasonably dangerous.

¶ 3 BACKGROUND

¶ 4 I. Union Grievance

¶ 5 In 1998, prior to the current litigation, the issue of hearing protection was raised by the firefighters' union in the joint occupational health and safety committee. Afterwards, the Chicago Fire Department asked the Illinois Department of Labor to conduct a study and analyze the Department's noise exposure. The Illinois Department of Labor study determined that the noise exposure was within with the decibel limits required. On April 27, 1999, a letter from the firefighters' union informed its members that it was conducting an investigation into the relationship between noise exposure on the job and subsequent hearing loss. On November 4, 1999, a grievance was filed by the Chicago firefighters union citing that the city of Chicago was not complying with the National Fire Protection Agency (NFPA) 1500 standard, article 7, section 12.2. The grievance cited the city for failure to provide hearing protection, stating that the city is required to “make reasonable provisions in compliance with such laws and regulations for the safety and health of its employees.” Specifically, the NFPA 1500 standard requires that a fire department must provide hearing protection for all firefighters on apparatus who are subjected to noise levels above 90 decibels (dB or dBA). The Chicago Fire Department denied the grievance. The firefighters' union did not pursue an arbitration with the Chicago Fire Department regarding the denial of the grievance.

¶ 6 II. Procedural History and Litigation

¶ 7 On April 29, 1999, 27 firefighters filed a complaint against Federal Signal. The initial plaintiffs included Christine Rago, Roger J. Farrell, Michael K. Jazwiec, John F. Nolan, Robert J. Robertson, John W. Schmit, Richard W. Bueschel, Louis W. Aumann, George Bailey, Arnold C. Gacki, Ronald L. Foster, Jose J. Moreno, Henry Jacinto, Jeff Stuecklen, William G. Olson, Jeffrey M. Denis, John G. McGarry, James R. Buckley, Michael L. Bunyon, Richard Ternes, Thomas Fehsel, James Sutera and Donald E. Prazuch.

¶ 8 Plaintiffs' complaint alleged four counts, strict liability, negligence, breach of warranty and class action. In count I, plaintiffs alleged that the sirens were manufactured, marketed distributed and/or sold by Federal Signal in a defective condition that was unreasonably dangerous to the plaintiffs. In count II, plaintiffs alleged that Federal Signal was under a duty to manufacture, market, promote, distribute, sell and install its sirens with ordinary care to avoid inflicting physical harm or injury to the consumers or end users of its products, and that it breached that duty and the damages that resulted were caused by Federal Signal's negligence. In count III, plaintiffs alleged that Federal Signal Corporation warranted that its sirens were without defect and that the plaintiffs relied on said warranty and as a result of Federal Signal Corporation's breach of the implied warranty, the plaintiffs were harmed. In count IV, plaintiffs alleged that class action status was appropriate because the class of persons affected was too numerous, that there were questions of both fact and law common to the class, that the named plaintiffs and attorneys would adequately protect the interest of the class, that class actions were the most just manner in which to adjudicate the claims and that the prosecution of separate actions by individual members of the plaintiff class would create a risk of inconsistent or varying adjudications. The plaintiffs requested money damages in an amount in excess of $50,000 for each plaintiff in each substantive count of the complaint. Plaintiffs voluntarily withdrew count IV seeking class certification.

¶ 9 We take notice that Federal Signal has been involved in significant litigation regarding its sirens. See Sundance Homes, Inc. v. County of Du Page, 195 Ill.2d 257, 275, 253 Ill.Dec. 806, 746 N.E.2d 254 (2001) (noting that “a court of review may take judicial notice of prior litigation”). Currently, there are several hundred firefighters in Illinois and in other states claiming hearing loss as a result of their exposure to Federal Signal's sirens.

¶ 10 In addition to the cases pending in Illinois, firefighters in New York brought a claim against Federal Signal for permanent hearing damage while employed by the fire department of the City of New York due to repeated exposure to sirens manufactured by Federal Signal Corporation. Fitzgerald v. Federal Signal Corp., 63 A.D.3d 994, 883 N.Y.S.2d 67, 68 (2009). In that case the Superior Court Appellate Division affirmed dismissal in favor of Federal Signal, holding that the lower court was correct in its determination that “[t]here is no duty to warn of an open an obvious danger of which the product user is actually aware or should be aware as a result of ordinary observation or as a matter of common sense.” (Internal quotation marks omitted.) Id. at 69. In Philadelphia, a jury ruled in favor of a firefighter, finding that Federal Signal was negligent in its design and construction of its sirens. Amaris Elliot–Engel, Jury Awards Damages in First Firefighter Hearing Loss Trial, The Legal Intelligencer, Mar. 4, 2010. Other firefighter claims have been dismissed by Philadelphia judges. Id.

¶ 11 Due to the amount of filed actions in the circuit court of Cook County related to Federal Signal and its sirens, in 2004 the cases were consolidated for discovery and assigned for trial to the Honorable William Haddad. At the outset of litigation of the initial complaint, there were 2,400 plaintiffs who had filed actions against Federal Signal. On February 25, 2004, these cases were consolidated for discovery before the Honorable Joseph N. Casciato, of which over 600 were Cook County/Chicago firefighter plaintiffs. These cases were: Rago v. Federal Signal Corp., No. 99 L 4752; Lamb v. Federal Signal Corp., No. 00 L 6485;North v. Federal Signal Corp., No. 00 L 6486; the instant case, Polo v. Federal Signal Corp., No. 00 L 6487;Rice v. Federal Signal Corp., No. 00 L 6488;Fisher v. Federal Signal Corp., No. 00 L 6489;Wood v. Federal Signal Corp., No. 00 L 6490;Moran v. Federal Signal Corp., No. 00 L 6491;Price v. Federal Signal Corp., No. 00 L 6493; Payne v. Federal Signal Corp., No. 00 L 6495.

¶ 12 In June of 2007, the consolidated cases were assigned for trial to Honorable William H. Haddad. Judge Haddad identified these firefighter plaintiffs and placed them in an initial trial pool in which plaintiffs would be selected together to pursue trials. From the initial trial pool, 30 plaintiffs were selected as ...