Andrew Thomason Jul. 8, 2014, 3:18pm

A group of more than 500 Chicago firefighters claiming a company’s sirens were defective and caused hearing loss will not be allowed to move forward as a partial class after an appeals panel reversed a Cook County judge's decision to lump them together.

In an unpublished order filed June 25, the First District Appellate Court reversed now-retired Cook County Circuit Judge William Haddad's partial certification of a class, saying he failed to make a finding that issues common to the class predominated over the plaintiffs' individual issues.

Justice Aurelia Pucinski wrote the court's order, with Justices P. Scott Neville Jr. and Mary Anne Mason concurring.

The original case was a consolidation of 10 separate suits filed by firefighters between 1999 and 2001 that claim Federal Signal Corporation's sirens were defective because they made excessive noise in the cab of fire trucks, which caused hearing loss.

More than 2,400 firefighters nationwide filed suits against Federal Signal, with 550 of those plaintiffs filing their claims in Cook County, according to the panel's order.

In 2007, the Cook County Circuit Court began to put firefighters into groups of up to 39 individuals for jury trials.

After the fourth one of these trials, which resulted in a jury verdict in favor of Federal Signal, the court ordered briefing on whether a class of 550 Chicago firefighters should be created on the issue of whether the sirens were dangerous due to alleged defective design.

The circuit court in March 2012 certified the partial class for a trial on this specific issue.

Federal Signal asked for leave to appeal the certification, which the First District granted. The plaintiffs then submitted a motion admitting that the class certification raised issues of procedure and should be vacated.

In 2012, the appellate court agreed and reversed the lower court's certification order.

The following year, the plaintiffs filed an amended complaint, alleging strict product liability and asking for "limited issue" class certification, severance and a trial over the specific issue of whether the sirens were unreasonably dangerous.

The circuit court granted the certification, spurring Federal Signal to appeal again.

Federal Signal's first argument on appeal focused on its contention that the appellate court lacked jurisdiction because the plaintiffs' actions were filed before Supreme Court Rule 306(a)(8) was amended in 2003 to allow interlocutory appeals of class certification orders.

The company, according to the panel's order, suggested the plaintiffs engaged in gamesmanship with their amended complaint by redefining the class to only include only plaintiffs who filed their individual cases before 2003 in an attempt to avoid review under the Supreme Court's amended interlocutory appeal rule.

In its recent order, the appeals panel rejected this argument, saying it has jurisdiction over the appeal because the plaintiffs' amended complaint was filed after the 2003 effective date of the Supreme Court Rule.

"Here, the amended complaint asserted new strict product liability claims based on four
additional Federal Signal siren models that were not alleged in the individual plaintiffs' previous complaints, as well as expanding the allegations of alleged exposure and injury up to and including 'the present,'" Pucinski wrote.

She adds, "The amended complaint asserting the class action for the first time was filed in 2013, well after the January 1, 2003 effective date of Rule 306(a)(8), and thus we have
jurisdiction to review the class certification."

Federal Signal next argued that Illinois law does not allow single issue class certification.

Rejecting this argument as well, Pucinski said “Federal Signal’s argument against class certification of limited issues is squarely refuted by” the Illinois Code of Civil Procedure.

Although the panel disagreed with the company on those points, the justices agreed with its argument over predominance.

Federal Signal argued that individual issues, like which siren plaintiffs were exposed to, what type of hearing protection they used and their medical history, trump questions and issues common to the class.

“We must reverse class certification because of the failure to make the required finding that the common questions predominated over individual issues, Pucinski wrote, noting that the commonality requirement for class certification was also "not met where there are nine different (siren) designs at issue."

She went on to explain that the lower court also made the mistake of certifying the class without identifying any class representatives or determining their adequacy.

“The court … made no finding that certain named plaintiffs would adequately represent the class," Pucinski wrote. "There must be a finding that the representative "parties" will fairly and adequately protect the interest of the class, not the parties' attorneys."

The panel reversed the class certification order and remanded the matter for further proceedings.

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