CLIENT ALERT – December 23, 2015

FLORIDA REAFFIRMS "CONSUMER EXPECTATIONS" TESTIN DESIGN DEFECT PRODUCTS LIABILITY CASES

In Aubin v. Union Carbide Corp., 40 Fla. L. Weekly S596 (Fla. Oct. 29, 2015), theFlorida Supreme Court recently resolved an important conflict between Florida's intermediate appellate courts with respect to the test used in adjudicating design-defectclaims in product liability cases.

While working as a construction supervisor in the 1970's, William P. Aubin inhaleddust containing asbestos fibers from SG-210 Calidria, an asbestos product manufacturedby Union Carbide Corporation. In 2008, Aubin was diagnosed with malignant peritonealmesothelioma, a fatal form of cancer in the lining of the abdomen. Aubin sued andwon at the trial level where the jury awarded him $6,624,150 finding that Union Carbide was liable for Aubin's damages under theories of negligence and strict liabilityfor defective product design and failure to warn.

Union Carbide appealed and won at the Third District Court of Appeal, which heldthat the trial court erred by, among other things, failing to apply the Restatement(Third) of Torts, which exclusively adopts the "risk utility" test for design defectclaims like Aubin's and imposes on plaintiffs the burden of presenting evidence of a reasonable alternative design.

The case was appealed to the Florida Supreme Court, which reversed the Third District'sdecision and rejected the Third District's adoption of the risk utility test for design defect cases. In reaching its conclusion, the Florida Supreme Court notedthat the Third District's decision conflicted with the Florida Supreme Court's holdingin West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla. 1976) which applied the Restatement(Second) of Torts to strict products liability cases and utilized the "consumer expectations" test as an essential part of determining whether a design defect exists.

Under the consumer expectation test, a product is deemed defectively designed ifthe plaintiff is able to demonstrate that the product did not perform as safely as an ordinary consumer would expect when the product is used in the intended orreasonably foreseeable manner. Under the risk utility test, adopted by the ThirdDistrict, the plaintiff must demonstrate that the foreseeable risks of harm posedby the product could have been reduced or avoided by the adoption of a reasonablealternative design by the seller or other distributor, and the omission of the alternativedesign rendered the product not reasonably safe.

In Aubin, the Florida Supreme Court explained that in West it adopted "consumer expectations" test because the cost of injuries resulting from defective productsshould be borne by the makers of the products who put them into the channels of trade, rather than by the injured persons who are ordinarily powerless to protectthemselves. For this reason, in West the Court held that a manufacturer is strictlyliable in tort when an article it places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injuryto a human being.

The Aubin Court noted that the risk utility test conflicts with West by imposinga higher burden on consumers to prove a design defect by requiring the injured consumer to prove that a reasonable alternative design was available to the manufacturer.The Aubin Court also expressed a concern that the risk utility test could insulatea manufacturer from all liability for unreasonably dangerous products if an alternativedesign for that type of product is unavailable. Based on these concerns, the Courtheld that the consumer expectations test is the appropriate test for determining a design defect because it more closely aligns with the policy reasons behind Florida'sadoption of strict liability in products design cases.

Although the Court rejected the Third District's adoption of the risk utility test,the Court stressed that, consistent with Florida Standard Jury Instructions in CivilCases, in proving or defending against design defect claims, the parties may stillpresent evidence that a reasonable alternative design existed and argue whether the benefit of the product's design outweighed any risks of injury or death causedby the design. Interestingly, following the Aubin Court's pronouncement, one FederalCourt has opined that in Florida a plaintiff may prevail by proving either theory.Anderson v. Techtronic Indus. N. Am., Inc., 6:13-CV-1571-ORL-40TBS, 2015 WL 7429060,

at *3 (M.D. Fla. Nov. 11, 2015).

For more information, contact Gene Polyak at (954) 761-8700 or via email at

[mailto:.