Florida Supreme Court Rejects the "Risk Utility" Test For Strict Liability Design Defect Cases

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In a key products liability decision, Aubin v. Union Carbide Corp., No. SC12-2075, 2015 WL 6513924, at *1 (Fla. Oct. 29, 2015), the Florida Supreme Court rejected the Restatement (Third) of Tort's "risk utility" test which permits a plaintiff to establish a design defect if it can demonstrate a reasonable, alternative product design that the defendant failed to adopt.  Having rejected outright the "risk utility" test, the Florida Supreme Court has mandated application of the "consumer expectations test," which can prove unwieldy for juries and judges in cases involving complex products.  The Florida Supreme Court further clarified the applicable standard of causation in products liability cases and shed light on the challenges of relying on the "learned intermediary" defense.

In the first stage of this case, following a jury verdict in favor of Plaintiff and former construction supervisor William Aubin, the trial court entered judgment against Defendant Union Carbide Corporation in an amount of $6,624,150 for causing Aubin to develop peritoneal mesothelioma from its product SG–210 Calidria, which contains asbestos and is used in drywall joint compounds and ceiling texture sprays. The jury held Union Carbide liable to Aubin under theories of negligence and strict liability for defective product design and failure to provide adequate warnings related to the dangers of the product.

The Florida Third District Court of Appeals reversed the trial court's judgment. The Florida Supreme Court, however, subsequently overruled the Third District and reinstated the trial court's judgment, ruling that:

  1. the Restatement (Second) of Torts' "consumer expectations test" – a doctrine that holds a manufacturer liable for a defective product design if the product does not act as a reasonable consumer would expect it to act – is the applicable test in Florida to determine whether, for purposes of establishing strict liability, a product has a design defect rather than the Restatement (Third) of Torts' "risk utility" test;
  2. to establish causation in a defective design claim, a plaintiff need only demonstrate that the product's defective design contributed substantially to plaintiff's harm – therefore, the Plaintiff in this case was not required to demonstrate that SG–210 Calidria was more dangerous than raw asbestos; and
  3. the "learned intermediary" defense may be presented to the jury in asbestos cases to prove that the manufacturer satisfied its duty to warn end users. Union Carbide, however, failed to submit jury instructions that accurately described the learned intermediary defense and therefore no error resulted from the trial court's refusal to use Union Carbide's proposed jury instructions. Under Florida law, the "learned intermediary" defense allows a manufacturer to rely on retailers, distributors or other intermediaries providing the product to end users to warn the end users of the product's dangers, however, a manufacturer must have acted reasonably in relying on the intermediary to fully warn the end user and further must have fully warned the intermediary of the product's dangers. Whether a intermediary's reliance is reasonable is based on the following nonexclusive factors: the gravity of the risks posed by the product, the likelihood that the intermediary will convey the information to the ultimate end user, and the feasibility and effectiveness of directly warning the end user. As such, the Court reasoned that, the greater the harm that the end user would be subjected to if proper warnings are not given, the less reasonable a manufacturer will be in relying on the "learned intermediary" defense.

The Aubin case is significant because: (a) it decisively adopts the "consumer expectations test," which is more forgiving to manufacturers that produce a patently dangerous product (a reasonable consumer should have expected a visibly dangerous product to act in a harmful way), yet is oftentimes difficult to apply and leads to unpredictable results in cases involving complex products such as the product in this case; (b) it further clarifies the standard of causation in Florida product liability cases; and (c) it highlights the difficulty of relying on the "learned intermediary" defense for defendants that manufactured a particularly dangerous product.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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