Orlando Attorney Tim David Weighs in on Assault to Florida’s Products Liability Law
Consumer Safety is Currently in Jeopardy Across Florida
The Florida Supreme Court is considering revisions to the Florida Standard Jury Instructions that could make product liability cases in Florida more difficult to defend. Orlando attorney Tim David explains why Florida consumers may be headed in a troubled direction.
To better understand the potential dangers ahead for consumers, the history behind products liability in Florida comes in to play.
The Florida Products Liability law as it stands today
The Florida Supreme Court adopted the doctrine of strict products liability in 1976 which remains the law of Florida today. This doctrine follows the “consumer expectations test,” which provides that a product is defective if it fails to perform as safe as a consumer could reasonably expect.
The changes being considered by the Florida Supreme Court threaten to undermine this law as it is stated potentially penalizing the consumer. Manufacturers have historically challenged the doctrine of strict products liability preferring the “risk-utility test,” which asks whether a product’s risks outweigh the product’s utility; transforming strict products liability claims that protect consumers into negligence actions, which can harm the consumers and benefit the manufacturers.
Challenges to the Products Liability Law Along The Way
The 1976 doctrine of strict products liability was challenged in 2008, when the trial court ruled in favor of the plaintiff in the case of Aubin v Union Carbide Corp. William P. Aubin claimed to suffer mesothelioma from the use of a product in the 1970’s produced by Carbide Corp, which contained asbestos. The jurors held Carbine liable under theories of negligence and strict liability for defective product design and failure to provide adequate warnings of the dangers of the product. In 2012, The Florida Third District Court of appeals reversed trial court’s judgment utilizing the “risk-utility” test over the “consumer expectations” test, despite the Florida Supreme Court’s adoption of the strict products liability. In 2015, the Florida Supreme Court overruled the Third District’s ruling and reinstated the trial court’s ruling utilizing the “consumer expectations test”; clearly stating that the consumer expectations test is a vital aspect of strict products liability under Florida law; settling almost 40 years of uncertainty and debate in Florida over the proper test for product design defects.
What does this mean for consumers today?
Consumers are in potential danger. In September, 2016, the Committee on Standard Jury Instructions in Civil Cases proposed additional revisions to the products liability jury instructions, in part to address the Aubin decision. The proposed instruction would provide that the jury is to consider “whether there was no reasonable alternative design for (the product) when it was placed on the market and, on balance, at that time, the [benefits] [or] [value] of (the product) outweighed the risks or danger connected with its use.”
The new proposed defense is problematic, because of its name as well as its citation to comment k. Comment k, by its own terms, is strictly limited to those “products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use.” Restatement (Second) of Torts, § 402A, cmt k. The Restatement further observes that such products “are especially common in the field of drugs.” The effect of comment k is to remove a claim from strict products liability, and instead apply a negligence standard; aiding the manufacturers and potentially undermining the consumer.
Here is where the danger lies. Comment k really only applies to cases involving drugs, vaccines, or medical devices. This is not a one size fits all recommendation for product liability. Why is it necessary to have a pattern jury instruction on this issue? If such an instruction were included, there should be a clear disclaimer that the instruction will only apply to certain types of products, including medical drugs and devices; this is not the case. The current drafted proposal allows defendants to attempt to interject an “unavoidably unsafe product” defense into each and every case, hoping to transform all strict products liability cases into negligence cases. Ultimately, this will resurrect the pre-Aubin arguments that all products liability cases should be judged and decided on the “risk-utility test” rather than the “consumer expectations” standard. These arguments would not only create confusion, but also lead to unnecessary appeals.
Where Does David & Philpot, P.L. Stand On This Issue?
It is important to remember the Aubin case moving forward. The lawyers of David & Philpot strongly believe that product sellers bear a special responsibility to consumers to provide safe products, and the public has the right to expect that sellers will fully stand behind their products. It is important to keep the producers liable to protect consumers from potential dangers.
The proposed revisions for consumer liability are located here. The law firm of David & Philpot are prepared to assist anyone moving forward who may be affected by the potential revisions for product liability. Please contact David & Philpot at 800-360-7015 for updates to this important motion by the Florida Supreme Court.