In January, I posted regarding the impact of the Florida Supreme Court’s decision in Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015). In that post I explained that even after Aubin, the consumer expectations test should not be applied in all design defect strict product liability cases because it is still up to the individual trial court judges to decide whether the consumer expectations and risk-utility tests should be given alternatively or together depending on the individual circumstances presented in each case. Some of the reasons for this conclusion included that the standard jury instructions remain unchanged; that numerous courts have ruled some products are too complex for the application of the consumer expectations test; that cases subject to the learned intermediary doctrine by definition involve a product too complex to permit the application of the consumer expectations test; and that the risk-utility test traces its roots to the Restatement (Second) of Torts, not the Restatement (Third) of Torts which was rejected in Aubin.

Not long ago, the Third District Court of Appeal issued its ruling in Font v. Union Carbide Corp., No. 3D11-3270, 2016 Fla. App. LEXIS 11366 (Fla. July 27, 2016). In that case, the plaintiff “filed a wrongful death action for negligence and strict liability for failure to warn and the manufacture of a defective product against Union Carbide and other asbestos manufacturers and distributors.” Id. at *2. At the charge conference, the plaintiff “requested that the standard jury instruction PL 5 [which provides language suitable for either the risk-utility or the consumer expectations test] be given to the jury verbatim.” Id. Union Carbide argued that the Second Restatement’s consumer expectations test had been rejected and that only the risk-utility test articulated in the Third Restatement should be given to the jury. Id. at *3. The trial court denied the plaintiff’s request and the jury returned a defense verdict. Id. On appeal, the Third District Court of Appeal affirmed. Id. at *3-4. The Florida Supreme Court later quashed that appellate decision and “remanded for reconsideration upon application of [its] decision in Aubin.” Id. at *4-5. The Third District Court of Appeal then reversed the final judgment that had been entered in favor of Union Carbide and remanded for a new trial where both the risk-utility and consumer expectations tests would be given. Id. at *8.

Importantly, however, the appellate court explained that its ruling was based on the “specific circumstances” of the case. Id. at *5. The court reasoned that “[g]enerally, trial courts are accorded broad discretion in formulating jury instructions, and a decision not to give an instruction will not be reversed unless the error complained of resulted in a miscarriage of justice, or unless the failure to give the instruction was reasonably calculated to confuse or mislead the jury.” Id. (citations and quotations omitted). And the court noted that the record supported the plaintiff’s request for the entire standard jury instruction because “(1) the language of PL 5 was an accurate statement of Florida law; (2) [the plaintiff] presented substantial factual evidence to support the giving of the instruction; and (3) the instruction was necessary for the jury to properly resolve the dispute.” Id. at *6.

This ruling is significant because even after Aubin, the Third District Court of Appeal left open the possibility of differing results in other cases with dissimilar “specific circumstances” where the facts do not support the application of both tests and a jury could be confused or mislead if presented with both tests. Examples of such cases include those concerning products like prescription drugs and medical devices that are subject to the learned intermediary doctrine and are too complex for an ordinary consumer to have any expectations concerning their proper operation. See, e.g., Force v. Ford Motor Co., 879 So. 2d 103, 109-10 (Fla. 5th DCA 2004) (“Some products may, in fact, be too complex for an ordinary consumer to have any expectations concerning their proper operation.”); In re Fosamax Prods. Liab. Litig., 2010 WL 1257299, at *6 n.4 (S.D.N.Y. Mar. 26, 2010) (applying Florida law) (“[P]rescription pharmaceuticals [are] too complex for the straight-forward application of the consumer expectation test.”); Rydzewski v. DePuy Orthopaedics, Inc., 2012 WL 7997961, at *3 (S.D. Fla. Aug. 14, 2012) (“[T]he prescription medical device in this case is closer to prescription drugs than to seatbelts and other products routinely operated by consumers. For these reasons,…the Court concludes that the consumer expectation theory does not apply in this case.”).

Thus, as I predicted in my last post on this subject—and contrary to other commentators’ opinions— Aubin’s ultimate impact on cases involving complex products may wind up being far more limited than some would posit. A year after Aubin, many strong arguments still remain in favor of the exclusive application of the risk-utility test in certain cases.