In Aubin v. Union Carbide Corp., 40 Fla. L. Weekly S596 (Fla. Oct. 29, 2015), the Florida Supreme Court recently resolved an important conflict between Florida's intermediate appellate courts with respect to the test used in adjudicating design-defect claims in product liability cases.
While working as a construction supervisor in the 1970's, William P. Aubin inhaled dust containing asbestos fibers from SG-210 Calidria, an asbestos product manufactured by Union Carbide Corporation. In 2008, Aubin was diagnosed with malignant peritoneal mesothelioma, a fatal form of cancer in the lining of the abdomen. Aubin sued and won 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 liability for defective product design and failure to warn.
Union Carbide appealed and won at the Third District Court of Appeal, which held that 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 defect claims 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's decision and rejected the Third District's adoption of the risk utility test for design defect cases. In reaching its conclusion, the Florida Supreme Court noted that the Third District's decision conflicted with the Florida Supreme Court's holding in 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 if the 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 or reasonably foreseeable manner. Under the risk utility test, adopted by the Third District, the plaintiff must demonstrate that the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, and the omission of the alternative design 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 products should 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 protect themselves. For this reason, in West the Court held that a manufacturer is strictly liable 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 injury to a human being.
The Aubin Court noted that the risk utility test conflicts with West by imposing a 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. TheAubin Court also expressed a concern that the risk utility test could insulate a manufacturer from all liability for unreasonably dangerous products if an alternative design for that type of product is unavailable. Based on these concerns, the Court held 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's adoption 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 Civil Cases, in proving or defending against design defect claims, the parties may still present evidence that a reasonable alternative design existed and argue whether the benefit of the product's design outweighed any risks of injury or death caused by the design. Interestingly, following the Aubin Court's pronouncement, one Federal Court 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).