The Florida Supreme Court recently issued a significant decision that will affect all strict product liability/design defect cases litigated in Florida. In Aubin v. Union Carbide, decided October 29, 2015, the Court rejected the risk-utility test in favor of the consumer-expectation test. The consumer-expectation test examines whether a product is unreasonably dangerous because it failed to perform as safely as a reasonable consumer would expect when using it as intended or in a reasonably foreseeable manner. The risk-utility test, on the other hand, poses a higher burden of proof for plaintiffs. It focuses on whether the utility of a product outweighs any risk of using it. It also requires the plaintiff to prove that a reasonable alternative design existed. Conversely, under the consumer-expectation test, the plaintiff is not required to prove a reasonable alternative design existed. In sum, the Court’s decision in Aubin, made it easier for plaintiffs to claim that a defendant’s product is defectively designed.

In Aubin, the plaintiff brought a product liability action against Union Carbide alleging strict liability/design defect, strict liability failure to warn and negligent failure to warn. A Miami-Dade County jury rendered a verdict against Union Carbide, which appealed to the Third District Court of Appeal. The intermediate appellate court reversed and vacated the verdict. The Florida Supreme Court later reinstated the verdict, holding that the consumer-expectation test applied, rather than the risk-utility test, and that the intermediate court decision was in conflict with prior Florida Supreme Court case law.


The plaintiff worked as a construction supervisor, overseeing residential development in Sarasota, Florida. He claimed he was exposed to asbestos dust created from drywall joint compounds and ceiling texture. Union Carbide produced and sold a type of asbestos that was used in these joint compounds and texturing sprays. Years later, the plaintiff was diagnosed with peritoneal mesothelioma. He filed suit against numerous defendants alleging that his disease was caused by asbestos exposure. Most of the defendants settled and the plaintiff went to trial solely against Union Carbide.

In overruling the intermediate appellate court, the Supreme Court held that the consumer-expectation test, rather than the risk-utility test, applied to product design defect claims. The Court also held that there was sufficient evidence to create a jury issue regarding causation, that a learned intermediary defense is a question for the jury, and that failure to give jury instructions regarding the learned intermediary defense was harmless error.

The Court relied on its seminal decision in West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla. 1976), to show that the consumer-expectation test is an essential part of establishing a design defect in strict product liability cases. The Court emphasized how the Third Restatement is not uniform law for all states, and strict liability is often policy-driven. The risk-utility test created a higher bar for recovery. By adding the manufacturer’s foreseeability of the risk to the analysis, and requiring proof of a reasonable alternative, the risk-utility test effectively grafts negligence principles onto a strict liability analysis. This is contrary to the essence of strict liability. The risk-utility test also requires a plaintiff to “step into the shoes of the manufacturer,” requiring it to establish that a reasonable alternative product design was available to the manufacturer, but not used. The Court’s rationale is that the requirement for plaintiffs to prove a reasonable alternative design existed imposes an undue burden on plaintiffs and might preclude otherwise valid claims from jury consideration. According to the Court, the alternative reasonable design is not required in the majority of jurisdictions, and many commentators have criticized the risk-utility approach as being too harsh.

The Court examined whether the plaintiff presented sufficient evidence that the design defect of Union Carbide’s product caused him harm. The Third District determined that he did not establish causation under the Third Restatement because he “failed to introduce any evidence suggesting that the defendant’s product was more dangerous than raw chrysotile asbestos with respect to the contraction of cancer or peritoneal mesothelioma.” The Supreme Court stated that the intermediate court conflated the Third Restatement’s risk-utility test with the proper test for causation. That test is simply whether the product caused the injury, rather than to compare the level of danger of one product with an unreasonably dangerous product.

Ultimately, Aubin is a pivotal case in product liability because it established that the consumer-expectation test must be applied to design defect cases. This decision, in our view, will result in more design defect claims being tried and may encourage more product defect claims to be litigated against manufacturers in the state of Florida.