Mass Tort / Asbestos Update – The Proper Test for Determining Design Defect in Florida is the Restatement (Second) of Torts “Consumer Expectations” Test

February 3, 2016 by on News

THE PROPER TEST FOR DETERMINING DESIGN DEFECT IN FLORIDA IS THE RESTATEMENT (SECOND) OF TORTS “CONSUMER EXPECTATIONS” TEST

Kristen M. Van der Linde  and Billie Jo Taylor

In Aubin v. Union Carbide Corp., 2015 WL 6513924 (Fla. 2015), the Plaintiff filed a complaint for strict liability design defect, strict liability failure to warn and negligent failure to warn. The Plaintiff worked as a construction supervisor and alleged he was exposed to asbestos containing products. Plaintiff was diagnosed with peritoneal mesothelioma which he alleged was caused by his exposure to defendants’ products. At the close of the evidence the Defendant moved for directed verdict which the trial court denied. Subsequently the jury returned a 14 million dollar verdict. The Defendant appealed stating that the trial court erred by denying defendant’s motion for directed verdict as to design defect.

The Third District Court of Appeal held that the trial court committed reversible error by applying the Second Restatement of Torts, the “consumer expectation” test rather than the Third Restatement of Torts “risk utility” test. In doing so, the Third District stated that the Defendant correctly argued that the Plaintiff had failed to present any evidence regarding a “reasonable alternative design” which is required under the Third Restatement “risk utility” test. However, the Plaintiff argued that it did not need to present any evidence regarding an alternative design because his theory was premised upon the Second Restatement “consumer expectations” not the “risk utility” test.

The Florida Supreme Court held that the Third District’s decision to apply the Third Restatement expressly and directly conflicted with prior holdings by the Florida Supreme Court in West v. Caterpillar Tractor Co., 336 So. 2d 80 (fla. 1976) and with the Fourth District’s decision in McConnell v. Union Carbide Corp., 937 so. 2d 148 (Fla. 4th DCA 2006). Both of these rulings applied the Second Restatement test to a design defect claim under strict products liability. The Court analyzed the case applying the consumer expectations test and other state supreme court opinions which have done the same.

In analyzing the Second Restatement “consumer expectations” test, the Florida Supreme Court stated that it properly focuses on the expectations that are created by the manufacturer of the product which in turn motivates consumers to purchase that particular product. By applying the Third Restatement “risk utility” test, the burden is shifted t o the plaintiff to prove that a reasonable alternative design existed which is a higher burden than exists in negligence cases. Shifting the burden to the plaintiff goes against the purpose of the adoption of strict products liability. After analyzing rulings by various state supreme courts and the Second Restatement, the Florida Supreme Court held that the Second Restatement is the appropriate test for determining a design defect.

If you have any questions about this case or would like assistance with a mass torts/asbestos matter, please contact our mass torts/asbestos attorneys.

 

Shareholder, Kristen M. Van der Linde, thumbnail
Kristen Van der Linde
Board Certified Civil Trial Lawyer
Shareholder / Practice Group Leader
Direct: 904.493.3766
Fax: 904.493.3739
Email: kvanderlinde@boydjen.com

 

Billie Jo Taylor
Partner / Practice Group Leader
Direct: 904.520.7801
Fax: 904.520.7368
Email: btaylor@boydjen.com

 

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