On December 1, 2010, a three judge panel of the Florida Fourth District Court of Appeal, issued its opinion in Alvarez v. Cooper Tire and Rubber Co., 35 Fla. L. Weekly D2630, 2010 WL 4861514 (Fla. 4th DCA 2010). The opinion jettisoned almost two decades of common law development of the substantial similarity doctrine as a limitation on efforts by plaintiffs to discover information about product makes and models different than those actually at issue in their lawsuits. The December 2010 ruling was written by Judge Gary M. Farmer, Sr., who subsequently retired from the bench just weeks after writing his opinion. Upon retirement, he joined his son at a South Florida plaintiffs’ law firm which litigates against product manufacturers.

Judge Farmer’s opinion held that the plaintiff in Alvarez was deprived of a fair trial because the lower court had limited product discovery to tires which were “substantially similar” to the tire at issue. In the discovery context, the Florida substantial similarity doctrine requires that, before other product accidents / incidents or makes & models are discoverable, the plaintiff must establish they are substantially similar to that at issue in the lawsuit. Caterpillar Indus., Inc. v. Keskes, 639 So.2d 1129, 1130 (Fla. 5^th DCA 1994). Before Judge Farmer’s opinion in Alvarez, the doctrine was widely endorsed by every Florida appellate district that had addressed the subject.

In Alvarez however, Judge Farmer reversed a defense verdict in favor of Cooper Tire and remanded the case for a new trial.  Judge Farmer’s opinion reasoned that discovery should not be limited to products which are “substantially similar” to that in question, but “need bear only a similarity in substance with the subject matter of the claim.”   The opinion dismissed as dicta, the Fourth DCA’s own prior acknowledgment of the substantial similarity doctrine in the discovery context in Nissan Motors Corp. v. Espinosa, 716 So.2d 279, 280 (Fla. 4th DCA 1998). In fact, Judge Farmer’s opinion explicitly endorsed discovery “fishing expeditions” against product manufacturers for information about product models dissimilar to that involved in the lawsuit.

However, on November 30, 2011, the Fourth DCA granted Cooper Tire’s Motion for Rehearing en banc, and all 12 members of the Bench unanimously reversed Judge Farmer’s opinion. On the opening page of the new ruling, the en banc court wrote:

[T]he author of the prior opinion retired from the court. The court has elected to continue with consideration of the opinion en banc, because the prior opinion conflicts with Nissan Motors Corp. v. Espinosa, 716 So. 2d 279, 280 (Fla. 4th DCA 1998), and expresses an unprecedented analysis of discovery [….] which the court does not endorse.

The en banc court explained that Judge Farmer’s opinion ignored the “abuse of discretion” standard; the proper standard for appellate review of discovery orders in Florida.  As proof that the trial court did not abuse its discretion in refusing plaintiff’s “other makes and models” discovery efforts in Alvarez, the en banc court recited the extensive record demonstrating exhaustive consideration given by the trial court before refusing plaintiff’s discovery endeavors.   In addressing the failure of Judge Farmer’s opinion to utilize the proper standard of review, the en banc court wrote:

This court adheres to review of discovery orders under an abuse of discretion standard. Trial judges must be afforded leeway in making the relevance and burdensomeness decisions required in discovery disputes. Otherwise, the cost and burden of civil litigation will imperil its very existence.

Extinguishing any argument that the courts have – over the last two decades – misapplied the substantial similarity doctrine in the context of other makes & models discovery as Farmer had claimed, the new decision bluntly states:

In products liability actions, when a plaintiff seeks discovery regarding other products manufactured by the defendant, Florida courts have uniformly held that the other products must be “substantially similar” to the subject product. See Nissan Motors Corp. v. Espinosa, 716 So. 2d 279, 280 (Fla. 4th DCA 1998); Am. Med. Sys., Inc. v. Osborne, 651 So. 2d 209, 210–11 (Fla. 2d DCA 1995); Caterpillar Indus., Inc. v. Keskes, 639 So. 2d 1129, 1130 (Fla. 5th DCA 1994). The burden is on the plaintiff to demonstrate “substantial similarity.”

See id. (emphasis added).

The November 30, 2011 en banc Alvarez decision is not groundbreaking as it essentially affirms years of Florida precedent on the substantial similarity doctrine.  However, the opinion is bold in unequivocally striking down a manifestly pro-plaintiff ruling that departed from an established doctrine designed to protect manufacturers against abusive and irrelevant discovery. Even as an outlier, plaintiffs’ lawyers would have utilized Judge Farmer’s Alvarez opinion to dramatically expand the scope of other product accidents / incidents or makes & models discovery. Networked plaintiffs’ lawyers would have cited the decision to facilitate boundless discovery in hopes of stumbling upon something to suggest a defect theory for lawsuits or, to multiply the burdens on the defense in order to obtain a settlement advantage. By issuing its en banc decision, the Fourth DCA unanimously closed the door on such tactics.