On May 17, 2012, The Supreme Court of Florida issued its opinion concerning proposed new Standard Jury Instructions for product liability cases. The Committee on Standard Jury Instructions (Civil) had submitted these proposed instructions more than two years ago. A number of individuals, including RumbergerKirk attorney Dick Caldwell, submitted comments about these instructions, and oral argument was held in early May, 2010.

The court preliminarily approved several of the proposed instructions, including those concerning strict liability failure to warn and negligent failure to warn. Other instructions receiving the Court’s approval addressed implied warranties of merchantability and fitness for a particular purpose, the definition of legal cause, and burden of proof.

Importantly, the Court specifically rejected the Committee’s proposal on an instruction covering strict liability (Instruction 403.7). This proposal had sought to eliminate the differences between design and manufacturing defects. The proposal had been fiercely resisted by commentators because, among other things, it sought to eliminate the risk-utility analysis as a test of defect, and instructed only on the consumer expectations test. We had contended that this proposal was incorrect and improper because (1) the two types of defect were conceptually distinct, and (2) the risk-utility test was alive and well as a part of Florida product liability law. The Court’s opinion seemed to agree with our position. However, some inconsistencies are apparent in the decision, as the Court approved Instruction 403.15(d), which seems to adopt the consumer expectations theory, and 403.18(b), which refers to risk-utility as a defense. This may well have been an oversight by the court. The Court also rejected proposed instructions covering Inference of Defect, and Crashworthiness.

The Court returned the rejected instructions to the Standard Jury Instructions Committee for revision. In so doing, it made clear that it had only preliminarily approved the other instructions, pointing out that the product liability instructions would necessarily need to be considered as a whole, once the revisions have been submitted back to the Court by the Committee.

Overall, the Court’s decision must be considered a very positive development. The rejected instructions in particular were viewed as an attempt to make drastic changes in Florida law, favoring plaintiffs, rather than a simple reorganization of jury instructions reflecting settled Florida law. The decision itself was not unanimous, which is fairly unusual for instances involving court rules and jury instructions. However, the clear message was the rejection of the attempt by the plaintiffs’ bar to overhaul Florida law in their favor.