Originally published in the April 21, 2015 issue of The Daily Business Review

On March 26, 2015, the Supreme Court of Florida authorized proposed changes to the standard jury instructions pertaining to product liability cases. See In Re: Standard Jury Instructions in Civil Cases — Report No. 13-01 (Products Liability), No. SC13-683, 2015 WL 1400770 (Fla. Mar. 26, 2015). The new instructions will serve as the standard or model for all products liability cases tried under Florida law from the date of the opinion. 

As a matter of historical background, in 2006 (approximately 9 years ago), The Committee on Standard Jury Instructions in Civil Cases began the endeavor of revamping and retooling the model instructions for all civil lawsuits. In 2010, the first set of revised instructions rolled out and product liability instructions were completely omitted. Then in 2012, the Florida Supreme Court preliminarily approved several proposed revisions to the products liability instructions, which were not yet in effect.   “The approvals [were] only preliminary because [the] group of instructions [had to] be viewed as a full package before authorization [could] be provided.” See In Re Standard Jury Instructions in Civil Cases — Report No. 09-10 (Products Liability), No. SC09-1264, 91 So. 3d 785 (Fla. May 17, 2012).Approximately three years ago, the Court cautioned that “further work is required before publication and use of these preliminary products liability instructions, model forms, verdict forms, and any other material[s].” Id.

Addressing the substance of the newly enacted standard product liability jury instructions, there are certain key topics or instructions (set forth below) meriting discussion and analysis.

Design Defect: Consumer Expectation vs. Risk-Benefit Tests

The instructions provide separate definitions and instructions for manufacturing defect and design defect. 

A product has a “manufacturing defect” “if its in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product] and the product is expected to and does reach the user or consumer without substantial change affecting that condition. A product is unreasonably dangerous because of a manufacturing defect if it is different from its intended design and fails to perform as safely as the intended design would have performed.” Id.at 403.7(a). 

“A product is defective because of design defect if it is in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product] and the product is expected to and does reach the user without substantial change affecting that condition. A product is unreasonably dangerous because of its design if [the product fails to perform as safely as an ordinary consumer would expect when used as intended or when used in a manner reasonably foreseeable by the manufacturer] [and][or] [the risk of danger in the design outweighs the benefit].” Id.at 403.7(b).

Instruction 403.7 retains the consumer expectation and risk-utility tests for defining a design defect.   At first glance, the consumer expectation test is not only first test that appears in the instruction but is also wordier than the risk-utility test that follows. The risk-utility test does not have much substance, context, or explanation. Moreover, the instruction is written in a disjunctive as well as a conjunctive fashion, which leaves considerable leeway for both plaintiffs and defendants to argue that one test should be applied over the other or both tests should be provided. The usual litany of arguments at the epicenter of the tension between the consumer expectation and risk-utility tests will persist despite the Committee’s best efforts. Arguments against application of the consumer expectation test in some, if not all, circumstances regarding the complexity of a product and/or the alleged defect, first time users, varying experience levels, misuse, etc., will still be well within the defense arsenal. 

The Committee Notes even recognize the split amongst Florida courts with regards to which standard applies for purposes of defining a design defect. The First, Fourth, and Fifth District Courts of Appeal seem to be more inclined to apply the plaintiff-friendly consumer expectation test from the Second Restatement of Torts. The Third District has adopted the Third Restatement’s risk-utility and reasonable alternative design standards for defining a design defect. 

Often times, trial courts will simply allow both instructions, which seems to be the plausible outcome going forward given the instruction’s “and/or” terminology and notes. The Committee Notes state that “[p]ending further developments in the law, the committee takes no position on whether the risk/benefit test is a standard for product defect that should be included in the instruction defining design defect or should be included as an affirmative defense.”  Id.at 403.7 n.3.  There is currently a case pending before the Florida Supreme Court, originating from the Third District Court of Appeal, in which the risk-utility and consumer expectation tests are directly at issue in an asbestos case. See Aubin v. Union Carbide Corp. Case No. SC12-2075 (oral argument was held in April 2014); see also Florida Supreme Court Gavel to Gavel, http://wfsu.org/gavel2gavel/viewcase.php?eid=2139.Depending on the Aubin decision, the products liability instructions may be significantly impacted. The Notes further dilute the efficacy and validity of the risk-utility test by stating, “If a court determines that the risk/benefit test is a test for product defect, the committee takes no position on whether both the consumer expectations and risk/benefit tests should be given alternatively or together.”  Id.  (emphasis added). 

Failure to Warn (Strict Liability / Negligent)

There are new instructions for strict liability and negligent failure to warn, which have been never been previously recognized in the form of Florida’s Standard Jury Instructions in Civil Cases. 

The strict liability failure to warn instruction provides: “A product is defective when the foreseeable risks of harm from the product could have been reduced or avoided by providing reasonable instructions or warnings, and the failure to provide those instructions or warnings makes the product unreasonably dangerous.” Id.at 403.8. 

The negligent failure to warn instruction provides: “[Negligence is the failure to use reasonable care, which is the care that a reasonably careful [designer] [manufacturer] [seller] [importer] [distributor] [supplier] would use under like circumstances.] Reasonable care on the part of (defendant) requires that (defendant) give appropriate warning(s) about particular risks of (the product) which (defendant) knew or should have known are involved in the reasonably foreseeable use(s) of the product.” Id.at 403.10. 

Longstanding and well-established Florida law has evolved over the years to clearly recognize strict liability and negligent failure to warn claims.  Such claims are regularly litigated throughout Florida. The practical implication of Instructions 403.8 and 403.10 is that the jury instructions now reflect the current status of Florida law. Moreover, this puts to rest whether strict liability failure to warn is a recognized cause of action under Florida law.   

Additionally, the Committee Notes recognize that strict liability and negligent failure to warn claims are not mutually exclusive of each other. To the contrary, in circumstances where the two claims are “tried together, to clarify differences between them it may be necessary to add language to the strict liability instruction to the effect that a product is defective if unreasonably dangerous even though the seller has exercised all possible care in the preparation and sale of the product.” Id.at 403.8 n. 2. The inclusion of this note makes it challenging to argue the potential for an inconsistent verdict between strict liability and negligent claims as a basis to urge plaintiffs to drop one and streamline the verdict form.   

Perhaps the most far-reaching aspect of the instruction’s robust construction of warnings claims is contained in note 2 which states that “Under certain circumstances, a manufacturer has a duty to warn about particular risks of a product even after the product has left the manufacturer’s possession, and has been sold or transferred to a consumer or end-user. Id.403.10 n.2 (emphasis added) (citing High v. Westinghouse Elec. Corp., 610 So. 2d 1259, 1263 (Fla. 1992); Sta-Rite Indus., Inc. v. Levey, 909 So. 2d 901, 905 (Fla. 3d DCA 2004)).  The note also indicates that a special instruction may be needed in cases properly raising issues of post-manufacture or post-sale duty to warn. The new instructions do not expressly include post-manufacture/sale duty to warn but merely raise the possibility.[1] Nevertheless, this note may lead to pleadings, jury instructions and verdict forms including an additional theory of liability. Conceivably, there could be three separate and distinct claims on a verdict form only for warnings-based claims (i.e. strict liability, negligent, and post-manufacture/sale failure to warn) in addition to strict and negligent design claims. 

Inferences: Cassisi & Government Rule Non/Compliance  

Although there are no instructions provided under the newly-enacted standard instructions for “403.11 – Inference of Product Defect or Negligence,” there are two notes. The first note recognizes that Florida Statute Section 768.1256 “provides for a rebuttable presumption in the event of compliance or noncompliance with government rules.” Id.at 403.11 n.1. The Committee Notes further state that “[p]ending further development in the law, the committee offers no standard instruction on this presumption, leaving it up to the parties to propose instructions on a case-by-case basis.” Id.

The second note deals with the Florida case-law created Cassisi inference. Id.at 403.11 n.2 (citing Cassisi v. Maytag Co., 396 So. 2d 1148 (Fla. 1st DCA 1981). In Cassisi,the court held that when a product malfunctions during normal operation, a legal inference of product defectiveness arises, and the injured plaintiff establishes a prima facie case for jury consideration by application of the inference. Id.The inference does not apply in all cases but is limited to cases where the product is destroyed. Despite a perceived lack of evidence in such cases, the inference gets plaintiffs past summary judgment. There are several concerns with and arguments against application of the inference such as burden-shifting, modification, misuse, abnormal operation, causation, age of the product, length of product’s use, the severity of the product’s use, the state of repair, and excepted useful life. Pending further development of the law, the Committee took no position on the sufficiency of any possible instructions where the Cassisi inference may apply.[2] Since there is no express, specific instruction regarding the Cassisi inference only the mere possibility of plaintiffs obtaining this instruction in light of the aforementioned arguments exists.      

Crashworthiness & “Enhanced Injury” Claims

The Florida Legislature passed a bill on May 13, 2011 to abrogate the holding in D’Amario v. Ford Motor Co. and restore the jury’s right to compare the wrongdoing or fault of drivers and/or others responsible for the “first collision.” The bill was signed into law on June 23, 2011. The new statute explicitly requires the jury to consider the fault of all who contributed to the accident when apportioning fault in any products liability case alleging that injuries were enhanced by a defective product. In line with the recent Florida law abrogating the D’Amario precedent, the new standard jury instructions do not contain a specific instruction regarding apportionment of fault in a crashworthiness case. However, there is an “enhanced injury” instruction under the “403.2 – Summary of Claims.” The Note indicates that the following instruction is to be used in crashworthiness cases: “[(Claimant) [also] claims that [he][she] sustained greater or additional injuries than what [he][she] would have sustained in the (describe accident) if the (describe product) had not been defective.].” Id.at 403.2. The plaintiff’s bar is likely to advance arguments about the continued applicability of D’Amario, the retroactive application of the recent abrogating statute, and evidentiary rule 403-based exclusion.