Plaintiffs Regain the Litigation High Ground in Florida

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In a setback for manufacturers, Florida’s highest court recently ruled plaintiffs do not need to prove a reasonable alternative exists to prevail in product liability cases. The test that requires a reasonable alternative is commonly known as the “risk-utility test.” A mid-level Florida appeals court had used the risk-utility test, but the Florida Supreme Court ruled Florida will return to the “consumer expectations test,” where a design is flawed if a product does not perform as an ordinary consumer would expect. Florida adopted the objective form of the consumer expectations test since the test is an ordinary consumer’s expectation and not necessarily the plaintiff’s expectation.

The case, Aubin v. Union Carbide Corp., involved plaintiff’s use of a Georgia-Pacific spray made from SG-210 Calidria, which contained asbestos mined by Union Carbide. The SG-210 was processed by Union Carbide to increase efficiency, which plaintiff claimed created a higher risk of asbestosis and mesothelioma than asbestos processed with different techniques. A jury awarded plaintiff $14.2 million, but a mid-level appeals court reversed the decision holding that plaintiff had to prove a reasonable alternative existed.

In defending its decision to overturn the mid-level appeals court, the Florida Supreme Court reasoned the burden should be on manufacturers to protect against the risk of harm by designing products based on consumers’ expectations. While manufacturers and plaintiffs can still argue a reasonable alternative design was or was not available, the plaintiff will not have the burden of proving a reasonable alternative design.

This case is yet another example of the risks manufacturers face when products are sold or used across numerous states. A product may meet the risk-utility test in one state, but not meet the consumer expectations test in Florida. Since an ordinary consumer’s expectations may not be realistic, this is effectively a higher standard and a setback for manufacturers whose products are sold or possibly used in Florida.


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