James Louis Ferraro and Juan Pablo Bauta, II of The Ferraro Law Firm recently successfully appealed an asbestos case to the Florida Supreme Court in Aubin v. Union Carbide Corporation.

The plaintiff was exposed to asbestos fibers while working as a construction supervisor for his father’s company from 1972 to 1974. He was not aware that he was inhaling asbestos fibers at the time. He was diagnosed with malignant peritoneal mesothelioma in 2008. He filed suit against multiple defendants that had designed, manufactured, and sold the products that contained asbestos supplied by the defendant Union Carbide. The claims against the other defendants were settled or dismissed, and the claims based on strict liability design defect, strict liability failure to warn, and negligent failure to warn against Union Carbide went to trial. The jury found Union Carbide liable under negligence and strict liability claims. It returned a verdict of $14,191,000, attributing 46.25% of the fault to Union Carbide and the rest to various intermediaries.

The defendant appealed, and the Third District reversed the jury’s verdict, finding error in the trial court’s application of the Restatement (Second) of Torts rather than the Restatement (Third) of Torts. The Third Restatement requires a “risk utility” test and requires plaintiffs to prove there is a reasonable alternative design in design defect claims. The Third District also found that the design defect was not a legal cause of the damages. Additionally, the Third District found that the trial court erred in failing to give jury instructions on the learned intermediary defense, which describes the circumstances under which a manufacturer can rely on an intermediary to warn the end user of the hazards of a product.

The application of the Third Restatement is in conflict with Florida Supreme Court precedent, which has applied the Second Restatement’s “consumer expectations” test. The Supreme Court noted that by focusing on foreseeability, the risk utility test blurs the line between strict liability and negligence claims. Furthermore, the burden on a plaintiff under the risk utility test is higher than on a plaintiff in a negligence case. The court also pointed out that the manufacturer of an unreasonably dangerous product may be protected from liability because there is no known alternative design. The court pointed out that a number of other jurisdictions have expressed concerns about the Third Restatement.

The Florida Supreme Court found that the Third Restatement was contrary to the public policy concerns that led it to adopt a strict product liability framework and the consumer expectations test. It pointed out that the standard jury instructions in Florida use the consumer expectations test and the risk utility test as alternative definitions for design. The Florida Supreme Court rejected the application of the Third Restatement.

The Florida Supreme Court also found that the Third District had conflated causation and the Third Restatement’s definition of a design defect when it found that the plaintiff had not proven causation. The Third District had found that the plaintiff failed to show that the product was more dangerous than raw asbestos. The plaintiff, however, is not required to make such a showing to prove causation. He must only show that the defective design directly produced or substantially contributed to producing his mesothelioma, such that the injury would not have occurred “but for” the design defect. The plaintiff in this case presented sufficient evidence for the issue of causation to go to a jury. Thus, the Third District erred in finding that the defendant was entitled to a directed verdict.

As for the Third District’s finding that the trial court erred in failing to provide a jury instruction on the learned intermediary defense, the Florida Supreme Court found that the defense was appropriate, but the trial court had not committed reversible error in failing to give the instruction. The Supreme Court found that the jury instructions proposed by the defendant listed factors that were directly contrary to principles of law. The court stated that a court is not required to correct inaccurate and misleading instructions proposed by a party, and the party cannot claim the court committed reversible error when it does not correct such instructions. It was not error that the trial court did not give the inaccurate instructions proposed by the defendant. The Florida Supreme Court noted that the verdict had apportioned fault to several intermediaries. The court found no reversible error as to the instructions given to the jury.

The Florida Supreme Court reversed the Third District and remanded for reinstatement of the original judgment.

Our Florida mesothelioma attorneys understand Florida product liability law and the analysis courts use to determine if the defendant is liable. If you have been diagnosed with mesothelioma, contact us today.

Help for mesothelioma victims can be found at The Ferraro Law Firm by calling (888) 554-2030. Offices in Miami and Washington, D.C