The New Florida Government Rules Defense

The 1999 Tort Reform Act included, among others, a defense to a products liability case entitled the “Government Rules Defense.” This defense creates a rebuttable presumption that a product is or is not defective under certain conditions. Not until recently have trial lawyers had to deal with this defense, because, until the last six months, cases involving causes of action which accrued after the effective date of the statute had not yet gone to trial.

The Government Rules Defense, which is codified at Florida Statutes §768.1256, provides:

(1) In a product liability action brought against a manufacturer or seller for harm allegedly caused by a product, there is a rebuttable presumption that the product is not defective or unreasonably dangerous and the manufacturer or seller is not liable if, at the time the specific unit of the product was sold or delivered to the initial purchaser or user, the aspect of the product that allegedly caused the harm:

(a) Complied with federal or state codes, statutes, rules, regulations, or standards relevant to the event causing the death or injury;

(b) The codes, statutes, rules, regulations, or standards are designed to prevent the type of harm that allegedly occurred; and

(c) Compliance with the codes, statutes, rules, regulations, or standards is required as a condition for selling or distributing the product.

(2) In a product liability action as described in subsection (1), there is a rebuttable presumption that the product is defective or unreasonably dangerous and the manufacturer or seller is liable if the manufacturer or seller did not comply with the federal or state codes, statutes, rules, regulations, or standards which:

(a) Were relevant to the event causing the death or injury;

(b) Are designed to prevent the type of harm that allegedly occurred; and

(c) Require compliance as a condition for selling or distributing the product.

(3) This section does not apply to an action brought for harm allegedly caused by a drug that is ordered off the market or seized by the Federal Food and Drug Administration.

This statute is a sword as well as a shield, in that paragraph (2) extends common law negligence per se principles to strict liability claims in those cases where a manufacturer or seller has not complied with governmental rules in making or selling the product. Obviously, most cases will be those in which a defendant has complied with government safety rules and is seeking the protection of the statute, either by requesting the court to deem a product not defective as a matter of law, or by seeking a jury instruction patterned after the statute.

Trial lawyers who have recently faced the Government Rules Defense have had to develop strategies and arguments to address the defense. Any plaintiff lawyer facing the Government Rules Defense should at least consider two important arguments. First, that the defense statute violates the Supremacy Clause of the U.S. Constitution, and should therefore be stricken because it is unconstitutional. Second, that the defense should not be the basis for a jury instruction. Each of these will be discussed below.

First Argument: The Government Rules Defense is unconstitutional because it violates the Supremacy Clause

When faced with a situation in which a manufacturer or seller is seeking the benefit of the presumption created by §768.1256, the plaintiff’s lawyer should first examine the applicable government rule to determine whether that rule itself (or the statutory scheme around the rule) indicates what effect the rule is intended to have on common law tort claims. If the government rule at issue in a case contains language indicating that Congress did not intend the rule to affect rights at common law, or something similar, there may be a valid constitutional challenge to the defense based on the Supremacy Clause. Article Six of the United States Constitution contains the Supremacy Clause which establishes federal law as the supreme law of the land and that, if a state statute or regulation is in conflict with the federal law, the statute is unconstitutional. U.S. Const. Art. VI, cl.2; See also, Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996).

Particularly in the case of major federal legislation, the statues or regulations themselves will almost always discuss whether the statute was intended to affect existing civil remedies. For example, with regard to Federal Motor Vehicle Safety Standards, there are numerous indications that those standards were not intended to change liabilities at common law. For example, in Public Law 89-563, 89th Congress, S.3005, Section 108(c), 9/9/66, the United States Congress stated “Compliance with safety standards is not to be a defense or otherwise affect the rights of parties under common law particularly those relating to warranty, contract, and tort liability”. Further, 15 U.S.C. §1397(c) provides that compliance with federal regulations “does not exempt any person from any liability under common law.” Section 102(2) of the National Traffic and Motor Vehicle Safety Act defines a motor vehicle safety standard as “a minimum standard for motor vehicle performance”, 15 U.S.C. §1391(2). Thus, the best source of authority for the argument that Florida Statutes §768.1256 should be stricken in a particular case, and should not be interpreted to substitute the standard set by a government rule for the common law reasonable care standard, may be contained in the government rule itself.

Additional evidence which may further support a Supremacy Clause challenge may exist in secondary sources such as the legislative history or opinion letters. Looking again at Federal Motor Vehicle Safety Standards, there is also strong secondary evidence that those standards were not intended to substitute for the common law reasonable care standard. In an interpretation letter written by the National Highway Transportation Safety Administration, NHSTA wrote: “Compliance with a Federal motor vehicle safety standard does not presumptively mean that the design chosen by a manufacturer is safe.” January 5, 1981, NHTSA Interpretation Letter to Attorney Daniel Thistle. In a November 28, 1980, letter from NHTSA Administrator Joan Claybrook to each of the major automobile manufacturers, the Administrator stated: “Our Federal safety standards are and were intended by Congress to be minimum standards. The tragedy is that many manufacturers have treated the standards more like ceilings on safety performance than floors from which to improve safety.” During a April, 1999, public meeting on side air bags, former NHTSA Administrator Dr. Ricardo Martinez stated “[The industry] has the responsibility to test those technologies under real world conditions and make sure that they produce the purported benefits. At the same time, they have to ensure that those technologies do not have unintended side effects under real world conditions.” Such secondary evidence can be very persuasive on the issue of whether Congress intended for a federal statute or regulation to absolve manufacturers and sellers from liability simply by proving that they complied with the standards.

Under such circumstances, when the statute or secondary sources show that the statute or regulation was not intended to be a substitute for the duty of care, the plaintiff attorney should challenge the defense as being unconstitutional based upon the Supremacy Clause. Because until recently there were no trials in which the Government Rules Defense had been raised, there is no case law yet on this issue. While the Academy of Florida Trial Lawyers launched a constitutional challenge to the entire 1999 Tort Reform Package, a direct challenge to the Government Rules Defense has not yet found its way to the appellate courts. Such a challenge—based upon the facts of an individual case and on the language of the particular federal statute or regulation—has immense potential for success. To the extent that a plaintiff lawyer presses such a challenge in an individual case, he should contact the Academy to make sure it is aware of the challenge, and to possibly obtain assistance from the Academy’s Amicus Committee in the event that the issue is appealed.

Second Argument: The Government Rules Defense should not be the basis for a jury instruction

Assume that in a particular case the evidence shows that a manufacturer defendant has complied with all applicable government rules and has sought to use the Government Rules Defense. What is the practical effect of the rebuttable presumption created by the Government Rules Defense? Is the defendant entitled to a jury instruction in which the jury is told that the jury may presume the product is not defective? This writer strongly suggests that such an instruction should NOT be given, and that the Government Rules Defense should not form the basis for a special jury instruction on the issue of a presumption or product defect. The defendant will certainly seek such an instruction, so the plaintiff’s lawyer should be familiar with the arguments and authority for why an instruction is improper.

While Florida’s case law does not shed much light on this question, Florida’s Government Rules Defense is very similar to statutes enacted in other states that have been subject to court review. Kentucky Revised Statute §411.310 includes a Government Rules Defense very similar to Florida’s, except that in Kentucky, the presumption against defect must be rebutted by “a preponderance of evidence”.

In Sexton v. Bell Helmets, Inc., 926 F.2d 331 (4th Cir. 1991) (Applying Kentucky Law), the manufacturer of a motorcycle helmet alleged that the trial court erred by failing to give a requested jury instruction based on the Kentucky Government Rules Defense.1 The United States Court of Appeals for the Fourth Circuit held that the statute in question did not say a manufacturer would be entitled to judgment if it complied with government rules. Rather, the statute in question created a “bursting bubble” presumption which, in the absence of evidence to the contrary, would prevail. However, since the Plaintiff in that case had presented evidence that the product was defective, the bubble had been burst and the presumption was no longer applicable.

With regard to whether the Government Rules Defense statute should form the basis for a jury instruction, the court in Sexton stated:

We can perceive no reason why the trial court would ever have need to instruct the jury on this statutory presumption. If a plaintiff fails to rebut the presumption ... a verdict will be directed that the product was “not defective”. On the other hand, if a plaintiff rebuts the presumption, the issue of whether the product was defective will be submitted to the jury on the evidence. For this reason, Kentucky courts have not generally permitted advising the jury of any presumptions.”

Sexton, citing Mason v. Commonwealth, 565 S.W.2d 140 (Ky.1978), quoting McCormic’s Handbook of the Law of Evidence §345, 812 (2d Ed. 1972) and Lowe v. McMurray, 412 S.W.2d 571 (Ky. 1967).

In Clark v. Chrysler Corp., 310 F.3d 461 (6th Cir. 2002), reh. den. February 20, 2003, a 1999 case reviewing the same Kentucky statute that was the subject of the Sexton v. Bell Helmets, Inc. case, the trial court rejected a requested jury instruction based on the Government Rules Defense and the defendant, Chrysler, appealed. The court in Clark stated: “[t]he statutory presumptions of KRS §411.310 do no more than leave the burden of proof with [plaintiff] to prove that [the product] was defective”. Clark, quoting, Leslie v. Cincinnati Sub-Zero Products, 961 S.W.2d 799, 803 (Ky.App.1998). The court in Clark further stated that “[i]n Kentucky jury instructions do not include evidentiary presumptions. Clark, quoting, Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814, 824 (Ky.1952).

An Indiana Government Rules Defense statute has, likewise, been held to create a burden of production that, once met, drops out of the case. In McCain v. Chem-Lube Corp., 759 N.E.2d 1096 (Ind. Ct. App. 2001), the court summed up the Government Rules Defense by saying that the presumption created:

[I]s not evidence nor should it be weighed by the fact finder as though it had evidentiary value. Rather a presumption is a rule of law enabling the party in whose favor it operates to take his case to the trier of fact without presenting evidence of the fact presumed. It serves as a challenge for proof and indicates the party from whom such proof must be forthcoming. When the opponent of the presumption has met the burden of production thus imposed, however, the office of the presumption has been performed; the presumption is of no further effect and drops from the case.

McClain, quoting, Sumpter v. State, 306 N.E.2d 95, 99.

A second Indiana case stated the following with respect to Indiana’s “Government Rules Defense” statute:

The rebuttable presumption under Indiana Code Sec. 34-20-5-1 does not shift the burden of proof but it does impose upon the opposing party a burden of producing evidence. ... If the opponent produces evidence that rebuts the presumption, it serves no further purpose.

Cansler v. Mills, 765 N.E.2d 698, 705 (Ind. Ct. App. 2002).

The Florida legislature did not indicate how much evidence would be required to rebut the presumption of no defect under the Government Rules Defense statute. However, Florida cases have settled many questions of law about the nature and effect of presumptions, in general.

By its very nature, a presumption is a procedural, legal matter for consideration by the court See, e.g., Aetna Casualty and Surety Co. v. Pappagallo Restaurant, Inc., 547 So.2d 243 (Fla. 3d DCA 1989), holding that if credible evidence is presented to the court showing that the presumed fact is not true, the presumption will not be mentioned to the jury, and the case will be decided without regard to it. See also, Eppler v. Tarmac America, Inc., 752 So.2d 592 (Fla. 2000), wherein the Florida Supreme Court stated with regard to a rebuttable presumption:

It is constructed by the law to give particular effect to a certain group of facts in the absence of further evidence. The presumption provides a prima facie case which shifts to the defendant the burden to go forward with evidence to contradict or rebut the fact presumed. When the defendant produces evidence which fairly and reasonably tends to show that he real fact is not as presumed, the impact of the presumption is dissipated. Whether the ultimate fact has been established must then be decided by the jury from all of the evidence before it without the aid of the presumption Eppler, at 594. (Emphasis in original).

Based on Eppler, it appears that the evidence required to rebut a presumption in Florida is evidence that “fairly and reasonably tends to show that the real fact is not as presumed”. Thus, in order to rebut the presumption of no defect created by the Government Rules Defense, a plaintiff should show evidence that “fairly and reasonably tends to show” a defect. After a party presents such evidence, the presumption should simply drop out of the case.

It may also be significant, that the Florida Supreme Court Committee on Standard Jury Instructions has not adopted a standard jury instruction on the Government Rules Defense. The Standard Jury Instructions have been revised a number of times since the 1999 Tort Reform Act went into effect and yet, none of these revisions included an instruction on the Government Rules Defense. This fact suggests that Committee does not believe the Government Rules Defense is appropriate for a jury instruction. Based on the foregoing, plaintiffs should strenuously resist proposed jury instructions based on the Government Rules Defense.

And when all else fails….

As a practical matter, despite arguments that the Government Rules Defense is unconstitutional in a particular case, and that alternatively the Defense is a “disappearing” defense that should not be the basis of a jury instruction as a matter of law, the plaintiff’s lawyer may be faced with a situation where a trial court improperly overrules all such motions and intends to instruct the jury on the Defense. In a recent trial this writer was faced with a similar situation, and in which the defendant requested the following instruction:

However, if you find such compliance with Safety Standard 208, and also find that this standard was adopted or reaffirmed in 1993, that it addresses the very design issue presented in this case, and that the deliberative process by which this standard was adopted was full, fair, through and reflected substantial expertise, then you should find that the vehicle was not defective or unreasonably dangerous.

This proposed instruction went beyond the rebuttable presumption language of §768.1256 and would have instructed the jury not that they “may presume,” but that they should find the product not defective if the defendant complied with government rules. This proposed rule goes beyond the scope of the Government Rules Defense. It should be remembered that, if all efforts to avoid any instruction on the Government Rules Defense have failed, it is critically important to make sure, at a minimum, that any instruction that may be given is within the scope of §768.1256.

Faced with the court’s decision to instruct the jury on the defense, the plaintiff requested the following instruction:

During the trial, you have heard testimony that Ford complied with certain federal regulations in designing the 1996 Ford Taurus. Federal regulations do not establish the standard to which a manufacturer is held in negligence or strict liability actions. Compliance with these regulations does not exempt Ford from liability. You may, however, consider any compliance with these, along with other evidence presented in determining whether Ford used reasonable care in designing or manufacturing the product.

This instruction, and a similar instruction that was ultimately given to the jury, unlike the instruction proposed by the manufacturer, clarified that compliance with a government standard does not automatically equate with “reasonable care.”

Another suggestion in circumstances where the trial court has decided to instruct the jury on the Government Rules Defense is for the plaintiff’s attorney to propose a jury instruction that will clarify for the jury that the government standard for making or selling the product is not the standard by which the product should be measured in a products liability action. The following general instruction could be considered for this purpose:

During the trial, you have heard testimony that [defendant] complied with certain federal regulations in designing the [product]. Federal regulations do not establish the standard to which a manufacturer is held in negligence or strict liability actions. Compliance with these regulations does not exempt [defendant] from liability. You may, however, consider any compliance with these, along with other evidence presented in determining whether [defendant] used reasonable care in designing or manufacturing the product.

This instruction is adapted from an instruction that was approved by the United States Court of Appeals for the Eleventh Circuit in the case of Goulah v. Ford Motor Company, 118 F.3d 1478 (11th Cir. 1997) (applying Florida Law).

Conclusion

Because the Government Rules Defense is still new and there are no cases yet on the books, plaintiff’s lawyers facing the defense must be creative and diligent. Constitutional challenges based on particular cases may have great merit. The appellate courts will have to grapple with whether a jury instruction should be given at all, and if so, what the instruction will say. The manufacturer defendants will be aggressive in trying to use this new defense as a way to twist the standard of care into something that neither Congress nor regulatory bodies ever intended. Plaintiffs and their lawyers must be equally aggressive to meet these challenges now, during the next 12 to 24 months as cases with the new defense go to trial, so that bad law is not created that will potentially impact future victims for years and decades in the future.

1 See, Kentucky Revised Statutes §411.310(2) which reads: In any product liability action, it shall be presumed, until rebutted by a preponderance of the evidence to the contrary, that the product was not defective if the design, methods of manufacture, and testing conformed to the generally recognized and prevailing standards or the state of the art in existence at the time the design was prepared, and the product was manufactured.