Yesterday the Florida Supreme Court issued an opinion adopting a new set of model jury instructions for products liability cases. This opinion ends a lengthy transition which began back in 2006, when the Committee on Standard Jury Instructions in Civil Cases first began the process of overhauling the model instructions for all civil lawsuits. After leaving the products liability instructions out of the first major batch of changes which were approved in 2010, the Supreme Court “preliminarily approved” many proposed revisions to the products liability instructions in 2012. But in doing so, the Court acknowledged that “further work [was] required” before the “preliminarily approved” instructions could be used.
Now, almost three years after issuing its preliminary approval, the Court has adopted the Committee’s proposed revisions to the products liability jury instructions. We have had an opportunity to review these instructions, and would like to give you our initial thoughts on the key changes.
The New Instructions Provide Much-Needed Clarity for Inadequate Warning Cases
The new instructions do a far better job of capturing the current state of Florida law regarding warning issues in products liability cases. While Florida has long recognized that a product can be defective due to inadequate warnings, the old products liability instructions only referenced design and manufacturing defects. Accordingly, the inclusion of Instruction 403.8, which provides that 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,” serves to fill an important gap left unaddressed in the old instructions.
The same is true for Instruction 403.10, which similarly addresses negligent failure to warn claims. This new instruction explains that “reasonable care on the part of the defendant requires that the defendant give appropriate warnings about the particular risks of the product which the defendant knew or should have known are involved in the reasonably foreseeable use of the product.”
In addition, the Committee included a specific Note recognizing the validity of post-sale duty to warn claims. Specifically, this Note acknowledges that “[u]nder 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.” The inclusion of this Note is a huge improvement, particularly because defendants still attempt to argue that Florida does not recognize the post-sale duty to warn. Of course, the case law has long refuted this argument. See High v. Westinghouse Elec. Corp., 610 So. 2d 1259, 1263 (Fla. 1992); Sta-Rite Indus., Inc. v. Levey, 909 So. 2d 901 (Fla. 3d DCA 2004). And now that the post-sale duty to warn has been recognized in the model jury instructions, it is hard to imagine how defendants could continue to make this argument with a straight face. We are sure they will try, though.
The Instructions Recognize the Cassisi Inference
Although the Committee elected to forego publishing any specific instruction with respect to product defect or negligence inferences, they did include a Note acknowledging the inference of defectiveness afforded by Cassisi v. Maytag Co., 396 So. 2d 1140 (Fla. 1st DCA 1981). Cassisi involved a washing machine that caught on fire and burned down the plaintiff’s home. Because the washing machine was destroyed in the fire, the plaintiff’s expert was unable to pinpoint the exact defect which had caused the fire. Id. at 1143. The First District held that this evidentiary hurdle could be surmounted by means of an inference that the product was defective since it failed during normal operation. Id. at 1148. Therefore, the Court concluded that it was “immaterial that the plaintiffs failed to identify the specific cause of the malfunction since it is inferred that the malfunction itself, under such circumstances, is evidence of the product’s defective condition at both the time of the injury and at the time of sale.” Id. at 1153.
While we certainly would have preferred a specific instruction, the fact that the Note recognizes the continued validity of Cassisi is a huge step in the right direction.
The Instructions Punt on Controversial Design Defect Issues
The test for determining a “design defect” has been the subject of extensive litigation and conflicting appellate opinions. Specifically, while the First, Fourth, and Fifth District Courts of Appeal continue to apply the “consumer expectations” standard, the Third District has unilaterally adopted the Third Restatement’s “risk-utility” and “reasonable alternative design” tests as the exclusive means for determining whether a product has a design defect. Compare Falco v. Copeland, 919 So. 2d 650, 652 (Fla. 1st DCA 2006), McConnell v. Union Carbide Corp., 937 So. 2d 148 (Fla. 4th DCA 2006), and Force v. Ford Motor Co., 879 So. 2d 103 (Fla. 5th DCA 2004) with Union Carbide Corp. v. Aubin, 97 So. 3d 886 (Fla. 3d DCA 2012).
We believe the First, Fourth, and Fifth District Courts of Appeals have the correct side of this argument because they continue to follow the Second Restatement of Torts, which was adopted by the Florida Supreme Court in West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80 (Fla. 1976). The Second Restatement, which is the law in Florida under West, applies the consumer expectations test to determine whether a product was defectively designed. Under that test, a product is defective if it “fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer.” Force, 879 So. 2d at 105 (citing Section 402A of the Second Restatement of Torts)). The Third Restatement, however, rejected this standard for determining design defects, and instead would require juries to determine whether the “risk of danger in the design outweighs the benefits.” Id. Manufacturers hate the consumer expectations standard because it reflects the true principles underlying the concept of strict liability. Instead, they prefer the risk-utility standard because it sneaks a fault-based analysis into strict liability claims.
Note 3 to new Instruction 403.7 discusses the split of opinions with respect to the consumer expectations and risk-utility tests, and acknowledges that the Committee elected to punt on the issue pending “further development in the law.” Likewise, while the new instructions also include a “risk/benefit defense,” the notes explain that the Committee “takes no position on whether the risk/benefit test is a standard for product defect . . . or an affirmative defense,” again deferring to “further development in the law.”
The “further development” in the law anticipated by the Committee may be coming along shortly as the Florida Supreme Court heard oral arguments in the appeal of the third DCA’s Aubin decision last April. Practitioners should continue to monitor the Aubin docket until an opinion is issued. And until the Court rules, plaintiffs should continue to insist upon a consumer expectations jury instruction, which we strongly feel is still the law of this State under West.
The New Instructions Are Essentially Agnostic on Crashworthiness Claims
The Committee originally drafted a detailed and specific instruction (Instruction 403.16) to be used in crashworthiness cases. Among other things, the Committee’s proposed Instruction 403.16 clarified that jurors were to “separate” the portion of the plaintiff’s injuries which were caused by virtue of the product’s failure to properly perform and protect the plaintiff during a foreseeable crash from the damages the plaintiff would have otherwise suffered.
The original version of the instruction seemingly tracked the Florida Supreme Court’s decision in D’Amario v. Ford Motor Co., which sensibly recognized that “principles of comparative fault involving the causes of the first collision do not generally apply in crashworthiness cases.” 806 So. 2d 424, 441 (Fla. 2001). The Court reached this result because “under the crashworthiness doctrine, as in medical malpractice cases, the initial collision and its separate cause is always presumed, and the cause of the initial collision is simply not at issue in the determination of the cause of the second collision.” Id. at p. 437. In response to this decision, the legislature amended the comparative fault statute in 2011 to state: “In a products liability action alleging that injuries received by a claimant in an accident were enhanced by a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them.” Fla. Stat. § 768.81(3)(b).
The original crashworthiness instruction was not approved in 2012, and the Committee then elected to forego a specific crashworthiness instruction altogether. Instead, the Committee elected to weave crashworthiness issues into the summary of claims stage of the instructions. As a result, the only explicit reference to crashworthiness claims in the actual instructions is a brief “statement of claim,” which simply states that the plaintiff is alleging that he or she “sustained greater or additional injuries than what he or she would have sustained in the accident if the product had not been defective.”
Consequently, the jury instructions are now ambivalent with respect to the effect of the legislature’s amendment of the comparative fault statute. While the Note to vacated Instruction 403.16 now references the legislative history discussed above, there is no specific instruction with respect to apportioning fault in a crashworthiness case. As a result, we believe all arguments regarding the continued applicability of D’Amario are still on the table.
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