The standard jury instructions applicable to products liability cases are currently in a state of flux. Most of the standard jury instructions for civil cases were renumbered and revised in 2010. In re Standard Jury Instructions In Civil Cases-Report No. 09-01 (Reorganization of the Civil Jury Instructions), 35 So. 3d 666 (Fla. 2010). However, no changes to the products liability instructions were adopted at that time. Id. at 719.

The Florida Supreme Court subsequently issued an opinion “preliminarily approving” certain proposed revisions to the products liability instructions, and rejecting others, on May 17, 2012. In re Standard Jury Instructions in Civil Cases–Report No. 09-10 (Products Liab.), 91 So. 3d 785 (Fla. 2012). Due to the fact that it was rejecting and referring back some of the Committee’s proposed revisions, the Court explained that the Committee must still “conform all instructions, comments, model forms of instructions, verdict forms, and any related material to the actions of the Court in this and prior opinions” before the revised instructions could be published and used. Id. Accordingly, the Court continued, “[t]he approvals are only preliminary because this group of instructions must be viewed as a full package before authorization can be provided.” Id.

In light of the fact that the proposed revisions have only been “preliminary approved” subject to the limitations set forth above, Florida attorneys should continue to look to the products liability instructions contained in the former jury instructions book. These instructions can be accessed on the Florida Supreme Court website. Of course, it is also a good idea to examine the proposed revisions as well to determine whether any of them may be more advantageous in your particular case. The proposed revisions may also be accessed on the Florida Supreme Court website.

Finally, it is also important to note that plaintiffs’ attorneys should play particular attention to the standards applicable to proving whether a product was defectively designed. For decades, Florida courts have applied the “consumer expectations” test to determine whether a product was defectively designed. That test provides that a product is defectively designed 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. PL-5 of the former instructions included both the “consumer expectations” test and the “risk-utility” test as standards for proving that a product was defectively designed. The “risk-utility” test provides that a product is defective in design if the risk of danger posed by the design is outweighed by the benefits of the design.

Several recent Third District Court of Appeal decisions have eschewed the “consumer expectations” test in favor of the “risk-utility” test in cases involving design defect theories. Union Carbide Corp. v. Aubin, 97 So. 3d 886 (Fla. 3d DCA 2012); Agrofollajes, S.A. v. E.I. Du Pont de Nemours & Co., 48 So. 3d 976 (Fla. 3d DCA 2010); Kohler Co. v. Marcotte, 907 So. 2d 596 (Fla. 3d DCA 2005). For reasons set forth in greater detail in a recent article we published, we believe those opinions were wrongly decided and sharply contrast with well-established Florida Supreme Court precedent. See West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976); Force v. Ford Motor Co., 879 So. 2d 103 (Fla. 5th DCA 2004); Liggett Group, Inc. v. Davis, 973 So. 2d 467 (Fla. 4th DCA 2007); McConnell v. Union Carbide Corp., 937 So. 2d 148 (Fla. 4th DCA 2006).