Firm News Feed May 2015 00:00:00 -0800firmwise Court Jettisons Common Law Precedent in Product Liability Cases Back to 1985 in Coba v. Tricam<!--[if gte mso 9]><xml> <w:WordDocument> <w:View>Normal</w:View> <w:Zoom>0</w:Zoom> <w:PunctuationKerning /> <w:ValidateAgainstSchemas /> <w:SaveIfXMLInvalid>false</w:SaveIfXMLInvalid> <w:IgnoreMixedContent>false</w:IgnoreMixedContent> <w:AlwaysShowPlaceholderText>false</w:AlwaysShowPlaceholderText> <w:Compatibility> <w:BreakWrappedTables /> <w:SnapToGridInCell /> <w:WrapTextWithPunct /> <w:UseAsianBreakRules /> <w:DontGrowAutofit /> </w:Compatibility> <w:BrowserLevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--> <h3 style="text-align: center;"><!--[if gte mso 9]><xml> <w:WordDocument> <w:View>Normal</w:View> <w:Zoom>0</w:Zoom> <w:PunctuationKerning /> <w:ValidateAgainstSchemas /> <w:SaveIfXMLInvalid>false</w:SaveIfXMLInvalid> <w:IgnoreMixedContent>false</w:IgnoreMixedContent> <w:AlwaysShowPlaceholderText>false</w:AlwaysShowPlaceholderText> <w:Compatibility> <w:BreakWrappedTables /> <w:SnapToGridInCell /> <w:WrapTextWithPunct /> <w:UseAsianBreakRules /> <w:DontGrowAutofit /> </w:Compatibility> <w:BrowserLevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--><!--[if gte mso 9]><xml> <w:LatentStyles DefLockedState="false" LatentStyleCount="156"> </w:LatentStyles> </xml><![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} </style> <![endif]-->New decision by the Florida Supreme Court Eliminates Important Defense Protection in Cases Involving Inconsistent Verdicts<br /> <!--[if gte mso 9]><xml> <w:WordDocument> <w:View>Normal</w:View> <w:Zoom>0</w:Zoom> <w:PunctuationKerning /> <w:ValidateAgainstSchemas /> <w:SaveIfXMLInvalid>false</w:SaveIfXMLInvalid> <w:IgnoreMixedContent>false</w:IgnoreMixedContent> <w:AlwaysShowPlaceholderText>false</w:AlwaysShowPlaceholderText> <w:Compatibility> <w:BreakWrappedTables /> <w:SnapToGridInCell /> <w:WrapTextWithPunct /> <w:UseAsianBreakRules /> <w:DontGrowAutofit /> </w:Compatibility> <w:BrowserLevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--><!--[if gte mso 9]><xml> <w:LatentStyles DefLockedState="false" LatentStyleCount="156"> </w:LatentStyles> </xml><![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} </style> <![endif]--></h3> <p class="MsoNormal"><span style="mso-bidi-font-style:italic">In <i>Coba v. Tricam Indus., Inc</i></span>.<i style="mso-bidi-font-style:normal">, </i>40 Fla. L. Weekly S257a (Fla. May 14, 2015), the Florida Supreme Court eliminated an important common law protection for defendants in cases where defense counsel fails to contemporaneously object to an inconsistent jury verdict.<span style="mso-spacerun:yes">&nbsp; </span></p> <p class="MsoNormal">In <i style="mso-bidi-font-style:normal">Coba</i>, Plaintiff sued the manufacturer of an aluminum ladder alleging strict products liability for a defective design. <span style="mso-spacerun:yes">&nbsp;</span>The complaint also alleged the manufacturer was negligent in failing to design the ladder in a reasonably safe condition.<span style="mso-spacerun:yes">&nbsp; </span>At the conclusion of the evidence, the trial court authored a verdict form for the jury to use in deliberations.<span style="mso-spacerun:yes">&nbsp; </span>The form unwisely asked the strict liability question without any reference to strict liability terminology.<span style="mso-spacerun:yes">&nbsp; </span>It then placed the design defect question in advance of the question of negligence.<span style="mso-spacerun:yes">&nbsp; </span>The following is the <i style="mso-bidi-font-style: normal">Coba</i> jury&rsquo;s verdict form entries:<span style="mso-spacerun:yes">&nbsp;<br /> <br /> </span></p> <p style="text-align: center;" class="MsoNormal"><span style="mso-spacerun:yes"><img width="426" vspace="0" hspace="0" height="125" border="0" align="absmiddle" src=" form.jpg" alt="" /><br /> </span></p> <p style="text-align: left;" class="MsoNormal"><span style="mso-spacerun:yes"> <br /> </span>The jury returned a verdict for $1.5m and the court discharged the jury with no objection from defense counsel. The manufacturer subsequently filed a motion to set aside the verdict as inconsistent.<span style="mso-spacerun:yes">&nbsp; </span>The motion argued there could be no finding of negligent design without a finding that a design defect contributed to the accident.<span style="mso-spacerun:yes">&nbsp; </span></p> <p class="MsoNormal">The Third Florida District Court of Appeal agreed and determined the inconsistency was of a &ldquo;fundamental nature&rdquo; such that the failure to contemporaneously object did not result in waiver.<span style="mso-spacerun:yes">&nbsp; </span>The appellate court reasoned that, regardless of the existence of a timely objection, it could not reconcile the jury&rsquo;s conclusion that there was no design defect but that the manufacturer was liable on a negligence claim predicated exclusively on design defect.<span style="mso-spacerun:yes">&nbsp; </span>The Third DCA then resolved the inconsistency in favor of the defense rather than remanding the case for a new trial.<span style="mso-spacerun:yes">&nbsp; </span>The court reasoned that plaintiff had only put on evidence of a design defect as the basis for the products liability claim.<span style="mso-spacerun:yes">&nbsp; </span>Thus, the jury&rsquo;s failure to find a design defect meant &ldquo;there was no evidence to support any other cause of action [and] no issue to be resolved on remand.&rdquo;</p> <p style="text-align: left;" class="MsoNormal">The Supreme Court overturned the Third DCA and held that any objection to an inconsistent verdict is waived if not made before the jury is discharged.<span style="mso-spacerun:yes">&nbsp; </span>The Supreme Court determined that a &ldquo;fundamental nature&rdquo; exception to this rule in products liability cases is &ldquo;at odds with the [....] policy reasons undergirding the requirement of timely objection, including upholding the sanctity of the jury&rsquo;s role in trial, preventing strategic gamesmanship, and increasing judicial efficiency.&rdquo;<span style="mso-spacerun:yes">&nbsp; </span>In doing so, the Supreme Court jettisoned common law precedent in products liability cases dating back to 1985.<span style="mso-spacerun:yes">&nbsp; </span></p> <p style="text-align: left;" class="MsoNormal">In part, the Supreme Court based the ruling on a desire to prevent the defense from &ldquo;strategically sitting on the objection until after the jury is no longer available to correct its decision.&rdquo; <span style="mso-spacerun:yes">&nbsp;</span>The court ignored however, the strategic practice by which plaintiffs&rsquo; counsel artfully draft confusing verdict forms to maximize the chance of a favorable decision despite having tried inconsistent theories.<span style="mso-spacerun:yes">&nbsp; </span>Such tactics are common in Florida products liability trials where plaintiffs&rsquo; counsel wager the defense will not to recognize the problem in the harried minutes between verdict announcement and jury discharge in order to timely object.<span style="mso-spacerun:yes">&nbsp; </span></p> <p style="text-align: left;" class="MsoNormal">The announcement of a civil jury verdict is the culmination of months (and sometimes years) of litigation work.<span style="mso-spacerun:yes">&nbsp; </span>Trial is a lengthy process at the end of which, the attorneys and their clients are spent.<span style="mso-spacerun:yes">&nbsp; </span>Trial is inconvenient to the personal lives of the jurors and when verdict is announced, there is a powerful momentum to terminate their service and quickly return them to their real lives. Any defense lawyer who, on the last day of trial, delays the conclusion of the significant sacrifice endured by the jury clearly risks their substantial indignation.<span style="mso-spacerun:yes">&nbsp; </span></p> <p style="text-align: left;" class="MsoNormal">Prior to <i style="mso-bidi-font-style:normal">Coba</i>, the case law starkly demonstrates how difficult it may be to rapidly analyze the presence of an inconsistency in a jury verdict under such circumstances.<span style="mso-spacerun:yes">&nbsp; </span>There is a strong disincentive for defense counsel to make the eleventh hour demand as trial culmination that the jury be returned to the deliberation room to sit idle while the matter of an inconsistent verdict is analyzed and debated with an annoyed judge.<span style="mso-spacerun:yes">&nbsp; </span>And, what is the reward for defense counsel being correct in this regard?<span style="mso-spacerun:yes">&nbsp; </span>The Supreme Court mandates in <i style="mso-bidi-font-style:normal">Coba</i> that the jury return to deliberations apparently on new instructions.<span style="mso-spacerun:yes">&nbsp; </span>Surely the plaintiff, whose chances of final victory were vastly improved with the initial verdict announcement, will demand that the jury&rsquo;s damages calculation must likewise be reopened during the new deliberations.</p> <p style="text-align: left;" class="MsoNormal">The following are some new considerations for defense counsel in light of <i style="mso-bidi-font-style:normal">Coba</i>:<br /> <!--[if gte mso 9]><xml> <w:WordDocument> <w:View>Normal</w:View> <w:Zoom>0</w:Zoom> <w:PunctuationKerning /> <w:ValidateAgainstSchemas /> <w:SaveIfXMLInvalid>false</w:SaveIfXMLInvalid> <w:IgnoreMixedContent>false</w:IgnoreMixedContent> <w:AlwaysShowPlaceholderText>false</w:AlwaysShowPlaceholderText> <w:Compatibility> <w:BreakWrappedTables /> <w:SnapToGridInCell /> <w:WrapTextWithPunct /> <w:UseAsianBreakRules /> <w:DontGrowAutofit /> </w:Compatibility> <w:BrowserLevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--></p> <p style="text-align: left;" class="MsoNormal"><!--[if gte mso 9]><xml> <w:LatentStyles DefLockedState="false" LatentStyleCount="156"> </w:LatentStyles> </xml><![endif]--><!--[if !mso]><object classid="clsid:38481807-CA0E-42D2-BF39-B33AF135CC4D" id=ieooui></object> <style> st1\:*{behavior:url(#ieooui) } </style> <![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} </style> <![endif]--></p> <ul> <li>Defense counsel must be very cautious about the Florida standard verdict forms especially where altered by plaintiff or the judge.<span style="mso-spacerun:yes">&nbsp; </span>Considering the forms are litigated at a point in the trial where counsel can be more cool and deliberative, the defense attorney must be thorough in evaluating and formulating verdict forms and liberal with record objections to any problems.<span style="mso-spacerun:yes">&nbsp; </span>&nbsp;</li> </ul> <ul> <li>Defense counsel must be mindful of the potential for inconsistences while drafting and finalizing verdict forms and jury instructions. Typically, the defense wants detailed verdict forms to guide the jury in truly considering all the elements of every claim raised by plaintiff.<span style="mso-spacerun:yes">&nbsp; </span>But, complicated verdict forms can confuse and increase the possibility of an internal inconsistency. The risks and rewards of these competing issues must be carefully considered. &nbsp;</li> </ul> <ul> <li>Once the verdict form and jury instructions are finalized with the court, defense counsel must consider all the ways in which the verdict could come back inconsistent.<span style="mso-spacerun:yes">&nbsp; </span>Defense counsel must plan ahead for the defense reaction at the announcement of the verdict.<span style="mso-spacerun:yes">&nbsp; </span>After <i style="mso-bidi-font-style:normal">Coba</i>, the defense attorney must anticipate possible inconsistencies no matter how theoretical, research the applicable standard, and be prepared to interpose are argue timely objections before jurors are discharged.<span style="mso-spacerun:yes">&nbsp; </span><span style="mso-spacerun:yes">&nbsp;</span>&nbsp;</li> </ul> <ul> <li>Efforts must be made to avoid the scenario whereby a jury enters deliberations likely to culminate at close of business or at 6:00 p.m. on Friday night.<span style="mso-spacerun:yes">&nbsp; </span>Failing such efforts, defense counsel must, at the point the verdict is announced, obtain a side bar with the judge and opposing counsel to obtain a moment to consider any verdict inconsistency before the jury is discharged. &nbsp;</li> </ul> <ul> <li>If the jury is discharged without objection, there is still the possibility of a motion for judgment notwithstanding the verdict (&ldquo;JNOV&rdquo;).&nbsp; <!--[if gte mso 9]><xml> <w:LatentStyles DefLockedState="false" LatentStyleCount="156"> </w:LatentStyles> </xml><![endif]--><!--[if !mso]><object classid="clsid:38481807-CA0E-42D2-BF39-B33AF135CC4D" id=ieooui></object> <style> st1\:*{behavior:url(#ieooui) } </style> <![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} </style> <![endif]-->&nbsp;</li> </ul> <!--[if gte mso 9]><xml> <w:WordDocument> <w:View>Normal</w:View> <w:Zoom>0</w:Zoom> <w:PunctuationKerning /> <w:ValidateAgainstSchemas /> <w:SaveIfXMLInvalid>false</w:SaveIfXMLInvalid> <w:IgnoreMixedContent>false</w:IgnoreMixedContent> <w:AlwaysShowPlaceholderText>false</w:AlwaysShowPlaceholderText> <w:Compatibility> <w:BreakWrappedTables /> <w:SnapToGridInCell /> <w:WrapTextWithPunct /> <w:UseAsianBreakRules /> <w:DontGrowAutofit /> </w:Compatibility> <w:BrowserLevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--> <ul> <li>Before the jury ever receives the case, it is now a standard practice in Florida for defense counsel to move for directed verdict arguing that plaintiff&rsquo;s evidence was insufficient for jury deliberations.&nbsp;</li> </ul> <!--[if gte mso 9]><xml> <w:WordDocument> <w:View>Normal</w:View> <w:Zoom>0</w:Zoom> <w:PunctuationKerning /> <w:ValidateAgainstSchemas /> <w:SaveIfXMLInvalid>false</w:SaveIfXMLInvalid> <w:IgnoreMixedContent>false</w:IgnoreMixedContent> <w:AlwaysShowPlaceholderText>false</w:AlwaysShowPlaceholderText> <w:Compatibility> <w:BreakWrappedTables /> <w:SnapToGridInCell /> <w:WrapTextWithPunct /> <w:UseAsianBreakRules /> <w:DontGrowAutofit /> </w:Compatibility> <w:BrowserLevel>MicrosoftInternetExplorer4</w:BrowserLevel> </w:WordDocument> </xml><![endif]--> <p align="left" class="ListParagraph" style="margin-left:1.0in;mso-add-space:auto; text-align:left;text-indent:-.25in;mso-list:l0 level2 lfo1"><span style="font-size:8.0pt;mso-bidi-font-size:12.0pt;font-family:&quot;Courier New&quot;; mso-fareast-font-family:&quot;Courier New&quot;"><span style="mso-list:Ignore">o<span style="font:7.0pt &quot;Times New Roman&quot;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></span></span>Before the jury ever receives the case, it is now a standard practice in Florida for defense counsel to move for directed verdict arguing that plaintiff&rsquo;s evidence was insufficient for jury deliberations.&nbsp;</p> <p align="left" class="ListParagraphCxSpFirst" style="margin-left:1.0in;mso-add-space: auto;text-align:left;text-indent:-.25in;mso-list:l0 level2 lfo1"><span style="font-size:8.0pt;mso-bidi-font-size:12.0pt;font-family:&quot;Courier New&quot;; mso-fareast-font-family:&quot;Courier New&quot;"><span style="mso-list:Ignore">o<span style="font:7.0pt &quot;Times New Roman&quot;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></span></span>If defense counsel identifies a verdict inconsistency after jury discharge, he should consider whether it demonstrates an absence of evidence to support the portion of the verdict that favored the plaintiff over the portion that favored the defense.<span style="mso-spacerun:yes">&nbsp; </span>&nbsp;</p> <p align="left" class="ListParagraphCxSpLast" style="margin-left:1.0in;mso-add-space: auto;text-align:left;text-indent:-.25in;mso-list:l0 level2 lfo1"><span style="font-size:8.0pt;mso-bidi-font-size:12.0pt;font-family:&quot;Courier New&quot;; mso-fareast-font-family:&quot;Courier New&quot;"><span style="mso-list:Ignore">o<span style="font:7.0pt &quot;Times New Roman&quot;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></span></span>In such a scenario, the proper procedure is a motion for JNOV pursuant to Fla.R.Civ.P. 1.480(b) and based on the earlier motion for directed verdict.<a style="mso-footnote-id:ftn1" href="#_ftn1" name="_ftnref1" title=""><span class="MsoFootnoteReference"><span style="mso-special-character:footnote"><span class="MsoFootnoteReference"><span style="font-size:12.0pt;mso-fareast-font-family: &quot;Times New Roman&quot;;mso-ansi-language:EN-US;mso-fareast-language:EN-US; mso-bidi-language:AR-SA">[1]</span></span></span></span></a><span style="mso-spacerun:yes">&nbsp; </span>A motion for JNOV is appropriate when &ldquo;no view of the evidence could support a verdict for [plaintiff] and [thus,] no reasonable jury could render a verdict for that party.<span style="mso-spacerun:yes">&nbsp; </span><i style="mso-bidi-font-style:normal">New Jerusalem Church of God, Inc. v. Sneads Cmty. Church, Inc.</i>, 147 So. 3d 25, 28 (Fla. 1st DCA 2013).<span style="mso-spacerun:yes">&nbsp; </span>Even <i style="mso-bidi-font-style: normal">Coba</i> recognized that the defendant&rsquo;s failure to contemporaneously object to an inconsistent verdict will not permit entry of judgment pursuant to that verdict where there is no evidence to support one jury verdict finding over another.</p> <div style="mso-element:footnote-list"><br clear="all" /> <hr width="33%" size="1" align="left" /> <div style="mso-element:footnote" id="ftn1"> <p class="MsoFootnoteText"><a style="mso-footnote-id:ftn1" href="#_ftnref1" name="_ftn1" title=""><span class="MsoFootnoteReference"><span style="mso-special-character: footnote"><span class="MsoFootnoteReference"><span style="font-size:10.0pt;mso-fareast-font-family:&quot;Times New Roman&quot;;mso-ansi-language: EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA">[1]</span></span></span></span></a> Although the term &ldquo;motion for a judgment notwithstanding the verdict&rdquo; is still employed, pursuant to Rule 1.480(b), a motion challenging a jury verdict is more properly styled a &ldquo;motion for judgment in accordance with a prior motion for directed verdict.&rdquo;&nbsp;<i>See&nbsp;Fire &amp; Casualty Ins. Co. v. Sealey,</i>&nbsp;810 So.2d 988, 991 (Fla. 1st DCA 2002).</p> <p align="center" class="MsoNormal" style="text-align:center">&nbsp;<b style="mso-bidi-font-weight: normal"><br /> </b></p> </div> </div> <p class="MsoNormal" style="text-align: left;">&nbsp;</p> <!--[if gte mso 9]><xml> <w:LatentStyles DefLockedState="false" LatentStyleCount="156"> </w:LatentStyles> </xml><![endif]--><!--[if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Times New Roman"; mso-ansi-language:#0400; mso-fareast-language:#0400; mso-bidi-language:#0400;} </style> <![endif]-->Products Liability Blog26 May 2015 00:00:00 -0800 Instructions Changed for Product Liability Cases<p><strong>Originally published in the April 21, 2015 issue of <em>The Daily Business Review</em></strong><br /> <br /> <br /> On March 26, 2015, the Supreme Court of Florida authorized proposed changes to the standard jury instructions pertaining to product liability cases. <i>See In Re: Standard Jury Instructions in Civil Cases &mdash; Report No. 13-01 (Products Liability)</i>, No. SC13-683, 2015 WL 1400770 (Fla. Mar. 26, 2015).&nbsp;The new instructions will serve as the standard or model for all products liability cases tried under Florida law from the date of the opinion.&nbsp;</p> <p>As a matter of historical background, in 2006 (approximately 9 years ago), The Committee on Standard Jury Instructions in Civil Cases began the endeavor of revamping and retooling the model instructions for all civil lawsuits.&nbsp;In 2010, the first set of revised instructions rolled out and product liability instructions were completely omitted.&nbsp;Then in 2012, the Florida Supreme Court preliminarily approved several proposed revisions to the products liability instructions, which were not yet in effect. <span>&nbsp;&nbsp;&ldquo;The approvals [were] only preliminary because [the] group of instructions [had to] be viewed as a full package before authorization [could] be provided.&rdquo;&nbsp;<i>See In Re Standard Jury Instructions in Civil Cases &mdash; Report No. 09-10 (Products Liability)</i>, No. SC09-1264, 91 So. 3d 785 (Fla. May 17, 2012).Approximately three years ago, the Court cautioned that &ldquo;further work is required before publication and use of these preliminary products liability instructions, model forms, verdict forms, and any other material[s].&rdquo;&nbsp;<i>Id.</i> </span></p> <p>Addressing the substance of the newly enacted standard product liability jury instructions, there are certain key topics or instructions (set forth below) meriting discussion and analysis.</p> <p><b><u>Design Defect: Consumer Expectation vs. Risk-Benefit Tests </u></b></p> <p>The instructions provide separate definitions and instructions for manufacturing defect and design defect.&nbsp;</p> <p>A product has a &ldquo;manufacturing defect&rdquo; &ldquo;if its in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product] and the product is expected to and does reach the user or consumer without substantial change affecting that condition.&nbsp;A product is unreasonably dangerous because of a manufacturing defect if it is different from its intended design and fails to perform as safely as the intended design would have performed.&rdquo;&nbsp;<i>Id.</i>at 403.7(a).&nbsp;</p> <p>&ldquo;A product is defective because of design defect if it is in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product] and the product is expected to and does reach the user without substantial change affecting that condition.&nbsp;A product is unreasonably dangerous because of its design if [<b>the product fails to perform as safely as an ordinary consumer would expect when used as intended or when used in a manner reasonably foreseeable by the manufacturer</b>] [and][or] [<b>the risk of danger in the design outweighs the benefit</b>].&rdquo;&nbsp;<i>Id.</i>at 403.7(b).</p> <p>Instruction 403.7 retains the consumer expectation and risk-utility tests for defining a design defect.<span>&nbsp;&nbsp; At first glance, the consumer expectation test is not only first test that appears in the instruction but is also wordier than the risk-utility test that follows.&nbsp;The risk-utility test does not have much substance, context, or explanation.&nbsp;Moreover, the instruction is written in a disjunctive as well as a conjunctive fashion, which leaves considerable leeway for both plaintiffs and defendants to argue that one test should be applied over the other or both tests should be provided.&nbsp;The usual litany of arguments at the epicenter of the tension between the consumer expectation and risk-utility tests will persist despite the Committee&rsquo;s best efforts. Arguments against application of the consumer expectation test in some, if not all, circumstances regarding the complexity of a product and/or the alleged defect, first time users, varying experience levels, misuse, etc., will still be well within the defense arsenal.&nbsp;</span></p> <p>The Committee Notes even recognize the split amongst Florida courts with regards to which standard applies for purposes of defining a design defect.&nbsp;The First, Fourth, and Fifth District Courts of Appeal seem to be more inclined to apply the plaintiff-friendly consumer expectation test from the Second Restatement of Torts.&nbsp;The Third District has adopted the Third Restatement&rsquo;s risk-utility and reasonable alternative design standards for defining a design defect.&nbsp;</p> <p>Often times, trial courts will simply allow both instructions, which seems to be the plausible outcome going forward given the instruction&rsquo;s &ldquo;and/or&rdquo; terminology and notes.&nbsp;The Committee Notes state that &ldquo;[p]ending further developments in the law, the committee takes no position on whether the risk/benefit test is a standard for product defect that should be included in the instruction defining design defect or should be included as an affirmative defense.&rdquo; &nbsp;<i>Id.</i>at 403.7 n.3. &nbsp;There is currently a case pending before the Florida Supreme Court, originating from the Third District Court of Appeal, in which the risk-utility and consumer expectation tests are directly at issue in an asbestos case.&nbsp;<i>See Aubin v. Union Carbide Corp</i>. Case No. SC12-2075 (oral argument was held in April 2014); <i>see also </i>Florida Supreme Court Gavel to Gavel, on the <i>Aubin </i>decision, the products liability instructions may be significantly impacted.&nbsp;The Notes further dilute the efficacy and validity of the risk-utility test by stating, &ldquo;<b><i>If</i></b> a court determines that the risk/benefit test is a test for product defect, the committee takes no position on whether both the consumer expectations and risk/benefit tests should be given <b>alternatively or together</b>.&rdquo; &nbsp;<i>Id.</i> &nbsp;(emphasis added).&nbsp;</p> <p><b><u>Failure to Warn (Strict Liability / Negligent)</u></b></p> <p>There are new instructions for strict liability and negligent failure to warn, which have been never been previously recognized in the form of Florida&rsquo;s Standard Jury Instructions in Civil Cases.&nbsp;</p> <p>The strict liability failure to warn instruction provides: &ldquo;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, and the failure to provide those instructions or warnings makes the product unreasonably dangerous.&rdquo;&nbsp;<i>Id.</i>at 403.8.&nbsp;</p> <p>The negligent failure to warn instruction provides: &ldquo;[Negligence is the failure to use reasonable care, which is the care that a reasonably careful [designer] [manufacturer] [seller] [importer] [distributor] [supplier] would use under like circumstances.] Reasonable care on the part of (defendant) requires that (defendant) give appropriate warning(s) about particular risks of (the product) which (defendant) knew or should have known are involved in the reasonably foreseeable use(s) of the product.&rdquo;&nbsp;<i>Id.</i>at 403.10.&nbsp;</p> <p>Longstanding and well-established Florida law has evolved over the years to clearly recognize strict liability and negligent failure to warn claims. &nbsp;Such claims are regularly litigated throughout Florida.&nbsp;The practical implication of Instructions 403.8 and 403.10 is that the jury instructions now reflect the current status of Florida law.&nbsp;Moreover, this puts to rest whether strict liability failure to warn is a recognized cause of action under Florida law.&nbsp;<span>&nbsp;&nbsp;</span></p> <p>Additionally, the Committee Notes recognize that strict liability and negligent failure to warn claims are not mutually exclusive of each other.&nbsp;To the contrary, in circumstances where the two claims are &ldquo;tried together, to clarify differences between them it may be necessary to add language to the strict liability instruction to the effect that a product is defective if unreasonably dangerous even though the seller has exercised all possible care in the preparation and sale of the product.&rdquo;&nbsp;<i>Id.</i>at 403.8 n. 2.&nbsp;The inclusion of this note makes it challenging to argue the potential for an inconsistent verdict between strict liability and negligent claims as a basis to urge plaintiffs to drop one and streamline the verdict form.&nbsp;<span>&nbsp;&nbsp;</span></p> <p>Perhaps the most far-reaching aspect of the instruction&rsquo;s robust construction of warnings claims is contained in note 2 which states that &ldquo;Under certain circumstances, <b>a manufacturer has a</b> <b>duty to warn about particular risks of a product even after the product has left the manufacturer&rsquo;s possession</b>, and has been sold or transferred to a consumer or end-user.&nbsp;<i>Id.</i>403.10 n.2 (emphasis added) (citing <i>High v. Westinghouse Elec. Corp.</i>, 610 So. 2d 1259, 1263 (Fla. 1992); <i>Sta-Rite Indus., Inc. v. Levey</i>, 909 So. 2d 901, 905 (Fla. 3d DCA 2004)). &nbsp;The note also indicates that a special instruction may be needed in cases properly raising issues of post-manufacture or post-sale duty to warn.&nbsp;The new instructions do not expressly include post-manufacture/sale duty to warn but merely raise the possibility.<a href="#_ftn1" name="_ftnref1" title=""><span><span><span><span>[1]</span></span></span></span></a>&nbsp;Nevertheless, this note may lead to pleadings, jury instructions and verdict forms including an additional theory of liability.&nbsp;Conceivably, there could be three separate and distinct claims on a verdict form only for warnings-based claims (i.e. strict liability, negligent, and post-manufacture/sale failure to warn) in addition to strict and negligent design claims.&nbsp;</p> <p><b><u>Inferences: <i>Cassisi </i>&amp; Government Rule Non/Compliance &nbsp;</u></b></p> <p>Although there are no instructions provided under the newly-enacted standard instructions for &ldquo;403.11 - Inference of Product Defect or Negligence,&rdquo;&nbsp;there are two notes.&nbsp;The first note recognizes that Florida Statute Section 768.1256 &ldquo;provides for a rebuttable presumption in the event of compliance or noncompliance with government rules.&rdquo;&nbsp;<i>Id.</i>at 403.11 n.1.&nbsp;The Committee Notes further state that &ldquo;[p]ending further development in the law, the committee offers no standard instruction on this presumption, leaving it up to the parties to propose instructions on a case-by-case basis.&rdquo;&nbsp;<i>Id.</i></p> <p>The second note deals with the Florida case-law created <i>Cassisi </i>inference.&nbsp;<i>Id.</i>at 403.11 n.2 (citing <i>Cassisi v. Maytag Co.</i>, 396 So. 2d 1148 (Fla. 1st DCA 1981).&nbsp;In <i>Cassisi</i>,the court held that when a product <i>malfunctions</i> during normal operation, a legal inference of product defectiveness arises, and the injured plaintiff establishes a prima facie case for jury consideration by application of the inference.&nbsp;<i>Id.</i>The inference does not apply in all cases but is limited to cases where the product is destroyed.&nbsp;Despite a perceived lack of evidence in such cases, the inference gets plaintiffs past summary judgment.&nbsp;There are several concerns with and arguments against application of the inference such as burden-shifting, modification, misuse, abnormal operation, causation, age of the product, length of product&rsquo;s use, the severity of the product&rsquo;s use, the state of repair, and excepted useful life.&nbsp;Pending further development of the law, the Committee took no position on the sufficiency of any possible instructions where the <i>Cassisi </i>inference may apply.<a href="#_ftn2" name="_ftnref2" title=""><span><span><span><span>[2]</span></span></span></span></a>&nbsp;Since there is no express, specific instruction regarding the <i>Cassisi </i>inference only the mere possibility of plaintiffs obtaining this instruction in light of the aforementioned arguments exists.&nbsp;<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></p> <p><b><u>Crashworthiness &amp; &ldquo;Enhanced Injury&rdquo; Claims</u></b></p> <p>The Florida Legislature passed a bill on May 13, 2011 to abrogate the holding in <i>D&rsquo;Amario v. Ford Motor Co.</i> and restore the jury&rsquo;s right to compare the wrongdoing or fault of drivers and/or others responsible for the &ldquo;first collision.&rdquo;&nbsp;The bill was signed into law on June 23, 2011.&nbsp;The new statute explicitly requires the jury to consider the fault of all who contributed to the accident when apportioning fault in any products liability case alleging that injuries were enhanced by a defective product.&nbsp;In line with the recent Florida law abrogating the <i>D&rsquo;Amario </i>precedent, the new standard jury instructions do not contain a specific instruction regarding apportionment of fault in a crashworthiness case.&nbsp;However, there is an &ldquo;enhanced injury&rdquo; instruction under the &ldquo;403.2 - Summary of Claims.&rdquo; The Note indicates that the following instruction is to be used in crashworthiness cases: &ldquo;[(Claimant) [also] claims that [he][she] sustained greater or additional injuries than what [he][she] would have sustained in the (describe accident) if the (describe product) had not been defective.].&rdquo; <i>Id.</i>at 403.2.&nbsp;The plaintiff&rsquo;s bar is likely to advance arguments about the continued applicability of <i>D&rsquo;Amario</i>, the retroactive application of the recent abrogating statute, and evidentiary rule 403-based exclusion.<span>&nbsp;&nbsp; </span></p> <div><br clear="all" /> <hr width="33%" size="1" align="left" /> <div id="ftn1"> <p><a href="#_ftnref1" name="_ftn1" title=""><span><span><span>[1]</span></span></span></a> The Third Restatement of Torts Products Liability contains post-sale failure to warn (&sect;10), post-sale failure to recall (&sect;11, and a successor's liability for its own failure to warn (&sect;13).&nbsp;<i>See </i>Restatement (Third) of Torts: Prod. Liab. &sect; 13 (1998).</p> </div> <div id="ftn2"> <p><a href="#_ftnref2" name="_ftn2" title=""><span><span><span>[2]</span></span></span></a> Existing Florida law from the First District holds that <i>Cassisi </i>&ldquo;does not, however, sanction a jury instruction&rdquo; because to do so would be &ldquo;tantamount to directing a verdict in the product liability plaintiff's favor.&rdquo;&nbsp;<i>See Gencorp, Inc. v. Wolfe</i>, 481 So. 2d 109, 111-12 (Fla. 1st DCA 1985).&nbsp;<i>Contra Kaplan v. Daimlerchrysler, A.G.</i>, No. 02-13223, 2003 WL 22023315, at *3 (11th Cir. Aug. 1, 2003) (interpreting the First District&rsquo;s holding in <i>Gencorp </i>as not rejecting a <i>Cassisi</i>-based instruction per se in all cases but simply disapproving of the language in the particular instruction and noting that the <i>Gencorp </i>instruction failed to tell the jury that the inference was not only permissible but should be considered along with the rest of the evidence).&nbsp;</p> </div> </div>Products Liability Blog21 Apr 2015 00:00:00 -0800 Experts may testify as to causation of an injury<p>In civil injury litigation, and products liability in particular, expert testimony regarding the mechanism of injury can be critical to the prosecution or defense of a claim. There has been some debate among practitioners and the courts regarding whether a biomechanical expert must also be a medical doctor in order to offer opinions regarding injury causation.</p> <p>In <i>Council v. State</i>, 98 So. 3d 115 (Fla. 1st DCA 2012), Florida&rsquo;s First District Court of Appeal weighed in on this issue. The court held that a non-medical, biomechanical expert may offer opinion testimony regarding the causation of an injury. In the underlying aggravated child abuse case in which the defendant allegedly shook a child and caused a brain injury, the defense sought to introduce testimony from a PhD biomechanics expert. The defendant&rsquo;s expert proffered two opinions regarding the injuries: (1) the child could have sustained similar brain injuries by falling out of a bed; and (2) shaking alone could not have caused such injuries. The trial court excluded the expert testimony on the basis that the expert&rsquo;s opinions might confuse the jury because they could not translate into a medical diagnosis regarding the extent of the injury.</p> <p>The appellate court recognized Florida law bars non-M.D. biomechanics experts from offering opinions regarding the extent of an injury. However, the court explained that a biomechanics expert is properly qualified to offer an opinion as to the causation of an injury if the injury falls within the field of biomechanics. In this case, the expert was qualified to offer his opinions because the mechanisms of injury: a fall from bed or shaking, are within the field of biomechanics.</p> <p>While <i>Council</i> involved a criminal case, the court&rsquo;s holding is equally applicable to biomechanics experts in civil cases as well. Therefore, as long as the mechanism of the injury falls within the field of biomechanics, parties may use a biomechanics expert to offer opinions regarding injury causation. Counsel who choose to retain non-medical doctor biomechanic experts must be careful to ensure that the expert&rsquo;s opinion does not stray into areas where medical expertise is required.</p>Products Liability Blog25 Nov 2014 00:00:00 -0800 in a Digital Ocean: 1st DCA Rules Defense May Discover All Data on Decedent's Cellphone<p>Florida's First District Court of Appeal recently upheld a trial court order allowing Defendants' expert to conduct an inspection of &quot;all data&quot; on a decedent's cellphone, albeit under strict and controlled parameters. <i>See Antico v. Sindt Trucking, Inc.</i>, Case No. 1D14-277, 2014 WL 5099433 (Fla. 1st DCA October 13, 2014).<a title="" href="#_ftn1" name="_ftnref1"><span><span><span><span>[1]</span></span></span></span></a> The three judge panel recognized the decedent&rsquo;s legitimate privacy concerns, but remarked &quot;privacy rights do not completely foreclose the prospect of discovery of data stored on electronic devices.&quot;&nbsp;The decision may signal an opening of the proverbial floodgates into the discovery of electronically stored information, and may assist litigants in uncovering critical and damaging evidence as parties become increasingly reliant on their laptops, tablets, and smartphones.&nbsp;&nbsp;&nbsp;</p> <p><span>The underlying matter involved a wrongful death action brought by the estate of Tabitha Antico after she was killed in a collision with Defendants' truck.&nbsp;Defendants argued Ms. Antico was distracted by her cellphone and therefore, was the sole cause of the accident, or alternatively, was comparatively negligent.&nbsp;Through discovery, Defendants obtained Ms. Antico's text messages and calling records directly from her wireless provider.&nbsp;Because the information Defendants received failed to include other critical metadata such as &quot;use and location information, internet website access history, email messages, and social and photo media posted and reviewed on the day of the accident,&quot; Defendants requested the trial court allow their expert to inspect the contents of Ms. Antico's cellphone directly.&nbsp;Balancing Ms. Antico's privacy interests against Defendants' right to discover relevant information, the trial court fashioned a comprehensive and narrowly-tailored order allowing the requested inspection. </span></p> <p><span>On appeal, the First District rejected the estate's contention Defendants' request was an improper fishing expedition, as Defendants brought forth specific evidence demonstrating the relevancy of the electronically stored information.&nbsp;Defendants cited cellphone records indicating Ms. Antico was texting just minutes before the accident, and introduced testimony of two witnesses and the responding troopers showing Ms. Antico may have been using her phone at the time of the accident.&nbsp;Further, the trial court imposed strict parameters for the inspection.&nbsp;The estate was given an opportunity to videotape the inspection.&nbsp;The trial court required Defendants' expert to install write-protect software to preclude alteration of the phone's hard drive, and the expert could only view data for a nine-hour period preceding the accident.&nbsp;After the inspection, the court required the expert prepare a summary of the data reviewed, however, before any findings were disclosed to Defendants, the estate was given an opportunity to interpose any objections.&nbsp;</span></p> <p><span>The First District believed the strict parameters appropriately safeguarded Ms. Antico's privacy.&nbsp;Not to mention, for reasons unknown, the estate failed to propose an alternative, less intrusive plan for the inspection and did not offer to have its own expert review the data.&nbsp;The panel explained, &quot;if an effective and superior privacy-respecting plan for segregating inspection-permissible from -impermissible data exists, it hasn't been presented to the court.&quot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></p> <p><span>The practical importance of the <i>Antico</i> decision lies in the breadth of the order, which allowed the expert to inspect &quot;all data&quot; on Ms. Antico's cellphone.&nbsp;The trial court permitted examination of call records, text messages, web searches, emails sent and received, uploads, downloads, data changes, and GPS data.&nbsp;Even more, although Defendants argued Ms. Antico was distracted by her cellphone at the time of the accident, the order allowed Defendants&rsquo; expert to inspect data for a nine-hour period.&nbsp;The panel explained why examination of &ldquo;all data&rdquo; was appropriate and highly relevant to the issues in the case.&nbsp;Yet, it failed to address why an examination of a nine-hour period was proper or necessary, when it seems the critical issue was whether Ms. Antico was distracted at the time she collided with Defendants&rsquo; truck. &nbsp;&nbsp;&nbsp;&nbsp;</span></p> <p>That being said, the panel found the order was not overbroad and mentioned the only way to determine whether Ms. Antico was utilizing her phone's software at the time of the incident, or dialing a number, sending a text, searching for contact information, or reviewing prior messages, was by &quot;broadly inspecting data associated with all of the cellphone's applications.&quot;&nbsp;Going forward, if a party can provide specific evidence demonstrating the relevancy or necessity of a request for electronically stored information, it seems the <i>Antico</i> case may serve as a basis for a broad request to discover &quot;all data&quot; on a litigant's device.</p> <div><br clear="all" /> <hr width="33%" size="1" align="left" /> <div id="ftn1"> <p><a title="" href="#_ftnref1" name="_ftn1"><span><span><span>[1]</span></span></span></a><font size="2"> Please note, this opinion was issued on October 13, 2014.&nbsp; Florida Rule of Appellate Procedure 9.330 provides a Motion for Rehearing &ldquo;may be filed within 15 days of an order or within such other time set by the court.&rdquo;&nbsp;Therefore, the deadline for Petitioner to seek rehearing is on or before <u>October 28, 2014</u>, at which point this decision becomes final.</font></p> </div> </div>Products Liability Blog06 Nov 2014 00:00:00 -0800 DCA: Applying Daubert Under Florida Law in Perez v. Bell South Telecommunications, Inc.<p>The Third District Court of Appeal of Florida recently issued an opinion in <i>Perez v. Bell So. Telecomm.</i>, No. 3D11-445, 2014 WL 1613654 (Fla. 3d DCA Apr. 23, 2014),which represents the Third District&rsquo;s first pronouncement applying <i>Daubert </i>under Florida law since the legislative amendment took effect on July 1, 2013, repudiating the archaic <i>Frye </i>standard and pure opinion testimony in favor of the more widely accepted <i>Daubert</i> standard.</p> <p>The case involved a negligence suit brought by Osmany Anthony Perez, a minor, by and through his mother, Maria Franco Perez, against the mother&rsquo;s employer, Bell South Telecommunications, for the premature birth of the minor as a result of placental abruption, which the Plaintiff&rsquo;s expert opined was induced or caused by &ldquo;work place stress.&rdquo;&nbsp;<i>Id.</i>at *4.&nbsp;</p> <p>By way of background, Ms. Perez became pregnant while employed as a call center operator.&nbsp;<i>Id.</i>at *3.&nbsp;Dr. Isidro Cardella, a board-certified obstetrician and gynecologist, classified Ms. Perez&rsquo;s pregnancy as &ldquo;high risk&rdquo; on May 5, 2004.&nbsp;<i>Id.</i><i> &nbsp;</i>On July 30, 2004, Ms. Perez reported to Dr. Cardella being under a lot of stress at work.&nbsp;<i>Id.</i>&nbsp;Dr. Cardella provided Ms. Perez with a note to give to her employer placing a limitation of 40 hours on her work week and requesting frequent bathroom breaks due to the high risk nature of her pregnancy.&nbsp;<i>Id.</i>&nbsp;Less than two weeks later, Ms. Perez was fired for non-performance.&nbsp;Two days after her firing, she suffered a placental abruption and delivered her child at twenty weeks.&nbsp;<i>Id.</i>at *3-4.&nbsp;</p> <p>Dr. Cardella opined that &ldquo;workplace stress,&rdquo; exacerbated by Bell South&rsquo;s alleged refusal to accommodate Ms. Perez&rsquo;s medical condition, was the causal agent of the placental abruption and premature delivery.&nbsp;<i>Id.</i>at *4.&nbsp;At his deposition, Dr. Cardella essentially testified and conceded there was no way of ever knowing for sure what caused the placental abruption, his conclusions were merely his own personal opinion, his opinion was unsupported by credible scientific research, there were no studies or medical literature regarding workplace stress tied to placental abruption, and he had never spoken on the topic and was not aware of anyone who had.&nbsp;Given the untested, unverified, hypothetical, speculative, conjectural, and <i>ipse dixit</i> nature of his opinions, the trial court excluded his opinions under <i>Frye</i>.&nbsp;</p> <p>Since Dr. Cardella&rsquo;s opinion testimony was the sole connection between the premature birth and Bell South, the trial court&rsquo;s exclusion of his opinion testimony under <i>Frye </i>was the basis for granting summary judgment due to a lack of causal proof as a matter of law and fact. <i>&nbsp;Id. </i>at *6.&nbsp;Ms. Perez appealed the adverse summary judgment ruling contending that Dr. Cardella&rsquo;s testimony was admissible as &ldquo;pure opinion testimony&rdquo; under <i>Marsh v. Valyou</i>, 977 So. 2d 543 (Fla. 2007).&nbsp;Following the <i>Frye </i>and summary judgment rulings, but prior to deciding the appeal, the Florida Evidence Code was amended on July 1, 2013.</p> <p>The case presented an interesting procedural conundrum given the passing of the legislative amendment to Florida&rsquo;s Evidence Code after the trial of the underlying suit but before the appeal.&nbsp;Such a consideration was one of the many inquires practioners and judicial minds contemplated in the wake of the amendment.&nbsp;This case makes clear that <i>Daubert </i>applies to pending cases on appeal that were previously decided under <i>Frye</i>.&nbsp;It also clarifies the retroactive application of the amendment.&nbsp;<i>Id.</i>at *4 (holding that &ldquo;section 90.702 of the Florida Evidence Code indisputably applies retrospectively&rdquo;).&nbsp;</p> <p>The Third District found Dr. Cardella&rsquo;s opinion testimony inadmissible under both the <i>Frye </i>and <i>Daubert</i> standards.&nbsp;Chief Judge Shepherd writing for the panel (which included Judges Wells and Rothenberg) explained that Ms. Perez&rsquo;s contention on appeal regarding pure opinion testimony had been expressly prohibited in the recent amendment to the Florida Evidence Code.&nbsp;<i>Id.</i>at *8.&nbsp;The Florida Legislature went as far as making specific reference to the seminal pure opinion case of <i>Marsh v. Valyou</i>, 977 So. 2d 543 (Fla. 2007) in the amendment.&nbsp;As of July 1, 2013, pure opinion testimony is no longer permissible in Florida courts.&nbsp;<i>Id.</i><i>&nbsp;All</i> expert testimony must now satisfy the requirements of <i>Daubert</i>.&nbsp;</p> <p>Despite recognizing the conceptual debate over whether <i>Frye </i>or <i>Daubert</i> is stricter or more rigid, the Third District noted that &ldquo;[t]he legislative purpose of the new law is clear: to tighten the rules for admissibility of expert testimony in the courts of this state.&rdquo;&nbsp;<i>Id.</i>at *10.&nbsp;To this end, the Third District explained that the &ldquo;touchstone of the scientific method is empirical testing &ndash; developing hypotheses and testing them through blind experiments to see if they can be verified.&rdquo;&nbsp;<i>Id.</i>at *11.&nbsp;The court also discussed that &ldquo;general acceptance in the scientific community,&rdquo; which were the buzzwords under <i>Frye</i>, is now simply one of several factors to consider under <i>Daubert</i>,but is in no event a sufficient basis in itself for admissibility.&nbsp;<i>Id.</i>at *12.&nbsp;Under <i>Daubert</i>, there is no place for &ldquo;subjective belief and unsupported speculation.&rdquo; &nbsp;<i>Id.</i>&nbsp;</p> <p><u>See also</u>:</p> <p><a href=""><font color="#0000ff"></font></a></p> <p><a href=";an=19966&amp;format=xml&amp;p=4946"><font color="#0000ff">;an=19966&amp;format=xml&amp;p=4946</font></a></p>Products Liability Blog15 May 2014 00:00:00 -0800 DCA Rules Florida's Proposal for Settlement Laws Conflict With Federal Maritime Law<p>On April 9, 2014, the Third District Court of Appeal of Florida issued an en banc opinion in <i>Royal Caribbean Cruises, Ltd. v. Cox</i>, Case No. 3D09-2712. The case put to rest decades of unrest and tension between the status of Florida&rsquo;s offer of settlement law as interpreted by the Third District and federal maritime law.&nbsp;The Third District finally aligned itself with its sister courts and Florida&rsquo;s federal courts in holding that Florida&rsquo;s offer of judgment laws conflict with federal maritime law and a prevailing party is not entitled to recover attorney&rsquo;s fees.&nbsp;</p> <p>There is a protracted procedural history to this matter. &nbsp;The plaintiff, Mr. Bryon Cox, brought suit against Royal Caribbean in the underlying suit to recover for personal injuries sustained while employed aboard a Royal Caribbean vessel.&nbsp;Mr. Cox served an offer of judgment pursuant to Florida Statute &sect;768.79 and Florida Rule of Civil Procedure 1.442.&nbsp;Royal Caribbean moved to strike the offer of judgment, arguing that &sect;768.79 conflicted with federal maritime law.&nbsp;In response, Mr. Cox cited <i>Royal Caribbean Corp. v. Modesto</i>, 614 So. 2d 517 (Fla. 3d DCA 1992) (holding that Florida statute providing for confidentiality of mediation proceedings was not preempted by maritime law and finding &ldquo;no conflict between Florida&rsquo;s rule of law regarding offers of judgment and federal maritime law.&rdquo;).&nbsp;The case proceeded to trial and the jury found in favor of Mr. Cox, who sought attorney&rsquo;s fees based on his offer of judgment.&nbsp;The trial court judge granted an award of $245,856.87 in attorney&rsquo;s fees pursuant to plaintiff&rsquo;s offer of judgment.&nbsp;</p> <p>The original appeal was taken from the trial court&rsquo;s order, which the Third District affirmed, relying on the rationale enunciated in <i>Modesto</i>.&nbsp;Royal Caribbean moved for a rehearing en banc.&nbsp;The en banc panel consisted of Chief Judge Frank Shepherd and Judges Well, Suarez, Rothenberg, Lagoa, Salter, Emas, Fernandez, Logue and Scales.&nbsp;On rehearing, Royal Caribbean argued that the Third District should recede from the ruling in <i>Modesto</i>.&nbsp;</p> <p>By way of background, and contrary to <i>Modesto</i>,several other state and federal courts have held that &ldquo;under federal admiralty law, the prevailing party is not entitled to attorney&rsquo;s fees . . . even when a state statute establishes an entitlement to fees.&rdquo;&nbsp;<i>See Nicoll v. Magical Cruise Co.</i>, 110 So. 2d 98, 98 (Fla. 5th DCA 2013) (citing <i>Misener Marine Constr., Inc. v. Norfolk Dredging Co.</i>, 594 F.3d 832, 841 (11th Cir. 2010) (explaining that federal maritime law follows the American rule regarding attorney&rsquo;s fees); <i>Texas A&amp;M Research Found. v. Magna Transp. Inc.</i>, 338 F.3d 394, 405 (5th Cir. 2003); <i>Am. Nat'l Fire Ins. Co. v. Kenealy</i>, 72 F.3d 264, 270 (2d Cir. 1995); <i>Southworth Mach. Co. v. F/V Corey Pride</i>, 994 F.2d 37, 41 (1st Cir. 1993); <i>Su v. M/V S. Aster</i>, 978 F.2d 462, 475 (9th Cir. 1992); <i>Sosebee v. Rath</i>, 893 F.2d 54, 56&ndash;57 (3d Cir. 1990)); <i>see also Garan, Inc. v. M/V Aivik</i>, 907 F.Supp. 397, 400 (S.D. Fla. 1995) (finding that <i>Modesto</i>misconstrued the holding in <i>Vaughan v. Atkinson</i>, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), involving an exception for a discretionary award of attorneys' fees in the maritime context when the non-prevailing party has acted in bad faith).</p> <p>Given the uncertainty <i>Modesto </i>generated, the issue of whether state-based recovery of attorney&rsquo;s fees is compatible with federal maritime law was ripe for clarification and decision.&nbsp;Ultimately, the Third District Court of Appeal receded from <i>Modesto </i>and finally clarified that Florida&rsquo;s offer of judgment statute conflicts with federal maritime law.&nbsp;The Third District stated a prevailing party is not entitled to attorney&rsquo;s fees under federal maritime law absent certain exceptional circumstances (<i>i.e.</i> bad faith) even when a state statute establishes entitlement.&nbsp;</p> <p>One of the overarching and central tenets of maritime law is uniformity, which the recent en banc decision aims to serve.&nbsp;<i>See Texas A&amp;M Research Found.</i>, 338 F.3d at 405.&nbsp;The decision has the practical and immediate impact of rendering any already filed or pending proposals for settlement relying on <i>Modesto</i> in a maritime action a nullity and non-enforceable.&nbsp;This ruling is especially significant given the prevalence of forum selection clauses in Miami, which is the epicenter of the cruising industry.&nbsp;The en banc decision is a neutralizer for both plaintiffs and defendants as the offer of judgment rule and statute can apply pressure and encourage settlement on both sides.&nbsp;The recent decision also impacts the already strategic choice-of-law decision and manner of pleading between admiralty and state substantive law.&nbsp;</p>Products Liability Blog14 Apr 2014 00:00:00 -0800 of Attorney Charging Liens<p style="margin: 0in 0in 0pt" class="MsoNormal">Attorneys&rsquo; fee liens, commonly referred to as &ldquo;charging liens,&rdquo; pose a difficult problem for defendants.<span style="mso-spacerun: yes">&nbsp; </span>Increasingly, plaintiffs are represented by multiple attorneys due to plaintiffs switching attorneys or attorney referrals.<span style="mso-spacerun: yes">&nbsp; </span>This is particularly true in product liability cases where it is typical for the original plaintiff&rsquo;s attorney to refer the case to an attorney specializing in product liability.<span style="mso-spacerun: yes">&nbsp; </span>Sometimes former plaintiff&rsquo;s attorneys file a formal notice of lien in the lawsuit.<span style="mso-spacerun: yes">&nbsp; </span>However, other times the former plaintiff&rsquo;s attorney does not file a formal lien notice with the court.<span style="mso-spacerun: yes">&nbsp; </span>When a settlement is reached it is typical for the defendant to require the plaintiff to resolve all liens, including any attorney charging liens, as a condition of the settlement.<span style="mso-spacerun: yes">&nbsp; </span>However, if the plaintiff and current plaintiff&rsquo;s attorney fail to resolve a charging lien, then the former attorney claiming a charging lien may seek to collect from defendant either in the original action or in a separate action.</p> <p style="margin: 0in 0in 0pt" class="MsoNormal"><o:p>&nbsp;</o:p></p> <p style="margin: 0in 0in 0pt" class="MsoNormal">Under <st1:state w:st="on"><st1:place w:st="on">Florida</st1:place></st1:state> law, a former attorney&rsquo;s charging lien is enforceable against a defendant.<span style="mso-spacerun: yes">&nbsp; </span><i style="mso-bidi-font-style: normal">Sinclair, Louis, Siegel, Heath, Nussbaum &amp; Zavertnik, P.A. v. Baucom</i>, 428 So. 2d 1383, 1385 (<st1:place w:st="on"><st1:state w:st="on">Fla.</st1:state></st1:place> 1983).<span style="mso-spacerun: yes">&nbsp; </span>When a defendant has notice of a charging lien before settlement of the case, the defendant may be held liable to the former plaintiff&rsquo;s attorney.<span style="mso-spacerun: yes">&nbsp; </span>The Florida Supreme Court has held that &ldquo;there are no requirements for perfecting a charging lien beyond timely notice.&rdquo;<span style="mso-spacerun: yes">&nbsp; </span><st1:state w:st="on"><st1:place w:st="on"><i style="mso-bidi-font-style: normal">Id.</i></st1:place></st1:state><span style="mso-spacerun: yes">&nbsp; </span><st1:state w:st="on"><st1:place w:st="on">Florida</st1:place></st1:state> courts have found that &ldquo;to give timely notice of a charging lien an attorney should either file a notice of lien or otherwise pursue the lien in the original action.&rdquo;<span style="mso-spacerun: yes">&nbsp; </span><i style="mso-bidi-font-style: normal">Daniel Mones, P.A. v. Smith</i>, 486 So. 2d 559, 561 (<st1:place w:st="on"><st1:state w:st="on">Fla.</st1:state></st1:place> 1986).<span style="mso-spacerun: yes">&nbsp; </span>While courts have not defined what constitutes &ldquo;pursuit&rdquo; of the lien, the former attorney is probably not required to file a formal notice of lien with the Court to perfect the charging lien.<span style="mso-spacerun: yes">&nbsp; </span>Any notice of the charging lien, regardless of form, at any stage of the lawsuit, may be sufficient to hold a defendant liable for the charging lien.<span style="mso-spacerun: yes">&nbsp; </span></p> <p style="margin: 0in 0in 0pt" class="MsoNormal"><o:p>&nbsp;</o:p></p> <p style="margin: 0in 0in 0pt" class="MsoNormal">Because of the risk that charging liens pose to defendants, it is important that defendants identify any potential charging liens.<span style="mso-spacerun: yes">&nbsp; </span>Defendants should include an indemnification provision in the settlement agreement that requires the plaintiff to indemnify the defendant against any charging liens.<span style="mso-spacerun: yes">&nbsp; </span>However, this provision often provides limited protection, because the plaintiff has exhausted the settlement money and lacks other assets.<span style="mso-spacerun: yes">&nbsp; </span>Florida Bar Rules prevent defendants from including indemnity provisions in settlement agreements that would require the settling plaintiff&rsquo;s attorney to indemnify the defendant should a lienholder assert a claim. Therefore, when significant settlement sums are involved, a defendant should take steps to ensure that the charging liens are resolved as part of the settlement reached with the settling plaintiff&rsquo;s attorney.<span style="mso-spacerun: yes">&nbsp; </span>For example, a defendant can refuse to disburse the settlement funds until the plaintiff proves that any charging liens have been resolved.<span style="mso-spacerun: yes">&nbsp; </span>By taking steps to ensure that plaintiff&rsquo;s and settling plaintiffs&rsquo; attorneys comply with their duties to resolve any liens, defendants can minimize their exposure to charging liens.<span style="mso-spacerun: yes">&nbsp; </span></p> <p style="text-indent: 0.5in; margin: 0in 0in 0pt" class="MsoNormal"><o:p>&nbsp;</o:p></p>Products Liability Blog06 Nov 2013 00:00:00 -0800 Lies Ahead as Florida Transitions to Daubert<p>Florida Governor Rick Scott has signed into law a piece of legislation that transforms Florida into a <i>Daubert</i> jurisdiction, aligning Florida courts with their federal counterparts. Florida was one of only 10 remaining hold-outs in the minority of states still applying the nearly century-old requirements of <i>Frye v. United States</i>, 293 F. 1013 (D.C. Cir. 1923).&nbsp;In its third year up for vote, the Florida legislature finally approved the legislation and teed it up for the Governor&rsquo;s approval.&nbsp;Senator Richter remains hopeful that the amendment will &ldquo;improve Florida&rsquo;s legal climate.&rdquo;&nbsp;<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></p> <p>Florida&rsquo;s recent expert testimony reform and amendment of Florida Statute &sect;90.702, makes the standard of admissibility of expert testimony in Florida courts stricter and more exacting.&nbsp;Simply stated, the <i>Daubert </i>standard requires that:</p> <p><span>a)<span>&nbsp;&nbsp;&nbsp; </span></span>the testimony is based on sufficient facts or data;</p> <p><span>b)<span>&nbsp;&nbsp;&nbsp; </span></span>the testimony is the result of reliable principles and methods; and</p> <p><span>c)<span>&nbsp;&nbsp;&nbsp; </span></span>the witness has applied the principles and methods reliably to the facts of the case.</p> <p>The <i>Daubert </i>standard contemplates the trial court as a &ldquo;gatekeeper&rdquo; that independently assess the scientific validity and reliability of the reasoning, methodology and principles underlying proffered expert evidence.&nbsp;<i>See Daubert v. Merrell Dow Pharmaceuticals, Inc.</i>, 509 U.S. 579 (1993).&nbsp;Under the <i>Daubert </i>standard, the trial court can exclude a scientific expert&rsquo;s opinion even if the expert had used reliable and accepted methodology if the trial court, as gatekeeper, determined the expert&rsquo;s conclusion(s) were unsupported by the given methodology&rsquo;s data.&nbsp;<i>See General Electric Co. v. Joiner</i>, 522 U.S. 136 (1997).&nbsp;The <i>Daubert</i> standard is applicable to all experts under Federal Rule of Evidence 702 and is not limited in its reach to only &ldquo;scientific&rdquo; experts.&nbsp;<i>See Kuhmo Tires Co. v. Carmichael</i>, 526 U.S. 137 (1999).&nbsp;Pure opinion testimony, which differs from offering a scientific fact, will no longer be admissible unless the opinion testimony satisfies the <i>Daubert</i> test.</p> <p>There are several upsides to the change to <i>Daubert</i>.&nbsp;The prospect of&nbsp;<i>Daubert </i>hearings to challenge the validity of expert testimony may serve as a disincentive to some plaintiff&rsquo;s from brining suit in the first place.&nbsp;Novel scientific expert testimony used to establish causation may likely be scrutinized to a greater degree, which in turn will prohibit the introduction of unreliable and unsupported expert testimony.&nbsp;A successful challenge of a plaintiff&rsquo;s expert witness on <i>Daubert </i>grounds can put a prompt and definitive end to a plaintiff&rsquo;s case.&nbsp;Verdicts predicated upon &ldquo;junk science&rdquo; may become less common.</p> <p>Opponents of the reform contend that a shift to the more expansive <i>Daubert </i>standard will lead to an increase in costs, mini-trials, prolonged litigation, and parties retaining experts to testify about other experts as well as the reliability of the principles and methods.&nbsp;Opposing counsel will likely argue that defense counsel is merely stalling the litigation with motions challenging plaintiff&rsquo;s experts, there is meager precedent regarding Florida&rsquo;s application of <i>Daubert</i>, and pivot to policy concerns regarding wastedmoney, time and judicial resources involved in expert challenges.&nbsp;</p> <p>The new law will take effect on July 1, 2013. &nbsp;The reformed standard will apply to all cases tried on or after July 1, 2013, even if the case was filed prior to the enactment date.&nbsp;Moreover, for any cases retried following a favorable appellate decision after July 1, 2013, the case would likely be tried under <i>Daubert</i>. The effective date and temporal application of the law will present various issues in pending litigation.&nbsp;Practioners and clients alike with pending state court cases will be faced with procedural conundrums and strategic considerations.&nbsp;</p> <p><b><i>Hypothetical #1</i></b>: Several, if not all, expert depositions have already been taken but trial is post-enactment.&nbsp;Defense counsel may want to consider opening up any expert depositions for the limited purpose of determining any unknown basis to strike on <i>Daubert </i>grounds.&nbsp;Alternatively, defense counsel may seek to propound expert interrogatories to obtain that information.</p> <p><b><i>Hypothetical #2</i></b>: Several, if not all, expert depositions have already been taken but trial is post-enactment.&nbsp;Defense counsel did not update the <i>Frye </i>depositions and has not yet moved to strike any experts.&nbsp;Under such circumstances, defense counsel may want to strike the experts under <i>Daubert</i>.</p> <p><b><i>Hypothetical #3</i></b>: Several, if not all, expert depositions have already been taken but trial is post-enactment.&nbsp;Defense counsel has filed <i>Frye</i> motions to strike experts.&nbsp;Defense counsel may need to amend the motions applying the <i>Daubert </i>standard and conduct any necessary <i>Daubert </i>hearings.&nbsp;</p> <p><b><i>Hypothetical #4</i></b>:&nbsp;Post-enactment, plaintiff seeks to amend or substitute experts given the shift to <i>Daubert</i>.&nbsp;Will the Court allow plaintiffs in cases to do so?&nbsp;As a result, will all discovery be reopened or extended?<span>&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</span></p> <p>All in all, here is what can reasonably be anticipated. &nbsp;There will be varying degrees of understanding, adaptation, and rulings from different trial court judges given their varying levels of experiences in federal court and familiarity with <i>Daubert</i>. &nbsp;Pre-trial motion practice may see an increase in the early stages of the transition.&nbsp;The Florida Senate expected as much.&nbsp;Motions for continuance will likely be more liberally granted for pending cases that are set for trial close in time to the enactment date.&nbsp;Court dockets may experience a temporary backlog.&nbsp;A 2011 study on the effects of the <i>Daubert </i>standard revealed a noteworthy increase in <i>Daubert </i>challenges to all types of experts from 2000 to 2010.&nbsp;The study also revealed a 49% success rate of having experts stricken in whole or in part.&nbsp;Members of the plaintiff&rsquo;s bar who are unaccustomed to litigating in federal court will be at a disadvantage.&nbsp;</p>Products Liability Blog04 Jun 2013 00:00:00 -0800's 4th DCA Underlines Importance of Rules Governing Depositions of Designated Corporate Representatives<p>In a recent decision, a Florida appellate court discussed why we have rules allowing for corporate entities to designate corporate representatives to speak for them, and the implications of failing to utilize the designated procedures properly. In Carriage Hills Condominium, Inc. v. JBH Roofing &amp; Constructors, Inc., --- So. 3d ---, 2013 WL 1136399, 38 <i>Fla.</i><i> Law Weekly</i> D643 (Fla. 4th DCA, March 20, 2013), the court addressed the appeal of a summary judgment granted by a trial court following the deposition of an employee of a corporation.</p> <p>Carriage Hills, a condominium association, through its board of directors, hired JBH Roofing to perform building repairs necessitated by Hurricane Wilma pursuant to a contract which obligated JBH to perform only work approved by Carriage Hills&rsquo; public adjuster, and to accept payments approved by and received from Carriage Hills&rsquo; insurer. Less than a year later, Carriage Hills had terminated JBH&rsquo;s contract and JBH sued alleging breach of contract and other related claims. The breaches alleged by JBH included (a) failure to pay for repairs approved by the carrier; (b) failure to diligently present claims for loss to the carrier; and (c) retention of other roofing contractors to perform work that should have gone to JBH pursuant to the contract.</p> <p>Carriage Hills answered and asserted affirmative defenses alleging, among other things, that (1) the contract was &ldquo;executed without Board approval&rdquo;; (2) that it had already paid JBH in full for all work performed; (3) that JBH failed to mitigate damages; and (4) that JBH failed to perform its repairs satisfactorily or with due diligence.</p> <p>JBH noticed for deposition the &ldquo;Corporate Representative of Carriage Hills Condo with the most knowledge of the allegations contained in the complaint.&rdquo; The notice made no reference to any particular issue(s) to be addressed, or to Carriage Hills' affirmative defenses and counterclaims.</p> <p>Carriage Hills tendered Ms. Diane Foley, who in her then-capacity as President of the association, executed the JBH contract and was apparently the person with &ldquo;the most knowledge&rdquo; of the allegations in JBH&rsquo;s complaint.</p> <p>After testifying that she was authorized to execute the contract, Ms. Foley was repeatedly asked whether, in her &ldquo;opinion,&rdquo; contentions within the parties' pleadings were accurate. When asked whether she &ldquo;believed&rdquo; JBH had breached the contract, she responded, &ldquo;In my layman opinion, no.&rdquo; She testified that she was &ldquo;not aware&rdquo; of any unauthorized work performed, and that she &ldquo;believed&rdquo; that JBH completed all the tasks it was authorized to do up to the time of termination. She also did not believe JBH's work was defective.</p> <p>Armed with this testimony, JBH filed its Motion for Summary Judgment, in response to which Carriage Hills filed affidavits of another former president of the association and of its treasurer, in which it was asserted that JBH performed &ldquo;substandard work with respect to the roof systems&rdquo;, &ldquo;submitted duplicate charges&rdquo;, and &ldquo;conducted unauthorized work, including work that was not paid for [by the carrier].&rdquo; The affiants further asserted that due to JBH's shoddy repair work, Carriage Hills was forced to retain other roofing contractors to fix &ldquo;water leaks and problems encountered with the roof system,&rdquo; and that JBH was paid all of the funds approved by -- and received from -- the insurer.</p> <p>The trial court held that Ms. Foley, as its corporate representative, was &ldquo;Carriage Hills,&rdquo; and that her testimony was therefore binding on Carriage Hills. Accordingly, it struck the two affidavits, reasoning that &ldquo;[i]n situations where the non-movant in a motion for summary judgment submits an affidavit which directly contradicts an earlier deposition . . . , courts may disregard the later affidavit.&rdquo; Based upon Ms. Foley&rsquo;s deposition testimony, the trial court granted summary judgment to JBH, and Carriage Hills appealed.</p> <p>On appeal, Florida&rsquo;s 4th District Court of Appeals addressed the proper procedure for noticing and taking the deposition of a designated corporate representative in Florida. Florida Rule of Civil Procedure 1.310(b)(6), which governs depositions of designated corporate representatives, requires the party seeking the deposition to describe, with reasonable particularity, the matters for examination. This allows the corporate entity to select an individual or individuals able to testify on its behalf regarding the designated subjects. The Rule does not require that the person with &ldquo;the most knowledge&rdquo; regarding anything be produced. In fact, the court pointed out that the &ldquo;knowledge&rdquo; as to which the designated representative(s) are produced to testify is that of the corporation, and not the personal knowledge of the selected individual(s). The deponent needn&rsquo;t have any relevant personal knowledge at all.</p> <p>Against this backdrop, the appellate court noted that Ms. Foley had not been properly noticed as a corporate representative, since the notice failed to designate specific areas of inquiry, instead asking for the person &ldquo;with the most knowledge&rsquo; regarding the allegations in the complaint. And JBH got exactly what it asked for as a result &ndash; a deponent with personal knowledge of relevant facts but not a person who would testify to the knowledge and litigation positions of Carriage Hills. To add insult to injury, the deposition was also not properly conducted, in that Ms. Foley was repeatedly asked about her personal opinions rather than the positions of the corporation. The result was that Ms. Foley&rsquo;s testimony did not directly contradict the affidavits subsequently submitted by Carriage Hills, and the appellate court held that the trial court had acted improperly when it struck them and entered summary judgment based on Ms. Foley&rsquo;s testimony. The summary judgment was therefore reversed and the case remanded to the trial court for further proceedings.</p> <p>It has, unfortunately, become a common practice in Florida for notices for corporate representative depositions to request the &ldquo;person or persons with the most knowledge&rdquo; regarding designated subject areas or, most broadly, &ldquo;the issues set forth in the pleadings.&rdquo; The Carriage Hills decision serves as an important reminder of how failure to properly notice and conduct a corporate representative deposition can severely diminish the usefulness of the resulting deposition and the streamlining purpose of Rule 1.310(b)(6). Conversely, practitioners receiving such notices should consider filing objections and/or objecting on the record to such improper language.</p>Products Liability Blog02 May 2013 00:00:00 -0800 Regarding Florida's Proposed Product Liability Instructions<p align="left">On May 17, 2012, The Supreme Court of Florida issued its opinion concerning <a href=";an=12896&amp;format=xml&amp;p=4944">proposed</a> new Standard Jury Instructions for product liability cases. The Court preliminarily approved several of the proposed instructions, but rejected a number of instructions and directed the Committee to revise the proposed instructions.&nbsp;Among the rejected proposed instructions were an instruction covering strict which eliminated the differences between design and manufacturing defects and eliminated the risk utility test; an instruction on inferences of defect; and an instruction on crashworthiness.&nbsp;</p> <p align="left">On February 1, 2013, the Committee submitted revised proposed instructions for comment.&nbsp;The comment period ended on March 1, 2013.&nbsp;The changes contained in the revised instructions are far less drastic than the initial proposed revisions.&nbsp;The strict liability instruction essentially mirrors current instruction PL 5 and maintains a distinction between design defects and manufacturing defects. &nbsp;The revised proposed instruction also continues to list both the consumer expectations and risk/benefit tests.&nbsp;However, the Committee notes explain that pending further development in the law, the Committee has not taken a position on whether the risk/benefit test and consumer expectation test should be given together or in the alternative.&nbsp;The Committee also did not take a position on whether the risk/benefit test is a standard for proving a defect or an affirmative defense.&nbsp;Accordingly, the proposed instructions include the risk/benefit test in the instruction for design defect as well as in a separate defense instruction.&nbsp;The proposed instructions make clear that the jury should not be instructed on the risk/benefit test both as a defect standard and a defense.</p> <p align="left">Another change included in the revised proposed instructions is a specific set of negligence based product liability instructions.&nbsp;Under the existing product liability instructions, the parties were forced to shoehorn products liability concepts into the standard instructions for general negligence.&nbsp;</p> <p align="left">Further, due to the Legislature&rsquo;s statutory overruling of <i>D&rsquo;Amario v. Ford Motor Co</i>., 806 So.2d 424 (Fla. 2001), the Committee scrapped the very wordy and unbalanced crashworthiness instruction.&nbsp;The revised proposed instructions now only include a short statement of crashworthiness in the summary of claims and explain that the no special product liability instructions should be given.&nbsp;Rather, the Committee Notes for the instruction explain that the standard instructions applicable in other cases should be given in crashworthiness cases.</p> <p align="left">The Committee will be submitting the revised proposed rule to the Florida Supreme Court. The Court will then open a period for additional comment on the proposed rules before issuing its opinion on the proposal.</p> <p align="left">Check back with us for updates.</p>Products Liability Blog08 Apr 2013 00:00:00 -0800