Florida Supreme Court Embraces 'Consumer-Expectation' Test For Design Defect Claims

The Florida Supreme Court recently issued a significant decision that will affect all strict product liability/design defect cases litigated in Florida. In Aubin v. Union Carbide, decided October 29, 2015, the Court rejected the risk-utility test in favor of the consumer-expectation test. The consumer-expectation test examines whether a product is unreasonably dangerous because it failed to perform as safely as a reasonable consumer would expect when using it as intended or in a reasonably foreseeable manner. The risk-utility test, on the other hand, poses a higher burden of proof for plaintiffs. It focuses on whether the utility of a product outweighs any risk of using it. It also requires the plaintiff to prove that a reasonable alternative design existed. Conversely, under the consumer-expectation test, the plaintiff is not required to prove a reasonable alternative design existed. In sum, the Court's decision in Aubin, made it easier for plaintiffs to claim that a defendant's product is defectively designed.

In Aubin, the plaintiff brought a product liability action against Union Carbide alleging strict liability/design defect, strict liability failure to warn and negligent failure to warn. A Miami-Dade County jury rendered a verdict against Union Carbide, which appealed to the Third District Court of Appeal. The intermediate appellate court reversed and vacated the verdict. The Florida Supreme Court later reinstated the verdict, holding that the consumer-expectation test applied, rather than the risk-utility test, and that the intermediate court decision was in conflict with prior Florida Supreme Court case law.

Background

The plaintiff worked as a construction supervisor, overseeing residential development in Sarasota, Florida. He claimed he was exposed to asbestos dust created from drywall joint compounds and ceiling texture. Union Carbide produced and sold a type of asbestos that was used in these joint compounds and texturing sprays. Years later, the plaintiff was diagnosed with peritoneal mesothelioma. He filed suit against numerous defendants alleging that his disease was caused by asbestos exposure. Most of the defendants settled and the plaintiff went to trial solely against Union Carbide.

In overruling the intermediate appellate court, the Supreme Court held that the consumer-expectation test, rather than the risk-utility test, applied to product design defect claims. The Court also held that there was sufficient evidence to...