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Florida Supreme Court Protecting the Rights of Citizens


In another victory for the injured victims of our State, yesterday the Florida Supreme Court issued an opinion in a products liability case, Aubin v. Union Carbide, which reversed an appellate court’s adoption of more stringent proof requirements for injured plaintiffs. The decision, which reinstated a jury verdict of over $6.6 million dollars, clarified conflicting opinions between Florida’s Third District Court of Appeals and Florida’s Fourth District Court of Appeals.

The underlying lawsuit was brought by William P. Aubin, a former construction supervisor exposed to asbestos fibers from drywall joint compounds he did not know contained asbestos. In 2008, Mr. Aubin was diagnosed with a fatal, incurable form of cancer, peritoneal mesothelioma. He subsequently sued several defendants, including Union Carbide, the maker of the asbestos. After years of litigation the case went to trial, where a Miami-Dade County jury returned a $14 million dollar verdict and attributed 46.25% of the fault to Union Carbide and the rest to other defendants with whom Aubin had previously settled. The appellate court, however, took away the jury’s verdict.

Vintage brass scales of justice in spotlight on dark wood against a black background, selected focus and narrow depth of Field, copy space

The main issue in Aubin centered on whether the trial court should have applied the “consumer expectations test,” or the “risk utility test” to a design defect strict liability case. With the “consumer expectations test,” which had been previously applied by the Florida Supreme Court in a 1976 case, West v. Caterpillar Tractor Co., and the Fourth District Court of Appeals in 2006, McConnell v. Union Carbide Corp., the jury considers whether a product is unreasonably dangerous in design because it failed to perform as safely as an ordinary consumer would expect.

As the Court pointed out, “this test intrinsically recognizes that a manufacturer plays a central role in establishing the consumers’ expectations for a particular product,” which is what motivated the consumers to buy it in the first place.

The “risk utility test” is a somewhat more modern approach, where the plaintiff must prove that the foreseeable risks of harm posed by the product could have been reduced or avoided by a reasonable alternative design. One places the responsibility on the manufacturer, who is in the best position to protect against the harm, while the other places the burden on the injured person. In overruling the Third District Court of Appeals, the Court held that the “consumer expectations test” should be applied in design defect litigation.

Ultimately, the Supreme Court’s decision is a resounding success in clarifying the law on design defect cases in the State of Florida and ensuring that product manufacturers bear the responsibility for designing unreasonably dangerous products and for the manner in which they craft the image of their product to the public. The decision is another example of the great importance of an enlightened judiciary to the citizens of Florida.

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Posted By: Lauren Schumacher