Florida Supreme Court’s renewing a $6.6M Asbestos Case

In a 5-2 ruling issued Oct. 29 in the carefully seen Union Carbide v. Aubin, the state’s high court turned down the Third District Court of Appeal’s application of the “danger energy bill test” for design defect claims, which adds a burden on plaintiffs to show a sensible alternative design.

The decision returned the status quo in the state to the “consumer expectations test” after confusion following the Third District’s contrasting choice and reduces the problem on plaintiffs attempting to prove design flaws, according to trial attorney Eric Rosen of Kelley Uustal.

“Typically in Florida the test you make use of is ‘It’s an unsuccessful design since it failed to carry out as the customer expects,'” Rosen stated. “It concentrates on what the maker is doing and says the manufacturer plays a vital role in the expectations of performance by consumers.”.

The state’s position on the customer expectation test had been established by the Florida Supreme Court in 1976 in West v. Caterpillar and continued in 2006 by the Fourth District in McConnell v. Union Carbide Corp.

Deviating from the West judgment would contradict the policy reasons behind the adoption of the test, namely to make sure that it is the manufacturer of an item and not the injured customer that need to bear the threats of the product, the Supreme Court said.

“The crucial aspect of stringent products liability that resulted in our adoption in West remains true today: the concern of compensating victims of unreasonably unsafe items is put on the makers, who are most able to safeguard versus the threat of damage, and not on the consumer injured by the item,” the Supreme Court stated.

Rosen said that under the judgment, the alternative design defense is still offered to a producer, and a complainant can still recommend such an argument.

“The producer can remain to state ‘There was no other way making this,’ under Union Carbide, however the burden isn’t on the complainant,” Rosen stated. “A defense could be, ‘this is a cutting edge design and there is no much safer alternative design,’ and a plaintiff may come forward and suggest a safer alternative design, however it’s not a requirement to prove your case.”.

The Third District’s decision in Aubin had provided defense attorneys hope that courts may move toward the more defense-friendly threat utility test. Under that test, complainants need to reveal that a safer alternative design exists that the manufacturer might have made use of.

“The Third District’s ruling was a huge win for the defense bar, just to be nullified by the Florida Supreme Court in a very impactful method,” Chris Kolos of Holland & Knight LLP said.

The case of William Aubin is based upon his usage– as a house contractor in the 1970s– of a Georgia-Pacific spray product made in part from SG-210 Calidria, which consisted of processed asbestos mined by Union Carbide. The high court granted him an assigned amount, based on Union Carbide’s evaluated responsibility, of a $14.2 million jury award for damages before the appeals panel reversed and remanded the case.

The SG-210 Calidria was processed in a way to yield an asbestos fiber that had a distinct shape and structure, according to the ruling. The fibers were pulled apart, which enhanced the performance of the item but also made it most likely to create respirable dust that causes asbestosis and mesothelioma cancer, according to the opinion.

“In this case you have a producer that took an inherently harmful product and made it more unsafe,” Rosen said. “It’s similar to tobacco cases, where smoking is naturally unsafe, however exactly what the manufacturer does to the product with additives to make it more addictive increases the threat of the product.”.

In the judgment, the Supreme Court likewise addressed the maker’s duty to warn and the discovered intermediary doctrine, which Kolos said is insightful guidance for future item liability cases.

Union Carbide had offered its asbestos product to intermediary manufacturers, which made use of the asbestos to make the final products purchased by consumers. There was a concern as to how far the manufacturer’s responsibility to warn extends. Aubin requested that the trial court instruct jurors that Union Carbide had a responsibility to caution completion user, while the maker stated it was entitled to the learned intermediary defense, which mentions that a producer has fulfilled its duty of care by warning an intermediary and not the consumer.

Kolos stated the Supreme Court clarified the law on this problem by ruling that a jury needs to be provided a chance to assess whether a maker properly warned of its item’s dangers.

“The Supreme Court is saying no, that’s not a complete defense, and there’s a lot of accurate analysis that enters into that,” Kolos stated.

Case Info: The case is Aubin v. Union Carbide Corp., case number SC12-2075, in the Supreme Court of Florida.