Published January 2016
By Ted Babbitt

Aubin v Union Carbide Corp., 40 Fla. L. Weekly S596 (Oct. 29, 2015) is a product liability case in which the plaintiff claimed that he had contracted mesothelioma as a result of using a Union Carbide product called Calidria.  The Third District Court of Appeal in Union Carbide Corp. v Aubin, 97 So. 3rd 866 (Fla. 3rd DCA 2012) reversed a jury verdict holding Union Carbide close to 50% responsible on the theories of negligence, strict liability, defective design and failure to warn.  In reversing the jury verdict, the Third District adopted the Restatement (Third) of Torts which in turn adopts the “risk utility” test in a design defect case.  The risk utility test requires that a plaintiff prove that a reasonable alternative design exists which would not have caused plaintiff’s damages.

The Supreme Court reversed the Third District finding that the application of the Third Restatement conflicted with its holding in West v Capital Tractor Co., 336 So. 2d 80 (Fla. 1976) as well as with the Fourth District Court of Appeals decision in McConnell v Union Carbide Corp., 937 So. 2d 148 (Fla. 4th DCA 2006).  Both of those cases applied the Restatement (Second) of Torts and utilized the “consumer expectations test” rather than the risk utility test in determining whether a design defect existed.  The consumer expectation test holds that a product is unreasonably dangerous in design when it fails to perform as safely as an ordinary consumer would expect when used as intended in a reasonably foreseeable manner.

In West, supra, the intent of the Supreme Court was to adopt a theory of strict liability, holding at S600:

In other words strict liability should be imposed only
when a product the manufacturer places on the
market, knowing that it is to be used without
inspection for defects, proves to have a defect
that causes injury to a human being.  The user
should be protected from unreasonably dangerous
products or from a product fraught with
unexpected dangers.  In order to hold a
manufacturer liable on the theory of strict liability
in tort, the user must establish the manufacturer’s
relationship to the product in question, the defect
and unreasonably dangerous condition of the
product, and the existence of a proximate causal
connection between such condition and the user’s
injuries or damages.

The strict liability aspect in the West opinion further stated at Page S600:

We therefore hold that a manufacturer is strictly
liable in tort when an article he places on the
market, knowing that it is to be used without
inspection for defects, proves to have a defect
that causes injury to a human being.

In Force v Ford Motor Co., 879 So. 2d 103, 106 (Fla. 5th DCA 2004), the Fifth District held that:

[u]nder the consumer-expectation theory a
product is defectively designed if the plaintiff
is able to demonstrate that the product did not
perform as safely as an ordinary consumer
would expect when used in the intended or
reasonably foreseeable manner.  McConnell,
937 So. 2d at 151 (quoting Force, 879 So. 2d
at 106).

The Aubin court finds that the very purpose of its opinion in West was to establish strict liability on the part of the manufacturer in design defect cases and that application of the Third Restatement and its test requiring a reasonable alternative design puts the burden on the plaintiff to show negligence which was never the intent of West.  At S601, the Court holds:

By introducing foresee ability of the risk to the
manufacturer as part of the calculus for design
defect and requiring proof of a “reasonable
alternative design.”  The Third Restatement
reintroduces principles of negligence into
strict liability.

The Court finds that the consumer expectation test, instead of shifting the burden to the plaintiff, more reasonably applies a standard that recognizes that manufacturers have the principle responsibility for the way its product is perceived by consumers and thus induced consumers to purchase or utilize the product.  At S602, the Court holds:

The consumer expectations test intrinsically
recognizes a manufacturer’s central role in
crafting the image to a product and
establishing the consumers’ experience for
that product – a portrayal which in turn
motivates consumers to purchase that
particular product.

In this case, Florida joins the overwhelming majority of state courts which have refused to apply the Third Restatement and have retained the Second Restatement and its consumer expectation test in determining responsibility for a defective product.  At S603, the Court holds:

In considering which approach is in line with
our prior strict liability jurisprudence, we are
in accord with those state supreme courts that
have thoughtfully considered this issue and
determined that the Third Restatement’s new
approach is inconsistent with the rationale
behind the adoption of strict products liability.
The Third Restatement is, in fact, contrary to
this state’s prior precedent.  Decades ago,
this Court recognized that the reason behind
adopting strict products liability was based in
part on the policy that “[t]he manufacturer,
by placing on the market a potentially
dangerous product for use and consumption
and by inducement and promotion encouraging
the use of these products, thereby undertakes
a certain and special responsibility toward the
consuming public who may be injured by it.”
West, 336 So. 2d at 86.  Thus, in approaching
design defect claims, we adhere to the
consumer expectations test, as set forth in
the Second Restatement, and reject the
categorical adoption of the Third Restatement
and its reasonable alternative design requirement. . .

Increasing the burden for injured consumers to
prove their strict liability claims for unreasonably
dangerous products that were placed into the
stream of commerce is contrary to the policy
reasons behind the adoption of strict
liability in West.

Adopting the definition of design defect
advanced by the Third Restatement would
frustrate these policy concerns. . . .

Further, a manufacturer plays a pivotal role
in crafting the image of a product and
establishing the consumers’ expectations
for that product, a portrayal which in turn
motivates consumers to purchase that
particular product.  The consumer
expectations test thus rightly focuses on
the expectations that a manufacturer
creates.  The Third Restatement’s risk
utility test shifts away from this focus and,
in fact, imposes a higher burden on
consumers to prove a design defect than
exists in negligence cases – the exact
opposite of the purposes of adopting
strict products liability in the first place.

This opinion does not mean that evidence cannot be admitted by either side on the question of an alternative design.  The plaintiff can utilize an alternative design to show the feasibility of a safer design and a defendant can utilize the lack of an alternative design to show that the utility of its product outweighs the risk.

This opinion also discusses the rule of the learned intermediary defense in product liability cases and sets forth factual elements of that defense.  At S605 the Court holds:

The manufacturer may be able to rely on an
intermediary to relay the warnings to the
end user but the intermediary must be
“learned”; that is, “one who has knowledge
of the danger and whose position vis-à-vis
the manufacturer and consumer, confers a
duty to convey the requisite warnings to the
consumer.”  Kavanaugh, 879 So. 2d at 44
(quoting Brito v Cty. of Palm Beach, 753 So.
2d 109, 111 n. 1 (Fla. 4th DCA 1998)).
However, as the Third District has recognized
the “learned intermediary doctrine” is not a
complete defense and explained that the
“intermediary’s level of education, knowledge,
expertise, and relationship with end-users
is informative, but not dispositive, on the issue
of whether it was reasonable for the manufacturer
to rely on that intermediary to relay the warning
to end users.”  Aubin, 97 So. 3d at 900.


The Second and Third Restatement both
recognize that a manufacturer may be able to
rely on an intermediary to relay warnings to
the end user, but the critical inquiry is whether
the manufacturer was reasonable in relying
on the intermediary to fully warn the end user
and whether the manufacturer fully warned
the intermediary of the dangers in its product.

This landmark decision provides a learned treatise on the application of the law in product liability cases, rejects the use of the Third Restatement to apply the risk utility test and reinforces the holding in West v Caterpillar Tractor adopting the consumer expectations test.