In 2015, the Florida Supreme Court issued a decision in Aubin v. Union Carbide, which mandated that juries be instructed on the “consumer expectations test.” On November 28, 2017, seven years after initially filing her lawsuit, a plaintiff in  Miami-Dade County won a $6.9 million asbestos verdict in a retrial based on the Aubin decision, in Font v. Union Carbide, Case No. 2010-041578-CA-01, This was the plaintiff’s second “bite at the apple,” as the first trial had resulted in a defense verdict for Union Carbide.


In the case underlying the Font appeal, Aubin, the Florida Supreme Court rejected sole reliance on the Third Restatement of Torts’ “risk utility test,” under which a plaintiff must demonstrate that “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Aubin v. Union Carbide Corp., 177 So.3d 489, 505 (Fla. 2015). Instead, the Florida Supreme Court required courts to use the Second Restatement of Torts’ consumer expectations test, which asks whether a product is unreasonably dangerous in design because it failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner. Id. at 503. As described by the Florida Supreme Court in Aubin, “[t]he critical difference regarding design defects between the Second Restatement and the Third Restatement is that the Third Restatement not only replaces the consumer expectations test with the risk utility test but also requires the plaintiff to demonstrate the existence of a ‘reasonable alternative design.’ Id. at 505.


In rejecting sole reliance on the Third Restatement’s risk utility test, the Florida Supreme Court in Aubin explained that the original reason for imposing strict liability for defective and unreasonably dangerous products was to relieve injured consumers from the difficulties of proving negligence by the product manufacturer. Id. at 506-507. However, the Third Restatement eliminates consideration of consumer expectations, and, in fact, “imposes a higher burden on consumers to prove design defect than exists in negligence cases” by adding the additional requirement that an injured consumer “prove that there was a ‘reasonable alternative design’ available to the product’s manufacturer.” Id. at 506.


Two years later, the potential impact of the Aubin decision on asbestos litigation in Florida has become apparent in cases such as  Font v. Union Carbide. In Font, the plaintiff, individually and on behalf of her father’s estate, filed a wrongful death action against Union Carbide and other asbestos manufacturers and distributors for negligence and strict liability based on an alleged failure to warn, and for the manufacture of an allegedly defective product. The plaintiff alleged that her father died of malignant pleural mesothelioma as a result of exposure to joint compound products and texture sprays designed, manufactured, and supplied by the defendants that contained Union Carbide’s asbestos.


At trial, the plaintiff requested that the standard jury instruction provided by the Supreme Court Committee on Standard Jury Instruction in Civil Cases be given to the jury verbatim. That instruction defined “unreasonably dangerous” under both the risk utility and consumer expectations tests and states in pertinent part: “A product is unreasonably dangerous because of its design if the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer or the risk of danger in the design outweighs the benefits.” The plaintiff argued that she was entitled to submit her case to the jury on both theories of strict liability; however, Union Carbide argued that the Third District had previously rejected the consumer expectations test and determined that the appropriate standard was the risk utility test. Therefore, Union Carbide requested that the case be submitted to the jury only on the risk utility theory. The trial court denied the plaintiff’s request to include the consumer expectations instruction, and the jury returned a verdict in favor of Union Carbide, which the plaintiff appealed.


On appeal, the plaintiff sought reversal because the trial court did not instruct the jury on the consumer expectations test. The Third District affirmed the lower court’s decision, and the plaintiff petitioned the Florida Supreme Court for review. The Florida Supreme Court accepted jurisdiction of the matter, quashed the lower court’s decision, and remanded to the Third District for reconsideration in accordance with Aubin. Ultimately, on July 27, 2016, the Third District reversed the judgment in favor of Union Carbide and remanded to the trial court, with directions that the plaintiff’s strict liability claim be retried before a jury instructed on both the consumer expectations test and the risk utility test as alternative definitions of design defect.


The second trial was interrupted by the Thanksgiving holiday which, significantly, allowed for long closing arguments to refresh the jury’s memory after an 11-day break between the majority of the trial and closings.  On retrial, the jury returned a verdict for the plaintiff to the tune of $6.9 million ($2.8 million of which was assigned to Union Carbide).


In Aubin, the Florida Supreme Court discussed the premise that the “consumer expectations test does not inherently favor either party.” Based on the outcome in Font, that may not necessarily be true, and the Aubin decision could have far-reaching effects on asbestos litigation.  Nevertheless, at this juncture, the full impact of Aubin remains to be seen.