Recently, the Florida Fourth District Court of Appeal opened the door to moving away from the consumer expectations test and adopting the risk-utility test for strict liability design defect claims involving complex products. While the decision is limited, it is a significant move that could help pave the way for applying the risk-utility test to more product liability claims asserting design defects.
There are two tests for proving design defects: “consumer expectations” and “risk-utility.” The consumer expectations test considers whether a product is unreasonably dangerous because it failed “to perform as safely as an ordinary consumer would expect when us[ing it] as intended or [] in a reasonably foreseeable manner.”[1] On the other hand, the risk-utility test shifts the focus on whether the utility of a product outweighs any risk of using it.[2]
Background on Proving Design Defect in Florida
In 1997, the American Law Institute (ALI) published the Third Restatement of Torts for product liability. One of its more significant and controversial changes was adoption of the risk-utility test. Manufacturers favor the risk-utility test because it offers more objective factors, such as the nature and usefulness of the product, the cost of the product, the costs associated with added safety and the obviousness of the danger associated with the product. The consumer expectations test is more subjective because it relies upon the ordinary consumer’s expectations of product safety. The consumer expectations test is problematic because some products can be either too complex or technical for an ordinary consumer to have formed a reasonable expectation on how the product should perform.
The Florida Supreme Court considered whether to adopt the Third Restatement’s risk-utility test in 2015. In Aubin v. Union Carbide Corp.,[3] the Court specifically adopted the consumer expectations test to prove design defects. While some tend to confuse this decision as mandating only using the consumer expectations test, the Court kept open the opportunity for parties to present evidence using the risk-utility standard as well. In fact, before a recent change in Feb. 2020, the Florida Standard Jury Instruction allowed for both the consumer expectations test and risk-utility test as alternative definitions of design defect.
Even the recent change to the jury instructions further shows that Aubin did not hold that the consumer expectations test is the exclusive test for design defect. The Supreme Court amended the jury instructions by deleting “and” between the consumer expectations and risk-utility tests “to reflect that parties may choose to prove/defend a design defect claim through the risk [utility] test but is not required to do so pursuant to [Aubin].”[4] Despite this change, the committee on jury instructions states “it takes no position on whether both the consumer expectations and risk[ utility] tests should be given alternatively or together.”[5] The question remains whether risk-utility test could be used independently without using the consumer expectations test.
The Case
In Cavanaugh v. Stryker Corp.,[6] the Fourth District affirmed a defense verdict in favor of a medical device manufacturer and, in the process, approved of the trial court’s application of the risk-utility test and its rejection of the consumer expectations test in the jury instructions. This is the first...
