Florida ranks third on 2015-2016 Judicial Hellholes report, asbestos ruling criticized

By Vimbai Chikomo | Mar 30, 2016

TALLAHASSEE – Florida landed the No. 3 spot on the 2015-2016 Judicial Hellholes report by the American Tort Reform Foundation (ATRF). According to the report, the Florida Supreme Court habitually issues liability-expanding rulings “out of sync” with courts in other states.

“Even when the state legislature, which is heavily influenced by trial lawyers, manages to enact reforms, the state’s high court nullifies them in favor of boundless liability in the Sunshine State,” the report stated. “In 2015 the court kept a vague, plaintiff-friendly standard for assessing whether a product is defective, permitted inflated awards for future medical expenses, and placed liability on landlords for the acts of criminals.”

One of the 2015 cases the report was referring to was the Florida Supreme Court’s decision to reinstate a jury’s verdict awarding a man millions in damages after he was diagnosed with mesothelioma. The case, Aubin vs. Union Carbide Corp., stirred up debate on appropriate application of the Third Restatement of Torts.

“(The Florida Supreme Court) reinstated a $6.6 million mesothelioma verdict against a supplier of asbestos and refused to adopt what academics are advocating in terms of what liability should be for a manufacturer from a third restatement of torts,” William Large, president of the Florida Justice Reform Institute, told the Florida Record.

William Aubin, a former home builder, worked as a construction supervisor for his father’s company between 1972 and 1974. He contracted mesothelioma allegedly by using a Georgia-Pacific spray product made in part from SG-210 Calidria, which contained processed asbestos mined by Union Carbide, a chemical manufacturing company. Aubin contended that he was unaware that the product contained asbestos, and therefore, did not know he was inhaling asbestos fibers. He was diagnosed with malignant peritoneal mesothelioma in 2008.

Aubin sued Union Carbide and other defendants, alleging his illness was caused by the asbestos in joint compounds and texture sprays designed, manufactured and sold by Georgia-Pacific containing asbestos supplied by Union Carbide. Aubin settled and dismissed the other defendant, and went solely after Union Carbide claiming strict liability design defect, strict liability failure to warn and negligent failure to warn.

Evidence presented at trial revealed that Union Carbide mined a form of chrysotile asbestos and used a special technique to separate the fibers. The process allowed the asbestos to become more suitable as a thickening agent. Then the company reduced the asbestos dust by forming asbestos pellets and sold the bulk product as SG-210 Calidria, which was used in many products by intermediary manufacturers.

Union Carbide specifically marketed its product to intermediary manufacturers like Georgia-Pacific for use in products such as joint compounds, but was not involved in the formulation, packaging or sale of the end products.

In its literature accompanying SG-210 Calidria, Union Carbide stated that the product was processed and therefore differed from a raw product.

The trial jury determined that Union Carbide was liable for Aubin’s disease and awarded him $6.6 million in damages.

In 2012, the verdict was vacated after an appellate court ruled that Aubin failed to present sufficient evidence that the product's defects caused the illness and said the lower court relied on the wrong interpretation of the law in the case.

Aubin appealed and the case went before the state’s highest court. Aubin argued that the appellate court wrongly applied the Third Restatement of Torts to his product liability case.

The core provision of the Third Restatement states that “a product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design or is defective because of inadequate instructions or warnings.”

The main argument debated was whether Union Carbide provided any warning to Georgia Pacific; and if it did, was it sufficient.

Last October, the Florida Supreme Court ruled that the appellate court erred in concluding that the Third Restatement’s test for a defective design exclusively applied to a claim of strict products liability, which generally requires plaintiffs to establish a reasonable alternative on how a product could be designed.

“In sum, we conclude that the Third District erroneously reversed the final judgment and remand this case to the Third District with directions that the judgment be reinstated,” the court stated.

The Judicial Hellholes report frowned on the Florida Supreme Court’s decision, stating the court strayed from most state courts in its ruling by rejecting a risk-utility test used to evaluate product defects and directs the jury to consider the benefits and risks of a products design.

“Instead, a divided Florida Supreme Court applied a vague test based on ‘consumer expectations’ of the safety of a product, which provides no guidance to a jury and can lead to unsound results in cases involving complex products,” the report stated. “Plaintiffs’ law firms are already using the Aubin decision to recruit clients.”

The report also criticized the high court for reinstating the judgment despite recognizing that the trial court had failed to instruct the jury that a supplier of raw materials is responsible for warning the purchaser of foreseeable risks.

“The law does not expect raw material suppliers to directly warn end users of the competed product. This is known as the learned intermediary doctrine,” the report said.

The report ranked New York City Asbestos Litigation second on the Judicial Hellholes list, and California first.

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