[Practitioner Pointer] Perilous Products: Inside the Dizzying World of Dangerous Product Litigation
Consumer products fail, often with disastrous results. Limb loss, paralysis, and death are all too common. Because of the complex issues involved, finding a trial attorney with product experience is vital. In litigation, we must master (among other things): Evidence, Expertise, and Evolution.
EvidenceThe need to preserve evidence is legion among product liability trial lawyers. Sometimes, the ability to preserve critical evidence is simply beyond our control. Thankfully, state and federal authorities provide support to those who seek to protect evidence as well as punishment for those who seek to destroy it. See League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla. 2015); James v. U.S. Airways, Inc., 375 F. Supp. 2d 1352 (M.D. Fla. 2005). When litigation is imminent, the party controlling evidence is likely to take on a duty to preserve the same. See Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So.2d 547, 549 (Fla. 4th DCA 2005) (finding, “a defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim”). The oft-cited “spoliation letter” provides powerful evidence of the latest date the recipient became aware of the duty to preserve.
The usefulness of the spoliation letter is not limited to potential litigants—third parties often possess critical evidence. Indeed, these third parties may be subject to civil liability for mishandling or destroying evidence. See James, 375 F. Supp. 2d at 1354 (finding, “third party spoliation claims, i.e. claims where the underlying action is against another defendant, are permitted even under this cloud of conflicting authority.”). However, litigants may need to show more than a third party’s “reasonable foreseeability” of the claim in order to trigger an independent cause of action. See Shamrock-Shamrock, Inc. v. Remark, 271 So. 3d 1200, 1206 (Fla. 5th DCA 2019) (declining to find a duty owed by third-party based solely upon foreseeability of litigation). This is why it is critical to send spoliation letters to both parties and nonparties alike.
ExpertiseProduct firms often aim for flexibility over brute force. Nimble practitioners can develop a keen sense for problems and solutions across a wide array of devices and technologies. This makes sense, as potentially dangerous products vary wildly in their composition and failure modes. From tires to tractor-trailers, practitioners carry a special burden to become “mini-experts,” studying each industry that permitted a dangerous product to come to market. This includes the close inspection of processes underlying design, materials, testing, production, regulation (or lack thereof), advertising, sales, and more.
This author routinely “goes back to school,” enrolling in survey courses, online education, trade skills training—whatever it takes to better understand the marketplace. Training guides, handbooks, and published materials are consulted regularly in an effort to better understand how a particular product was developed, assembled, and sold. So-called "exemplars" (new versions identical to the defective product) are often purchased, disassembled, and examined, all in search of answers to key questions. Ultimately, professionals and experts are essential to a practical and pragmatic determination of the source of a defect.
EvolutionFlorida law supports a variety of different claims which may be brought to recover for harms and losses caused by a defective product. Broadly speaking, strict liability and standard negligence claims are most commonly employed in product actions. Within strict product liability specifically, three categories or “families” of claims appear frequently: (1) manufacturing defect, (2) design defect, and (3) failure to warn. See e.g. Force v. Ford Motor Co., 879 So. 2d 103, 106 (Fla. 5th DCA 2004). The genesis and development of these categories within Florida law can be traced at least as far back as 1965, to the publication of the American Law Institute’s Restatement (Second) of Torts. See West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80, 87 (Fla. 1976) (adopting Restatement (Second) of Torts § 402A).
Even with this history, Florida’s strict products liability law is not immutable. As recently as 2012, the Florida Supreme Court lamented the “state of flux” inherent in the jury's evaluation of a "design" action. See In re Standard Jury Instructions in Civil Cases--Report No. 09-10 (Prod. Liab.), 91 So. 3d 785, 789 (Fla. 2012) (Pariente, J. concurring). The design defect standard mired the uninitiated, both practitioners and Courts alike, for years. It was only recently that the Florida Supreme Court put this issue to bed, holding that Plaintiffs are categorically entitled to utilize the Consumer Expectations Test in evaluating claims of product defect. Aubin v. Union Carbide Corp., 177 So. 3d 489, 510 (Fla. 2015) (holding, “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.”). Even so, risk/utility remains unsettled as a means of defense, requiring the product practitioner to ensure jury instructions best suited to the needs of the individual case.