Can a consumer ever really expect such a thing?

FLORIDA LAW WEEKLY

VOLUME 45, NUMBER 41

CASES FROM THE WEEK OCTOBER 16, 2020

CONSUMER EXPECTATIONS TEST WILL NOT ALWAYS APPLY IN CASES INVOLVING COMPLEX PRODUCTS (HERE, A COMPLEX MEDICAL DEVICE)—TRIAL COURT ERRED IN ALLOWING THE PARTIES THE OPTION TO HAVE A PEREMPTORY STRIKE ON THE ALTERNATES AFTER THE JURY WAS SWORN, AND THE COURT EXCUSED A JUROR MID TRIAL--COURT RULED THE ERROR WAS HARMLESS.

Cavanaugh v. Stryker, 45 Fla. L Weekly D2278 (Fla. 4th DCA October 7, 2020):

In this tragic case where a man died while undergoing lung removal surgery at Lawnwood Hospital, the manufacturer defendant’s medical device—intended to collect and dispose of surgical waste fluid—was not intended to be connected or used during passive chest drainage because the suction was too great.

The plaintiffs settled with the hospital, and then sued Stryker, asserting that its Neptune 2 suction product—a product that was not approved by the FDA--was defective. The Neptune 2 had a warning label stating that it should not be used for high-flow suction, warning that it could result in severe injury or death. The surgeon testified that he did not know the Neptune 2 was a high-suction device.

Plaintiff’s expert testified that the warning was confusing, and failed to inform the user that even at its lowest setting, it should not be connected to a chest tube or a closed-wound drain. The expert also testified that because the user interface was confusing, it could lead to inadvertent misuse.

The manufacturer defended stating that the man’s death was attributable to the medical staff’s misuse of the product, and not to a defective design or insufficient warnings. The jury found for the defendant.

The two issues on appeal related to a disputed jury instruction, and to the replacement of a juror in the middle of trial.

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The plaintiff proposed the trial court give the standard design defect jury instruction found in Fla. Std. Jury Instr. 403.7(b), containing both the risk utility test and the consumer expectations test (the version before the Supreme Court’s 2020 amendments).

The manufacturer’s proposed jury instruction contained the risk utility part of the first paragraph of 403.7(b), and a portion of the consumer expectations test stating that “A product is unreasonably dangerous if the risk of danger in the design outweighs the benefit.”

The trial judge gave the defendant’s instruction. On appeal, the plaintiff asserted that Aubin requires that a jury be instructed on the consumer expectations test.

Under the consumer expectations test, a product is considered to be defective where the product is in a condition that is not contemplated by the ultimate consumer, and will be unreasonably dangerous to the consumer, at the time it leaves the seller’s hands. The test then considers whether the product design is unreasonably dangerous, because it failed to perform as safely as an ordinary consumer would expect, when used intended or in a foreseeably reasonable manner. The test intrinsically recognizes that a manufacturer plays a central role in establishing the consumer’s expectations test.

In Aubin, the Supreme Court concluded that the Third Restatement’s risk utility test and establishment of a reasonable alternative design mandate, were not requirements for finding strict liability, further explaining that nothing precludes the parties from presenting evidence concerning whether a reasonable alternative design existed, and whether the benefit of the product’s design outweighed any risks of injury or death.

The court found this case distinguishable from Aubin which involved asbestos, noting that asbestos is not considered a complex product. The court also observed that Aubin did not expressly disagree or disapprove of cases that recognize that some products may be too complex for the logical application of the consumer expectations test.

The Fourth District read Aubin as establishing that a plaintiff could elect to prove a design defect claim under the consumer expectations test in any case where an ordinary consumer could form expectations about the product at issue. It noted that Aubin did not decide whether the consumer expectations test could be logically applied to a complex medical device accessible to the consumer only through a medical professional.

Finding the consumer expectations test could not be logically applied to these facts, the court found the instruction the trial court gave was proper. Even if some version of the consumer expectations test did apply to the complex medical product at issue, the standard instruction would have had to have been modified to inform the jury that the relevant expectations in a case like this, are those of the health care professional (the learned intermediary) and not the actual consumer.

The other issue involved a juror who had pre-paid vacation plans at the end of the trial. The juror agreed to deliberate for half a day on Friday, and was going to be back on Monday. The plaintiff argued that it would be better to let the juror go on his vacation and replace him with one of the two alternates.

However, once the trial court agreed to do this, it then allowed the defendant the ability to exercise another peremptory strike, essentially allowing the defendant to choose the alternate (instead of just using the first alternate).

The court found that peremptory challenges cannot be granted once the jury is sworn. It also stated that alternate jurors are to serve in the order in which they were seated.

While the court found the trial court’s procedure empaneling the second alternate was error, it found the error was harmless. Judge Artau dissented from that part of the ruling.

NO CLAIM FILE ACCESS UNTIL COURT DETERMINES COVERAGE.

Safepoint Ins. Co. v. Gonzalez, 45 Fla. L Weekly D2271 (Fla. 3rd DCA October 7, 2020):

The trial judge departed from the essential requirements of law by compelling disclosure of privileged claims file materials in the underlying breach of contract suit, prior to making a coverage determination. Because an insurer’s claim file constitutes work product, it is generally protected from discovery until coverage is resolved.