Aubin v. Union Carbide Corp.

• Decision Date: 29 October 2015
• Docket Number: No. SC12–2075.,SC12–2075.
• Citation: 177 So.3d 489
• Parties: William P. AUBIN, Petitioner, v. UNION CARBIDE CORPORATION, Respondent.
• Court: Florida Supreme Court

177 So.3d 489

William P. AUBIN, Petitioner,

v.UNION CARBIDE CORPORATION, Respondent.

No. SC12–2075.

Supreme Court of Florida.

Oct. 29, 2015.

James Louis Ferraro and Juan Pablo Bauta, II of The Ferraro Law Firm, P.A., Miami, FL, for Petitioner.

Matthew John Conigliaro of Carlton Fields, P.A., Tampa, FL, and Dean Angelo Morande of Carlton Fields, P.A., West Palm Beach, FL, for Respondent.

Philip Mead Burlington of Burlington & Rockenbach, P.A., West Palm Beach, FL, and Larry Scott Stewart of Stewart Tilghman Fox Bianchi & Cain, P.A., Miami, FL, for Amicus Curiae Florida Justice Association.

Gary M. Farmer of Farmer Jaffe Weissing Edwards Fistos & Lehrman, Fort Lauderdale, FL, for Amicus Curiae Florida Consumer Action Network.

Christina Marie Martin, Palm Beach Gardens, FL, for Amicus Curiae Pacific Legal Foundation.

Frank Cruz–Alvarez of Shook Hardy & Bacon L.L.P., Miami, FL, for Amici Curiae The Chamber of Commerce of the United States of America, Coalition for Litigation Justice, Inc., Pharmaceutical Research and Manufacturers of America, and American Chemistry Council.

PARIENTE, J.

William P. Aubin contracted peritoneal mesothelioma

—an incurable, terminal disease—which he claimed was caused by his exposure to SG–210 Calidria, an asbestos product designed and manufactured by Union Carbide Corporation. The jury returned a verdict for Aubin and determined that Union Carbide was liable for Aubin's damages, in part, under theories of both negligence and strict liability defective design and failure to warn.

In Union Carbide Corp. v. Aubin, 97 So.3d 886 (Fla. 3d DCA 2012), the Third District Court of Appeal reversed the jury verdict and $6,624,150 judgment in Aubin's favor, after making three key holdings: (1) the trial court erred in failing to apply the Restatement (Third) of Torts ("Third Restatement"), which exclusively adopts the "risk utility" test for a design defect claim and imposes on plaintiffs the requirement of proving a reasonable alternative design; (2) the design defect was not a cause of Aubin's damages; and (3) the jury instructions given by the trial court regarding the failure to warn were misleading because they failed to discuss Union Carbide's learned intermediary defense—a doctrine setting forth the circumstances under which a manufacturer could discharge its duty to warn the end user by reasonably relying on an intermediary, who has received and has knowledge of the extent of the danger.¹ The Third District's decision creates multiple points of express and direct conflict with decisions of this Court and of other district courts of appeal.²

First, in applying the Third Restatement to strict products liability cases, the Third District's decision in Aubin conflicts with our holding in West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), and with the Fourth District Court of Appeal's decision in McConnell v. Union Carbide Corp., 937 So.2d 148 (Fla. 4th DCA 2006), both of which applied the Restatement (Second) of Torts ("Second Restatement") to strict products liability cases and utilized the "consumer expectations" test as an essential part of determining a design defect. Resolving this conflict in the law, we conclude that the definition of design defect first enunciated in West, which utilizes the consumer expectations test, instead of utilizing the risk utility test and requiring proof of a reasonable alternative design, best vindicates the purposes underlying the doctrine of strict liability.³ We thus disapprove of the Third District's adoption of the risk utility test for design defects, as enunciated in the Third Restatement.

Second, in determining that Aubin failed to show that the asbestos designed and manufactured by Union Carbide was the legal cause of Aubin's mesothelioma

, the Third District erroneously merged the Third Restatement's definition of design defect with causation, which again creates a conflict as the Third Restatement's definition of a design defect is different than the definition Florida courts have previously used. After applying a proper legal analysis, we conclude that Aubin did present sufficient evidence of causation, and thus the determination of legal causation was properly a jury question based on conflicting evidence. We accordingly further disapprove that aspect of the Third District's opinion, including the conclusion that Union Carbide was entitled to a directed verdict on the design defect claim.

Finally, in reversing the judgment for the failure to warn claim based on the failure to instruct the jury on the learned intermediary defense, the Third District's decision conflicts with the portion of McConnell that holds that the learned intermediary defense is not applicable in this type of asbestos case. See McConnell, 937 So.2d at 156. Although we approve the Third District's holding that the jury could be instructed on the learned intermediary doctrine, we conclude that this issue does not require reversal of the verdict because, while Union Carbide could argue that the learned intermediary defense is applicable to this type of case, it failed to submit proposed jury instructions that accurately discussed the defense. Therefore, the trial court did not err in failing to give Union Carbide's proposed special jury instructions. In looking to the jury instructions as a whole, we conclude that the trial court's instructions were not so misleading as to require a reversal.

Accordingly, we quash the decision of the Third District in Aubin and disapprove adopting the Third Restatement's approach, which uses the risk utility test, instead of the consumer expectations test, and requires plaintiffs to establish a reasonable alternative of how a product could have been designed. We also disapprove of the Third District's prior cases of Kohler Co. v. Marcotte, 907 So.2d 596 (Fla. 3d DCA 2005), and Agrofollajes, S.A. v. E.I. Du Pont de Nemours & Co., 48 So.3d 976 (Fla. 3d DCA 2010), as to the adoption of the Third Restatement. As to the failure to warn claim, we agree with the Third District's discussion of the learned intermediary defense, which is in accordance with the Fourth District's decision in Union Carbide Corp. v. Kavanaugh, 879 So.2d 42, 44–45 (Fla. 4th DCA 2004). To the extent that the Fourth District's opinion in McConnell holds that the learned intermediary defense is not applicable in asbestos cases, we disapprove that portion of McConnell. As the Third District erroneously reversed the final judgment, we remand this case to the Third District with directions that the judgment be reinstated.

FACTS

William P. Aubin worked as a construction supervisor for his father's company between 1972 and 1974, overseeing construction of the residential development Desoto Lakes in Sarasota, Florida. While at work on the construction site, Aubin was exposed to and inhaled respirable dust created by the sanding and sweeping of drywall joint compounds and spraying of ceiling texture sprays. Aubin did not know that these joint compounds and texture sprays contained asbestos and thus did not know that he was inhaling asbestos fibers. In 2008, Aubin was diagnosed with malignant peritoneal mesothelioma

, which is a fatal, incurable form of cancer in the lining of the abdomen.

Aubin filed suit against numerous defendants, including Union Carbide, alleging that his disease was caused by asbestos in joint compounds and texture sprays designed, manufactured, and sold by third parties (such as Georgia–Pacific) that contained asbestos supplied by Union Carbide. After resolving his claims against the other defendants through settlement or dismissal, Aubin went to trial solely against Union Carbide on theories of strict liability design defect, strict liability failure to warn, and negligent failure to warn.

The evidence showed that Union Carbide began mining a naturally occurring, unique short fiber form of chrysotile asbestos in 1963 from a deposit in California. After removing the asbestos from the ground, Union Carbide passed it through a centrifuge multiple times to separate the fibers, a process that caused the asbestos to become more efficient as a thickening agent. Union Carbide then formed the asbestos into pellets to reduce dust, packaged it in bags, and sold it in bulk under the trade name SG–210 Calidria for use in many products, including joint compounds and texture sprays.

Union Carbide's asbestos was 99.9% pure in comparison to competitors' asbestos that contained filler. In its marketing literature to manufacturers of products such as the joint compounds and texture sprays at issue, Union Carbide focused on its asbestos's purity and natural properties. For example, a 1971 Union Carbide report explained the "Special Properties of ‘Calidria’ Asbestos" as follows:

Most asbestos materials, marketed commercially for use in tape joint compounds, contain rock dust and other abrasive type fillers, that have no specific desirable effects on joint compound performance. "Calidria" SG–210 and SG–130 asbestos are produced by a proprietary manufacturing process that yields essentially a pure asbestos fiber content. The SG–210 product is preferred for ready-mix smoothness and water absorption efficiency. Another feature is the unique shape and physical structure of the "Calidria" asbestos fibers.

The micro-size particles are actually "fibrils" and the respective stems are hollow; hence, the fibers have a tremendous water absorption capacity. In like manner, there are more "active sites" for other inert fillers to associate with, in formulated film formation. As a result "Calidria" asbestos generally goes twice as far, on a pound for pound basis, as the Canadian and other commercial types used in tape joint compounds. It is these physical properties that enhance the wet joint compound workability and performance properties mentioned above.

While Union Carbide specifically marketed its product to intermediary manufacturers for use of the asbestos in products such as joint compounds, Union...