Products Liability Issues in Florida

PRODUCTS LIABILITY ISSUES IN FLORIDA By: Krista Fowler Acuña, Esq., Senior Partner, Chartwell Law Offices

1. What is Products Liability?

a. Historical Context & Development of Restatement of Torts 402A

In 1964, the American Law Institute (“ALI”) adopted §402A as part of the Restatement Second of Torts. Section 402A was entitled “Special Liability of Seller of Product for Physical Harm to User or Consumer.” It marked the first recognition of privity-free strict liability for sellers of defective products. The major thrust of §402A was to eliminate privity so that a user or consumer could, without having to establish negligence, bring an action against a manufacturer, as well as against any other member of a distributive chain that had sold a product containing a manufacturing defect. It had little to say about design defects or warnings defects, which were not much litigated areas. In 1998, the ALI adopted the Restatement Third of Torts, which almost completely overhauled the Restatement Second as it concerns the liability of commercial sellers of products. For the Restatement of Torts to be the law of a jurisdiction, it must be adopted by the Legislature or the courts. Florida has adopted the Restatement Second.

b. West v. Caterpillar In 1976, the Florida Supreme Court adopted the strict liability doctrine of the Restatement Second of Torts Section 402A when it decided the case of West v. Caterpillar Tractor Company, Inc. 336 So. 2d 80 (Fla. 1976). There, it was alleged the tractor was defective for the lack of audible warning while backing the grader, lack of rear mirrors, and a blind spot. The court held that a manufacturer may be strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. Furthermore, it stated that “contributory or comparative negligence is a defense in a strict liability action if based upon grounds other than the failure of the user to discover the defect in the product or the failure of the user to guard against the possibility of its existence.” The court also found that the strict liability claim can apply to a foreseeable bystander who comes within range of the danger. Finally, the Florida Supreme Court held that the adoption of strict liability does not lead to the end of an action in implied warranty.

c. Restatement Second vs. Restatement Third

Products Liability HOUCK ANDERSON, P.A.

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There are four (4) notable differences between the Restatement Second and Third in regard to determining the existence of a design defect. Under the Restatement Second, a defective design is one that is unreasonably dangerous for its intended use, or foreseeable misuse, for a user or foreseeable bystander. The Restatement Third discusses products claims in four different contexts: (1) proof of a reasonable alternative design; (2) inferences may be drawn in circumstances in which common experience teaches that an inference of defect may be warranted under the specific facts, including the failure of the product to perform its manifestly intended function; (3) courts may, even absent an alternative design, find that some products are not reasonably safe because they present an extremely high degree of danger and provide negligible social utility; and (4) a product design which violates an applicable governmental safety standard is defective without regard to the availability of a reasonable alternative.

d. Shifting Landscape? Pending Changes to Standard Civil Jury Instructions The Restatement Second continues to be followed in Florida. Florida’s current Standard Civil Jury Instruction for Products Liability claims provides that a product may be defective in design by virtue of the “consumer-expectations” test or the “risk-utility” test. Either test can be used, or both, to be decided by the trial court as appropriate. It states:

A product is unreasonably dangerous because of its design if [the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer] [or] [the risk of danger in the design outweighs the benefits].

The “consumer-expectations” test, as reflected in the first part of the jury instruction, provides that a defectively designed product is one that is dangerous beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. In contrast, the risk-utility test provides that a defectively designed product is one where the benefits of the challenged design outweigh the risk of danger inherent in such designs. The Restatement Third differs from the Restatement Second because it rejects the “consumer expectations” test entirely as an independent basis for finding a design defect. Instead, it requires a plaintiff to demonstrate the existence of a reasonable alternative product design, and it defines reasonable alternative product design in terms of the “risk-utility” balancing test only.


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Florida may be on the brink of adopting the Restatement Third. Recently, the 3d DCA reversed a lower court’s decision which, in its jury instructions, permitted the jury to make a finding that a product was defective under the “consumer expectations” test. The 3d DCA applied the Restatement Third, noting that it rejects the “consumer expectations” test as an independent basis for finding a design defect of the particular product at issue there (pesticide) because the product at issue was not capable of understanding by an ordinary consumer. This case is currently pending before the Florida Supreme Court, which has not yet accepted jurisdiction. However, the Committee on Standard Jury Instructions in Civil Cases has submitted a report proposing both new and revised civil jury instructions to be used in product liability actions. These proposed amendments retain the “consumer expectations” test and the “risk-utility” test for product defect. Thus, until these proposed amendments are adopted, or the Supreme Court accepts jurisdiction and rules on recent 3d DCA decision applying the Restatement Third, Florida law on this issue will remain in a state of uncertainty.

e. “It’s all about defects”

The threshold element of every products liability claim is defect. Regardless of the type of product, the alleged defect, the damages being sought, or the jurisdiction where the accident occurs, one thing remains the same- it’s all about the defect. There are three types of defects: (1) Design Defects; (2) Manufacturing Defects; and (3) Inadequate Warnings.

i. Design Defect

Under the Restatement Second, a defective design is one which renders the product unreasonably dangerous for its intended purpose or use, or foreseeable misuse, by a user or foreseeable bystander. This is often referred to as the consumer-expectation theory. The Restatement Third rejects the consumer expectations test as an independent basis for finding a design defect. Instead, it requires a plaintiff to demonstrate the existence of a reasonable alternative product design.

ii. Manufacturing Defect


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A manufacturing defect is a departure from the product’s intended design which renders the product defective, even though all care may have been exercised in the preparation of the product.

iii. Warning/Instruction Defect

A product may also be defective because of the lack of adequate warning or instruction when the foreseeable risks of harm posed by the product could have been avoided by a reasonable warning or instruction provided with the product at the time it left the hands of the manufacturer. This category of defects arises from the concept that a warning or instruction is an integral part of the product itself.

Notably, a warning and an instruction are legally distinctive. An instruction advises a user how to use or operate a product, but does not necessarily provide a warning. A warning, on the other hand, directs the user to the dangers arising from the product use or the failure to appropriately use it, such as the risk of serious injury or death. An alleged defect can arise from the use, lack of use, or inadequacy of an instruction or a warning, or a combination of the two.

The mere existence of a warning or instruction is not necessarily dispositive of the adequacy of same for several reasons. It may be deemed defective by virtue of inadequate:

1. Placement

A warning or instruction can be defective because it is not permanently affixed to the product, but was only included in an instruction or operational manual.

2. Word choice

A warning or instruction can be defective because the language or wording used does not adequately apprise a user of the serious risk of injury or death resulting from a particular use, or its appropriate operation.

3. Language


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A recent development in the warnings and instructions defect category is whether a product’s instructions or warnings should be stated in languages other than English, if marketed in the U.S. This issue may arise in areas of the U.S. where product manufacturers or sellers market their products in other languages, such as Spanish. Where marketing campaigns in cities such as Miami, New York and Los Angeles, have specifically targeted Latino communities and have been done in Spanish, manufacturers have been found liable for failing to provide Spanish warnings and instructions.

4. Pictoral descriptions, colors and lettering

Liability may be premised upon the manner in which a warning or instruction is conveyed. The primary test is whether words alone, including coloring, font size and shape, shapes and pictoral descriptions, are necessary to communicate to the typical user of average intelligence the information necessary to permit the user to avoid the risk and to use the product safely. There are numerous detailed American National Standard Institute (“ANSI”) standards for such details.

5. To warn or not to warn?

A warning may be deemed unnecessary if the danger which arises from the product use or misuse is so obvious that a warning is unnecessary.

f. What is a:

i. Product

Under the Restatement Second, there was no clear-cut statutory definition for a product, manufacturer, and seller. These terms were defined differently from state to state under a common law scheme. However, under the new Restatement Third, these terms have been concisely delineated. Under the Restatement Third, a product is defined as follows:

i. A product is tangible personal property distributed commercially for use or consumption. Other items, such as real property and electricity, are products when the context of their distribution and use is sufficiently analogous to the distribution or use of tangible


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personal property that it is appropriate to apply the rules in this Restatement.

ii. Services, even when provided commercially, are not products. iii. Human blood and human tissue, even when provided

commercially, are not subject to the rules of this Restatement. In Florida, courts have been better at explaining what a product is not than they have at defining what it is. The court has not defined “product” but has discussed the “nature of the item,” stating that it is purchased on the open market, manufactured for profit at the expense of the consuming public, and offered in the stream of commerce.

ii. Manufacturer

One who by labor, art, or skill transforms raw material into some kind of finished product or article of trade. See potential issues Section 8(b) below.

iii. Seller

As defined in Restatement of the Law Third: (a) One sells a product when, in a commercial context, one transfers ownership thereto either for use or consumption or for resale leading to ultimate use or consumption. Commercial product sellers include, but are not limited to, manufacturers, wholesalers, and retailers. (b) One otherwise distributes a product when, in a commercial transaction other than a sale, one provides the product to another either for use or consumption or as a preliminary step leading to ultimate use or consumption. Commercial nonsale product distributors include, but are not limited to, lessors, bailors, and those who provide products to others as a means of promoting either the use or consumption of such products or some other commercial activity. (c) One also sells or otherwise distributes a product when, in a commercial transaction, one provides a combination of products and services and either the transaction taken as a whole, or the product component thereof, satisfies the criteria in Subsection (a) or (b).

iv. Where do lessors fit in?


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A commercial lessor of new and like-new products is generally subject to the rules governing new product sellers.

v. Successor Manufacturers or Sellers

A successor corporation or other business entity that acquires assets of a predecessor corporation or other business entity is subject to liability for harm to persons or property caused by a defective product sold or otherwise distributed commercially by the predecessor if the acquisition (a) is accompanied by an agreement for the successor to assume such liability; or (b) results from a fraudulent conveyance to escape liability for the debts or liabilities of the predecessor; or (c) constitutes a consolidation or merger with the predecessor; or (d) results in the successor becoming a continuation of the predecessor.

2. Theories of Liability- Legal Causes of Action & Elements

a. Negligence

An action for negligence is predicated upon a legal duty owed by the defendant to protect the plaintiff from an unreasonable risk of harm. The extent of the defendant’s duty is defined by the scope of the anticipated risks to which the defendant exposes others. In order to prevail, the plaintiff must demonstrate that he is within the zone of risks that are reasonably foreseeable by others.

In a products liability case based on negligence, the plaintiff must prove that the product was defective, that the defect caused the plaintiff's injury, and that the manufacturer or seller failed to exercise due care. In the context of a products liability case, negligence is the doing of something that a person of ordinary prudence would not have done in the same or similar circumstances or a failure to do something that a person of ordinary prudence would have done in the same or similar circumstances.

b. Strict Liability, or “liability without fault”

Strict liability is liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe. The doctrine of strict liability applies to a plaintiff who is a consumer, user or foreseeable bystander who has been harmed by the defective product. A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defect, proves to have a defect that causes injury to a human being.


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c. Damages

i. Applicable Substantive Law

There is no special category of “products liability damages.” Rather, the nature of recoverable damages will depend upon the applicable substantive law.

In a products liability action based on negligence or strict liability, the damages available are similar to those recoverable in any action in tort. Persons injured by the commission of a tort may be entitled to compensatory damages for any actual injuries sustained, and, except where the circumstances warrant the allowance of punitive or exemplary damages, damages are limited to compensation for such actual injuries. Plaintiffs in products liability actions should be awarded damages that will restore them, as nearly as possible, to the position they would have been in had they not been injured by the defective product.

ii. Physical Harm

In products liability personal injury actions, damages recoverable include all the natural and proximate consequences of the defendant's wrongful act. Plaintiffs may therefore be able to recover damages for both their past and future losses. Those damages referred to as future damages are economic and noneconomic losses that are incurred after a determination of liability by the trier of fact, or after a judgment or verdict.

Economic damages are objectively verifiable monetary losses which include, but are not limited to, loss of earnings, lost services, loss or impairment of future earning capacity, and medical expenses, including expenses already incurred and those likely to be incurred in the future.

Noneconomic damages are compensation for losses that are not easily

expressed in dollars and cents. A recovery for noneconomic loss is not really compensation to make an injured party whole, but is rather compensation to the injured party for loss of the quality of life. Noneconomic damages include, but are not limited to, pain and suffering, future pain and discomfort, disfigurement, loss of enjoyment of life, mental anguish, and loss of consortium. There is no fixed standard for ascertaining the damages recoverable for physical pain and mental suffering; the amount of a recovery is left to the


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sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise of that discretion.

iii. Property Damage

Damages for injury to property other than to the defective product itself are recoverable in a products liability action. Commercial plaintiffs, like ordinary consumers, can recover in strict liability or negligence for property damage. Where there is property damage other than to the defective product itself, the cost of repairs and of cleanup is considered an integral part of the damage and is recoverable in strict liability. However, in order for damages to a plaintiff's property to be recoverable in strict liability, it is not enough that the value of the property be decreased as a result of the product defect, if the product was not unreasonably dangerous to human life or health. See Affirmative Defenses, Economic Loss Rule.

iv. Punitive Damages

Punitive or exemplary damages may be awarded in products liability cases for conduct that is outrageous, because of the defendant's evil motive or reckless indifference to the rights of others; for conduct that is willful and wanton; for oppressive actions; or for tortious acts which involve circumstances or ingredients of malice, fraud, or insult, or a wanton and reckless disregard of the rights of another. The key to the right to punitive damages is the wrongfulness of the tortfeasor's intentional act. However, the test for punitive damages is a strict one. A legal basis for punitive damages is established in products liability cases where the manufacturer is shown to have knowledge that its product is inherently dangerous to persons or property and that its continued use is likely to cause injury or death, but nevertheless acts with gross indifference to the danger.

3. Elemental Defenses

a. No defect.

The common element in all theories of products liability is the existence of a defect in the particular product involved. If there is no defect in the product that was a legal cause of the plaintiff’s injury, there simply is no liability on the part of the manufacturer or seller of that product. A product does not have to be accident free or accident proof.


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i. Used for its intended purpose or use

The product must be safe for its intended purpose or use. In a design defect case applying the safe or fit for intended or foreseeable purpose test, the plaintiff must show that the product design is not reasonably fit, suitable, and safe for its intended or reasonably foreseeable purposes. On the issue of the product's safety or fitness for its intended purpose, the parties should demonstrate, where relevant: (1) the conformity or nonconformity of the defendant's design to the practices of other manufacturers in the industry at the time of manufacture; (2) the open and obvious nature of the alleged danger; (3) the extent of the claimant's use of the product alleged to have caused the injury and the period of time involved in such use by the claimant and others prior to the injury without any harmful incident; (4) the ability of the manufacturer to eliminate the danger without impairing the product's usefulness or making it unduly expensive; and (5) the relative likelihood of injury resulting from the product's present design.

ii. Foreseeable v. unforeseeable misuse

The defendant may be liable for foreseeable misuse. However, unintended or unforeseeable misuse of a product may constitute a superseding cause, and not a defect. The misuse must be unforeseeable and must also be the proximate cause of the injury. In determining whether the seller should have reasonably anticipated the use to which the product was put, the factfinder may take into account the reasonable use or uses of the product, the ordinary user's awareness that the use of the product in a certain way is dangerous, the likelihood and probable nature of use of the product by persons of limited knowledge, and the normal environment for the use of the product and the foreseeable risk in such environment, as well as any other evidence that may or may not cause the seller to reasonably anticipate such use.

iii. User and foreseeable bystander

The Restatement of Torts Second makes no decision regarding the expansion of the doctrine of strict products liability to permit recovery by casual bystanders and others who may come into contact with a product. However, Florida follows the prevailing view as to bystander recovery which is that the theory of strict liability in tort may be applied to a mere bystander, as distinguished from a user or consumer.

iv. Role of alternative design under Restatement Third


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The Restatement Third, unlike the Restatement Second, includes the requirement that the plaintiff demonstrate a reasonable alternative design to the product in question. Under the Restatement Third, plaintiffs will be required to propose a reasonable alternative design to the product in question at the time of manufacture. Such a requirement will force plaintiffs to prove that a better product design exists other than in the unproven and untested domain of their experts' imaginations. Comment d to Section 2 of the Restatement Third defines reasonable alternative product design in terms of the "risk-utility balancing test." The test is "whether a reasonable alternative design would, at a reasonable cost, have reduced the foreseeable risk of harm posed by the product and, if so, whether the omission of the alternative design by the seller ... rendered the product not reasonably safe."

b. No Duty by Manufacturer or Seller

i. Manufacturer is not to be considered an insurer against all physical injury caused by its product.

The duty of care that binds a manufacturer is essentially similar to a duty of due, ordinary, and reasonable care to see that the product is free from any potentially dangerous defect; that is, to see that there is no unreasonable risk of personal injury or property damage to persons using the products for purposes that the manufacturer may reasonably expect they will be employed, and also to those whom the manufacturer may reasonably expect to be endangered by such probable use.

This duty includes a duty to use ordinary care to test, analyze, and inspect the manufacturer's products, and to keep abreast of scientific knowledge, advances, and research in the product field. Thus, where a product presents a hazard to human safety if negligently designed, and where after such a product has been sold, dangerous defects in design come to the manufacturer's attention, the manufacturer has a duty either to remedy the defects or, if a complete remedy is not feasible, at least to give users adequate warnings and instructions concerning methods for minimizing the danger. This general duty is tempered by a fine line. Most jurisdictions recognize that a manufacturer is not an insurer against all failures and does not have to create an accident-free or fool-proof product.

ii. Wear and tear


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In a products liability action, where the product has been used for a considerable amount of time following its manufacture and sale, and an injury-causing accident then takes place connected with the use of such product, it is logical to infer that the defective condition did not exist at the time the product was sold. It is not expected that a manufacturer or seller will produce or sell a product that will never wear out, and a manufacturer or seller may not be liable for a product-connected accident that results from ordinary wear and tear. On the other hand, the fact that a product has had a long period of use will not necessarily preclude a claim against the manufacturer or seller, where it can be shown that a defect existed at the time of sale or where the manufacture expects a certain amount of wear and tear or degradation. The focus is on the time of sale, not the time of the accident, and is fact specific.

c. No Causation

i. Every theory of products liability requires that a direct causative link be shown between the alleged defective condition in the product and the injuries or damage to the plaintiff

A core element in products liability, as with any legal cause of action, is causation. The alleged defect must be the proximate cause of the injury or damage for a plaintiff to recover. This seems like a foregone conclusion, but in products liability can often be a key issue in the litigation. Areas where causation issues can arise is where a product is misused, and the misuse is the proximate cause of the damages; or where a defective warning claim is made but the consumer never read it.

Causation issues may arise in design and manufacturing defect claims where plaintiff cannot definitively prove how the accident occurred because of lack of witnesses. Typically, plaintiffs will be permitted to demonstrate causation through circumstantial evidence, which is typically expert testimony.

ii. The causative link cannot be based on mere speculation and

conjecture A verdict with respect to proximate causation may not be based on mere theory, conjecture, speculation, or surmise. Thus, where the evidence reveals several possible causes of the accident, it is improper to allow the jury to guess which cause might have been the proximate cause. Where a finding of proximate causation could only be reached by indulging in speculation and the


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stacking of one inference upon another, such finding is against the great weight and preponderance of the evidence. Special care should be taken when assessing the sufficiency of causation evidence where the evidence is wholly circumstantial. It is particularly important to be assured that an inference of causation is based upon at least a reasonable probability of causation, in an effort to remove purely conjectural and speculative questions from the jury.

iii. Role with defect

A defect must be a cause of the injury, not merely the product which causes the injury. Thus, a defect is always threshold element.

iv. Warnings/Instructions – Did the insured read the instructions?

Causation often arises in warnings and instruction defect cases. A manufacturer may be liable for failure to provide an adequate warning or instruction, but not if an inadequate warning was not the proximate cause of the injury. A plaintiff must show that had the manufacturer supplied an adequate warning or instruction, the plaintiff would have changed his behavior so as to avoid the injury. If the warning or instruction did not alter the course of a plaintiff’s particular conduct, there will be no liability. As a matter of law, if a plaintiff fails to read the warning labels accompanying the product, he will not be able to satisfy his burden of proof that the failure to warn was the proximate cause of his injuries, even if the warnings were inadequate. Thus, evidence to support a lack of causation may be as simple as the plaintiff’s admission that he did not read any of the warnings or instructions, regardless of the adequacy of same. It may also be evidence that plaintiff acted contrary to the instructions or warnings which were read (which merges with the misuse argument).

d. Comparative Negligence and Fabre Defendants

Florida is a comparative negligence state; therefore, a plaintiff’s contributory negligence is not a complete bar to recovery. Rather, the trier of fact weighs plaintiff’s negligence and reduced damages accordingly (e.g., if plaintiff is 20% at fault, her damages are reduced by 20%). Comparative fault of either the plaintiff or a non-party, misuse or change of the product’s condition are defenses to a strict liability action. Comparative


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fault in the sense of a failure to discover a defect, or to guard against the possibility of its existence, however, is not a defense. Comparative negligence is quite similar to the defense of a Fabre defendant. A Fabre defendant is a nonparty that a defendant alleges to be at least partially at fault and that the defendant contends should be placed on the verdict form in order for a jury to apportion a percentage of fault against them. This may apply in an auto accident case, for example, where there is more than person responsible for the accident but the plaintiff has only sued one of the defendants. This defendant may include a Fabre defendant in order to reduce that defendant’s actual liability in the case at hand. This is similar to the comparative negligence statute of Florida in that the fault of all those responsible is being apportioned in order to attribute the appropriate amount of liability for each defendant. In order to include a nonparty defendant on the verdict form, the defendant must plead that nonparty’s fault as an affirmative defense. When doing so, the defendant must identify the non-party, if known, or describe the nonparty as specifically as practicable. At trial, the named defendant must prove by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries. Since the abolition of joint and several liability in Florida (i.e., the date of loss is on or after April 26, 2006), if a successful argument can be made that a Fabre defendant is responsible, at least in part, for the accident, any percentage of fault allocated by a jury against that defendant is a percentage that the named defendant is not responsible for paying. (Please see section 3.d. of this document for further discussion of the comparative negligence statute of Florida and the crashworthiness doctrine).

4. Specific Affirmative Defenses

a. User Related Defenses

i. Comparative Negligence

1. Affirmative misuse of product in question The key to a successful claim of misuse is whether the misuse, from the seller's perspective, was not reasonably foreseeable; any inquiry into the user's ability to discover or foresee the risks is foreclosed. The usual situation in which the defense is asserted is where the product is being used in a way other than that which was intended and which could not reasonably have been anticipated.


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Under Florida law, product misuse is a form of comparative negligence; it is not an absolute bar to a products liability claim, but rather it merges into the defense of comparative negligence. A plaintiff's knowing misuse of a product in a manner neither intended nor foreseeable by the defendant manufacturer does not bar recovery, as a matter of law, on a products liability claim.

2. Open and obvious The open and obvious danger doctrine prohibits recovery whenever the injury would have been avoided if an open and obvious danger had been observed, regardless of the alleged theories of liability. Where the risk of injury is open and obvious as a matter of common knowledge and perception, the product cannot be deemed unreasonably dangerous or defective in the first instance so as to establish a breach of duty against which any liability could attach. The open and obvious rule imposes on a plaintiff the burden of proving that the peril-causing injury is latent or not patent. An objective standard, which concerns an ordinary user, not the person actually using or injured by the product, is used for the open and obvious defense.

ii. Assumption of Risk

Assumption of risk is the act or an instance of a prospective plaintiff’s taking on the risk of loss, injury, or damage. Under Florida law, the assumption of risk defense, as an absolute bar to recovery, has been eliminated. Instead, the plaintiff's degree of fault arising from the assumption of risk is determined by the jury, and the total award damage is then diminished accordingly.

b. Product Related Defenses

i. Modification or alteration after product leaves hands of manufacturer or seller

It is a defense in a products liability action that an alteration or modification of the product was a proximate or substantial cause of the accident or occurrence giving rise to the plaintiff's injury. This is so because the question of a defect is one that exists at the time the product leaves the manufacturer’s or seller’s hands. A post-sale modification can be such that the modification creates the defect and becomes the proximate cause of the accident.


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c. Statutory & Common Law Defenses

Plaintiffs must comply with the Florida’s statute of limitations and statute of repose in order to maintain their action. Actions that fail to comply with either of these statutes will be barred.

i. Statute of Limitations

The Florida statute of limitations for a products liability action based on strict liability or negligence is four years.

ii. Statute of Repose & Tolling Provisions

Florida’s statute of repose generally bars product liability claims brought more than 12 years after delivery of the product to the original purchaser. The tolling exceptions are few. The Statute may be tolled if the manufacturer knew of, and concealed, a defect. The Statute may also be tolled if an injury was caused by the defect within the 12 year period but the injury was not discovered (and would not reasonably have been discovered) until the repose period has expired.

1. Difference from Statute of Limitations

Statutes of limitation are an amount of time by which a lawsuit must be filed after the date damages are accrued. Statutes of repose, such as Florida’s, bar action, otherwise in compliance with the applicable statute of limitation that are not brought within 12 years from the date the product was delivered to its original purchaser.

d. Economic Loss Rule

The economic loss rule provides that a plaintiff in a contractual relationship with the defendant may not recover in tort for purely economic damages absent any personal injury or other property damage.

i. Exception- post-sale failure to warn

A tort based theory of recovery remains against a manufacturer with knowledge that a defective product is on the market as a post-sale duty to warn its customers will arise. Failure to warn claims are not barred by the


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economic loss rule because these claims are distinct from claims relating to the manufacturing process which are in fact barred.

ii. Exception- conduct unrelated to sale/purchase of product

Along the same lines, claims alleging negligent conduct which is separate and distinct from the manufacturing process such as negligent service, repair, or inspection post-sale which ultimately cause or contribute to the loss are not barred by the economic loss rule.

iii. Exception - “other property”

The economic loss rule does not bar total recovery in regards to other property which was not a component part of the yacht such as personal property. Thus, additions to a product which are separate from the product that the manufacturer had originally sold constitute “other property.” If an item was not part of the contract under which the product was sold, it can be recovered in tort. An unresolved issue as to “other property” is where the damages sought in a subrogation action are third party damages such as towing or salvage damages which are technically separate from the product, but may be seen as consequential damages to the product failure.

5. Evidentiary Considerations- Presumptions and Inferences

a. Rear-End Collisions In Florida, there is a rebuttable presumption that the negligence of the rear driver in a rear-end collision is the proximate cause of the accident. Clampet v. D. J. Spencer Sales, 786 So.2d 570, 572-73 (Fla. 2001). This presumption may be rebutted “when the Defendant produces evidence which fairly and reasonably tends to show that the rear-end collision was not the result of the rear driver’s negligence. Gulle v. Boggs, 174 So.2d 26, 29 (Fla. 1965). The Courts, however, have recognized only three specific fact patterns which may rebut the presumption of the rear-end driver negligence.

(A) Affirmative testimony regarding a mechanical failure. See e.g. Gulle,

174 So.2d at 29 (holding that affirmative testimony by the Defendant that his brakes failed was sufficient to overcome the negligence presumption).

(B) Affirmative testimony of a sudden and unexpected stop or unexpected lane

change by the car in the front. See e.g. Conda v. Plain, 222 So.2d 417,


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417-18 (Fla. 1969) (holding that testimony by the Defendant that the Plaintiff suddenly switched into Defendant’s lane while Defendant was passing the Plaintiff was sufficient to rebut the presumption).

(C) When a vehicle has been illegally and, therefore, unexpectedly stopped.

See e.g. Ry. Express Agency, Inc. v. Garland, 269 So.2d 708, 710 (Fla. 1st DCA 1972) (presumption rebutted where Defendant who was driving a bus, improperly stopped on an expressway to pick up falling debris), cert. denied, 275 So.2d 14 (Fla. 1973); Bend’s Selzer, Inc. v. Markey, 254 So.2d 377, 378 (Fla. 3rd DCA 1971) (presumption rebutted where Plaintiff presented evidence that Defendant was improperly stopped on a bridge), cert. denied. 261 So.2d 176 (Fla. 1972).

b. Cassisi Inference

Through what has become known as the “Cassisi Inference,” a plaintiff may bring a products liability action even if he cannot pinpoint a particular defect in the product. If the plaintiff can show that a product malfunctioned during its normal operation, an inference arises that the product was defective at both the time of the injury and at the time of sale, even if the product is lost, destroyed, or damaged as a result of the malfunction. The injured plaintiff thereby establishes a prima facie products liability case for jury consideration.

A defendant may negate this inference of product defectiveness by showing the product’s malfunction was caused by the product’s age, the length of the product’s use, the severity of its use, the state of its repair, the product’s expected useful life, and whether the product was subject to any abnormal operations.

c. Recalls, Service Bulletins, and Advisory Notices

Evidence of recalls in a products liability case is discoverable when the recall campaign involved the particular product or part that is involved in the action. Product recall letters are inadmissible to demonstrate that the plaintiff’s product was defective. However, product recall letters are admissible to show that a defective product was defective when in the hands of the defendant. While there is no self-critical analysis privilege for product recall letters, some courts recognize a qualified privilege for the analysis generated during routine accident investigation performed in the normal course of business.

d. Res Ipsa Loquitur


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Res ipsa loquitur, which translates to “the thing speaks for itself”, is a doctrine of limited applicability in Florida. If an injured plaintiff establishes that an instrumentality causing his injury was under the exclusive control of the defendant, and that the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control, an inference of negligence arises on the part of the defendant. The most important element to prove in order to establish res ipsa loquitur is that the defendant was under the exclusive control over the instrumentality that caused the injury.

Plaintiff must also show that negligence was the cause of the act. If some sort of negligence cannot be proven, then res ipsa loquitur may not be relied upon by the plaintiff. This doctrine is used most often in situations where evidence of negligence is very obvious. It is not applicable in strict liability cases.

e. Effect of Government Safety Standards

There is a rebuttable presumption that the product is not defective or unreasonably dangerous and the manufacturer of seller is not liable if, at the time the specific unit of the product was sold or delivered to the initial purchaser or user, the aspect of the product that allegedly cause the harm: (i) Complied with federal or state codes, statutes, rules, regulations, or standards

relevant to the event causing the death or injury; (ii) The codes or standards were designed to prevent the type of harm that allegedly occurred; and (iii) Compliance with the codes or standards is required as a condition for selling or distributing the product. Conversely, there is a rebuttable presumption that the product is defective or unreasonably dangerous if the manufacturer or seller did not comply with the relevant codes or standards.

6. Crashworthiness Doctrine – Vehicle Specific Legal Issue

a. Context

The crashworthiness doctrine applies in cases often described as “second collision” or “enhanced injury” cases. These are incidents where there is one collision, such as when Driver A hits Driver B, followed by a second “collision” which causes an “enhanced


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injury” to the plaintiff. For example, a second collision may occur when, upon impact with Driver B, Driver A hits the interior of the car or the steering wheel because the airbag failed to deploy (or any other type of defect to the car). This is the second “collision.” Essentially, Driver A can then sue the automobile manufacturer for the injuries caused from the second collision.

b. The Doctrine The crashworthiness doctrine provides that automobile manufacturers have to design and construct their automobiles so that they are crashworthy. Liability may be imposed on a vehicle manufacturer if a design defect causes additional damage in an accident, apart from the direct damage caused by the collision. In other words, the doctrine rejects the argument that an automobile does not have to be crashworthy because its intended use does not include crashes. Liability of the auto manufacturer, however, is limited only to the injuries sustained from the defective product.

c. The Majority and Minority Views There are two views that are followed with regard to the crashworthiness doctrine. Courts that apply the majority view hold that, in cases involving a “second collision,” the court may look at the accident as a whole and apportion the fault of the auto manufacturer with a third party tortfeasor who is also responsible for the accident. The third party tortfeasor may in fact be the plaintiff who is suing the auto manufacturer, but whose negligent act or driving was also responsible for the accident. The majority view essentially states the courts can assert comparative fault when determining the amount of liability that should be attributed to the auto manufacturer for the injuries sustained in the second collision.

From 2001 until June 23, 2011, the minority view has been followed by Florida courts resulting from the Supreme Courts decision in D’Mario v. Ford Motor Co., 806 So. 2d 424 (Fla. 2001). There, a minor who was drunk crashed his vehicle into a tree causing injuries to the passenger due to the car catching on fire. The plaintiff claimed that the fire was caused due to a defect with a relay switch in the fuel system of the car. Ford Motor Co. claimed that the fire was caused due to the collision of the car with the tree and the forces involved with that collision. Ford also asserted that the cause of the plaintiff’s injuries were due to the fault of the driver of the car and sought to introduce evidence of the driver’s intoxication level and excessive speed. The Florida Supreme Court held that the aspect of comparative fault will not apply in crashworthiness cases and thus the court did allow for the discussions regarding the initial tortfeasor in this case. The court reasoned that since the auto manufacturer would be held liable only for the injuries sustained in the “second collision” that it


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would not be fair to hold the driver liable for the injuries sustained due to that “second collision.” The Court further noted that admitting evidence involving the driver and his drunkenness would confuse the jury and have them focusing more “on the conduct giving rise to the accident instead of the issues of the existence of a defect and its role in causing the enhanced injuries.” In essence, the court was saying that it did not want emphasis to be taken away from the defect in the vehicle with the introduction of evidence that was not relevant to whether the automobile manufacturer designed a defective product.

d. Current Status of the Law in Florida

The Florida legislature recently overruled the minority view holding in D’Mario regarding automobile cases and the crashworthiness doctrine. The additions came as a result of Senate Bill 142 which was approved by the Florida House of Representatives earlier this year and approved by the Governor on June 23, 2011. This new legislation has been added into Florida’s Comparative Fault statute, F.S.A. §768.81, which now states that it is the legislation’s intent to overrule D’Mario which had adopted a minority view that in the opinion of the legislature was inconsistent with the comparative fault statute of Florida and created unfair and inequitable results. In essence, this new legislation allows for judges and juries to hear evidence regarding the initial accident or collision and the fault that was associated with it in order to properly apportion the liability for the injuries in these types of cases which were caused by the “second collision.” The statute is retroactively applied. Finally, although the statute states that all the persons who contributed to the cause of accident will be considered in apportioning liability in these types of cases, the rules of evidence do still apply. This basically means that although evidence of negligent acts by the driver or initial tortfeasor are now able to be considered by the court it does not always mean that they will ultimately be admitted into evidence for a number of reasons. These reasons stem from the rules of evidence which involve, for example, relevancy issues as well as whether or not that evidence would be too unfairly prejudicial if admitted. (Please see 5.d. regarding comparative negligence as a defense and fabre defendants).

7. Spoliation & Preservation of Evidence

a. What is Spoliation?

Spoliation defined as the intentional destruction, mutilation, alteration or concealment of evidence. In order to bring a claim of negligent destruction of evidence there must be (1) existence of a potential civil action, (2) a legal or contractual duty to preserve


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evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit, and (6) damages.

b. “Duty” to Preserve

i. Florida Law- the general rule

Florida law remains convoluted regarding what duty an individual or entity has to preserve relevant evidence prior to the initiation of litigation. The general rule is that the “duty” to preserve must be shown by contract, agreement, statute or administrative code prior to litigation (or discovery request during litigation. This duty is necessary to establish in order to bring a claim of spoliation. An interesting point regarding this matter is that the majority of Florida courts have held that there is no common law duty to preserve evidence before litigation has started absent a contractor statute. If a person has discarded certain evidence and had no contractual or statutory duty to preserve evidence or had not received a discovery request for preservation then Florida courts have held that this does not result in a valid claim for spoliation of evidence against the person who discarded the evidence. Examples where a “duty” to preserve can arise:

Worker’s compensation statute- Builders Square, Inc. v. Shaw “Repeated promises” by a police officer- Brown v. City of Delray Beach Agreement to preserve- Cont’l Ins. Co. v. Herman Administrative regulation- Bondu v. Gurvich

ii. Florida’s Gray Areas (Pre-Suit Conduct)

The above general rule should absolutely not be misconstrued to imply that absent litigation an individual or entity is free to destroy, discard, or alter relevant evidence without consequence or repercussion. Although the seminal Florida Supreme Court decision of Martino confirms when a formal “duty” under common law arises, there are other Florida appellate decisions which still provide for limited sanctions to be imposed upon a spoliator, even where the spoliation occurred pre-suit (Of course, where the spoliator is a non-party, the lack of formal “duty” will be the death knell to an independent claim for


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spoliation of evidence at Florida law. The “gray areas” are limited to spoliation involving parties). For example, in the underlying Fourth District opinion of Martino, the trial court’s denial of plaintiff’s motion for new trial on a negligent shopping cart maintenance theory was reversed and remanded on the basis that “unlike the presumption of negligence which may arise under Valcin, the adverse inference concept is not based on a strict legal “duty” to preserve evidence. Rather, an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence.” Although this holding was sharply criticized by the Justice Wells of the Florida Supreme Court in part on constitutional grounds (implicating due process concerns) the Florida Supreme Court nor any other Florida appellate court has spoken on the issue, and therefore (without any conflicting opinion) this portion of the Fourth District’s opinion in Martino is binding.

iii. Federal Law

In contrast, the federal courts apply a much more heightened and clearly delineated standard, particularly as it pertains to electronically stored information (ESI). The federal standard is generally that there is presuit duty to preserve if the spoliator was on prior explicit notice that a lawsuit is or will be filed. This differs from the Florida rule in that the reasonable anticipation may arise in the form of a pre-suit letter or perhaps even a letter demanding the preservation of certain evidence that may be used in the future for a potential claim. Thus, pre-litigation action by a potential party may in fact cause the duty to preserve to arise due to this reasonable anticipation. This is frequently seen now particularly due to the increased awareness of the need to preserve electronic data. Pre-suit notices to preserve are becoming much more common.

c. Spoliation Sanctions & Remedies:

i. Claims for Spoliation- the Florida Supreme Court’s decision in Martino in

2005 did away with first party claims for spoliation. This means that when the spoliator is a party to the lawsuit in question (whether plaintiff or defendant) a separate cause of action for spoliation is not longer appropriate, and instead it is appropriate for the court to institute appropriate sanctions or other remedies against the spoliator within the litigation (the various options available to a court are discussed below). In contrast, third party claims


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remain viable. Where a non-party to a lawsuit has spoliated evidence within its possession or control, a claim for spoliation can be asserted. The elements of a third party spoliation claim are: (1) existence of a potential civil action; (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action; (3) destruction of that evidence; (4) significant impairment in the ability to prove the lawsuit; (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit; and (6) damages.

ii. Inferences and presumptions- as to the issue of remedies, the Florida Supreme Court’s Martino decision is much more clear. There it is reiterated that courts should follow the prior decision of Valcin, where it held that when the spoliation is negligent, the rebuttable presumption of negligence is applied. When evidence is intentionally lost, misplaced, or destroyed by one party, trial courts are to rely on sanctions found in Rule 1.380 and the adverse inference. Thus, under this framework, the type of available sanctions correlates directly with the level of culpability.

iii. Sanctions under Rule 1.380:- YOU NEED TO LIST OUT THE

SANCTIONS AVAILABLE UNDER THE RULE HERE

a. Striking of expert testimony- may be appropriate if the spoliating party’s expert has inspected the evidence and rendered opinions based upon it, but the other side has not;

b. Dismissal of claims/Striking of defenses- typically only appropriate where one party is completely unable to prosecute or defend its case

c.

d. Best Practices

With all of the small nuances and seeming inconsistencies in Florida law, what lessons can be learned, and what is a reasonable diligent claims adjuster to do (either as the possessor of evidence, or knowledge of the existence of relevant evidence in someone else’s possession)? The answer in both circumstances is to create a detailed written record of everything, because you never know what could be vital to either defend against, or pursue, sanctions or other remedies for spoliation of evidence. A claims adjuster will be presented with issues of evidence preservation in two distinct positions- either as the entity which is in control and possession of the relevant evidence, such as an automobile; or as the entity which wishes to have a


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third party (whether the insured or other third party) retain evidence for future inspection or use. In the first situation, ensure that the manner in which you came into possession of the evidence is documented in writing (whether a confirmation of receipt, chain of custody form, or settlement of total vehicle loss for example); invite others who have given notice to inspect same; keep evidence as long as feasible and possible; and upon discarding any evidence ensure multiple notices are provided and where possible obtain written confirmation from the insured or others. If you receive a notice to preserve take it seriously, respond accordingly, and advise those who need to know (for example, a repair shop, yard, investigator, etc.). In the second situation, you should issue a notice to preserve evidence to whoever possesses evidence which may potentially be relevant. Send all notices in writing, registered mail if possible, and document the claim file with all responses (whether by phone, email, or mail), remembering that a contractual duty to preserve can arise from an oral agreement.

e. Preserving Evidence – Considerations

i. Identify potentially relevant evidence The allegedly defective product may be in the insured’s possession when you receive an initial notice of a claim. If so, one immediate concern is to identify all potentially relevant evidence, which may not just be the product itself but will likely include documents, packaging, manuals, and a peripheral scene.

ii. Evidence in control of insured In addition to identify potentially relevant evidence that may be in the insured’s possession, it is also important to ensure everything in your insured’s possession is secure from theft, alteration, or inadvertent disposal (ex: locked area, limited supervisory access, notice posted and circulated to employees). It is also important to protect the evidence from weather exposure, temperature fluctuations (spoliation claims can arise not only from missing evidence, but also evidence altered intentionally or unintentionally).

iii. Evidence in Control of Third Party

If the product is not in your insured’s possession, consideration must be given to obtaining it whether via a purchase, or replacement, or custodial agreement.


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If relevant evidence is not in your possession, immediate written notice whether to your insured or a third party must be sent to any parties with such evidence requiring that it be preserved for future examination. A broad net should be cast. Relevant evidence may not be limited to a distinct product. It may include the scene of the accident and other affected property such as other vehicles.

iv. Evidence in Company’s Control As previously mentioned, the majority of Florida courts hold that there is no common law duty to preserve evidence before litigation has started. However, it is wise to preserve the evidence as a precaution. By doing this you will avoid any potential claims for spoliation of evidence that could arise.

v. Chain of custody

Chain of custody is also a vitally important element in handling, storing and securing relevant evidence. A failure to thoroughly and appropriately document the chain of custody can result in a spoliation claim, or at a minimum, create a potential basis to dispute your experts conclusions.

vi. Spoliation claims against first and third parties Florida does not allow for independent causes of action for spoliation against first parties; instead, remedies include discovery sanctions and a rebuttable presumption of negligence for the underlying tort. In an action against a third party custodian for the destruction of evidence the plaintiff has the burden to show that the defendant’s interference cost him or her an opportunity to prove their lawsuit. It is not necessary for the plaintiff to show that but for the destruction of the evidence, he or she would have prevailed in the underlying action.

8. Recovery – Investigating Potential Product Subrogation Claims

a. Investigating Cause of Accident – Is a Product Involved?

i. Role of Counsel

There is no substitute to having counsel involved as soon as possible, including at the scene of the accident. The benefits are two-fold. Particularly if that counsel will be involved in defending litigation or prosecuting a recovery action,


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nothing can replace an eyewitness examination or scene inspection first hand. Photographs and written statements are a poor substitute to eyewitness examination. Their presence is also key in navigating certain legal issues, and providing the benefit of an early attachment of the work product and attorney-client privilege. Legal issues which frequently arise include who is to be given access to the scene, whose experts get to look at the evidence first, how the evidence is to be collected and stored, what protocol is to be implemented, and the various considerations in selecting experts and determining what role they shall serve.

ii. Use of Experts- Do it Right the First Time

1. Protocol issues, guideline interpretation and the importance

of expert selection

Guidelines can dictate the course and manner of investigation and discovery. Spoliation issues can arise not only from outright loss or destruction of evidence, but also subsequent objections to the mode or manner of inspection made by a later participating party; thus, it is vitally important that experts are selected from the narrow field of expertise at issue. Consideration should be given to retaining experts strictly to opine on the applicability and interpretation of particular guidelines. Expert background in a particular guideline/standard can ease investigation process by lessening objections to protocols. This is particularly the case in investigations involving numerous parties. A protocol established by experts who are or were committee members, who have participated in drafting the protocol, and have extensive experience in the field, will withstand objections from other parties and future Daubert challenges. If the investigation protocol is approved by all possible participating parties, you will be able to effectively eliminate most grounds for a future spoliation claim and Daubert challenges of your experts at the time of the initial investigation. The best experts in any products liability field will, at some time in their background, have served on committees within their expertise. This is a key qualification.


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2. Assist in identifying and narrowing potentially liable parties

There may be hundreds of parts and components which may cause or contribute to a loss. Experts serve an invaluable role in assisting in identifying potentially liable parties, and narrowing that list as the investigation is conducted. Your experts should assist in protecting against spoliation claims, as discussed above, while at the same time managing the scope and course of the investigation in conjunction with the scale of the loss.

3. Applicable standard/guidelines interpretation and

application

In determining potential defects in a product, all potentially applicable regulations and industry guidelines and standards need to be identified. Even voluntary guidelines may be admissible as probative of what the industry standard or custom is for that product. Often times, particularly with voluntary industry guidelines, there will be interpretation issues. A committee member’s opinion on the interpretation and application of a vague guideline will be worth its weight in gold when pitted against a lesser qualified expert on the issue.

4. Industry custom or practice

Although guidelines can be probative of industry custom or practice, that is not always the case. The voluntary nature of guidelines, at times, indicates an aspirational goal for the industry rather than its current custom. As such, experts will help you determine what the industry custom or practice is, and the role of any guidelines. Considerations should be given to expert backgrounds in the design of particular parts or systems such as steering systems, or brakes. Often, such experts have worked for several major manufacturers of the product and have an intimate and immediate understanding of the industry’s custom.

5. Interplay/interaction with insured

Experts often serve a secondary role in their interaction and interplay with the insured. Insured’s quite often they have a misplaced suspicion that their carrier does not have their insured interests in mind.


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Experts can be seen as “neutral” individuals. The insured may be more comfortable and open with an expert. In special circumstances, it may be more appropriate for the claims handler or counsel to take a back seat to the expert in questioning an insured or asking for information or documentation.

iii. Cause & Origin Investigations & Accident Reconstruction

No destructive testing should ever be done during the investigation stage until all possible liable parties are notified and either participate or waive such right. Remember, even a cause and origin investigation will result in the alteration of evidence from its original state following an accident. You only get one chance at a proper cause and origin investigation, thus, selection of the proper experts at this early stage is critical. Any accident involving a fire or explosion should involve a cause and origin expert qualified in NFPA 921: Guide for Fire & Explosion Investigations. This publication has been and continues to serve as well recognized and reliable basis that fire investigators base their methodologies and conclusions upon. It provides comprehensive guidance, beginning with the basic methodology involved in investigating fires and explosions, and continuing with basic fire science and concepts, for experts conducting investigations for insurance and/or litigation purposes. NFPA 921 also specifically addresses the impact of various collateral issues to fire and explosion investigation such as building construction, electrical, and building fuel and gas systems. Enlisting the services an accident reconstruction is often useful where an injury is claimed as a result of a vehicular collision. Accident investigation and reconstruction is designed to answer questions about how a traffic crash occurred. A reconstructionist can develop the “physics” of the collision event, including crash parameters such as position-time, velocity-time, and acceleration-time histories. In addition, crash aspects such as impact speed, restraint usage, perception issues, and reaction times may also be investigated.

iv. Biomechanics vs. Biomedical – Understanding the Difference and What They Need from Early Investigation

Generally speaking, biomedical engineers integrate traditional engineering principles with fundamental knowledge of the anatomy and physiology of the human body. A specific subdiscipline of biomedical engineering is biomechanical engineering. Their value is being recognized more and more


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lately as experts in vehicle collision cases. With expertise in both engineering and the medical sciences, they can apply the principles of mechanics to the facts of a specific accident to provide information about the forces generated in the accident, explain how the body moves in response to those forces, and thus determine what type of injuries would result from the forces generated and opine whether the plaintiff’s injury was or was not caused by the alleged product defect at issue.

All too often, injury biomechanics experts (and accident reconstructionists for that matter) are brought into the case well after the actual event occurred. Inspection of the vehicle(s) may no longer be possible, and parties have a difficult time accurately recalling what did or did not happen. Therefore, developing the appropriate information during the investigation and discovery phase is critical to any subsequent injury biomechanics analysis.

Information most beneficial to a biomechanics expert that may be developed during the investigation phases includes the following subject areas:

• The nature of the claimed injuries • The claimant's physical condition (past and present) • The claimant's occupational and recreational history • Any pre-collision or post-collision injury events • Pre-crash conditions such as

o Body positioning o Seat positioning o Awareness of the imminent crash o Use (or lack thereof) of safety features o Presence of distractions o Vehicle mechanical issues or modifications o What generally was occurring at the time

• Body motions as a result of the crash (occupant kinematics) • Body contacts with interior surfaces • The presence of bruises, cuts, etc. • The occurrence of loss of consciousness • The actions of any first responders

If information is incorrect or incomplete regarding these key aspects, any developed expert opinions may be vulnerable to challenges by the opposing party, which ultimately could lead to the expert's testimony being excluded or stricken. However, when appropriate and detailed investigation has been conducted, such a situation may be avoided or at least minimized.


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v. Engineering – Electrical, Mechanical, Materials

Electrical engineers deal with everything related to electrical devices, systems, and the use of electricity. They should be considered as potential experts when it appears as though an electrical devise caused, or contributed to, the loss. Mechanical engineers apply the principles of physics and materials science for design, manufacturing, and maintenance of machines and mechanical systems such as engines and motors. Thus, they should be considered when it appears as though an engine or another mechanical instrumentality caused, or contributed to, the loss. Materials engineers are involved in the extraction, development, processing, and testing of the materials used to create products. They work with metals, ceramics, plastics, semiconductors, and combinations of materials (“composites”) to create new materials that are supposed to meet mechanical, electrical, and chemical requirements. They also recommend or select materials for new applications. They should be considered as potential experts when it appears as though the quality or design of the materials used to create products at issue caused, or contributed to, the loss.

vi. Human Factors

9. Claims Handler Checklist of Essential Tasks

An adjuster’s role, from the notice of first loss to the initiation of litigation, can save the day if key, proactive steps are taken. The approach taken should be one of rapid response. The approach of “out of sight, out of mind” has no role in the realm of products liability. This is not only out of sync with today’s products liability litigation, but is dangerous and more apt to result in litigation than to prevent it. The purpose of proper pre-litigation investigation and preparation is three-fold: (1) Determine appropriate coverage-related issues (2) Determine means of recovery- Did third parties cause the accident? And/or (3) Determine available defenses in third party claims- Is someone else liable?

a. Identifying potential defendants

All potential entities involved in the design, manufacture, installation, distribution, and repair of a defective product must be considered a defendant. Additionally, look to


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any facility conducting modification to the product. The search for defendants should be focused on the chain of distribution and possession of the product, including previous owners, or any individual who at one point maintained custody and control of the product which could have brought about a potentially dangerous condition.

b. Notice process

Where a loss occurs which requires investigation as to the source, alerting all potentially interested parties as soon as possible is mandatory to avoid evidentiary and prejudicial circumstances. By placing potentially liable manufacturers on notice of a claim, spoliation issues can be avoided and investigatory findings which produce evidence as to the cause of loss will more likely be admissible if all parties involved had equal opportunity to inspect the product at issue in its original or uninterrupted state.

c. Electronic documentation preservation notice to insured and third

parties

At the first sign of potential litigation, an obligation arises when a party has notice that evidence is relevant or when a party should have known that evidence might be relevant to future litigation. Once a party is on notice that e-data will be relevant to pending litigation, the obligation to preserve evidence first runs to counsel. Attorneys should contact their client and institute an immediate litigation hold and further adhere to the duty that the hold is actually taking place. Typically, a business will have a document retention/destruction policy. A litigation hold constitutes (1) all relevant information is discovered, (2) relevant information is retained on a continuing basis, and (3) relevant non privileged material is produced to the opposing party. Attorneys and clients may be sanctioned even if the instruction to hold documents is given but not properly followed by the party.

When it comes to third parties or opposing counsel, you want to limit their ability to claim ignorance of processes that result in spoliation. To do so, issue a preservation letter to opposing counsel early on in the case, clearly state that all automated destruction of evidence should cease, and make spoliation an agenda item in meet and confer session. If the situation should arise, set an expedited deposition under FRCP, the Rule 30(b)(6) regarding retention polices.

d. Obtaining documentation

i. Titles ii. Bills of Sale iii. Invoices, work orders


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iv. All internal policies and procedures concerning quality control, manufacturing process and inspection, consumer complaints and warranties, etc.

v. All available manuals (owners, maintenance, component) vi. Warranty Information vii. Advertising literature viii. All prior claims, consumer protection notices, and customer

complaints ix. Public record or FOIAA request documents, where applicable

1. Police Report 2. OSHA Report 3. Consumer Protection Agency 4. NTSB

x. Statements of witnesses xi. Government Standards xii. Industry Standards (an expert who has served on the appropriate

standards committee can be very helpful),

e. Obtain exemplar product where appropriate (with complete packaging as sent to consumer), or, inspection of same or similar products in stream of commerce

i. Role in identifying or ruling out potentially liable parties

Obtaining or inspecting an exemplar product can assist in ruling out potentially liable parties, by allowing investigators to see how the product works under normal circumstances, and its response to abnormal operation. In vessel losses, an inspection of an exemplar can assist investigators in narrowing down parts, components or products that could have caused the vessel loss or damage, or rule out products that may have otherwise been of interest. Exemplar inspections and tests can help focus and streamline an investigation, and further support an investigator’s theories.

ii. Role in determining what industry custom is and by extension,

whether there is a defect

A probative element in determining whether a product is defective is determining what the industry standard or custom is, and whether the product at issue follows the industry custom. To establish industry custom the same product, as manufactured by other companies, should be inspected to isolate all similarities and differences. In jurisdictions which follow the Restatement


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Third, such comparative inspections can also establish all alternative designs in the industry, and the feasibility of same.

iii. Role in determining available defenses

Exemplar inspections can also assist in identifying possible defenses to a defect claim, particularly a modification or alteration defense, or that a misuse of the product was the proximate cause of the accident.

10. Industry guidelines and standards of particular interest

a. NHTSA – www.nhtsa.gov – The National Highway Traffic Safety Administration, under the U.S. Department of Transportation, sets and enforces safety performance standards for motor vehicles and motor vehicle equipment.

b. FMCSA – www.fmcsa.dot.gov – The Federal Motor Carrier Safety Administration, under the Department of Transportation, deals mostly with commercial motor vehicles and the prevention of accidents and injuries involving these types of motor vehicles. This administration has created rules and regulations that deal with a wide range of issues including safety performance, repair, and maintenance.

c. CFR – www.gpoaccess.gov/CFR/INDEX.HTML - The Code of Federal Regulations is the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government.

d. CPSC – www.cpsc.gov – The U.S. Consumer Product Safety Commission is

charged with protecting the public from unreasonable risks of injury or death from thousands of types of consumer products.

e. OSHA - www.osha.gov - The Occupational Safety and Health Administration

prevents work-related injuries, illnesses, and deaths by issuing and enforcing standards for workplace safety and health.

f. NFPA – www.nfpa.org – The leading authoritative source on public safety, the

National Fire Protection Association develops, publishes, and disseminates more than 300 consensus codes and standards intended to minimize the possibility and effects of fire and other risks.


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g. NEC – NFPA 70 is also called the National Electrical Code. It is the United States standard for the safe installation of electrical wiring and equipment. As part of the National Fire Codes series published by the NFPA, NEC is not itself law but is commonly mandated by state or local law, as well as in many jurisdictions outside of the United States. The NEC codifies the requirements for safe electrical installations into a single, standardized source.

h. IEEE - www.ieee.org - Originally an acronym for the Institute of Electrical and

Electronics Engineers, Inc., the organization's scope of interest has expanded into leading authority on areas ranging from aerospace systems, computers and telecommunications to biomedical engineering, electric power and consumer electronics among others.

i. UL – www.ul.com – Underwriters Laboratories Inc. operates under its own

authority as an independent, not-for-profit, nongovernmental organization and has developed more than 1000 standards for safety in electric, fire, building, plumbing, manufacturing, mechanical, public education, and environmental and public health fields.

j. ANSI - www.ansi.org – The American National Standards Institute

promulgations thousands of norms and guidelines that directly impact businesses in nearly every sector including construction equipment, dairy and livestock production, to energy distribution, and many more.

k. ASME – www.asme.org – The American Society of Mechanical Engineers is a

not-for-profit professional organization that promotes the art, science and practice of mechanical and multidisciplinary engineering and allied sciences throughout the world. The ASME Standards provide voluntary guidelines that promote safety, reliability, productivity, and efficiency in almost every industry that relies on engineering components or equipment.

l. ISO – www.iso.org – The International Organization for Standardization created

specifications and criteria which are applied consistently in the classification of materials, in the manufacture and supply of products, in testing and analysis, in terminology and in the provision of services.

11. Demands and Negotiating a Pre-suit Subrogation Claim

Clearly, one of the goals of a successful recovery case is to maximize the amount of money recovered while minimizing costs to pursue the claim or potential claim. To do this in the pre-suit stage, the goal should be to make a detailed and substantive demand in order to


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communicate to the potential defendant that there is solid evidence and grounds for the legal claims to be asserted. This can only be done if the recovery investigation is done thoroughly. This, of course, depends largely upon the claim amount at issue and cost considerations. However, as outlined herein, a recovery investigation can be done largely by a claim adjuster and/or counsel with the assistance of appropriately conducted investigations, witness statements, and research regarding the subject product. Once the investigation is exhausted, a detailed and thought out demand should be made and should include not just the amount demanded but some indication of the theories of liability available, and evidence gathered. A potential defendant is unlikely to negotiate a pre-suit settlement, or offer any significant money, in response to brief unsupported demands.

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Products Liability Issues in Florida

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