$6.6M Asbestos Mesothelioma Verdict Reinstated by Florida Supreme Court Posted on November 23, 2015 by Larry Bodine The Florida Supreme Court reinstated a $6.6 million jury verdict against an asbestos manufacturer for a man who contracted peritoneal mesothelioma while working as a construction supervisor. The high court quashed the Third District appeals court reversal of the verdict and remanded the case back to the court to reinstate the judgement. The Supreme court disapproved of the Third District court’s ruling and application of law in this case and in two previously decided cases, stating its decisions “creat[ed] multiple points of express and direct conflict with decisions of this court and of other district courts of appeal.” Exposure to 99.9% pure asbestos William P. Aubin worked as a construction supervisor between 1972 and 1974 where asbestos pellets sold by Union Carbide under the name SG-210 Calidria were used for drywall joint compounds and texture sprays. Aubin was diagnosed with the fatal incurable malignant peritoneal mesothelioma, which is a cancer in the lining of the abdomen. He filed suit in 2008, and went to trial against Union Carbide for strict liability design defect, strict liability failure to warn, and negligent failure to warn. Union Carbide mined naturally occurring asbestos and processed it to create micro-sized asbestos fibers for a ready-mix product that was 99.9% pure asbestos and traveled “twice as far, on a pound for pound basis” as compared to other similar products that contained filler. Intermediary manufacturers used the asbestos pellets in joint compounds and texture spray products. Union Carbide toxicology reports introduced at trial indicated that it was aware that mesothelioma cancer was associated with asbestos exposure and that the type it manufactured was actually more dangerous than longer fibers in increasing the risk of producing tumors. Appeals court reverses jury verdict The Third District Court reversed the jury verdict, finding that the trial court erred in its application of the consumer expectations test instead of the risk utility test, which requires the plaintiffs to prove a reasonable alternative design. It also found that the design defect was not the cause of Aubin’s injury and that the jury instructions were misleading because they did not include discussion of the learned intermediary defense. The Florida Supreme Court quashed the Third District’s reversal, remanding the case back to the lower court to reinstate the judgment. It also disapproved of the Third District’s erroneous use of law that directly conflicted with State Supreme court and other District court decisions. State Supreme Court reinstates verdict The Supreme Court found that the District court’s application of the Third Restatement’s adoption of the risk utility test in strict products liabilities test, which requires the plaintiff to prove to prove a reasonable alternative design, was in direct conflict with both a decision of the Supreme Court and to Florida’s Standard Jury Instructions. The Supreme Court held in West v. Caterpillar Tractor Co that strict products liability cases apply the Second Restatement’s “consumer expectations” test in determining a design defect claims. In addition to quashing the Third District’s decision for applying the risk utility test, the Supreme court also disapproved of the lower court’s prior case rulings in Kohler Co. v. Marcotte and Agrofollajes, S.A. v. E.I. Du Pont de Nemours & Co., which also incorrectly adopted the Third Restatement risk utility test instead of the consumer expectations test. See also: Case Revived Against Machine Causing Release of Asbestos From Another Company’s Product The Florida High Court also found that the District court erred in merging the definition of a design defect with causation when it determined that Union Carbide was entitled to a directed verdict. The District court concluded that Aubin failed to show that it was the defective design of the asbestos in Sg-210 Calidria that caused his injury, and that manufactured asbestos by Union Carbide was no more dangerous than the asbestos was as a raw material. The Supreme Court further disapproved of the Third District’s use of a design defect definition that conflicts with the definition used in Florida courts. The court found that Aubin presented sufficient evidence of causation, reversing the determination that Union Carbide was entitled to a directed verdict. Disapproval of District Court holdings The Supreme Court agreed with the Third District that in a failure to warn claim a jury could be instructed on the learned intermediary doctrine, but disagreed with its decision that Union Carbide was entitled to a new trial on the failure to warn claim. The learned intermediary defense allows a manufacturer to rely on an intermediary to relay warnings to the end user of a product. At trial, Union Carbide objecting to Aubin’s proposed jury instructions because it did not include special instructions to the learned intermediary defense. The Court found that Union Carbide’s rejected jury instruction proposal did not even contain accurate statements of law on the issue. The court found that the Third District’s conclusion that Union Carbide was entitled to a new trial was incorrect, stating that a party could not “complain on appeal that the trial court committed reversible error by failing to correct that party’s own inaccurate and misleading proposed instructions.” The case is William P. Aubin v. Union Carbide Corporation, case number SC12-2075 in the Supreme Court of Florida.