The Aubin opinion in late October was accompanied by happy talk from the US Chamber of Commerce (they focused on not losing completely on the learned intermediary issue). But now, defense lawyers are admitting Aubin worsened the situation in Florida for asbestos defendants and others. For example, Wilson Elser’s  Walter Latimer published a December 8, 2015 online article regarding the Aubin decision. The article includes the following introduction and conclusion; the entire article is worth reading:

“The Florida Supreme Court recently issued a significant decision that will affect all strict product liability/design defect cases litigated in Florida. In Aubin v. Union Carbide, decided October 29, 2015, the Court rejected the risk-utility test in favor of the consumer-expectation test. The consumer-expectation test examines whether a product is unreasonably dangerous because it failed to perform as safely as a reasonable consumer would expect when using it as intended or in a reasonably foreseeable manner. The risk-utility test, on the other hand, poses a higher burden of proof for plaintiffs. It focuses on whether the utility of a product outweighs any risk of using it. It also requires the plaintiff to prove that a reasonable alternative design existed. Conversely, under the consumer-expectation test, the plaintiff is not required to prove a reasonable alternative design existed. In sum, the Court’s decision in Aubin, made it easier for plaintiffs to claim that a defendant’s product is defectively designed.

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Ultimately, Aubin is a pivotal case in product liability because it established that the consumer-expectation test must be applied to design defect cases. This decision, in our view, will result in more design defect claims being tried and may encourage more product defect claims to be litigated against manufacturers in the state of Florida.”

The opinion is Aubin v. Union Carbide Corp., 2015 Fla. LEXIS 2417, CCH Prod. Liab. Rep. P19,712, 40 Fla. L. Weekly S 596 (Fla. Oct. 29, 2015).