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Florida Decision Weekly Wrap-up 12/23

AGROFOLLAJES, et al. vs. E.I. DU PONT DE NEMOURS & COMPANY, INC., 3rd District. Case Nos. 3D07-2322; 3D07-2318; 3D07-1036. L.T. Case Nos. 01-23796, 01-6932. December 16, 2009. (Product liability. Consumer Expectations. Statutes of Limitation. Evidence)

This is a complex case in which twenty seven Costa Rican farmers filed individual lawsuits against Du Pont claiming Du Pont’s fungicide Benlate had damaged the fern plants they grew. Du Pont filed a motion to consolidate the cases, which was granted by the trial court. The case went to verdict in favor of Plaintiffs, however a number of post trial motions were decided in favor of Du Pont. Plaintiffs appealed several issues and Du Pont appealed the consolidation, the verdict in favor of 20 Plaintiffs and a number of evidentiary rulings. On appeal, the Third District held that consolidating the cases was an abuse of discretion by the trial court because there were disparate issues of fact and those facts predominated over issues that were common to the 27 cases.
Most significantly for product liabilty actions, the Third District also made a significant finding on the much disputed issue of the appropriate application of the “consumer expectations” test in product liability actions. At trial, the court instructed the jury that it could find Benlate defective under either the “consumer expectations” test or the “risk/utility” test. Du Pont objected to this instruction, arguing that the “consumer expectation” test could not be used as an independent basis for finding a product defective, particularly a complex product like Benlate. Relying on the Restatement (Third) of Torts: Products Liability, the Court held that the “consumer expectations” test could not be an independent basis for finding a design defect and reversed the trial court’s decision to give the “consumer expectations” jury instruction. The Court noted that it had previously relied on the Third Restatement in the decision of Kohler Co. v. Marcotte, 907 So. 2d 596 (Fla. 3d DCA 2005)
Several evidentiary issues went in Du Pont’s favor, as well. At trial, the court had allowed the Plaintiffs to introduce evidence that prior claims had been filed against the manufacturer related to Benlate, as well as evidence that the manufacturer had settled prior claims. The Third District held that it was error to admit the evidence of prior claims and settlements because the Plaintiffs had failed to establish substantial similarity between their claims and the prior claims. Additionally, the trial court had admitted “surprise” testimony that exceeded the scope of a pretrial order limiting that expert’s testimony. On appeal, the Third District held that admission of this “surprise” evidence was error. Finally, the trial court had submitted the statute of limitations issue to the jury with in instruction that the 10 year statutory period under Costa Rican law began to run when the Plaintiffs “knew or should have known” that Benlate was causing the damage to their crops.  The trial court directed a verdict for Du Pont against 7 of the 27 Plaintiffs on statute of limitations grounds. The Appellate Court upheld the trial court’s decision to use the “knew or should have known” standard.
WORTHINGTON COMMUNITIES, INC., ET AL. v. JUAN CARLOS MEJIA, ET AL., 2nd District. Case Nos. 2D07-1490 & 2D07-3698. (Consolidated). December 16, 2009. (Torts. Jury Instructions)
In the underlying action, the employee of a masonry subcontractor sued the general contractor/property owner of a project under construction for injuries incurred when a crane dropped a load of wire mesh on him on the job site. The case went to trial and resulted in a verdict for the Plaintiff. The Defendant filed a motion for directed verdict which the trial court denied. At trial, the trial judge issued an instruction saying the owner/general contractor had an “ultimate duty” to maintain the job site in a reasonably safe condition. The Second District held that, while it was “improper” to use the word “ultimate” because that language was appropriate only in cases involving inherently dangerous instrumentalities, however the trial court’s action was not so confusing or misleading to rise to the level of reversible error.   Further, the Court held that denial of the motion for directed verdict was proper because there was disputed evidence as to whether Defendant breached its duty to Plaintiff and whether such breach was the legal cause of the Plaintiff’s injuries
JUSTIN K. HOUSER v. COUNTY OF VOLUSIA, ET AL., 5th District. Case No. 5D08-926. December 18, 2009. (Torts. Sanctions for Discovery Abuse)
Plaintiff below filed a personal injury action. The defendant submitted discovery requests to which Plaintiff failed to respond or object. The defendant obtained a motion to compel, and yet, after two extensions of time had been granted, Plaintiff had failed to fully repond. After the parties failed to file a joint status report as ordered by the trial court, the court issued a motion to show cause why the case should not be dismissed. The Plaintiff filed to respond. After a number of additional failures to prosecute his case, the Court finally dismissed the case. The Second District held that the trial court abused its discretion in dismissing the case on that ground that the trial court failed to make findings as required by Kozel v. Ostendorf, 629 So. 2d at 818. Kozel held that, before a trial court can dismiss a case with prejudice, it must consider (and make findings of fact) on all of the following factors:
    1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for the noncompliance; and 6) whether the delay created significant problems of judicial administration.

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Multiple Hunting Products Face Voluntary Recalls

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Slim-Fast announces recall of 10 million diet drinks

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Honda, CPSC announce recall of 200,000 ATV models

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CPSC announces largest crib recall in U.S. history

The U.S. Consumer Product Safety Commission announced last week the largest recall of child cribs in American history. More than 1.2 million drop-side cribs have been recalled in the U.S., as well as an additional 1 million in Canada, due to at least four cases of suffocation that have been reported. These young children were killed due to part of the crib that slides up and down, supposedly allowing easier access for the parents to remove the children.

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Chenille Apparel recalls women’s wear amidst reports of deaths

The deadliest consumer product recalled under the authority of the CPSC this year was Chenille Apparel (including Full Length Women’s Chenille Robes, Women’s Chenille Jackets, Women’s Chenille Lounge Jackets, and Women’s Chenille Tops) manufactured by A-One Textile & Towel of Pakistan and sold by Blair LLC based in Warren, Pennsylvania. Some of these apparel items failed to meet federal standards for flammability, and presented a serious risk of burns if exposed to open flames.

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