       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 27, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D11-3270
                         Lower Tribunal No. 10-41578
                             ________________


   Paula Font, individually, and as personal representative of the
                  Estate of Luis Torres, deceased,
                                    Appellant,

                                        vs.

                       Union Carbide Corporation,
                                    Appellee.


      An appeal from the Circuit Court for Miami-Dade County, Joseph P. Farina,
Judge.

      The Ferraro Law Firm and Paulo R. Lima and Juan P. Bauta, II, for
appellant.

      Carlton Fields Jorden Burt, P.A., and Matthew J. Conigliaro (Tampa), for
appellee.

Before SUAREZ, C.J., and WELLS and LAGOA, JJ.

          ON REMAND FROM THE FLORIDA SUPREME COURT

      PER CURIAM.
      We reconsider on remand our opinion in Font v. Union Carbide Corp., 118

So. 3d 1005 (Fla. 3d DCA 2013) (“Font I”), which was quashed by the Supreme

Court of Florida following its decision in Font v. Union Carbide Corp., 41 Fla. L.

Weekly S113 (Fla. Jan. 12, 2016) (“Font II”). As ordered by the Supreme Court of

Florida, we must apply Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015)

(“Aubin II”), to our earlier opinions. Based on Aubin II, we are constrained to

conclude that the jury instruction requested by Appellant, Paula Font (“Font”),

accurately stated the applicable law, the evidence supported the giving of the

instruction, the instruction was necessary to resolve the issues properly, and Font

was entitled to submit her strict liability claims to the jury on both the “risk utility”

test of the Restatement (Third) of Torts (“Third Restatement”) and the “consumer

expectations” test of the Restatement (Second) of Torts (“Second Restatement”).

Thus, we reverse the final judgment in favor of Appellee, Union Carbide

Corporation (“Union Carbide”), and remand for a new trial.

I.    FACTUAL & PROCEDURAL HISTORY

      Font, individually and on behalf of the Estate of Luis Torres (“Torres”),

deceased, filed a wrongful death action for negligence and strict liability for failure

to warn and the manufacture of a defective product against Union Carbide and

other asbestos manufacturers and distributors. Font alleged that Torres, her father,

died of malignant pleural mesothelioma as a result of exposure to joint compound



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products and texture sprays designed, manufactured, and supplied by the

defendants that contained Union Carbide’s Calidria SG-210 asbestos.            Font

presented evidence that Calidria SG-210, when in a respirable form, can and does

cause mesothelioma, as well as other asbestos-related illnesses.

      At the charge conference on November 9, 2011, Font requested that the

standard jury instruction PL 5 be given to the jury verbatim. That instruction, in

which the Supreme Court Committee on Standard Jury Instruction in Civil Cases

(“Committee”) defined “unreasonably dangerous” under both the risk utility and

the consumer expectations tests, states in pertinent part: “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.” Fla. Std. Jury Instr. (Civ.) PL 5. Font argued that she was

entitled to submit her case to the jury on both theories of strict liability. Union

Carbide disagreed, arguing that pursuant to Agrofollajes, S.A. v. E.I. Du Pont De

Nemours & Co., 48 So. 3d 976 (Fla. 3d DCA 2010),1 this Court had rejected the

Second Restatement’s consumer expectations test and determined that after Kohler

Co. v. Marcotte, 907 So. 2d 596 (Fla. 3d DCA 2005),2 the appropriate standard

1 Subsequently, disapproved of by the Supreme Court of Florida in Aubin v. Union
Carbide Corp., 177 So. 3d 489 (Fla. 2015).
2 Subsequently, disapproved of by the Supreme Court of Florida in Aubin v. Union

Carbide Corp., 177 So. 3d 489 (Fla. 2015).

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was the risk utility test articulated in the Third Restatement. Union Carbide asked,

therefore, that the case be submitted to the jury only on the risk utility theory. The

trial court denied Font’s request to include the consumer expectations instruction.

The jury returned a verdict in favor of Union Carbide and Font appealed to this

Court.

         On appeal, Font sought reversal because the trial court did not instruct the

jury on the consumer expectations test as expressed in PL 5. On August 21, 2013,

this Court affirmed the jury’s verdict in favor of Union Carbide with citation to

both Agrofollajes and Union Carbide Corp. v. Aubin, 97 So. 3d 886 (Fla. 3d DCA

2012). (“Aubin I”). See Font I, 118 So. 3d 1005. Following Agrofollajes, this

Court had determined in Aubin I that the trial court erred in failing to apply the

Third Restatement’s exclusive adoption of the risk utility test for a design defect

claim, which imposes on plaintiffs the requirement of proving a reasonable

alternative design. 97 So. 3d at 893-894. Font petitioned for review by the

Supreme Court of Florida, and while that petition was pending, the Supreme Court

quashed this Court’s opinion in Aubin I, holding that the Second Restatement’s

consumer expectations test could also apply to design defect claims. Aubin II, 177

So. 3d at 519-20. Notably, the Supreme Court stressed that this Court’s holding in

Aubin I expressly and directly conflicted with its holding in West v. Caterpillar

Tractor, Co., 336 So. 2d 80 (Fla. 1976), and with the Fourth District’s decision in



                                           4
McConnell v. Union Carbide Corp., 937 So. 2d 148 (Fla. 4th DCA 2006),

disapproved of on other grounds by Aubin v. Union Carbide Corp., 177 So. 3d 489

(Fla. 2015), both of which applied the consumer expectations test set forth in the

Second Restatement as an alternative theory for design defect under strict products

liability. Aubin II, 177 So. 3d at 502.

      On January 12, 2016, the Supreme Court issued an order in which it

accepted jurisdiction of the instant case—which involves the same defendant and

the same product as Aubin I and Aubin II—and “ordered that the Petition for

Review is granted, that the Third District Court of Appeal’s decision in this case is

quashed, and this matter is remanded for reconsideration upon application of our

decision in Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015).” Font II,

41 Fla. L. Weekly S113. Thus, on remand, this Court must determine, under the

specific circumstances of this case, whether the jury should have also been

instructed on the Second Restatement’s consumer expectations test, as requested

by Font.

II.   ANALYSIS

      “A party is entitled to have the jury instructed on the theory of its case when

the evidence supports that theory.” Aubin II, 177 So. 3d at 517. Generally, trial

courts are accorded broad discretion in formulating jury instructions, and a

decision not to give an instruction “will not be reversed unless the error



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complained of resulted in a miscarriage of justice, or unless the ‘failure to give the

instruction was reasonably calculated to confuse or mislead the jury.’” Force v.

Ford Motor Co., 879 So. 2d 103, 106 (Fla. 5th DCA 2004) (quoting Hart v. Stern,

824 So. 2d 927, 929 (Fla. 5th DCA 2002)); see also, e.g., Aubin II, 177 So. 3d at

517 (“[T]he appellate court must assess whether the instruction reasonably might

have misled the jury.”); McPhee v. Paul Revere Life Ins. Co., 883 So. 2d 364, 368

(Fla. 4th DCA 2004) (“[T]he test for reversible error arising from an erroneous

jury instruction is not whether the instruction misled, but only whether it

reasonably might have misled the jury.”); Jacobs v. Westgate, 766 So. 2d 1175,

1180 (Fla. 3d DCA 2000) (“Reversal is required where a jury might reasonably

have been misled, regardless of whether it has actually been misled.”). The party

who asserts that the trial court erred in failing to give a requested jury instruction

“must show ‘the requested instruction contained an accurate statement of the law,

the facts in the case supported a giving of the instruction, and the instruction was

necessary for the jury to properly resolve the issues in the case.’” Aubin II, 177

So. 3d at 517 (quoting Barkett v. Gomez, 908 So. 2d 1084, 1086 (Fla. 3d DCA

2005)); see also H & H Elec., Inc. v. Lopez, 967 So. 2d 345, 349 (Fla. 3d DCA

2007); Force, 879 So. 2d at 106.

      In light of Aubin II, a review of the record here supports Font’s request for

the standard jury instruction in each respect: (1) the language of PL 5 was an



                                          6
accurate statement of Florida law; (2) Font presented substantial factual evidence

to support the giving of the instruction; and (3) the instruction was necessary for

the jury to properly resolve the dispute. Significantly, Union Carbide did not

assert at trial that Font’s proposed use of PL 5 did not accurately state Florida strict

liability law, or that no evidence supported the consumer expectations theory, or

that the standard instruction would confuse the jury. Rather, Union Carbide’s

argument was that pursuant to this Court’s decisions in Kohler and Agrofollajes

rejecting the Second Restatement’s consumer expectations test as an independent

basis for finding design defect, PL 5 was simply not applicable to Font’s case in

this District.

       Union Carbide has not identified any relevant factual distinctions between

Aubin II and this case which would lead this Court to conclude that Aubin II

should not apply here. Indeed, Aubin I and Aubin II “involved this identical

defendant, this identical product, this identical use by a plaintiff, this identical

injury, the identical theories of liability, the same underlying issues, and (finally)

much the same evidence.” McConnell, 937 So. 2d at 154. As a result of Aubin II,

this Court’s prior decisions embracing the Third Restatement’s exclusive adoption

of the risk utility test for defective design claims have been quashed, and the

consumer expectations test enunciated by the Florida Supreme Court in West

remains alternatively available to a plaintiff bringing a design defect strict products



                                           7
liability case. Because Font’s proposed use of PL 5 met the criteria discussed

above, we hold that it was error not to give that instruction.

III.   CONCLUSION

       Based on the Florida Supreme Court’s opinion in Aubin II, and the

undisputed factual similarity between Aubin II and this case, we reverse the

judgment in favor of Union Carbide and remand to the trial court with directions

that Font’s strict liability claim (Count II)3 be retried before a jury that has been

instructed consistent with the standard jury instructions approved by the Florida

Supreme Court in Aubin II. See In re Std. Jury Instr. in Civ. Cases—Report No.

13-01, 160 So. 3d 869, 871 (Fla. 2015) (employing both the consumer expectations

test and the risk utility test as alternative definitions of design defect).

       Reversed and remanded for new trial as to Count II.




3 Font’s counsel, at oral argument, conceded that the only claim that should be
retried was Count II, the strict liability claim. We agree. This claim was presented
to the jury under three alternative theories.

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