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Florida Third DCA denies new trial to tobacco company on defective product claim, finding no reversible error in failure to charge jury on "consumer expectations" test not relied upon by plaintiff

On June 28, 2017, in R.J. Reynolds Tobacco Co. v. Larkin, No. 3D16-910, the Florida Third DCA reversed a decision by the trial court granting a new trial to the defendant tobacco company on a defective product claim. The defendant had sought non-standard jury instructions which included features of both the “consumer expectations” test, Restatement (Second) Torts § 402A (Am. Law Inst. 1965), and the “risk utility” test, Restatement (Third) of Torts: Products Liability § 2 (Am. Law Inst. 1998), as well as a special instruction that claims regarding consumer expectations regarding the defendant’s cigarettes were expressly preempted by federal law. The Third DCA had previously held that the risk utility test is the exclusive test for defective design claims, but the Florida Supreme Court held in Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015) that a plaintiff is entitled to jury instructions on both claims. However, in the instant case the plaintiff had elected to proceed under only the risk utility test and the trial court accordingly only instructed on that theory. The defendant appears to have convinced the trial court in post-trial motions that it too was entitled to instructions on both theories notwithstanding the fact that the plaintiff, unlike the plaintiff in Aubin, was not proceeding on the risk utility theory. Although the underlying rationale for the defendant’s position is not entirely clear from the Court’s opinion, it appears that the defendant argued that Aubin required an instruction on both theories regardless of whether the plaintiff wished to rely in whole or in part on the consumer expectations test. The Florida Third DCA rejected this argument on the basis that the failure to give the instruction could not be said to have “resulted in a miscarriage of justice,” or to have been “calculated to confuse or mislead the jury.”