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Florida Fourth DCA rejects use of consumer expectations test in product liability case due to complexity of medical device involved and fact that it was available to an ordinary consumer only as an incident to a medical procedure

On October 7, 2020, in Cavanaugh v. Stryker Corporation, No. 4D19-523, the Florida Fourth DCA considered an appeal by the plaintiff of a defense verdict in a product liability case involving Stryker Corporation’s Neptune 2 high-flow suction device.  The plaintiff is the personal representative of a patient who died during lung removal surgery when the Neptune 2 device, which is not intended to be used intra-operatively for passive chest drainage, was mistakenly used to remove blood and clear the surgical field.  This caused the heart to be sucked over to the other side of the patient’s chest and resulted in immediate and fatal blood loss.  The plaintiff settled prior to trial with the medical providers and proceeded to trial against Stryker on both negligence grounds and strict liability claims of design defects and failure to warn. 
After the jury returned a verdict for the defendant, the instant appeal ensued in which the plaintiff argued that the trial court erred in not instructing the jury on the consumer expectations test under the Florida Supreme Court’s decision in Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015).  The Fourth DCA disagreed, concluding that Aubin was distinguishable from the instant case because of the complexity of the product: “we hold that the consumer expectations test cannot be logically applied here, where the product in question is a complex medical device available to an ordinary consumer only as an incident to a medical procedure.” By way of a footnote, the Court further refined its distinction: “[w]e do not hold that complexity alone is necessarily enough to preclude the application of the consumer expectations test. Indeed, ‘[m]any familiar consumer products involve complex technology.’ Cunningham v. Mitsubishi Motors Corp., C-3-88-582, 1993 WL 1367436, at *4 (S.D. Ohio June 16, 1993). The applicability of the consumer expectations test ‘does not depend necessarily on a product’s complexity in technology or use[,]” but rather depends on whether “prolonged use, knowledge, or familiarity of the product’s performance by consumers is sufficient to allow consumers to form reasonable expectations of the product’s safety.’ Jackson v. Gen. Motors Corp., 60 S.W.3d 800, 806 (Tenn. 2001).”  Of note, the Court held that the plaintiff had properly preserved this issue for appellate review by submitting an alternative proposed jury instruction, even though the plaintiff did not object when the trial court decided to instead accept the defense’s proposed jury instruction.  The Fourth DCA cited Middelveen v. Sibson Realty, Inc., 417 So. 2d 275, 277 (Fla. 5th DCA 1982) (“[I]f a party submits a written request for a jury instruction, and it is rejected by the trial court, the issue is preserved for appellate review without more.”).

The plaintiff also argued that the trial court erred by granting the defendant an additional peremptory strike when a juror had to be replaced during the trial.  Rather than simply seating the first alternate jury, the trial court the trial court gave each party an opportunity to exercise a peremptory strike of that individual from the jury, necessitating the seating of the only other alternate juror when the manufacturer exercised this special peremptory.  The Fourth DCA acknowledged that this was error, citing Florida Rule of Civil Procedure 1.431(f), which states that “[n]o one shall be sworn as a juror until the jury has been accepted by the parties or until all challenges have been exhausted.” Fla. R. Civ. P. 1.431(f) (emphasis added).   Quoting from Tedder v. Video Elecs., Inc., 491 So. 2d 533, 534 (Fla. 1986), the Fourth DCA concluded that “a juror may be peremptorily challenged only until he is sworn.”   However, the Fourth DCA additionally concluded that the error was harmless, noting that the Florida Supreme Court has stated that “[s]eldom, if ever, will excusal of a juror constitute reversible error . . . ” Piccott v. State, 116 So. 2d 626, 627 (Fla. 1959).  The Court cited several cases in which in which it was found that any error in removing a juror is harmless where the juror was replaced by a duly selected alternate who had been present during the entire proceedings and where no prejudice was shown to have resulted from the substitution. See Ortiz v. State, 835 So. 2d 1250, 1251 (Fla. 4th DCA 2003); Graham v. State, 470 So. 2d 97, 98 (Fla. 1st DCA 1985); Orosz v. State, 389 So. 2d 1199, 1200 (Fla. 1st DCA 1980); see also Porter v. State, 388 So. 2d 18, 18–19 (Fla. 4th DCA 1980) (holding that the trial court’s removal of a juror who had recognized a witness, even though the juror stated that she could fairly judge his testimony, was not prejudicial error where “an alternate juror was present to whom appellant had not objected”). The Fourth DCA also noted that this was not a case of “tactical gamesmanship” on the part of the defendant and that it was the plaintiff that initiated the removal of the juror. Cf. McNeil v. State, 158 So. 3d 626, 628 (Fla. 5th DCA 2014).