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  • Nicholas Gurney

Perilous Products: Inside the Dizzying World of Dangerous Product Litigation

Updated: Oct 22, 2019

Consumer products fail, often with disastrous results. Catastrophic injuries, limb loss, paralysis, and death are all too common results when dangerous products interact with consumers. For all the reasons why a product might fail, one thing is certain: product cases are different. The product liability practitioner must grapple with several realities at once: Evidence, Expertise, and even the Evolution of law.


The need to preserve evidence is legion among product liability trial lawyers. Sometimes, the ability to preserve critical evidence is simply beyond our control. Thankfully, state and federal law provides support to those who seek to protect evidence and punishment for those who seek to destroy it. See League of Women Voters of Fla. v. Detzner, 172 So. 3d 363 (Fla. 2015); James v. U.S. Airways, Inc., 375 F. Supp. 2d 1352 (M.D. Fla. 2005). When litigation is imminent, the party controlling evidence is likely to take on a duty to preserve the same. See Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So.2d 547, 549 (Fla. 4th DCA 2005) (finding, “a defendant could be charged with a duty to preserve evidence where it could reasonably have foreseen the claim”). The oft-cited “spoliation letter” provides powerful evidence of the latest date the recipient became aware of the duty to preserve.

The usefulness of the spoliation letter is not limited to potential litigants—third parties are often in possession of critical evidence. Third parties may be subject to civil liability for mishandling or destroying evidence. See James, 375 F. Supp. 2d at 1354 (finding, “third party spoliation claims, i.e. claims where the underlying action is against another defendant, are permitted even under this cloud of conflicting authority.”). However, litigants may need to show more than a third party’s “reasonable foreseeability” of the claim in order to trigger an independent cause of action. See Shamrock-Shamrock, Inc. v. Remark, 271 So. 3d 1200, 1206 (Fla. 5th DCA 2019) (declining to find a duty owed by third-party based solely upon foreseeability of litigation). This shows why it is so critical to send spoliation letters to both parties and nonparties alike.


Product practices often aim for flexibility over brute force. Nimble practitioners can develop a keen sense for problems and solutions across a wide array devices and technologies. This makes sense, as potentially dangerous products vary wildly in their composition and failure modes. From tires to tractor-trailers, practitioners carry a special burden to become “mini-experts,” studying each industry that permitted a dangerous product to come to market. This includes the close inspection of processes underlying design, materials, testing, production, regulation (or lack thereof), advertising, sales, and more.

This author routinely “goes back to school,” enrolling in survey courses, online education, trade skills training—whatever it takes to better understand the marketplace. Training guides, handbooks, and published materials are consulted regularly in an effort to better understand how a particular product was developed, assembled, and sold. Exemplars (new versions identical to the defective product) are purchased, disassembled, and examined, all in search of answers to key questions. Ultimately, professionals and expert witnesses are essential to a practical and pragmatic determination of the source of a defect.


Florida law supports a variety of different claims which may be brought to recover for harms and losses caused by a defective product. Broadly speaking, strict liability and standard negligence claims are most commonly employed in product actions. Within strict product liability specifically, three categories or “families” of claims appear frequently: (1) manufacturing defect, (2) design defect, and (3) failure to warn. See e.g. Force v. Ford Motor Co., 879 So. 2d 103, 106 (Fla. 5th DCA 2004). The genesis and development of these categories within Florida law can be traced at least as far back as 1965, to the publication of the American Law Institute’s Restatement (Second) of Torts. See West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80, 87 (Fla. 1976) (adopting Restatement (Second) of Torts § 402A).

Even with this history, Florida’s strict products liability law is not immutable. As recently as 2012, the Florida Supreme Court lamented the “state of flux” inherent in the jury's evaluation of a "design" action. See In re Standard Jury Instructions in Civil Cases--Report No. 09-10 (Prod. Liab.), 91 So. 3d 785, 789 (Fla. 2012) (Pariente, J. concurring). The design defect standard mired the uninitiated, both practitioners and Courts alike, for years. It was only recently that the Florida Supreme Court put this issue to bed, holding that Plaintiffs are categorically entitled to utilize the Consumer Expectations Test in evaluating claims of product defect. Aubin v. Union Carbide Corp., 177 So. 3d 489, 510 (Fla. 2015) (holding, “we adhere to the consumer expectations test, as set forth in the Second Restatement, and reject the categorical adoption of the Third Restatement and its reasonable alternative design requirement.”). Even so, risk/utility remains unsettled as a means of defense, requiring the product practitioner to ensure jury instructions best suited to the needs of the individual case.

Further complicating matters, Florida’s product liability law also permits so-called “alternative” theories of liability where a Plaintiff might otherwise be unable to identify the manufacturer of the precise product at issue. See Conley v. Boyle Drug Co., 570 So. 2d 275, 281 (Fla. 1990) (adopting the “the market-share alternate liability theory” previously adopted by the Washington Supreme Court). The "market-share alternate liability theory" ("MSAL") arises most often when a Plaintiff experiences injury caused by a product that is (or once was) manufactured by more than one company. MSAL largely relies on shared “risk contribution,” helpful in cases where a Plaintiff has not pled certain other, specific theories of liability. See Guarino v. Wyeth, LLC, 719 F.3d 1245, 1252 (11th Cir. 2013). Seasoned practitioners might recognize shared risk contribution as being somewhat divergent from Florida’s more traditional treatment of joint and several liability and pure comparative fault apportionment. See §768.81, Fla. Stat. (2019). However, Conley provides a helpful roadmap with detailed proof standards, even permitting potential rebuttal of a risk contribution finding. See 570 So. 2d at 286.

The product liability practitioner must master these topics and more when navigating defective product litigation. It is sometimes daunting, but perhaps Theodore Roosevelt said it best: “[N]othing in the world is worth having or worth doing unless it means effort, pain, difficulty...”

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