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Florida Legal Updates || Compiled by Barbara Green, P.A.
December 2015

Collateral Sources

Joerg v. State Farm Mut. Auto. Ins. Co.
Case No. No. SC13‑1768, 2015 WL 5995754 (Fla. Oct. 15, 2015)
The Supreme Court overruled Florida Physician’s Insurance Reciprocal v. Stanley, 452 So. 2d 514 (Fla.1984)., "to the extent that it supported the admission of social legislation benefits as an exception to the evidentiary collateral source rule."
The collateral source rule, as a rule of evidence, generally requires exclusion from evidence of resources available from sources other than the tortfeasor. Stanley had created a limited exception to the collateral source rule. Stanley allowed the jury to consider "governmental or charitable benefits available to all citizens, regardless of wealth or status ... in determining the reasonable cost of necessary future care."
The Court pointed out that the availability of such future benefits is speculative. "The continued existence and sufficient funding of public services depend upon legislative action, which is by no means a predictable matter..."
Moreover, sources such as Medicare and Medicaid have a right of subrogation or reimbursement, so there is no "windfall" to the plaintiff.
"Finally, to consider Medicare, Medicaid, and other similar social legislation benefits as exceptions to the general rule that precludes admission of collateral sources circumvents the purpose of the collateral source rule. It is a basic principle of law that tortfeasors should not receive a windfall due to benefits available to the injured party, however those benefits were accrued"
Admission of such evidence confuses the jury and prejudices the plaintiff on both liability and damages.
"To affirm the decision below would result in a new trial in which State Farm would be permitted to present confusing, prejudicial, and speculative evidence of Luke Joerg’s future entitlement to Medicare benefits, when State Farm would not otherwise be permitted to seek a reduction of the value of these benefits from any award Joerg might receive. This we cannot allow. We conclude that the trial court properly excluded evidence of Luke Joerg’s eligibility for future benefits from Medicare, Medicaid, and other social legislation as collateral sources"

My personal observation is that this case should be particularly useful in fending off defense attempts to use the Affordable Care Act (Obamacare) to try to reduce damages for future medical expenses.  Some defendants are trying to argue that the plaintiff’s future medical expenses should be limited to the amount of premiums for the best plan available under the Affordable Care Act.  Nationwide, most courts have rejected that defense argument. Under the reasoning of this case, the Affordable Care Act should be inadmissible and should not be used post trial to reduce damages.

Products Liability

Aubin v. Union Carbide Corp.
Case No. No. SC12–2075, 2015 WL 6513924 (Oct. 29, 2015)
The Florida Supreme Court reversed the 3d DCA’s adoption of the Third Restatement risk-utility test in design defect cases.  The court held that the Third Restatement risk‑utility test is not the law in Florida.  The  consumer expectations test of West v. Caterpillar,  336 So. 2d 80 (Fla. 1976), is still the law in Florida
The Court concluded “that the definition of design defect first enunciated in West, which utilizes the consumer expectations test, instead of utilizing the risk utility test and requiring proof of a reasonable alternative design, best vindicates the purposes underlying the doctrine of strict liability. We thus disapprove of the Third District’s adoption of the risk utility test for design defects, as enunciated in the Third Restatement."
In addition, the Court held that, “in determining that Aubin failed to show that the asbestos designed and manufactured by Union Carbide was the legal cause of Aubin’s mesothelioma, the Third District erroneously merged the Third Restatement’s definition of design defect with causation, which again creates a conflict as the Third Restatement’s definition of a design defect is different than the definition Florida courts have previously used. After applying a proper legal analysis, we conclude that Aubin did present sufficient evidence of causation, and thus the determination of legal causation was properly a jury question based on conflicting evidence. We accordingly further disapprove that aspect of the Third District’s opinion, including the conclusion that Union Carbide was entitled to a directed verdict on the design defect claim."
The court also pointed out that the Third DCA decision was contrary to the decisions of other DCAs and to the standard jury instruction.
The court agreed with the Third DCA that the learned intermediary doctrine applies in this asbestos case, but reverses the Third DCA's order for a new trial on the failure to warn claim because the defendant's requested a jury instruction was misleading.
"For example, one of the factors proposed by Union Carbide was whether the intermediaries were aware that asbestos is dangerous. However, ...  a jury would be reasonably misled by such a jury instruction that strongly implies that a learned intermediary’s specific knowledge about a defect, rather than the end user’s knowledge, is the focus of Florida’s strict liability law. Likewise, the factor that the jury should consider whether Union Carbide had access to the learned intermediary’s customers is misleading, as neither the caselaw nor the Second Restatement have recognized that manufacturers must have direct access to the end user."
"As we have explained, both the Second and Third Restatements provide that the learned intermediary defense permits a manufacturer to rely on an intermediary to relay warnings to the end user, provided that reliance is reasonable, based on the following nonexclusive factors: the gravity of the risks posed by the product, the likelihood that the intermediary will convey the information to the ultimate end user, and the feasibility and effectiveness of directly warning the end user. Union Carbide’s proposed instructions did not clearly address these factors and in fact were misleading in this regard."

Barbara Green is an appellate lawyer in Coral Gables, Florida, concentrating on appeals and litigation support. She is a graduate of the University of Miami School of Law (J.D., 1978, Magna Cum Laude).

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