Firm News Feed Jul 2020 00:00:00 -0800firmwise Rise and Defense of Optional Feature Litigation<p><strong><i>John&rsquo;s Bad Day</i></strong></p> <p>On a Sunday afternoon, John was driving his new 2017 base model Meerkat car when he became distracted looking for a french fry he dropped on the floor. His car crossed into the adjacent lane and, after traveling a few hundred feet, collided with a pickup truck that stopped for a woman pushing a baby carriage across the road. John is seriously injured. Once discharged from the hospital, he called an attorney to see who he can sue for the crash. The attorney discovered that a lane departure warning system and automatic emergency braking were offered as optional features on the 2017 Meerkat. John then sued the vehicle manufacturer and selling dealer for strict liability and negligence based upon claims that the car was defective and unreasonably dangerous because it was not equipped with these safety features that would have prevented his crash.</p> <p><strong><i>The Allure of Optional Feature Litigation for Plaintiffs</i></strong></p> <p>&nbsp;While the scenario described above is fictional, lawsuits based upon available optional features are very real. These types of claims are not new, but with the growth and rollout of new technologies, particularly in the vehicle industry, claims asserting that a product was defective and unreasonably dangerous because it was not equipped with optional features will likely increase. These types of claims are very appealing to plaintiffs&rsquo; attorneys for a number of reasons, including:</p> <ul> <li>The liability theory is pretty simple: &ldquo;The option makes the product safer and would have prevented the crash and/or injuries.&rdquo;</li> </ul> <ul> <li>These types of claims are prime opportunities for &ldquo;reptile theory&rdquo; arguments based upon couching the design hierarchy as a rule.</li> </ul> <ul> <li>The availability of the feature as optional equipment on the product provides makes it difficult, if not impossible, to argue that it is not economically and technologically feasible.</li> </ul> <ul> <li>The insurance industry and other safety advocacy groups frequently publish papers and studies on the benefits of these technologies which can be used to show &ldquo;notice&rdquo; of the safety benefit from the feature and the number preventable deaths/injuries/crashes which from implementation of the feature on the vehicle.</li> </ul> <ul> <li>Internal company documents may exist that tout the safety benefits and profitability of the technology in order to justify investing in research and development. These documents, in plaintiffs&rsquo; eyes, are clear evidence of the manufacturer putting profits over people.</li> </ul> <p><strong><i>The Design Hierarchy</i></strong></p> <p>The design hierarchy is the foundation upon which plaintiffs will build their case. The hierarchy is a tool engineers use for developing products, but plaintiffs attempt to transform it into a &ldquo;rule&rdquo; which gives rise to liability if it is not followed. Under the design hierarchy, a manufacturer should: (1) design out hazards posed by the product; (2) if the hazard cannot be designed out, it should be guarded against; and (3) if it cannot be guarded against, the manufacturer must warn of the hazard.</p> <p>Plaintiffs will argue there is no need to go past the first step because the manufacturer violated the hierarchy by not making the optional feature standard equipment which would have designed out the hazard.</p> <p>In John&rsquo;s example above, plaintiff will argue the hazards are (a) leaving the lane due to the driver being distracted and (b) rear ending another vehicle or a striking an object in the road because the driver was distracted or did not react quickly enough. The optional lane departure warning system would have alerted John he was leaving the lane or even corrected the drift for him, and the optional automatic emergency braking would have prevented the hazard of rear ending the pickup truck. Therefore, according to John&rsquo;s attorney, the manufacturer violated the hierarchy because it had the technology to design out the hazard and did not do so.</p> <p><strong><i>Focus on the Real Standard for Liability</i></strong></p> <p>In order to properly defend an optional feature claim, avoid going down plaintiffs&rsquo; path that the product is safer with the feature and, therefore, without it, the product is defective/unreasonably dangerous. Generally, a product manufacturer is not an insurer against all harm that might be caused by using the product, and the manufacturer or designer is not obligated to produce an accident-proof or injury-proof product.</p> <p>Courts almost universally recognized the standard for liability is not whether a product is the safest possible product or whether it can be made safer, but whether the product, as designed or manufactured, is <u>unreasonably dangerous</u>.</p> <p>In defending the product, it is important to reinforce that the availability of a new feature does not transform a previously non-defective model into a defective one. Before the feature was introduced, users could manage the risk of using the product without the feature. The introduction of a product with the optional feature may make the utility of the product go up, or the risk go down, but the risk of using a product without the feature doesn&rsquo;t change. This can be shown graphically as:</p> <p align="center"><img src=" and Defense of Optional Feature Litigation.jpg" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="375" height="167" /></p> <p align="center"><i>Prepare for Reptile Theory Questions</i></p> <p>These claims are ripe for &ldquo;reptile theory&rdquo; questions. Examples of common &ldquo;reptile&rdquo; questions to expect are:</p> <ul> <li>Don&rsquo;t you agree a manufacturer has a duty to make the safest possible product?</li> <li>Wouldn&rsquo;t you agree a manufacturer should never needlessly endanger the public?</li> <li>Wouldn&rsquo;t you want your child to have the safest [product] possible?</li> </ul> <p>Be thoroughly prepared to respond to these kinds of questions. Also be prepared to address company documents which discuss the safety benefits of the option and the decision to make it optional.</p> <p>Almost all engineers will admit they are familiar with the design hierarchy as it was taught in even the most basic engineering courses. However, they must be careful not to fall into the trap of elevating the hierarchy from a tool to a rule. Engineers must also be prepared to defuse plaintiffs&rsquo; description of the &ldquo;hazard&rdquo; and reiterate that the optional feature at issue in the litigation is merely an enhancement to an already reasonably safe product.</p> <p><strong><i>Highlight the Bias in Safety Advocacy/Insurance Industry Studies</i></strong></p> <p>Advocacy groups and insurance industry groups such as the Insurance Institute for Highway Safety and their sister entity, the Highway Loss Data Institute often publish studies advocating the benefits of safety technologies.</p> <p>Plaintiffs will use these studies to support their claims. These studies, however, can have biases or be based upon inadequate data or methodologies that are skewed toward a particular outcome or finding.</p> <p>The IIHS has a clear interest in reducing insurance payouts, which is evidenced by the fact that it is supported by insurers and funded by national insurance associations. <i>See</i> <a href=""></a>. The impact of these studies can be defused by highlighting the biases and flaws within them.</p> <p><strong><i>If Applicable, Point Out That Government Safety Standards Do Not Require the Feature</i></strong></p> <p>Not all products have government safety standards, but if such standards exist, the fact that they do not require the product to be equipped with the option is very persuasive evidence, and in some jurisdictions creates a presumption of non-liability. The most obvious examples are Federal Motor Vehicle Safety Standards and Consumer Product Safety Commission Rules. In fact, it is possible that the regulatory agency considered whether to make the feature mandatory and determined there was little to no benefit. If so, that determination will be a useful tool to rebut the advocacy studies and publications relied upon by plaintiffs.</p> <p><strong><i>Embrace the Consumer Expectations Test</i></strong></p> <p>The consumer expectation test provides that &ldquo;a product is unreasonably dangerous in design&hellip;[if] it failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner. <i>See</i> <i>Aubin v. Union Carbide Corp</i>., 177 So.3d 489 (Fla. 2015) <i>citing</i> Restatement (Second) of Torts &sect;402A. Under this theory, it is the expectation of the consumer and not specifically the conduct of the manufacturer that determines whether a product is defective or unreasonably dangerous.</p> <p>Many times, defendants in product liability cases believe the consumer expectation test weighs in favor of the plaintiff while the risk/utility test is preferable for the defense. In optional feature claims, the consumer expectations test can be a weapon for your defense. For example, conducting a survey and review of available data to demonstrate that in 2017, 90% of similar products in use in the U.S. were not equipped with the feature is strong evidence to show that a consumer would not expect that feature to be present on a similar 2017 product.</p> <p><strong><i>Highlight Implementation and Efforts to Promote the Product</i></strong></p> <p>A feature can only provide a benefit if customers will accept it. It takes time to develop customer acceptance. &ldquo;Optionality&rdquo; is necessary to drive customer acceptance.</p> <p>Explaining the company&rsquo;s efforts to promote the feature to drive customer acceptance also presents plaintiffs with a dilemma. They want to claim that the manufacturer was greedy and made the feature optional so that it can make more money from the option, but at the same time want to claim that the manufacturer did not educate or inform the public enough to buy the option. These theories are irreconcilably inconsistent.</p> <p><strong><i>Make Freedom of Choice/Personal Responsibility Key Themes</i></strong></p> <p>Freedom of choice and personal responsibility should be central themes for the defense. Most consumers do not have infinite resources and must decide how they are going to spend their hard earned money. Considering safety options is a common component of shopping for products. Perhaps the safety option of a vehicle, affected the vehicle&rsquo;s performance, the number of passengers or cargo it can carry, or significantly changed the aesthetic. Whatever the reason, consumers should be the ones that weigh the relative risk with the benefits of including the option on the product.</p> <p>For example, the consumer may decide that they have been able maintain their lane of travel without assistance for years and, instead of spending money on a lane departure warning system, may choose to spend money on a better child safety seat, a backup camera or a home security system. People are entitled to make their own decisions on how to spend their &ldquo;safety&rdquo; dollars and to make choices about their risk tolerances.</p> <p><strong><i>Tell the Story Regarding the Real Increased Cost of the Optional Features</i></strong></p> <p>A plaintiffs' attorney will claim that the cost of the optional feature is simply the sum of the component parts. This overly simplified position does not take into account the research and development that goes into designing and testing the parts.</p> <p>Additionally, point out the other costs to consumers of the optional features. On October 25, 2018, the American Automobile Association released findings that vehicles equipped with advanced driver assistance systems, such as automatic emergency braking and lane departure warnings, can significantly increase the cost of repair, even for minor vehicle collisions.</p> <p>&ldquo;For the vehicles in AAA&rsquo;s study, the repair bill for a minor front or rear collision on a car with [advanced driver assistance systems] can run as high as $5,300, almost two and half times the repair cost for a vehicle without these systems.&rdquo; According to AAA, &ldquo;[w]ith one-in-three Americans unable to afford an unexpected repair bill of just $500, AAA strongly urges consumers to perform an insurance policy review and consider the potential repair costs of these advanced systems.&rdquo; When used in conjunction with freedom of choice, the added cost to repair can be a compelling justification in support of optionality.</p> <p><strong><i>Case Precedent for Optional Feature Claims</i></strong></p> <p>Courts in many jurisdictions have recognized that a manufacturer should not be liable for a consumer&rsquo;s choice not to purchase an available optional feature, even where the optional feature would make the product safer. For example:</p> <ul> <li>&ldquo;A manufacturer is not obligated to market only one version of a product, that being the very safest design possible. If that were so, automobile manufacturers could not offer consumers sports cars, jeeps, or compact cars&hellip;Personal safety devices, in particular, require personal choices, and it is beyond the province of courts and juries to act as legislators and preordain those choices.&rdquo;&mdash; <i>Linegar v. Armour of America, Inc.</i>, 909 F.2d 1150, 1154 (8<sup>th</sup> Cir. 1990) (applying Missouri law).</li> </ul> <ul> <li>&ldquo;Put simply, if the [plaintiffs] wanted a car with an air bag, they should have purchased a car with an air bag. If you want it, then pay for it.&rdquo;&mdash; <i>Cooper v. Gen. Motors Corp.</i>, 702 So.2d 428, 443-44 (Miss. 1998).</li> </ul> <ul> <li>&ldquo;[W]hen a customer exercises an option to purchase a product without a safety feature, it is axiomatic that the manufacturer should not be held liable for damages which that safety feature may have prevented.&rdquo;&mdash; <i>Austin v. Clark Equip. Co.</i>, 48 F.3d 833, 837 (4th Cir. 1995) <i>quoting Butler v. Navistar Int'l Transp. Corp.</i>, 809 F. Supp. 1202, 1209 (W.D. Va. 1991).</li> </ul> <strong><i>Key Takeaways<br /> <br /> </i></strong> <p>With the proliferation of advanced technologies in motor vehicles, manufacturers can expect an increase in litigation by consumers who purchased products where these features were not available or were optional, and who claim they were injured because of the absence of the feature. These cases are attacks on the corporate decision-making strategy and can create significant exposure to manufacturers if not properly defended.</p>Products Liability Blog15 Oct 2019 00:00:00 -0800 Supreme Court Rejects Daubert, Returns Florida to Frye Standard<p>On October 15, 2018, the Supreme Court of Florida invalidated the 2013 legislative changes to the Florida Evidence Code that adopted the modern <i>Daubert</i> standard for admissibility of expert testimony, returning Florida to the more lenient <i>Frye </i>standard. <i>DeLisle v. Crane Co., et al.</i>, No. SC16-2182. Consistent with their positions in the February 2017 rules decision, which declined to adopt <i>Daubert</i> to the extent it is procedural, and their decision to accept discretionary-review jurisdiction in <i>DeLisle</i>, Justices Labarga, Pariente, Lewis, and Quince formed a majority to reject the <i>Daubert</i> standard. Chief Justice Canady dissented, arguing that the Court lacked jurisdiction, with Justices Polston and Lawson concurring in his dissenting opinion.</p> <p>The Supreme Court&rsquo;s ruling ends the ongoing uncertainty in the lower courts regarding the proper standard for expert testimony after the Court declined to adopt the <i>Daubert </i>Amendment as a rule of court, to the extent it was procedural. <i>In Re: Amendments to the Florida Evidence Code</i>, No. SC16-181, February 16, 2017. That rules decision did not present a proper case or controversy for the Court to pass on the constitutionality of the <i>Daubert </i>Amendment, but set the stage for the Court&rsquo;s ruling in <i>DeLisle</i>. In July 2017, the Supreme Court voted four to three to accept discretionary-review jurisdiction in <i>DeLisle</i>, giving the Court its first opportunity to directly consider the constitutionality of the <i>Daubert </i>Amendment. The Court heard oral argument in the case on March 6, 2018. (For additional background, <i>see</i> <a href=";an=72551&amp;format=xml&amp;p=5085">Florida Supreme Court to Rule on Constitutionality of Daubert Standard</a>; <a href=";an=63741&amp;format=xml&amp;p=5085">Daubert Under the Microscope Again by Florida Courts</a>, and <a href=";an=75242&amp;format=xml&amp;p=5085">Florida Supreme Court Hears Argument on Daubert Standard</a>.)</p> <p>The majority opinion, authored by Justice Quince, focuses on the central issue to determining the constitutionality of the <i>Daubert </i>Amendment&mdash;whether it is a substantive law properly within the purview of the legislature, or a matter of procedure instead within the authority of the Court. The Court ruled that the <i>Daubert</i> Amendment is procedural because it &ldquo;does not create, define, or regulate a right,&rdquo; and that the Florida Legislature overstepped its bounds and enacted an unconstitutional law in conflict with a rule of the Court set out in its prior decisions. The majority opinion emphasizes that the Supreme Court has repeatedly affirmed the <i>Frye</i> standard despite the adoption of <i>Daubert </i>as the standard in federal court in 1993.</p> <p>The opinion also describes <i>Daubert </i>as the more lenient standard&mdash;although it applies more broadly to all cases and requires the trial court to evaluate the reliability of the science underlying expert testimony&mdash;because it does not require that expert testimony be &ldquo;generally accepted&rdquo; in the scientific community. Justice Quince notes that <i>Daubert</i> was initially adopted by the United States Supreme Court because &ldquo;otherwise probative and scientifically valid evidence was being excluded under the <i>Frye</i> standard &hellip;.&rdquo;</p> <p>Justice Pariente concurred in a separate opinion to express her &ldquo;belief that the <i>Daubert </i>amendment also has the potential to unconstitutionally impair civil litigants&rsquo; right to access the courts.&rdquo; She notes concerns about the impact of increased hearings on motions to exclude experts under <i>Daubert</i> in increasing costs to litigants, causing attorneys to turn down meritorious but lower value claims and overburdening the court system with lengthy and technical hearings. On the other hand, Justice Pariente suggests that trial courts still play an important gatekeeping function under <i>Frye </i>and notes that &ldquo;a proper and thorough application of <i>Frye </i>allows the trial judge to inquire beyond bare assertions of general acceptance.&rdquo;</p> <p>Justice Labarga also concurred separately to address why the Court accepted jurisdiction on the basis of express and direct conflict. He states that an express and direct conflict existed because the Fourth District Court of Appeals &ldquo;applied the <i>Daubert </i>standard, [in conflict] with earlier decision by this Court that conclude <i>Frye</i> is the appropriate test,&rdquo; and even though the Court &ldquo;expressly declined to adopt the [<i>Daubert </i>Amendment]&rdquo; to the extent it was procedural. This reasoning suggests that future legislative changes to the Evidence Code may not be controlling law unless and until they are adopted by the Supreme Court.</p> <p>In his dissenting opinion, Chief Justice Canady sharply disputes that the Court had jurisdiction to hear the case and expresses his view that the majority has committed a &ldquo;very serious error&rdquo; that &ldquo;sets aside fundamental constitutional principles of conflict jurisdiction.&rdquo; He states that the Court has &ldquo;long recognized that a case decided on the basis of a statutory provision cannot be in conflict with an earlier case that pre-dated the effective date of that statutory provision.&rdquo; In his view, because the Court&rsquo;s prior decisions adhering to <i>Frye</i> do not address &ldquo;the same question of law&rdquo; addressed by the Fourth District Court of Appeals below, there is no express and direct conflict jurisdiction. Notably, the plaintiff did not challenge the constitutionality of the <i>Daubert </i>Amendment before the trial court, and the issue was first raised on appeal to the Fourth District Court of Appeal.</p>Products Liability Blog16 Oct 2018 00:00:00 -0800 Supreme Court Hears Argument on Daubert Standard<p>On March 6, 2018, the Supreme Court of Florida heard argument in a case that presents the Court with an opportunity to resolve whether <i>Frye</i> or <i>Daubert</i> will be the governing standard for admission of expert testimony going forward in Florida state courts. <i>DeLisle v. Crane Co., et al.</i>, No. SC16-2182. In this closely watched case, the Plaintiff challenges the constitutionality of 2013 legislative changes to the Florida Evidence Code that dropped the older <i>Frye</i> standard in favor of the more rigorous <i>Daubert</i> standard for admissibility of expert testimony.</p> <p>There has been considerable uncertainty in the lower courts as to the proper standard for expert testimony following the Supreme Court&rsquo;s rules decision that declined to adopt the 2013 <i>Daubert </i>Amendment, to the extent it is procedural. <i>In Re: Amendments to the Florida Evidence Code</i>, No. SC16-181, February 16, 2017. While that rules decision did not pass on the constitutionality of the <i>Daubert </i>Amendment, it raised uncertainty about the viability of <i>Daubert </i>in Florida and the potential that the Court would ultimately rule the statute invalid when presented with a proper case and controversy in which to address the issue. The Supreme Court voted four to three to accept discretionary-review jurisdiction in <i>DeLisle </i>in July 2017, giving the Court its first opportunity to directly consider the constitutionality of the <i>Daubert </i>Amendment. (For additional background, <i>see</i> <a href=";an=72551&amp;format=xml&amp;p=5085">Florida Supreme Court to Rule on Constitutionality of Daubert Standard</a>; <a href=";an=63741&amp;format=xml&amp;p=5085">Daubert Under the Microscope Again by Florida Courts</a>.)</p> <p>The first several minutes of the oral argument focused on whether the Court has jurisdiction in this case to rule on the constitutionality of the <i>Daubert </i>Amendment. Justices Canady and Lawson, who dissented from the Court&rsquo;s July 2017 decision to accept discretionary-review jurisdiction, sharply questioned the Plaintiff on this point, and disputed his position that the Fourth District Court of Appeal had ruled on the constitutionality of the <i>Daubert</i> Amendment by applying the 2013 statute. James Ferraro, arguing for the Plaintiff, maintained that the Court properly accepted conflict jurisdiction because the Fourth District&rsquo;s application of <i>Daubert</i> conflicted with earlier Supreme Court decisions pre-dating the enactment of the <i>Daubert </i>Amendment, which adhered to the <i>Frye </i>standard. However, he was unable to identify a district court of appeal decision refusing to apply the <i>Daubert </i>Amendment, in conflict with the Fourth District&rsquo;s decision below. In general, conflict jurisdiction requires an express and direct conflict with a decision of another district court of appeal or the Supreme Court on the same question of law.</p> <p>The parties&rsquo; arguments also addressed whether the Plaintiff&rsquo;s experts would have been excluded even under the <i>Frye</i> standard&mdash;an alternative basis for the Fourth District Court of Appeal&rsquo;s ruling. The Defendants argued that the Fourth District correctly concluded that the Plaintiff&rsquo;s experts should have been excluded under either <i>Frye </i>or <i>Daubert</i>. Justices Pariente and Quince expressed skepticism of this position and questioned why the testimony would not have been sufficient for the jury to hear and evaluate under <i>Frye</i>.</p> <p>Elliot Scherker, arguing for Defendant R.J. Reynolds, downplayed the differences between <i>Daubert</i> and <i>Frye</i>, stating that the first part of the <i>Daubert</i> test is the <i>Frye</i> &ldquo;general acceptance&rdquo; standard. Mr. Scherker referred to an &ldquo;exceedingly thin&rdquo; line between the two standards, both of which aim to keep junk science out of the courtroom, and argued that the expert testimony excluded by the Fourth District is junk science under any definition.<a href="file:///C:/Users/Stefanie/Downloads/Florida%20Supreme%20Court%20Hears%20Argument%20on%20Daubert%20Standard.DOCX#_ftn1" name="_ftnref1" title="">[1]</a> Richard Doran, arguing for Defendant Crane Co., also urged that the outcome in this case would be the same under either <i>Daubert </i>or <i>Frye</i>, and that it was unnecessary for the Court to reach the constitutional issue in this case. During the Plaintiff&rsquo;s rebuttal argument, Justice Lewis, who was in the majority that voted to accept discretionary-review jurisdiction in the case, pressed Mr. Ferraro on this point. He asked the Plaintiff for the scientific basis for the excluded testimony that would make it admissible under <i>Frye</i> and noted that it may not be necessary for the Court to reach the constitutional issue if the Defendants would prevail even under <i>Frye</i>.</p> <p>Finally, the parties addressed the central issue to determining the constitutionality of the <i>Daubert </i>Amendment&mdash;whether it is substantive or procedural in nature. Plaintiff reiterated the argument made in his brief that the <i>Daubert</i> Amendment is procedural (<i>i.e.</i>, not impacting rights, obligations, causes of actions, etc.), and that the Florida Legislature overstepped its bounds and enacted an unconstitutional law on a matter solely within the province of the Court.</p> <p>Justice Pariente noted that the <i>Daubert </i>Amendment has been deemed procedural for purposes of retroactive application, and asked Defendant R.J. Reynolds how the same statute could then be deemed substantive for purposes of separation of powers. Mr. Scherker responded that, under Florida precedent, whether a statute is substantive or procedural depends on the context in which the issue is raised, and that it cannot be the case that a statute deemed procedural for purposes of retroactivity is automatically also deemed an unconstitutional violation of separation of powers. Mr. Scherker argued that section 90.702 of the Florida Evidence Code, which sets out the standard for admission of expert testimony, has been substantive in part and procedural in part since its adoption in 1976 and in its current form as amended in 2013. He urged that the 2013 amendment to the statute is substantive, and therefore constitutional, because it changed the standard for evaluating what constitutes &ldquo;junk science&rdquo; that should be excluded.</p> <p>Three of the justices expressed concern about the impact of <i>Daubert </i>on litigants and the court system. Justice Quince asked the Plaintiff about the impact of increased hearings on motions to exclude experts under <i>Daubert</i>, which the Plaintiff argued were overburdening the court system. Justice Pariente asked the Defendants whether the <i>Daubert </i>standard tends to usurp the jury&rsquo;s role as trier of fact in evaluating expert testimony. Justices Pariente and Lewis also questioned the Defendants about the practical implications of <i>Daubert</i> for plaintiffs attempting to prove that their injury was caused by exposure to a defendant&rsquo;s toxic substance over a period of several years through several different products. The Plaintiff here contracted mesothelioma after long-term exposure to asbestos from several different products. Justice Lewis noted that there are not going to be human experiments in such cases to support causation, and questioned if there is an unreasonable burden on plaintiffs to quantify their exposure.</p> <p>The Court did not hear argument from any of the several <i>amici curiae</i> that filed briefs in the case. The Attorney General for the State of Florida filed a brief in support of the Defendants, and had requested leave to participate in oral argument, which was denied.</p> <p>The Supreme Court is anticipated to issue its decision in the coming months, which promises to resolve the current uncertainty about the continued viability of <i>Daubert </i>in Florida. If the Justices remain consistent with their positions in the February 2017 rules decision, which declined to adopt <i>Daubert</i> to the extent it is procedural, and their decision to accept discretionary-review jurisdiction in <i>DeLisle</i>, it is anticipated that Justices Labarga, Pariente, Lewis, and Quince will form a majority to reject the <i>Daubert</i> standard. As highlighted in the oral argument in <i>DeLisle</i>, there remains a possibility that the Court will rule on other grounds (<i>e.g.</i>, affirming on the basis that the Defendants would prevail even under <i>Frye</i>) and delay resolution of whether <i>Daubert</i> or <i>Frye</i> will be the standard in Florida going forward.</p> Until the issue is resolved, litigants are well advised to seek rulings on the admissibility of expert testimony under both <i>Daubert </i>and <i>Frye</i>. Some trial judges in fact are requiring that any hearings on motions to exclude expert testimony proceed under both standards. This approach will help preserve issues for appeal and guard against the possibility of having to re-litigate these matters once there is a definitive ruling from the Supreme Court on the standard for the admissibility of expert testimony going forward. <div><br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p><a href="file:///C:/Users/Stefanie/Downloads/Florida%20Supreme%20Court%20Hears%20Argument%20on%20Daubert%20Standard.DOCX#_ftnref1" name="_ftn1" title="">[1]</a> Most litigants and attorneys would likely disagree that there is only minimal difference between <i>Daubert </i>and <i>Frye</i>. However, from R.J. Reynolds&rsquo; perspective in the context of this asbestos exposure case, there may not be a significant difference between the two standards.</p> </div> </div>Products Liability Blog14 Mar 2018 00:00:00 -0800 Supreme Court to Rule on Constitutionality of Daubert Standard<p><span style="color: rgb(255, 0, 0);">January 10, 2018 UPDATE:&nbsp; The Supreme Court of Florida has scheduled oral argument in the case for March 6, 2018, at 9:00 a.m<br /> </span><br /> <br /> The Supreme Court of Florida is poised to decide the constitutionality of the <i>Daubert</i> standard for admissibility of expert testimony, resolving whether <i>Frye</i> or <i>Daubert</i> will be the governing standard going forward in Florida state courts. <i>DeLisle v. Crane Co., et al.</i>, No. SC16-2182. The appeal challenges the constitutionality of 2013 legislative changes to the Florida Evidence Code that dropped the older <i>Frye</i> standard in favor of the more rigorous <i>Daubert</i> standard for admissibility of expert testimony. The State of Florida and several other <i>amici curiae </i>have filed briefs weighing in on both sides of the debate, highlighting the wide-reaching impact of the issue before the Court.</p> <p>The plaintiff in <i>DeLisle</i> brought product liability claims against tobacco companies and others alleging that he developed mesothelioma as a result of exposure to the defendants&rsquo; asbestos-containing products. The jury rendered an $8 million verdict in favor of the plaintiff, which the defendants appealed. The Fourth District Court of Appeal held that plaintiff&rsquo;s causation experts should have been excluded pursuant to <i>Daubert</i>, ordering a directed verdict in favor of one defendant and a new trial for a second defendant.</p> <p>Plaintiff successfully petitioned the Supreme Court to accept discretionary review of the case. He argues that the Fourth District&rsquo;s decision should be reversed because the <i>Daubert </i>Amendment violates separation of powers under the Florida Constitution and infringes on the Supreme Court&rsquo;s authority to adopt rules of judicial practice and procedure. The case has attracted the attention of multiple <i>amcius curiae</i> that have been permitted to file briefs. These include the Florida Justice Association and 44 Concerned Physicians, Scientists, and Scholars Regarding Causation of Asbestos-Related Disease (in favor of petitioner), and the State of Florida, Washington Legal Foundation, Florida Defense Lawyers Association, and Florida Justice Reform Institute (in favor of respondents).</p> <p>The Supreme Court&rsquo;s decision to accept jurisdiction in <i>DeLisle </i>provides it with a proper case or controversy to decide the constitutionality of the <i>Daubert </i>Amendment and resolve the uncertainty that followed its recent rules decision in which the Court declined to adopt the <i>Daubert </i>Amendment to the extent it is procedural. <i>In Re: Amendments to the Florida Evidence Code</i>, No. SC16-181, February 16, 2017. That rules decision cited &ldquo;grave constitutional concerns&rdquo; that the <i>Daubert </i>Amendment may undermine litigants&rsquo; access to courts and the right to a jury trial. But the Court did not reach the constitutionality of the amendment or whether it is a substantive or procedural enactment, which it could not do in the context of a rules decision outside of a proper case or controversy. The resulting uncertainty regarding the legitimacy of the <i>Daubert </i>Amendment has created confusion in the lower courts as to the appropriate standard.</p> <p>As argued in the briefing in <i>DeLisle</i>, the procedural versus substantive distinction is central to whether the <i>Daubert </i>Amendment will be upheld. To the extent that the <i>Daubert</i> Amendment is deemed solely procedural in nature (<i>i.e.</i>, not impacting rights, obligations, causes of actions, etc.), the Supreme Court is anticipated to rule that the Florida Legislature overstepped its bounds and enacted an unconstitutional law on a matter solely within the province of the Court. On the other hand, to the extent that the <i>Daubert </i>Amendment is construed to be substantive in nature, it should be upheld as a valid enactment by the Legislature.</p> <p>There is no bright line rule defining whether a statutory provision is procedural or substantive. The petitioner and supporting <i>amici curiae</i> note that rules of evidence are often deemed procedural and argue that the Legislature improperly acted to overrule longstanding Supreme Court precedent adhering to the <i>Frye</i> standard. In his reply brief, the petitioner urges that rules of evidence are presumptively procedural, and that &ldquo;[t]here is not a single, identifiable substantive aspect present or intended in the Florida Evidence Code.&rdquo; On the other side, the respondents and their supporting <i>amici curiae</i> point out that the Supreme Court has previously upheld other statutes governing admissibility of evidence against separation of powers challenges, and that the <i>Daubert</i> Amendment provides litigants a substantive protection against unreliable expert testimony.</p> <p>The State of Florida argues in its <i>amicus curiae </i>brief that the <i>Daubert </i>Amendment does not violate separation of powers, pointing out that the amendment does not arrogate power to the Legislature and in fact empowers the courts with greater discretion in exercising their gatekeeping function regarding expert testimony. The Attorney General also warns that a ruling that the <i>Daubert </i>Amendment is unconstitutional could have widespread negative effects beyond the <i>Daubert</i>/<i>Frye </i>debate. The brief argues that invalidating the <i>Daubert </i>Amendment on separation of powers grounds would cast doubt on numerous other statutes governing admissibility of evidence, outside of the Evidence Code, that have never been formally adopted by the Supreme Court. This could burden the Court with unprecedented rulemaking obligations to address these scattered evidentiary provisions outside of the Evidence Code.</p> <p>The briefs in <i>DeLisle</i> also address the relative merits of <i>Daubert</i> versus <i>Frye</i>, although the question of whether the <i>Daubert </i>standard undermines any substantive constitutional rights of access to courts or the right to a jury trial is not at issue in the current appeal. Instead, the focus in <i>DeLisle </i>is whether the <i>Daubert </i>Amendment is invalid on separation of powers grounds. Nonetheless, the Court&rsquo;s prior rules decision&mdash;and its decision to accept discretionary-review jurisdiction in <i>DeLisle</i>&mdash;indicates that the Court, as currently comprised, may be inclined to find the <i>Daubert</i> Amendment unconstitutional.</p> <p>The petitioner&rsquo;s reply brief in <i>DeLisle </i>was filed on December 12, 2017. The Court has not yet set a date for oral argument. When it ultimately rules, the Court&rsquo;s decision will have widespread impact and promises to resolve the current uncertainty about the continued viability of <i>Daubert </i>in Florida.</p>Products Liability Blog19 Dec 2017 00:00:00 -0800 Supreme Court Draws the Line: Invalidates $2.7 Million Dollar Discovery Sanction Against Manufacturer<p>On April 18, 2017, the U.S. Supreme Court made a bold and seemingly manufacturer-friendly pronouncement in overturning a federal district court judge&rsquo;s $2.7 million award in sanctions against manufacturer Goodyear Tire &amp; Rubber Company for a purported discovery violation. <i>See Goodyear Tire &amp; Rubber Co. v. Haeger</i>, 137 S. Ct. 1178 (Apr. 18, 2017).&nbsp;The decision carries significant implications in the context of discovery violation jurisprudence as well as a curb on a district court&rsquo;s inherent sanctioning authority.</p> <p>By way of background, the litigation arose from the Haeger family&rsquo;s action against Goodyear, alleging the failure of a Goodyear G159 tire caused the family&rsquo;s motorhome to swerve off the road and flip over. Discovery in the case was contentious and lasted several years.&nbsp;A key issue in the contentious discovery process involved repeated requests for internal G159 tire testing, which Goodyear was persistently slow to respond to. On the first day of trial in April 2010, the parties informed the court that a settlement had been reached.&nbsp;Months after the settlement, the family&rsquo;s lawyer discovered G159 tire testing from another lawsuit, which had not been produced in the subject litigation. The undisclosed G159 testing revealed the G159 tire &ldquo;got unusually hot&rdquo; at highway speeds. &nbsp;<i>Id. </i>at 1184.&nbsp;Goodyear conceded withholding the information despite a direct request for all testing regarding the subject model tire. &nbsp;Thereafter, the family sought sanctions (attorney&rsquo;s fees and costs) for Goodyear&rsquo;s knowing concealment, discovery fraud and bad faith litigation.&nbsp;</p> <p>Arizona Senior District Court Judge Roslyn O. Silver found that Goodyear and its attorneys had &ldquo;engaged in a &lsquo;years-long course&rsquo; of bad-faith behavior.&rdquo;&nbsp;<i>Id.&nbsp;</i>Exercising its inherent authority to sanction bad faith litigation, the district court awarded the Haeger family $2.7 million.&nbsp;Despite acknowledging that in the &ldquo;usual case, sanctions ordered pursuant to a court's inherent power to sanction litigation misconduct must be limited to the amount of legal fees caused by that misconduct[,]&rdquo; Judge Silver nevertheless determined that &ldquo;the sanctionable conduct r[ose] to a truly egregious level . . . .&nbsp;[a]nd when a litigant behaves that badly . . . all of the attorneys' fees incurred in the case [can] be awarded . . . without any need to find a &lsquo;causal link between [those expenses and] the sanctionable conduct.&rsquo;&rdquo;&nbsp;<i>Id. </i>at 1189 (alterations).&nbsp;In support of its award, the district court also concluded that full and timely disclosure of the withheld test results would likely have led Goodyear to settle the case much earlier.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p>Writing for a unanimous Court (with the exception of Justice Gorsuch who did not participate), Justice Elena Kagan stated: &ldquo;A district court has broad discretion to calculate fee awards under [the bad faith litigation] standard.&nbsp;But because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.&rdquo;&nbsp;<i>Id. </i>at 1184 (alteration). The Court emphasized that such sanctions must be compensatory rather than punitive in nature.&nbsp;<i>Id. </i>at 1186.&nbsp;&ldquo;A sanction counts as compensatory <i>only if</i> it is &lsquo;calibrate[d] to [the] damages caused by&rsquo; the bad-faith acts on which it is based.&nbsp;<i>Id. </i>(emphasis added).&nbsp;Not only did the Court find that the district court deviated from established standards and overstepped its inherent authority, but it also found that the Haeger family failed to establish the case would have settled had the testing been provided at the first instance or that Goodyear&rsquo;s non-disclosure permeated the entire litigation as to justify an all-fees award.&nbsp;</p> <p>This case is critically important for several reasons, which extend far beyond the facts of the case.&nbsp;The Supreme Court&rsquo;s decision clearly delineates limitations on a district court judge&rsquo;s authority to impose sanctions.&nbsp;The <i>Haeger </i>decision bolsters the causal link or but-for requirement between the alleged misconduct and the legal fees to be paid by an offending party.&nbsp;Moreover, the decision serves as a firm and realistic reminder to manufacturers and their counsel of the importance of carefully collecting, correlating and responding to discovery requests as well as maintaining consistency and uniformity in document production from one case to the next.&nbsp;The continuing duty in federal court to supplement discovery responses is also at the forefront of considerations in analyzing the facts of this case.&nbsp;It also highlights the potential and seemingly continual exposure for alleged discovery violations and/or failure to produce certain testing, documents or other things even post-settlement.&nbsp;Going forward, manufacturers and their counsel may want to consider including a clause/language waiving any post-settlement claims for discovery violations in the release and/or stipulation.&nbsp;&nbsp;</p>Products Liability Blog01 May 2017 00:00:00 -0800 Court Extends Privacy Rights to Vehicle Black Box<p>In a case of first impression, the Florida Fourth District Court of Appeal held that police need a warrant to search a vehicle&rsquo;s black box or event data recorder (EDR). EDRs, which are now present in almost every vehicle on the road, are devices that record technical crash data for a brief period of time before, during and after a crash.&nbsp;After a fatal car crash, police downloaded the data from the impounded car&rsquo;s EDR without a warrant.&nbsp;The driver of car was later charged with DUI manslaughter and moved to suppress the data downloaded from the EDR.&nbsp;The trial court held that the warrantless search of the EDR violated the Fourth Amendment and granted the driver&rsquo;s motion to suppress.&nbsp;The state appealed arguing the Fourth Amendment did not apply, because there was no reasonable expectation of privacy in the data from the EDR.&nbsp;</p> <p>Affirming the trial court, the appellate court held there is a reasonable expectation of privacy in the data obtained from the EDR.&nbsp;Therefore, a warrant is required to download the data from the EDR absent exigent circumstances.&nbsp;Interestingly, the Court relied on prior decisions recognizing a reasonable expectation of privacy in cell phones, though the Court acknowledged that cell phones contain much more private and personal information than an EDR.&nbsp;The Court equated the difficulty in extracting information from EDRs with cell phones, which enhances the expectation of privacy.&nbsp;&nbsp; With the ever-expanding use of technology in vehicles, this decision will have a far-reaching impact.&nbsp;The State of Florida will likely appeal the ruling of the appellate court to the Florida Supreme Court, so stay tuned for further developments.&nbsp;The case is <i>Florida v. Worsham,</i> No. 4D15-2733 (Fla. Dist. Ct. App. Mar. 29, 2017).</p>Products Liability Blog01 May 2017 00:00:00 -0800 Under the Microscope Again by Florida Courts a ruling that raises new issues about the adoption of the <em>Daubert</em> standard for the admissibility of expert opinions in Florida state court, the Florida Supreme Court has declined to adopt, to the extent they are procedural, the 2013 legislative changes the Florida Evidence Code that put the <em>Daubert</em> standard into effect. In Re: Amendments to the Florida Evidence Code, No. SC16-181, February 16, 2017. Although the recent decision does not address the ultimate constitutionality of the <em>Daubert </em>Amendment, it will create confusion in the state courts until further clarity is provided. <br /> <br /> The <em>Daubert </em>Amendment, which went into effect in July 2013, dropped the older<em> Frye </em>standard in favor of the more rigorous <em>Daubert </em>standard for admissibility of expert testimony. In declining to adopt the <em>Daubert</em> Amendment to the extent that it is procedural, the Supreme Court&rsquo;s ruling cites constitutional concerns that adopting<em> Daubert</em> would impede access to the courts and undermine the right to a jury trial. Justice Polston, in a strongly worded dissent, disputes these concerns and notes that federal courts and a clear majority of states have long adhered to <em>Daubert </em>without any such constitutional concerns. The ruling does not reach the constitutionality of the <em>Daubert </em>Amendment, or resolve the extent to which the Amendment is substantive or procedural in nature.<br /> <br /> The procedural versus substantive distinction is critical to the analysis and livelihood of <em>Daubert</em> as a matter of Florida law going forward. To the extent that the <em>Daubert </em>Amendment is construed as strictly procedural in nature (i.e. not impacting rights, obligations, causes of actions, etc.), then the Supreme Court ruled the Florida Legislature overstepped its bounds and enacted an unconstitutional law on a matter within the province of the Court. Whether the<em> Daubert</em> Amendment is unconstitutional as a matter of substance&mdash;meaning it is entirely unconstitutional&mdash;is left to be determined. The Court&rsquo;s ruling did not address this issue. Not until an actual case and controversy is before the Florida Supreme Court can that discrete and seminal issue be decided. Until then, the<em> Daubert </em>Amendment in the Florida Evidence Code remains a valid and binding law. However, the recent ruling is a clear indication that the Court, as currently comprised, is likely to find the Daubert Amendment unconstitutional when presented with the issue in an appropriate case.<br /> <br /> These unresolved issues will certainly create great confusion in state courts. In fact, anecdotal evidence confirms that many judges in South Florida have already refused to hear <em>Daubert </em>challenges until further clarity is provided. The recent ruling will inevitably create procedural delay until the courts put in place some definitive position or action in this regard. Plaintiff&rsquo;s attorneys will likely seek to continue or stay any Daubert challenges pending a ruling on the substance of the statute. Also likely are expert depositions or other discovery that is more prolonged due to emphasis on both <em>Frye</em> and <em>Daubert</em> until the dilemma is resolved. <br /> <br /> Alternatively, plaintiff&rsquo;s attorneys will be on the hunt to tee up a case for appeal before the Florida Supreme Court on this issue. Opponents of the <em>Daubert </em>standard may be motivated to quickly find a case to get the merits of the Daubert Amendment before the Florida Supreme Court. Three of the four Justices concurring in the recent decision&mdash;Pariente, Lewis and Quince&mdash;are due for mandatory retirement on January 8, 2019, the same day as Governor Rick Scott&rsquo;s last day in office. Governor Scott has said he plans to make three replacement appointments on that day. Any such appointees may have a more favorable view of <em>Daubert</em> than the outgoing Justices. <br /> <br /> To view the full opinion click here:&nbsp; <a href=""></a><br /> <br />Products Liability Blog17 Feb 2017 00:00:00 -0800 Verdict for Harley-Davidson Eubanks of Rumberger, Kirk &amp; Caldwell and Mark Kircher of Quarles &amp; Brady won a defense verdict on behalf of Harley-Davidson on January 19, 2017 in a product liability case in the United States District Court for the Eastern District of Texas, Marshall Division. The claims against Harley-Davidson related to Harley-Davidson offer of anti-lock brakes (ABS) as optional as opposed to standard equipment on some of its models including the 2012 Electra Glide Classic. In June 2012, Plaintiff Mark Jones purchased a 2012 Electra Glide Classic from Paris Harley-Davidson in Paris, Texas and did not purchase the optional ABS. A little more than a year later, while Mr. Jones was riding the bike with his wife Pamela Jones as a passenger, a Chevrolet Avalanche made a left turn across their path of travel and into Wal-Mart. There was no collision. Mr. Jones, who had no formal motorcycle training, over applied his brakes causing the bike to skid and ultimately capsize resulting in broken bones and head injuries to both riders. Neither Mr. nor Mrs. Jones were wearing helmets.<br /> <br /> Mr. and Mrs. Jones filed suit alleging that the 2012 Electra Glide Classic was defective and unreasonably dangerous because it did not have ABS as a standard feature and because Harley-Davidson did not provide adequate descriptions of the benefits of ABS, that H-D was negligent for selling a defective bike without ABS and for failing to warn customers of the benefits of ABS. Plaintiffs alleged that Harley-Davidson&rsquo;s own documents show that ABS is &ldquo;safer&rdquo; and also alleged that studies by the Insurance Institute for Highway Safety and other researchers provided data that demonstrated some safety benefits of ABS; therefore, the state of the art required that ABS should have been standard on Harley-Davidson touring models by 2009 and on all Harley-Davidson models by 2012.<br /> <br /> Harley-Davidson denied all the allegations and presented evidence that the 2012 Electra Glide Classic foundation brakes were not defective without ABS, but rather were extremely capable. Harley-Davidson also presented evidence of its efforts in promoting ABS to its customers, and in proliferating ABS as both optional and standard throughout its product portfolio of motorcycles. There was proof that the motorcycle complied with FMVSS 122 which governs motorcycle braking systems and did not mandate ABS at the time the motorcycle was manufactured and does not mandate ABS to this day. Harley-Davidson presented evidence that the vast majority of the motorcycles on the road in 2012 (~91%) did not have ABS, and that H-D&rsquo;s conduct was reasonable and, in fact, extremely responsible through its ABS promotion and proliferation. There was compelling evidence that a significant segment of Harley-Davidson's customers did not wish to have ABS on their motorcycles for various reasons including: customization, strict maintenance requirements, and a desire not to have the increased complexity of a computer controlled braking system.<br /> <br /> This case was one that challenged Harley-Davidson's fundamental values of American Freedom. Harley-Davidson's mission statement is &ldquo;We Fulfill Dreams of Personal Freedom&rdquo; and this lawsuit attacked those values. Harley-Davidson defended these values and the rights of its customers to make their own decisions as to what features are important to them.<br /> <br /> The case went to the jury at 10:30 a.m. and the jury returned a complete defense verdict at 12:30.Products Liability Blog19 Jan 2017 00:00:00 -0800 Safety Technologies: Lowering the Bar for the Alert and Safe Driver. 2013, The National Highway Traffic Safety Administration (NHTSA) released a &lsquo;Preliminary Statement of Policy Concerning Automated Vehicles&rsquo; (the &ldquo;Policy&rdquo;). The Policy includes a classifications system partitioning vehicle automation into five levels, ranging from level 0 (&ldquo;no automation&rdquo;) to level 4 (&ldquo;full self-driving automation&rdquo;). Although most liability debates among legal scholars focus on the horizon of level 4 - &ldquo;full self-driving&rdquo; vehicles and who is liable when those vehicles are involved in an accident; the vehicles in levels 1 and 2 present the most immediate concerns from a product liability perspective. For jurisdictions with pure comparative fault standards (such as Arizona, Florida, Kentucky, Louisiana, Mississippi, and New Mexico), vehicles with level 1 and 2 automation could serve as the catalyst for a switch from pure comparative fault to either a standard of modified comparative fault or contributory fault.<br /> <br /> Many commercials by automobile manufacturers now highlight the autonomous safety features of their vehicles. These commercials usually involve a driver in a new vehicle who is distracted either by a passenger, an outside event, or simply is not paying attention to the road. Inevitably, an unexpected hazard presents itself and the driver, who is not paying attention, does not have enough time to react. But, instead of a significant collision with either a vehicle, animal, pedestrian, or crash test wall, the new vehicle senses the hazard and applies the brakes avoiding an accident. Most of these commercials end with the driver relieved he or she was not involved in an accident. <br /> <br /> Situations such as these have become more common over the last several years with automotive manufacturers introducing autonomous technologies in an effort to push innovation and raise safety standards. However, the predominant concern is whether these autonomous systems foster negligence and inattentiveness on the part of the human driver. These commercials can underscore negligence from many different parties, most importantly of which is the distracted driver in the new vehicle. The message is that, were it not for the autonomous safety technologies, the result would have been a significant collision. <br /> <br /> In May of 2016, a man was killed in Florida while driving his Tesla Model S, equipped with Autopilot. The accident occurred &ldquo;when a tractor trailer drove across the highway perpendicular to the Model S. Neither the Autopilot nor the driver noticed the white side of the tractor trailer against a brightly lit sky, so the brakes were not applied. The high ride height of the trailer combined with its positioning across the road and the extremely rare circumstances of the impact caused the Model S to pass under the trailer, with the bottom of the trailer impacting the windshield of the Model S.&rdquo; It is not immediately known if Autopilot is predicated upon lighting conditions while driving, but Tesla has previously stated that Autopilot uses a &ldquo;unique combination of cameras, radar, ultrasonic sensors and data to automatically steer down the highway, change lanes, and adjust speed in response to traffic.&rdquo; <br /> <br /> The NHTSA is leading an investigation into Tesla&rsquo;s Autopilot feature, yet some immediately apparent concerns are worth addressing. First, Tesla&rsquo;s &ldquo;Autopilot&rdquo;, which also uses a feature called &ldquo;Autosteer,&rdquo; has a misleading name because while the term suggests autonomy, the vehicle is only equipped with Level 2 automation technology, which still requires the driver to monitor the roadway for safe operation. Tesla&rsquo;s literature is exceptionally clear that a driver operating Autopilot and Autosteer is &ldquo;to remain engaged and aware when Autosteer is enabled.&rdquo; Second, it is entirely possible that the driver became too comfortable with the technological capabilities of the vehicle to his own detriment. Following the accident, the Associated Press reported that the driver of the tractor trailer heard Harry Potter playing in the Model S even after the crash. The driver of the Model S also frequently took videos while driving to show the vehicle&rsquo;s capabilities. This even resulted in a YouTube video, taken only a month before the fatal accident, in which the driver claimed the Model S saved his life by avoiding a significant collision when entering a highway. <br /> <br /> The Tesla Model S example brings front and center all of the tensions at play with autonomous technology efforts. Autonomous safety systems are designed to augment and assist the ordinarily presumed alert and safe driver. Yet, a given plaintiff will inevitably file a lawsuit against an automotive manufacturer alleging a design defect in failing to install one or more of these autonomous safety technologies, such as adaptive cruise control, lane centering, blind spot warning, forward collision warning, and emergency braking. However, autonomous safety technologies are distinctly different because they attempt to mitigate the potential of a collision by safeguarding against a driver&rsquo;s negligence, and circumstances which the driver may not otherwise perceive. Previous safety advancements such as airbags, safety glass, the collapsible steering column, and even seat belts (if used), reduce the risk of injury regardless of any negligence. <br /> <br /> Autonomous technologies in levels 1 and 2 specifically seek authority of one or more primary functions of the automobile. The driver is responsible for safe operation of the vehicle, but as more of these systems are installed and integrated with one another, friction will develop within the courts between the driver&rsquo;s responsibility for safe operation of the vehicle, and a manufacturer&rsquo;s responsibility to provide these autonomous systems. If the general public begins to see these systems as necessary, then manufacturers should be aware that prospective jurors will enter with such preconceptions. Counsel for the defense should be aware of this possibility and use voir dire to develop as much information as possible to assess the venire&rsquo;s feelings on such issues. Voir dire should also be used to educate and reinforce the responsibilities of a driver. The interplay of technology and the capabilities of autonomous safety systems will undoubtedly cut across many lines, and could easily affect defense themes of the case, as well as personal accountability and generational gaps.<br /> <br /> For states with pure comparative fault standards, a manufacturer could be held proportionately liable for failing to provide a system that inherently protects against a driver&rsquo;s negligence. After all, in bringing a claim of this nature a plaintiff is stating &ldquo;had [technology system] been installed on the vehicle, I would not have had an accident.&rdquo; This mentality could open the door for every automobile accident to give rise to a products liability lawsuit. <br /> <br /> Additionally, a more difficult claim will be raised when a vehicle is equipped with these autonomous safety technologies, but the accident still occurs. In that case, a court is immediately presented with a causation issue. The central battle would be whose failure caused the accident &ndash; the distracted inattentive driver, the computer system that did not react in time, or is there a third party that bears the lion&rsquo;s share of liability? <br /> <br /> The challenge for the defense in these suits will be two-fold. First, the defense must prevent the jury from becoming enamored with the new technological capabilities of the manufacturer&rsquo;s autonomous safety systems. This could put defense counsel in an awkward position as they may be inclined to downplay the safety accomplishments of their client. The defense should look to manage the expectations of the jury from the perspective of technology by properly explaining the autonomous safety systems. Jurors may be awestruck by the capabilities alone of an autonomous safety system, and overlook the negligence of a driver. The preferred tactic focuses on the limitations of the technology safety systems, and how they are most effective when used by an attentive driver. <br /> <br /> Second, the defense should highlight the negligence of the driver, because claims of this nature contain an open admission of negligence. This will require a careful balancing act because the defense must present the jury with evidence of negligence, but not alienate the jury by tearing down the injured plaintiff. A defense should consider focusing on the primary functions a driver cedes control of when relying on these autonomous safety technologies. As more of these systems are used and incorporated with one another, the driver increasingly relinquishes more attention and responsibility in operating the motor vehicle, thereby increasing his or her level of fault. Depending on the technology which is the subject of a plaintiff&rsquo;s claim, a manufacturer could significantly diminish or even completely negate any proportionate fault. Warnings will also be of great importance for the manufacturers. If a manufacturer has properly warned a driver about the limitations of autonomous safety systems, a driver may be less inclined to file a lawsuit. Manufacturers may need to program pop-up warnings into the autonomous systems when they are engaged to remind and reinforce the proper use of the safety systems. <br /> <br /> Finally, and perhaps most challenging, will be a defense&rsquo;s ability to account for the relative experience of a driver. Meaning, new and young drivers present as plaintiffs who presumably has only operated a vehicle with the assistance of autonomous safety technologies. As juries become more familiar with and dependent upon autonomous safety technologies, they will begin to assume the necessity of such systems and could ignore the negligence of a driver in a given accident. Accordingly, a manufacturer could see its proportion of fault increase over time regardless of how negligent a driver was in causing an accident. <br /> <br /> If this does in fact happen, manufacturers will likely petition states with pure comparative fault principles to adopt a policy of either modified comparative fault, which limits liability when a driver is 50% or more negligent; or, adopt a policy of contributory fault, which prohibits a plaintiff&rsquo;s recovery if the plaintiff is even 1% responsible in causing an accident. For jurisdictions with pure comparative fault, a switch to modified comparative fault is more plausible and probably more palatable for legislators. Modified comparative fault also provides both manufacturers and legislators greater freedom in crafting legislation which holds a manufacturer liable, but not for those situations when a driver is clearly negligent in causing an accident or injury, and seeks redress from the manufacturer for failing to indemnify the driver for his or her own negligence. <br /> <br /> As more level 1 and level 2 vehicles are produced, these accidents and scenarios will become more prevalent. Manufacturers should be aware that the increased marketability of autonomous safety technologies will open up their liability to lawsuits in failing to provide these technologies as standard equipment. Regardless of the level of automation of a vehicle, it remains the driver&rsquo;s responsibility to safely operate the vehicle. After all, the driver is the one licensed, not the vehicle.<br /> <br /> <br /> JOHN VILLASENOR, PRODUCTS LIABILITY AND DRIVERLESS CARS: ISSUES AND GUIDING PRINCIPLES FOR LEGISLATION, 6 (Brookings Institute, April 24, 2014)<br /> Level 0: No-Automation <br /> The driver is in complete and sole control of the primary vehicle controls (brake, steering, throttle, and motive power) at all times, and is solely responsible for monitoring the roadway and for safe operation of all vehicle controls. Vehicles that have certain driver support/convenience systems but do not have control authority over steering, braking, or throttle would still be considered &ldquo;level 0&rdquo; vehicles. Examples include systems that provide only warnings (e.g., forward collision warning, lane departure warning, blind spot monitoring) as well as systems providing automated secondary controls such as wipers, headlights, turn signals, hazard lights, etc.<br /> <br /> Level 1: Function-specific Automation<br /> Automation at this level involves one or more specific control functions; if multiple functions are automated, they operate independently from each other. The driver has overall control, and is solely responsible for safe operation, but can choose to cede limited authority over a primary control (as in adaptive cruise control), the vehicle can automatically assume limited authority over a primary control to aid the driver in certain normal driving or crash-imminent situation (e.g., dynamic brake support in emergencies)&hellip;The vehicle&rsquo;s automated system may assist or augment the driver in operation of one of the primary controls&hellip;As a result, there is no combination of vehicle control systems working in unison that enables the driver to be disengaged from physically operating the vehicle by having his or her hands off the steering wheel AND feet off the pedals at the same time. Examples of function specific automation systems include: cruise control, automatic braking, and lane keeping. <br /> <br /> Level 2: Combined Function Automation<br /> [A]utomation of at least two primary control functions designed to work in unison to relieve the driver of control of those functions. Vehicles at this level of automation can utilize shared authority when the driver cedes active primary control in certain limited driving situations. The driver is still responsible for monitoring the roadway and safe operation and is expected to be available for control at all times and on short notice. The system can relinquish control with no advance warning and the driver must be ready to control the vehicle safely. An example of combined functions enabling a Level two system is adaptive cruise control in combination with lane centering. <br /> <br /> Level 3: Limited Self-Driving Automation<br /> Vehicles at this level of automation enable the driver to cede full control of all safety-critical functions under certain traffic or environmental conditions and in those conditions to rely heavily on the vehicle to monitor for changes in those conditions requiring transition back to driver control. The driver is expected to be available for occasional control, but with sufficiently comfortable transition time. The vehicle is designed to ensure safe operation during the automated driving mode. An example would be an automated or self-driving car that can determine when the system is no longer able to support automation, such as from an oncoming construction area, and then signals to the driver to reengage in the driving task, providing the driver with an appropriate amount of transition time to safely regain manual control. The major distinction between level 2 and level 3 is that at level 3, the vehicle is designed so that the driver is not expected to constantly monitor the roadway while driving. <br /> <br /> Level 4: Full Self-Driving Automation<br /> The vehicle is designed to perform all safety-critical driving functions and monitor roadway conditions for an entire trip. Such a design anticipates that the driver will provide destination or navigation input, but is not expected to be available for control at any time during the trip. This includes both occupied and unoccupied vehicles. By design, safe operation rests solely on the automated vehicle system. <br /> <br /> The insurance industry is also facing significant questions with respect to driverless vehicles. See JAMES F. PELTZ, SELF-DRIVING CARS COULD FLIP THE AUTO INSURANCE INDUSTRY ON ITS HEAD, Los Angeles Times (June 20, 2016), <br /> JOHN VILLASENOR, PRODUCTS LIABILITY AND DRIVERLESS CARS: ISSUES AND GUIDING PRINCIPLES FOR LEGISLATION, 5 &ndash; 6, n.18 (Brookings Institute, April 24, 2014) (noting Volvo&rsquo;s City Safety system can automatically apply the brake to avoid or reduce the severity of a collision; Mercedes-Benz&rsquo;s Distronic Plus system uses radar sensors to scan traffic ahead and the PRE-SAFE brake feature automatically initiates up to 40 percent braking power, audibly alerts the driver, and can engage 100% of the brake in the event the driver doesn&rsquo;t respond serving as an electronic crumple zone. The Highway Loss Data Institute has already credited the Distronic Plus system with a 14 percent reduction in property damage liability claim frequency). Lexus currently advertises the Driver Attention Monitor, which detects if the driver is not looking forward and will signal an alert if objects are ahead. <br /> The Tesla Team, A Tragic Loss, TESLA BLOG (June 30, 2016),<br /> Tesla, Model S Software Version 7.0,<br /> Tesla, Model S (July 1, 2016),<br /> Tesla, Model S Software Version 7.0,<br /> Joan Lowy and Tom Kirsher, Tesla driver killed in crash while using car&rsquo;s &lsquo;Autopilot&rsquo;, AP: THE BIG STORY (JUNE 30, 2016, 10:27 PM),<br /> Autopilot Saves Model S, YOUTUBE (April 5, 2016),<br /> <br />Products Liability Blog18 Sep 2016 00:00:00 -0800 The Florida Supreme Court Shouldn't Undo Daubert published by Law360, New York (July 15, 2016, 10:55 AM ET) -- <br /> <br /> Three years after Gov. Rick Scott signed into law amendments to Florida Statute Sections 90.702 and 90.704, modernizing Florida to a Daubert jurisdiction and abandoning the archaic Frye standard, there remains a looming state of unsteadiness. Since July 1, 2013 (the enactment date of the Daubert<em> </em>amendment), there have been countless Daubert<em> </em>challenges, hearings, trial court orders, appeals, appellate opinions, articles, continuing legal education seminars, meetings and votes of the Florida Board of Governors, and debates all having to do with <em>Daubert</em> as a matter of Florida law. Will Daubert<em> </em>remain or will Florida revert back to Frye?<br /> <br /> It is undisputed that Florida lawyers and judges have been &mdash; and will continue until further notice &mdash; applying Daubert. A noteworthy body of Daubert<em> </em>jurisprudence as a matter of Florida law has been etched out. It began with <em>Conley v. State, </em>in which the First District reversed and remanded for a new trial, instructing the lower court to determine the admissibility of certain evidence under <em>Daubert</em>. 129 So. 3d 1120, 1121 (Fla. 1st DCA Dec. 20, 2013). Then in 2014 the Third District expounded upon a thorough comparative analysis of the Frye and Daubert standards in Perez. See <em>Perez v. Bellsouth Telecommunications, </em>138 So.3d 492, 497-99 (Fla. 3d DCA Apr. 23, 2014). The First District continued to pave the way in developing Florida&rsquo;s<em> </em>Daubert<em> </em>jurisprudence. See <em>Baan v. Columbia County, </em>180 So.3d 1127, 1132-34 (Fla. 1st DCA Dec. 8, 2015)(concluding expert testimony constituted ipse dixit or an unproven statement);<em> Perry v. City of St. Petersburg,</em> 171 So.3d 224, 225 (Fla. 1st DCA Aug. 7, 2015)(applying <em>Daubert </em>to worker&rsquo;s compensation proceedings); <em>Booker v. Sumter County Sherriff&rsquo;s Office/North America Risk Services,</em> 166 So. 3d 189, 193-94 (Fla. 1st DCA May 29, 2015)(highlighting the timeliness requirements for<em> Daubert </em>challenges); <em>Giaimo v. Fla. Autosport Inc., </em>154 So.3d 385, 387-89 (Fla. 1st DCA Nov. 26, 2014)(emphasizing the abolition of pure opinion testimony under the Daubert amendment). The Fifth District also joined the fray and determined mental health opinion testimony should be examined under Daubert<em>.</em> See Andrews v. State, 181 So. 3d 526, 527-29 (Fla. 5th DCA Oct. 30, 2015)(finding the proposed opinion testimony at issue satisfactory). Most recently, the Fourth District held the Daubert amendment applied retrospectively and was procedural in nature. See Bunin v. Matrixx Initiatives Inc., 4D14-3579, (Fla. 4th DCA June 1, 2016).<br /> <br /> There have also been significant and noteworthy trial court orders addressing Daubert. For example, a circuit court judge in Duval County entirely excluded a boating expert in a product liability case for failing to do any testing and advancing entirely unreliable opinions. <em>See Sullivan v. BRP U.S. Inc.,</em> Case No. 16-2013-CA-569-XXXX, (Fla. Cir. Ct. July 2, 2015) (Duval County). Similarly, a Miami-Dade County circuit court judge entirely excluded an addiction expert in a tobacco litigation matter. See <em>Wendel v. R.J. Reynolds Tobacco Co</em>, Case No. 10-54813 CA (15) (Fla. Cir. Ct. Apr. 1, 2014)(finding the expert was unqualified to opine on nicotine addiction and the expert utilized an entirely unreliable methodology). A Hillsborough County circuit court judge was one of the first judges in Florida to address the retroactivity of the Daubert amendment, the constitutionality of the amendment under a separation of powers challenge and whether the amendment was procedural or substantive. See <em>Gross v. Plantation Key Association</em>, Case No. 06-CA-005879 (Fla. Cir. Ct. Sept. 13, 2013).<br /> <br /> The aforementioned efforts may all end up being in vain. There are serious efforts to have Daubert rejected. By way of background, the Florida Supreme Court has the ultimate authority in adopting a given evidentiary standard as a matter of Florida law. The Supreme Court has not yet spoken on or addressed this issue. Hence, the present state of affairs and uncertainty about which expert standard will govern in Florida. The Florida Bar&rsquo;s Code of Rules and Evidence Committee submitted a Three Year Cycle Report proposing that Sections 90.702 and 90.704 not be adopted as Rules of Evidence to the extent they are deemed procedural. The Florida Board of Governors approved the report by a wide margin of a vote. On Feb. 1, 2016, the Florida Board of Governors submitted the report to the Florida Supreme Court, recommending that the Daubert amendments be rejected. The Florida Supreme Court will hear oral arguments for and against Daubert on Sept. 1, 2016.<br /> <br /> It would seem impractical, inefficient and nonsensical for the Supreme Court to declare the last three years of Daubert litigation and jurisprudence &ldquo;as a matter of Florida law&rdquo; nothing more than an exercise in futility. One would hope that the system of checks, balances and communications between the legislature and the judiciary are more carefully circumscribed and calibrated than to allow for such a preposterous result. In any event, a determinative outcome will soon bring the tension and uncertainty to a definitive end for better or for worse.<br /> <br /> <br /> <br /> <br /> <br /> <br />Products Liability Blog15 Jul 2016 00:00:00 -0800