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Court releases product liability opinion.

Preliminary approval has been granted for some new products liability standard jury instructions to replace those approved under the former standard civil jury instruction structure, according to a recent Supreme Court opinion. However, the court said none of the new instructions could be used until the entire package of revisions is finished.

In the May 17 opinion, the court approved portions of the new instructions for publication and preliminarily approved others for publication pending modification.

The court, though, also rejected portions of the proposed instructions, including a special verdict form. The court requested that proposed instruction 403.3, Greater Weight of the Evidence, be consistent with the previously authorized standard civil jury instructions, and asked that other rejected proposals be amended and revised by the Committee on Standard Jury Instruction in Civil Cases.

The court also rejected and referred back to the committee these proposed instructions: 4-3.7--Strict Liability; 403.11 --Inference of Product Defect of Negligence (new), 403.13--Preliminary Issue (new); 403.16 Issues on Crashworthiness and "Enhanced Injury" Claim; and Model Instruction 7 and Special Verdict Form.

"We direct the committee to make revisions consistent with the instructions preliminarily approved by the court for publication in the future and as set forth in the appendix to this opinion, as well as the court's decisions in In Re: Standard Jury Instructions in Civil Cases--Report No. 09-01 (Reorganization of the Civil Jury Instructions), 35 So. 3d 666 (Fla. 2010) and In re Standard Jury Instructions in Criminal Cases--Report No. 2010-01 & Standard Jury Instructions in Civil Cases --Report No. 2010-01, 52 So. 3d 595 (Fla. 2010)," said the opinion. "We also direct the committee to conform all instructions, comments, model forms of instructions, verdict forms, and any related material to the actions of the court in this and prior opinions. All of the foregoing must be completed before publication and use. Accordingly, until further order of the court, we withhold authorization of the approved instructions."

The approvals are only preliminary, the opinion stated, because the instructions must be viewed in their entirety as a complete package before they can be authorized.

"The instructions set forth in the [opinion] appendix shall be effective when the entire package of products liability material is completed and the instructions are authorized by the court," the opinion said. "We caution that further work is required before publication and use of these preliminary products liability instructions, model forms, verdict forms, and any other material relating to the foregoing."

Justices Barbara Pariente, Fred Lewis, Jorge Labarga, and James Perry concurred, with Chief Justice Charles Canady and Justice Peggy Quince concurring in part and dissenting in part. Justice Ricky Polston concurred with Canady's dissent.

"I dissent from the court's preliminary approval of new standard instructions 403.9 (Negligence); 403. 10 (Negligent Failure to Warn); and 403.18 (Defense Issues)," Canady wrote in his dissent. "Because these particular instructions and certain of the comments associated with them have generated substantial controversy, I conclude that it would be appropriate for the court to now refrain from approving these instructions. The court should defer addressing the contested issues until presented with a proper case for adjudication."

"I agree with Chief Justice Canady that we should not authorize for publication or use new standard instruction 403. 10 (Negligence Failure to Warn). However, I also conclude that standard instruction 403.18 as modified should be authorized for publication and use," wrote Quince.

In a separate concurring opinion, Justice Pariente supported the majority's rejection of the committee proposal to merge the instruction on manufacturing and design defects. She also urged the district courts of appeal to certify a case to the Supreme Court on the definition of design defect, saying it was unsettled in state law and should be determined by an actual case rather than through a jury instruction.

The court acted in In Re: Standard Jury Instructions in Civil Cases, Case No. SC09-1264.
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Author:Jones, Annie Butterworth
Publication:Florida Bar News
Date:Jun 15, 2012
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