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The burden of proof conundrum in motor vehicle crashworthiness cases.

Since its 1976 common law recognition of the crashworthiness doctrine in Evancho v. Ford Motor Co., 327 So. 2d 201, 202 (Fla. 1976), the Florida Supreme Court has never articulated the burden required to prove up an enhanced or increased injury case due to some design or manufacturing defect. (The terms crashworthiness and second collision in the case decisions are interchangeably used.)

A crashworthiness cause of action is one in which the defect claimed did not cause the initial accident. Instead, once the accident occurs, the alleged defect causes injuries to be greater than those the initial accident would have created. In the context of motor vehicles, for example, a low speed impact would not have caused serious injuries, yet because the airbag deployed, it caused more serious injuries. This is the second collision which occurs when the occupant impacts some interior part of the vehicle, or when a safety device designed to protect the occupant from injuries after the initial impact fails. A crashworthiness cause of action is based upon the proposition that automobile manufacturers have a duty to reasonably protect occupants from enhanced injuries since it is foreseeable that vehicles will get into accidents with each other and/or other objects. (1)

In 2001, the Florida Supreme Court handed down a landmark decision in D'Amario v. Ford, 806 So. 2d 424 (Fla. 2001), which held that principles of apportionment of fault for the negligence of the person causing the first collision did not apply to a crashworthiness cause of action. Therefore, the driver or person causing the initial accident could not be included on the verdict form so as to reduce the potential liability of the vehicle manufacturer for an alleged crashworthiness defect. (2) Yet a product manufacturer under D'Amario could not be held liable for any injuries occurring in the first accident or collision. (3) The D'Amario court analogized the distinction between an accident causing first event from an occupant second impact or collision to some component of the motor vehicle with that of medical malpractice occurring subsequently to an initial tort; in essence, crashworthiness fault was a successive tort distinct from the tort of the person who caused the motor vehicle crash in the first place. (4) Accordingly, the D'Amario court said, "[I]t is further presumed that a manufacturer, like a physician, may not be held responsible for injuries caused by the primary collision." (5)

In D'Amario, the court adopted a minority legal position which precludes comparative fault apportionment with the cause of the underlying accident--or first collision--from admission in a second collision automobile crashworthiness case. (6) This preclusion of fault apportionment is generally considered litigation-friendly to a plaintiff. There are, similarly, both minority and majority case decisions on what constitutes adequate proof to establish an enhanced injury from an evidentiary basis. Interestingly, if the Supreme Court were to adopt the minority viewpoint on the burden to prove enhanced injuries in a crashworthiness case, this position is recognized as favoring the defendant. So which position--minority or majority--will the Supreme Court ultimately favor in deciding the burden of proof issue? The remainder of this article attempts to address this issue.

What is the Burden of Proof?

The burden of proof in crashworthiness cases rests on the plaintiff, according to D'Amario. (7) The decision said in dicta:

We are not unmindful of the concerns that a manufacturer not end up improperly being held liable for damages caused by the initial collision. Of course, we must remember that in crashworthiness cases the plaintiff not only has the burden of proving the existence of a defect and its causal relationship to her injuries, but she must also prove the existence of additional or enhanced injuries caused by the defect. (8)

Yet, the court did not specify the evidentiary standard to which a plaintiff must establish these enhanced injuries. It said only that "the crashworthiness doctrine's legal rationale limiting a manufacturer's liability only to those damages caused by the defect" would protect an automobile manufacturer from responsibility for injuries caused by the initial collision. (9) But what did all this mean?

The issue of burden of proof as a black letter law principle is deceptively complex. There is the requirement of initially going forward with a burden of proof that a plaintiff has, and something called burden of persuasion. In the context of these motor vehicle crash cases, what must a plaintiff demonstrate prima facially before the burden shifts to the defendant to prove the injury was not enhanced or aggravated by an alleged crashworthiness defect in the automobile? D'Amario did not address how a plaintiff could meet his or her burden of proof in a crashworthiness case.

There has been an ongoing debate across the country's jurisprudence for almost 30 years about what the burden of proof should be for establishing an enhanced injury claim. (10) A brief review of this debate is necessary in helping to decipher what the Florida Supreme Court might ultimately decide. The opposing camps break down between those referred to as the Huddell-Caiazzo and Fox-Mitchell approaches.

Huddell v. Levin, 537 F.2d 726 (2d Cir. 1976), first established criteria for specifying the burden of proof in enhanced injury cases. This was a diversity case deciding New Jersey law. Huddell stated that crashworthiness or enhanced injury cases "require highly refined and almost invariably difficult presentation of proof." The court then articulated specific elements of proof to meet the burden.

In essence, it was the plaintiff's burden to demonstrate a practical, alternative, safer design which, if used, would not have caused enhanced injuries, and a methodology for attribution of the enhanced injury to the alleged defect. To prove an enhanced injury related to a defective motor vehicle design, a plaintiff under Huddell must prove an alternative design that would not have resulted in the enhanced injury. (11) An underlying rationale for Huddell was that an automobile manufacturer defendant and the first collision tortfeasor were not considered joint or concurring tortfeasors for liability purposes. (12) Thus, the plaintiff must be able to separately apportion and identify the enhanced injury. If the plaintiff was not able to do that, the defendant prevailed.

There was a concurring opinion in Huddell which argued the majority imposed too onerous a burden of proof on the plaintiff. (13) The concurring judge asserted that the person causing the initial accident (first collision), and the car manufacturer allegedly causing the enhanced injury, should be treated as "concurrent tortfeasors." Thus, the plaintiff need only prove a causal link of the injury to the alleged defect. Then the burden (i.e., burden of persuasion) of apportioning the second collision injuries from the first collision injuries shifted to the manufacturer defendant who was nothing more than a concurring tortfeasor under the Restatement of Torts (Second), [section]433B(2). (14) If the crashworthiness defendant could not then separate the concurring injuries between the first and second collision, the defendant was stuck with the entire damages harm.

A Second Circuit decision, Caiazzo v. Volkswagenwerk, A.G., 647 F.2d 241 (2d Cir. 1981), analyzing New York law, followed the Third Circuit's position in Huddell. The Caiazzo court held that a plaintiff "should be required to prove the extent of the enhanced injuries attributable to the defective design ... particularly in a case as this where the wearing of seatbelts would have eliminated most, if not all, of the enhanced injuries resulting from the design defect." (15) The plaintiff would be required to show the precise nature and extent of the injuries which were enhanced by the alleged defective vehicle design.

The Huddell-Caiazzo approach is now recognized as the minority position. (16) Numerous law review articles have outlined those jurisdictions which have followed Huddell-Caiazzo. (17) In adopting Florida's version of crashworthiness law as it related to apportionment of fault, (18) our Supreme Court followed the minority views of South Carolina, Arizona, and Iowa. Both South Carolina and Iowa have been identified as jurisdictions in the Huddell-Caiazzo camp. (19)

The Fox-Mitchell line of cases took their cue and theoretical underpinnings from the concurring opinion in Huddell which had suggested that majority opinion was too orthodox and difficult for a plaintiff to satisfy. Fox v. Ford Motor Co., 575 F.2d 774 (8th Cir. 1978), applying Wyoming law, addressed the issue of enhanced injury and articulated a lesser standard than Huddell required. The Fox court found a crashworthiness case involved principles of joint and several or concurrent liability in deciding causation between the first accident collision and the second collision enhanced injuries. Fox analogized its approach to active and passive tortfeasors as set forth in the Restatement of Torts (Second) [section]433. (20) This rationale would result in an easier burden of proof for a plaintiff than that required by Huddell. (21) Fox also stated that there may be injuries which were indivisible and could not be separated out, such as death. (22) Therefore, if injuries could not be apportioned and there was liability, the manufacturer defendant was responsible for all the damages.

Mitchell v. Volkswagenwerk, A. G., 669 F.2d 1199 (1982), followed Fox. In applying Minnesota law Mitchell held, contrary to Huddell-Caiazzo, a plaintiff's burden was only to prove the alleged defect "was a substantial factor in producing dam-ages over and above those which were probably caused as a result of the original impact or collision." (23) The manufacturer defendant was then required to separate out the injuries, if possible. Otherwise, as in death or paralysis cases where the injury is indivisible, the defendant is liable for all the damages as would be any joint and several tortfeasor. (24) Initially, Fox-Mitchell was not followed by many jurisdictions. (25) Today, however, it is considered the majority position. (26)

Third Restatement

In keeping with the Restatement of Torts (Second) on Products Liability, [section]402A, the Florida Supreme Court adopted strict products liability in West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80 (Fla. 1976). The Restatement Second did not, however, specifically address burden of proof in enhancement of injuries cases. This was something later dealt with by the American Law Institute (ALI) in the Restatement of the Law (Third).

The ALI, in its Restatement Third, attempted to establish a uniform standard for the burden of proof in enhanced injury crashworthiness cases. (27) Of course, in the midst of the analysis supporting their Restatement recommendation, the commentary reviewed both the majority and minority approaches to proving, from a burden of proof standpoint, enhanced injuries. (28) The Restatement Third adopted the rationale followed in Fox-Mitchell.

The ALI treated the issue of enhancement of injury from a joint tortfeasor standpoint, and framed the issue as one of "increased harm." (29) That rule is similar to the Restatement of Torts (Second), [section]432B(2), first cited in the concurring opinion in Huddell, which requires the joint or concurring tortfeasor "actor" to apportion out the injuries. (30) The Restatement Third stated that a plaintiff only had to demonstrate the defect was a substantial factor for the "increased harm." If this "increased harm" could not be separated from other causes (i.e., tortfeasor drunk driver), the manufacturer defendant would be jointly and severally liable for all the harm suffered. (31)

The Florida Approach

There are no Florida state court cases in which either Huddell-Caiazzo or Fox-Mitchell was followed for the burden of proof requirement in a crashworthiness context, including D'Amario. Nevertheless, the Reporter's Notes to the Restatement Third projected that Florida was one of "those states whose law either supports, or is strongly leaning toward the majority view [Fox-Mitchell]." (32) Of course, in 1998 when the Restatement Third was published, D'Amario had not been decided. To support its position, the Restatement Third cited a federal diversity decision for how Florida would rule. (33) That case was McLeod v. American Motors Corp., 723 F.2d 830 (11th Cir. 1984).

McLeod involved a head-on collision that occurred when the plaintiff swerved to avoid a drunk driver and slammed on her brakes. Her 120-pound Great Dane was in the rear seat of the MAC Pacer. A defective bolt on the front seat was alleged to have broken before the impact due to the emergency braking and, unfortunately, the dog struck the rear of the front driver's seat. As a result, the plaintiff was propelled forward into the steering wheel and front windshield. McLeod looked for, but found no Florida precedent on apportionment of injuries in a crashworthiness case. (34) A verdict for the plaintiff was affirmed on the correctness and appropriateness of a concurring cause jury instruction. Mac's defense was that the drunk driver and plaintiff were entirely responsible for causing her injuries.

McLeod found injury enhancement to be a concurrent cause liability issue. Thus, all the plaintiff had to do was demonstrate that the alleged defect "substantially contributed" to producing the injuries, whatever they were. (35) The burden of persuasion then shifted to the defendant, MAC, to apportion out the enhanced from the non-enhanced injuries. AMC did not do that, and could not prove the injuries were divisible between the two concurring tortfeasors. (36) This was different from D'Amario where the Florida Supreme Court held that a crashworthiness defendant was not a concurring cause with the initial tortfeasor precipitating the first collision. This was because D'Amario stated:

However, it is not entirely clear that our holding in Fabre [v. Marin] resolves the question presented today since Fabre involved a simple automobile accident involving joint and concurrent tortfeasors, and did not involve successive tortfeasors or enhanced or secondary injuries allegedly stemming from a manufacturing or design defect. (37)

Therefore, it is uncertain what persuasion McLeod has on the Florida Supreme Court today.

The McLeod court also recognized that in Florida there was a successive tortfeasor rule. (38) The court stated that Florida law "apparently holds that in successive injury cases the jury should be allowed to apportion damages between the defendants; however, if damages are not reasonably apportionable, plaintiff may recover the full amount from either of the two defendants." (39) Washewich v. LaFave, 243 So. 2d 670, 672 (Fla. 4th DCA 1971), was cited for that authority. Yet, Washewich was not cited in D'Amario despite the fact the latter case held, or at least analogized, a crashworthiness second collision case to a successive tortfeasor occurrence. (40)

The court in McLeod further relied on an old Fifth Circuit case, Smith v. Fiat-Roosevelt Motors, Inc., 556 F.2d 728 (5th Cir. 1977). Smith reversed a summary judgment for the defendant in a rear-end collision seatback case. This reversal occurred although the plaintiff was not able to apportion injuries between the initial rear-end collision and those which may have been caused by an alleged defect which allowed the seatback to recline or go rearward upon the impact. (41) This particular decision turned on a concurring cause instruction from the Florida Standard Jury Instruction 5.2b, which provides "where an injury is indivisible and apportionment is impossible, plaintiff may recover his entire damages from either tortfeasor." (42) Stated differently, in Smith a crashworthiness defendant was a concurring causative factor with the fault of the first tortfeasor causing the accident.

Although not reaching this precise issue as a holding, in referring to McLeod the Northern District of Florida (pre-D'Amario) in Humphreys v. General Motors Corp., 839 F. Supp. 822, 828 n. 7 (N.D. Fla. 1993)(citations omitted) observed:

At this point, the Court makes no determination as to whether Plaintiffs' bear the burden of proving the exact amount which Mrs. Humphreys' injuries were "enhanced" by the alleged defect. The parties dispute vigorously whether this is an "enhancement of injuries" case where the reasoning of [Huddell] should apply. At this point, the Court is inclined to agree with Plaintiffs that under [McLeod] Plaintiffs are not obligated to follow Huddell's requirement that they prove, essentially through expert testimony, the precise extent to which the alleged defect enhanced the injuries caused by the collision.

Under these circumstances, whether Plaintiffs bear the extra burden under Huddell is moot.

The Restatement Third was apparently correct in projecting where Florida law was at the time of its 1998 publication. That is to say, a crashworthiness defendant was a concurrent tortfeasor with the party causing the initial accident. What could not be foreseen was that the Florida Supreme Court, three years later in D'Amario v. Ford, would hold that a crashworthiness, enhanced injury case was not like the joint and several liability of concurring tortfeasors as the Restatement Third viewed it.

Sorting Out Tea Leaves

It appears from the recitation so far that, because of D'Amario, a substantial philosophical and extant doctrinaire inconsistency will present itself whenever the Florida Supreme Court attempts to decide this enhanced injury burden of proof question. The court cannot take the Fox-Mitchell approach adopted by the Restatement Third, and analogized to concurrent tortfeasors, when establishing what is the burden of enhanced injury proof in a crashworthiness case. The court has already held, to the contrary, that crashworthiness cases are analogous to a successive tortfeasor event like medical malpractice occurring after someone is injured, for example, in a slip and fall. To find in the Fox-Mitchell vein the Supreme Court would have to create a different rationale for the burden of proof issue from the way it viewed first collision/second collision apportionment of fault and hold, only for the damages portion of a crashworthiness case, that principles of concurring tortfeasors were applicable.

D'Amario's treatment of crashworthiness enhanced injury cases in the context of successive tortfeasors causes additional problems when deciding the crashworthiness burden of proof issue. The McLeod court stated, in referring to the successive tortfeasor law, if damages were not "reasonably apportionable," "plaintiff may recover the full amount from either of the two defendants." (43) However, in a D'Amario case there are no other defendants than the crashworthiness defect parties. The initial tortfeasor is not part of the case. It could be argued, therefore, the court in D'Amario already decided, as an unstated matter of law, that enhanced injuries have to be apportionable by their very nature. "Further, only the cause of the enhanced injury is at issue in crashworthiness cases such as those at issue here because the only damages sought are those caused by the defective product." (44)

Therefore, a post-D'Amario court, unlike the McLeod decision, could not logically hold that if the enhanced injuries cannot be apportioned the burden is then on the defendant to separate them out. Otherwise, the crashworthiness defendant had to absorb the total damages. To hold as this would be to adopt the Fox-Mitchell rationale on concurring tortfeasors. Yet, D'Amario clearly pointed out:

We agree that to automatically compare the fault of the driver in causing the accident with the fault of the automobile manufacturer for the subsequent enhanced injury would be ... to confuse two different causes--the cause of the accident and the cause of the enhanced injury.

The essential point is that under the crashworthiness doctrine, as in medical malpractice cases, the initial collision and its separate cause is always presumed, and the cause of the initial collision is simply not at issue in the determination of the cause of the second collision. Instead, any analysis concerning the causal connection of the second collision to the separately claimed damages depends solely upon whether a defect existed and gave rise to the enhanced injuries suffered by the plaintiff. (45)

It would be the antithesis of these statements for our Supreme Court now to say that the injuries between the first collision and the second collision could be indivisible, as in concurring or joint tortfeasor cases, and if so, the defendant was responsible for the total damages.

Furthermore, D'Amario's reliance on the successive tortfeasor analogy for crashworthiness simply does not lend itself to non-apportionment or an indivisible injury concept. For example in Whitehead v. Linkous, 404 So.2d 377 (Fla. 1st DCA 1981), cited in D'Amario, a plaintiff attempted to commit suicide, although medical malpractice actually caused the death. That is to say, but for the medical malpractice, the suicide attempt would have failed. The court in D'Amario, analogizing this situation to a crashworthiness case, stated that in a successive tort case one must look at "the damages sought in this case." (46) What it means is that only the enhanced injuries should be at issue in a crashworthiness case. Because of this language, placing the burden of proof on the plaintiff to establish exactly what were those enhanced injuries in a D'Amario crashworthiness case is seemingly required. If this cannot be done, then the defendant wins. This result is essentially the Huddell-Caiazzo rationale.

If the Supreme Court were to adopt Huddell-Caiazzo, there would be spirited arguments from the plaintiffs' bar. They would posit, as did the concurring opinion in Huddell, that this imposes too much of a burden on the plaintiff. As the Supreme Court has framed the crashworthiness doctrine in Florida, however, the Huddell-Caiazzo approach is far more consistent than is Fox-Mitchell to the holding in D'Amario.

Admittedly, this is a complex and convoluted situation. The court in D'Amario adopted the minority view on fault apportionment. In turn, some of those very same minority view cases relied on by the Florida Supreme Court from other states adopted what has now become another minority position--Huddell-Caiazzo--on the burden of proof standard. By adopting the Huddell-Caiazzo approach, the court would at least be consistent with D'Amario in following a so-called minority line of authority. However, if the court were to embrace Fox-Mitchell, it would be embracing a majority position which, in a different context, it refused to adopt in D'Amario. Had the Florida Supreme Court adopted the majority view in D'Amario, it would be much easier, and more consistent, for it now to permit the lesser burden of proof requirements for plaintiff as set out in Fox-Mitchell and the Restatement Third. This is because the majority view rejected by D'Amario required that both the initial fault of someone in causing the accident and fault of the crashworthiness defendant be considered together. (47) From that position it is more consistent to say the plaintiff, if unable, should not have the burden of discriminating between what injury the driver caused and the enhanced injury caused by the crashworthiness defect. As such, the crashworthiness defendant must shoulder all the damages if he or she could not separate or apportion the injuries between first and second collisions. The doctrinal theorem behind Fox-Mitchell, and the Restatement Third's concurrent or joint and several tortfeasors who come together to cause one single injury would then certainly be more consistent than it is under the present D'Amario holding.

There is a further basis for the court, after D'Amario, to adopt the Huddell-Caiazzo rationale. That court opinion specifically referred to a Montana Law Review article written by Robert C. Reichert. The theme of that article was distinguishing between accident-causing and injury-enhancing fault. (48) D'Amario relied on Reichert to support the decision that fault of the first tortfeasor should not be apportioned or allowed to reduce a crashworthiness defendant's liability. However, when the Reichert article is reviewed, its hypothesis would require Florida's adoption of the Huddell-Caiazzo evidentiary rule. In fact, Reichert identified a plaintiff's burden of proof in an enhanced injury crashworthiness case requiring similarly the same elements as Huddell. (49) Reichert took the position that where the injuries could not be apportioned in a crashworthiness case, or were indivisible, then the plaintiff lost. (50) This result is contrary to Fox-Mitchell. According to Reichert:

One consequence of requiring a plaintiff to show enhanced injuries is that when injuries are not capable of apportionment into those caused by a defect and those injuries not caused by a defect, a manufacturer is free from liability. The axiom from which second collision liability is derived limits manufacturer liability to enhanced injuries; if the injuries suffered by a plaintiff cannot be identified as caused by an alleged design defect they cannot, by definition, be injuries enhanced by an alleged defect. (51)

There has been some change in membership of the Florida Supreme Court since D'Amario. Whatever the views of these new appointees, there still remains a majority who voted for D'Amario. The Florida Supreme Court adopting Huddell-Caiazzo would anger attorneys representing plaintiffs in these crashworthiness cases. The motor vehicle manufacturer's attorney would likely decry a different decision. Either way the court goes, someone will be unhappy, whether it is from the plaintiffs' perspective or that of the defense. Based upon the present and continuing viability of D'Amario, and assuming it is not redecided, the court must adopt the minority Huddell-Caiazzo position to maintain a consistent legal position.


The Florida Supreme Court should adopt the Huddell-Caiazzo burden of proof rule. If the court, as it did in D'Amario, views crashworthiness as looking only at how an alleged motor vehicle occupant protection defect enhanced an injury, then the plaintiff should have the task of establishing increased injury. Plaintiffs' attorneys in this field certainly have the ability to overcome this obstacle with expert witnesses to get them to the jury. (52) Since this is a causation matter, no trial judge would likely remove the issue from a jury, and having a court disqualify any expert is not something which usually occurs under our existing law. (53)

In actuality, even under Huddell-Caiazzo, the defense gets no break either. They still have the affirmative burden to establish no enhanced injury, and instead, the result would have been the same regardless of the claimed defect due, for example, to no seatbelt use, crash severity, or in a fire case that the cause of death was impact-related and not thermal precipitated. Requiring Huddell-Caiazzo, in light of D'Amario, would not seem to impose any dire unfairness on the plaintiff.

No matter what the Florida Supreme Court does with the burden of proving injuries in a crashworthiness case it should develop detailed jury instructions for this entire area. The standard instructions and model product liability forms are inadequate. They provide no reasonable guidance or explanation to a jury. It is recommended, therefore, that the Supreme Court refer to the appropriate Florida Bar committee for the development of jury instructions and a special verdict form to be used in crashworthiness products liability cases.

The status of crashworthiness law in Florida, despite beliefs to the contrary, is a mess. It is a complex rule of law which the Florida Supreme Court should fully address in all its aspects. In essence, crashworthiness law in Florida, as it presently exists under D'Amario, is convoluted, internally inconsistent, and a potential morass of misunderstanding by everyone involved, particularly trial judges having to make evidentiary rulings. Since D'Amario could take three lines from the Second District's opinion concerning apportionment of fault in a crashworthiness case and turn it into a 16-page majority opinion, (54) clearly the Supreme Court has the ability, in turn, to use its next case opportunity to clarify all these crashworthiness-related issues.

(1) Evancho, 327 So. 2d at 203-204.

(2) D'Amario, 806 So. 2d at 437.

(3) Id. at 439-440.

(4) Id. at 435-437.

(5) Id. at 437.

(6) The court did not speak to or provide guidance on how trial courts were to handle product liability cases where the motor vehicle was being charged with defects in causing the crash, as well as not adequately protecting the occupants.

(7) D'Amario, 806 So.2d at 439.

(8) Id. at 439.

(9) Id. at 440.

(10) See Chadwick, "Causing" Enhanced Injuries in Crashworthiness Cases, 48 SYRACUSE L. REV. 1223, 1238-1257 (1998); Vickles & Oldham, Enhanced Injury Should Not Equal Enhanced Liability, 36 S. TEX. L. REV. 417, 426-435,440-444 (1995).

(11) See Hoenig, Resolution of "Crashworthiness" Design Claims, 55 ST. JOHNS. L. REV. 633,699-706 (1981).

(12) Huddell, 537 F.2d at 738. See Foland, Enhanced Injury: Problems of Proof in "Second Collision" and "Crashworthy" Cases, 16 WASHBURN L.J. 611, 614-615 (1977).

(13) Huddell, 537 F.2d at 744 (Judge Rosenn).

(14) Id. at 745.

(15) Id. at 250.

(16) RESTATEMENT OF THE LAW (THIRD)--TORTS, Products Liability, ch. 4, [section] 16, at 250 (1998).

(17) Vickles, note 10 at 29 & n. 74; Shad, Warren v. Columbo: North Carolina Recognizes Claim for Enhanced Injury, 68 N.C.L. REV. 1330, 1335 & n. 57 (1989).

(18) D'Amario, 806 So.2d at 433-434.

(19) RESTATEMENT OF THE LAW (THIRD)--TORTS, Products Liability at 250.

(20) Fox, 575 F. 2d at 787-788.

(21) Id. at 787.

(22) Id. at 788.

(23) Mitchell, 669 F.2d at 1206.

(24) Id,

(25) Vickles, note 10 at 433, n. 99; Shad, note 17 at 1338.

(26) RESTATEMENT OF THE LAW (THIRD)--TORTS, Products Liability, at 244.

(27) Id. at 235-236.

(28) Id. at 241-256.

(29) Id. at 236.

(30) Id. at 243-244.

(31) Id. at 244.

(32) Id. at 244. See also Vickles, note 10 at 433 n. 99.

(33) Id. at 245.

(34) McLeod, 723 F.2d at 834. The decision did not say anything about the outcome for the dog.

(35) Id.

(36) Id. at 835.

(37) D'Amario, 806 So.2d at 435 (emphasis in original).

(38) McLeod, 723 F.2d at 834.

(39) Id.

(40) D'Amario, 806 So.2d at 435.

(41) Smith, 556 F.2d at 729.

(42) Id.

(43) McLeod, 723 F.2d at 834.

(44) D'Amario, 806 So. 2d at 437.

(45) Id.

(46) Id. at 436 (emphasis added).

(47) Id. at 431-432.

(48) Reichert, Limitations on Manufacturer Liability in Second Collision Actions, 43 MONTANA L.REV. 109, 113 (1982).

(49) Id. at 114.

(50) Id. at 113-114.

(51) Id. at 115.

(52) See Harris, Enhanced Injury Theory: An Analytical Framework, 62 N.C.L. REV. 643, 660 (1984).

(53) See generally Frye v. United States, 293 F.1013 (D.C. Cir. 1923); Hadden v. State, 690 So.2d 573 (Fla. 1997). Florida follows Frye, and not the Daubert rule. Frye is considered a stricter standard by which to disqualify an expert. More often than not, a trial judge will let it go to the weight of the expert's testimony to be handled through cross-examination.

(54) See D'Amario v. Ford Motor Co., 732 So. 2d 1143, 1145 (Fla. 2d D.C.A. 1999).

Larry M. Roth is a 1975 graduate of the University of Florida Law School. His practice includes representation of automobile manufacturers in products liability cases.
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Title Annotation:Florida
Author:Roth, Larry M.
Publication:Florida Bar Journal
Date:Feb 1, 2006
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