The Florida Supreme Court reinstated a $6.6 million verdict a Florida jury delivered to a man who claims to have suffered mesothelioma as a result of his employment.

The Florida resident worked with materials that contained asbestos mined by Union Carbide Corp. After receiving the initial $6.6 million verdict, the defendant  appealed.

The Third District Court of Appeals sided with the company, saying that the plaintiff failed to prove that the asbestos product mined by Union Carbide caused his asbestos cancer.

The appellate court also used the “utility risk test” to analyze design defect claims, adding a burden to the plaintiff to prove a reasonable alternative design. The Florida Supreme Court rejected the appellate court’s decisions in a 5-2 vote, siding with the plaintiff.

William said that he used a spray product that contained processed asbestos mined by Union Carbide during his work as a home builder in the 1970s. In the original trial court decision, William was awarded a proportionate amount from Union Carbide that was a part of the total $14.2 million dollars awarded by the jury.

The court said that the application of the risk utility test applied by the Third District Court of Appeals was in conflict with the Supreme Court’s position established in 1976 and a Fourth District court position on a similar case in 2006.

The Supreme Court said of the misapplication of the risk utility test by the appeals court, “Increasing the burden for injured consumers to prove their strict liability claims for unreasonable dangerous products that were placed into the stream of commerce is contrary to the policy reasons behind the adoption of strict product liability in West.”

While the majority of the Supreme Court voters found that a reversal was not warranted, saying Union Carbide failed to provide jury instructions on the learned intermediary defense, other voters dissented, saying that the company had clearly asked for the jury to be instructed on the learned intermediary defense.

Essentially, with the learned intermediary defense, the jury in asbestos cases can consider the fact that manufacturer may not be completely at fault and may need to rely on an intermediary, such as a distributor of the product, to warn the end user of the risks associated with the products.

In his dissent, Judge Poulson explained, “It is further clear that the facts supported the application of the learned intermediary defense and jury instruction on this defense was necessary to properly resolve [William’s] failure to warn claim since, without this instruction, the jury might have reasonably been misled into concluding that it had to find Union Carbide at fault simply because Union Carbide did not directly warn end users.”

The Asbestos Mesothelioma Lawsuit is Case No. 3D10-1982, in the Third District Court of Appeal for the State of Florida.

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