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Friday, July 12, 2024 | Back issues
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Millions Reinstated for Man With Mesothelioma

(CN) - Vindicating a Florida contractor dying of mesothelioma, the state Supreme Court ordered a $6.6 million jury verdict against Union Carbide reinstated.

William Aubin claims that he contracted peritoneal mesothelioma - an incurable, terminal cancer in the abdominal lining - by exposure to SG-210 Calidria, an asbestos product made by Union Carbide.

The exposure likely occurred in the early 1970s when Aubin was supervising the construction of a residential development called Desoto Lakes in Sarasota. Aubin alleged that he inhaled dust created by the sanding and sweeping of drywall joint compounds and the application of ceiling texture sprays.

Claiming that he did not know these materials contained asbestos, Aubin sued Union Carbide for negligence, failure to warn and strict liability defective design.

Though a jury ruled for Aubin and awarded him $6.6 million, Florida's Third District Court of Appeal in 2012, finding that Aubin needed to prove the existence of a reasonable alternative design for the product to pass a risk-utility test.

The appeals court also disagreed that a design defect caused Aubin's damages, and it ruled that the jury instructions were misleading as to Union Carbide's duty to warn the product's end user.

Citing precedent from its 1976 ruling in West v. Caterpillar Tractor Co., which used a "consumer expectations" test to determine a design defect, the Florida Supreme Court voted 5-2 last week to have the verdict reinstated.

"The definition of design defect first enunciated in West, which utilizes the consumer expectations test, instead of utilizing the risk utility test and requiring proof of a reasonable alternative design, best vindicates the purposes underlying the doctrine of strict liability," Justice Barbara Pariente wrote for the majority.

Pariente added: "Because we conclude that Aubin presented sufficient evidence to avoid a directed verdict on causation, the Third District erred as a matter of law in taking this issue away from the jury."

As to the jury instructions, they were "not so misleading as to require a reversal, the Oct. 29 decision states.

The dissenting justices meanwhile said that Union Carbide deserves a new trial, "since the jury instructions on Aubin's failure to warn claims - namely, 'an asbestos manufacturer, such as Union Carbide Corp., has a duty to warn end users of an unreasonable danger in the contemplated use of its products - was misleading."

This instruction failed to inform the jury about Union Carbide's learned-intermediary defense, Justice Ricky Polston wrote, joined by Justice Charles Canady.

The learned-intermediary defense allows companies to discharge their duty by warning intermediate manufacturers and relying on them to warn the end users.

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