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There was an awful lot for defense counsel to contend with in Cavanaugh v. Stryker Corp., 2020 WL 5937405 (Fl. Dist. Ct. App., 4th Dist. Oct. 7, 2020).  The patient died during surgery when the defendant manufacturer’s suction device damaged his heart.  Another patient died under similar circumstances two years earlier.  The manufacturer issued a notice updating its warnings as to those circumstances five months earlier.  The FDA said that the device was potentially adulterated three months earlier.  The manufacturer issued a recall notice limiting the device’s use two months earlier.  The nurse who misused the suction device during the surgery did not read the warnings.  And the description of the patient’s death was unsettling.

But a good defense team can find within those facts, and certain others, a reasonable story to tell a jury about why they should not hold the manufacturer liable and should instead look to the medical  staff’s misuse of the device in the face of revised warnings, a recent training session and broad industry knowledge that the device should not be used in the manner that it was.  They told that story well, and the jury agreed.  (We note that the plaintiff wasn’t out of luck because she settled with the medical defendants before trial).  The trial was a big victory for the defense.

But at least as big was the defense’s victory on appeal last week.  Plaintiff challenged the trial court’s decision not to instruct the jury on the consumer expectations test for plaintiff’s design defect claim.  This challenge had support from the Florida Supreme Court, which held only five years earlier in Aubin v. Union Carbide Corp., 177 So. 3d 489, 510 (Fla. 2015), that “in approaching design defect claims, we adhere to the consumer expectations test.”

The defense, however, effectively showed Florida’s Fourth District Court of Appeals that medical devices are different from the product involved in Aubin.  Convinced, the appellate court held that Aubin was “distinguishable” because it “involved asbestos, which is not a complex product.”  Sure, “an ordinary consumer could form expectations about” asbestos.  But the “consumer expectations test cannot be logically applied” to medical devices, which are available to “an ordinary consumer only as an incident to a medical procedure.”  The suction device in Cavanaugh, not surprisingly, was never “marketed to ordinary consumers.”

In fact, any attempt to apply the consumer expectations test in Cavanaugh, if it could be done at all, would have required a modification clarifying “that the relevant expectations are those of the health care professional.”  But the plaintiff never asked for such an instruction.  And so the defense got its appellate win:

Accordingly, we conclude that the Plaintiff’s proposed [consumer expectations] instruction was not an accurate statement of the law under the specific facts of the case and would have been confusing to the jury.  We therefore find no abuse of discretion in the trial court’s decision to withhold the instruction.

The appeal in Cavanaugh involved several other issues, all of which went the defense’s way, including plaintiffs’ challenge to the trial judge’s highly unusual decision to allow peremptory strikes of alternate jurors just before deliberations were to begin.  Despite what appears to have been a tactical battle for jurors between counsel (again seemingly won by the defense), the appellate court also rejected this challenge because, in the end, the jury consisted of qualified, impartial jurors.

This was a big win.  It put into the Florida appellate books a clarification that Aubin’s consumer expectations test does not apply to medical device and, presumably, drug cases.  Shout out to Dan Rogers at Shook Hardy for his appellate win and for alerting us to the decision.