United States: Supreme Court Jettisons Common Law Precedent In Product Liability Cases Back To 1985 In Coba V. Tricam

New decision by the Florida Supreme Court Eliminates Important Defense Protection in Cases Involving Inconsistent Verdicts

In Coba v. Tricam Indus., Inc., 40 Fla. L. Weekly S257a (Fla. May 14, 2015), the Florida Supreme Court eliminated an important common law protection for defendants in cases where defense counsel fails to contemporaneously object to an inconsistent jury verdict.

In Coba, Plaintiff sued the manufacturer of an aluminum ladder alleging strict products liability for a defective design. The complaint also alleged the manufacturer was negligent in failing to design the ladder in a reasonably safe condition. At the conclusion of the evidence, the trial court authored a verdict form for the jury to use in deliberations. The form unwisely asked the strict liability question without any reference to strict liability terminology. It then placed the design defect question in advance of the question of negligence. The following is the Coba jury's verdict form entries:

The jury returned a verdict for $1.5m and the court discharged the jury with no objection from defense counsel. The manufacturer subsequently filed a motion to set aside the verdict as inconsistent. The motion argued there could be no finding of negligent design without a finding that a design defect contributed to the accident.

The Third Florida District Court of Appeal agreed and determined the inconsistency was of a "fundamental nature" such that the failure to contemporaneously object did not result in waiver. The appellate court reasoned that, regardless of the existence of a timely objection, it could not reconcile the jury's conclusion that there was no design defect but that the manufacturer was liable on a negligence claim predicated exclusively on design defect. The Third DCA then resolved the inconsistency in favor of the defense rather than remanding the case for a new trial. The court reasoned that plaintiff had only put on evidence of a design defect as the basis for the products liability claim. Thus, the jury's failure to find a design defect meant "there was no evidence to support any other cause of action [and] no issue to be resolved on remand."

The Supreme Court overturned the Third DCA and held that any objection to an inconsistent verdict is waived if not made before the jury is discharged. The Supreme Court determined that a "fundamental nature" exception to this rule in products liability cases is "at odds with the [....] policy reasons undergirding the requirement of timely objection, including upholding the sanctity of the jury's role in trial, preventing strategic gamesmanship, and increasing judicial efficiency." In doing so, the Supreme Court jettisoned common law precedent in products liability cases dating back to 1985.

In part, the Supreme Court based the ruling on a desire to prevent the defense from "strategically sitting on the objection until after the jury is no longer available to correct its decision." The court ignored however, the strategic practice by which plaintiffs' counsel artfully draft confusing verdict forms to maximize the chance of a favorable decision despite having tried inconsistent theories. Such tactics are common in Florida products liability trials where plaintiffs' counsel wager the defense will not to recognize the problem in the harried minutes between verdict announcement and jury discharge in order to timely object.

The announcement of a civil jury verdict is the culmination of months (and sometimes years) of litigation work. Trial is a lengthy process at the end of which, the attorneys and their clients are spent. Trial is inconvenient to the personal lives of the jurors and when verdict is announced, there is a powerful momentum to terminate their service and quickly return them to their real lives. Any defense lawyer who, on the last day of trial, delays the conclusion of the significant sacrifice endured by the jury clearly risks their substantial indignation.

Prior to Coba, the case law starkly demonstrates how difficult it may be to rapidly analyze the presence of an inconsistency in a jury verdict under such circumstances. There is a strong disincentive for defense counsel to make the eleventh hour demand as trial culmination that the jury be returned to the deliberation room to sit idle while the matter of an inconsistent verdict is analyzed and debated with an annoyed judge. And, what is the reward for defense counsel being correct in this regard? The Supreme Court mandates in Coba that the jury return to deliberations apparently on new instructions. Surely the plaintiff, whose chances of final victory were vastly improved with the initial verdict announcement, will demand that the jury's damages calculation must likewise be reopened during the new deliberations.

The following are some new considerations for defense counsel in light of Coba:

  • Defense counsel must be very cautious about the Florida standard verdict forms especially where altered by plaintiff or the judge. Considering the forms are litigated at a point in the trial where counsel can be more cool and deliberative, the defense attorney must be thorough in evaluating and formulating verdict forms and liberal with record objections to any problems.  
  • Defense counsel must be mindful of the potential for inconsistences while drafting and finalizing verdict forms and jury instructions. Typically, the defense wants detailed verdict forms to guide the jury in truly considering all the elements of every claim raised by plaintiff. But, complicated verdict forms can confuse and increase the possibility of an internal inconsistency. The risks and rewards of these competing issues must be carefully considered.  
  • Once the verdict form and jury instructions are finalized with the court, defense counsel must consider all the ways in which the verdict could come back inconsistent. Defense counsel must plan ahead for the defense reaction at the announcement of the verdict. After Coba, the defense attorney must anticipate possible inconsistencies no matter how theoretical, research the applicable standard, and be prepared to interpose are argue timely objections before jurors are discharged.  
  • Efforts must be made to avoid the scenario whereby a jury enters deliberations likely to culminate at close of business or at 6:00 p.m. on Friday night. Failing such efforts, defense counsel must, at the point the verdict is announced, obtain a side bar with the judge and opposing counsel to obtain a moment to consider any verdict inconsistency before the jury is discharged.  
  • If the jury is discharged without objection, there is still the possibility of a motion for judgment notwithstanding the verdict ("JNOV").   
  • Before the jury ever receives the case, it is now a standard practice in Florida for defense counsel to move for directed verdict arguing that plaintiff's evidence was insufficient for jury deliberations. 
    • Before the jury ever receives the case, it is now a standard practice in Florida for defense counsel to move for directed verdict arguing that plaintiff's evidence was insufficient for jury deliberations. 
    • If defense counsel identifies a verdict inconsistency after jury discharge, he should consider whether it demonstrates an absence of evidence to support the portion of the verdict that favored the plaintiff over the portion that favored the defense.  
    • In such a scenario, the proper procedure is a motion for JNOV pursuant to Fla.R.Civ.P. 1.480(b) and based on the earlier motion for directed verdict.1 A motion for JNOV is appropriate when "no view of the evidence could support a verdict for [plaintiff] and [thus,] no reasonable jury could render a verdict for that party. New Jerusalem Church of God, Inc. v. Sneads Cmty. Church, Inc., 147 So. 3d 25, 28 (Fla. 1st DCA 2013). Even Coba recognized that the defendant's failure to contemporaneously object to an inconsistent verdict will not permit entry of judgment pursuant to that verdict where there is no evidence to support one jury verdict finding over another.

Footnote

1. Although the term "motion for a judgment notwithstanding the verdict" is still employed, pursuant to Rule 1.480(b), a motion challenging a jury verdict is more properly styled a "motion for judgment in accordance with a prior motion for directed verdict." See Fire & Casualty Ins. Co. v. Sealey, 810 So.2d 988, 991 (Fla. 1st DCA 2002).

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