308 So.3d 149
Fla. Dist. Ct. App.2020Background
- During a 2012 lobectomy at Lawnwood Regional, a nurse connected a Neptune 2 high‑flow surgical suction (via a Yankauer tip) to the patient’s chest tube instead of a passive chest drain, causing catastrophic blood loss and death.
- Plaintiff (personal representative) sued Stryker (manufacturer) for strict liability (design defect and failure to warn) and negligence; hospital and nurse malpractice claims were settled.
- Evidence at trial: Neptune 2 was a complex, high‑vacuum device with warnings against use for passive chest drainage; FDA raised clearance concerns in 2012, Stryker issued notifications and a recall/medical necessity certificate.
- Plaintiff argued the jury should have been instructed using the consumer expectations test (Florida Std. Jury Instr. 403.7(b)); Stryker proposed only the risk‑utility formulation.
- Near the end of trial a seated juror had a scheduling conflict; the court excused him, sua sponte allowed an extra peremptory challenge, Stryker struck the first alternate and the second alternate was seated.
- The jury returned a defense verdict; on appeal the Fourth DCA addressed two preserved issues: (1) refusal to give the consumer expectations instruction and (2) the extra peremptory strike/alternate replacement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by refusing to give the consumer‑expectations design‑defect instruction | Aubin requires the consumer‑expectations test be available; the proposed instruction accurately stated law and was supported by evidence | Neptune 2 is a complex medical device available only through medical professionals; ordinary consumers cannot form expectations so the consumer‑expectations test is inapplicable | Court: No error. Consumer‑expectations test not appropriate for this complex, learned‑intermediary medical device; withholding the instruction was within discretion |
| Whether the court erred by allowing an additional peremptory strike after jurors were sworn and by skipping the first alternate | Allowing a strike post‑sworn violated Rule 1.431 and Tedder; alternates must be seated in order — error prejudicial | Court discretion in jury matters; no tactical gamesmanship; no prejudice shown | Court: Error to permit the extra peremptory and to skip the first alternate, but error was harmless because the replacement alternate had heard the entire trial and no prejudice was shown (affirmed). Note: one judge dissented as to harmlessness |
Key Cases Cited
- Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015) (adopts consumer‑expectations test but recognizes limits where ordinary consumers lack expectations)
- Tedder v. Video Elecs., Inc., 491 So. 2d 533 (Fla. 1986) (peremptory challenges are allowed only until juror is sworn)
- Special v. W. Boca Med. Ctr., 160 So. 3d 1251 (Fla. 2014) (harmless‑error framework for civil appeals)
- Piccott v. State, 116 So. 2d 626 (Fla. 1959) (parties are entitled to qualified jurors, not particular jurors)
- Porter v. Rosenberg, 650 So. 2d 79 (Fla. 4th DCA 1995) (in learned‑intermediary contexts, physician’s expectations may be the relevant standard)
- McNeil v. State, 158 So. 3d 626 (Fla. 5th DCA 2014) (exercise of peremptory strikes mid‑trial can be harmful and encourage tactical gamesmanship)