Winter 2015

Volume XVII, Issue 4   


Inside this issue:
President's Column
Member Profile
FDLA New Members
Defense Verdicts
Committee News
Case Notes
FDLA Lunch & Learn Electronic Discovery
FDLA 2015 Advanced Boot Camp
FDLA Lunch & Learn 2nd Series
FDLA/DRI Webinar
2016 Annual Meeting
Honoring James A. Franklin, Jr.
Honoring James A. Franklin, Jr.
Happy Holidays!
deFENSE POST Information
Attention Members!

Take advantage of the deFENSE POST to share your verdicts, accomplishments,

recognitions and special achievements with FDLA members. Send your press releases, office relocation notices, defense verdicts and any other items of interest to the FDLA

office via email to The content of deFENSE POST depends on

information from

 FDLA members.


The date to remember to submit your "news" for the Spring 2016 issue of deFENSE POST is February 1, 2016 - send your news in NOW!

Dates to Remeber
January 13-18, 2016 
Martin Luther King 
Big Sky, Montana 
Debunking and the Reptile Theory
January 29, 2016 
June 8-11, 2016
Disney's Contemporary
Lake Buena Vista, Florida
September 22-25, 2016
LaPlaya Beach & Golf Resort
Naples, Florida

June 7-10, 2017
Disney's Contemporary
Lake Buena Vista, Florida

June 6-9, 2018
Disney's Contemporary
Lake Buena Vista, Florida


FDLA Lunch & Learn Webinar Series
   Thursday, February 11, 2016 
      Auto/Transportation Law 
   Wednesday, May 11, 2016 
   Tuesday, August 9, 2016

Watch your emails for notices/ information on how to register for upcoming FDLA webinars!

Board of Directors

The FDLA Board of Directors meets on a quarterly basis. If any member has items/ issues he or she would like the Board to address, please use the contact information below: 


Andrew S. Bolin   

P: 813-226-3000


FDLA Office
P: 813-885-9888



The next  

Board Meeting is  

Thursday, January 15, 2016.

Andrew S. Bolin 
Beytin McLaughlin McLaughlin O'Hara & Bolin
201 N. Franklin Street
Suite 2900
Tampa, FL 33602
P: 813-226-3000
F: 813-226-3001 

Robert E. Bonner 
Meier Bonner Muszynski O'Dell & Harvey PA
260 Wekiva Springs Rd 
Longwood, FL 32779
P: 407-872-7774 
F: 407-872-7997

Jeffrey W. Johnson 
Johnson Law Group
1900 NW Corporate Blvd
Boca Raton, FL 33431
P: 561-994-9433 
F: 561-994-9099

Dale J. Paleschic 
Immediate Past President
Luks Santaniello Petrillo
& Jones 
301 West Bay Street
Jacksonville, FL 32202
P: 904-791-9191
F: 904-791-9196
Enjoy the Winter 2015 Electronic Edition of 
President's Column
Andrew S. Bolin
FDLA President
Beytin McLaughlin McLaughlin 
O'Hara & Bolin  
Tampa, FL
Membership Has its Benefits 
Executive Director Linda Jude and I recently attended the annual meeting of the Defense Research Institute together. In addition to an outstanding lineup of speakers, this meeting gave Linda and I the chance to network with the Presidents and other executive Directors of State Defense Organizations from all over the country. I walked away impressed by several things.  First and foremost, the FDLA is bringing more educational and professional development opportunities than perhaps any other state defense organization in the country. This is a direct reflection of the tireless efforts of Linda Jude and the great willingness of our membership to give of their time and talent to present at seminars and webinars throughout the year. Since our Annual meeting in St. Petersburg this summer, we have already held our annual litigation boot camp in October and hosted the first of our "Lunch and Learn" webinar series, an excellent presentation on electronic discovery by Michael Bittner of Marks Gray. Our Winter meeting will take place in Big Sky Montana in January and that will be followed by our second "Lunch and Learn" webinar by Benjamin Kashi on automobile liability in February. I am also very excited about a joint webinar that the FDLA is hosting with the Defense Research Institute on January 29, 2016 called "Debunking the Reptile Theory" which will address the use of the reptile theory by Plaintiffs in the discovery phase of tort cases. If you aren't already familiar with the reptile theory, or you have had it used against your clients, this is a MUST attend for you. Past President Frank Pierce regularly talked of giving the membership the absolute most "bang for their buck." The FDLA's commitment to putting on unique and regular educational opportunities, outside of our already great regular meetings, is my way of trying to carry on Frank's sentiment.  If you haven't attended an FDLA educational opportunity in some time, I urge you to sign up for one of these events soon. They are packed with useful and practical information that you can use right away in your practice. If you are too busy to attend, sign up one or more of your associates who can bring the information back to your firm and make sure that everyone in your group is staying on the cutting edge of the legal developments in your field.
               I also learned from the other State Defense Organizations that we are not alone or unique in facing the challenges of membership retention in light of budget constraints by law firms and the ever decreasing amount of time defense attorneys have to  dedicate to education and professional development. You should know that the FDLA has been busy trying to address these issues for some time and we are continuing to do everything we can to make the FDLA an efficient and affordable way to be plugged in to the defense community. We are so confident that Florida defense lawyers will see a great benefit to their membership that we have decided to implement a membership initiative for the first quarter of 2016.  As you may already know, the cost of a Young Lawyer membership to the FDLA is only $50.00. For the first quarter of 2016, any defense lawyer in the state, regardless of age or experience, who has not already been a member of the FDLA can join for the Young Lawyer's price of $50.00. This is a fantastic way for new members to be exposed to the organization for virtually no investment and a cost effective way (translation: CHEAP!) for firms that are already active to sign up associates in the firm who may not have joined at this point in the career and to allow those new members to start receiving all of the benefits of membership in the FDLA.
               Finally, I was impressed with the commitment of the Defense lawyers from around the country in providing outstanding service to their clients. In my last deFENSE POST column, I discussed the importance of the work we do for our clients. Attorneys who want to constantly learn, constantly improve and who take their oath of representing their clients zealously and competently are alive and well throughout the country. Keep up the good work, and keep fighting the good fight.
Andy Bolin
FDLA President 

Member Profile
 Aaron P. Davis

Practice Areas:
Personal Injury and Commercial Litigation/Outside General Counsel Services

Office: Miami, FL

Firm: Thornton Davis Fein

Direct Dial: 305-283-7887


The George Washington University Law School, LL.M., Intellectual Property, 2009
University of Florida, Levin College of Law, J.D., 2008
University of Florida, B.S. cum laude, Phi Beta Kappa, 2005
       Aaron's practice focuses on complex product liability, intellectual property, commercial litigation, construction litigation, bet-the-company litigation, premises liability, and outside general counsel services. He has successfully litigated numerous high-exposure product cases involving motor vehicles, pharmaceutical drugs, beauty care products, and aviation products.
       Aaron currently serves as General Counsel for Cortex USA, Inc. and Development Beauty, LLC. He is routinely consulted by small businesses, startups, private equity funds, hedge funds, and consumer product manufacturers seeking to apply his litigation practice expertise.
       Aaron is an active member of the legal industry, leading, speaking, and serving in several organizations. In 2015, he gave the presentation, Controlling Damages to Avoid Damage Control: Creative Strategies At All Phases of Litigation to Outplay Your Opponent at FDLA's Florida Liability Claims Conference, and he serves on the FDLA Board of Directors for 2015-2016. Aaron was also named an American Bar Association, Tort, Trial & Insurance Practice Section, TIPS NOW! Fellow this year and began a second term as vice-chair on the ABA TIPS Product Liability Committee.  In addition, he was selected to both the Florida Trend 2015 Legal Elite Up and Comers List and the 2015 Florida Super Lawyers Rising Stars list.
       Aaron was born and raised in Miami and lives with his wife Julie and daughter Caroline in Miami Beach, where he sits on the La Gorce Pine Tree Association Board of Directors. He has also served as a member of the City of Miami Beach Commission Committee and is a member of the Mount Sinai Medical Center Foundation, Young Presidents Club.  


Christopher G. Brown
Cooney Trybus Kwavnick Peets PLC
Ft Lauderdale, FL
Jessica C. Conner
Dean Ringers Morgan & Lawton PA
Orlando, FL
Yanelys N. Crespo
Fowler White Burnett PA
Ft Lauderdale, FL
Carie L. Hall
Rumberger Kirk & Caldwell PA
Tampa, FL
Matthew F. Hall
Hill Ward & Henderson PA
Tampa, FL
Lauren V. Humphries
Banker Lopez Gassler PA 
Tampa, FL
Nicole C. Jackson
Meier Bonner Muszynski O'Dell & Harvey PA
Longwood, FL
Michael B. Kelly III
Andrews Crabtree Knox and Andrews LLP
Tallahassee, FL
Joseph A. Kopacz
Luks Santaniello Petrillo & Jones
Tampa, FL
Elaine J. LaFlamme
Litchfield Cavo LLP
Ft Lauderdale, FL
Peter J. Lewis
Boyd Richards Parker Colonnelli
Ft Lauderdale, FL
John R. McDonough
Allen & Newman PLLC
Winter Park, FL
Melinda Merced
Quintairos Prieto Wood & Boyer PA
Orlando, FL
Paul R. Shalhoub
Luks Santaniello Petrillo & Jones
Boca Raton, FL
Hunter M. Sharpe
Law Office of Julie Lewis Hauf PL
West Palm Beach, FL
Scott A Shelton
Cole Scott & Kissane PA
Orlando, FL
Sharon R. Vosseller
Gaebe Mullen Antonelli  & DiMatteo
Coral Gables, FL 

Defense Verdicts  

Attorneys Rob Blank and Carie Hall of Rumberger Kirk & Caldwell's Tampa office obtained a defense verdict in a negligence case in Orange County, Florida in January of 2015. Blank and Hall represented the Sea World park located in Orlando, Florida in the case styled Hope Estrada v. Sea World of Florida LLC d/b/a Sea World. The plaintiff claimed she sustained brain damage, neck, back and shoulder issues as a result of allegedly slipping on a substance in the Manta Aquarium while on a field trip with her son's school. Sea World proved there was no substance on the floor and that the floor of the aquarium exceeded slip resistance standards. The jury found no negligence, returning a verdict in Sea World's favor.



Landsman v. McClellan, case # 2:13-cv-14375-DLG, In the United States District Court for the Southern District of Florida, Ft. Pierce Division.
On Friday, November 13, 2015, FDLA members Robert E. Bonner and David R. Lane of Meier, Bonner, Muszynski, O'Dell & Harvey, PA, obtained a defense verdict in the United States District Court for the Southern District of Florida in the case of Landsman v. McClellan, case # 2:13-cv-14375-DLG.
The plaintiff claimed that she had sustained a subdural hematoma, broken nose, traumatic brain injury, PTSD and TMJ disorder when she was arrested by Officer Fletcher McClellan of the City of Vero Beach Police Department. The plaintiff claimed that Officer McClellan used excessive force during the course of the arrest, resulting in her injuries and damages.
The defendant denied that he used excessive force and instead only used that amount of force that was objectively reasonable under the circumstances.
Prior to trial, the lowest settlement demand was $2 million. The plaintiff asked for $15.5 million in compensatory and punitive damages during closing argument.
Following a week-long trial, the jury returned a verdict in favor of the defendant, Fletcher McClellan, and against the plaintiff, Allison Landsman.



In July 2015, Kevin Davis and a colleague secured a defense verdict for Mintzer Sarowitz in Pinellas County, Florida. The facts of this premises liability case are as follows. The plaintiff, a mother in her 30s, claimed she was in the shower of her rented apartment when a portion of the bathroom ceiling collapsed on her. We represented the apartment owners and management company in this lawsuit. The plaintiff claimed our clients failed to maintain her apartment in a safe and reasonable manner. The trial began with voir dire which connected with every member of the prospective jury panel. An attorney's connection, personability, and likeability when conducting jury selection is often overlooked. However in this trial, the impassioned voir dire put us ahead from the get go.
Our main argument was that the plaintiff's ceiling had been recently repaired with no indication it would collapse. The plaintiff testified that the day before her bathroom ceiling collapsed, there had been water leaking from the shower of the unit above. The plaintiff alleged our clients failed to repair the leak in her ceiling, resulting in the subsequent collapse, and introduced photographs showing ceiling debris on the bathroom floor. However, the defendants' maintenance worker testified he repaired the water leak and drained the water from the ceiling over the plaintiff's bathroom. The plaintiff's narrative of the events that lead to the ceiling collapse were scrutinized and questioned by the members of the jury. The jury asked the plaintiff, and her expert witness engineer, multiple questions about the ceiling. One member of the jury even asked if it was possible the plaintiff pulled the ceiling down herself. Once we heard this question, we knew our chances at a defense verdict were increasing.
After completion of the Plaintiff's case-in-chief, the Defense moved for a directed verdict regarding the Plaintiff's wage claims. The Court agreed with Mr. Davis' argument that the Plaintiff did not put forth the proper evidence to submit her wage claims to the jury. The Court granted the Defendant's Motion for Directed Verdict, and the issue was removed from the verdict form.
Regarding the plaintiff's medical treatment in this case; she was transported to the emergency room after the incident and was diagnosed with cervical sprain and strain. Months later, she was diagnosed with a cervical disc herniation which, she claimed, was caused by the incident. She underwent a series of cervical injections and surgery was recommended for the future. To combat this, we argued the plaintiff had a history of prior cervical complaints, and her neck condition was not caused by the subject incident. In support of our theory we argued an MRI of the plaintiffs cervical spine from 2009 revealed her herniated disc pre-dated this incident. This MRI made the plaintiff change her theory of the case from causation to exacerbation of a previous injury, which was massive for the defense. Another big win for the defense came when our expert radiologist testified in front of the jury regarding the plaintiff's injuries. The radiologist used this opportunity as a teaching moment to break down the plaintiff's injuries, and explain the plaintiff's MRIs showed no change in her disc herniation from 2009 to 2013. The jury listened, and returned a verdict for the defense.

Terese M. Latham of McIntosh, Sawran & Cartaya and David R. Bear of Marshall Dennehey Warner, both from Orlando, FL, offices, won a defense verdict in Julie Hennig v. Holiday CVS, LLC. The case involved a claim of slip and fall on water (transitory substance) at the entrance of CVS Pharmacy store, in Winter Springs, Florida. Plaintiff claimed lumbar surgery was necessitated as a result of this fall. 
The case was tried to a jury in Sanford, Seminole County, Florida, just outside of Orlando. The jury found that CVS was not on notice of any dangerous condition and was not causative of the plaintiff's fall.
The defense presented expert testimony that the plaintiff had multiple falls just before the incident fall, and that the MRI's performed pre- and post-fall showed no difference.
Therefore, the surgery that was performed was not needed because of this fall, but instead from a pre-existing lumbar condition.



Shelli A. Healy of Roberts, Reynolds, Bedard & Tuzzio in West Palm Beach obtained a defense verdict on October 1, 2015 in Palm Beach County on behalf of the defendant driver involved in a 2012 motor vehicle accident that occurred on Seminole Pratt Whitney Road in unincorporated Palm Beach County.
Plaintiff alleged the defendant driver was negligent and claimed personal injuries including a carpal tunnel injury that resulted in surgery. Plaintiff was also permitted to assert a claim for punitive damages against the driver based on allegations that he was driving under the influence at the time of the accident. Evidence to support Plaintiff's punitive damages claim, which included a roadside DUI video and testimony by the police officer, was heard by the jury.  Plaintiff asked the jury to award over $250,000 in damages to include a claim for loss of future earning capacity since Plaintiff claimed she could no longer pursue her career goal of becoming a laboratory scientist. 
After a four-day trial the jury returned a verdict in favor of the defendant finding that the accident did not cause Plaintiff's claimed injuries and punitive damages were not warranted against the defendant driver. The defendant filed a proposal for settlement and is seeking entitlement to attorney's fees and costs.

Attorneys Francis M. McDonald Jr. and a colleague at McDonald Toole Wiggins, P.A., in Orlando, Florida, representing Electrolux Home Products, Inc., obtained a defense verdict in a "failure to warn" or "inadequate warnings" case involving a Kenmore Elite double oven unit after a multi-day trial in St. Petersburg, Florida. 
Plaintiff alleged that the installation instructions were insufficient in warning of the risks of putting one's hands near the oven door's hinges when attempting to remove the door.  Counsel for Electrolux argued the instructions were more than clear and sufficient, and plaintiff's injuries were caused by his failure to follow the instructions provided. 
Plaintiff was installing the Kenmore Elite double oven unit in his kitchen, and incorrectly believed he needed to remove the oven's doors to do so. He placed his hands at the junction of the oven door's hinges to the unit and pulled the door from the rest of the unit. Plaintiff sustained severe lacerations to both of his thumbs. Plaintiff called his treating physician, Dr. Brian Williams, a hand specialist, who testified that plaintiff's injuries were permanent in nature and there was little that could be done to alleviate his reduced range of motion and pain. Plaintiff asked the jury to return a verdict of $1 million dollars for past and future pain and suffering. Electrolux argued that none of its instructions required removing the oven door for installation; therefore, plaintiff's actions were unwarranted and by his own accord.  Further, Electrolux did provide instructions about how to remove the oven door, when necessary for cleaning or storing, which explicitly depicted where one is to place one's hands. Therefore an instruction as to where not to gasp the door was not necessary. 
The jury deliberated for two hours and returned a verdict for Electrolux, finding that it was not negligent with respect to the oven's instructions, and found plaintiff wholly liable for his injuries.  

Patrick Knight of Victor Rams & Associates received a defense verdict in a motor vehicle negligence case tried in Miami. Plaintiff claimed a left hip dislocation and a herniated disc in her neck were caused by the motor vehicle accident. The impact of the collision was significant and Plaintiff's past medical expenses were $96,881 after a hip replacement surgery. Defendant had rear-ended the plaintiff but claimed a phantom vehicle struck her first and pushed her forward. The jury checked off "no" to question one finding no negligence on the part of defendant which was a legal cause of loss, injury or damage to plaintiff. Defendant is now moving for fees and costs.
Patrick Knight of Victor Rams & Associates received a defense verdict in a motor vehicle negligence case tried in Broward County. This was a rear-end collision with admitted liability and a big impact with major damage to both vehicles. Plaintiff claimed herniated discs in his mid-back and low back, along with tears in the rotator cuff of the right shoulder. Plaintiff also had a $200,000 claim for lost earnings due to his inability to get the hours needed to become a helicopter pilot because he could no longer sit for long periods of time and had to drop out of the pilot program after getting his license. Final Judgment was for Defendant as a complete defense verdict after applying the set-off. The jury severely reduced the past medical expenses, awarded no future medical expenses and found no permanency nor lost earnings.



Caryn L. Bellus
Kubicki Draper
Phone: 305-982-6634 
The Amicus Committee is seeking FDLA members ready, willing
and able to author amicus briefs.

Benjamin A. Kashi, Esq.
Cooney Trybus Kwavnick Peets PLC
Phone: 954-568-5091

There are a series of proposed pieces of legislation that could have an impact on auto litigation.  Please email the Auto Chair, Benny Kashi, if you are interested in having a phone conference about this topic.  If you are interested, Benny will then email you a list of the proposed legislation prior to the phone conference.  The aim is to have the phone conference sometime around mid-December and prior to Christmas and if that does not work, sometime after the New Year.  So, let's get this Committee moving.  Please email Benny.
The Auto/Transportation Committee will present the second in FDLA's Lunch and Learn Webinar Series on February 11, 2015.  Please see the announcement in this newsletter for additional details and how to register.
J. Charles Ingram, Esq. 
Estes Ingram Foels & Gibbs PA
Phone: 407-481-9449

David A Corso, Esq.
Fisher Rushmer
Phone: 407-843-2111

We survived Advanced Litigation Boot Camp - again!
While zombies lurked in the sound system, 43 brave souls endured our Halloween version of FDLA's Advanced Litigation Boot Camp on 10/30/15. Centrally located in President-Elect Bob Bonner's office complex in Longwood (Orlando), the Advanced Litigation Boot Camp allows any defense litigator to obtain 10.5 CLE/Certification hours in one long, but incredibly efficient day. 43 advanced litigators are even more advanced than they were last month! On the strength of this Boot Camp alone, FDLA has already gained several new members and we welcome you to this jolly Band of Brothers (and Sisters)!
FDLA's Advanced Litigation Boot Camp will return in October 2016.
Be there or get left behind!

Global Engineering Scientific Solutions, LLC (GESS)
 NOTE: Read more about the 2015 FDLA 
Advanced Litigation Boot Camp (and see photos)
in the 2015 Boot Camp article in this issue.
If anyone has any suggestions regarding topics for future seminars or webinarsplease contact either of the CLE Committee
co-chairs: Chuck Ingram or David Corso.

Michael B. Bittner, Esq.
Marks Gray
Phone: 904-398-0900

The Construction Law Committee will present a webinar kicking off the FDLA Lunch & Learn Webinar Series on Tuesday, November 10, 2015. Please see the article in this issue of the newsletter for additional details.

Meagan L. Logan, Esq.
Marks Gray PA
Phone: 904-807-2145

Christienne H. Sherouse, Esq.
Gaebe Mullen Antonelli & DiMatteo
Phone: 305-667-0223

Alva Cross Crawford, Esq.
Cross HR Law
Phone: 813-727-4574

John A. Chiocca, Esq.
Chiocca & Chiocca PA
Phone: 561-253-0230

Heath L. Vickers, Esq.
Marks Gray
Phone: 904-807-2163

Committee member Tim Malin of Johnson Law Group,  submitted a case to our members, which addressed the negligent mode of operation theory as a basis for liability in slip in fall cases.
Tony Petrillo of Luks, Santaniello, Petrillo and Jones moderated a panel at Magna Legal Services 3d Annual Competitive Mock Trial Conference "Chopped for Chop". The issue was "How far can attorneys go when preparing witnesses" and explored the ethical ramifications of witness preparation. The event raised $10,000.00 for the Children's Hospital of Philadelphia. The event was held at the Borgata Hotel & Casino in Atlantic City, NJ.

Mark C. Greene, Esq.
Banker Lopez Gassler PA
Phone: 813-221-1500

Larry D. Smith
Southern Trial Counsel PLC
Phone: 407-422-6100

The Product Liaibility Committee submitted a case summary by
Lauren Humphries (Banker Lopez Gassler PA) on Aubin v Union Carbide Corp. for publication in this addition of the deFENSE POST. This is an important Florida Supreme Court decision. Please see the CASE NOTE section for the summary.

Carrie M. Roane, Esq.
Guilday Schwartz Simpson West Hatch & Lowe PA   
Phone: 850-224-7091

Renee F Knaust, Esq.
Beytin McLaughlin
Phone: 813-226-3000
Matthew J. Lavisky, Esq.
Butler Pappas Weihmuller Katz Craig LLP
Phone: 813-281-1900

The TAQ committee continues to publish articles of interest
to the membership.

Reinaldo Alvarez
Luks Santaniello Petrillo & Jones
Phone: 305-377-8900

John M. Miller, Esq.
Henderson Franklin Starnes & Holt PA
Phone: 239-344-1310

Brett M. Henson, Esq.
Dickinson & Gibbons PA
Phone: 941-336-4680

Miguel R. Roura, Esq.
Roig Lawyers
Phone: 813-514-1865

The Young Lawyers Committee will be hosting a service project during the 2016 FLCC to benefit Second Harvest Food Bank in Orlando. Please contact Brett Henson ( or join us for our upcoming quarterly conference call on January 27, 2016 if you are interested in getting involved.

If you are interested in joining-or becoming active in any of FDLA's committees, please contact either the Committee Chair or the FDLA office (

Join a Committee TODAY!!

Case Notes
Submitted by the Product Liability Committee

Lauren V. Humphries
Banker Lopez Gassler

FL Supreme Court Upholds $6.6 Million 
Asbestos Verdict Against Union Carbide

Aubin v. Union Carbide Corp., No. SC12-2075, 2015 WL 6513924 (Fla. Oct. 29, 2015)


In a key products liability decision, Aubin v. Union Carbide,1 the Florida Supreme Court rejected the Restatement (Third) of Torts "risk-utility" test and applied the Restatement (Second) of Torts "consumer-expectation" test to a strict liability design defect case. In doing so, the Supreme Court broadened the test used by Florida courts to determine whether a defendant's product is defective. The "consumer-expectation" test considers whether a product is unreasonably dangerous because it failed to perform safely as a reasonable consumer would expect when using it as intended or in a reasonably foreseeable manner. This is a lower burden than the "risk-utility" test, which focuses on whether the utility of a product outweighs the risk of using it and also requires the plaintiff to prove an alternative reasonable design existed.


William Aubin brought a products liability action against Union Carbide alleging strict liability design defect, strict liability failure to warn, and negligent failure to warn. The case was tried in Miami-Dade County and resulted in a $6,624,150 plaintiff's verdict. Union Carbide appealed to the Third District Court of Appeal, which reversed the decision in 2012. On review, the Florida Supreme Court reinstated the $6.6 million verdict by finding that the "consumer-expectation" test applied instead of the "risk-utility" test and that the Third District's decision was in conflict with prior Florida Supreme Court case law.


Between 1972 and 1975, William Aubin worked as a construction supervisor, where he oversaw the building of a residential development in Sarasota, Florida. In this work, Aubin was exposed to dust created by the sanding and sweeping of drywall joint compounds and the spraying of ceiling texture. Union Carbide produced and sold SC-210 Calidria asbestos which was used in joint compounds and texturing sprays. Union Carbide sold to companies that made the construction materials Aubin handled. In 2008, Aubin was diagnosed with peritoneal mesothelioma, a form of terminal stomach cancer. He filed suit against numerous defendants alleging that his disease was caused by asbestos exposure. Numerous asbestos defendants settled and the plaintiff proceeded to trial solely against the remaining defendant Union Carbide.


The Supreme Court overruled the Third District in a 5-2 decision holding that the consumer- expectation test, rather than the risk-utility test, applied to product design defect claims. The Court also held that there was sufficient evidence to create a jury issue regarding causation, that a learned intermediary defense is a question for the jury, and that failure to give jury instructions regarding the learned intermediary defense was harmless error.

First, the court addressed its application of the consumer-expectation test. The Court relied on its past decision, West v. Caterpillar Tractor Co.,2 to show that the consumer-expectation test is an essential part of determining design defect in strict product liability. The Court emphasized how the Restatement is not uniform law for all states and how strict liability is often policy-driven. The Court expressed concern over how the risk-utility test creates a higher bar for recovery. By introducing foreseeability of the risk to the manufacturer as part of the analysis for design defect and requiring proof of a reasonable alternative, the risk-utility test introduced principles of negligence into strict liability. The Court held that this went against the essence of strict liability.

The risk-utility test also required the plaintiff to "step into the shoes of the manufacturer" and show that an alternative reasonable product design was available. The Court held that this requirement imposes an undue burden on plaintiffs and might preclude otherwise valid claims from jury consideration. The Court relied on a recent Supreme Court of Kansas decision which stated that the alternative reasonable design requirement is not the rule in the majority of jurisdictions. It included citations to literature that harshly criticize the "risk-utility" approach.

In the comments of the Third Restatement, the reporters asserted that Florida is a risk-utility state for design defect cases. The reporters state their authority for this claim as FL Supreme Court case, Radiation Tech. v. Ware Construction Co.3 Aubin disputes this assertion by finding that Florida is not a risk-utility jurisdiction for design defect. The Court explained how the reporters erred in relying on Radiation Technology because Radiation Technology was a negligence case, not a strict products liability case. Therefore, the comments reporters erred in attributing risk-utility to Florida.

Second, the court evaluated whether Aubin presented sufficient evidence that the design defect of Union Carbide's product caused his harm. The Third District determined that Aubin did not establish causation under the Third Restatement because Aubin "failed to introduce any evidence suggesting SG-210 Calidria was more dangerous than raw chrysotile asbestos with respect to the contraction of cancer or peritoneal mesothelioma." The Supreme Court disagreed with this argument and stated that the Third District was conflating the Third Restatement's risk- utility test with the proper test for causation. The Court states, "Causation addresses only whether the defect caused the harm. The proper test of causation is not to compare the dangerousness of one product with another unreasonably dangerous product." Therefore, the Court found sufficient evidence on causation to bring the issue to a jury.

Third, the Court addressed whether the Third District erred in determining that Union Carbide was entitled to jury instructions on failure to warn end users. Union Carbide argued that the trial court failed to instruct the jury on their learned intermediary defense. This defense allows a manufacturer to rely on an intermediary to relay warnings to the end user if the intermediary is "learned," meaning that it had "knowledge of the danger," and was in a position to convey that knowledge to the end user. This defense is not a complete defense. The defense relies on the jury balancing different factors to the specific circumstances of the case. For this reason, the court found that the extent of the learned intermediary defense was a question for the jury and the instructions given did not constitute reversible error.

Ultimately, Aubin is a pivotal case in product liability because it established the dominance of the consumer-expectation test for design defect cases. Additionally, it clarified products causation and demonstrated the challenges in using the learned intermediary defense.

1Aubin v. Union Carbide Corp., No. SC12-2075, 2015 WL 6513924 (Fla. Oct. 29, 2015)
2West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976),
3Radiation Tech., Inc. v. Ware Const. Co., 445 So. 2d 329 (Fla. 1983)


Rumberger, Kirk & Caldwell attorney Robert Blank of the 
Tampa office was recently re-certified as a Board Certified Specialist 
in Civil Trial Law by The Florida Bar.


 Roig Lawyers announces that Angela C. Vladivieso has been elected
to the Children's Home Society of Florida's Board of 
Directors Intercoastal Division.
Roig Lawyers, a minority-owned, multi-practice litigation law firm dedicated to serving clients across six offices throughout Florida, is pleased to announce that Angela C. Vladivieso from the Deerfield Beach office, has been elected to the Children's Home Society of Florida's (CHSFL) Board of Directors Intercoastal Division. 

"I am excited to be a part of this wonderful organization that not only gives back to the community but also helps empower and motivate our youth to do the same. CHSFL provides support for kids, families and our community to build brighter futures," says Valdivieso.

Valdivieso is also a Council Member for the Children's Home Society of Florida's Kidz4Kidz program, which focuses on educating and empowering youth to become more active in their community. These children will have the ability to use their creativity and voice to advocate for underprivileged and underserved children. Kidz4Kidz Florida will also help raise funds to support education, care and life-changing experiences that kids in CHSFL that may have never experienced, seen or imagined before.

On the front lines since 1902, Children's Home Society of Florida is the oldest and largest statewide not-for-profit organization devoted to serving the most vulnerable children in the Florida community. Children's Home Society of Florida offers services that help break cycles of abuse in more families, heal the pain for traumatized children, guide teens to successfully transition into adulthood and create strong, loving families through adoption. The organization served 64,483 clients statewide last year, including 2,123 children and families in the Intercoastal Division, which is Broward County.


Ed Carbone to serve a two year term on the American Society for 
Healthcare Risk Management (ASHRM) Journal Editorial Review Board
Roig Lawyers, a minority-owned, multi-practice litigation law firm dedicated to serving clients across six offices throughout Florida, is pleased to announce that Ed Carbone, managing partner of the Tampa office, has been selected to serve a two year term on the American Society for Healthcare Risk Management (ASHRM) Journal Editorial Review Board.

The Journal Editorial Review Board's responsibilities are to develop a strategic plan for Journal content; solicit, peer-review, and edit articles for the quarterly Journal of Healthcare Risk Management.

Established in 1980, ASHRM is a personal membership group of the American Hopsital Association (AHA) with nearly 6,000 members representing risk management, patient safety, insurance, law, finance and other related professions.

ASHRM promotes effective and innovative risk management strategies and professional leadership through education, recognition, advocacy, publications, networking and interactions with leading healthcare organizations and government agencies. ASHRM initiatives focus on developing and implementing safe and effective patient care practices, the preservation of financial resources and the maintenance of safe working environments.

Carbone is the head of the firm's healthcare practice and primarily represents hospitals, physicians, hospices, and other healthcare providers. He defends providers against claims for medical malpractice, general negligence, billing and collections issues, and other claims, both at trial and on appeal. He has significant experience handling birth injury claims, including disputes over the applicability of Florida's Neurological Injury Compensation Association (NICA) no-fault compensation program for birth-related neurological injuries. Carbone is a graduate of Boston College (B.A., 1991) and Boston College Law School (J.D., 1994).


Roig Lawyers announces managing partner, Nelson C. Bellido, as 
moderator and speaker at the Duke University Leadership Conference
Roig Lawyers is pleased to announce that its managing partner of the Miami office, Nelson C. Bellido was a moderator and speaker at the Duke University Leadership Conference in Durham, NC on October 2, 2015. Nelson was selected as a speaker on the panel addressing diversity entitled, "Diverse is the Word."

Staff from the Duke Alumni Association and regional leaders presented information to assist volunteers new and old. Topics included building diverse regional groups, learning about the new alumni network and hearing from current Duke students about their experiences.

Nelson is heavily involved with Duke University. He formerly served as President of the Duke Alumni Association of Miami & Ft. Lauderdale from 1999 to 2011. He presently serves as National Chairperson of the Duke Hispanic/Latino Alumni Association, whose objectives are to promote and provide communication among and services for the Duke Hispanic community and its alumni, to assist in recruitment of Latino students, faculty and administration into the University and to support the University in its efforts to increase sensitivity toward the shared culture and interests of its Hispanic community and alumni. Nelson also serves as Chairperson of the Duke Alums Engage Community Service Program in South Florida which has partnered with organizations such as the Overtown Youth Center, Children's Home Society, Miami Children's Museum and Missionaries of Charity to serve less fortunate individuals in our community. In addition, Nelson is the 2015-2016 Chairperson of Duke Alumni Association Advisory Council which was created to help former board members continue in their work of helping to engage, connect, and celebrate Duke's alumni.

Roig Lawyers Announces Managing Partner of the Miami Office, Nelson C. Bellido, becomes panelist at JAMS

Roig Lawyers is pleased to announce that its managing partner of the Miami office, Nelson C Bellido was a panelist at the JAMS Miami CLE: Ethics in Mediations: What You Don't Know Can Hurt You held at the JAMS Miami Resolution Center on October 15, 2015. The American Bar Association (ABA) Section of Dispute Resolution designated the third week of October as the time to promote and celebrate peaceful conflict resolution practices worldwide. JAMS Miami produced a series of CLE programs tied to the ABA Mediation Week (October 12 - 16).

JAMS is the largest private alternative dispute resolution (ADR) provider in the world. With its prestigious panel of neutrals, JAMS specializes in mediating and arbitrating complex, multi-party, business/commercial cases - those in which the choice of neutral is crucial.

Nelson has practiced law for over 22 years and his main areas of practice are in complex commercial litigation, insurance defense litigation, insurance fraud special investigations, finance law, products liability and shareholder and partnership disputes. Nelson has substantial jury trial experience in both federal and state courts throughout Florida.

Nelson has dedicated his time to speaking on leading legal industry topics to multiple organizations throughout the United States. Nelson has spoken frequently for the U.S Commercial Service District Export Council's Export University on trade laws impacting exports. He has also been a speaker for the Daily Business Review 2014 Corporate Counsel Summit, "Contract & Consequence: Corporate Counsel's Compass to Business Contracts and Avoiding Litigation"; Business Network International Pinecrest Chapter, "Roig Lawyers: Your Florida Litigation Law Firm"; Hispanic National Bar Association (HNBA) Corporate Counsel 2015 Conference, "Closing the Deal"; moderator for the Hispanic National Bar Association (HNBA) Business and Professional Development Panel; Florida Insurance Fraud Education Committee (FIFEC) 23rd Annual Conference, "Mechanisms Available to Adjusters During Review for Regulatory and Compliance Issues; and moderator for the Duke University Alumni Association Volunteer leadership Conference Diversity Panel.

Nelson C. Bellido was speaker and presenter at Dade County Bar 
Association and Dade Legal Aid Over the Rainbow Judicial 
Reception & Awards Dinner

Nelson C. Bellido, managing partner of Roig Lawyer's Miami office, was a speaker and presenter at the Dade County Bar Association and Dade Legal Aid Over the Rainbow Judicial Reception & Awards Dinner held at The Coral Gables Country Club on October 23, 2015.

Over the Rainbow is Miami's largest judicial, in-house and government reception and awards celebration. Several members of the judiciary and bar were recognized for their commitment to the Dade County legal community. Nelson is actively involved with the Dade County Bar Association and was a member of the host committee for this year's event. 

Nelson C. Bellido, managing partner of Roig Lawyer's Miami office, was featured in Miami Today's 2015 Book of Leaders. Nelson along with other featured achievers were honored on November 4, 2015 at Gibraltar Private Bank & Trust in Coral Gables, FL.

"I am honored to be selected by Miami Today and to be in such great company of Miami leaders," said Nelson. "My motto is that there is no substitute for hard work and that commitment to family, work, and the community is the ultimate reward."

The Book of Leaders is Miami's Hall of Fame. Each year's book profiles 52 Newsmakers and Achievers just as the reports appeared in Miami Today. The question-and-answer profiles were originally published, one each week, throughout the year 2014 in Miami Today, the newspaper that serves South Florida's leadership. The information in this volume featured the stories of the women and men who are shaping the development of Greater Miami.


---Hold these dates---
Mark your calendar now
20th Annual
Florida Liability Claims
Conference 2016
-June 8-11, 2016-
Disney's Contemporary Resort
4600 North World Drive
Lake Buena Vista, Florida


FDLA Lunch and Learn 
Webinar Series


Electronic Discovery - Understanding the Framework 
of Florida Electronic Discovery Law and Practical 
Tips for Management

FDLA's Consturction Law Committee presented first in FDLA's LUNCH & LEARN WEBINAR series on Tuesday, November 10, 2015.

Michael B. Bittner (Marks Gray PA in Jacksonville) explained how E-discovery has become a necessary piece of virtually all litigation and discussed the current state of 
E-discovery law and tips for streamlined and cost-effective methods of management.
The webinar was approved by The Florida Bar for 1.50 CLER. Webinar attendees 
earned credits from their own offices over the lunch hour.
FDLA's Auto/Transportation Committee will present the second in the FDLA Lunch and Learn Webinar Series on Thursday, February 11, 2016. Topic is "Auto Law 
Update-A Medley of Issues".
The Lunch and Learn Webinar Series continues on Wednesday, May 11, 2016 and Tuesday, August 9, 2016. If any FDLA Committee or member is interested in
presenting a webinar on either of these dates, please contact the FDLA office 
and FDLA President, Andy Bolin.



2015 FDLA 
Advanced Litigation 
Boot Camp
Once again In the pre-dawn hours on Friday, October 30, 2015, attendees
and speakers gathered for the 2015 FDLA Advanced Litigation Boot Camp 
in Longwood, Florida.
Attendees earned 10.5 hours of CLE (including 3.0 ethics) and 10.5 Civil Trial Certification Credits from The Florida Bar while updating and honing their 
litigation skills. 
Topics and speakers for this year's Boot Camp:
Voire Dire & E-Investigation of Jurors 
Carrie M. Roane - Guilday Law - Tallahassee, Florida
Negligent Security 
Traci McKee - Henderson Franklin - Fort Myers, Florida
Eric Sauer PE - SEA Ltd - Fort Lauderdale, Florida
2015 Daubert Update
Robert E. Bonner - Meier Bonner - Longwood, Florida

Ethics for Lunch 
Staying Out of Trouble: Practical Attorney Guidance for Avoiding Civil 
       & Ethical Exposure 
Mark Sullivan - Klein Glasser - Miami, Florida
Alex A. Diaz - Klein Glasser - Miami, Florida

Panel Discussion on Ethics & Professionalism in Litigation
Mark Sullivan - Klein Glasser - Miami, Florida
Alex A Diaz - Klein Glasser - Miami, Florida
David A. Corso - Fisher Rushmer - Orlando, Florida
J. Charles Ingram - Estes Ingram - Orlando, Florida
Blockbuster Video Depositions and Video Conference Testimony
Kimberly E. Lorenz - Fisher Rushmer - Orlando, Florida
Preserving the Record
Jamie B. Moses - Fisher Rushmer - Orlando, Florida

Slaying the Reptile
Jill F. Bechtold - Marks Gray - Jacksonville , Florida
Robert E. Bonner - Meier Bonner - Longwood, Florida
2015 Case Law Update
Thomas E. Dukes III - McEwan Martinez & Dukes - Orlando, Florida
Philip Moring - McEwan Martinez & Dukes - Orlando, Florida
Jennifer White - McEwan Martinez Dukes - Orlando, Florida


In addition to the CLE credits, attendees not currently FDLA members could 
receive a "free" one-year FDLA membership for 2016 simply by completing and 
returning  the membership application.
Don't miss out! 
Stay tuned for details regarding FDLA's 
2016 Advanced Litigation Boot Camp.

Thanks to all those who participated in our 
2015 Advanced Litigation Boot Camp! 

A VERY SPECIAL "THANK YOU" to the sponsors of this seminar!



Thursday, February 11, 2016
11:30 am-12:45 pm EST 

FDLA is pleased to announce the second in a series of LUNCH & LEARN WEBINARS!
"Auto Law Update-A Medley of Issues" 

Case law update (recent cases) in common areas of auto litigation
practice. Too busy to keep up with the most recent decisions in your area of practice?  Here is your chance for a quick primer and you can log in from the convenience of your office. From ownership issues to recent PIP cases to coverage issues and more...
Course instructor:
Benjamin Kashi ,Esq.
Cooney Trybus Kwavnick Peets PLC
Ft. Lauderdale, FL
1.50 CLER and 1.5 Civil Trial Certification credits Approved 
by The Florida Bar
Registration Fee: $109.00
by clicking on the secure link below
Join us on February 11, 2016


Friday, January 29, 2016
2:00 - 3:30 pm EST

FDLA and DRI are pleased to present a joint webinar!
"Debunking and the Reptile Theory"
This program is designed to define "reptile" strategies, used by Plaintiff's attorneys which have resulted in billions of dollars of damage awards across the nation. The program will focus on use of the theory during the discovery phase of litigation and will provide strategies to defense lawyers to identify, diffuse and counter-attack the strategy, including ways to prepare defense witnesses so they do not fall prey to tactic
Attendees will gain a clearer understanding of how the reptile tactics really work and a blueprint of how to counter-attack, rather than defend against Plaintiffs who use reptile theory during the discovery phase of litigation.
Course instructors:
Bill Kanasky Jr., Ph.D
Vice President of Litigation Psychology
Courtroom Sciences, Inc
Michael O'Neill, Esq.
O'Neill McFadden & Willett LLP
Schererville, Indiana
Watch for registration information coming soon and 
plan to join us on January 29, 2016!

September 22-25, 2016
LaPlaya Beach 
& Golf Resort
Naples, FL

Be sure to mark your calendars and plan to attend the 2016 FDLA Annual Meeting at LaPlaya Beach & Golf Resort! Join FDLA as we celebrate our 50th Anniversary!

The unmatched calm waters of the Gulf are a focal point of LaPlaya Beach & Golf Resort. As the only true beachfront resort in Naples, attendees will learn, dine, relax, and sleep all while listening to the gentle sounds of the waves hitting the beach.

Like all FDLA events, the seminar topics will be outstanding!
Learn more about LaPlaya and to see all that this location has to offer,
The LaPlaya Beach & Golf Resort offers white sand beaches, elegant rooms, fitness center, rejuvenating spa and a private golf course.
Come stay with FDLA at one of the best Naples, Florida hotels!
Watch for room reservation and registration information-you will want to attend the 2016 FDLA Annual Meeting!



Honoring the Loss of a Great Man: 
In Memoriam, James A. Franklin, Jr.
June 4, 1924 - October 25, 2015

Henderson Franklin Starnes & Holt announced the passing of James A. Franklin, Jr. at the age 91 on Sunday, October 25th 2015 at his home in Fort Myers, Florida.

Jim, as he was known to many, was born in Jacksonville, Florida to James A Franklin Sr. and Eugene Waterbury Franklin in 1924. The family moved to Fort Myers when Jim was four months old after his father James Franklin Sr. started his law practice with R.A. Henderson. To this day, Henderson, Franklin, Starnes & Holt, P.A. is the longest standing firm name with the Florida Bar since the early 1940's.

When Jim was 10, his first job was delivering for the News Press on a 14-mile bike route. Because driver's licenses weren't required until the 1940's, he then went to work for Coca-Cola at the age of 13, driving a delivery truck. After playing football for and graduating from Fort Myers High School in 1942, Jim joined the Navy and served on a destroyer in the Pacific.

In 1946, Jim went to the University of Florida, where he also played football and studied law to follow in the footsteps of his father. After graduating law school on a Saturday morning in 1949, Jim immediately started work on that Monday morning at his father's firm. He would later tell stories that the one course he failed in law school was torts. Jim was a trial lawyer with his primary practice being the defense of wrongful death and personal injury lawsuits. After a 44 year career, Jim retired as a senior partner in 1993. Jim's philosophy throughout his life in any situation was to do the right thing and to "set the standard others try to follow." He remained an honorary partner at the firm and would visit and mentor attorneys with this philosophy up until he passed away every Tuesday afternoon.

Michael Corso, a member of the Henderson Franklin's Executive Committee and department chair of the litigation division in which Jim was involved in states "Jim was a giant in the litigation world as he was well known and respected statewide and beyond amongst all counsel, including opposing counsel, court clerks, court reporters, judges and all those involved in judicial proceedings.  The law firm of which he and his father has roots to its beginning hopefully will continue to make a real difference in the lives of many and it was quite a legacy for him to leave behind."

Bruce Stanley, a long-time colleague and trial lawyer shares:  "when I interviewed for a job with Henderson Franklin 30 years ago, a large part of the reason I accepted the offer was my meeting with Mr. Franklin. He seemed to be exactly the kind of lawyer I had always wanted to work with. I thought that if he was as fine a person and attorney as I hoped, it would be a great association. Since that time I have gotten to know Jim Franklin well, as employer, supervisor, mentor, partner, and loyal friend. He proved to be one of a handful of people in my life whom I was initially impressed with, and who turned out to be a much finer person than I possibly could have hoped. I miss him greatly."

When Jim retired, Henderson Franklin started a FGCU scholarship fund for the needy students that qualified and many continue to benefit from this scholarship. To date, over $34,000 and 44 scholarships have been awarded.

Jim's career highlights include being elected to the American College of Trial Lawyers in 1969, district governor of Rotary, and Lee County Bar Association's Lawyer of the Year in 1982. He was also a member of the Southwest Florida Historical Society and he helped many new members learn the history of Lee County.

Jim was a devoted husband and family man that always made time for those around him. Jim is survived by his devoted wife Vonceil Grace Brown, two daughters, five grandchildren and 13 great-grandchildren. Donations in Jim's memory can be made to Community Cooperative Ministries, Inc., P.O. Box 2143, Fort Myers, Florida 33902.

The Florida Bar will have one lawyer vacancy on each of the 26 Judicial Nominating Commissions (JNCs) this coming year-one lawyer vacancy for each of the 26 JNCs. The Florida Bar has the opportunity to nominate three lawyers for each Judicial Nominating Commission to the Governor for his appointment. Each appointee will serve a four-year term, commencing July 1, 2016. Applicants must be members of The Florida Bar engaged in the practice of law and residents of the territorial jurisdiction served by the commission to which the member is applying. Commissioners are not eligible for state judicial office for vacancies filled by the JNC on which they sit for two years following completion of their term. 

Applications must be submitted no later than 5 p.m., Friday, Feb. 26, 2016, in the Executive Director's office of The Florida Bar. Resumes will not be accepted in lieu of an application. Screening committees of the Board of Governors will review all JNC applications. The Executive Committee will then make recommendations to the Board of Governors.

Persons interested in applying for any of these vacancies may click here to complete and download the new application form from the Bar's website,, or for further assistance please contact Kristen Wilson at (850) 561-5757 or
Completed applications must be received by the Executive Director, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300 by the Feb. 26 deadline date.

for a
and for the
from FDLA!

Copyright 2015


deFENSE POST is published four times a year by the Florida Defense Lawyers Association.


While information in deFENSE POST is believed to be accurate, it is recommended that interested parties telephone or write to the submitting attorney named in each case report or article before incorporating the information into their work product.


Items of interest to the membership are welcome and may be sent to the Association office for inclusion in deFENSE POST.


Linda L. Jude, Executive Director

Florida Defense Lawyers Association

6105 M Memorial Highway

PO Box 260037

Tampa, Florida 33685

Phone:(813) 885-9888

Fax:(813) 885-5547