Motion in Limine - United States District Court

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Case 1:06-cv-22644-ASG Document 364 Entered on FLSD Docket 07/23/2008 Page 40 of 45 governmental and non-governmental international organizations. (Id.). Drafts of the standards adopted by the technical committees are then circulated to others for approval, and publication as an International Standard requires approval by at least 75% of the voting member bodies of ISO. (Id.). Thus, under the law of this Circuit, they are trustworthy and relevant for the jury to discern the standard of due care and to decide whether the Bobcat 320 was defectively designed. The jury will not be instructed that a violation of the standards is a per se breach; rather, the standards will be one of the factors that the jury may consider. For this reason, Defendant’s motion Regarding ISO 3471 and 17 12117 is denied. 6. Defendant’s Motion Regarding Post-Sale Failure to Warn Defendant seeks to exclude any evidence and argument to support a post-sale warning theory, giving rise to negligence or strict liability against Defendant. According to Defendant, there is no such duty in Florida; therefore, any such evidence or argument would be irrelevant, immaterial and highly prejudicial to Defendant. Defendant concedes that Florida recognizes the duty to provide a point of sale warning as discussed in the Restatement (Second) of Torts. See West v. Caterpillar Tractor, Co., 336 So.2d 80 (Fla. 1976) (adopting § 402A of the Restatement (Second) of Torts, which recognizes the duty to warn at point of sale). It argues, however, that there is no Florida law finding that a manufacturer has a post-sale duty to warn or adopting the Restatement (Third) of Torts which discusses such duty. 17 During oral argument, there was some discussion as to how the standards will be introduced. This order does not address that issue, which should be discussed during the final pretrial conference and during the trial period. 40
Case 1:06-cv-22644-ASG Document 364 Entered on FLSD Docket 07/23/2008 Page 41 of 45 Plaintiffs respond that the motion should be denied because: (1) Florida recognizes the duty; and, (2) because the motion is an untimely and improper motion for summary judgment in disguise, since Defendant is seeking to dispose of an entire substantive claim through a motion in limine which was filed months after the deadline for filing dispositive motions expired. During oral argument, I expressed my concern that some of the motions before me seem to be summary judgment motions in disguise, and I agree with Plaintiffs that this is one of them. Nonetheless, because I find that Florida law recognizes a post- sale duty to warn, I deny the motion on that ground. The Restatement (Third) of Torts has recognized a post-sale duty to warn, and Florida’s Third District Court of Appeals, in Sta-Rite Indus. v. Levey, 909 So.2d 901 (Fla. 3rd DCA 2004), embraced the Restatement (Third) of Torts and the duty. Id. at 905 (“There is little argument that a jury question was also presented as to the liability of Sta-Rite in failing reasonably to warn the purchaser and users of the pool about the extreme danger presented by a failure properly to maintain the grate, particularly in the light of similar severe accidents which occurred both before and after the sale of the pump in question.”) (citing Restatement (Third) of Torts: Products Liability § 10 (1998) (“One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller's failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller's position would provide such a warning.”)). Defendant argues that since the Florida Supreme Court has not approved the Florida Third District Court of Appeals’ adoption of the Restatement (Third) of Torts, I must conclude that there is no recognition of the post-sale duty to warn. However, Defendant overlooks the rule enunciated by the Eleventh Circuit that, “[i]n the 41
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Motion in Limine - United States District Court

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