LISA CAVANAUGH, as Personal Representative of the ESTATE OF WILLIAM…

       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

 LISA CAVANAUGH, as the Personal Representative of the ESTATE OF
              WILLIAM CAVANAUGH, deceased,
                           Appellant,

                                    v.

        STRYKER CORPORATION, a foreign corporation, et al.,
                        Appellees.

                              No. 4D19-523

                            [October 7, 2020]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; George A. Shahood, Senior Judge, and William L. Roby,
Judge; L.T. Case No. 562013CA001800 (ME).

   Paul M. Silva and Peter J. Somera, Jr. of Somera & Silva, LLP, Boca
Raton, Jack Scarola and Michael H. Kugler of Searcy Denney Scarola
Barnhart & Shipley, P.A., West Palm Beach, and Andrew A. Harris and
Adam Richardson of Burlington & Rockenbach, P.A., West Palm Beach, for
appellant.

  Hildy M. Saste, William P. Geraghty, Daniel B. Rogers and Jennifer M.
McLoone of Shook, Hardy & Bacon, L.L.P., Miami, for appellee.

PER CURIAM.

    The Plaintiff, Lisa Cavanaugh, as personal representative of the Estate
of William Cavanaugh, appeals a final judgment entered upon a defense
verdict in her wrongful death action against Stryker Corporation, a medical
device manufacturer (“the manufacturer”). We affirm on all issues raised,
addressing only a jury instruction dispute and a juror selection issue. On
all other issues we affirm without discussion.

                              Background

   A. Evidence at Trial

   In November 2012, Mr. Cavanaugh died while undergoing lung-removal
surgery at Lawnwood Regional Medical Center (“the hospital”). The
surgical team included a surgeon with the assistance of a registered nurse
(“the nurse”).

    The manufacturer’s medical device, called the Neptune 2, was used
throughout the procedure in order to remove blood and clear the surgical
field. The Neptune 2 is a high-flow suction device “intended to collect and
dispose of surgical fluid waste.” The device is not intended to be connected
or used during passive chest drainage.

   During Mr. Cavanaugh’s surgery, the Neptune 2 was connected to
suction tubing, which had what is called a Yankauer suction tip attached
to it. When the operation was almost finished, the surgeon inserted a
chest tube into Mr. Cavanaugh’s chest. The chest tube should have been
connected to an Atrium or Pleur-evac, which are devices for passive chest
drainage. Instead, the nurse either touched or connected the Yankauer
suction tip (and therefore the Neptune 2) to the chest tube, causing Mr.
Cavanaugh’s heart to be “sucked . . . over to the other side” of his chest.
Mr. Cavanaugh unfortunately died from the immediate and severe blood
loss.

   Both the surgeon and the nurse testified that they thought standard
wall suction was being used for the chest drainage. They both added that
they were not aware that the Neptune 2 device was being used. The
Plaintiff brought this wrongful death action against various defendants,
including the manufacturer. The Plaintiff’s original complaint asserted
medical malpractice claims against the hospital and the nurse, but those
claims were settled. The claims in the complaint against the manufacturer
were for strict liability based on design defects (Count I), strict liability
based on failure to warn (Count II), and negligence (Count III).

    The manufacturer answered and asserted various defenses, including
(1) the learned-intermediary defense, (2) the intervening or superseding
cause defense, and (3) a Fabre 1 defense.

   At trial, the following evidence was presented about the Neptune 2
device. The Neptune 2 came on the market in 2007. The Neptune 2 had
higher suction capabilities than its predecessor, the Neptune 1.
Nevertheless, the manufacturer asserted that the Neptune 2 was covered
by the clearance that it had obtained from the U.S. Food and Drug
Administration (“FDA”) to market the Neptune 1 device.



1   Fabre v. Marin, 

623 So. 2d 1182

(Fla. 1993).

                                         2
   In June 2012, the manufacturer sent an urgent medical device
notification to its customers regarding the instructions for use on the
Neptune 2. The Notification stated that “Stryker received one report of a
[2010] fatality from a customer in which the Neptune [2] was connected to
a passive chest drainage tube post-operatively,” that the current
instructions for use did “not specifically warn against connecting the
Neptune [2], which is a high vacuum/high flow device, to a passive
drainage tube,” and that the instructions for use were being updated with
a new warning.

   In August 2012, the FDA notified the manufacturer that the Neptune 2
needed its own FDA clearance, as the FDA considered the Neptune 2 to be
a potentially adulterated device. The FDA advised the manufacturer that
the Neptune 2 “may not be used at this particular time,” but created an
exception whereby the device would be allowed to stay in medical use
under a certificate of medical necessity.

   The next month, Stryker issued a recall notice advising customers that
they should no longer use the Neptune 2 unless they had no alternative
device to use. The notice stated that, “if you do not have an alternative
device to use, you should weigh the risk and benefits of using these devices
and if you choose to continue using the either the Neptune Silver or the
Neptune 2, you must complete the attached Certificate of Medical
Necessity . . . .” An executive of the hospital’s parent company signed a
Certificate of Medical Necessity. This certificate was in effect at the time
of Mr. Cavanaugh’s surgery.

   The warning label affixed to the Neptune 2 at the time of Mr.
Cavanaugh’s surgery stated: “DO NOT apply high flow suction in
applications that may result in severe injury or death; for example, passive
chest drainage,” while still characterizing the device’s suction capabilities
as “LOW,” “MEDIUM,” and “HIGH.”

   The instructions for use provided a similar warning not to apply high
flow suction during procedures such as passive chest drainage, adding
that failure to comply may result in serious injury or death. Although the
nurse testified that he never read the warnings or instructions for use
concerning the Neptune 2, he generally knew that it was not appropriate
to apply high suction to a closed drainage system.

   The surgeon testified he did not know that the Neptune 2 was only a
high-suction device. The surgeon explained that a device without low
suction would be inappropriate to use during a lung-removal surgery. Had
the surgeon known that the Neptune 2 device was not FDA-approved, or

                                     3
that a previous patient had been severely injured by the device, he would
not have allowed the Neptune 2 to be used during the surgery.

   The Plaintiff presented expert testimony from a materials scientist, who
opined that the Neptune 2 was defectively designed, unreasonably
dangerous, and lacked proper warnings. The materials scientist testified
that the user interface was confusing, which could result in the user
applying “unsafe vacuum or inappropriate vacuum in the wrong
application.” The materials scientist also testified that the warning was
confusing and failed to inform the user that, even at its lowest setting, the
device should not be connected to a chest tube or closed-wound drain.

   The Plaintiff also presented the testimony of a medical device engineer
and a former medical officer in the FDA’s Office of Compliance. Taken
together, their testimony was that (1) the manufacturer should have
sought clearance from the FDA before releasing the Neptune 2; (2) the
manufacturer did not undertake a proper risk analysis when it determined
that it was not required to obtain separate FDA clearance for it; and (3) the
FDA communicated to the manufacturer that the Neptune 2 was an
adulterated device which was marketed without FDA clearance.

    The manufacturer’s principal defense was that Mr. Cavanaugh’s death
was attributable to misuse of the Neptune 2 by medical staff, not design
defect or insufficient warnings. It argued that the Neptune 2 is not
intended to be used for passive chest tube drainage, as it is widely known
in the medical profession that high suction should not be connected to
chest tubes. The manufacturer also maintained that there were sufficient
warnings to this effect accompanying the Neptune 2 at the time of Mr.
Cavanaugh’s surgery, and that three weeks before the surgery a
representative of the manufacturer had provided in-service training for the
hospital’s operating room staff, wherein they were advised that the
Neptune 2 should not be used for passive chest drainage because it could
cause death. Nonetheless, the manufacturer asserts in its answer brief
that the nurse “mistakenly connected the chest tube to the Yankauer
suction tip [which had been connected to the Neptune 2],” which resulted
in the death of Mr. Cavanaugh.

   B. Replacement of Juror

   When the trial lasted longer than expected, the parties learned that
scheduled jury deliberations might interfere with a juror’s prepaid
weekend vacation from Friday, June 1 to Sunday, June 3.



                                     4
    On Wednesday, May 30, the Plaintiff finished her rebuttal case. The
next day, the trial court and defense counsel questioned the juror, who
answered that staying to complete the deliberations “would be a little bit
of a hardship,” but that he “could do half a day” on Friday “if that would
finish things up.”

   The Plaintiff moved to excuse the juror and “to seat the first alternate
juror in [the juror’s] place.” The manufacturer objected, arguing that
“there’s no reason why if he needed to leave [on Friday] we couldn’t bring
the jury back on Monday to finish deliberations if that was necessary.”

   The trial court stated that it would “excuse [the juror] on its own for
cause.” The trial court inquired about who would replace the juror, and
Plaintiff counsel responded: “Yes, we seat . . . the first alternate juror.”

   However, the trial court, sua sponte, made the following offer to the
parties: “You know, I would allow an additional challenge if either one of
you want one. I think that would be fair.”

   Defense counsel then exercised a peremptory strike on the first
alternate juror. Plaintiff counsel immediately objected:

      PLAINTIFF COUNSEL: Your Honor, I know of no basis --

      THE COURT: There is no basis.

      PLAINTIFF COUNSEL: -- upon which to allow an additional
      challenge at this point.

      THE COURT: Well, these are unusual circumstances. I may
      be wrong, but I’m going to do it anyway.

      PLAINTIFF COUNSEL: Okay. Well, respectfully, sir, I don’t
      think they’re unusual at all. We lose jurors all the time. And
      the procedure when we lose a juror is we seat the next first
      alternate juror. And we don’t give the defense the option of
      deciding which of the two alternate jurors they want, which is
      what effectively the court has done. So we do object. I don’t
      think that it’s proper.

The trial court “noted” the objection but seated the second alternate juror.

   C. Disputed Jury Instruction


                                     5
   Before the charge conference, the Plaintiff submitted a proposed design
defect jury instruction that contained both the risk utility test and the
consumer expectations test, respectively:

      A product is defective because of a design defect if it is in a
      condition unreasonably dangerous to the user or a person in
      the vicinity of the product and the product is expected to and
      does reach the user without substantial change affecting that
      condition.

      A product is unreasonably dangerous because of its design if
      the product fails to perform as safely as an ordinary consumer
      would expect when used as intended or when used in a
      manner reasonably foreseeable by the manufacturer or the
      risk of danger in the design outweighs the benefit.

   The Plaintiff’s proposed jury instruction was taken directly from the
standard instruction in effect at the time. See Fla. Std. Jury Instr. (Civil)
403.7(b) (2015). 2

   By contrast, the manufacturer’s proposed jury instruction on design
defect contained only the risk utility test (the first paragraph of Standard
Jury Instruction 403.7(b)) and a portion of the consumer expectations test
(“A product is unreasonably dangerous if the risk of danger in the design
outweighs the benefit.”).

    At the charge conference, the Plaintiff’s counsel advised the trial court
that the parties had a disagreement on the design defect instruction. The
trial court ruled that it would give the manufacturer’s instruction instead
of the Plaintiff’s instruction. The Plaintiff did not object when the trial
court accepted the manufacturer’s defense instruction on 403.7(b). 3 This
ruling is challenged by the Plaintiff on appeal.

    D. The Jury Verdict

2 Standard Jury Instruction 403.7 was amended by the Florida Supreme Court
in February 2020. In re Standard Jury Instructions in Civil Cases—Report No. 19-
03, 

290 So. 3d 840

, 842 (Fla. 2020).
3 We conclude that this issue is preserved because the Plaintiff submitted a

proposed jury instruction containing the consumer expectations test, and the
trial court rejected it by adopting the manufacturer’s proposed instruction
instead. See Middelveen v. Sibson Realty, Inc., 

417 So. 2d 275

, 277 (Fla. 5th DCA
1982) (“[I]f a party submits a written request for a jury instruction, and it is
rejected by the trial court, the issue is preserved for appellate review without
more.”).

                                       6
   After a four-week trial, the reconstituted jury returned a defense
verdict. The jury rejected the Plaintiff’s claims for defective design,
defective warnings, negligent design, and negligent warnings. The trial
judge entered a final judgment in the manufacturer’s favor, and a
successor judge denied the Plaintiff’s motion for new trial. This appeal
ensued.

                                  Analysis

   A. The Trial Court Did Not Err in Refusing to Instruct the Jury on
      the Consumer Expectations Test

   On appeal, the Plaintiff argues that the trial court was required to
instruct the jury on the consumer expectations test under the Florida
Supreme Court’s decision in Aubin v. Union Carbide Corp., 

177 So. 3d 489

(Fla. 2015). The Plaintiff contends that the instruction was an accurate
statement of the law, was supported by the evidence, and was necessary
to allow the jury to properly resolve all the issues in the case.

   In Aubin, the Florida Supreme Court declared that “in approaching
design defect claims, we adhere to the consumer expectations test, as set
forth in the Second Restatement [of Torts], and reject the categorical
adoption of the Third Restatement and its reasonable alternative design
requirement.”

Id. at 510.

Thus, the supreme court held that “the Third
District erred in determining that the Third Restatement’s test for a
defective design exclusively applied to a claim of strict products liability,
which generally requires plaintiffs to establish a reasonable alternative of
how a product could be designed.”

Id. at 519–20.

    The supreme court explained that “[t]he critical difference regarding
design defects between the Second Restatement and the Third
Restatement is that the Third Restatement not only replaces the consumer
expectations test with the risk utility test, but also requires the plaintiff to
demonstrate the existence of a reasonable alternative design.”

Id. at 505

(citation and internal quotation marks omitted).

   “Under the consumer expectations test, a product is considered to be
defective ‘where the product is, at the time it leaves the seller’s hands, in
a condition not contemplated by the ultimate consumer, which will be
unreasonably dangerous to [the consumer].’”

Id. at 513

(quoting
Restatement (Second) of Torts § 402A cmt. g. (1965)). The consumer
expectations test “considers whether a product is unreasonably dangerous
in design because it failed to perform as safely as an ordinary consumer
would expect when used as intended or in a reasonably foreseeable

                                       7
manner.”

Id. at 503.

      “This test intrinsically recognizes that a
manufacturer plays a central role in establishing the consumers’
expectations for a particular product, which in turn motivates consumers
to purchase the product.”

Id. While the supreme

court concluded that “the Third Restatement’s risk
utility test and establishment of a reasonable alternative design mandate
are not requirements for finding strict liability,” the court explained that
nothing precludes the parties from presenting evidence concerning
whether “a reasonable alternative design existed” and “whether the benefit
of the product’s design outweighed any risks of injury or death caused by
the design.”

Id. at 511–12.

   We conclude Aubin is distinguishable from the instant case. Aubin
involved asbestos, which is not a complex product. Notably, Aubin did not
express disagreement with or disapproval of cases recognizing that some
products may be too complex for a logical application of the consumer
expectations test. See, e.g., Force v. Ford Motor Co., 

879 So. 2d 103

, 109–
10 (Fla. 5th DCA 2004) (concluding that while “there may indeed be
products that are too complex for a logical application of the consumer-
expectation standard[,]” the consumer expectation standard nonetheless
applied to seat belts, which were “on the cusp” of being “too complex for
an ordinary consumer to have any expectations concerning their proper
operation”); Tillman v. C.R. Bard, Inc., 

96 F. Supp. 3d 1307

, 1339 (M.D.
Fla. 2015) (“Because this case pertains to a complex medical device,
accessible to the consumer only through a physician, the Court finds that
the consumer-expectation test is not applicable here.”); Rydzewski v.
DePuy Orthopaedics, Inc., 11-80007-CIV, 

2012 WL 7997961

, at *3 (S.D.
Fla. Aug. 14, 2012) (concluding that consumer expectation theory did not
apply to a hip implant device, which was “closer to prescription drugs than
to seatbelts and other products routinely operated by consumers”); In re
Fosamax Products Liab. Litig., 

742 F. Supp. 2d 460

, 470 n.4 (S.D.N.Y.
2010) (applying Florida law and concluding that “prescription
pharmaceuticals are too complex for the straight-forward application of
the consumer expectation test”).

   We read Aubin as establishing that a plaintiff may elect to prove a
design defect claim under the consumer expectations test in any case
where an ordinary consumer could form expectations about the product
at issue. But Aubin did not decide whether the consumer expectations
test can logically be applied to a complex medical device accessible to the
consumer only through a medical professional. That is the issue we must
decide in this case.


                                     8
   Turning to the case before us, we hold that the consumer expectations
test cannot be logically applied here, where the product in question is a
complex medical device available to an ordinary consumer only as an
incident to a medical procedure. 4 After all, medical device manufacturers
generally do not market their products to “ordinary consumers.” Indeed,
in this case, the Neptune 2 was never marketed to ordinary consumers.
Ordinary consumers would not be purchasing the Neptune 2 and would
not have formed expectations regarding the product. The rationale for the
consumer expectations test—that a manufacturer plays a central role in
establishing the consumers’ expectations for a particular product, which
in turn motivates consumers to purchase the product—simply does not
apply to the Neptune 2 device.

    Even assuming that some version of the consumer expectations test
should apply to complex medical products which are provided to a
consumer through a learned intermediary, the standard instruction would
need to be modified in order to inform the jury that the relevant
expectations are those of the health care professional. See Porter v.
Rosenberg, 

650 So. 2d 79

, 82 (Fla. 4th DCA 1995) (“In many cases the
health care provider is in fact more akin to the consumer or user of the
product, especially where the product is not transferred to the patient but
utilized incidental to the provision of medical services.”); see also Moss v.
Wyeth Inc., 

872 F. Supp. 2d 162

, 170–71 (D. Conn. 2012) (“Under the
learned intermediary doctrine, however, the relevant expectations are
those of the physician, not the ultimate consumer.”). The Plaintiff’s
proposed instruction as written would have been misleading to the jury
because it failed to inform the jury that the relevant expectations are those
of the medical professional, not the ordinary consumer.

   Accordingly, we conclude that the Plaintiff’s proposed 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.


4 We do not hold that complexity alone is necessarily enough to preclude the
application of the consumer expectations test. Indeed, “[m]any familiar consumer
products involve complex technology.” Cunningham v. Mitsubishi Motors Corp.,
C-3-88-582, 

1993 WL 1367436

, at *4 (S.D. Ohio June 16, 1993). The
applicability of the consumer expectations test “does not depend necessarily on
a product’s complexity in technology or use[,]” but rather depends on whether
“prolonged use, knowledge, or familiarity of the product’s performance by
consumers is sufficient to allow consumers to form reasonable expectations of
the product’s safety.” Jackson v. Gen. Motors Corp., 

60 S.W.3d 800

, 806 (Tenn.
2001).

                                       9
   B. The Trial Court’s Error in Granting the Manufacturer an
      Additional Peremptory Strike was Harmless

   As discussed above, near the completion of the trial, it was determined
that one of the jurors had a conflict that necessitated that he miss a
weekend of jury deliberations. Rather than take a weekend recess to
accommodate this juror, the trial court granted the Plaintiff’s motion to
excuse the juror and replace him with one of the two alternate jurors.
Instead of seating the first alternate, the trial court gave each party an
opportunity to exercise a peremptory strike of that individual from the
jury, necessitating the seating of the only other alternate juror when the
manufacturer exercised this special peremptory.

    On appeal, the Plaintiff argues that the trial court’s providing (and
granting) the peremptory strike of the first alternate was improper for two
reasons: (1) parties cannot exercise peremptory challenges after the jury
is sworn, and (2) the procedure violated Florida Rule of Civil Procedure
1.431(g), which mandates that alternate jurors must replace jurors in the
order in which they are called. We agree with the Plaintiff that the trial
court’s offer of the extra juror challenge was improper, but we conclude
that any error was harmless. See Special v. W. Boca Med. Ctr., 

160 So. 3d 1251

, 1255 (Fla. 2014) (noting that the harmless error rule with respect to
civil cases is rooted in section 59.041, Florida Statutes (2003), which
focuses on whether “the error complained of has resulted in a miscarriage
of justice”).

   We acknowledge that a trial court has broad discretion in jury selection
matters. Rock v. State, 

638 So. 2d 933

, 934 (Fla. 1994). This includes the
discretion to grant additional peremptory challenges. Hooper v. State, 

476 So. 2d 1253

, 1256 (Fla. 1985). However, Florida Rule of Civil Procedure
1.431(f) states that “[n]o one shall be sworn as a juror until the jury has
been accepted by the parties or until all challenges have been exhausted.”
Fla. R. Civ. P. 1.431(f) (emphasis added). Thus, “a juror may be
peremptorily challenged only until he is sworn.” Tedder v. Video Elecs.,
Inc., 

491 So. 2d 533

, 534 (Fla. 1986).

   Under rule 1.431(f)’s plain language, the jury may not be sworn until
the jury has been accepted by the parties or until all challenges have been
exhausted. It therefore follows that all peremptory challenges must
necessarily occur before the jury is sworn, including peremptory
challenges “in the selection of the alternate juror or jurors.” Fla. R. Civ. P.
1.431(g)(2). Contrary to the manufacturer’s argument that the rule “was
not enacted to address the rare situation here,” rule 1.431(f) prevents a
party from exercising a peremptory challenge after the jury has been

                                      10
sworn. By requiring the parties to either accept the jury or exhaust all
challenges prior to the jury being sworn, the rule implicitly prohibits
peremptory challenges from being made after that.

   This was not a “rare” or “extraordinary” circumstance. Florida Rule of
Civil Procedure 1.431(g)(1) addresses this exact circumstance, and states:
“Alternate jurors in the order in which they are called must replace jurors
who have become unable or disqualified to perform their duties before the
jury retires to consider its verdict.” Fla. R. Civ. P. 1.431(g)(1) (emphasis
added). Thus, when the trial court excused the seated juror, it was
required to replace him with the first alternate juror. 5

   Accordingly, the trial court erroneously granted the manufacturer an
additional peremptory challenge long after the jury had been sworn,
thereby allowing the manufacturer to strike the first alternate juror and
replace the seated juror with the second alternate juror in violation of rule
1.431(g)(1).

    We now turn to the question of whether the error was harmless.

    “Seldom, if ever, will excusal of a juror constitute reversible error. . . .”
Piccott v. State, 

116 So. 2d 626

, 627 (Fla. 1959). This is because “the
parties are not entitled to have any particular jurors serve.”

Id. Instead, “[t]hey are

entitled only to have qualified jurors.” Id.; see also West v. State,

584 So. 2d 1044

, 1045 (Fla. 1st DCA 1991) (“It is [] without dispute that a
defendant’s right to an impartial jury . . . does not entitle that defendant
to be tried by any particular jurors or by a jury of a particular
composition.”).

   There are numerous cases in which it was found that any error in
removing a juror is harmless where the juror was replaced by a duly
selected alternate who had been present during the entire proceedings and
where no prejudice was shown to have resulted from the substitution. See,
e.g., Ortiz v. State, 

835 So. 2d 1250

, 1251 (Fla. 4th DCA 2003); Graham v.

5 Malota v. State, 

336 So. 2d 1267

(Fla. 4th DCA 1976), cited by the manufacturer,
is distinguishable. In Malota, this court held that the defendant had not shown
prejudice where, after the jury was sworn but before opening statements, the trial
court excused a juror who could not participate due to a sudden death in the
family, reopened jury selection, and awarded each side more peremptory strikes.

Id. at 1268.

However, the procedure in Malota is specifically authorized by
Florida Rule of Criminal Procedure 3.310, which permits a juror to be removed
for good cause after the juror is sworn but before any evidence is presented. Fla.
R. Crim. P. 3.310 (emphasis added). In the instant case, the juror was excused
at the conclusion of the trial, after all of the evidence had been presented.

                                       11
State, 

470 So. 2d 97

, 98 (Fla. 1st DCA 1985); Orosz v. State, 

389 So. 2d 1199

, 1200 (Fla. 1st DCA 1980); see also Porter v. State, 

388 So. 2d 18

,
18–19 (Fla. 4th DCA 1980) (holding that the trial court’s removal of a juror
who had recognized a witness, even though the juror stated that she could
fairly judge his testimony, was not prejudicial error where “an alternate
juror was present to whom appellant had not objected”).

   This is not a case in which the first alternate was removed in favor of
the second alternate due to “tactical gamesmanship” on the part of the
manufacturer. Cf. McNeil v. State, 

158 So. 3d 626

, 628 (Fla. 5th DCA
2014). It was the Plaintiff that initiated the removal of one of the jurors
rather than take a weekend recess, and it was the trial court that sua
sponte provided both of the parties with a peremptory challenge to the first
alternate juror.

    Nor, as argued by the dissent, was there any “miscarriage of justice.”
Although it was error for the trial court to provide the parties with a
peremptory challenge after both a jury and two alternates had been sworn
and evidence had been presented, the error was not harmful error
requiring a new trial, as there was no “tactical gamesmanship” on the part
of the manufacturer and the first alternate was replaced by the second
alternate, who had also been duly-selected prior to trial. Like the first
alternate, the second alternate/replacement juror had been present for the
duration of the trial. “[T]he parties are not entitled to have any particular
jurors serve. . . . They are entitled only to have qualified jurors.” Piccott
v. State, 

116 So. 2d 626

, 627 (Fla. 1959).

                                Conclusion

   Mr. Cavanaugh’s death was tragic. On that, there is no disagreement.
A duly selected jury (including one alternate) determined that the Neptune
2 may have been misused, but that any liability for Mr. Cavanaugh’s death
was not attributable to design defect on the part of the Neptune 2’s
manufacturer. We find no reversible error with respect to the trial court’s
decision to not instruct the jury on the consumer expectations test, nor on
any other issue raised by the Plaintiff on appeal. That includes the juror
replacement issue, wherein we find error that is harmless and does not
require a new trial.

   Affirmed.

DAMOORGIAN and FORST, JJ., concur.

ARTAU, J., concurs in part and dissents in part with an opinion.

                                     12
ARTAU, J., concurring in part and dissenting in part.

   I agree that the complexity of the Neptune 2, coupled with the ordinary
consumer’s lack of access and familiarity with the product, precludes
application of the consumer expectation test.

   Notably, Aubin v. Union Carbide Corp., 

177 So. 3d 489

(Fla. 2015), did
not categorically disapprove of the risk-benefit test. In fact, the Florida
Supreme Court did not direct any modifications to the standard jury
instructions, which “use both the consumer expectations test and risk
utility test as alternative definitions of design defect.”

Id. at 512.

Moreover, our supreme court recently amended Florida Standard Jury
Instruction (Civil) 403.7(b) “to delete ‘[and]’ between the consumer
expectations and risk/benefit tests to reflect that a plaintiff may choose to
prove a product’s defectiveness through the risk/benefit test but is not
required to do so pursuant to our decision in Aubin v. Union Carbide Corp.,

177 So. 3d 489

(Fla. 2015).” In re Standard Jury Instructions in Civil
Cases—Report No. 19-03, 

290 So. 3d 840

, 840 (Fla. 2020). Thus, Aubin
did not hold that the consumer expectations test is the exclusive test for
design defect claims.

   Unlike the majority, however, I do not find it harmless to grant the
manufacturer a peremptory strike just before closing arguments. In
McNeil v. State, 

158 So. 3d 626

(Fla. 5th DCA 2014), our sister court
correctly concluded that it was harmful error to allow a party to use a
peremptory strike over the opposing party’s objection after the trial had
begun.

Id. at 628.

The Fifth District recognized: “Allowing the exercise of
peremptory challenges to continue into the trial would encourage tactical
gamesmanship, a result that we are unwilling to condone and one for
which we feel compelled to provide a remedy.”

Id. at 628–29.

Because a
juror’s questions may reveal a juror’s impression of the evidence that has
already been presented, the concern over “tactical gamesmanship” is even
greater when jurors have been permitted to ask questions. See Fla. R. Civ.
P. 1.452 (establishing procedure for questions by jurors in civil cases).

    The trial court here allowed the manufacturer to exercise a peremptory
strike after the manufacturer had the distinct advantage of hearing juror
questions and viewing their reactions to the answers to those questions.
By allowing the manufacturer to exercise this peremptory strike at the
conclusion of the trial on the juror who had been lawfully selected before
trial to serve as the first alternate juror to be seated, the trial court
committed harmful error. See Washington v. State, 

955 So. 2d 1165

, 1173
(Fla. 1st DCA 2007) (holding that the excusal of a juror for asking “too

                                     13
many questions” was not harmless, because “the reconfiguration of the
jury panel is the very error that must be corrected”).

    Although the trial court believed its offer of an additional strike would
be fair, the fairness of the court’s offer was illusory. By eagerly accepting
the erroneous offer, the manufacturer was able to gain a distinct tactical
advantage. The manufacturer was able to use an additional peremptory
strike with the benefit of knowing what evidence had been presented to
the jury, and how the jurors had reacted to that evidence. By doing so,
the manufacturer unilaterally took advantage of the trial court’s error to
tactically reconfigure the jury in a manner that it felt would boost its
probability of a favorable verdict, leaving the Plaintiff unable to exercise an
equivalent peremptory challenge, or otherwise have any say in configuring
the new jury. Perhaps it is aspirational to have expected the manufacturer
to “look the gift horse in the mouth,” 6 and reject the court’s gratuitous
offer. But the circumstances here are much more egregious than in McNeil
where a peremptory strike was erroneously granted mid-trial to arguably
address legitimate concerns that the juror there would not be “fair and

impartial.” 158 So. 3d at 627

. Despite those legitimate concerns, McNeil
concluded that a new trial was required to discourage “tactical
gamesmanship.”

Id. at 628–29.

No less is required here.

    Under the circumstances, the manufacturer cannot meet its burden of
proving that there was no reasonable possibility this error contributed to
the verdict, or that the error did not result in a miscarriage of justice. See
Special v. W. Boca Med. Ctr., 

160 So. 3d 1251

, 1257 (Fla. 2014)
(establishing test for harmless error in civil appeals, and concluding that
“[a]n appellate court’s harmless error analysis is not limited to the result
in a given case, but it necessarily concerns the process of arriving at that
result”); see also § 59.041, Fla. Stat. (2017) (the codified harmless error
rule allows reversal and the granting of a new trial in the event of “a
miscarriage of justice.”). As in Washington, the improper reconfiguration
of the jury panel is the very error and miscarriage of justice that must be
corrected.



6  This is an ancient proverb utilized to express the point that one would be
ungrateful to question the value of a gift. Although its precise origin is unknown,
it refers to the ancient practice of evaluating the age of a horse by looking at its
teeth to determine its value. Obviously, if the horse was a gift, it would be rude
to examine its mouth in front of the person who gifted it, as if one were trying to
question the value of the gifted horse. But adherence to the law requires much
more than common courtesy in accepting a gift.              Here, it required the
manufacturer to reject the court’s gratuitous offer.

                                        14
    In sum, while I concur with the majority’s finding that the trial court
did not abuse its discretion in withholding the inapplicable consumer
expectations instruction, I respectfully dissent as to their finding of
harmless error in allowing the manufacturer to exercise a peremptory
strike at the conclusion of the trial. Undoubtedly, the error in allowing
one party to reconfigure the jury panel over the opposing party’s objection
was prejudicial and harmful here. Accordingly, I would reverse and
remand for a new trial.

                           *         *        *

    Not final until disposition of timely filed motion for rehearing.




                                    15
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