E.I. Du Pont v. Desarrollo Indus'l and Bioacuatico S.A., Fla. 4th DCA (2003)
Author: Bram

Cause of action: The following is an appeal to reverse a jury verdict in favor of appellees.

Procedural History: Trial court jury ruled for appellee/plaintiff.  Reversed on appeal.

Facts: Pre-trial, appellees did not have mention of a cause of action relating to "failure to warn."  All their theories were based on

negligence.  During discover, appellant/DF tried to warn the trial court there was a move by PL being played to add a failure to warn claim to the complaint, which it could not after Du Pont answered the initial complaint.  Du Pont moved for summary judgment in light of this action, and motion was denied.  At this hearing on the motion, DIBSA claimed this was not a labeling case, and instead it was raising a warning claim.

Following the hearing, DuPont filed a motion in limine to exclude evidence regarding the failure to warn on the ground that DIBSA had failed to allege a claim for failure to warn in its complaint.  PL counsel argued that they did allege a complaint, gleaning from the previous allegations in the complaint, which was contrary to what they argued when they were in the motion hearing for summary judgment.  Court denied motion in limine.

Failure to warn got into the jury instruction, and the jury came back with that claim as the only one in which it found DF/appellant guilty.  Jury came back once during its deliberation, and DF/appellant counsel vehemently objected to this allegation being part of the charge.  It awarded damages over $10M dollars.  After trial, DF moved for JNOV contending Du Pont was entitled to a judgment in its favor b/c the jury found for PL only on an unpled claim. Motion denied, prompting this appeal.

Issue(s): Under FL rules of civil procedure, may a properly plead complaint be amended constructively by the court after DF's answer, in a motion hearing, on the basis the claim could be gleaned from the initial complaint itself?

Court's Rationale/Reasoning: After it stated the rule, the court went into various policy reasons why a general cause of action cannot be also molded and shaped into any other type of complaint after an answer has been filed.  By objecting to this introduction of evidence on the failure to warn claim, they raised the court's attention that the PL was doing something in which it could not do.  The complexity of certain cases these days demands for even more specificity, as the court's diminishing resources in which to understand all these new types of claims must be taken into account.

Here, there was never even a mention of a failure to warn in its cause of action.  But less than five days before trial, when DuPont tried to exclude the evidence on failure to warn, DIBSA started to for the first time, argue that the pleadings encompassed a failure to warn claim.  The trial court got caught up in the seriousness of the charge and failed to take into account there never was a true count for failure to warn in its initial complaint (and was never amended to include it).  Thus DuPont was forced to defend a claim which PL affirmatively rejected as being part of its causes of action only two months before trial.

DIBSA claims the issue is one of prejudice, and DuPont was not prejudiced b/c counsel knew that failure to warn would be raised by DIBSA early on.  BUT, just b/c they knew it could 've come up, doesn't mean it always will come up.  Also, how could it be said that DuPont should have prepared for trial on the off chance that DIBSA might raise the issue of failure to warn after not even doing so in its complaint.  Claims submitted to the jury must either be pleaded or tried by implied consent with the pleadings conformed to the evidence.

Rule: Where a claim is not pled with sufficient particularity for the opposing party to prepare a defense, the PL is precluded from recovery on the unpled claim and a directed verdict is properly entered.

Holding: No.  Each litigant at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared.