Leonard Bros. Industrial Contractors v. Burke Co.

529 So. 2d 779, 13 Fla. L. Weekly 1777, 1988 Fla. App. LEXIS 3391, 1988 WL 75979

Opinion

PER CURIAM.

This is an appeal by the plaintiffs from a final judgment entered upon an adverse jury verdict in a products liability action. The sole point on appeal is that the trial court committed reversible error in excluding two crucial expert witnesses called by the plaintiff. We agree and reverse for a new trial based on a holding that (1) a sufficient chain of custody of the subject metal lifting inserts was adduced below to permit a jury inference that the inserts tested by the expert witnesses were the alleged defective inserts involved in the accident, and (2) sufficient evidence was adduced below to permit a jury inference that the inserts tested were the same as, or substantially similar to, the insert which allegedly broke and arguably caused this accident. We have not overlooked the fact that contrary inferences could also be drawn based on the evidence adduced below, but conclude that a jury issue was presented on this issue. See Schwartz v. M.J.M. Corp., 368 So.2d 91, 92 (Fla. 3d DCA 1979); § 90.105(2) law revision council note, Fla.Stat.Ann. (1979); see also Fay v. Mincey, 454 So.2d 587, 594 (Fla. 2d DCA 1984); Vitt v. Ryder Truck Rentals, Inc., 340 So.2d 962 (Fla. 3d DCA 1976); cf. Musleh v. Division of Admin., State Dept. of Transp., 299 So.2d 101, 103 (Fla. 1st DCA 1974).

The final judgment under review is reversed and the cause is remanded for a new trial.