Goode v. Tamko Asphalt Products, Inc.

• Decision Date: 04 December 1989
• Citation: 783 S.W.2d 184,3 A.L.R.5th 1132
• Parties: Prod.Liab.Rep. (CCH) P 12,318, 3 A.L.R.5th 1132 Ben GOODE and Wife Evelyn R. Goode, Plaintiffs, v. TAMKO ASPHALT PRODUCTS, INC., and Warrior Roofing Manufacturing Co., Defendants.
• Court: Tennessee Supreme Court

Page 184

783 S.W.2d 184

Prod.Liab.Rep. (CCH) P 12,318, 3 A.L.R.5th 1132

Ben GOODE and Wife Evelyn R. Goode, Plaintiffs, v. TAMKO ASPHALT PRODUCTS, INC., and Warrior Roofing Manufacturing Co., Defendants.

Supreme Court of Tennessee at Knoxville.

Dec. 4, 1989.

Rehearing Denied Jan. 22, 1990.

Art Roberts, Jr., Knoxville, for plaintiffs.

Earl R. Layman & James E. Wagner, Knoxville, for defendants Tamco Asphalt Prod.

Julia S. Howard, Knoxville, for defendants Warrior Roofing Mfg. Co.

FONES, Justice.

This is a products liability case wherein plaintiff claims he contracted a skin pigmentation condition diagnosed as vitiligo, as a result of using asphalt roof shingles and felt manufactured by defendants. No warning label alerting users of any potential danger appeared on the shingles or felt.

At the close of all the proof the trial judge granted defendants' motion for a directed verdict on the ground that there was no proof that the roofing products manufactured by defendants were either defective or unreasonably dangerous under the Tennessee Products Liability Act, T.C.A. § 29-28-101, et seq. The Court of Appeals reversed, holding that plaintiff's proof was sufficient to require submission to a jury the issue of whether defendants' products were unreasonably dangerous as defined in T.C.A. § 29-28-102(8), i.e., "to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." We granted the application of defendants for further review.

Plaintiff helped install a roof on his son's house, using asphalt shingles manufactured by Tamko and asphalt felt manufactured by Warrior. Plaintiff worked on the roof on two hot, sunny days in early July 1982. He testified that he did not wear gloves and had black smudges on his hands and arms at the end of the first day from handling the roofing materials. That night he had a tingling sensation in his hands and arms and the next morning he had blisters about the size of the blunt end of a pencil. The blisters on his arms and the back of his hands were apparently limited to the areas that his short sleeve shirt left exposed to sunlight. He testified that the blisters did not bother him, so he went to his son's house and worked on the roof another day under the same conditions as the first day.

In time, the blisters became white spots that increased in size. Dr. Huddleston, plaintiff's doctor, diagnosed his condition as a photo-toxic reaction to the asphalt materials that resulted in vitiligo. He explained that a photo-toxic reaction means that "some material on the skin reacts with light, usually sunlight in this case, to produce a chemical change." Vitiligo "means that cells that are supposed to produce pigment in an area of skin simply aren't there any more.---if you biopsy vitiligo very early there are fewer cells, if you biopsy it late the cells are gone." Dr. Huddleston was of the opinion that the loss of pigment was permanent, and was caused by plaintiff's handling of the asphalt products in combination with exposure to sunlight.

Dr. Huddleston testified that his opinion, that there was a relationship between plaintiff's handling the asphalt roofing materials and the loss of pigmentation, was based on the following factors:

A. The time relationship that I am given here, the known fact that petroleum products, asphalt, all that type of stuff, have multiple compounds in them some of which are known to act as bleaches on some people's skin. Phototoxic reactions where sunlight and these materials interact each other are all reasonable causes for the problem that he had.

When Dr. Huddleston was questioned about his actual knowledge of the chemical content of the products plaintiff had used he acknowledged that all he knew was that they were "supposed to be asphalt based, petroleum asphalt based", and, "petroleum base is where things like you can get various and sundry chemicals, many of which are carcinogenic as well as bleaches and other things?"

Dr. Huddleston was asked if he knew of any documented case in the annals of medical history of anyone getting vitiligo from exposure to asphalt products, and he answered as follows:

Q. There is no documented case in the annals of medical history to your knowledge of anyone getting vitiligo from any exposure to asphalt products?

A. There are multiple episodes of people getting vitiligo from hydroquinoes. Hydroquinoes are present in most petroleum based products. I would have to assume they are present in asphalt base as well.

The only other specific chemicals mentioned by Dr. Huddleston as components of petroleum based asphalt were anthramines and quinones. He failed to state what connection if any those compounds had with vitiligo, saying only that they were "known bleaches."

Plaintiff presented the testimony of James M. Green in support of his theory that plaintiff's vitiligo was caused by exposure to defendant's asphalt based products. Mr. Green testified that his profession was environmental engineer, that he had a B.S. degree in physical science, a master's in environmental health from East Tennessee State University, and a Master of Science in Engineering from the University of Tennessee.

Mr. Green was asked on direct examination to give the "components of petroleum asphalt." His response was:

[it] contains many complex components, and it would be best to break them down into class. The classes are essentially Benzopyrene derivatives as well as various very complex phenobic compounds, the phenols being a fairly substantial amount of the constituent of petroleum asphalt. The actual breakdown is quite complex, quite complex, so it would be better just to give you generic classes that I just did.

Mr. Green's testimony then turned to the question of whether petroleum asphalt had toxic potential for humans. He had consulted the literature reporting on studies "that have been generated by others and in those studies there has been shown to be a potential of toxicity for the general public by the Phenols and in particular the benzopyrene derivatives that are present in petroleum asphalt." He said that he went to the engineering and environmental health literature and pulled all the articles he could find where researchers had looked at the toxicity issue of petroleum asphalt. Four or five articles were then identified by title and author and made exhibits. However, Mr. Green did not testify about any specific content or studies reported in the articles. After the articles were introduced, Mr. Green was asked for his opinion as to whether it was "generally recognized" that "there are toxic potentials arising from exposure to petroleum asphalt or derivatives therefrom" and he responded as follows:

A. My opinion is the literature clearly shows that contact with petroleum asphalt can produce for a limited amount of the population an adverse dermatological reaction. The reaction can be various forms of dermatitis.

Later, he testified that it had been well known since 1959 that "exposure to the skin has a potential of causing...