Murphree, for Use and Benefit of Murphree v. Raybestos-Manhattan, Inc.

• Decision Date: 30 December 1982
• Docket Number: INC,No. 81-5758,RAYBESTOS-MANHATTA,81-5758
• Parties: Joyce E. MURPHREE, as Widow and for the Use and Benefit of the next of kin of Woodrow Wilson MURPHREE, deceased, Plaintiff-Appellant, v., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 459

696 F.2d 459

Joyce E. MURPHREE, as Widow and for the Use and Benefit of the next of kin of Woodrow Wilson MURPHREE deceased, Plaintiff-Appellant, v. RAYBESTOS-MANHATTAN, INC., Defendant-Appellee.

No. 81-5758.

United States Court of Appeals Sixth Circuit.

Argued Nov. 8, 1982.

Decided Dec. 30, 1982.

Sidney W. Gilreath, Michael Y. Rowland, Knoxville, Tenn., for plaintiff-appellant.

Donald F. Paine, Dwight E. Tarwater, Lead Counsel, Knoxville, Tenn., for Raybestos-Manhattan.

Before MERRITT and JONES, Circuit Judges, and MOYNAHAN, Chief District Judge. ^*

MERRITT, Circuit Judge.

Plaintiff appeals from a jury verdict in a products liability action brought by her for the wrongful death of her husband allegedly caused by an asbestos-related disease. The District Court erred on several issues in conducting the trial, and accordingly we reverse and remand the case for a new trial.

The evidence at trial established that plaintiff's decedent, Mr. Murphree, worked as a service station mechanic and manager from 1950 until shortly before his death in 1979. Involving the replacement and installation of automobile brakes, his job allegedly caused him to be exposed to asbestos dust from brake lining materials supplied by defendant. According to plaintiff's theory, this exposure resulted in Mr. Murphree contracting mesothelioma, a cancer of the lining of the chest. This disease ultimately caused his death. All of the expert witnesses who testified at trial agreed that Mr. Murphree's disease resulted from his occupational exposure to asbestos-containing products.

I.

Mr. Murphree was first exposed to defendant-manufacturer's asbestos product more than ten years before February, 1979, when he discovered he had mesothelioma. The main question of law on appeal in this diversity case is whether Tennessee's ten year statute of limitations based on sale, adopted July 1, 1978, as T.C.A. Sec. 29-28-103 (action "must be brought within ten years from the date ... product ... first purchased for use") created for defendant a vested right barring plaintiff's claim despite a July 1, 1979, statutory amendment excluding asbestos-related disease actions from this ten year ceiling. ¹ The Tennessee appellate courts have not spoken directly on this issue. We hold that Tennessee's vested rights doctrine based on Tennessee Constitution Article I Section 20 does not bar the claim and that the 1979 amendment is applicable as a matter of law.

Interpretation of Tennessee's various statutes of limitations governing products liability actions has created troublesome problems for Tennessee courts in the past two decades. In 1969 the Tennessee Supreme Court in Jackson v. General Motors, 223 Tenn. 12, 441 S.W.2d 482 (1969), adopted a rule widely criticized by the bench and bar of the state. It held that Tennessee's limitations statute in products cases begins to run on the date of purchase of the product and not on the date of injury or discovery. Thus, in some cases of latent disease and injury the limitation period expired before discovery by the victim. The legislature acted promptly to overrule the holding in Jackson by amending the statute. In 1974 the Tennessee Supreme Court, with Justice William Fones dissenting, prevented the amendment from becoming effective. The Court held in Ford Motor Company v. Moulton, 511 S.W.2d 690 (Tenn.1974) that under Tennessee vested rights doctrine, based on Article I Section 20 of the Tennessee Constitution, the statutory amendment running the limitation period from discovery could not be applied retroactively. Thus, the seller who sold his product outside the statutory period was held to have a vested right to defeat an action for injuries discovered and sued upon during the statutory period.

In 1975, shortly after the decision in Moulton, a new Tennessee Supreme Court was elected. Of the members of the old Court, only Justice William Fones remained. He became the first Chief Justice of the new Court. The new Court, in an opinion by Justice Joe Henry (a beloved member of that Court until his recent untimely death), promptly overruled Jackson v. General Motors, supra, and held that the limitations statute runs from discovery, not sale. In McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487 (Tenn.1975), Justice Henry held that "reason, logic and fundamental fairness" demand that the running of the statute begin upon discovery, for it is ludicrous to have a "law which charges a litigant with sleeping upon any right which he does not have" just as one cannot "harvest a crop never planted, or burn down a house never built." 524 S.W.2d at 489. The McCroskey opinion announces very clearly that judicial policy in Tennessee does not favor doctrines that activate statutes of limitations before the plaintiff has knowledge of his injury.

Although the Tennessee Supreme Court in McCroskey did not expressly overrule the vested rights doctrine as applied to statutes of limitations in Moulton, it is clear to us that the Moulton vested rights doctrine no longer has any vitality. Justice Henry's McCroskey opinion quotes from that part of Justice Fones' Moulton dissent that quotes in turn from an opinion of this Court by Judges Phillips, Edwards and Celebrezze. In McCroskey Justice Henry said:

Our own Chief Justice [Fones] dissented from the majority opinion in Ford Motor Company v. Moulton, supra. We quote from his dissent:

"The following principles are stated concisely in Hodge v. Service Machine Company, 438 F.2d 347 (6th Cir.1971).

'A cause of action accrues when a suit may be maintained upon it. Black's Law Dictionary 37 (4th ed. 1951). A suit may not be brought upon a cause of action until it exists, and a cause of action does not exist until all its elements coalesce. In civil actions for damages, two elements must coalesce before a cause of action can exist: (a) a breach of some legally recognized duty owed by the defendant to the plaintiff; (b) which causes the plaintiff some legally cognizable damage.'

To hold that a products liability action, which is a recognized legal right, is barred by a statute of limitations before any injury is sustained, deprives a person of the opportunity of redress for an injury done him in his goods or person by due process of law, contrary to our Constitution. 511 S.W.2d at 697."

524 S.W.2d at 490.

Regarding Moulton, the McCroskey Court stated that it did not need to reach the retroactivity--i.e. vested rights--question. However, the Court did make the following observation: "We, therefore, neither reaffirm nor reverse Ford Motor Co. v. Moulton, but we have quoted, with approval, from the dissent of our present Chief Justice."

We do not find that the Tennessee Supreme Court has had occasion to speak on the retroactivity question in products cases since McCroskey. Justice Henry's language in that case quoting from Justice Fones' reliance on our opinion in Hodge v. Service Machine Co., 438 F.2d 347 (6th Cir.1971), and our knowledge of the careful and progressive character of the Tennessee Supreme Court, make it clear to us that the old vested rights doctrine as applied to statutes of limitations in Moulton is no longer the law in Tennessee and will be overruled when the occasion arises.

Tennessee will no longer apply under Article I Section 20 of its Constitution a vested rights doctrine to defeat a statutory amendment that runs a statute of limitations from the time of discovery of the injury. The Tennessee Supreme Court will no longer use the vested rights doctrine to prevent the Tennessee legislature from ameliorating the harshness of a rule that bars a plaintiff's claim before he discovers it.

Thus the plaintiff's claim here is not barred under Tennessee law. The statutory amendment excepting asbestos-related disease causes of action from the ten year limitations statute based on sale does not abridge any right protected under the Tennessee Constitution. This brings the Tennessee law into line with federal law on vested rights as applied to statutes of limitations under the Federal Constitution. The United States Supreme Court has long since rejected old doctrines of substantive due process which said that a liberalizing change in a statute of limitations abridges vested rights. See Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628, reh. denied, 325 U.S. 896, 65 S.Ct. 1561, 89 L.Ed. 2006 (1945) (statutory amendment abolishing limitations defense did not deprive defendant of any right); Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885) (statutes of limitations go to matters of remedy rather than destruction of fundamental rights). In Donaldson, supra, Justice Jackson stated for the Court:

Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizens from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349 [64 S.Ct. 582, 586, 88 L.Ed. 788]. They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a "fundamental" right or what used to be called a "natural" right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.

Id. 325 U.S. at 314, 65 S.Ct. at 1142.

Therefore, the District Court erred...