Nye v. Bayer Cropscience, Inc., No. E2008-01596-COA-R3-CV (Tenn. App. 10/14/2009)

Decision Date14 October 2009
Docket NumberNo. E2008-01596-COA-R3-CV.,E2008-01596-COA-R3-CV.
PartiesEVELYN NYE, individually and as surviving spouse and next-of-kin of HUGH TODD NYE, v. BAYER CROPSCIENCE, INC., et al.
CourtTennessee Court of Appeals

Jimmy F. Rodgers, Jr., Chattanooga, Tennessee, and John E. ("Rett") Guerry, III and Benjamin D. Cunningham, Mount Pleasant, South Carolina, for appellant, Evelyn Nye.

Hugh B. Bright, Jr., Michael J. King, and Robert L. Vance, Knoxville, Tennessee, for appellees, Bayer Cropscience, Inc., et al.

Herschel Pickens Franks, P.J., delivered the opinion of the Court, in which Charles D. Susano, Jr., J., and D. Michael Swiney, J., joined.

OPINION

HERSCHEL PICKENS FRANKS, P.J.

Defendants sold materials containing asbestos to the deceased's employer, where he was exposed to asbestos and contracted mesothelioma from which he died. Plaintiff's widow brought this action against the supplier, a jury trial resulted and the jury returned a verdict for the defendant, which the Trial Court approved. On appeal, we hold that certain jury instructions were error and we reverse and remand for a new trial.

The plaintiff/appellant is the surviving spouse of Hugh Todd Nye, and in the Complaint, it was alleged that Mr. Nye suffered from mesothelioma as a result of exposure to asbestos during his employment at the DuPont plant in Chattanooga, Tennessee. He worked at the DuPont facility from September 1948 to his retirement in April 1985, and died as a result mesothelioma on August 1, 2006. In the Original Complaint numerous defendants were served, including the defendant/appellee in this appeal, National Service Industries, Inc., d/b/a North Brothers. (North Brothers or defendant).

By the time the case was tried before a jury, North Brothers was the sole remaining defendant, and the only claims presented to the jury against North Brothers arose from North Brothers' alleged sales of asbestos containing products to DuPont. These products were alleged to have been manufactured by Owens Corning Fiberglass, Pittsburgh Corning Corporation, Johns Manville and Raybestos. All four of the manufacturers had filed for protection under Chapter 11 of the Bankruptcy Code and had established trusts to pay asbestos-related personal injury claims.

Procedurally, North Brothers filed a Motion for Summary Judgment asking the Trial Court to find that North Brothers could not be held liable for the sale of the products of the aforementioned manufacturers because the manufacturers were not insolvent and they were amenable to service of process.1 The Motion was denied, and plaintiff then filed a motion for summary judgment asking the Trial Court to find that the manufacturers were either insolvent or not amenable to service of process. The Trial Court held that because of the stays imposed by the Bankruptcy Courts the companies were not amenable to service of process in Tennessee and the plaintiff could proceed against North Brothers under a strict liability theory for the sale of the products of the manufacturers.

The parties agree that the only theories of liability brought to the jury and involved in this appeal involve strict liability, i.e., the sale of a defective product and strict liability for failure to warn.

The jury returned a verdict in favor of North Brothers and the Trial Judge approved the jury's verdict.

The jury verdict form reflects that the jury found North Brothers to be at fault based on its sales after July 1, 1969 but that it found that DuPont was the sole cause of plaintiff's damages.

The evidence established that Nye was exposed to asbestos containing products while working for DuPont. His exposure was to various asbestos-containing products sold by North Brothers to DuPont. Nye's deposition was read to the jury, and he testified that he never saw any boxes or container that asbestos products came in, and never observed any warnings about any of the products. Moreover, there was no evidence to show that Nye was aware of the health hazards associated with exposure to asbestos. The evidence further revealed that he died from malignant mesothelioma, a single asbestos-related cancer, and that the disease which caused his death was associated with his exposure to asbestos at the DuPont plant.

There was also evidence presented at trial regarding when both North Brothers and DuPont became aware that exposure to asbestos could cause mesothelioma. The evidence showed that DuPont was on the cutting edge of asbestos safety, and DuPont representatives attended the seminal Asbestos Conference at the New York Academy of Science in 1964. As a result of the conference, DuPont instituted an asbestos monitoring and safety program in its various facilities, including the plant in Chattanooga. The evidence demonstrated that during the relevant time period DuPont was fully aware that asbestos caused diseases of the lung, but following the 1964 conference, DuPont continued to specify and purchase and employ asbestos containing products in its facilities, including the Chattanooga plant where Nye worked.

Evidence was also presented that North Brothers became aware that exposure to asbestos could cause mesothelioma sometime in the 1960s. North Brothers, however, did not provide written warnings to its customers, including DuPont, of this health hazard nor did North Brothers ever inquire of DuPont as to the extent of its knowledge regarding the hazards associated with asbestos containing products.

At the close of the evidence, plaintiff moved for a directed verdict on the applicability of North Brothers' sole cause defense to the sale of defective product claim, which the Trial Court denied. During the jury charge conference, plaintiff's counsel objected to and proposed various charges concerning North Brothers' sole cause defense, plaintiff's sale of a defective product claim, and the applicability of DuPont's knowledge of the hazards associated with asbestos to either of plaintiff's claims, the sale of defective product claim and the failure to warn claim.

The Trial Court gave the following instructions to the jury that are pertinent to this appeal:2

1. Fault has two parts in this case; sale of a defective product and legal cause. One who manufactures or sells a defective product is responsible to the ultimate consumer of the product for physical harm cause to the consumer or the consumer's property if: (1), The manufacturer or seller is engaged in the business of manufacturing or selling such a property; and, (2) It is expected to and does reach the user or consumer without substantial change in the condition in which it was manufactured or sold.

2. A property is defective if it is unsafe for normal or reasonably anticipated handling and use. . . . . A seller includes a retailer, wholesaler, or distributor. A seller is any individual or organization in the business of selling a product, either for resale or for use or consumption.

3. The seller or manufacturer of a product is not responsible for any injury to person or property caused by the product unless the product is determined to be in a defective condition at the time it left the seller's or manufacturer's control. In making this determination, you must apply the state of scientific and technological knowledge available to the seller or manufacturer at the time the product was placed on the market, rather than at the time of injury.

4. Where proper instructions for use and an adequate warning of hazards are given, the seller or manufacturer may reasonably assume that they will be read and followed. Thus, a product is not in a defective condition if: 1, The manufacturer or seller has given proper instructions for the use of a product and an adequate warning of the dangers associated with the use or misuse of the product; and 2, The product is safe for use if the instructions and warnings are read and followed.

5. A manufacturer or a seller cannot be held liable for failure to warn if you find that the consumer, DuPont, was already aware of the danger in connection with the use of asbestos-containing products, or if you find that adequate warnings were given by manufactures of sellers to DuPont.

6. The second part of fault is legal cause. A legal cause of any injury is a cause which, in natural and continuous sequence, produces an injury, and without which the injury would not have occurred. A single injury can't be caused by the negligent acts or omissions of one or more persons.

7. If you find that a person sold a defective product and that the sale was a legal cause of the injury or damages for which a claim was made, you have found that person to be at fault. . . . . If you find more than one person to be at fault, you must then determine the percentage of fault chargeable to each of them.

8. If you find that DuPont failed to provide a safe workplace for Hugh Todd Nye and that this failure was the sole cause of damage to him, then you have found DuPont was the sole cause of his injury, and you may not consider the fault of North Brothers or any other company supplying asbestos-containing materials to DuPont.

9. If you find that DuPont was not the sole cause of damage to Mr. Nye, then you may consider the fault of North Brothers and any other companies supplying asbestos-containing materials to DuPont.

The charges numbered 5 and 8 above were objected to by Plaintiff and extensive argument and discussion was held during the charge conference and while the jury deliberated.

During jury deliberation, the jury sent a note to the Court asking for clarification of the sole cause charge. The Court had difficulty understanding the question set forth in the note and, after much discussion and argument by counsel, the Court asked the jury to return to ...

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