Nye v. Bayer Cropscience Inc.

• Decision Date: 07 June 2011
• Docket Number: No. E2008–01596–SC–R11–CV.,E2008–01596–SC–R11–CV.
• Citation: 347 S.W.3d 686
• Parties: Evelyn NYEv.BAYER CROPSCIENCE, INC., et al.
• Court: Tennessee Supreme Court

347 S.W.3d 686

Evelyn NYE

v.BAYER CROPSCIENCE, INC., et al.

No. E2008–01596–SC–R11–CV.

Supreme Court of Tennessee, at Knoxville.

Sept. 2, 2010 Session.June 7, 2011.

Hugh B. Bright, Jr., Michael J. King, and Latisha J. Stubblefield, Knoxville, Tennessee, for the appellant, National Service Industries, Inc. f/k/a/ North Brothers, Inc.Jimmy F. Rodgers, Jr., Chattanooga, Tennessee, and John E. (“Rett”) Guerry, III, and Benjamin D. Cunningham, Mt. Pleasant, South Carolina, for the appellee, Evelyn Nye.

OPINION

SHARON G. LEE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., and GARY R. WADE, J., joined. JANICE M. HOLDER, J., filed a separate opinion, concurring in part and dissenting in part, in which WILLIAM C. KOCH, JR., J. joined.SHARON G. LEE, J.

In this products liability case, a widow sought compensation for the death of her husband from mesothelioma allegedly caused by exposure to asbestos at his workplace. She sued the company that sold products containing asbestos to her husband's employer. She based her claim on strict liability and alleged that the seller sold defective products and failed to warn her husband of the products' health risks. The jury found that the seller was at fault, but that her husband's employer was the sole cause of his injury and awarded her nothing. The widow appealed. The Court of Appeals reversed and remanded for a new trial based on erroneous jury instructions that more probably than not affected the judgment of the jury. On review, we hold that the seller was subject to suit in strict liability, pursuant to Tennessee Code Annotated section 29–28–106(b) (2000), because none of the products' manufacturers were subject to service of process. Further, we hold that the trial court erred by instructing the jury that the seller could not be held liable for failure to warn if the jury found that the consumer, identified as the employer, was already aware of any danger in connection with the use of the products or if the employer had been given adequate warnings. This jury instruction was erroneous for two reasons. First, it applied the learned intermediary doctrine, which the courts of this state have limited to medical products and pharmaceuticals. Second, the jury instruction misidentified the consumer as the employer, when the consumer who was required to be warned was the employee, Mr. Nye. Because the error more probably than not affected the judgment of the jury, the judgment of the trial court is reversed and the cause is remanded for a new trial.

Background

Hugh Todd Nye was diagnosed with malignant pleural mesothelioma in September of 2005.¹ He died from this disease on August 1, 2006. Mr. Nye's mesothelioma was allegedly caused by exposure to asbestos during the time he worked for DuPont at its Chattanooga, Tennessee, facility from 1948 to 1985. As an operator on DuPont's continuous polymerization line, and during the course of his employment, Mr. Nye was often exposed to dust arising from the removal of asbestos insulation from pipes in the areas where he worked.

In May of 2006, Mr. Nye and his wife sued a number of defendants, including National Service Industries, Inc., a successor in interest to North Brothers, Inc. (“North Brothers”), seeking compensatory damages for injuries allegedly caused by Mr. Nye's exposure to asbestos-containing products at the DuPont facility. The Nyes asserted claims sounding in negligence, strict liability, and breach of warranty against numerous named manufacturers, sellers, and distributors of the asbestos-containing products.

In February of 2007, Mrs. Nye amended the complaint to allege Mr. Nye's death from mesothelioma on August 1, 2006. In addition to seeking damages for his death, she asserted that North Brothers ² sold asbestos-containing products to DuPont that had been manufactured by Owens Corning Fiberglas Corporation (“Owens Corning”), Pittsburgh Corning Corporation (“Pittsburgh Corning”), Raybestos–Manhattan, Inc. (“Raybestos”), and Johns Manville Corporation (“Johns Manville”). In additional amended complaints, Mrs. Nye alleged that these manufacturers had been judicially declared insolvent and were not amenable to service of process.

North Brothers filed a Tennessee Rule of Civil Procedure 56 motion for summary judgment. First, relying on Tennessee Code Annotated section 29–28–106(b),³ North Brothers asserted that, as a non-manufacturing seller, it did not have a duty to warn with regard to the products it sold. Second, it asserted that Mr. Nye's employer, DuPont, was a “sophisticated purchaser,” ⁴ and, as such, knew about the danger of the asbestos-containing products. North Brothers' failure to warn, therefore, was not the proximate cause of Mr. Nye's injuries. Next, North Brothers asserted that Mrs. Nye's strict liability claims failed as a matter of law because the manufacturers of the products that North Brothers sold to DuPont had not been judicially declared insolvent, as required by Tennessee Code Annotated section 29–28–106(b). Finally, North Brothers argued that Mrs. Nye's claims were barred by the four-year statute of repose under Tennessee Code Annotated section 28–3–202 (2000) and that her breach of warranty claim was barred by the statute of limitations under Tennessee Code Annotated section 47–2–725 (2001).

The trial court granted summary judgment to North Brothers on the breach of warranty claims based on the statute of limitations. The trial court granted a partial summary judgment to North Brothers based on the statute of repose for any sales occurring before June 30, 1969. The trial court determined there were disputed genuine issues of material fact as to the other grounds, and denied summary judgment. The trial court did not rule on whether a claim in strict liability could be asserted against North Brothers pursuant to Tennessee Code Annotated section 29–28–106(b).

Thereafter, both parties by motion ⁵ requested the trial court to decide the issue of whether North Brothers was subject to a strict liability suit based on Tennessee Code Annotated section 29–28–106(b) as a result of the pending Chapter 11 bankruptcies of Owens Corning, Pittsburgh Corning, Raybestos, and Johns Manville. The trial court ruled that the manufacturers were not amenable to service of process within the meaning of Tennessee Code Annotated section 29–28–106(b), and therefore, North Brothers was subject to suit as a non-manufacturing seller.

At the time of trial, all the named defendants had been dismissed except North Brothers, and the strict liability claims for sale of defective products and failure to warn were the only surviving claims. The trial court's jury charge included the following instructions:

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

....

In addition, 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.

The jury found North Brothers was at fault, but that DuPont was the sole cause of Mrs. Nye's damages and awarded her nothing. The trial court denied Mrs. Nye's motion for new trial, and she appealed. The Court of Appeals held that North Brothers could be held strictly liable as a non-manufacturing seller because the manufacturers whose products North Brothers sold were not amenable to service of process due to their bankruptcy proceedings. The Court of Appeals further ruled that the trial court committed harmful error in its instructions to the jury and reversed the jury's verdict and remanded for a new trial.

We granted North Brothers' application for permission to appeal and address two issues: 1) whether North Brothers, as a non-manufacturing seller, is subject to suit in strict liability pursuant to Tennessee Code Annotated section 29–28–106(b) and 2) whether the trial court committed harmful error in its instructions to the jury.

Analysis

North Brothers' Liability as a Seller

We begin our analysis of whether North Brothers, as a non-manufacturing seller, is subject to suit in strict liability pursuant to Tennessee Code Annotated section 29–28–106(b), with a brief recitation of the facts and a general discussion of the basis for the strict liability claims in this case.

Mr. Nye began working for DuPont at its Chattanooga plant in 1948 and, except for a brief period of military service, he worked there continuously until he retired in 1985. During this period, Mr. Nye worked on the plant's continuous polymerization line (“CP line”), a section of the plant involved in DuPont's production of yarn. As part of his job duties, Mr. Nye was required to conduct routine inspections of equipment located along the CP line. Often, when he was conducting these inspections, maintenance crews were in the same areas cutting and removing asbestos-containing insulation from pipes. Evidence was presented that this was an anticipated use of the insulation. In addition to inspecting equipment, Mr. Nye's job duties required him to sweep the floor and pick up insulation debris left after the maintenance crews had completed their work. Mr. Nye was frequently exposed to visible dust arising from the removal of the asbestos-containing insulation by work crews and from his own clean-up work. North Brothers sold asbestos-containing insulation products used in the CP line to DuPont. These products included products manufactured by Owens Corning, Pittsburgh Corning, Raybestos, and Johns Manville. There is no proof that either DuPont or North Brothers warned Mr. Nye of the health risks associated...