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establishing that the TPLA is for bringing defective product claims against manufacturers and sellers
Summary of this case from Maggard v. Nyrstar Tenn. MinesOpinion
No. E2017-01985-SC-R11-CV
01-04-2021
Carolyn COFFMAN, et al. v. ARMSTRONG INTERNATIONAL, INC., et al.
This is a product liability action stemming from occupational exposure to asbestos. Pertinent to this appeal, Mr. and Mrs. Coffman ("Appellees") asserted claims against the manufacturers of certain equipment ("Equipment Defendants") under the Tennessee Products Liability Act for failing to warn of dangers for exposure to asbestos-containing products that the Equipment Defendants did not themselves manufacture or sell. The trial court granted summary judgment to the Equipment Defendants and the Court of Appeals reversed. This Court granted the Equipment Defendants’ application in part and directed the parties to address: "Whether the Court of Appeals erred in holding that the Equipment Defendants had a duty to warn of the dangers associated with the post-sale integration of asbestos-containing materials manufactured and sold by others." We have concluded that the Equipment Defendants had no duty to warn on the facts and law applicable here. We reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.
All other applications for permission to appeal and additional issues raised in the parties’ applications were denied.
I. FACTS AND PROCEDURAL HISTORY
This products liability case was originally filed by Donald Coffman, who was diagnosed with mesothelioma, and his wife, Carolyn Coffman ("Appellees"). Mr. Coffman worked at the Tennessee Eastman chemical plant ("Tennessee Eastman") between the years of 1968 and 1997. During his career as an equipment mechanic at Tennessee Eastman, Mr. Coffman repaired and replaced equipment that included pumps, valves, steam traps, gaskets and piping while working around packing and insulation. According to Appellees, many of these products contained asbestos. Mr. Coffman spent most of his time working in and around "Building 55," in which acid from other divisions was distilled, reclaimed, and refined. The piping system at Tennessee Eastman carried highly corrosive steam and acids that required the equipment to be repaired daily and sometimes replaced entirely.
As the Court of Appeals explained, the trial court in this case awarded summary judgment to the Defendants/Appellants. As a result, the facts recited herein are based on the record viewed in the light most favorable to the Plaintiffs/Appellees. Coffman v. Armstrong Int'l, Inc. , No. E2017-01985-COA-R3-CV, 2019 WL 3287067 (Tenn. Ct. App. July 22, 2019) (citing Robinson v. Omer, 952 S.W.2d 423, 424-25 (Tenn. 1997), perm. app. granted , (Tenn. Feb. 20, 2020)).
After Mr. Coffman developed mesothelioma, Appellees filed suit alleging that Mr. Coffman's exposure to asbestos at his workplace caused him to develop cancer. Specifically, Appellees alleged that Mr. Coffman was exposed to asbestos while working at Tennessee Eastman in three ways: by breathing in dust created by asbestos-containing insulation; by breathing in dust created by the removal of asbestos-containing gaskets; and by breathing in dust created by the removal of asbestos-containing packing. The original complaint included claims for negligence, strict liability, gross negligence, and negligence per se , against nearly thirty defendants. These defendants included an independent contractor whose insulators removed and installed asbestos-containing insulation at Tennessee Eastman, a manufacturer of asbestos-containing packing used by Tennessee Eastman, and several industrial equipment manufacturers, including DeZurik, Inc.; Flowserve Corporation f/k/a The Duriron Company, Inc.; Clark Reliance Company, Jerguson Gage and Valve Division; Armstrong International, Inc.; Crane Company; Fisher Controls International, LLC; Ingersoll-Rand Company ; Neles-Jamesbury, Inc., Metso Automation USA, Inc.; and the William Powell Company (collectively referred to as the "Equipment Defendants"). Appellees claim that the materials needed and used to repair and maintain the Equipment Defendants’ products contained asbestos.
As noted by the Court of Appeals, the Appellees did not sue the manufacturers of the asbestos-containing insulation and gaskets that were supplied to Tennessee Eastman, but rather filed a claim with the Manville Personal Injury Settlement Trust and received compensation for their claim. Coffman , 2019 WL 3287067, at *2 n.2. The trial court in this case ruled that any jury would be instructed to "make an allocation of fault to Johns-Manville with regard to insulation and other asbestos-containing materials that Johns-Manville manufactured and supplied to Tennessee Eastman."
During the pendency of this appeal, a "Notice of Bankruptcy Filing and Stay of Proceedings Against the Former Ingersoll-Rand Company was filed with this Court on July 1, 2020, stating that the former Ingersoll-Rand Company, an original named Equipment Defendant in this matter, went through a corporate restructuring on May 1, 2020. As a result, Ingersoll-Rand Company ceased to exist and some of its assets and liabilities, including asbestos-related liabilities at issue in this case, were allocated to a new entity, Aldrich Pump, LLC. On June 18, 2020, Aldrich Pump, LLC filed a voluntary petition for relief under chapter 11 of title 11 of the United States Code, which resulted in an immediate automatic stay of any claims asserted against Aldrich Pump, LLC. Further, the United States Bankruptcy Court for the Western District of North Carolina has entered a temporary restraining order enjoining further prosecution of asbestos-related claims against protected parties in that proceeding. Ingersoll-Rand Company and Aldrich Pump, LLC assert that this injunction applies to both companies.
Appellees alleged causes of action against the Equipment Defendants under the Tennessee Products Liability Act of 1978, Tennessee Code Annotated Sections 29-28-101 through -108. They claimed that the Equipment Defendants were liable for Mr. Coffman's illness because he was exposed to asbestos while working with or near the Equipment Defendants’ products, such as industrial valves, pumps, and steam traps, that were supplied to Tennessee Eastman several years earlier. They further asserted that the Equipment Defendants were subject to liability because their products were unreasonably dangerous and because the Equipment Defendants failed to adequately warn users of potential asbestos exposure resulting from the post-sale integration of asbestos-containing materials manufactured and sold by others. The products alleged to have contained asbestos included: insulation applied to the exterior of the equipment post-sale; asbestos-containing flange gaskets applied to the exterior of the equipment post-sale; asbestos-containing replacement gaskets integrated into the equipment post-sale; and asbestos-containing replacement packing integrated into the equipment post sale. These later-affixed asbestos-containing products were manufactured and sold by other entities with no involvement from the Equipment Defendants. According to Appellees, the Equipment Defendants were liable under a duty-to-warn theory because it was foreseeable, and even intended, that their equipment be repaired and maintained with asbestos-containing materials.
Each Equipment Defendant moved for summary judgment and asserted that they were entitled to summary judgment on claims related to asbestos exposure arising from products that they did not themselves make, sell, or distribute. As is pertinent to this appeal, the trial court determined that the Equipment Defendants affirmatively negated any duty to warn of asbestos with respect to Appellees’ claims arising from the post-sale integration of asbestos-containing insulation, flange gaskets, replacement internal gaskets, and replacement packing that were manufactured and sold by others. Further, the trial court found the duty to warn to be an essential element of Appellee's negligence and strict liability claims under the Tennessee Products Liability Act (the "TPLA"). Therefore, following multiple hearings, the trial court granted summary judgment in favor of the Equipment Defendants with respect to failure-to-warn claims for products made and sold by others. The trial court certified these orders as final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure.
Appellees filed separate notices of appeal against twelve defendants regarding the trial court's dismissal of their claims. The Court of Appeals consolidated the cases on appeal pursuant to Rule 16(b) of the Tennessee Rules of Appellate Procedure. Several issues were presented to the Court of Appeals – only one of which is at issue before this Court. In short, the Court of Appeals disagreed with the trial court's holding that the Equipment Defendants had affirmatively negated their duty to warn, which was an essential element of Appellees’ negligence and strict liability claims, and ultimately vacated the final judgments entered by the trial court. As it relates to the appeal before us, the Court of Appeals held that the Equipment Defendants owed a common law "duty to warn about the post-sale integration of asbestos-containing" products "manufactured and sold by others," and were therefore subject to liability under the TPLA.
The Court of Appeals’ original opinion in this case was filed on July 22, 2019. Coffman , 2019 WL 3287067. On August 7, 2019, the Court of Appeals vacated and withdrew its original opinion and filed a substituted opinion that more precisely described the summary judgment standard of review. In all other respects, the opinions are identical.
We recognize that the Court of Appeals ruled on issues that are not before this Court, including matters related to statutes of repose and evidence of causation. This opinion is only intended to alter the judgment of the Court of Appeals as it relates to whether the Equipment Defendants affirmatively negated their duty to warn.
The Equipment Defendants have appealed this holding. It bears repeating that the Equipment Defendants concede that this ground for summary judgment is applicable only to Appellees’ claims arising from the post-sale integration of asbestos-containing insulation, flange gaskets, replacement internal gaskets, and packing materials that were manufactured and sold by others. This opinion, therefore, does not address any liability of the Equipment Defendants for Mr. Coffman's exposure to asbestos-containing products that were included with the Equipment Defendants’ products at the time of sale.
II. ANALYSIS
A. Standard of Review
This appeal originates from the trial court's grant of a motion for summary judgment and the Court of Appeals’ partial reversal of the trial court's order. We review the grant of a motion for summary judgment de novo with no presumption of correctness. Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). Under Rule 56.04 of the Tennessee Rules of Civil Procedure, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Tenn. R. Civ. P. 56.04. On appeal, we must determine whether the moving party satisfied its burden of production "(1) by affirmatively negating an essential element of the nonmoving party's claim or (2) by demonstrating that the nonmoving party's evidence at the summary judgment stage is insufficient to establish the nonmoving party's claim or defense." Rye v. Women's Care Ctr. of Memphis, MPLLC , 477 S.W.3d 235, 264 (Tenn. 2015).
More specifically, the issue presented for review concerns statutory construction, which presents a question of law, and we likewise review such questions de novo with no presumption of correctness. State v. Dycus , 456 S.W.3d 918, 924 (Tenn. 2015) (citing State v. Springer , 406 S.W.3d 526, 532-33 (Tenn. 2013) ; State v. Marshall , 319 S.W.3d 558, 561 (Tenn. 2010) ; State v. Wilson , 132 S.W.3d 340, 341 (Tenn. 2004) ); Carter v. Bell , 279 S.W.3d 560, 564 (Tenn. 2009). When engaging in statutory interpretation, "well-defined precepts" apply. State v. Frazier , 558 S.W.3d 145, 152 (Tenn. 2018) (quoting Tenn. Dep't of Corr. v. Pressley , 528 S.W.3d 506, 512 (Tenn. 2017) ); State v. Howard , 504 S.W.3d 260, 269 (Tenn. 2016) ; State v. McNack , 356 S.W.3d 906, 908 (Tenn. 2011). "The most basic principle of statutory construction is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope." Howard , 504 S.W.3d at 269 (quoting Owens v. State , 908 S.W.2d 923, 926 (Tenn. 1995) ); Carter , 279 S.W.3d at 564 (citing State v. Sherman , 266 S.W.3d 395, 401 (Tenn. 2008) ). In construing statutes, Tennessee law provides that courts are to avoid a construction that leads to absurd results. Tennessean v. Metro. Gov't of Nashville , 485 S.W.3d 857, 872 (Tenn. 2016) (citing Lee Med., Inc. v. Beecher , 312 S.W.3d 515, 527 (Tenn. 2010) ). "Furthermore, the ‘common law is not displaced by a legislative enactment, except to the extent required by the statute itself.’ " Wlodarz v. State , 361 S.W.3d 490, 496 (Tenn. 2012) (quoting Houghton v. Aramark Educ. Res., Inc. , 90 S.W.3d 676, 679 (Tenn. 2002) ), abrogated on other grounds by, Frazier v. State , 495 S.W.3d 246 (Tenn. 2016).
"When statutory language is clear and unambiguous, we must apply its plain meaning in its normal and accepted use, without a forced interpretation that would extend the meaning of the language...." Carter , 279 S.W.3d at 564 ; Eastman Chem. Co. v. Johnson , 151 S.W.3d 503, 507 (Tenn. 2004). A statute is ambiguous when "the parties derive different interpretations from the statutory language." Howard , 504 S.W.3d at 270 (quoting Owens , 908 S.W.2d at 926 ).
However, this proposition does not mean that an ambiguity exists merely because the parties proffer different interpretations of a statute. A party cannot create an ambiguity by presenting a nonsensical or clearly erroneous interpretation of a statute. In other words, both interpretations must be reasonable in order for an ambiguity to exist.
Frazier , 558 S.W.3d at 152 (internal quotation marks omitted) (quoting Powers v. State , 343 S.W.3d 36, 50 n.20 (Tenn. 2011) ).
If a statute is ambiguous, the Court " ‘may reference the broader statutory scheme, the history of the legislation, or other sources’ to determine the statute's meaning." Id. (quoting Sherman , 266 S.W.3d at 401 ). The Court must "endeavor to resolve any possible conflict between statutes to provide for a harmonious operation of the laws." Id. at 153 (citing Lovlace v. Copley , 418 S.W.3d 1, 20 (Tenn. 2013) ). "[W]here a conflict is presented between two statutes, a more specific statutory provision takes precedence over a more general provision." Id. (quoting Graham v. Caples , 325 S.W.3d 578, 582 (Tenn. 2010) ); Arnwine v. Union Cnty. Bd. of Educ. , 120 S.W.3d 804, 809 (Tenn. 2003). Moreover, "[w]hen one statute contains a given provision, the omission of the same provision from a similar statute is significant to show that a different intention existed." Frazier , 558 S.W.3d at 153 (quoting State v. Lewis , 958 S.W.2d 736, 739 (Tenn. 1997) ).
B. Tennessee Products Liability Act
We granted this appeal to address whether "the Equipment Defendants had a duty to warn of the dangers associated with the post-sale integration of asbestos-containing materials manufactured and sold by others." Whether there is a duty to warn of the dangers associated with the post-sale integration of asbestos-containing parts that are manufactured and sold by others is an issue of first impression in Tennessee. The products at issue did not contain asbestos when they left the Equipment Defendants’ control, but rather an end user integrated or used asbestos-containing materials with the Equipment Defendants’ products after their final sale.
The answer to whether the Equipment Defendants had a duty to warn as alleged is found in the plain language of the Tennessee Products Liability Act. In 1978, the Tennessee Legislature enacted the TPLA, which provides an extensive statutory framework for all claims arising from injuries alleged to have been caused by products. See Tenn. Code Ann. § 29-28-102(6) (2012). Through its enactment, the TPLA superseded common law claims for personal injuries stemming from alleged defects in products or failures to warn of the dangers associated with a product. Moreover, the TPLA speaks to the issue of a duty to warn and specifically provides that a failure to discharge a duty to warn, whether negligent or innocent, falls within the scope of the TPLA:
"Product liability action" for purposes of this chapter includes all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging or labeling of any product. "Product liability action" includes, but is not limited to, all actions based upon the following theories: strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation, concealment, or nondisclosure, whether negligent or innocent; or under any other substantive legal theory in tort or contract whatsoever[.]
Tenn. Code Ann. § 29-28-102(6). Therefore, in cases in which a failure to warn is at issue, the language of the TPLA determines whether manufacturers can be liable for failing to warn of dangers associated with products they did not themselves make or sell.
Appellees alleged injuries to Mr. Coffman as a result of work-related exposure to asbestos. However, none of the Equipment Defendants’ products at issue contained asbestos when they were under the Equipment Defendants’ control. The Equipment Defendants assert that they cannot be held liable for end-products containing asbestos that they themselves did not manufacture or sell. We agree that the best reading of the TPLA does not create a duty or liability for defendants for the post-sale incorporation of products containing asbestos because these products were incorporated into that equipment after it left their control. This Court has stated that "[t]he key operative provision of the Act is [Tennessee Code Annotated Section] 29-28-105(a)." Whitehead v. Toyota Motor Corp. , 897 S.W.2d 684, 689 (Tenn. 1995). The TPLA specifically provides that a defendant shall not be liable under the TPLA unless the product is defective or unreasonably dangerous at the time it left the defendant's control, stating that "[a] manufacturer or seller of a product shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller. " Tenn. Code Ann. § 29-28-105(a) (2012) (emphasis added). "In order to prevail in a products liability action, a plaintiff must prove that the product in question was either defective or unreasonably dangerous, as those concepts are defined in the Act, at the time it left the control of the manufacturer or seller. " Whaley v. Rheem Mfg. Co. , 900 S.W.2d 296, 299 (Tenn. Ct. App. 1995) (emphasis added).
"[T]he Tennessee Products Liability Act of 1978 ... substantially codifies § 402A Restatement (Second) of Torts...." Shropshire v. Am. Tobacco Co. Div. of Am. Brands, Inc. , No. C.A. 1143, 1988 WL 41018, at *1 (Tenn. Ct. App. Apr. 29, 1988) (footnote omitted), perm. app. denied , (Tenn. July 25,1988). "The Tennessee statute uses the language ‘defective condition or unreasonably dangerous,’ whereas the Restatement uses ‘defective condition unreasonably dangerous.’ " Shropshire , 1988 WL 41018, at *1 n.2.
Tennessee case law further supports a conclusion that a manufacturer's duty to a consumer is measured at the time the product leaves its control. In Goode v. Tamko Asphalt Products, Inc., 783 S.W.2d 184, 187 (Tenn. 1989), this Court held that there is no duty to warn if a product is not defective or unreasonably dangerous at the time it left the defendant's control:
There is no disagreement with the proposition that this case is controlled by the Tennessee Products Liability Act of 1978. Plaintiff's theory of recovery in this case is that defendants were guilty of a negligent breach of duty to warn of the non-apparent danger associated with the use of their roofing products. A failure to discharge a duty to warn, whether negligent or innocent, is expressly included in the definition of a products liability action in [Tennessee Code Annotated Section] 29–28–102(6). [Tennessee Code Annotated Section] 29–28–105(a) provides that to impose liability on a manufacturer it must be shown that the product was in a defective condition, or an unreasonably dangerous condition, at the time it left the manufacturer's control. In this case there is no contention that the products were in a defective condition. Thus, the issue is whether the defendant's roofing products were in an unreasonably dangerous condition at the time the products left the control of each manufacturer. It follows that if the products were unreasonably dangerous, defendants had a duty to put an appropriate warning on the labels, but if the products were not unreasonably dangerous, the law imposes no duty to warn.
(Emphasis added); see also Whaley , 900 S.W.2d at 299 ("In order to prevail in a products liability action, a plaintiff must prove that the product in question was either defective or unreasonably dangerous, as those concepts are defined in the Act, at the time it left the control of the manufacturer or seller."). Therefore, we hold that the language of the TPLA and accompanying case law places a duty to warn on a manufacturer or seller to warn about the condition of the product only if it was defective or unreasonably dangerous at the time the manufacturer transfers control of the product.
Appellees assert that the Equipment Defendants ignore certain language within the TPLA, including that a product is in a "defective condition" under the TPLA when it is in a condition that "renders it unsafe for normal or anticipatable handling and consumption." Tenn. Code Ann. § 29-28-102(2). Appellees argue that the Equipment Defendants’ products were in a defective condition at the time they left the Equipment Defendants’ control because they were designed to use asbestos-containing materials and provided no warnings as to the dangers of asbestos. According to Appellees, the Court of Appeals’ opinion is actually consistent with the TPLA because the definition of "defective condition" includes "anticipatable handling." Both "defective condition" and "unreasonably dangerous" are defined terms within the TPLA. The TPLA defines "defective condition" as "a condition of a product that renders it unsafe for normal or anticipatable handling and consumption." Tenn. Code Ann. § 29-28-102(2). "Unreasonably dangerous" applies to a product that is:
dangerous 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, or that the product because of its dangerous condition would not be put on the market by a reasonably prudent manufacturer or seller, assuming that the manufacturer or seller knew of its dangerous condition.
Tenn. Code Ann. § 29-28-102(8). Contrary to Appellees assertion, these provisions still link a defendant's liability to the defendant's own product, not the product of another manufacturer. The very definition of "defective condition" states that the product's condition "renders it unsafe for normal or anticipatable handling and consumption." Tenn. Code Ann. § 29-28-102(2) (emphasis added). The "it " refers to the manufacturer's own product. In this case, the "it " is the Equipment Defendants’ original product, not the Equipment Defendants’ product plus some later-included asbestos-containing material.
Appellees further point to the language of the TPLA that states "[i]f a product is not unreasonably dangerous at the time it leaves the control of the manufacturer or seller but was made unreasonably dangerous by subsequent unforeseeable alteration, change, improper maintenance or abnormal use, the manufacturer or seller is not liable." Tenn. Code Ann. § 29-28-108 (emphasis added). Based on this provision, Appellees assert that the language of the TPLA anticipates that manufacturers are liable for the foreseeable alterations, changes, improper maintenance, or abnormal use of their products. As it relates to the case at hand, Appellees assert that the Equipment Defendants were not only able to foresee the dangers, but they actually intended and specified that asbestos material be used with their products.
We decline to read Section 29-28-108 in a vacuum as Appellees suggest. " ‘In interpreting statutes, ... we are required to construe them as a whole, read them in conjunction with their surrounding parts, and view them consistently with the legislative purpose.’ " Lind v. Beaman Dodge, Inc. , 356 S.W.3d 889, 897 (Tenn. 2011) (quoting State v. Turner , 913 S.W.2d 158, 160 (Tenn. 1995) ). When viewing the TPLA as a whole, we find it dispositive that the end-products at issue on this appeal were neither made nor sold by the Equipment Defendants. Again, this appeal deals strictly with the Equipment Defendants in situations where there was post-sale integration of asbestos-containing parts manufactured and sold by others. Several provisions of the TPLA state that a manufacturer or seller's duty to warn is limited to products actually made or sold by that defendant. For example: "Any action against a manufacturer or seller of a produc t for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the [statutory time] period...." Tenn. Code Ann. § 29-28-103(a) (2012) (emphasis added); "Compliance by a manufacturer or seller with any ... regulation existing at the time a product was manufactured and prescribing standards for design, inspection, testing, manufacture, labeling, warning or instructions for use of a product, shall raise a rebuttable presumption that the product is not in an unreasonably dangerous condition ...." Tenn. Code Ann. § 29-28-104(a) (2012) (emphasis added); "No product liability action ... shall be commenced or maintained against any seller, other than the manufacturer , unless: (1) The seller exercised substantial control over that aspect ... of the product that caused the alleged harm ; ... (4) The manufacturer or distributor of the product or part in question is not subject to service of process...." Tenn. Code Ann. § 29-28-106 (2012) (emphasis added); "If a product is not unreasonably dangerous at the time it leaves the control of the manufacturer or seller but was made unreasonably dangerous by subsequent unforeseeable alteration ... the manufacturer or seller is not liable." Tenn. Code Ann. § 29-28-108 (2012) (emphasis added).
The interpretation used by the Court of Appeals and proposed by the Appellees is inconsistent with the language of the TPLA and this Court's holding in Goode . The Court of Appeals in this case acknowledged our holding in Goode , but stated that reliance on this authority "slightly mischaracterizes the issue." Coffman v. Armstrong Int'l, Inc. , No. E2017-01985-COA-R3-CV, 2019 WL 3287067, *18 (Tenn. Ct. App. July 22, 2019), perm. app. granted , (Tenn. Feb. 20, 2020). Rather, the Court of Appeals relied on the balancing test formulated in Satterfield v. Breeding Insulation Co. , 266 S.W.3d 347 (Tenn. 2008), and determined that "[b]ecause foreseeability of harm is central to the Satterfield duty analysis" the construction of the TPLA proposed by the Equipment Defendants (i.e., that they are not liable for products they did not make or sell regardless of the foreseeability of post-sale integration of asbestos-containing parts) is "clearly inconsistent with Tennessee law." See id. at *19. The intermediate court then went on to apply the Satterfield analysis to the facts of this case. Id. at *19-20. At the conclusion of its analysis, the Court of Appeals determined:
In our view, the degree of foreseeable harm and the gravity of potential harm outweighed the burden that the equipment defendants would have suffered by warning about the post-sale integration of asbestos-containing insulation, flange gaskets, internal replacement gaskets, and replacement packing. Accordingly, the equipment defendants did have a duty to warn about the dangers associated with those later-added products. The trial court erred by granting summary judgment to the equipment defendants on the ground that they negated their alleged duty to warn.
The Court of Appeals also explained that because the Appellees sued the manufacturers of the "final, integrated products," the "component parts doctrine" articulated by this Court in Davis v. Komatsu America Industries Corp. , 42 S.W.3d 34 (Tenn. 2001), is inapplicable. Coffman, 2019 WL 3287067, at *16-17. We agree.
Appellees also assert that the Court of Appeals decision is consistent with the U.S. Supreme Court's decision in Air & Liquid Systems Corp. v. DeVries, ––– U.S. ––––, 139 S. Ct. 986, 203 L.Ed.2d 373 (2019). That case was discussed in some detail by the Court of Appeals. Coffman, 2019 WL 3287067, at *13-15. The DeVries case, however, is in no way determinative of the outcome in this case because we are bound by the specific language of the TPLA. The U.S. Supreme Court had no legislative enactment to apply regarding its duty analysis, and the majority of the Court, therefore, crafted its own test. By contrast, the TPLA supplies the test we must apply. Furthermore, the U.S. Supreme Court explicitly relied on the fact that the case arose from facts within the maritime context, noting "[m]aritime law's longstanding solicitude for sailors," DeVries, 139 S. Ct. at 995, which of course does not apply to the facts of this case. We reiterate that the language of the TPLA dictates our decision here, and we do not opine on what we perceive to be the optimal outcome of this case in terms of public policy. That determination is for the legislature. See McClay v. Airport Mgmt. Servs., LLC , 596 S.W.3d 686, 690 (Tenn. 2020). The dissent implies that we have interpreted the statutory language at issue to adopt the "bare-metal" approach described by the United States Supreme Court in DeVries. The DeVries case, however, relates to federal maritime tort common law and has nothing to do with the issue before us, the interpretation of the TPLA. As a result, the DeVries case has no bearing on our decision here. Our Legislature has set forth a statute by which we must abide. We determine that the resolution of this case should be based on the language of the TPLA, which is consistent with our holding in Goode . The inquiry by the Court of Appeals into whether a common law duty exists was, therefore, in error. It is within the purview of the legislature to change common law and to set public policy, and the judiciary is bound by the constitutional acts of the Legislature. See McClay , 596 S.W.3d at 690 ; Mills v. Wong , 155 S.W.3d 916, 923 (Tenn. 2005) ("The Tennessee General Assembly itself has the power to weigh and balance competing public and private interests in order to place reasonable limitations on rights of action in tort which it also has the power to create or abolish."). The Satterfield analysis is inapplicable to the particular question presented in this case because, as this Court explained in Satterfield , the foreseeability test it articulated does not apply if "prior court decisions and statutes have already established the doctrines and rules governing a defendant's conduct." See Satterfield , 266 S.W.3d at 365. We hold that, under the TPLA, manufacturers have no duty to warn with respect to products manufactured and sold by others.
Relying on DeVries to support its analysis, the dissent in this case asserts that the United States Supreme Court "never states that its decision depends on [the] distinction" of maritime law and its "longstanding solicitude for sailors." We, however, read the holding in DeVries to be substantially based on the fact that the case arose in the maritime tort context. See DeVries, 139 S. Ct. at 993-96 (stating that the "third approach is most appropriate for this maritime tort context ," "we conclude as follows: [i ]n the maritime tort context ," and, "[t]he maritime tort rule we adopt today. " (emphasis added)).
Both Appellees and the Equipment Defendants assert that the majority of jurisdictions dealing with this issue support their respective positions. According to Appellees, "[c]ourts in a clear majority of other jurisdictions have held that a manufacturer may be liable even if it did not manufacture, install, or supply the asbestos material used in, on, or adjacent to its product." In support of this assertion, Appellees set forth examples of other state and federal court decisions, most of which are from lower courts. See, e.g. , Berkowitz v. A.C. & S., Inc. , 288 A.D.2d 148, 733 N.Y.S.2d 410, 411 (2001) (holding that a genuine issue of material fact existed as to whether a manufacturer had a duty to warn of the dangers of asbestos that it neither manufactured or installed); Sweredoski v. Alfa Laval, Inc. , No. PC-2011-1544, 2013 WL 5778533 (R.I. Super. Ct. Oct. 21, 2013) (stating that "a defendant cannot categorically avoid liability for a plaintiff's injuries for the sole reason that those injuries were directly caused by exposure to a third party's replacement parts"). The problem is that none of the cases cited by Appellees interpret the language of the TPLA, and Appellees fail to adequately address how these decisions square with the language of our statute. However, there are states, such as Georgia, that have similar statutes to the TPLA and have construed their statutes consistently with our holding in this case. See, e.g., Davis v. John Crane, Inc. , 353 Ga.App. 243, 836 S.E.2d 577, 583-84 (2019) (interpreting the Georgia product liability act and refusing to impose on a manufacturer a duty to warn for products manufactured by others).
III. CONCLUSION
In sum, we hold that, under the language of the TPLA, the Equipment Defendants cannot be held liable for injuries resulting from products they did not make, distribute, or sell. The judgment of the Court of Appeals is reversed in part. We remand to the trial court for proceedings consistent with this opinion. The costs of this appeal are taxed to the Appellees, for which execution may issue if necessary.
Sharon G. Lee, J. filed a separate dissenting opinion.
Sharon G. Lee, J., dissenting.
In late 2014 Carolyn Coffman's husband, Donald Coffman, was diagnosed with lethal malignant pleural mesothelioma, a virulent cancer of the thin membrane that lines the lungs and chest, caused by exposure to asbestos fibers. He died three months later. Mr. Coffman had been exposed to asbestos while working as a mechanic at the Tennessee Eastman Chemical plant in Kingsport. The Defendants, who manufactured the valves, gaskets, and other items that Mr. Coffman worked around, did not warn him that asbestos products had been added to the Defendants’ manufactured products after being sold. The Defendants also did not warn Mr. Coffman that exposure to these asbestos-containing products could cause him to develop mesothelioma. Based on the evidence Mrs. Coffman submitted on summary judgment, the Defendants knew or should have known that asbestos-containing products would have to be added to their equipment after the sale to make the equipment usable, yet the Defendants did not warn Mr. Coffman of the danger. Thus, the question before the Court is whether the Defendants had a duty to warn that the products they manufactured and sold were unreasonably dangerous when the Defendants knew or should have known that their products required post-sale integration of an asbestos-containing component to work properly.
We heard oral argument through videoconference under this Court's emergency orders restricting court proceedings because of the COVID-19 pandemic.
This is an issue of first impression in Tennessee. The majority adopts a no-duty-to-warn rule, holding that the manufacturers had no duty to warn of dangers from exposure to asbestos-containing products added post-sale by someone other than the manufacturers. This holding undercuts the duty to warn in Tennessee products liability law, because even if a manufacturer knows that its product will have to undergo some future change or replacement, and knows the change or replacement will likely make the product unreasonably dangerous, the manufacturer has no duty to warn. A better interpretation of the language of the Tennessee Products Liability Act, Tennessee Code Annotated sections 29-28-101 to 108 (2012) ("the Act"), is that a manufacturer of a product has a duty to warn when the manufacturer (1) knows or should know that its product requires aftermarket integration with another product, such as a replaceable component part, to function properly; and (2) knows or should know that this aftermarket integration will likely render the final integrated product unreasonably dangerous.
Courts have referred to this rule as the "bare-metal defense," in that the defendant denies liability because the product it made or sold contained no asbestos; i.e. , the product had nothing more than bare metal. See, e.g. , Air & Liquid Sys. Corp. v. DeVries , ––– U.S. ––––, 139 S. Ct. 986, 991–93, 203 L.Ed.2d 373 (2019) ; see also Bell v. Foster Wheeler Energy Corp. , No. 15-6394, 2016 WL 5780104, at *2 n.7 (E.D. La. Oct. 4, 2016) (suggesting "that a better name for the argument might be the ‘not my asbestos defense’ ").
This standard also applies to a seller of a product.
The Defendants admit that they could be liable for Mr. Coffman's death if he was exposed to asbestos-containing products that they made or sold. See Coffman v. Armstrong Int'l, Inc. , No. E2017-01985-COA-R3-CV, 2019 WL 3287067, at *12 (Tenn. Ct. App. July 22, 2019), perm. app. granted , (Tenn. Feb. 20, 2020). Yet, the Defendants take no responsibility for any asbestos-containing products that they knew or should have known would have to be added to their equipment to make it work properly.
Under Tennessee law, "a manufacturer may be held strictly liable for failing to warn consumers of the dangers of a particular product at the time of sale." Nye v. Bayer Cropscience, Inc. , 347 S.W.3d 686, 693 (Tenn. 2011) (quoting Flax v. DaimlerChrysler Corp. , 272 S.W.3d 521, 541 (Tenn. 2008) ). These claims center on particularized and highly fact-bound inquiries. We view both "the unreasonable dangerousness of a product" and "a lack of warnings about a dangerous product that can serve as a basis for a manufacturer's liability" as "usually jury questions." Harwell v. Am. Med. Sys., Inc. , 803 F. Supp. 1287, 1297 (M.D. Tenn. 1992) (applying Tennessee law). "It is ordinarily a question for the trier of fact whether the product is in a defective condition unreasonably dangerous to the user," which in turn depends in part on "the presence or absence of a statement accompanying the product which in some way informs the user of the danger." Id. (quoting Young v. Reliance Elec. Co. , 584 S.W.2d 663, 668 (Tenn. Ct. App. 1979) ). The Defendants argue a jury need not hear this case because the unreasonably dangerous products simply were not theirs , and so the Defendants had no duty to warn about them.
See also Tenn. Code Ann. § 29-28-102(6) (2012) (recognizing "actions based upon ... breach of or failure to discharge a duty to warn or instruct, whether negligent, or innocent" as "[p]roduct liability action[s]").
To decide whether the Defendants had a duty to warn, we turn to the text of the Act. Our proper "role ... is to assign a statute the full effect of the legislative intent without restricting or expanding the intended scope of the statute." State v. Gibson , 506 S.W.3d 450, 455 (Tenn. 2016). We begin with section -105(a):
A manufacturer or seller of a product shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.
Tenn. Code Ann. § 29-28-105(a) (2012) (emphasis added).
Placing a duty to warn on the Defendants follows from section -105(a). When a manufacturer knows or should know that its product requires an aftermarket integration, and the manufacturer knows or should know that the integrated product will be unreasonably dangerous, but fails to warn of the danger, that knowledge makes all the difference. Because of that knowledge (or, when the manufacturer should know, which is foreseeability), the failure to warn occurs while the product is still within the manufacturer's control. And it is because of the manufacturer's failure to warn that the product is unreasonably dangerous. In other words, for a failure to warn claim under the Act, what matters is a manufacturer's knowledge about the likely dangers once the product passes out of its hands—not whether someone else happens to bring the known danger about. The emphasized text in section -105(a) reflects a core legal principle—fusing together sellers’ and manufacturers’ liability for a product with their causal responsibility for its condition. See Restatement (Second) of Torts § 402A (Am. L. Inst. 1965) (2020 Update). But that is not the end of the analysis.
We have to also consider other relevant provisions of the Act: section -105(d) and section -108. Under section -105(d), "[a] product is not unreasonably dangerous because of a failure to adequately warn of a danger or hazard that is apparent to the ordinary user." Tenn. Code Ann. § 29-28-105(d) (emphasis added). Thus, it follows that a product is unreasonably dangerous because of a failure to adequately warn of a danger or hazard that is not apparent to the ordinary user. See, e.g. , Nye , 347 S.W.3d at 693 (recognizing a claim for failure to warn of known risks of workplace asbestos exposure). What makes a product unreasonably dangerous, in at least some circumstances, is the failure to warn of a danger or defect that is not apparent at the time of sale but that the manufacturer knows (or has reason to know) is likely to come about.
Comment j of section 402A of the Second Restatement of Torts, which serves as the conceptual foundation of the Act, states that "[i]n order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use." Restatement (Second) of Torts § 402A cmt. j (Am. L. Inst. 1965).
Mrs. Coffman argues that the Defendants knew that their products required aftermarket integration with replaceable asbestos-containing components. The Defendants did not warn about the asbestos-containing components even though the Defendants knew that end users of their product would, by design and intent, be exposed to asbestos. This failure to warn of a dangerous product itself constitutes an unreasonable danger and corresponds with a freestanding theory of liability. See, e.g. , Nye , 347 S.W.3d at 693 (noting the failure to warn as a distinct theory of products liability).
Under Tennessee law, the duty to warn does not collapse into the unreasonably dangerous standard. As noted above, whether a product is unreasonably dangerous and the distinct question of whether the defendant has failed to warn of a danger depend on fact-bound and particularized findings and are best left to a jury. See Harwell , 803 F. Supp. at 1297 (interpreting Tennessee law). This conclusion fits the Act's definition of "unreasonably dangerous," which either "means that a product is dangerous 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," or that a reasonably prudent seller with full knowledge of the product's condition would not put it on the market. Tenn. Code Ann. § 29-28-102(8). The first prong, known as the consumer expectation test, draws heavily on the sort of community norms that inform a jury verdict.
Next, we need to consider and apply section -108:
If a product is not unreasonably dangerous at the time it leaves the control of the manufacturer or seller but was made unreasonably dangerous by subsequent unforeseeable alteration, change, improper maintenance or abnormal use , the manufacturer or seller is not liable.
Tenn. Code Ann. § 29-28-108 (2012) (emphasis added).
Two related canons of construction provide guidance here. First, "a special provision of a particular statute[ ] will prevail over ... a general provision in the same statute." Keough v. State , 356 S.W.3d 366, 371 (Tenn. 2011). Second, we "construe a statute so that no part will be inoperative, superfluous, void, or insignificant," giving full effect to legislative intent. Young v. Frist Cardiology, PLLC , 599 S.W.3d 568, 571 (Tenn. 2020) (quoting City of Caryville v. Campbell Cnty. , 660 S.W.2d 510, 512 (Tenn. Ct. App. 1983) ). These two canons reinforce one another in a way that this case illustrates. Here, the general provision is section -105(a), which lays out the broad standards for liability—when a product is in a defective condition or unreasonably dangerous. By contrast, section -108 provides for the specific instance of a safe product being altered after having left the manufacturer's control. The key language in section -108 is the text emphasized in the block quotation above: that a defendant is not liable when the product "was made unreasonably dangerous by subsequent unforeseeable alteration." Tenn. Code Ann. § 29-28-108 (emphasis added).
Compare Justice Scalia's unanimous opinion in RadLAX Gateway Hotel, LLC v. Amalgamated Bank , 566 U.S. 639, 645, 132 S.Ct. 2065, 182 L.Ed.2d 967 (2012), observing that "[t]he general/specific canon" can often reconcile contradictory provisions, where "the specific provision is construed as an exception to the general one." Giving priority to the specific provision over the general will also rescue its meaning from being negated as superfluous or irrelevant:
[T]he canon has full application as well to statutes [where] a general authorization and a more limited, specific authorization exist side-by-side. There the canon avoids not contradiction but the superfluity of a specific provision that is swallowed by the general one, "violat[ing] the cardinal rule that, if possible, effect shall be given to every clause and part of a statute."
Id. (alteration in original) (quoting D. Ginsberg & Sons, Inc. v. Popkin , 285 U.S. 204, 208, 52 S.Ct. 322, 76 L.Ed. 704 (1932) ).
Limiting a manufacturer's liability to only apparent or extant defects in the product when it leaves the manufacturer's hands makes the key language in section -108 superfluous. We cannot ignore the phrase "subsequent unforeseeable alteration," which can only mean that a manufacturer will sometimes be liable for later alterations that are foreseeable. The common law of Tennessee and other jurisdictions can help us fill that gap.
This Court made the same interpretive inference about section -108 in Davis v. Komatsu American Industries Corp. , 42 S.W.3d 34 (Tenn. 2001). Answering a question certified by a federal court, we determined "that Tennessee law does support imposition of liability when a component manufacturer substantially participates in the integration of the non-defective component into the design of the final product, if the integration of the component causes the final product to be defective and if the resulting defect causes the harm." Id. at 42. Our reasoning depended in part on this "obvious converse implication of [Tennessee Code Annotated section -]108," id. at 43 :
[I]f a manufacturer is not liable for injuries when its non-defective, safe product is "made unreasonably dangerous by subsequent unforeseeable alteration, change, improper maintenance or abnormal use," as Section [-]108 provides, it is logical to conclude that liability is appropriate when a component manufacturer substantially participates in integrating its non-defective, safe component into the design of a final product, the integration causes the final product to be
defective, and the resulting defect causes the harm.
Id. (footnote omitted). A similar inference applies in this case. At times, a manufacturer who is appropriately responsible for an aftermarket integration will also be liable for the harm it causes.
As the majority correctly notes, Davis involved a component part manufacturer, while the Defendants were the manufacturers of the base product. But, respectfully, this is a distinction without a difference. If section -108 immunizes a manufacturer specifically when an alteration is unforeseeable , it stands to reason that both the participating component manufacturer and the knowing base-product manufacturer should be liable when the alteration is foreseeable. So long as the base-product manufacturer knows that the aftermarket integration is required for the product to properly function and that the integrated product will be either defective or unreasonably dangerous, the same converse implication of section -108 applies to both. See id.
The majority relies on Goode v. Tamko Asphalt Products, Inc. , 783 S.W.2d 184 (Tenn. 1989). In Goode , this Court upheld a directed verdict for the defendant manufacturer because reasonable minds would agree that the plaintiff's evidence could not establish that the product was unreasonably dangerous. Id. at 187. In particular, the testimony of one of the plaintiff's expert witnesses established that the plaintiff "presented the only case in medical history, insofar as this record reveals, of a human being sustaining any skin problem or ill health of any nature from the use of asphalt roofing products," id. , and "the articles and data upon which [plaintiff's only other expert] relied are totally lacking in trustworthiness and without any indicia of reliability, as presented in this record." Id. at 188. That sort of record is a far cry from Mrs. Coffman's case, whose credible facts correspond with hundreds of other cases that plaintiffs have successfully litigated throughout the nation.
The majority quotes the following sentence from Goode , supplying the emphasis: "Thus, the issue is whether defendant's roofing products were in an unreasonably dangerous condition at the time the products left the control of each manufacturer. " Id. at 187. But a full reading of Goode suggests that it is the first part of that sentence that decides the case. Nothing in the Goode court's reasoning to support its decision in favor of one party instead of the other—the opinion's holding and precedential legal force —depends on whether the product was in an unreasonably dangerous condition at any particular time. Instead, the operative question is whether the product was unreasonably dangerous at all. By contrast, Mrs. Coffman's claims present genuine issues of material fact that are best left for a jury to decide.
For one gloss of the distinction between dictum and holding, see Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta , 81 N.Y.U. L. Rev. 1249, 1256 (2006). Judge Leval writes:
If the court's judgment and the reasoning which supports it would remain unchanged, regardless of the proposition in question, that proposition plays no role in explaining why the judgment goes for the winner. It is superfluous to the decision and is dictum. The dictum consists essentially of a comment on how the court would decide some other, different case, and has no effect on its decision of the case before it.
Simply declaring Goode to have depended on the timing question is no cure. "A judge[ ] ... cannot transmute dictum into decision by waving a wand and uttering the word ‘hold.’ " United States v. Rubin , 609 F.2d 51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring).
Admittedly, the majority's no-duty-to-warn rule provides clarity and predictability. But we should be cautious of erecting absolute rules to bar products liability claims, which in their arc over the past century have slipped the formalistic bonds of privity of contract to ensure substantive justice. See MacPherson v. Buick Motor Co. , 217 N.Y. 382, 111 N.E. 1050, 1053 (1916) ("We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law."); Howell v. Betts , 211 Tenn. 134, 362 S.W.2d 924, 925 (1962) (citing Burkett v. Studebaker Bros. Mfg. Co. , 126 Tenn. 467, 150 S.W. 421 (1912) ) ("It is true the old rule was that there was no duty of care upon a defendant to a plaintiff not in privity. But it can hardly be said that such a general rule any longer exists."); Restatement (Second) of Torts § 402A (Am. L. Inst. 1965).
The Defendants are concerned that requiring them to warn about foreseeable alterations that cause their products to become unreasonably dangerous will lead to "near limitless liability." This concern is unfounded. A manufacturer will not be liable for failing to warn of any alteration that makes a product unreasonably dangerous. Rather, a manufacturer will be responsible only for alterations that make a product unreasonably dangerous (i.e. , the addition of cancer-causing asbestos) that are foreseeable because the manufacturer knows or should know that the alterations are required to make the product function properly. A rule based on foreseeability is not open-ended. This Court recognized the importance and limits of foreseeability in Satterfield v. Breeding Insulation Co. , 266 S.W.3d 347, 366 (Tenn. 2008), noting that although foreseeability "is so important" that establishing it is necessary to establish a duty, "[c]onversely, foreseeability alone is insufficient to create a duty." The Supreme Court of the United States has recognized the same. In Air & Liquid Systems Corp. v. DeVries , ––– U.S. ––––, 139 S. Ct. 986, 203 L.Ed.2d 373 (2019), the Court adopted a "third approach fall[ing] between" limitless foreseeability and a rigid rule:
Under the third approach, foreseeability that the product may be used with another product or part that is likely to be dangerous is not enough to trigger a duty to warn. But a manufacturer does have a duty to warn when its product requires incorporation of a part and the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses. Under that approach, the manufacturer may be liable even when the manufacturer does not itself incorporate the required part into the product.
Id. at 993–94. The collective wisdom of the common law serves to guide us here, through the accreted experience of how other courts have decided similar questions. There are indeed principled limits to liability that still require defendants to be responsible for their conduct when in a position to prevent unreasonable danger to injured individuals.
The United States Supreme Court frames its case for the rule in DeVries as the moderate position navigating between two extremes that have percolated in the federal circuits interpreting maritime law: the plaintiff-friendly "foreseeability" approach and the defendant-friendly "bare-metal" rule, which is substantively similar to the no-duty-to-warn rule adopted by the majority today. Additionally, the DeVries Court grounds its middle-of-the-road approach as an application of the core principle that animates much of the doctrine of strict products liability: Judge Calabresi's notion that the party to best hold liable for an accident is the party in the position to avoid the accident most cheaply. As the Court observes, a "product manufacturer knows the nature of the ultimate integrated product and is typically more aware of the risks associated with that integrated product." DeVries , 139 S. Ct. at 994. In cases like the one at hand, end users like Mr. Coffman would interact more often with the base-level equipment like the steam traps and valves than with replaceable parts containing asbestos, whose warnings a user might see once or not at all. The Supreme Court also wisely notes that the duty to warn is a fairly inexpensive duty to fulfill (as far as defendants’ duties in tort go), even more so in that the marginal cost of an additional warning is slight. Id. at 994–95.
In particular, the DeVries Court affirms the approach in Quirin v. Lorillard Tobacco Co. , 17 F. Supp. 3d 760, 769–70 (N.D. Ill. 2014) ; In re New York City Asbestos Litigation , 27 N.Y.3d 765, 37 N.Y.S.3d 723, 59 N.E.3d 458, 474 (2016) ; and May v. Air & Liquid Systems Corp. , 446 Md. 1, 129 A.3d 984, 1000 (2015). Many cases that the Defendants invoke in support of the bare-metal rule depend on maritime law and were abrogated by DeVries . These include: Cabasug v. Crane Co. , 989 F. Supp. 2d 1027 (D. Haw. 2013) ; Lindstrom v. A-C Prods. Liability Trust , 424 F.3d 488 (6th Cir. 2005) ; Conner v. Alfa Laval, Inc. , 842 F. Supp. 2d 791 (E.D. Pa. 2012) ; and Evans v. CBS Corp. , 230 F. Supp. 3d 397 (D. Del. 2017).
"A pure market approach to primary accident cost avoidance would require allocation of accident costs to those acts or activities (or combinations of them) which could avoid the accident costs most cheaply." Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 135 (1970). Placing liability on the least-costly avoider is economically efficient because it causes the parties to a transaction to fully internalize the costs of their choices while using the fewest resources possible.
The majority dismisses DeVries , first, because its reasoning rests on "[m]aritime law's longstanding solicitude for sailors." Id. at 995. But the DeVries opinion never states that its decision depends on this distinction—only that this principle makes its rule "especially appropriate" in admiralty. Id. And in both the DeVries case and this case, deciding in favor of the plaintiffs is not giving out any special treatment. It is instead a matter of remedial justice under the law. The root-level case for this "solicitude" principle, Moragne v. States Marine Lines, Inc. , 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), makes that much clear. In Moragne , the Court held maritime law to have abandoned the old common law rule against a wrongful death action—as every common law jurisdiction has now done, whether by doctrine or statute. Id. at 388–90, 90 S.Ct. 1772. In the wind-up before delivering its doctrinal analysis, the Moragne Court noted that because of this solicitude "there might have been no anomaly in adoption of a different rule to govern maritime relations, and that the common-law rule, criticized as unjust in its own domain, might wisely have been rejected as incompatible with the law of the sea." Id. at 387, 90 S.Ct. 1772. But the Court then decided that "the rule against recovery for wrongful death is sharply out of keeping with the policies of modern American maritime law" given "the wholesale abandonment of the rule in most of the area where it once held sway, quite evidently prompted by the same sense of the rule's injustice that generated so much criticism of its original promulgation." Id. at 388, 90 S.Ct. 1772. In DeVries and Moragne , the solicitude principle brings maritime law into harmony with the common law by removing formalistic barriers to substantive justice. Special solicitude for sailors is not the basis for the analysis. The second argument the majority gives for casting DeVries —and the gravitational pull of all of admiralty law—aside is that the Supreme Court does not set out to interpret the text of Tennessee's Act. And fair enough. Yet, we still have good reason to pay attention to the Supreme Court. That is because the same general body of legal principles informs maritime law, the common law, and even the best construction of a Tennessee statute. Holding a manufacturer responsible for failing to warn of an unreasonable danger that it knows or should know of related to an aftermarket integration that it knows or should know is required for the product to function stems from those principles and follows from the language of the Act. When a defendant knows that an aftermarket integration is both necessary and likely to be unreasonably dangerous, the failure to warn of that danger is a choice—one that the manufacturer makes before the product leaves its control. Tenn. Code Ann. § 29-28-105(a). As the law of products liability regards the manufacturer, that choice is what makes the product "unreasonably dangerous." Id.
Besides the United States Supreme Court, many state jurisdictions have considered whether to endorse a standard adopting foreseeability based on what the product requires or reject the bare-metal rule similar to what the majority here embraces. As a New Jersey appellate court recently observed, there is a "recent trend ... towards the imposition of liability on manufacturers even where the worker's exposure was to replacement parts, where the original product was manufactured with asbestos-containing parts." Whelan v. Armstrong Int'l Inc. , 455 N.J.Super. 569, 190 A.3d 1090, 1108 (2018). See In re N.Y.C. Asbestos Litig. , 27 N.Y.3d 765, 37 N.Y.S.3d 723, 59 N.E.3d 458, 463 (2016) (recognizing a manufacturer's "duty to warn of the danger arising from the known and reasonably foreseeable use of its product in combination with a third-party product which, as a matter of design, mechanics or economic necessity, is necessary to enable the manufacturer's product to function as intended"); May v. Air & Liquid Sys., Corp. , 446 Md. 1, 129 A.3d 984, 994 (2015) ("[T]he duty to warn ... exists ... when ... a manufacturer's product contains asbestos components, and no safer material is available; asbestos is a critical part of the pump sold by the manufacturer; periodic maintenance involving handling asbestos gaskets and packing is required; and the manufacturer knows or should know of the risks from exposure to asbestos.") (numbers omitted); Schwartz v. Abex Corp. , 106 F. Supp. 3d 626, 664 (E.D. Pa. 2015) ("[U]nder Pennsylvania law, a manufacturer ... has a duty ... to warn of the asbestos hazards of such aftermarket component parts if it (a) knew that an asbestos-containing component part of that type would be used with its product, and (b) knew (at the time it placed its product into the stream of commerce) that there were hazards associated with asbestos."); Poage v. Crane Co. , 523 S.W.3d 496, 514 (Mo. Ct. App. 2017) ("[T]he seller of a valve that ... required replacement asbestos-containing gaskets and packing, ... [owes] its consumers ... [a duty to warn]...."); Sweredoski v. Alfa Laval, Inc. , No. PC-2011-1544, 2013 WL 5778533, at *5 (R.I. Super. Ct. Oct. 21, 2013) ("Crane may be held liable for failing to warn Sweredoski of the dangers of replacing old packing and gaskets with new asbestos-containing parts."); McKenzie v. A.W. Chesterson Co. , 277 Or.App. 728, 373 P.3d 150, 160–62 (2016), abrogated by DeVries , 139 S.Ct. 986 (recognizing liability for failure to warn of foreseeable asbestos risk from working on or near pumps made and sold by defendant that were integrated with asbestos-containing replaceable parts); Whelan, 455 N.J.Super. 569, 190 A.3d 1090 (denying summary judgment where equipment defendants failed to warn under similar circumstances). But see O'Neil v. Crane Co. , 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d 987, 991 (2012) ("[A] product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer's product unless the defendant's own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products."); Simonetta v. Viad Corp. , 165 Wash.2d 341, 197 P.3d 127 (2008), superseded by statute , Wash. Prod. Liab. Act, Wash. Rev. Code Ann. § 7.72, as recognized in Dawood v. Mercedes-Benz USA, LLC , No. 3:14-cv-05179-RBL, 2016 WL 3960029 (W.D. Wash. July 22, 2016) ; Braaten v. Saberhagen Holdings, 165 Wash.2d 373, 198 P.3d 493, 503–04 (2008) ; Davis v. John Crane, Inc. , 353 Ga.App. 243, 836 S.E.2d 577, 583–84 (2019), reconsideration denied (Nov. 15, 2019), cert. denied (Ga. Aug. 10, 2020), reconsideration of denial of cert. denied (Ga. Sept. 8, 2020); Morgan v. Bill Vann Co. , 969 F.Supp.2d 1358, 1367–68 (S.D. Ala. 2013).
These cases are not irrelevant because they do not interpret Tennessee's Act. Those states would have had no reason to interpret our Act. While some states—New York, Maryland, and Pennsylvania, to name a few—do not have products liability statutes, it is not clear why the common law reasoning of their courts should not affect the shared legal principles that also course through our own statute. Given that the Act reflects section 402A of the Restatement (Second) of Torts, an effort to distill the common law at a particular moment in time, it seems as though the parallel developments in other states since then would have some considerable significance in understanding it today. And many of those states whose products liability statutes do have language tracking basic concepts in section 402A of the Restatement (Second) of Torts have embraced the standard proposed by this dissent. Missouri, for example, also pulls its "unreasonably dangerous" standard directly from the Second Restatement. See Poage , 523 S.W.3d at 514 ("Crane owed its consumers ... a duty to refrain from producing ‘unreasonably dangerous’ products.... A product may inherently be ‘unreasonably dangerous’ due to its ‘defective condition’ or characterized as ‘unreasonably dangerous’ due to the absence of an appropriate warning." (citations omitted)). So too with Rhode Island. See Sweredoski , 2013 WL 5778533, at *5 ("[T]he pivotal issue under Rhode Island law is whether Crane intended the asbestos in its valves to be replaced with new asbestos and whether Crane had ‘reason to anticipate that danger may result from [that] particular use.’ " (alteration in original) (quoting Restatement (Second) Torts § 402A cmt. h) (citing Ritter v. Narragansett Elec. Co. , 109 R.I. 176, 283 A.2d 255, 262 (1971) ).
Other states, such as Oregon, have rejected the majority's approach. See McKenzie , 373 P.3d at 160–62. There are considerable similarities between Tennessee's Act and the Oregon statute. See Or. Rev. St. § 30.920 (West, Westlaw through laws enacted during 2020 Reg. Sess., First Spec. Sess., and the Second Spec. Sess. of the 80th Legis. Assemb.) (creating liability for selling or leasing "any product in a defective condition unreasonably dangerous to the user or consumer" where "[t]he seller or lessor is engaged in the business of selling or leasing such a product; and ... [t]he product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold or leased"); see also id. § 30.915 (West, Westlaw through laws enacted during 2020 Reg. Sess., First Spec. Sess., and the Second Spec. Sess. of the 80th Legis. Assemb.) ("It shall be a defense to a product liability civil action that an alteration or modification of a product occurred under the following circumstances: ... (3) If the alteration or modification was reasonably foreseeable, the manufacturer, distributor, seller or lessor gave adequate warning.").
Additionally, most of the other states with cases endorsing the bare-metal rule do not adopt a rule that sweeps as broadly as the no-duty-to-warn rule adopted by the majority. In particular, even these states allow for liability where plaintiffs present evidence that defendant manufacturers knew or intended that the asbestos-containing components would be integrated with their products. See O'Neil , 135 Cal.Rptr.3d 288, 266 P.3d 987. There, the California high court limited the manufacturers’ duty to "warn about potential hazards in replacement parts made by others when, as here, the dangerous feature of these parts was not integral to the product's design. " Id. , 135 Cal.Rptr.3d 288, 266 P.3d at 991 (emphasis added). But where "the defendant's product was intended to be used with another product for the very activity that created a hazardous situation ... it is reasonable to expect the manufacturer to give warnings." Id. 135 Cal.Rptr.3d 288, 266 P.3d 987 at 1004. The California court found it significant that "there was no evidence that defendants’ products required asbestos-containing gaskets or packing in order to function. Plaintiffs’ assertion to the contrary is belied by evidence that defendants made some pumps and valves without asbestos-containing parts." Id. 135 Cal.Rptr.3d 288, 266 P.3d 987 at 996. But here, Mrs. Coffman met her burden of production, and we are bound at this stage to view the evidence in its most favorable light. The most recent case out of Washington State is even more evocative on this point, limiting two cases that had represented noteworthy high-water marks for the bare-metal rule.
The two cases most friendly to the bare-metal rule, Simonetta v. Viad Corporation , 165 Wash.2d 341, 197 P.3d 127 (2008), and Braaten v. Saberhagen Holdings, Inc. , 165 Wash.2d 373, 198 P.3d 493 (2008), have been undermined by Macias v. Saberhagen Holdings, Inc. , 175 Wash.2d 402, 282 P.3d 1069, 1075–77 (2012), which explains:
[T]he general rule stated in Simonetta and Braaten is just this, a general rule to which there are exceptions.
....
[T]he products involved in the Simonetta and Braaten cases did not require that asbestos be used in conjunction with their products, nor were they specifically designed to be used with asbestos. Nor were those products designed as equipment that by its very nature would necessarily involve exposure to asbestos.
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Simonetta and Braaten do not control because unlike in those cases, where the manufacturers’ products did not, in and of themselves, pose any inherent danger of exposure to asbestos, here when the products were used exactly as intended and cleaned for reuse exactly as intended ... they inherently and invariably posed the danger of exposure to asbestos. Thus, the manufacturers of the respirators were not entitled to summary judgment on the issue of whether, under Simonetta and Braaten , they are proper defendants for purposes of the plaintiffs’ failure to warn claims.
The majority invokes Georgia law, but there is arguably a similar distinction to draw. In Davis v. John Crane, Inc. , 353 Ga.App. 243, 836 S.E.2d 577, 583 (2019), reconsideration denied (Nov. 15, 2019), cert. denied (Ga. Aug. 10, 2020), reconsideration of denial of cert. denied (Ga. Sept. 8, 2020), the court noted that "although the pumps were designed with the knowledge that the packing would erode over time and would require replacement, the pumps could operate with packing made from materials other than asbestos, or could be modified in the field to require no packing at all." Mrs. Coffman presented evidence to the contrary.
Here, the majority and the dissent reach different conclusions about the meaning of the Act. Neither the majority nor the dissent attempts to make policy because that is the role of the Legislature. The Defendants admit that they sold the products that were later integrated with asbestos and to which Mr. Coffman became exposed. The question is whether the Defendants’ products were unreasonably dangerous when they left the manufacturers’ control. In the majority's view, they were not, because the Defendants themselves did not incorporate any asbestos into the product. In the dissent's view, the products were unreasonably dangerous, because the Defendants knew that someone else would incorporate asbestos into the product, yet the Defendants warned no one.
In sum, under the Tennessee Products Liability Act, a manufacturer of a product should have a duty to warn when the manufacturer (1) knows or should know that its product requires aftermarket integration with another product, such as a replaceable component part, to function properly; and (2) knows or should know that this aftermarket integration will likely render the final integrated product unreasonably dangerous.
Thus, I dissent from the majority's decision affirming the trial court's grant of summary judgment to the Defendants and would allow the jury to do its job.