Carolyn Coffman v. Armstrong International, Inc. ( 2019 )

07/22/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 20, 2019 Session
CAROLYN COFFMAN ET AL. v. ARMSTRONG INTERNATIONAL, INC.
ET AL.
Appeal from the Circuit Court for Knox County
No. 2-485-14 William T. Ailor, Judge
___________________________________
No. E2017-01985-COA-R3-CV1
(Ingersoll-Rand Company)
___________________________________
No. E2017-02389-COA-R3-CV
(Crane Co.)
___________________________________
No. E2017-00062-COA-R3-CV
(Fisher Controls Internationals LLC)
___________________________________
No. E2017-00063-COA-R3-CV
(Flowserve Corporation f/k/a/ Duriron Company)
___________________________________
No. E2017-00064-COA-R3-CV
(Daniel International Corporation)
___________________________________
No. E2017-00065-COA-R3-CV
(William Powell Company)
___________________________________
No. E2017-00066-COA-R3-CV
(Neles-Jamesbury, Inc. and Metso Automation USA Inc.)
___________________________________
1
The plaintiffs filed separate notices of appeal against twelve defendants. With respect to two of
the twelve, the plaintiffs filed a duplicate notice of appeal out of an abundance of caution to correct a
possible problem. In any event, there is no dispute as to whether all of the cases are properly before the
Court.
No. E2017-00067-COA-R3-CV
(Armstrong International, Inc.)
___________________________________
No. E2017-00069-COA-R3-CV
(Clark Reliance Company, Jerguson Gage and Valve Division)
___________________________________
No. E2017-00071-COA-R3-CV
(Ingersoll-Rand Company)
___________________________________
No. E2017-00075-COA-R3-CV
(Crane Co.)
___________________________________
No. E2017-00078-COA-R3-CV
(DeZurik, Inc.)
___________________________________
No. E2017-00995-COA-R3-CV
(John Crane, Inc.)
___________________________________
This consolidated appeal arises from a product liability action brought by Donald
Coffman and his wife, Carolyn Coffman, after Mr. Coffman was diagnosed with
mesothelioma. Plaintiffs asserted several claims against multiple defendants for their
alleged involvement in Mr. Coffman’s exposure to asbestos at his workplace. The trial
court dismissed their claims against some of the original defendants. The court granted
summary judgment to the remaining defendants. Specifically, the court found that: (1)
plaintiffs’ claims against one defendant were time-barred by the four-year construction
statute of repose set forth in Tenn. Code Ann. § 28-3-202 (2017); (2) plaintiffs’ claims
against three defendants were time-barred by the ten-year statute of repose set forth in
Tenn. Code Ann. § 29-28-103 (2012); (3) ten defendants affirmatively negated their
alleged duty to warn; and (4) plaintiffs presented insufficient evidence of causation with
respect to seven defendants. The court denied plaintiffs’ motion to alter or amend certain
summary judgment orders. Plaintiffs filed separate notices of appeal for each final
judgment entered by the trial court. These cases were consolidated for the purpose of
oral argument before the Court of Appeals. For the reasons stated in this opinion, we
vacate all of the final judgments entered by the trial court.
-2-
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Vacated; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and THOMAS R. FRIERSON, II, J., joined.
H. Douglas Nichol, Knoxville, Tennessee, Donald Capparella, Nashville, Tennessee, and
Charles E. Valles, Flower Mound, Texas, for the appellant, Carolyn Coffman,
individually and for the benefit of the next of kin of Donald Coffman, Deceased.
James E. Wagner, Knoxville, Tennessee, for the appellee, Ingersoll-Rand Company.
James C. Bradshaw, III, Nashville, Tennessee, and Michael J. Ross and Nicholas P. Vari,
Pittsburgh, Pennsylvania, for the appellee, Crane Company.
Hugh B. Bright, Jr. and C. Gavin Shepherd, Knoxville, Tennessee, for the appellee,
Fisher Controls International, LLC.
Thomas A. Bickers, John W. Elder, Michael J. King, T. Mitchell Panter, and Adam R.
Duggan, Knoxville, Tennessee, for the appellee, Flowserve Corporation f/k/a The
Duriron Company, Inc.
Michael J. King, T. Mitchell Panter, and Adam R. Duggan, Knoxville, Tennessee, for the
appellee, Daniel International Corporation.
Alan S. Zelkowitz and Scott D. Stephenson, Chicago, Illinois, and Joshua A. Wolfe,
Knoxville, Tennessee, for the appellee, The William Powell Company.
Jessalyn H. Zeigler, John W. Dawson, IV, and Sarah B. Miller, Nashville, Tennessee, for
the appellees, Neles-Jamesbury, Inc. and Metso Automation USA, Inc.
James A. Beakes, III and B. Hartman Knight, Nashville, Tennessee, for the appellee,
Armstrong International, Inc.
Michael J. King, T. Mitchell Panter, and Adam R. Duggan, Knoxville, Tennessee, for the
appellee, Clark Reliance Company, Jerguson Gage and Valve Division.
Michael J. King, T. Mitchell Panter, and Adam R. Duggan, Knoxville, Tennessee, for the
appellee, DeZurik, Inc.
Kent E. Krause, Nashville, Tennessee, for the appellee, John Crane, Inc.
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OPINION
I.
“Because summary judgment was awarded to the defendant[s], the following
statement of facts is based upon the most favorable view of the record toward[ ] the
plaintiff[s], the nonmoving part[ies].” Robinson v. Omer, 952 S.W.2d 423, 424-25
(Tenn. 1997) (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)).
Mr. Coffman worked at the Tennessee Eastman chemical plant in Kingsport from
1968 until 1997. For most of his career, Mr. Coffman worked as a mechanic in and
around “Building 55,” where acid from other divisions was distilled, reclaimed, and
refined. Mr. Coffman spent about seventy-five percent of his time in the “tank farm,” an
outdoor facility adjacent to Building 55 where most of the company’s equipment was
located.
As a mechanic, Mr. Coffman was responsible for repairing and replacing various
pieces of equipment, including pumps, valves, steam traps, and piping. The piping at
Eastman carried steam and different types of acids. Because the acids were highly
corrosive, it was necessary to repair equipment on a daily basis. Sometimes equipment
would have to be entirely replaced.
Plaintiffs claim that Mr. Coffman was exposed to asbestos in three ways. First,
plaintiffs claim that Mr. Coffman breathed in dust created by the removal of asbestos-
containing insulation manufactured by Johns-Manville Corporation. A vast majority of
the equipment in the tank farm was insulated in order to prevent acid from freezing. Mr.
Coffman had to remove this insulation in order to reach many of the pumps, valves, and
pipes that he routinely repaired and replaced. Steam traps were not insulated, but it was
sometimes necessary to remove insulation from a pipe that was adjacent to a steam trap.
In order to remove the insulation, Mr. Coffman would use a hammer to “beat it back out
of the way” in order to expose bolts and screws. After removing the bolts and screws, he
would cut the wires off the insulation and tear it off the equipment. This created a visible
dust that Mr. Coffman breathed many times. Mr. Coffman described the insulation as a
“gray, whitish chalky material.” He said that it did not itch like fiberglass insulation. It is
undisputed that Johns-Manville manufactured asbestos-containing insulation.
Mr. Coffman was also constantly in the presence of insulators who were engaged
in the removal and installation of insulation in Building 55. Gary Frasier, who worked
with Mr. Coffman from 1977 to 1982, testified that the insulation “wasn’t yellow
fiberglass.” According to Mr. Frasier, there was a crew of two or three insulators in
Building 55 every day. These insulators worked for independent contractors, including
Daniel International Corporation (Daniel). The insulators did not rope off work areas or
utilize plastic barriers until the mid-1980s. Their removal and installation of insulation
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created a visible dust that Mr. Coffman breathed on numerous occasions.
Second, plaintiffs claim that Mr. Coffman breathed in dust created by the removal
of asbestos-containing gaskets manufactured by Flexitallic, Garlock, and Johns-Manville.
Gaskets are sealing mechanisms that are incorporated into equipment in order to prevent
leaks. “Flange” gaskets are located between the external flanges of a piece of equipment
and the pipe to which the equipment is connected; they are typically applied by the
purchaser post-sale. “Bonnet” gaskets are located inside various pieces of equipment; an
equipment manufacturer typically incorporates internal bonnet gaskets into the equipment
pre-sale. According to Mr. Coffman, it was sometimes necessary to remove gaskets in
order to repair a piece of equipment. Other times, gaskets had to be replaced because
they were deteriorating and causing leaks. Normally, gaskets came off in pieces; parts of
the gasket would stick to the metal equipment and had to be scraped off so that the
residual gasket material would not cause future leaks. Mr. Coffman used a putty knife, a
wire brush, or a “sheep nose” device to scrape off the residual gasket material. All three
scraping methods created a visible dust that Mr. Coffman breathed many times.
Third, plaintiffs claim that Mr. Coffman breathed in dust created by the removal of
asbestos-containing packing manufactured by John Crane, Inc. (John Crane), A.W.
Chesterton, Garlock, and Johns-Manville. Packing is a braided material that serves as a
sealant. It is wrapped around the interior stem of valves. It is also used to hold fluids and
steam inside pumps. According to Mr. Coffman, packing had to be replaced “constantly”
because it “would be burnt up from being tightened too tight” or was “just wore plum
out.” This caused equipment to leak. Mr. Coffman used a “packing hook” to pull
packing out of the packing gland of a pump. Packing would break into pieces during this
process. When this happened, Mr. Coffman would continue using the packing hook to
scrape the remaining packing out of the equipment. This created a visible dust that Mr.
Coffman breathed many times. Mr. Coffman testified that none of the aforementioned
equipment contained labels warning him about the dangers of asbestos exposure.
After Mr. Coffman was diagnosed with mesothelioma, plaintiffs filed their
complaint. Instead of suing the manufacturers of the asbestos-containing insulation and
gaskets2, plaintiffs sued: Daniel, an independent contractor whose insulators removed
2
Johns-Manville filed for bankruptcy in the 1980s. During the bankruptcy proceedings, the
Manville Personal Injury Settlement Trust was created. Pursuant to a federal court order, “the Trust shall
be treated in litigation between Beneficiaries of the Trust as a legally responsible tortfeasor under
applicable law, without the introduction of further proof.” In re Joint E. and S. Dist. Asbestos
Litigation, 878 F. Supp. 473, 591 (S.D.N.Y. 1995), aff’d in part, rev’d in part, 78 F.3d 764 (2d Cir.
1996), on remand, 929 F. Supp. 1 (E. & S.D.N.Y. 1996), aff’d without op., 100 F.3d 944 (2d Cir. 1996)
and 100 F.3d 945 (2d Cir. 1996). Plaintiffs filed a claim with the Trust and received payment for their
claim. The trial court ruled that if this case proceeds to trial, the jury will be instructed to “make an
allocation of fault to Johns-Manville with regard to the insulation and other asbestos-containing materials
that Johns-Manville manufactured and supplied to Tennessee Eastman.”
-5-
and installed asbestos-containing insulation at Eastman; John Crane, a manufacturer of
asbestos-containing packing; and several manufacturers of industrial equipment:
Armstrong International, Inc. (Armstrong) (steam traps), Crane Company (valves),
DeZurik, Inc. (DeZurik) (valves), Flowserve Corporation f/k/a The Duriron Company,
Inc. (Flowserve) (pumps and valves), Fisher Controls International, LLC (Fisher)
(valves), Ingersoll-Rand Company (Ingersoll-Rand) (pumps), Neles-Jamesbury, Inc. and
its subsidiary Metso Automation USA, Inc. (collectively, Jamesbury) (valves), Clark
Reliance Company, Jerguson Gage and Valve Division (Jerguson) (valves), and The
William Powell Company (Powell) (valves) (collectively, equipment defendants).3 These
equipment defendants purchased asbestos-containing gaskets and/or packing from other
manufacturers and incorporated those asbestos components into some of their equipment
pre-sale. They also sold asbestos-containing replacement gaskets and/or packing
manufactured by others.
All of the defendants filed motions for summary judgment. As an affirmative
defense, Daniel argued that plaintiffs’ claims were time-barred by the four-year
construction statute of repose set forth in Tenn. Code Ann. § 28-3-202. Several other
defendants argued that plaintiffs’ claims were time-barred by the ten-year statute of
repose set forth in Tenn. Code Ann. § 29-28-103. Additionally, the equipment
defendants argued that they had affirmatively negated their alleged duty to warn. Several
defendants also argued that plaintiffs’ evidence was insufficient to establish causation.
The trial court held two hearings on the defendants’ motions for summary
judgment. The court also held a third hearing to consider various motions to alter or
amend. Ultimately, the court granted summary judgment to the defendants on all claims
asserted against them. The court ruled that: (1) plaintiffs’ claims against Daniel were
time-barred by the four-year construction statute of repose; (2) plaintiffs’ claims against
Crane Company, Ingersoll-Rand, and Jamesbury were time-barred by the ten-year statute
of repose; (3) the equipment defendants were entitled to summary judgment because they
affirmatively negated their alleged duty to warn, which the court determined was an
essential element of plaintiffs’ negligence and strict liability claims; and (4) seven
defendants – Armstrong, Crane Company, DeZurik, Fisher, Jamesbury, Jerguson, and
John Crane – were entitled to summary judgment because plaintiffs presented insufficient
evidence of causation, which the court determined was an essential element of plaintiffs’
negligence and strict liability claims.
As the trial court noted in some of its orders, plaintiffs’ other claims failed because
they are dependent on an initial finding of tortious conduct. See Williams v. U.S., 754 F.
Supp. 2d 942, 955 (W.D. Tenn. 2010) (citations omitted) (“A spouse seeking recovery for
loss of consortium cannot recover unless the defendant has been held liable to the injured
spouse.”); Lynn v. City of Jackson, 63 S.W.3d 332, 335 (Tenn. 2001) (“[T]he Tennessee
3
There are many references in this opinion to “equipment defendants.”
-6-
wrongful death statute preserves the action the decedent would have had, rather than
creating a new cause of action in the surviving beneficiaries[.]”); Levy v. Franks, 159
S.W.3d 66, 82 (Tenn. Ct. App. 2004) (“In contrast [to criminal conspiracy], there is no
liability under a theory of civil conspiracy unless there is underlying wrongful conduct.”);
Leatherwood v. Wadley, 121 S.W.3d 682, 693-94 (Tenn. Ct. App. 2003) (quoting
Menuskin v. Williams, 145 F.3d 755, 766 (6th Cir. 1998)) (“To prevail on a claim of
gross negligence in Tennessee, a plaintiff must [first] demonstrate ordinary
negligence[.]”). The court determined that plaintiffs’ negligence per se claims failed due
to insufficient evidence of causation. See Rains v. Bend of the River, 124 S.W.3d 580,
590 (Tenn. Ct. App. 2003) (citations omitted).
Plaintiffs appealed from the orders that the trial court certified as final pursuant to
Tenn. R. Civ. P. 54.02. This Court consolidated those cases pursuant to Tenn. R. App. P.
16(b). We also consolidated plaintiffs’ appeal of the order granting summary judgment
to John Crane. Although the trial court did not certify that order as final pursuant to
Tenn. R. Civ. P. 54.02, the order was a final judgment at the time this Court consolidated
plaintiffs’ appeal because “all the claims or the rights and liabilities of . . . all the parties”
had been resolved. See Tenn. R. Civ. P. 54.02.
II.
We restate and consolidate the issues raised by plaintiffs as follows:
Whether the trial court’s verbatim adoption of the equipment
defendants’ proposed findings of fact and conclusions of law
violated Tenn. R. Civ. P. 56.04, as interpreted in Smith v.
UHS of Lakeside, Inc., 439 S.W.3d 303 (Tenn. 2014).
Whether the trial court erred by granting summary judgment
to Daniel on the basis of the four-year construction statute of
repose set forth in Tenn. Code Ann. § 28-3-202.
Whether the trial court erred by granting summary judgment
to Crane Company, Ingersoll-Rand, and Jamesbury on the
basis of the ten-year statute of repose set forth in Tenn. Code
Ann. § 29-28-103.
Whether the trial court erred by granting summary judgment
to the equipment defendants on the ground that they
affirmatively negated their alleged duty to warn.
Whether the trial court erred by granting summary judgment
to Armstrong, Crane Company, DeZurik, Fisher, Jamesbury,
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Jerguson, and John Crane on the ground that plaintiffs
presented insufficient evidence of causation.
III.
Plaintiffs first ask us to consider whether the trial court’s verbatim adoption of the
equipment defendants’ proposed findings of fact and conclusions of law violated Tenn.
R. Civ. P. 56.04, as interpreted in Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303
(Tenn. 2014) (hereinafter “Lakeside”). Plaintiffs did not raise this issue with respect to
the court’s orders granting summary judgment to Daniel and John Crane. Accordingly,
we confine our analysis to the court’s orders granting summary judgment to the
equipment defendants.
Tenn. R. Civ. P. 56.04 provides that “[t]he trial court shall state the legal grounds
upon which the court denies or grants the motion [for summary judgment], which shall be
included in the order reflecting the court’s ruling.” In Lakeside, the Supreme Court
clarified the application of this rule in the context of party-prepared summary judgment
orders:
[W]e do not find that Tenn. R. Civ. P. 56.04 is in any way
inconsistent with the custom of permitting trial courts to
request and consider proposed orders prepared by the
prevailing party. However, as we emphasized in the context
of the findings of fact and conclusions of law required by
Tenn. R. Civ. P. 52.01, Tenn. R. Civ. P. 56.04 must be
interpreted in a way that assures that a trial court’s decision
whether to grant or deny a motion for summary judgment is
its own. Delevan–Delta Corp. v. Roberts, 611 S.W.2d at
53….
[W]e conclude that Tenn. R. Civ. P. 56.04 requires the trial
court, upon granting or denying a motion for summary
judgment, to state the grounds for its decision before it invites
or requests the prevailing party to draft a proposed order.
Not only will this requirement assure that the decision is the
trial court’s, it will also (1) assure the parties that the trial
court independently considered their arguments, (2) enable
the reviewing courts to ascertain the basis for the trial court’s
decision, and (3) promote independent, logical decision-
making. See DiLeo v. Ernst & Young, 901 F.2d 624, 626
(7th Cir.1990); State v. King, 432 S.W.3d 316, 322 (Tenn.
2014).
-8-
439 S.W.3d at 316 (footnotes omitted).4 Ultimately, the Supreme Court affirmed the
decision of the Court of Appeals, which vacated the trial court’s order granting summary
judgment to the defendant. Id. at 318.
This Court has repeatedly vacated trial court orders that fail to comply with Tenn.
R. Civ. P. 56.04, as interpreted in Lakeside. E.g., Mitchell v. Mitchell, No. E2017-
00100-COA-R3-CV, 2019 WL 81594, at *7 (Tenn. Ct. App., filed Jan. 3, 2019) (vacating
the trial court’s order because it was unclear whether the court’s order reflected the
court’s independent judgment); Potter’s Shopping Ctr., Inc. v. Szekely, 461 S.W.3d 68,
72 (Tenn. Ct. App. 2014) (vacating the trial court’s order because it failed to state the
legal grounds for the court’s decision).
However, this Court has also held that a violation of Tenn. R. Civ. P. 56.04 is not
reversible error under all circumstances. Huggins v. McKee, 500 S.W.3d 360, 366-67
(Tenn. Ct. App. 2016), perm. app. denied (Tenn. Sept. 22, 2016). In Huggins, the trial
court violated Tenn. R. Civ. P. 56.04 because the court adopted party-prepared findings
of fact and conclusions of law without first stating the legal grounds for the court’s
decision. Id. This called into question whether the court exercised its independent
judgment. Nevertheless, “[i]n the interest of providing the parties to th[at] case a final
resolution of the issues,” we chose to “exercise our discretion to proceed to consider the
merits of th[e] appeal[.]” Id. at 366; see also Tenn. R. Civ. P. 1 (“These rules shall be
construed to secure the just, speedy, and inexpensive determination of every action.”).
In the present case, we exercise our discretion to address the merits of this appeal
instead of evaluating the trial court’s alleged Lakeside violations and potentially
remanding for the entry of additional summary judgment orders. Although we are
mindful of “the fundamental importance of assuring that a trial court’s decision . . . is the
product of the trial court’s independent judgment,” Lakeside, 439 S.W.3d at 314, we
have determined that any potential violations of Tenn. R. Civ. P. 56.04 are moot. For the
reasons discussed in this opinion, the trial court erred by granting the equipment
defendants summary judgment on the grounds stated in the orders ultimately entered by
the trial court. Consequently, the Lakeside issue is pretermitted. We caution litigants
and trial courts that we may not choose to overlook potential violations of Tenn. R. Civ.
P. 56.04 in the future. See Huggins, 500 S.W.3d at 366-67.
IV.
The remaining issues require us to determine whether the trial court erred by
4
A trial court also violates Tenn. R. Civ. P. 56.04 when the court’s order fails to “state the legal
grounds” for the court’s decision. See, e.g., Smith v. UHS of Lakeside, Inc., No. W2011–02405–COA–
R3–CV2013 WL 210250, at *6 (Tenn. Ct. App., filed Jan. 18, 2013), aff’d, 439 S.W.3d 303 (Tenn. 2014)
(distinguishing between “order[s] entered [that] contain[ ] no legal grounds for the ruling” and “order[s]
[that] do not accurately reflect the trial court’s oral rulings[.]”).
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granting summary judgment to the defendants. “A trial court’s grant of a motion for
summary judgment presents a question of law” that we review de novo. Eadie v.
Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004) (citing Goodloe v. State, 36
S.W.3d 62, 65 (Tenn. 2001)). 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. The
Supreme Court has ruled that
when the moving party does not bear the burden of proof at
trial, the moving party may satisfy its burden of production
either (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)
(emphasis in original). On the other hand, if the moving party is asserting an affirmative
defense, and therefore has the burden of proof at trial, the moving party must “alleg[e]
undisputed facts that show the existence of the affirmative defense.” Id. at 259 (quoting
Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 & n.6 (Tenn. 2008)).5
Once the moving party has satisfied its burden of production, in order to survive
summary judgment, the non-moving party
may not rest upon the mere allegations or denials of the
adverse party’s pleading, but his or her response, by affidavits
or as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial.
Tenn. R. Civ. P. 56.06. This may be accomplished by:
(1) pointing to evidence establishing material factual disputes
that were over-looked or ignored by the moving party; (2)
rehabilitating the evidence attacked by the moving party; (3)
producing additional evidence establishing the existence of a
genuine issue for trial; or (4) submitting an affidavit
5
Rye overruled Hannan, but only as to “cases where the moving party who does not bear the
burden of proof at trial files the motion [for summary judgment].” Cardinal Health 108, Inc. v. East
Tennessee Hematology-Oncology Associates, P.C., No. E2015–00002–COA–R3–CV, 2016 WL 158090,
at *2 n.1 (Tenn. Ct. App., filed Jan. 14, 2016).
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explaining the necessity for further discovery pursuant to
Tenn. R. Civ. P., Rule 56.06.
Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (quoting McCarley v. W.
Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)).
A.
We will first consider whether the trial court erred by granting summary judgment
to Daniel on the basis of the four-year construction statute of repose. Because the
construction statute of repose is an affirmative defense, Daniel had the burden of
“alleging undisputed facts that show the existence of the affirmative defense.” Rye, 477
S.W.3d at 259.
Tennessee’s construction statute of repose provides that
[a]ll actions to recover damages for any deficiency in the
design, planning, supervision, observation of construction, or
construction of an improvement to real property . . . for injury
to the person or for wrongful death arising out of any such
deficiency, shall be brought . . . within four (4) years after
substantial completion of such an improvement.
Tenn. Code Ann. § 28-3-202. This statute is subject to the following exception:
The [construction statute of repose] shall not be asserted as a
defense by any person in actual possession or the control, as
owner, tenant, or otherwise, of such an improvement at the
time any deficiency in such an improvement constitutes the
proximate cause of the injury or death for which it is
proposed to bring an action.
Tenn. Code Ann. § 28-3-205(a).
Daniel was an independent contractor hired to perform construction services at
Eastman. One of the services Daniel provided was the periodic removal and installation
of insulation. Plaintiffs claim that Mr. Coffman was exposed to asbestos as a result of
this activity. In the trial court, Daniel contended that its removal and installation of
insulation constituted “construction of an improvement to real property” within the
meaning of the construction statute of repose. Daniel also submitted evidence that it
ceased providing construction services in 1990. According to Daniel, plaintiffs’ claims
were clearly time-barred.
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For purposes of summary judgment, plaintiffs did not dispute that Daniel
completed its construction work in 1990. However, plaintiffs insisted that Daniel’s daily
removal and installation of insulation was not “construction of an improvement to real
property.” Alternatively, plaintiffs argued that the exception to the construction statute of
repose was applicable.
The trial court ruled that the statute of repose barred plaintiffs’ claims because
Daniel’s removal and installation of insulation was “construction of an improvement to
real property.” That determination is a question of law that we review de novo.
Memphis Light, Gas & Water Div. v. T.L. James & Co. Inc., No. 52, 1986 WL 11588, at
*4 (Tenn. Ct. App., filed Oct. 17, 1986).
Tennessee’s construction statute of repose does not define the term “improvement
to real property.” In the absence of a statutory definition, “the words of the statute are to
be given their usual and ordinary meaning, without forced limitations or extensions.” Id.
at *3 (citing State v. Thomas, 635 S.W.2d 114 (Tenn. 1982)). Applying that interpretive
principle, we have previously held that the word “improvement” in the construction
statute of repose means
[a] valuable addition made to property (usually real estate) or
an amelioration in its condition, amounting to more than mere
repairs or replacement, costing labor or capital, and intended
to enhance its value, beauty or utility or to adapt it for new or
further purposes. Generally, buildings, but may also include
any permanent structure or other development, such as a
street, sidewalks, sewers, utilities, etc.
Id. (citing Black’s Law Dictionary, 5th Ed. (1979)).
Plaintiffs correctly observe that Tennessee law recognizes a distinction between
“improvements to real property” and “mere repairs or replacement.” See id.; see also
Cartwright v. Presley, No. E2005-02418-COA-R3CV, 2007 WL 161042, at *4-5 (Tenn.
Ct. App., filed Jan. 23, 2007). However, the parties have not cited, and we have not
identified, any Tennessee cases which have addressed the specific question of whether
the daily removal and installation of insulation at an industrial facility is “construction of
an improvement to real property.”6
6
The cases cited by Daniel are factually distinguishable. We also note that Daniel relies on
Hayes v. Cooperstown’s Mastersweep, Inc., No. W2014-00783-COA-R3-CV, 2015 WL 3487076 (Tenn.
Ct. App., filed Feb. 24, 2015), perm. app. denied, not for citation (Tenn. 2015). Cases designated “not for
citation” have no precedential value and may not be cited by the parties or the courts. Tenn. Sup. Ct. R.
4(E). Accordingly, we ignore the Hayes case.
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In Peter v. Sprinkmann Sons Corporation, the Wisconsin Court of Appeals held
that a contractor’s daily removal and installation of asbestos-containing insulation at an
industrial facility was not “construction of, or the furnishing of materials for, the
improvement to real property” under Wisconsin’s construction statute of repose. 860
N.W.2d 308, 311-12, 315 (Wis. Ct. App. 2015). The court reasoned that the “initial”
installation of insulation might be considered construction of an improvement to real
property, but the daily removal and installation of insulation indicates that the insulation
is merely being repaired or replaced. See id. at 315. In other cases, courts have held that
a defendant is not entitled to summary judgment pursuant to a construction statute of
repose when there is an issue of fact as to whether insulation is intended to be a
permanent feature of a building. See, e.g., Estate of Brandes v. Brand Insulations, Inc.,
No. 73748–1–I, 2017 WL 325702, at *3 (Wash. Ct. App., filed Jan. 23, 2017); Sorenson
v. Building Service Indus. Sales, Inc., No. 2014AP964, 2015 WL 1893444, at *4 (Wis.
Ct. App., filed Apr. 28, 2015); Covington v. W.R. Grace-Conn., Inc., 952 P.2d 1105,
1108 (Wyo. 1998).
Like the Wisconsin Court of Appeals, “[w]e agree that the initial installation of
insulation into a building or house may be considered an improvement to real property,”
if it is intended to be a permanent feature of the property. Peter, 860 N.W.2d at 315
(emphasis added); see also Pridemark Custom Plating, Inc. v. Upjohn Co., Inc., 702
S.W.2d 566 (Tenn. Ct. App. 1985) (assuming that spray-on insulation material that was
applied during the original construction of a building constituted an “improvement to real
property”). However, the daily removal and installation of insulation at an industrial
facility over the course of many years indicates that existing insulation is merely being
repaired and replaced. See Peter, 860 N.W.2d at 315. We hold, as a matter of law, that
such activity does not constitute “construction of an improvement to real property” within
the meaning of Tenn. Code Ann. § 28-3-202.
Accordingly, the trial court erred when it granted summary judgment to Daniel on
the basis of the construction statute of repose.
B.
We next consider whether the trial court erred by granting summary judgment to
Crane Company, Ingersoll-Rand, and Jamesbury on the basis of the ten-year statute of
repose set forth in Tenn. Code Ann. § 29-28-103.
At the outset, we acknowledge that DeZurik, Fisher, Flowserve, Jerguson, and
Powell claim that the trial court also granted them summary judgment pursuant to the ten-
year statute of repose. We disagree. The court only granted Flowserve “partial summary
judgment” on the repose issue. Specifically, the court ruled that the statute of repose
barred claims as to “pumps or valves first sold for use prior to July 1, 1969.” (Emphasis
added.) The trial court denied Flowserve’s motion for summary judgment “[w]ith regard
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to any pumps that were replaced,” because there was an issue of material fact as to
whether Flowserve sold products to Eastman on or after July 1, 1969. Similarly, the
court ruled that “Powell is not liable . . . for any valves first sold for use prior to July 1,
1969.” (Emphasis added.)
The orders granting summary judgment to DeZurik, Fisher, and Jerguson say
nothing about the statute of repose. Nevertheless, defendants argue that the trial court
granted them summary judgment on the repose issue because the court’s orders
incorporate by reference the findings of fact and conclusions of law that accompanied
Crane Company’s summary judgment order (which did include a discussion of the statute
of repose). Those findings and conclusions, however, are only specific to Crane
Company. In some cases, the same findings of fact and conclusions of law might be
applicable to more than one party; however, determining whether the statute of repose
bars a product liability action is a fact-intensive and defendant-specific inquiry. In this
context, the incorporation of findings and conclusions that are specific to a different
defendant is meaningless absent additional clarification. The trial court did not provide
such clarification in its orders granting summary judgment to DeZurik, Fisher, and
Jerguson.7 Regardless of the trial court’s alleged intentions, we hold that the court’s
orders did not grant summary judgment to these defendants on the repose issue.
In 1978, the General Assembly enacted the Tennessee Products Liability Act
(TPLA), which included the following statute of repose:
[a]ny action against a manufacturer or seller of a product for
injury to person or property caused by its defective or
unreasonably dangerous condition . . . must be brought within
ten (10) years from the date on which the product was first
purchased for use or consumption . . . .
Tenn. Code Ann. § 29-28-103(a) (emphasis added) (effective July 1, 1978). One year
later, the legislature amended the TPLA by adding the following exception to the statute
of repose:
The foregoing limitation of actions shall not apply to any
action resulting from exposure to asbestos . . . .
Id. at § 103(b) (effective July 1, 1979).
7
In contrast, the court’s order granting summary judgment to Jamesbury incorporates paragraphs
11-55 from Crane Company’s conclusions of law on the repose issue and makes additional findings of
fact that are specific to Jamesbury.
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In Wyatt v. A-Best Products Company, this Court clarified that the asbestos
exception of 1979 cannot be applied retroactively to resurrect claims that were previously
extinguished by the 1978 statute of repose. 924 S.W.2d 98, 104 (Tenn. Ct. App. 1995),
pet. to rehear granted in part and denied in part, perm. app. denied (Tenn. 1996).
Therefore, in asbestos-exposure cases, the statute of repose continues to shield defendants
from liability with respect to products “first purchased for use or consumption” prior to
July 1, 1969 (ten years prior to the effective date of the 1979 asbestos exception);
however, the statute of repose does not shield defendants from liability with respect to
products “first purchased for use or consumption” on or after July 1, 1969.
Before we consider the trial court’s rulings with respect to each defendant, we
pause to address two common concerns. First, the parties disagree about the type of
evidence defendants must produce in order to successfully “alleg[e] undisputed facts that
show the existence of the affirmative defense.” Rye, 477 S.W.3d at 259. Plaintiffs argue
that the only way defendants can shift the burden of proof is by submitting evidence that
the defendants stopped selling and/or manufacturing all allegedly defective products
before July 1, 1969. Plaintiffs’ argument is based on a flawed interpretation of this
Court’s order on the petition for rehearing in Wyatt. Although we did hold that one of the
defendants in Wyatt was entitled to summary judgment because that defendant stopped
manufacturing asbestos-containing products prior to July 1, 1969, we never stated that
producing such evidence is the only way a defendant can show the applicability of the
statute of repose. See Wyatt, 924 S.W.2d at 108.
Second, plaintiffs argue that the trial court erred when it disregarded certain
statements made by Mr. Coffman during his deposition. Plaintiffs’ counsel repeatedly
asked Mr. Coffman whether he breathed insulation dust, packing dust, and gasket dust as
a result of working on defendants’ valves and pumps “that were installed at the facility
after 1970.” In response to these questions, Mr. Coffman said, “Yes, sir.” The trial court
determined that this testimony was inadmissible because it was elicited by questions that
“were objectionable because of their leading and compound nature.”
“A decision whether to admit or exclude evidence lies within the discretion of the
trial court.” In re Estate of Schisler, 316 S.W.3d 599, 606 (Tenn. Ct. App. 2009)
(citations omitted). “A trial court abuses its discretion only when it ‘applies an incorrect
legal standard, or reaches a decision which is against logic or reasoning or that causes an
injustice to the party complaining.’ ” Id. (quoting Eldridge v. Eldridge, 42 S.W.3d 82,
85 (Tenn. 2001)).
We disagree with the trial court that plaintiffs’ counsel asked leading questions.
Although the questions called for a “yes” or “no” response, they did not “suggest[ ] the
specific answer desired.” See Smith v. Walker, No. M2012–00593–COA–R3–CV, 2012
WL 4167167, at *3 (Tenn. Ct. App., filed Sept. 19, 2012) (citations omitted). However,
the trial court correctly concluded that the questions were “compound in nature.”
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Plaintiffs’ counsel was essentially asking two questions: (1) Did you breathe dust as a
result of working on defendants’ equipment? and (2) Was that equipment installed after
1970? In concluding that these questions were compound in nature, the court did not
apply an incorrect legal standard. Nor did the court reach a decision that is illogical,
unreasonable, or that caused an injustice to plaintiffs. Accordingly, the trial court did not
abuse its discretion in disregarding the testimony.
1.
With respect to Crane Company, the trial court determined that “there is no
evidence in the record that Crane Co. sold any injurious products to the Eastman facility
on or after July 1, 1969.” According to the court,
36. In the instant action, Defendant Crane Co. has sustained
its burden of proof of this affirmative defense by citing Mr.
Coffman’s own testimony, in which he admitted that the
Crane Co. valves he worked with “were there when I first got
there [in 1968], and I’m sure they’re still there.” See Finding
of Fact #19.
37. Upon further questioning, Mr. Coffman again confirmed
this fact.
Q: These valves were pre-1968 valves? In other words, they
were there before you started working there?
A: Yes, sir.
This testimony was the only evidence cited by Crane Company to support its
position that all Crane Company valves at Eastman were sold prior to July 1, 1969. Upon
closer examination, however, the testimony upon which Crane Company relies does not
“show the existence of the affirmative defense.” Rye, 477 S.W.3d at 259.
In context, Mr. Coffman testified as follows:
Q. Do you have any recollection, and if you don’t, that’s
fine. Do you have any recollection as to the type of Crane
Co. valves you were working on? Were they globe valves,
gate valves?
A. They were various. It depended. I know they used --
they liked to use globe valves on the condensate side. And
they liked to use gate valves on the rest of them.
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[A discussion about globe valves ensued.]
* * *
Q. And gate valves were used where?
A. Throughout the building. They were there when I first
got there, and I’m sure they’re still there.
Q. For any single purpose or for multiple purposes?
A. Multiple purposes.
Q. Okay. So you can’t tell me for -- for a Crane Co. gate
valve, you can’t tell me if it was attached to a cold system or a
hot system or a low pressure system or a high pressure
system?
A. No, sir, I couldn’t.
Q. They could have been attached to all of the above?
A. Yes, sir.
Q. Okay. These valves were pre-1968 valves? In other
words, they were there before you started working there?
A. Yes, sir.
(Bold in original.)
Mr. Coffman was clearly referring to Crane Company gate valves when he said,
“[t]hey were there when I first got there, and I’m sure they’re still there.” Moments later,
Mr. Coffman was asked whether “[t]hese valves were pre-1968 valves.” It is unclear
whether “[t]hese valves” refers to gate valves or all Crane Company valves. A jury could
reasonably infer that Mr. Coffman understood “[t]hese valves” to mean gate valves and
not all Crane Company valves. Mr. Coffman’s response to this ambiguous question is
not sufficient to sustain Crane Company’s burden of identifying undisputed facts that
show the existence of the statute of repose defense.
- 17 -
Even though we conclude that Crane Company never shifted the burden to
plaintiffs, we note that there is evidence in the record that raises a question of fact on this
issue. For example, shortly before Mr. Coffman was asked about Crane Company
valves, the following exchange took place:
Q. Okay. All of those buildings, all six of them, were in
existence when you started working there in August of 1968,
correct?
A. Yes, sir.
Q. And all of the valves within those buildings were in place
at the time that you -- that you started working in August of
’68, unless you would remove them and replace them, right?
A. Yes, sir.
(Bold in original.)
Mr. Coffman repeatedly testified that he replaced various pieces of equipment,
including Crane Company valves. In fact, Mr. Coffman testified that he replaced Crane
Company valves more often than he repaired them. When asked whether Crane
Company valves were ever replaced with valves made by a different manufacturer, Mr.
Coffman said, “Some – At some point, I’m sure that’s happened.” From this testimony, a
jury could reasonably conclude that some – and perhaps most – Crane Company valves
were replaced with identical Crane Company valves rather than valves produced by a
different manufacturer. A jury could also reasonably infer that replacement valves that
were installed after July 1, 1969 were also purchased on or after July 1, 1969.
The affidavit signed by Mr. Frasier’s could also lead a jury to reasonably infer that
Eastman purchased Crane Company valves on or after July 1, 1969. In his affidavit, Mr.
Frasier testified:
While I was at Eastman, it was common knowledge and my
understanding that there was a plant-wide program to keep on
hand as little inventory for equipment as possible because
Eastman was required to pay some type of tax on inventory
which it owned. Also during my time at Eastman, it was
common knowledge and my understanding that equipment
was acquired on consignment so that it would be on-site and
quickly available if needed, but Eastman would not actually
take ownership of the equipment until immediately before it
- 18 -
was put into service.8
The trial court ruled that Mr. Frasier’s testimony created an issue of fact as to
whether some defendants (e.g., Fisher) sold equipment to Eastman after July 1, 1969.
The court reasoned that if Eastman kept little inventory on-site and acquired equipment
on consignment, a jury could reasonably conclude that Eastman purchased additional
equipment when the need arose. Although the court’s order granting summary judgment
to Crane Company does not mention Mr. Frasier’s affidavit, Mr. Frasier’s testimony is
equally applicable to Crane Company.
Finally, plaintiffs argue that Crane Company failed to carry its burden of
submitting evidence that it did not sell replacement parts (i.e., insulation, gaskets, and
packing) to Eastman on or after July 1, 1969. Crane Company has admitted that it
offered for sale certain products manufactured by other
companies. A small quantity of those products may have
contained asbestos. Among other products, Crane Co. offered
for sale gaskets, packing, and discs manufactured by other
companies that may have contained asbestos.
Crane Company argued, and the trial court held, that there was no evidence that
Crane Company sold these replacement parts to Eastman on or after July 1, 1969. This
approach, however, ignores Crane Company’s burden to submit evidence showing that it
did not sell replacement parts to Eastman on or after July 1, 1969.9 We agree with
plaintiffs that, in this context, “absence of evidence is not evidence of absence.”
Because there are questions of fact as to whether Crane Company sold asbestos-
containing valves and replacement parts to Eastman on or after July 1, 1969, we hold that
Crane Company failed to carry its burden of identifying undisputed facts that establish
the statute of repose defense. The trial court erred in concluding otherwise.
2.
With respect to Jamesbury, the trial court made the following findings of fact
relative to the statute of repose issue:
23. All of the buildings Mr. Coffman worked in were
8
Neither Crane Company, Ingersoll-Rand, nor Jamesbury objected to the admissibility of Mr.
Frasier’s testimony in the trial court. This results in waiver of the issue on appeal. See Tenn. R. App. P.
36(a).
9
Under the TPLA, a non-manufacturing seller of defective or unreasonably dangerous products
can be liable if the conditions set forth in Tenn. Code Ann. § 29-28-106 are satisfied.
- 19 -
constructed before August of 1968. See Coffman Dep. Vol. 2
(Exh. C) at 16.
24. Mr. Coffman testified that he never installed any
Jamesbury valves. (Coffman Dep. 175:19-21 and 180:16-21,
Nov. 19, 2014.)
25. Mr. Coffman testified that all of the Jamesbury valves
that he recalled were already in place when he started at
Eastman. (Coffman Dep. 175:14-16). When he repaired a
valve he alleged was a Jamesbury valve he did not know
whether the packing was original to the valve. (Coffman
Dep. 180:25 – 181:4.)
Based on these findings, the court concluded that Jamesbury carried its burden of
identifying undisputed facts that establish the statute of repose defense.
Once again, the trial court’s findings of fact do not provide a complete picture.
Mr. Coffman did testify that Jamesbury valves were already present at Eastman when he
started working there. He also testified that he never installed a new Jamesbury valve.
However, Mr. Coffman also testified as follows:
Q. Do you recall seeing any Jamesbury valves after the
1970s?
A. Well, yes, there was still some in the building, but they
were being replaced as it came time to replace them or,
you know, they mechanically failed or something and we
would have to start replacing valves.
Q. When a Jamesbury valve needed to be replaced, was it
replaced with another Jamesbury valve or a different
manufacturer?
A. It was usually a different one.
* * *
Q. -- is your testimony the same regarding that when a
Jamesbury valve needed to be replaced, it was replaced by a
valve with another manufacturer?
- 20 -
A. Not 100 percent. It would depend on the foreman. If
the valve was giving no problem and he just wanted it
packed, it wouldn't be replaced.
Q. But when it was replaced, regardless of which building
you were working in, you never installed a new Jamesbury
valve; is that – is that true?
A. I didn’t, but others did because I’ve seen them.
(Bold in original.)
Mr. Coffman’s testimony that he remembered seeing others install new Jamesbury
valves, in combination with Mr. Frasier’s affidavit, raises an issue of fact as to whether
Eastman purchased new Jamesbury valves on or after July 1, 1969.
Plaintiffs also argue that Jamesbury failed to carry its burden of showing that it did
not sell replacement parts to Eastman after July 1, 1969. A Jamesbury representative
testified that Jamesbury never sold replacement insulation or flange gaskets. Jamesbury
did sell replacement bonnet gaskets and packing repair kits, but Mr. Coffman testified
that he never used a Jamesbury packing repair kit. In our view, Jamesbury successfully
shifted the burden to plaintiffs with respect to replacement insulation, flange gaskets, and
packing sold by Jamesbury. However, because Jamesbury failed to carry its burden of
showing that it did not sell asbestos-containing valves and internal replacement gaskets to
Eastman on or after July 1, 1969, the trial court erred in granting summary judgment to
Jamesbury on the basis of the statute of repose.
3.
The trial court’s order granting summary judgment to Ingersoll-Rand pursuant to
the statute of repose simply states, “the Court finds that the movant has negated the
Plaintiff’s claims by showing that any exposure to this Defendant’s products involved
products which had been purchased for use prior to July 1, 1969.” The order did not
contain findings of fact to support the court’s legal conclusion.
Ingersoll-Rand produced documentation showing that it sold products to Eastman
as late as 1966. Notably, however, Ingersoll-Rand failed to submit any evidence that it
ceased selling products to Eastman in 1966. Ingersoll-Rand also cited Mr. Coffman’s
testimony that there were Ingersoll-Rand pumps in the tank farm at the time he started
working at Eastman. According to Mr. Coffman, however, “many” of the pumps in the
tank farm were replaced. Mr. Coffman stated that he personally installed one new
Ingersoll-Rand pump in the early 1970s. Mr. Coffman’s testimony, in combination with
- 21 -
Mr. Frasier’s affidavit, raises a question of fact as to whether Eastman purchased at least
one Ingersoll-Rand pump (and perhaps others) on or after July 1, 1969. Accordingly, the
trial court erred in granting summary judgment to Ingersoll-Rand on the basis of the
statute of repose.
C.
The trial court granted summary judgment to the equipment defendants after
finding that they affirmatively negated their alleged duty to warn, which the court
determined was an essential element of plaintiffs’ negligence and strict liability claims.10
The equipment defendants concede that this ground for summary judgment only applies
to plaintiffs’ claims arising from the post-sale integration of asbestos-containing
insulation, flange gaskets, replacement internal gaskets, and replacement packing
manufactured and sold by others. The equipment defendants do not argue that they
negated their alleged duty to warn about asbestos-containing gaskets and packing
incorporated into their equipment pre-sale or sold separately by defendants as
replacement parts.11 As stated in DeZurik’s brief,
None of the defendants have argued that the TPLA precludes
liability for asbestos-containing products that were included
with their equipment at the time of sale. On the contrary, the
equipment defendants have consistently acknowledged their
potential liability for exposure to asbestos-containing
products (namely, internal gaskets and – where applicable –
packing) that were included with their equipment at the time
of sale so long as those exposures were a substantial
contributing factor in the development of Mr. Coffman’s
mesothelioma. To argue otherwise would be inconsistent
with settled law.
All of the equipment defendants except Crane Company adopted and incorporated this
section of DeZurik’s brief pursuant to Tenn. R. App. P. 27(j). Crane Company makes
10
It is increasingly common to blur the distinction between negligence and strict liability claims
in product liability actions, especially when those claims are based on a design defect or failure-to-warn
theory of liability. See, e.g., Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 701 (Tenn. 2011)
(“Although [Restatement (Second) of Torts § 388] addresses a supplier’s duty to warn under the law of
negligence, courts also apply its principles to the duty to warn in strict liability.”); Whitehead v. Dycho
Co., No. 47, 1987 WL 27044, at *4 (Tenn. Ct. App., filed Dec. 11, 1987), rev’d on other grounds, 775
S.W.2d 593 (Tenn. 1989) (stating that “the manufacturer’s duty [to warn] is the same” in negligence and
strict liability claims). See generally Rest. (Third) of Torts: Products Liability § 1, cmt. a; id. at § 2, cmt.
n. Although we have serious concerns about this approach, the parties have not pressed the issue.
11
Instead, the equipment defendants argue that plaintiffs presented insufficient evidence of
causation with respect to these products.
- 22 -
substantially the same argument.
In order to put the duty-to-warn issue into sharper focus, we begin by considering
the U.S. Supreme Court’s recent decision in Air & Liquid Systems Corporation et al. v.
Devries, Individually and as Administratrix of the Estate of Devries, Deceased et al.,
139 S. Ct. 986 (2019). In this maritime case, two Navy veterans were exposed to
asbestos, developed cancer, and eventually died. Id. at 991. The veterans’ families sued
the manufacturers of the pumps, blowers, and turbines used on three Navy ships.12 Id.
According to the plaintiffs, asbestos-containing insulation and asbestos-containing parts
were incorporated into, or used in connection with, the aforementioned equipment. Id.
Sometimes the equipment was delivered to the Navy in “bare metal” form, which
required the Navy to incorporate asbestos-containing parts post-sale; other times, “the
equipment manufacturers themselves added the asbestos to the equipment.” Id. at 991
n.1. The plaintiffs alleged that the equipment manufacturers “were negligent in failing to
warn of the dangers of asbestos.” Id.
The Court began its analysis by reciting “basic tort-law principles”:
Tort law imposes “a duty to exercise reasonable care” on
those whose conduct presents a risk of harm to others. 1
Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 7, p. 77 (2005). For the manufacturer of a
product, the general duty of care includes a duty to warn
when the manufacturer “knows or has reason to know” that
its product “is or is likely to be dangerous for the use for
which it is supplied” and the manufacturer “has no reason to
believe” that the product’s users will realize that danger. 2
Restatement (Second) of Torts § 388, p. 301 (1963–1964).
Id. at 993. The Court proceeded to explain that
[i]n tort cases, the federal and state courts have not reached
consensus on how to apply that general tort-law “duty to
warn” principle when the manufacturer’s product requires
later incorporation of a dangerous part in order for the
integrated product to function as intended. Three approaches
have emerged.
The first approach is the more plaintiff-friendly foreseeability
rule . . . . : A manufacturer may be liable when it was
foreseeable that the manufacturer’s product would be used
12
One of the defendants, Ingersoll-Rand, is also a defendant in the present case.
- 23 -
with another product or part, even if the manufacturer’s
product did not require use or incorporation of that other
product or part. See, e.g., 873 F.3d at 240; Kochera v. Foster
Wheeler, LLC, 2015 WL 5584749, *4 (S.D. Ill., Sept. 23,
2015); Chicano v. General Elec. Co., 2004 WL 2250990, *9
(E.D. Pa., Oct. 5, 2004); McKenzie v. A. W. Chesterson Co.,
277 Ore. App. 728, 749–750, 373 P.3d 150, 162 (2016).
The second approach is the more defendant-friendly bare-
metal defense that the manufacturers urge here: If a
manufacturer did not itself make, sell, or distribute the part or
incorporate the part into the product, the manufacturer is not
liable for harm caused by the integrated product – even if the
product required incorporation of the part and the
manufacturer knew that the integrated product was likely to
be dangerous for its intended uses. See, e.g., Lindstrom, 424
F.3d at 492, 495–497; Evans v. CBS Corp., 230 F. Supp. 3d
397, 403–405 (D. Del. 2017); Cabasug v. Crane Co., 989 F.
Supp. 2d 1027, 1041 (D. Haw. 2013).
The third approach falls between those two approaches.
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. See,
e.g., Quirin v. Lorillard Tobacco Co., 17 F. Supp. 3d 760,
769–770 (N.D. Ill. 2014); In re New York City Asbestos
Litigation, 27 N.Y. 3d 765, 793–794, 37 N.Y.S.3d 723, 59
N.E.3d 458, 474 (2016); May v. Air & Liquid Systems Corp.,
446 Md. 1, 29, 129 A.3d 984, 1000 (2015).
Id. at 993-94 (emphasis in original).
The Court declined to adopt the “mere foreseeability” approach because such an
approach “would impose a difficult and costly burden on manufacturers, while
simultaneously overwarning users.” Id. at 994. The Court held that the bare metal
defense “goes too far in the other direction.” Id. The Court emphasized that a
manufacturer already has a duty to warn when “the manufacturer ‘knows or has reason to
- 24 -
know’ that the product ‘is or is likely to be dangerous for the use for which it is supplied.’
” Id. (quoting 2 Rest. (Second) of Torts § 388 (1965)). According to the Court,
the same holds true . . . when the manufacturer’s product
requires incorporation of a part that the manufacturer knows
or has reason to know is likely to make the integrated product
dangerous for its intended uses. As a matter of maritime tort
law, we find no persuasive reason to distinguish those two
similar situations for purposes of a manufacturer’s duty to
warn. See Restatement (Third) of Torts: Products Liability §
2, Comment i, p. 30 (1997) (“[W]arnings also may be needed
to inform users and consumers of nonobvious and not
generally known risks that unavoidably inhere in using or
consuming the product”).
Id.
Ultimately, the High Court adopted the “third approach,” holding that:
[i]n the maritime tort context, a product manufacturer has a
duty to warn when (i) its product requires incorporation of a
part, (ii) the manufacturer knows or has reason to know that
the integrated product is likely to be dangerous for its
intended uses, and (iii) the manufacturer has no reason to
believe that the product’s users will realize that danger.
Id. at 995. The Court clarified that the “third approach” also encompasses “certain
related situations,” such as when:
(i) a manufacturer directs that the part be incorporated, see,
e.g., Bell v. Foster Wheeler Energy Corp., 2016 WL
5780104, *6–*7 (E.D. La., Oct. 4, 2016); (ii) a manufacturer
itself makes the product with a part that the manufacturer
knows will require replacement with a similar part, see, e.g.,
Chesher v. 3M Co., 234 F. Supp. 3d 693, 713–714 (D. S.C.
2017); Quirin, 17 F. Supp. 3d at 769–770; May, 446 Md., at
29, 129 A.3d at 1000; or (iii) a product would be useless
without the part, see, e.g., In re New York City Asbestos
Litigation, 27 N.Y. 3d, at 793–794, 37 N.Y.S.3d 723, 59
N.E.3d at 474.
Id. at 995-96. In these situations, “the product in effect requires the part in order for the
integrated product to function as intended.” Id. (emphasis added).
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Justifying its decision, the Court explained that “the product manufacturer will
often be in a better position than the parts manufacturer to warn of the danger from the
integrated product.” Id. at 994. This is because “[t]he product manufacturer knows the
nature of the ultimate integrated product and is typically more aware of the risks
associated with that integrated product.” Id. In addition, because manufacturers already
have a duty to warn of the dangers of their own products, the burden of providing
additional warnings “should not meaningfully add to that burden.” Id. at 994-95.
Three justices dissented. These justices would have adopted the bare metal
defense. However, even the dissenting justices agreed that the defendants who purchased
asbestos-containing components from other manufacturers and incorporated those
components into their products pre-sale “had a duty to warn users about the known
dangers of asbestos.” Id. at 1000 n.5 (Gorsuch, J., dissenting). The dissenting justices
also conceded that there is “a colorable argument” that the defendants’ duty to warn
“didn’t end when the Navy, as part of routine upkeep, swapped out the original asbestos
parts for replacements supplied by others.” Id.
In the case now before us, the trial court ruled that the equipment defendants
negated their alleged duty to warn about the post-sale integration of asbestos-containing
insulation, flange gaskets, replacement internal gaskets, and replacement packing
manufactured and sold by others. According to the court, the defendants successfully
demonstrated that Tennessee is a “bare metal defense” jurisdiction. In reaching that
conclusion, the court primarily relied on three federal cases interpreting Tennessee law:
Strayhorn v. Wyeth Pharm., Inc., 737 F.3d 378 (6th Cir. 2013), Barnes v. Kerr, Corp.,
418 F.3d 583 (6th Cir. 2005), and Kellar v. Inductotherm Corp., 498 F. Supp. 172 (E.D.
Tenn. 1978). The court also cited the Tennessee Supreme Court’s decision in Davis v.
Komatsu America Indus. Corp., 42 S.W. 34 (Tenn. 2001).
In our view, the cases relied upon by the trial court do not support the conclusion
that Tennessee is a “bare metal defense” jurisdiction.13 In Strayhorn, the plaintiffs
alleged that they “developed a serious neurological disorder” after ingesting
metoclopramide, the generic equivalent of the prescription drug Reglan. 737 F.3d at 383.
The plaintiffs sued the manufacturers of both drugs. Id. One theory of liability was that
the manufacturer of Reglan “had an affirmative duty . . . to accurately label their products
because a medical professional could foreseeably rely on that information in prescribing
metoclopramide, the generic equivalent of Reglan.” Id. at 401. The Sixth Circuit
rejected this view:
13
We also note that “[w]hen a federal court undertakes to decide a state law question in the
absence of authoritative state precedent, the state courts are not bound to follow the federal court’s
decision.” Townes v. Sunbeam Oster Co., Inc., 50 S.W.3d 446, 452 (Tenn. Ct. App. 2001).
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[W]e have no basis to conclude in this diversity case that the
Tennessee Supreme Court would overrule its prior decisions
holding that a manufacturer owes no duty of care to
consumers of products made by others. Tennessee law
instead “requires manufacturers to warn of hidden and
unknown dangers in their product.” Pemberton v. Am.
Distilled Spirits Co., 664 S.W.2d 690, 693 (Tenn. 1984)
(emphasis added) (internal quotation marks omitted).
Furthermore, “[d]rug manufacturers have a duty to exercise
ordinary and reasonable care not to expose the public to an
unreasonable risk of harm from the use of their products.”
Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn.1994)
(emphasis added). In Tennessee, a relationship exists
between manufacturers and “those who foreseeably could be
injured by the use of their products,” not those persons
injured by some other product. See id. (emphasis added).
Id. at 405.
First, Strayhorn is not an “incorporation case.” In other words, the case did not
involve the question of whether a manufacturer has a duty to warn when a dangerous
product made by others is likely to be incorporated into, or used in connection with, the
manufacturer’s product post-sale. Second, the Strayhorn court’s use of Tennessee case
law is questionable. The court cites Pittman and Pemberton to support its conclusion
that manufacturers never have a duty to warn of dangers associated with products
manufactured by others. Id. The court selectively italicized words from those two
opinions to make this point. However, Pittman and Pemberton are not incorporation
cases. In fact, those cases did not even involve multiple products produced by different
manufacturers. As we see it, Strayhorn does not establish that Tennessee is a bare metal
defense jurisdiction.
In Barnes, a dentist sued the manufacturer of dental amalgams (also known as
“silver fillings”) after he allegedly developed mercury poisoning. 418 F.3d at 585. The
amalgams manufactured by the defendant “consist[ed] of capsules of mercury and metal
alloy, which the dentist combines by breaking a thin plastic wall separating the
components, and then uses the amalgam as a filling.” Id. at 585-86. Although the
product contained “prominent warning labels” about the dangers of mercury, the plaintiff
argued that the warnings were inadequate because “they stated the dangers of mercury
alone, but not of mercury combined with the other ingredients of dental amalgams.” Id.
at 586, 591. The Sixth Circuit rejected that argument because (1) “the admonitory power
of the warning would not be increased by a statement that mercury is also dangerous
when used in conjunction with the other ingredients in dental amalgams”; and (2)
because plaintiff “cited no Tennessee authority holding that a warning about a dangerous
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ingredient in a product must affirmatively state that the particular ingredient remains
dangerous when it is combined or is being combined with the other ingredients.” Id. at
591. The court also stated:
Although a product manufacturer generally has a duty to warn
of the dangers of its own products, it does not have a duty to
warn of the dangers of another manufacturer’s products. . . .
This is true even where a manufacturer has sufficient
expertise to foresee the dangers of another company’s
products.
Id. at 590 (citing Kellar v. Inductotherm Corp., 498 F. Supp. 172, 175 (E.D. Tenn.
1978)).
Although Barnes might be considered an “incorporation case” because it involves
the combination of multiple ingredients, Barnes primarily involves the inadequacy of a
warning on an admittedly dangerous product. Here, the equipment defendants are not
arguing that their products were safe because they contained adequate warnings; instead,
they dispute their alleged duty to warn altogether.
In Kellar, the plaintiff sued the manufacturer of a furnace and a rear deck that
were purchased by the plaintiff’s employer. 498 F. Supp. at 173. The plaintiff’s
employer placed the furnace into a pit and built a platform that surrounded the furnace.
Id. at 174. The rear deck was attached to the furnace. Id. During the operation of the
furnace, there were times when the rear deck did not completely cover the pit in which
the furnace was installed. Id. One day, the plaintiff fell into the pit and injured himself.
Id. The plaintiff argued that the furnace was defective and unreasonably dangerous
because it was not designed with a guard for the pit. Id. The plaintiff also argued that
the furnace was defective because the defendant failed to warn of the danger of the
unguarded pit. Id.
The Kellar court rejected the plaintiff’s arguments. The court emphasized that
plaintiff’s injury was caused by the dangerous pit and platform created by the plaintiff’s
employer, not the furnace or rear deck manufactured by the defendant. Id. It was in this
context that the court said:
If a manufacturer could be held liable for injury merely
because it foresaw a danger created by another party, there
would literally be no end of potential liability. To sustain
such a theory would be to cast manufacturers into the role of
insurers of products manufactured by others.
Id.
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Importantly, the Kellar court noted that “[t]his is not a case in which a safe
product arguably becomes dangerous because of the anticipated addition to it of other
products.” Id. at 175 (emphasis added). Finally, most of the court’s analysis concerned
the plaintiff’s design defect claim, not the failure-to-warn claim. The failure-to-warn
claim was quickly dismissed because the dangerous condition of the pit was open and
obvious. Id. at 175 n.1, 176. Here, of course, we are dealing with an allegation that “a
safe product arguably becomes dangerous because of the anticipated addition to it of
other parts.” Plaintiffs’ claims are also based on the theory that defendants failed to warn
of a non-obvious risk.
Although the trial court primarily relied on these federal cases in determining that
the equipment defendants did not have a duty to warn, the court ruled that “[t]his is
especially true under the ‘component part doctrine’ as recognized by the Tennessee
Supreme Court.”14 In Davis v. Komatsu America Industries Corporation, the Tennessee
Supreme Court adopted the component parts doctrine as articulated in Section 5 of the
Restatement (Third) of Torts: Products Liability. 42 S.W.3d 34 (Tenn. 2001). Under this
doctrine,
[o]ne engaged in the business of selling or otherwise
distributing product components who sells or distributes a
component is subject to liability for harm to persons or
property caused by a product into which the component is
integrated if:
(a) the component is defective in itself, as defined in this
Chapter, and the defect causes the harm; or
(b)
(1) the seller or distributor of the component
substantially participates in the integration of the
component into the design of the product; and
(2) the integration of the component causes the product
to be defective . . . ; and
(3) the defect in the product causes the harm.
Id. at 41 (quoting and adopting Section 5 of the Restatement (Third) of Torts: Products
Liability (1997)). According to the Tennessee Supreme Court, the component parts
14
The trial court’s discussion of the component parts doctrine only appears in the court’s order
granting summary judgment to Crane Company.
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doctrine is sometimes called the “raw materials supplier defense” but “the principle is the
same.” Id. at 38 n.6 (citing In re: TMJ Implants Products Liability Litigation, 97 F.3d
1050, 1055, 1055 n.6 (8th Cir. 1996)). Some courts have also used the terms “component
parts doctrine” and “bare metal defense” interchangeably. This makes sense only when
the “raw materials” or “bare metal” products are the components of a final, integrated
product. See Bell v. Foster Wheeler Energy Corp., 2016 WL 5780104, at *7 n.17 (E.D.
La., filed Oct. 4, 2016) (distinguishing between claims asserted against “a manufacturer
of a bare metal component part that was used in conjunction with an asbestos product”
and claims against a “component part manufacturer [that] does not make a bare metal
product, but instead makes a component part containing asbestos”).
The trial court determined that the products manufactured by the defendants were
“components” of Eastman’s larger piping system. Applying the component parts
doctrine, the court determined that the equipment defendants were not liable because
their products were not defective in themselves and there was no evidence that the
defendants substantially participated in the integration of their products into the Eastman
piping system.
The trial court mischaracterized the nature of this case. Plaintiffs are not alleging
that the integration of defendants’ valves, pumps, and steam traps caused Eastman’s
piping system to become defective; rather, plaintiffs are arguing that the integration of
asbestos-containing insulation, gaskets, and packing into defendants’ products caused the
defendants’ products to become defective. To paraphrase the plaintiffs, the asbestos-
containing parts are the components and the defendants’ valves, pumps, and steam traps
are the final, integrated products. 15 Because plaintiffs are suing the manufacturers of the
final, integrated products, the component parts doctrine is inapplicable. See Bell, 2016
WL 5780104, at *7 n.17.
Contrary to the decision of the trial court, there are no Tennessee cases that speak
to the question of whether suppliers of industrial equipment have a duty to warn about
dangers associated with the post-sale integration of dangerous component parts
manufactured and supplied by others. We therefore approach this question of law as an
issue of first impression.
At the outset, we note that our courts have sometimes suggested that in products
liability cases a duty to warn only arises when a product is “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); Goode v. Tamko Asphalt Products, Inc., 783 S.W.2d
15
We are aware that the Restatement identifies valves as an example of a component part. See
Rest. (Third) of Torts: Products Liability § 5, cmt. a. Ultimately, however, the factual context of a case
determines whether a product is serving as a component part or the final, integrated product.
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184, 187 (Tenn. 1989). This slightly mischaracterizes the issue. Section 105(a) of the
TPLA substantially codified the common law rule set forth in the Restatement (Second)
of Torts § 402A. Shropshire v. American Tobacco Co., Div. of American Brands, Inc.,
1988 WL 41018, at *1 (Tenn. Ct. App., filed Apr. 29, 1988), perm. app. denied (Tenn.
1988). Under that common law rule, a product could be considered “defective” if it did
not contain appropriate warning labels. See Rest. (Second) of Torts § 402A, cmt. h.
(“Where . . . [a supplier] has reason to anticipate that danger may result from a particular
use [of a product], . . . [the supplier] may be required to give adequate warning of the
danger . . . and a product sold without such warning is in a defective condition.”); see
also Rest. (Third) of Torts: Products Liability § 2(c). This, of course, requires a threshold
determination that a common law duty to warn existed. See Bissinger v. New Country
Buffet, No. M2011–02183–COA–R9–C, 2014 WL 2568413, at *19 (Tenn. Ct. App.,
filed June 6, 2014) (approvingly quoting a trial court’s observation that “there [is] ‘no
statutory duty to warn under the Tennessee regulatory scheme,’ . . . the issue is whether
there is a common law duty.”). Therefore, despite some authority to the contrary, we
begin our analysis by determining whether the equipment defendants had a duty to warn
about the post-sale integration of asbestos-containing products manufactured and sold by
others.
In Satterfield v. Breeding Insulation Company, the Tennessee Supreme Court set
forth a detailed method for determining the existence and scope of a person’s duty of
care.16 The Court explained that “[d]uty is a legal obligation to conform to a reasonable
person standard of care in order to protect others against unreasonable risks of harm.”
266 S.W.3d 347, 355 (Tenn. 2008). Generally, persons have a duty to refrain from
engaging in acts of “misfeasance” – affirmative acts that create “an unreasonable and
foreseeable risk of harm to persons or property.” Id. at 362 (citing McCall v. Wilder, 913
S.W.2d 150, 153 (Tenn. 1995)). On the other hand, persons generally do not have a duty
to protect persons from harm caused by others unless “certain special relationships exist
between the defendant and either the person who is the source of the danger or the person
who is foreseeably at risk from the danger.” Id. at 359 (citations omitted). A defendant’s
failure to protect persons from harm caused by others is called “nonfeasance.” Id. at 355-
56.
A defendant’s failure to warn can be classified as nonfeasance when the defendant
was not the source of the danger. See, e.g., Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn.
1993). On the other hand, a defendant’s failure to warn can be considered misfeasance if
the defendant was the source of the danger or otherwise engaged in conduct that created
“an unreasonable and foreseeable risk of harm to persons or property.” See Satterfield,
266 S.W.3d at 362 (emphasis added) (citing McCall v. Wilder, 913 S.W.2d 150, 153
16
Defendants argue that Satterfield only applies in premises liability cases. The Satterfield Court
stated just the opposite: “[T]his opinion is not addressed to premises liability law but rather to the law
applicable in a general negligence misfeasance case.” 266 S.W.3d 347, 371 (Tenn. 2008).
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(Tenn. 1995)). Here, plaintiffs allege that the equipment defendants created “an
unreasonable and foreseeable risk of harm” by manufacturing and selling equipment that
was likely (and intended) to be used with asbestos and which did not contain warning
labels about asbestos. This is an allegation of misfeasance.
The Satterfield Court established the following test for determining the existence
and scope of a duty of care in negligence cases involving alleged misfeasance:
When the existence of a particular duty is not a given or when
the rules of the established precedents are not readily
applicable, courts will turn to public policy for guidance.
Doing so necessarily favors imposing a duty of reasonable
care where a “defendant’s conduct poses an unreasonable and
foreseeable risk of harm to persons or property.” When
conducting this analysis, the courts have considered, among
other factors: (1) the foreseeable probability of the harm or
injury occurring; (2) the possible magnitude of the potential
harm or injury; (3) the importance or social value of the
activity engaged in by the defendant; (4) the usefulness of the
conduct to the defendant; (5) the feasibility of alternative
conduct that is safer; (6) the relative costs and burdens
associated with that safer conduct; (7) the relative usefulness
of the safer conduct; and (8) the relative safety of alternative
conduct.
With these factors firmly in mind, Tennessee’s courts use a
balancing approach to determine whether the particular risk
should give rise to a duty of reasonable care. A duty arises
when the degree of foreseeability of the risk and the gravity
of the harm outweigh the burden that would be imposed if the
defendant were required to engage in an alternative course of
conduct that would have prevented the harm.
* * *
While every balancing factor is significant, the foreseeability
factor has taken on paramount importance in Tennessee. This
factor is so important that if an injury could not have been
reasonably foreseen, a duty does not arise even if causation-
in-fact has been established. Conversely, foreseeability alone
is insufficient to create a duty. Thus, to prevail on a
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negligence claim, a plaintiff must show that the risk was
foreseeable, but that showing is not, in and of itself, sufficient
to create a duty. Instead, if a risk is foreseeable, courts then
undertake the balancing analysis.
Id. at 365-66 (internal citations and footnotes omitted).
Because foreseeability of harm is central to the Satterfield duty analysis, the bare
metal defense is clearly inconsistent with Tennessee law. As the trial court noted, the
bare metal defense shields a defendant from liability with respect to products
manufactured and sold by others even if it is foreseeable that those products will be
incorporated into, or used in connection with, the defendant’s product post-sale. It is
equally clear, however, that the “mere foreseeability” approach followed by some states
is inconsistent with Satterfield. 266 S.W.3d at 366 (“[A] plaintiff must show that the risk
was foreseeable, but that showing is not, in and of itself, sufficient to create a duty.”).
The U.S. Supreme Court’s “third approach” is not consistent with the Satterfield analysis
either.17 Focusing on whether the later incorporation of a dangerous product was
“required” or “in effect required” collapses the Satterfield foreseeability analysis and
balancing test into one step. This approach also does not adequately take into account
one of the most important factors of the Satterfield balancing test – “the gravity of the
harm” posed by a defendant’s conduct.
The Satterfield duty analysis has been subject to enduring criticism. See, e.g.,
Satterfield, 266 S.W.3d at 375-79 (Holder, J., dissenting). In some cases, it has proven
difficult to apply. See, e.g., Stockton v. Ford Motor Company, No. W2016–01175–
COA–R3–CV, 2017 WL 2021760, at *12-15 (Tenn. Ct. App., filed May 12, 2017);
Marla H. v. Knox County, 361 S.W.3d 518, 532 n.15 (Tenn. Ct. App. 2011). However,
“it is simply not our place to disregard binding precedent set forth by our supreme court.”
Stockton, 2017 WL 2021760, at *19 (Stafford, J., dissenting).
We now apply Satterfield to the facts of this case. First, Satterfield requires us to
decide whether plaintiffs submitted evidence that it was reasonably foreseeable that the
equipment defendants’ conduct would create “a recognizable risk of harm to [Mr.
Coffman] individually, or to a class of persons . . . of which [Mr. Coffman] is a
member.”18 Id. at 367. Plaintiffs argue that asbestos exposure from the post-sale
17
We are not required to apply the U.S. Supreme Court’s “third approach,” because the Court
expressly limited its holding to the “maritime tort context.” Air and Liquid Sys. Corp., 139 S. Ct. at 991.
18
This foreseeability analysis is consistent with the TPLA. The TPLA limits suppliers’ liability
to products that are “in a defective condition or unreasonably dangerous at the time [they] left the control
of the manufacturer or seller.” Tenn. Code Ann. § 29-28-105(a) (emphasis added). The TPLA defines
“defective condition” as a product that is “unsafe for normal or anticipatable handling and consumption.”
Id. at § 29-28-102(2) (emphasis added). The TPLA also provides that “[i]f a product is not unreasonably
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integration of insulation, flange gaskets, replacement internal gaskets, and replacement
packing was foreseeable by pointing to evidence that the defendants themselves
incorporated asbestos parts into some of their equipment pre-sale, sold asbestos materials
for use with their equipment, and specified that asbestos replacement materials should be
used with their equipment. This evidence was introduced in the form of corporate
documents (e.g., material specification lists, product catalogues, repair manuals, etc.) as
well as testimony from corporate representatives.19
Plaintiffs also rely on the affidavit of an expert witness, Frank Parker, who is a
certified industrial hygienist. Based on his knowledge of the defendants’ equipment and
relevant industry practices, Mr. Parker testified that it was “reasonably foreseeable” that:
(1) “flanged equipment would need flange gaskets to prevent the equipment from leaking
once installed”; (2) “gaskets deteriorate over time and would need to be replaced”; (3)
“replacement asbestos gaskets and packing would very likely be used in the equipment”;
(4) “after installation, they would likely be insulated for safety and/or heat retention”; and
(5) “asbestos containing thermal insulation products . . . were available and commonly
used within industry prior to World War II and well into the 1970’s.” Based on this
evidence, we agree with plaintiffs that it was foreseeable for mechanics like Mr. Coffman
to be exposed to asbestos-containing insulation, flange gaskets, replacement internal
gaskets, and replacement packing supplied by others post-sale.20
As previously discussed, “foreseeability alone is insufficient to create a duty. . . .
Instead, if a risk is foreseeable, courts then undertake the balancing analysis.”
Satterfield, 266 S.W.3d at 366. The Satterfield balancing test requires consideration of
the following factors:
(1) the foreseeable probability of the harm or injury
occurring; (2) the possible magnitude of the potential harm or
injury; (3) the importance or social value of the activity
engaged in by the defendant; (4) the usefulness of the conduct
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.” Id. at § 29-28-108 (emphasis added).
19
Fisher challenges the admissibility of plaintiffs’ evidence that Fisher directed the use of
asbestos with its products. Because this argument was raised for the first time on appeal, we deem the
argument waived. Fisher also argues that the evidence cited by plaintiffs does not support the conclusion
that Fisher specified the use of asbestos with its products. Fisher argues that its “material specifications”
lists were merely for “internal” use. Fisher also insists that it merely supplied asbestos parts when its
customers specified their need for them. We see no meaningful difference and therefore reject Fisher’s
narrow interpretation of the evidence.
20
As we explain in the next section of this opinion, the trial court abused its discretion by
excluding the testimony of Mr. Parker.
- 34 -
to the defendant; (5) the feasibility of alternative conduct that
is safer; (6) the relative costs and burdens associated with that
safer conduct; (7) the relative usefulness of the safer conduct;
and (8) the relative safety of alternative conduct.
Id. at 365. We have already discussed the foreseeability factor at length. That factor
clearly weighs in favor of imposing a duty to warn. “In light of the debilitating and fatal
illnesses that can be caused by exposure to asbestos fibers, the magnitude of the potential
harm [to plaintiff] was great.” See id. at 368. Thus, the second factor also weighs in
favor of imposing a duty to warn. The third and fourth factors concern the social value
and usefulness of the defendants’ conduct. Clearly, the defendants were engaged in the
exchange of goods. Economic activity is generally beneficial to society. Factors five and
six concern the feasibility of alternative conduct and the relative costs and burdens
associated with alternative conduct. As the U.S. Supreme Court observed in Air &
Liquid Systems Corporation, “issuing a warning costs time and money. But the burden
usually is not significant.” 139 S. Ct. at 994. Moreover, “[m]anufacturers already have a
duty to warn of the dangers of their own products.” Id. at 994-95. The last two factors
relate to the relative safety and usefulness of alternative conduct. In the present case, Mr.
Coffman testified that he would have sought out protective gear if he had seen a warning
label on the defendants’ equipment. Defendants did not refute that testimony.
Accordingly, the last two factors of the balancing test also favor imposing a duty to warn.
As previously mentioned, the Satterfield balancing test is conducted for the
purpose of determining whether “the degree of foreseeability of the risk and the gravity
of the harm outweigh the burden that would be imposed if the defendant were required to
engage in an alternative course of conduct that would have prevented the harm.”
Satterfield, 266 S.W.3d at 365. In the present case, it was extremely foreseeable that
asbestos-containing insulation, flange gaskets, replacement internal gaskets, and
replacement packing would be applied to the defendants’ equipment post-sale. The
Supreme Court has also noted that asbestos “is an extremely dangerous substance and that
unprotected exposure to respirable asbestos fibers over a period of time may well result in
death.” Nye, 347 S.W.3d at 704 (emphasis added). “Given the highly hazardous nature
of asbestos [and] the dire consequences to the unwarned consumer,” the “possible
magnitude of the potential harm” was great. Satterfield, 266 S.W.3d at 365; Nye, 347
S.W.3d at 704. 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.
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D.
The last issue presented in this case is whether the trial court erred by granting
summary judgment to Armstrong, Crane Company, DeZurik, Fisher, Jamesbury,
Jerguson, and John Crane on the ground that plaintiffs presented insufficient evidence of
causation.21 For the reasons discussed below, we hold that plaintiffs successfully raised
genuine issues of fact as to whether Mr. Coffman’s mesothelioma was caused by his
exposure to: (1) John Crane packing; (2) internal gaskets incorporated into Armstrong
steam traps pre-sale; and (3) asbestos-containing insulation, gaskets, and packing that
were manufactured and sold by Johns-Manville and incorporated into defendants’
equipment post-sale. Accordingly, we vacate the court’s orders granting summary
judgment to each of the defendants on this ground.
To survive summary judgment, plaintiffs were required to submit evidence that
could lead a jury to reasonably conclude that each of the defendants’ products was a
“cause in fact” as well as a “proximate cause” of Mr. Coffman’s development of
mesothelioma. Nye, 347 S.W.3d at 704. “Cause in fact or ‘actual cause’ means ‘that the
injury or harm would not have occurred ‘but-for’ the defendant’s negligent conduct.’ ”
King v. Anderson Co., 419 S.W.3d 232, 246 (Tenn. 2013) (quoting Kilpatrick v. Bryant,
868 S.W.2d 594, 598 (Tenn. 1993)). “It is not necessary that the defendants’ act be the
sole cause of the plaintiff’s injury, only that it be a cause.” Hale v. Ostrow, 166 S.W.3d
713, 718 (Tenn. 2005) (emphasis in original). “Proximate or legal cause is a policy
decision made by the legislature or the courts to deny liability for otherwise actionable
conduct[.]” Nye, 347 S.W.3d at 705. To prove proximate causation, a plaintiff must
show that
(1) the tortfeasor’s conduct must have been a “substantial
factor” in bringing about the harm being complained of; and
(2) there is no rule or policy that should relieve the wrongdoer
from liability because of the manner in which the negligence
has resulted in the harm; and (3) the harm giving rise to the
action could have reasonably been foreseen or anticipated by
a person of ordinary intelligence and prudence.
Wilson v. Americare Sys., Inc., 397 S.W.3d 552, 558 (Tenn. 2013) (citing Hale, 166
21
In a footnote, plaintiffs argue that the trial court did not grant these seven defendants summary
judgment on the ground of insufficient evidence of causation. We disagree. The court clearly granted
these defendants summary judgment on the issue of causation. Later, the court entered an order denying
plaintiffs’ motion to designate John Crane’s summary judgment order as a final judgment. In that order,
the court suggested it did not grant other defendants summary judgment because of plaintiffs’ insufficient
evidence of causation. However, the court’s previous orders were certified as final judgments;
accordingly, they were not subject to revision.
- 36 -
S.W.3d at 719).
“Where the evidence supports more than one reasonable conclusion, causation in
fact and proximate causation are issues of fact which should be decided by the jury and
not the appellate court.” Id. at 559. At the summary judgment stage, the nonmoving
party may raise a genuine issue of material fact by relying on “direct evidence,
circumstantial evidence, or a combination of both.” Hindman v. Doe, 241 S.W.3d 464,
468 (Tenn. Ct. App. 2007) (citations omitted). “Both types of evidence can be equally
relevant . . . and equally probative[.]” Id. (citations omitted). However, “the nonmoving
party must do ‘something more than simply show that there is some metaphysical doubt
as to the material facts.’ ” Rye, 477 S.W.3d at 265 (citing Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
First, we will consider plaintiffs’ evidence of actual causation with respect to John
Crane. Second, we will consider plaintiffs’ evidence of actual causation with respect to
the six equipment defendants. Third, we will turn our attention to proximate causation.
1.
Mr. Coffman identified John Crane as one of the four manufacturers of packing
that he encountered at Eastman. Plaintiffs allege that Mr. Coffman was exposed to
asbestos dust during the removal of John Crane packing from various pieces of
equipment. The trial court ruled that plaintiffs presented insufficient evidence that Mr.
Coffman’s exposure to John Crane packing was an actual cause of his development of
mesothelioma. Specifically, the court determined that plaintiffs presented insufficient
evidence that the John Crane packing at Eastman actually contained asbestos.
It is undisputed that John Crane sold packing that contained asbestos. John Crane
also sold packing that did not contain asbestos. Both types of packing were advertised
for use in corrosive, high-heat environments. Mr. Coffman did not have direct
knowledge that the John Crane packing at Eastman contained asbestos; he could only
state that the packing was gray and charcoal-colored. If this were the only evidence
introduced by plaintiffs, we would agree with John Crane that the evidence merely
introduced “some metaphysical doubt” about whether the John Crane packing at Eastman
contained asbestos. Critically, however, a corporate representative of John Crane
testified that “[m]ost of the nonasbestos products were more expensive, and a lot of the
firms didn’t want to use them.” A jury could reasonably infer from this testimony that
Eastman purchased John Crane’s asbestos-containing packing because it was less
expensive. Accordingly, we conclude that there is sufficient circumstantial evidence in
the record to create a genuine issue of fact as to whether the John Crane packing at
Eastman contained asbestos and contributed to Mr. Coffman’s development of
mesothelioma. The trial court erred in concluding otherwise.
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2.
We now consider whether plaintiffs presented sufficient evidence of actual
causation with respect to equipment sold by Armstrong, Crane Company, DeZurik,
Fisher, Jamesbury, and Jerguson.
We hold that plaintiffs presented sufficient evidence that Mr. Coffman was
exposed to insulation, flange gaskets, replacement internal gaskets, and replacement
packing sold by others and used with defendants’ equipment post-sale. According to the
trial court, “[i]t is undisputed that Donald Coffman was exposed to asbestos-containing
products, including insulation, gaskets, and packing, that were manufactured, distributed
or sold by Johns-Manville Corporation.” (Emphasis added.) Apparently, the court did
not consider this evidence relevant to the causation analysis because the court had already
determined that the equipment defendants did not have a duty to warn about products
manufactured and sold by others. However, as we explained earlier in this opinion, the
equipment defendants did have a duty to warn about the post-sale integration of asbestos-
containing insulation, flange gaskets, replacement internal gaskets, and replacement
packing manufactured and sold by others. Because it is undisputed that Mr. Coffman was
exposed to asbestos while removing Johns-Manville insulation, gaskets, and packing
from equipment at Eastman, we hold that plaintiffs successfully raised a question of fact
as to whether that equipment contributed to Mr. Coffman’s development of
mesothelioma. The trial court erred by concluding otherwise.
We also hold that plaintiffs successfully raised an issue of fact as to whether Mr.
Coffman was exposed to asbestos during the removal of original gaskets in Armstrong
steam traps. The trial court ruled that Armstrong “does not appear to dispute that its
steam traps at Eastman probably had original internal asbestos-containing gaskets.”
Although Mr. Coffman did not know whether the specific gaskets that he removed were
originals or replacements, he testified that Armstrong steam traps were replaced “at least
twice a week.” Naturally, this would increase the probability that Mr. Coffman
encountered original asbestos-containing gaskets. Given the length of Mr. Coffman’s
career at Eastman and the frequent installation of new Armstrong steam traps, a jury
could reasonably infer that Mr. Coffman was, in fact, exposed to asbestos during the
removal of internal gaskets incorporated into Armstrong steam traps pre-sale.
Consequently, the trial court erred by concluding that plaintiffs presented insufficient
evidence that Mr. Coffman’s exposure to the original asbestos-containing gaskets in
Armstrong steam traps was an actual cause of his disease.
To summarize, we conclude that plaintiffs raised genuine issues of material fact as
to whether Mr. Coffman’s development of mesothelioma was caused by his exposure to:
(1) John Crane packing; (2) internal gaskets incorporated into Armstrong steam traps pre-
sale; and (3) insulation, flange gaskets, internal replacement gaskets, and replacement
packing used in connection with defendants’ equipment post-sale.
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3.
Turning to proximate causation, we will now consider whether the court erred by
determining that plaintiffs presented insufficient evidence that Mr. Coffman’s exposure
to defendants’ products substantially contributed to his development of mesothelioma.22
Plaintiffs argue that the expert testimony of Mr. Parker and Dr. Maddox creates a
question of fact on this issue. Mr. Parker is a certified industrial hygienist. Based on his
review of Mr. Coffman’s deposition testimony, Mr. Parker testified that
a) Mr. Coffman and probably most if not all the workers
working in Mr. Coffman’s work area at the Tennessee
Eastman plant were routinely exposed to significant airborne
concentrations of respirable asbestos fibers;
b) These exposure concentrations most likely frequently
exceeded any contemporary occupational exposure standard;
c) Mr. Coffman was occupationally exposed to asbestos
directly and as a bystander;
d) Mr. Coffman’s direct and bystander asbestos exposures to
the asbestos containing materials on (insulation) and
incorporated into the pumps, valves, and steam trap (gaskets
and packing), and packing brand itself identified above, as
well as his exposure to insulation dust created by Daniel
personnel, were each a significant source of Mr. Coffman’s
asbestos exposures; and
e) Mr. Coffman’s exposures to asbestos released from each of
these equipment, products, and the contractor Daniel
increased his dose, which in turn significantly increased his
risk of contracting an asbestos related disease such as
mesothelioma.
Dr. Maddox is a pathologist. He testified as follows:
[I]t is my personal and professional opinion, within
22
Defendants do not appear to dispute the applicability of the other two elements of proximate
causation: the absence of a “rule or policy that should relieve the wrongdoer from liability because of the
manner in which the negligence has resulted in the harm” and “the harm giving rise to the action could
have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence.” See
Wilson, 397 S.W.3d at 558.
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reasonable medical probability, that Mr. Coffman suffered
from malignant mesothelioma that was caused by his
cumulative exposure to asbestos dust. With reasonable
medical probability, all of the component exposures that were
clearly above normal background levels, repetitive, and
within a 10 year latency period, as discussed by Frank Parker,
CIH, in his report and in Mr. Coffman’s testimony,
contributed to cause his malignant mesothelioma. It is my
opinion that, within a reasonable degree of medical
probability, Mr. Coffman’s exposure to asbestos dust from
gaskets, packing, and thermal system insulation were
substantial factors in causing Mr. Coffman’s malignant
mesothelioma.
The trial court disregarded the testimony of Mr. Parker and Dr. Maddox because
the court determined that their affidavits were untimely and inadmissible in evidence.
We review the trial court’s decision for abuse of discretion. Shipley v. Williams, 350
S.W.3d 527, 552 (Tenn. 2011); Bowman v. Bennouttas, 519 S.W.3d 586, 603 (Tenn. Ct.
App. 2016).
It is undisputed that plaintiffs identified their expert witnesses and filed expert
reports prior to the deadline established in the court’s scheduling order. The testimony
disregarded by the trial court appears in supplemental affidavits submitted in response to
defendants’ motions for summary judgment. “A party is under a duty seasonably to
supplement the party’s [discovery] response with respect to . . . the identity of each
person expected to be called as an expert witness at trial, the subject matter on which the
person is expected to testify, and the substance of that testimony.” Tenn. R. Civ. P. 26.05
(emphasis added); see also Waters v. Coker, No. M2007-01867-COA-RM-CV, 2008 WL
4072104, at *6 (Tenn. Ct. App., filed Aug. 28, 2008) (“The fact that an expert witness
who has responded to a request for discovery subsequently changes the substance of that
testimony during the course of litigation is not uncommon.”). The trial court abused its
discretion when it disregarded the experts’ testimony because plaintiffs had a duty under
the rules of civil procedure to file supplemental affidavits if Mr. Parker or Dr. Maddox
intended to change “the subject matter on which [they were] expected to testify” or “the
substance of that testimony.” Tenn. R. Civ. P. 26.05. In any event, defendants cannot
argue that they were “surprised” by the testimony contained in the experts’ supplemental
affidavits because their affidavits were filed months prior to the summary judgment
hearing.
The court also disregarded the experts’ testimony because the court determined
that their testimony “lacked sufficient foundation.” According to the court, the experts’
testimony was “conclusory” and “speculative” because the experts did not “examine the
relevant job site or various products through which Mr. Coffman was allegedly exposed
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to asbestos.” The court also noted that the experts did not “conduct any exposure
calculations.” Instead, plaintiffs’ experts based their opinions on the deposition
testimony of Mr. Coffman and Mr. Frasier. Dr. Maddox also based his opinion, in part,
on Mr. Parker’s expert report.
We conclude that the trial court abused its discretion because it applied an
incorrect legal standard in excluding the testimony of plaintiffs’ experts. Expert opinion
testimony is generally admissible if it “will substantially assist the trier of fact to
understand the evidence or to determine a fact in issue[.]” Tenn. R. Evid. 702. In
asbestos-exposure cases,
experts [are] not required to establish “a dose exposure above
a certain amount” before they c[an] testify about causation.
So long as a qualified expert can offer an opinion, based
upon reliable data, that will substantially assist the trier of
fact, the expert’s testimony should be permitted.
Payne v. CSX Transp., Inc., 467 S.W.3d 413, 457 (Tenn. 2015) (emphasis added) (footnote
omitted) (citing Tenn. R. Evid. 702 & 703).
Experts may not testify “in the form of an opinion or inference if the underlying
facts or data indicate lack of trustworthiness.” Tenn. R. Evid. 703. However, experts do
not have to base their opinions on firsthand knowledge. See id. (“The facts or data in the
particular case upon which an expert bases an opinion or inference may be those
perceived by or made known to the expert at or before the hearing.”) (emphasis added);
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993) (“[A]n expert is
permitted wide latitude to offer opinions, including those that are not based on firsthand
knowledge or observation.”); Shipley, 350 S.W.3d at 553 (holding that expert testimony
in a medical malpractice case does not require firsthand knowledge). Experts may even
give their opinion in response to a hypothetical question as long as “the question
contained enough facts, supported by evidence, to permit an expert to give a reasonable
opinion which is not based on mere speculation or conjecture and which is not misleading
to a trier of fact.” Pentecost v. Anchor Wire Corp., 662 S.W.2d 327, 329 (Tenn. 1983).
When the evidence is conflicting concerning the existence of
the assumed facts material to the expert’s opinion, counsel
propounding the hypothetical is obviously entitled to include
as an assumed fact his version of the evidence on the disputed
fact. It is then for the jury to resolve the factual dispute and,
depending upon its findings, determine what weight, if any, to
give the opinion elicited by the hypothetical.
Tolliver v. Tripp, No. 311, 1990 WL 140917, at *3 (Tenn. Ct. App., filed Oct. 1, 1990)
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(citing Pentecost, 662 S.W.2d at 329).
Mr. Parker’s testimony is admissible because he was not required to have firsthand
knowledge of the Eastman facility or the products to which Mr. Coffman was exposed in
order to give his expert opinion on the seriousness of Mr. Coffman’s cumulative exposure
to asbestos. He was entitled to rely on the deposition of Mr. Coffman and Mr. Frasier to
develop an opinion on the matter. Dr. Maddox’s expert opinion is admissible because it
essentially responds to the following hypothetical question: If Mr. Coffman was exposed
to asbestos-containing products as often as he says he was, then was Mr. Coffman’s
exposure to those products a substantial contributing factor to the development of his
disease? “It is . . . for the jury to . . . determine what weight, if any, to give the opinion
elicited by the hypothetical.” See Tolliver, 1990 WL 140917, at *3.
For the foregoing reasons, we conclude that the trial court abused its discretion
when it disregarded the testimony of plaintiffs’ expert witnesses. We also hold that the
experts’ testimony was sufficient to raise a question of fact as to whether each of the
defendants’ products was a substantial contributing factor (and a proximate cause) of Mr.
Coffman’s development of mesothelioma.
To conclude our discussion of this ground for summary judgment, we reiterate that
plaintiffs presented sufficient evidence of actual causation with respect to: (1) John
Crane packing; (2) internal gaskets incorporated into Armstrong steam traps pre-sale; and
(3) insulation, flange gaskets, internal replacement gaskets, and replacement packing
used in connection with defendants’ equipment post-sale. Plaintiffs also introduced
admissible expert testimony that raised genuine issues of material fact as to proximate
causation. Accordingly, the trial court erred when it granted summary judgment to John
Crane and six of the equipment defendants on the ground that plaintiffs presented
insufficient evidence of causation.
V.
We vacate all of the final judgments entered by the trial court. The case is
remanded for further proceedings consistent with this opinion. Costs on appeal are taxed
to the appellees, Armstrong, Crane Company, Daniel, DeZurik, Fisher, Flowserve,
Ingersoll-Rand, Jamesbury, Jerguson, John Crane, and Powell.
________________________________
CHARLES D. SUSANO, JR., JUDGE
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