Products Liability Law Daily Statute of repose not a bar to asbestos litigation
Tuesday, July 23, 2019

Statute of repose not a bar to asbestos litigation

By David Yucht, J.D.

A state trial court erred by applying the component parts doctrine when it ruled that mechanical parts manufacturers had no duty to warn of the dangers involved in their asbestos-containing products.

A trial court erred when it determined that a suit against four entities filed by a mechanic afflicted with mesothelioma was barred by the Tennessee statute of repose, a state appeals court in Tennessee ruled. Accordingly, the appellate court reversed the trial court’s judgment and reinstated the case against those entities. Moreover, the appellate court reversed the trial court’s ruling that ten entities sued by the mechanic affirmatively negated their alleged duty to warn. The appellate court also found that the mechanic presented sufficient causation evidence (Coffman v. Armstrong International, Inc., July 22, 2019, Susano, C.).

A mechanic worked at a chemical plant for 30 years. For most of his career, he worked as a mechanic in an area where acid was refined. He was responsible for repairing and replacing equipment, including pumps, valves, steam traps, and piping. He asserted that he was exposed to asbestos by breathing in dust that was created when he removed insulation manufactured by Johns-Manville Corporation to reach the equipment on which he worked. He also was often present during the removal and installation of insulation. There was a crew of insulators present every day who 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.

The mechanic also asserted that he breathed in dust created when he removed asbestos-containing gaskets manufactured by Flexitallic, Garlock, and Johns-Manville. Gaskets were sometimes removed in order to make repairs. Normally, parts of a gasket would stick to the equipment and had to be scraped off to prevent future leaks. This process created visible dust. Moreover, he breathed in dust created by the removal of asbestos-containing packing manufactured by John Crane, Inc., A.W. Chesterton, Garlock, and Johns-Manville. Packing serves as a sealant which is wrapped around the interior stem of valves and used to hold fluids and steam inside pumps. He used a "packing hook" to pull packing out, which created a visible dust. He testified that none of the equipment he worked on contained labels warning him about the dangers of asbestos exposure.

After he was diagnosed with mesothelioma, he sued Daniel, John Crane, and several manufacturers of industrial equipment. These equipment manufacturers purchased asbestos-containing gaskets and/or packing from other manufacturers and incorporated these components into some of their equipment. They also sold asbestos-containing replacement gaskets and/or packing manufactured by others. All the companies filed motions for summary judgment. Daniel argued that the claims were time-barred by Tennessee’s four-year construction statute of repose. Several others argued that the claims

Against them were time-barred by Tennessee’s product liability ten-year statute of repose. Additionally, the equipment manufacturers argued that they had affirmatively negated their alleged duty to warn. Several companies also argued that the evidence was insufficient to establish causation. Ultimately, the trial court granted summary judgment dismissing all claims. The mechanic appealed.

Statutes of repose. The appellate court ruled that none of the mechanic’s claims were time-barred. Tennessee’s construction statute of repose provides that personal injury actions involving a deficiency in the construction of an improvement to real property must be initiated within four years after substantial completion of such an improvement. Daniel was an independent contractor hired to perform construction services at the chemical plant, including the periodic removal and installation of insulation. The trial court ruled that the statute of repose barred the mechanic’s claims because Daniel’s insulation work was "construction of an improvement to real property." The appellate court held that the daily removal and installation of insulation at an industrial facility over the course of many years indicated that existing insulation was merely being repaired and replaced and, consequently, such activity was not "construction of an improvement to real property." Accordingly, the trial court erred when it granted summary judgment to Daniel based on the four-year construction statute of repose.

As to the ten-year statute of repose, under Tennessee law, asbestos exposure actions are exempt from the general ten-year product liability statute of repose. The statute of repose does not shield sellers or manufacturers of asbestos-containing products from liability with respect to their products "first purchased for use or consumption" after June 30, 1969. Because there were questions of fact as to whether these companies sold asbestos-containing valves and replacement parts to the mechanic’s employer after June 30, 1969, the appellate court held that they failed to show undisputed facts that established the statute of repose defense.

Duty to warn. The trial court erred by finding that the manufacturers negated their alleged duty to warn, which was an essential element of the mechanic’s claims. It was conceded that this ground applied only to claims arising from the post-sale integration of asbestos-containing items. The appellate court noted that the trial court determined that the products manufactured here were "components" of a larger piping system. Applying the component parts doctrine, the lower court determined that the equipment manufacturers were not liable because their products were not defective in themselves and there was no evidence that they substantially participated in the integration of their products into the piping system.

According to the appellate court, however, the trial court mischaracterized the nature of this case. The mechanic did not allege that the integration of the valves, pumps, and steam traps caused the piping system to become defective; rather, he argued that the integration of asbestos-containing insulation, gaskets, and packing into the manufacturers’ products caused these products to become defective. The asbestos-containing parts were the components, and the manufacturers’ valves, pumps, and steam traps were the final, integrated products. Consequently, the component parts doctrine was inapplicable.

Causation in fact. The appellate court determined that the trial court erred by granting summary judgment to several of the companies based on a purported failure to show causation. The mechanic identified John Crane as one of the four manufacturers of packing that he encountered on the job. He alleged that he was exposed to asbestos dust during the removal of John Crane packing from various pieces of equipment. The trial court ruled that he presented insufficient evidence that the John Crane packing contained asbestos. However, a John Crane representative testified that most of his company’s non-asbestos products were more expensive, so many companies did not want them. A jury could reasonably infer from this testimony that the mechanic’s employer purchased John Crane’s cheaper asbestos-containing packing.

The appellate court also determined that the mechanic presented adequate evidence of actual causation with respect to equipment sold by Armstrong, Crane Company, DeZurik, Fisher, Jamesbury, and Jerguson. There was evidence that he was exposed to insulation, flange gaskets, replacement internal gaskets, and replacement packing sold by others and used with the manufacturers’ equipment post-sale. There was no dispute that the mechanic was exposed to asbestos-containing products, including insulation, gaskets, and packing, that were manufactured, distributed, or sold by Johns-Manville. The appellate court felt that the trial court failed to consider this evidence relevant to the causation analysis because it had already mistakenly determined that the equipment manufacturers had no duty to warn. Because it was undisputed that the mechanic was exposed to asbestos while removing Johns-Manville insulation, gaskets, and packing from equipment, the appellate court held that he raised a question as to whether that equipment contributed to his sickness.

Proximate cause. Concerning proximate causation, the appellate court determined that the lower court erred by determining that there was insufficient evidence that the exposure to the manufacturers’ products substantially contributed to the mechanic’s mesothelioma. The appellate court ruled that the trial court abused its discretion when it disregarded expert testimony on procedural grounds. There was no surprise here in the experts’ supplemental affidavits because these affidavits were filed months prior to the summary judgment hearing.

The trial court also erred when it disregarded the experts’ testimony because it determined that their testimony "lacked sufficient foundation." According to the trial court, the experts’ testimony was "conclusory" and "speculative" because the experts did not "examine the relevant job site or various products through which the mechanic was allegedly exposed to asbestos." The trial court abused its discretion because it applied an incorrect legal standard in excluding the testimony of the experts. Under Tennessee law, expert testimony is generally admissible if it "will substantially assist the trier of fact to understand the evidence or to determine a fact in issue[.]" In asbestos cases, experts need not establish "a dose exposure above a certain amount" to testify about causation. If a qualified expert can opine, based upon reliable data, the expert’s testimony should be permitted.

The cases are No.E2017-01985-COA-R3-CV; E2017-02389-COA-R3-CV; E2017-00062-COA-R3-CV; E2017-00063-COA-R3-CV; E2017-00064-COA-R3-CV; E2017-00065-COA-R3-CV; E2017-00066-COA-R3-CV; E2017-00067-COA-R3-CV; E2017-00069-COA-R3-CV; E2017-00071-COA-R3-CV; E2017-00075-COA-R3-CV; E2017-00078-COA-R3-CV; and E2017-00995-COA-R3-CV.

Attorneys: H. Douglas Nichol (Nichol & Associates) for Carolyn Coffman. James A. Beakes, III (Butler Snow LLP) for Armstrong International, Inc.

Companies: Armstrong International, Inc.

MainStory: TopStory SofLReposeNews WarningsNews CausationNews SCLIssuesNews AsbestosNews TennesseeNews

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