Evelyn Nye v. Bayer Cropscience, Inc.
2011 Tenn. LEXIS 486
Tenn.2011Background
- Nye diagnosed with mesothelioma in Sept. 2005; died Aug. 1, 2006.
- Nye worked for DuPont Chattanooga (1948–1985) and was exposed to asbestos insulation dust.
- North Brothers sold asbestos-containing insulation products to DuPont; manufacturers included Owens Corning, Pittsburgh Corning, Raybestos, Johns Manville.
- Plaintiff-wife asserted strict liability and failure-to-warn theories against North Brothers for products used by Nye at DuPont.
- Manufacturers sought bankruptcy protection; none were initially amenable to service of process; Court of Appeals reversed trial verdict and remanded for new trial.
- Trial court instructed jury that learned intermediary doctrine could bar North Brothers’ liability if DuPont knew of dangers or warnings were adequate; judgment for North Brothers followed; this Court reversed and remanded for new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether North Brothers is subject to strict liability under 29-28-106(b). | Nye: manufacturers not subject to service of process; seller liable. | North Brothers: preconditions not met since manufacturers weren’t insolvent or unserviceable. | Yes; North Brothers subject to strict liability because manufacturers were not amenable to service of process. |
| Whether learned intermediary doctrine improperly absolved North Brothers. | Nye: doctrine not applicable to asbestos in workplace. | North Brothers: doctrine should apply. | Learned intermediary doctrine not applicable; error reversible. |
| Whether jury instructions properly framed causation and warnings. | Instructions allowed that DuPont’s knowledge could absolve North Brothers. | Instructed proximate-cause framework consistent with law. | Instruction erroneous; prejudicial and reversible. |
| Whether retroactive application of bankruptcy-test (Grossman’s) affects state service-of-process analysis. | Retroactive Grossman’s test should apply to pre-petition claims. | Retroactivity misapplied; governs post-petition claims. | Court remanded for new trial; retroactivity issue deemed within scope of analysis. |
Key Cases Cited
- Flax v. DaimlerChrysler Corp., 272 S.W.3d 521 (Tenn. 2008) (recognizes failure-to-warn claims under Tenn. Code §29-28-102(6) sometimes apply to products not limited to medical context)
- Harden v. Danek Med., Inc., 985 S.W.2d 449 (Tenn.Ct.App. 1998) (discusses learned intermediary; physician as intermediary in warning chain)
- Whitehead v. Dycho Co., 775 S.W.2d 593 (Tenn. 1989) (rejected expansion of learned intermediary to non-medical workplace products)
- Wagoner v. Ford, 192 S.W.2d 840 (Tenn. 1946) (distinguishes intervention causation from learned intermediary doctrine)
- Snyder v. LTG Lufttechnik GmbH, 955 S.W.2d 252 (Tenn. 1997) (discusses causation and admissibility of product condition evidence)
- In re Grossman’s, Inc., 607 F.3d 114 (3d Cir. 2010) (overruled Frenville test for bankruptcy claims; defines Grossman’s test for when a claim arises)
- Wright v. Owens Corning, 450 B.R. 541 (W.D. Pa. 2011) (applies Grossman’s retroactively; discusses post-petition vs pre-petition claims)