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Stockton v. Ford Motor Co.

Court of Appeals of Tennessee, Jackson

May 12, 2017

JOYCE STOCKTON, ET AL.
v.
FORD MOTOR COMPANY

          Session February 14, 2017

         Appeal from the Circuit Court for Madison County No. C-13-6 Roy B. Morgan, Jr., Judge

         This is a jury case. Automobile mechanic and his wife, Appellees, filed suit against Appellant Ford Motor Company for negligence in relation to wife's diagnosis of mesothelioma. Appellees allege that Ford's brake products, which contained asbestos, were unreasonably dangerous or defective such that Ford owed a duty to warn Mr. Stockton so that he, in turn, could protect his wife from exposure to air-borne asbestos fibers. The jury returned a verdict against Ford for $3.4 million. Ford appeals. Because the jury verdict form is defective, in that it omits two necessary questions in products liability cases, i.e., that the product at issue was unreasonably dangerous or defective and that the plaintiff's injuries were reasonably foreseeable, we vacate the judgment and remand.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and Remanded

          Stephen A. Marcum, Huntsville, Tennessee; Jonathan D. Hacker and Brad N. Garcia, pro hac vice, Washington, D.C., for the appellant, Ford Motor Company.

          Harry Douglas Nichol, Knoxville, Tennessee; Jonathan Ruckdeschel, pro hac vice, Ellicott City, Maryland; Robert Shuttlesworth and Ross Stomel, pro hac vice, Houston, Texas, for the appellees, Joyce Stockton and Ronnie Stockton.

          Kenny Armstrong, J., delivered the opinion of the court. D. Michael Swiney, C.J., filed a separate concurring opinion. J. Steven Stafford, P.J., W.S., filed a separate concurring and dissenting opinion.

          OPINION

          KENNY ARMSTRONG, JUDGE

         I. Background

         This is an appeal from a $3, 400, 000.00 jury verdict and judgment against Appellant Ford Motor Company ("Ford"). Ronnie Stockton began working as an automobile mechanic in 1971. In 1980, Mr. Stockton opened his own shop, Stockton Auto, where he worked on vehicles of every make and model, including vehicles manufactured by Ford. Mr. Stockton's wife, Joyce (together with Mr. Stockton, the "Stocktons, " or "Appellees"), never worked directly with Ford brake products; however, she cleaned Stockton Auto twice per week and also laundered Mr. Stockton's clothing, which was exposed to asbestos dust. In 2011, Mrs. Stockton was diagnosed with mesothelioma, a lung cancer directly caused by chrysotile asbestos. It is undisputed that, in the mid-to-late 20th century, all automotive manufacturers used chrysotile asbestos in various automotive products, including brake linings and pads. When brake linings and pads are replaced, contaminant buildup (i.e., dust) must be cleaned from the brake assembly. If care is not taken to contain that dust, it can spread into the air and can be inhaled by mechanics and bystanders. Installing brake pads can require grinding the brake pads to size, which can also generate dust.

         The Stocktons initially filed suit in Illinois against sixty-one companies, including Ford. The Stocktons alleged that Mrs. Stockton's mesothelioma was caused by exposure to asbestos used in the companies' products. The defendants named in the Stocktons' Illinois lawsuit were all settled or dismissed. Ford was dismissed on the ground of forum non conveniens. Thereafter, on January 7, 2013, the Stocktons filed suit, in the Circuit Court for Madison County, against Ford, on the theory of products liability. In relevant part, Appellees' complaint averred that:

5. Mrs. Stockton was secondarily and primarily exposed to asbestos-containing products and dust emanating from those products which was brought home on her husband's clothing as a result of her husband's occupation as a mechanic. Defendant Ford Motor Company or its predecessor-in-interest is, or at times material hereto, has been engaged in the processing, manufacturing, sale, installation, and distribution of asbestos or asbestos-containing products. Plaintiffs would show that Plaintiff Joyce Stockton has been exposed, on numerous occasions, to asbestos-containing products produced and sold by Defendant and, in so doing, had inhaled great quantities of asbestos fibers. Further, Plaintiff Joyce Stockton has suffered injuries proximately caused by her exposure to asbestos-containing products designed, manufactured and sold by the Defendant.
6. Plaintiff was exposed to asbestos-containing products that were manufactured, designed, and distributed by the Defendant and their predecessors-in-interest for use in automobiles and commercial grade trucks. Plaintiffs would show that the defective design and condition of the products rendered such products unreasonably dangerous, and that the asbestos-containing products were in this defective condition at the time they were designed by or left the hands of the Defendant. Plaintiffs would show that Defendant's asbestos-containing products and requiring or calling for the use of asbestos-containing products were defective in the manner in which they were marketed for their failure to contain or include warnings regarding potential asbestos health hazards associated with the use of or the exposure to the products. Plaintiffs would show that this market defect rendered such products and machinery requiring or calling for the use of asbestos-containing products unreasonably dangerous at the time they were designed or left the hands of the Defendant. Plaintiffs would show that Defendant is liable in product liability including, but not limited to, strict product liability for the above-described defects.

         Based on the averments set out in their complaint, Appellees prayed for both compensatory and punitive damages.

         On April 10, 2013, Ford filed its answer, wherein it denied liability and raised, as an affirmative defense, the comparative fault of the other manufacturers named in the Illinois lawsuit and the comparative fault of Mr. Stockton. Concerning Mr. Stockton's alleged negligence, Ford averred that he possessed and repeatedly received warnings that brakes and other components contained asbestos, that dust generated from those products posed risks of serious bodily harm, and that the dust should not be inhaled or swept without protection. At trial, Ford provided evidence that Mr. Stockton had received training, in 1977 and 1982, explicitly warning that breathing dust from asbestos-containing automobile products could be hazardous and that protective gloves and masks should be worn when working with these products. In addition to this training, Ford also introduced numerous shop manuals that Mr. Stockton had received during his career; these manuals contained explicit warnings about the health risks associated with asbestos in brake parts. Thus, Ford maintained that the duty to warn Mrs. Stockton fell to her husband and not to Ford, which had no employer-employee relationship with Appellees.

         The case was tried to a jury over several days in August of 2015. At trial, Appellees' theory of liability was that exposure to asbestos from Ford's products caused Mrs. Stockton's mesothelioma. Appellees alleged that Ford was strictly liable for Mrs. Stockton's injuries, that Ford was negligent in the design of its products, and that Ford was negligent in failing to provide an adequate warning about the asbestos defect in its products. As to the failure to warn claim, Appellees did not argue that Ford should have warned Mrs. Stockton; rather, Appellees argued that Ford should have warned Mr. Stockton, who, in turn, would have protected Mrs. Stockton. Following deliberation, the jury returned a verdict, on August 21, 2015, finding that Ford was negligent "in failing to adequately warn Joyce Stockton and [that] such negligence [was] a cause of Joyce Stockton's injuries and damages." The jury assigned 71% of the fault for Mrs. Stockton's injuries to Ford and 29% of the fault to another manufacturer. The jury awarded $4, 192, 360.52 in compensatory damages, $232, 724.00 in loss of consortium damages, and $225, 000.00 in punitive damages. On December 4, 2015, Ford filed a motion for judgment as a matter of law or, in the alternative, for new trial. As required by Tennessee Rule of Appellate Procedure 3(e), Ford's motion sets out all of the issues raised in this appeal. On May 9, 2016, the trial court entered an "amended final judgment on jury verdict and order on Ford Motor Company's Post-Trial Motions, " wherein it denied Ford's motion for judgment as a matter of law or, in the alternative, for new trial. The May 9, 2016 order awards the Stocktons a total judgment of $3, 001, 868.45. Ford appeals.

         II. Issues

         Ford raises the following issues for review as stated in its brief:

1. Whether Ford is entitled to a new trial because: (a) the jury instructions impermissibly allowed jurors to find Ford liable for negligent failure to warn without finding that Ford's products were defective or unreasonably dangerous; (b) the verdict form and course of deliberations preclude any inference that the jury actually found that Ford's products were defective or unreasonably dangerous; (c) the court's exclusion of plaintiffs' prior complaint was erroneous and prejudicial; and (d) no reasonable jury could have failed to apportion some amount of negligence liability to Ronnie Stockton, given his undisputed failure as an employer to follow OSHA regulations and repeated warnings about the danger of asbestos in brake dust.
2. Whether the duty under Tennessee law of an employer to protect the family members of employees from workplace asbestos-dust hazards extends beyond the employer-employee, workplace context to impose on a product manufacturer a duty of care to family members of remote, occasional handlers of its product.
3. Whether specific causation can be found where: (1) the undisputed evidence established that [Mr. Stockton] was already aware of the dangers of asbestos dust and disregarded the risks, thus precluding any inference that yet another warning from Ford would have prevented [Mrs. Stockton's] injuries; (b) plaintiffs adduced no evidence quantifying or even estimating how much asbestos dust from Ford products [Mrs. Stockton] was exposed to, leaving jurors to rely solely on an "every exposure" theory foreclosed by precedent.
4. Whether the punitive damages verdict must be reversed because: (a) Michigan law should govern the issue of punishment for Ford's conduct, and Michigan law bars the imposition of punitive damages; and (b) there was no evidentiary basis for concluding that Ford recklessly ignored a known risk to family members of remote, occasional handlers of its products.

         We begin our review with Appellant's issue concerning the jury instructions and verdict form.

         III. Jury Instructions and Verdict Form

         The Tennessee Products Liability Act of 1978 (the "Act"), Tenn. Code. Ann. § 29-28-101, et seq, provides that:

[a] manufacturer or seller of a product shall not be liable for any injury to a person or property caused by the product unless the product is determined to be in a defective condition or unreasonably dangerous at the time it left the control of the manufacturer or seller.

         The foregoing statute is modeled on the Restatement (Second) of Torts § 402A, which provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property. . . .

         In Roysdon v. R.J. Reynolds Tobacco Co., the 6th Circuit Court of Appeals explained:

Prior to the enactment of § 29-28-105, Tennessee had judicially adopted § 402A of the Restatement (Second) of Torts (1966), which requires the plaintiff to prove that the product was both defective and unreasonably dangerous. Ellithorpe v. Ford Motor Co., 503 S.W.2d 516 (Tenn.1973). However, it is clear from the plain language of the statute and its legislative history that the criteria for liability were intended to be read in the disjunctive ("or") rather than the conjunctive ("and"). Smith v. Detroit Marine Engineering Corp., 712 S.W.2d 472, 474 (Tenn.App.1985), permission denied (June 30, 1986).[1]
***
Clearly, the Tennessee legislature intended to deviate from § 402A and allow a products liability action when the product is either defective or unreasonably dangerous.

Roysdon v. R.J. Reynolds Tobacco Co., 815 F.2d 80 (6th Cir. Tenn. 1989). Accordingly, whether a plaintiff's claim against a product manufacturer is couched in negligence, strict liability, or breach of warranty, Tennessee courts have held that the plaintiff must establish that the product was defective or unreasonably dangerous at the time the product left the control of the manufacturer. In Browder v. Pettigrew, the Tennessee Supreme Court specifically held that

in a products liability action in which recovery is sought under the theory of negligence, the plaintiff must establish the existence of a defect in the product just as he does in an action where recovery is sought under the strict liability theory or for breach of warranty, either express or implied. The only significant difference is that under the negligence theory the plaintiff has the additional burden of proving that the defective condition of the product was the result of negligence in the manufacturing process or that the manufacturer or seller knew or should have known of the defective condition.

Browder v. Pettigrew, 541 S.W.2d 402, 404 (Tenn. 1976) (internal citations omitted); accord Fulton v. Pfizer Hosp. Prod. Grp., Inc., 872 S.W.2d 908, 911 (Tenn. Ct. App. 1993) (quoting Higgs v. General Motors Corp., 655 F.Supp. 22, 23 (E.D.Tenn.1985)) ("'[I]t makes no difference whether the complaint is couched in terms of negligence, strict liability or breach of warranty, it has generally been held in the State of Tennessee that in order for a plaintiff to recover under any theory of products liability, the plaintiff must establish that the product was defective [or] unreasonably dangerous at the time the product left the control of the manufacturer.'").

         Before turning to review the jury instructions, we note that "[w]hether a jury instruction is erroneous is a question of law and is[, ] therefore[, ] subject to de novo review with no presumption of correctness." Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn. 2011). An erroneous jury instruction requires reversal when "it appears that the erroneous instruction more probably than not affected the judgment of the jury." Id. at 699.

         As to negligence generally, the Tennessee Civil Pattern Jury Instructions ("T.P.I.") provide:

         T.P.I.-CIVIL 3.01 Determination of Whether Plaintiff Entitled to Recover a Verdict (No Issue of Comparative Fault)

A plaintiff is entitled to recover compensation for an injury that was legally caused by the negligent conduct of a defendant. In this case, the plaintiff has the burden of proving:
1. That the defendant was negligent; and
2. That the negligence was a legal cause of injury to the plaintiff.
USE NOTE
This is merely an introductory statement which one may find useful but which may be omitted where it is not needed.
COMMENT
A negligence claim requires proof of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal cause. The existence of a legal duty is a question of law for the court which requires consideration of whether "such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of others." Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998).

         As set out in the "use note, " T.P.I. 3.01 is "merely an introductory statement;" accordingly, it may be modified depending on the nature of the lawsuit. Concerning Appellees' claim of negligence, in its proposed jury instructions, Ford asked for the following, modified version of T.P.I. 3.01:

         T.P.I.-CIVIL 3.01 Determination of Whether Plaintiff Entitled to Recover a Verdict

A plaintiff is entitled to recover compensation for an injury that was legally caused by the negligent conduct of a defendant. In this case, the plaintiff has the burden of proving:
1. That Ford was negligent in failing to warn Mrs. Stockton of the dangers associated with dust from chrysotile in Ford brakes and clutches;
2. That Ford's brakes and clutches were defective or unreasonably dangerous by failing to warn of the dangers associated with dust from chrysotile in Ford brakes and clutches; and
3. That the negligence was a cause in fact and legal cause of injury to plaintiff.
NOTE: Ford submits that Plaintiffs are required to establish negligence, strict liability, cause in fact and legal cause. Tenn. Code Ann. § 29-28-105(a); see also Fulton v. Pfizer Hosp. Prod. Grp., Inc., 872 S.W.2d 908, 911 n. 1 (Tenn. Ct. App. 1993) (whether cause of action is couched in terms of negligence or strict liability, plaintiff must establish that the product was defective or unreasonably dangerous).

(Emphases in original). The trial court denied Ford's proposed 3.01 instruction, stating:

THE COURT: So, let me read [jury instruction] 3 for a minute. Keep in mind the TPI just says that the negligence was a legal cause of injury to the plaintiff.
Now, that's the Tennessee Pattern Jury Instructions that's [sic] put together by the committee that consists of judges that try these cases.
So if I stick to the TPI and then know I'm following up with those other TPIs that that same committee put together, I feel like that's the safest approach.
***
What I'm inclined to do is leave 3.01 over defendant's objection as to how it was agreed upon in the first place.

         Having denied Ford's proposed 3.01 instruction, the trial court ultimately instructed the jury as follows on the negligence claim:

A plaintiff is entitled to recover compensation for an injury that was legally caused by the negligent conduct of a defendant. And in this case the plaintiff has the burden of proving, number one, the defendant was negligent; number two that the negligence was a legal cause of injury to the plaintiff.

         The foregoing instruction does not fully encapsulate Tennessee law on negligence in products liability cases. As discussed above, whether the plaintiff's claim is couched in negligence or in strict liability, as a threshold to recovery, the plaintiff must establish that the product was defective or unreasonably dangerous at the time the product left the control of the manufacturer. Browder, 541 S.W.2d at 404. The foregoing instruction, therefore, is not adequate because it broadly states that the jury must determine "negligence, " but it does not inform the jury that such negligence must rest on an initial finding that Ford's brake products were unreasonably dangerous or defective. In this regard, the trial court erred in denying Ford's proposed T.P.I. 3.01 instruction, supra.

         As noted above, the Stocktons also claimed that Ford was strictly liable for Mrs. Stockton's injuries. Concerning this claim, the trial court correctly instructed the jury verbatim from ...


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