Manufacturer has no duty to warn regarding products it did not make, sell or distribute.

The Tennessee Supreme Court recently held that product liability defendants “cannot be held liable for injuries resulting from products they did not make, distribute, or sell.” In Coffman v. Armstrong International, Inc., No. E2017-01985-SC-R11-CV (Tenn. Jan. 4, 2021), plaintiff was the wife of a deceased employee of a chemical plant. The husband died after being diagnosed with mesothelioma due to asbestos exposure at work.

Plaintiff brought this products liability claim against numerous defendants, including several industrial equipment manufacturers who made and sold equipment used by the deceased husband at his job. Plaintiff claimed that while the equipment made by these defendants did not contain asbestos, the defendants knew that the equipment would have to be integrated with asbestos-containing parts in order to be repaired and maintained. Plaintiff argued that defendants were liable under the Tennessee Products Liability Act (TPLA) because “their products were unreasonably dangerous and because the Equipment Defendants failed to adequately warn users of potential asbestos exposure resulting from the post-sale integration of asbestos-containing materials manufactured and sold by others,” and that defendants “were liable under a duty-to-warn theory because it was foreseeable, and even intended, that their equipment be repaired and maintained with asbestos-containing materials.”

Defendants filed a motion for summary judgment, asserting that because they did not make, sell or distribute the asbestos-containing materials, they could not be liable. The trial court agreed, granting summary judgment, but the Court of Appeals reversed, holding that “the Equipment Defendants owed a common law duty to warn about the post-sale integration of asbestos-containing products…” In this opinion, the Supreme Court reversed the Court of Appeals, holding that there was no duty to warn here.

The issue, which was a matter of first impression in Tennessee, was “whether the Equipment Defendants had a duty to warn of the dangers associated with the post-sale integration of asbestos-containing materials manufactured and sold by others.” The Court pointed out that the equipment at issue did not contain asbestos when it left defendants’ control, but rather that “an end user integrated or used asbestos-containing materials with the Equipment Defendants’ products after the final sale.”

Because failure to warn cases fall within the Tennessee Products Liability Act, “the language of the TPLA determines whether manufacturers can be liable for failing to warn of dangers associated with products they did not themselves make or sell.” Tenn. Code Ann. § 29-28-102(6). Based on the language of the Act, the Supreme Court agreed with defendants that “the best reading of the TPLA does not create a duty or liability for defendants for the post-sale incorporation of products containing asbestos because these products were incorporated into that equipment after it left their control.” The Court explained that “[t]he TPLA specifically provides that a defendant shall not be liable under the TPLA unless the product is defective or unreasonably dangerous at the time it left the defendant’s control,” and it stated that Tennessee case law supported this interpretation. Accordingly, the Court held that “the language of the TPLA and accompanying case law places a duty to warn on a manufacturer or seller to warn about the condition of the product only if it was defective or unreasonably dangerous at the time the manufacturer transfers control of the product.”

Plaintiff argued that the pieces of equipment at issue here were “in a defective condition at the time they left the Equipment Defendants’ control because they were designed to use asbestos-containing materials and provided no warnings as to the dangers of asbestos,” and that a duty to warn should be imposed here because “the definition of ‘defective condition’ includes ‘anticipatable handling.’” The Court ruled, though, that “these provisions [of the TPLA] still link a defendant’s liability to the defendant’s own product, not the product of another manufacturer.”

Plaintiff also urged that “the TPLA anticipates that manufacturers are liable for the foreseeable alterations, changes, improper maintenance, or abnormal use of their products,” and that here it was “actually intended and specified that asbestos material be used with their products.” The Court rejected this assertion, finding that “[w]hen viewing the TPLA as a whole, we find it dispositive that the end-products at issue on this appeal were neither made nor sold by the Equipment Defendants.”

Notably, the Court did not seem completely convinced that this was a just outcome. In the third-to-last paragraph of its opinion, the Court stated:

We reiterate that the language of the TPLA dictates our decision here, and we do not opine on what we perceive to be the optimal outcome of this case in terms of public policy. That determination is for the legislature. … Our Legislature has set forth a statute by which we must abide. … It is within the purview of the legislature to change common law and to set public policy, and the judiciary is bound by the constitutional acts of the Legislature. …We hold that, under the TPLA, manufacturers have no duty to warn with respect to products manufactured and sold by others.

(internal citations omitted). Justice Lee wrote a lengthy dissent here, wherein she wrote that the majority’s holding “undercuts the duty to warn in Tennessee products liability law, because even if a manufacturer knows that its product will have to undergo some future change or replacement, and knows the change or replacement will likely make the product unreasonably dangerous, the manufacturer has no duty to warn.” Instead, Justice Lee advocated for the standard that:

[A] manufacturer of a product should have a duty to warn when the manufacturer (1) knows or should know that its product requires aftermarket integration with another product, such as a replaceable component part, to function properly; and (2) knows or should know that this aftermarket integration will likely render the final product unreasonably dangerous.

In such a situation, like the one presented here, Justice Lee argued that the jury should be allowed to “do its job.”

The bright-line rule adopted by the majority here “provides clarity and predictability,” as noted by the dissent, but also allows manufacturers to escape liability even when they know that their product will be altered or repaired in a way that makes it dangerous. Considering the language included in the majority opinion, it will be interesting to see whether this issue is addressed by the Tennessee legislature.  (Don’t bet your retirement account on it.)

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