IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

January 23, 2020 Session

CHARLES HUDDLESTON HEATON, JR., ET AL. 

v. CATHERINE L. MATHES ET AL.

Appeal from the Circuit Court for Knox County

No. 3-526-16 Deborah C. Stevens, Judge

___________________________________

No. E2019-00493-COA-R9-CV

___________________________________

The plaintiffs filed a health care liability action against a pharmacy and other medical 

defendants, claiming, inter alia, that the defendants failed to provide proper patient 

counseling and failed to warn of the risks associated with a prescription drug. The 

pharmacy defendants subsequently filed a motion to dismiss, asserting that the gravamen 

of the complaint against them was a products liability action rather than a health care 

liability action. The defendants further asserted that the “seller shield” defense found 

within the Tennessee Products Liability Act provided them with immunity from liability. 

The trial court denied the defendants’ motion to dismiss, ruling that the complaint stated 

a health care liability action rather than a products liability action. The trial court 

subsequently granted the defendants’ motion for permission to seek interlocutory appeal 

regarding whether the seller shield defense contained within the Tennessee Products 

Liability Act could be asserted when the plaintiffs’ claim is made pursuant to the 

Tennessee Health Care Liability Act. Following our thorough consideration of the issue, 

we affirm the trial court’s judgment, determining that the seller shield defense found in 

the Tennessee Products Liability Act is inapplicable to claims made under the Tennessee 

Health Care Liability Act. 

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and RICHARD H. DINKINS, J., joined.

John Knox Walkup and Andrew J. Pulliam, Nashville, Tennessee, for the appellants, 

Cigna Home Delivery Pharmacy; Tel-Drug, Inc.; Tel-Drug of Pennsylvania, LLC; and

David Scott Dessender.

04/03/2020
2

Leslie A. Muse and Grant E. Mitchell, Knoxville, Tennessee, for the appellees, Charles 

Huddleston Heaton, Jr., and Miki Heaton.

OPINION

I. Factual and Procedural History

On November 28, 2016, the plaintiffs, Charles Huddleston Heaton, Jr., and Miki 

Heaton, filed a complaint in the Knox County Circuit Court (“trial court”) against Dr. 

Catherine L. Mathes; Tennessee Center for Internal Medicine; Summit Medical Group, 

PLLC; Novo-Nordisk, Inc.; Cigna Home Delivery Pharmacy (“CHDP”); Tel-Drug, Inc.; 

Tel-Drug of Pennsylvania, LLC; and David Scott Dessender. In this complaint, the 

Heatons alleged that they had been damaged as a result of Mr. Heaton’s suffering acute 

pancreatitis and a subsequent traumatic brain injury caused by Mr. Heaton’s use of the 

prescription medication Victoza and the medical providers’ failure to appropriately 

“prescribe, counsel, provide, utilize, and/or discontinue this medication.” More 

specifically, the Heatons alleged claims of strict liability and simple negligence against 

Victoza’s manufacturer, Novo-Nordisk, Inc., and health care liability claims against the 

remaining defendants, including Mr. Heaton’s physician who prescribed Victoza, Dr.

Mathes, and the out-of-state, mail-order pharmacies where Mr. Heaton’s prescriptions for 

Victoza were filled as well as the pharmacist who filled them: CHDP; Tel-Drug, Inc.; 

Tel-Drug of Pennsylvania, LLC; and pharmacist Dessender (collectively, “the CHDP 

Defendants”). 

According to the Heatons, on July 30, 2014, Dr. Mathes prescribed Victoza for 

Mr. Heaton to treat his diabetes. Subsequently, in the summer of 2015, the Food and 

Drug Administration issued a Risk Evaluation and Mitigation Strategy (“REMS”) for 

Victoza to warn of the risk of acute pancreatitis with the medication’s use. Mr. Heaton 

asserted that he was not warned of this risk by any of the named defendants.

On September 27, 2015, Mr. Heaton was transported by ambulance to the 

University of Tennessee Medical Center with a complaint of severe abdominal pain. In 

November 2015, while traveling for the Thanksgiving holiday, Mr. Heaton was taken to 

Northridge Medical Center in Commerce, Georgia, where he was diagnosed with and 

treated for acute pancreatitis, sepsis, and acute respiratory failure. During this 

hospitalization, Mr. Heaton was allegedly informed that his pancreatitis was likely a 

result of his use of Victoza. 

The Heatons stated in their complaint that on December 30, 2015, Mr. Heaton was 

taken to the emergency room of Tennova North in Knox County, Tennessee, with 

complaints of abdominal pain, nausea, and vomiting. Mr. Heaton reportedly had lost 

approximately thirty pounds, and a gastrostomy tube was inserted during this visit. He 

remained in the hospital until January 11, 2016, but was later readmitted from January 15 
3

through January 29, 2016, for ongoing treatment of “necrotizing pancreatitis and severe 

malnutrition.” Mr. Heaton was sent to inpatient rehabilitation for approximately four 

weeks following his discharge from the hospital. Mr. Heaton asserted that after his 

discharge from inpatient rehabilitation, he remained in a weakened physical state, which 

resulted in a fall that caused him to suffer a severe traumatic brain injury on April 22, 

2016. Mr. Heaton also asserted that he remained disabled as a result of numerous 

medical complications, all of which were allegedly caused by his use of Victoza.

The Heatons averred in their complaint, inter alia, that the CHDP Defendants 

failed to provide any patient counseling to Mr. Heaton related to risks associated with his 

continued use of Victoza. They further alleged that the CHDP Defendants failed to 

notify Mr. Heaton of the 2015 REMS warning, which noted the risk of developing acute 

pancreatitis with Victoza’s use and instructed observation of symptoms and

discontinuance of Victoza if pancreatitis was suspected. The Heatons asserted that the 

CHDP Defendants should be held liable under the Tennessee Health Care Liability Act

(“THCLA”) and that proper pre-suit notice had been sent to all defendants. See Tenn. 

Code Ann. § 29-26-121(a) (Supp. 2019) (requiring written pre-suit notice to each 

defendant within a one-year statute of limitations and at least sixty days prior to filing the 

complaint).

On January 13, 2017, the CHDP Defendants filed a motion to dismiss the 

complaint based on, inter alia, the seller shield statute, which is codified at Tennessee 

Code Annotated § 29-28-106 (2012) of the Tennessee Products Liability Act (“TPLA”). 

This statutory subsection provides that a products liability action cannot be maintained 

against a product’s seller, other than the manufacturer, except in certain enumerated 

circumstances. See Tenn. Code Ann. § 29-28-106. The CHDP Defendants asserted that 

this statute shielded pharmacists from liability in the situation alleged in the complaint.

The CHDP Defendants argued that the Heatons’ complaint mislabeled the alleged claims 

against the CHDP Defendants as health care liability claims when the gravamen of the 

complaint against the CHDP Defendants was a products liability claim. The CHDP 

Defendants further claimed that the TPLA, codified at Tennessee Code Annotated §§ 29-

28-101, et seq. (2012), applies to failure-to-warn claims against pharmacists as sellers of 

drugs and, therefore, the claim should be dismissed based upon Tennessee Code 

Annotated § 29-28-106 because the CHDP Defendants were merely sellers and not the 

product’s manufacturer. Finally, the CHDP Defendants argued that they had no duty to 

provide warnings to Mr. Heaton other than those provided by the manufacturer and that

the complaint therefore did not state a health care liability action against the CHDP 

Defendants. 

On August 27, 2018, the trial court entered an order denying the CHDP 

Defendants’ motion to dismiss. Addressing the interplay between the TPLA and the 

THCLA, the court determined that the seller shield statute contained within the TPLA 

would not shield the CHDP Defendants from a THCLA claim. Concerning that issue, the 
4

court relied upon the reasoning of a multi-district federal court decision involving a 

similar question: In re New England Compounding Pharmacy, Inc. Prods. Liab. Litig.,

No. 13-02419-RWZ, 2014 WL 4322409 (D. Mass. Aug. 29, 2014) (“New England”).

1

 

The trial court explained:

There are certainly times where it would be more beneficial for one 

side or the other to proceed under a cause of action as a product liability 

claim versus a health care liability claim and vice versa. Because of the 

procedural differences as previously described, there may be situations 

where one or the other apply but to proceed under both would be 

unworkable. Absent any particular guidance from the legislation as to the 

applicability of the product liability defenses that may have been available 

prior to the passage of the expanded Tennessee Health Care Liability Act, 

the courts have to examine the gravamen of the complaint. 

In the case at hand, the Plaintiffs allege that the CHDP Defendants 

are liable for failing to follow the Tennessee Board of Pharmacy Rules; 

failing to provide patient counseling; failure to warn and failing to act with 

due and reasonable care. Complaint at ¶45 and also ¶47-48. Based upon 

the reasoning set forth in the New England Compounding Pharmacy case 

and the Tennessee precedent regarding pharmacists’ duty to warn . . . this 

Court finds that this case should proceed as a health care liability action and 

the defenses available under the Tennessee Product Liability Act at Tenn. 

Code Ann. § 29-28-106 are not applicable and therefore the Motion to 

Dismiss should be DENIED.

On September 26, 2018, the CHDP Defendants filed a motion seeking permission

for an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9. 

Following consideration of the Rule 9 factors, the trial court granted the Motion 

concerning the issue of the interplay between the TPLA and the THCLA and the 

applicability of a TPLA defense to the Heatons’ claims against the CHDP Defendants. 

The trial court concluded that interlocutory appeal should be granted to enable this Court 

to address the issue of whether the seller shield defense, codified at Tennessee Code 

Annotated § 29-28-106, should be applied to bar a claim under the THCLA. This Court 

likewise granted permission for interlocutory review.

 

1

In New England, certain of the defendants were clinics, hospitals, and other health care providers from 

Tennessee. Because some defendants in the case were from Tennessee, the Massachusetts District Court 

analyzed the claims pursuant to Tennessee law. 
5

II. Issue Presented

Pursuant to Tennessee Rule of Appellate Procedure 9, “we are limited on appeal to 

the question certified by the trial court in its order granting permission to seek an 

interlocutory appeal and in this Court’s order granting the appeal.” In re 

Bridgestone/Firestone & Ford Motor Co. Litig., 286 S.W.3d 898, 902 (Tenn. Ct. App. 

2008) (citing Tenn. R. App. P. 9). The trial court’s order and this Court’s order granting 

interlocutory appeal present the following issue for our review:

If the complaint asserts a claim under the Tennessee Health Care Liability 

Act against the pharmacy/pharmacist defendants (Cigna Defendants), are 

the pharmacy/pharmacist defendants barred from asserting the “seller 

shield” defense set forth in the Tennessee Products Liability Act, Tenn. 

Code Ann. § 29-28-106?

III. Standard of Review

Following the grant of an application for interlocutory appeal, “the standard of 

review is the same standard that would have been applied to the issue(s) in an appeal as 

of right.” See Peck v. Tanner, 181 S.W.3d 262, 265 (Tenn. 2005). A trial court’s denial 

of a motion to dismiss is a question of law, which this Court reviews de novo with no 

presumption of correctness. See Cannon ex rel. Good v. Reddy, 428 S.W.3d 795, 799 

(Tenn. 2014); see also Leggett v. Duke Energy Corp., 308 S.W.3d 843, 851 (Tenn. 2010). 

Upon appeal of such an order, “we take all allegations of fact in the plaintiff’s complaint 

as true, and review the lower courts’ legal conclusions de novo with no presumption of 

correctness.” Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997).

This appeal also involves the interpretation of state statutes. As our Supreme 

Court has explained:

Statutory construction is a question of law that is reviewable on a de novo 

basis without any presumption of correctness. When dealing with statutory 

interpretation, well-defined precepts apply. Our primary objective is to 

carry out legislative intent without broadening or restricting the statute 

beyond its intended scope. In construing legislative enactments, we 

presume that every word in a statute has meaning and purpose and should 

be given full effect if the obvious intention of the General Assembly is not 

violated by so doing. When a statute is clear, we apply the plain meaning 

without complicating the task. Our obligation is simply to enforce the 

written language. It is only when a statute is ambiguous that we may 

reference the broader statutory scheme, the history of the legislation, or 

other sources. Further, the language of a statute cannot be considered in a 

vacuum, but “should be construed, if practicable, so that its component 
6

parts are consistent and reasonable.” Marsh v. Henderson, 221 Tenn. 42, 

424 S.W.2d 193, 196 (1968). Any interpretation of the statute that “would 

render one section of the act repugnant to another” should be avoided. 

Tenn. Elec. Power Co. v. City of Chattanooga, 172 Tenn. 505, 114 S.W.2d 

441, 444 (1937). We also must presume that the General Assembly was 

aware of any prior enactments at the time the legislation passed. 

In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009) (other internal citations 

omitted).

IV. Interplay Between TPLA and THCLA

The issue on appeal involves the interplay between the TPLA and the THCLA 

when health care liability claims are asserted against a pharmacist and/or pharmacy for 

failure to warn of risks associated with a prescription medication. Specifically, the issue 

presented questions whether defendant pharmacies or pharmacists may assert the seller 

shield defense contained within the TPLA when the plaintiffs’ complaint states a claim 

pursuant to the THCLA. We agree with the trial court’s determination that the seller 

shield defense is inapplicable to this action.

The “seller shield” is found at Tennessee Code Annotated § 29-28-106 and 

provides as follows:

No product liability action, as defined in § 29-28-102, shall be commenced 

or maintained against any seller, other than the manufacturer, unless:

(1) The seller exercised substantial control over that aspect of the 

design, testing, manufacture, packaging or labeling of the 

product that caused the alleged harm for which recovery of 

damages is sought;

(2) Altered or modified the product, and the alteration or 

modification was a substantial factor in causing the harm for 

which recovery of damages is sought;

(3) The seller gave an express warranty as defined by title 47, 

chapter 2;

(4) The manufacturer or distributor of the product or part in 

question is not subject to service of process in this state and 

the long-arm statutes of Tennessee do not serve as the basis 

for obtaining service of process; or
7

(5) The manufacturer has been judicially declared insolvent.

Tennessee Code Annotated § 29-28-102 (2012) defines a product liability action as:

[A]ll actions brought for or on account of personal injury, death or property 

damage caused by or resulting from the manufacture, construction, design, 

formula, preparation, assembly, testing, service, warning, instruction, 

marketing, packaging or labeling of any product. “Product liability action” 

includes, but is not limited to, all actions based upon the following theories: 

strict liability in tort; negligence; breach of warranty, express or implied; 

breach of or failure to discharge a duty to warn or instruct, whether 

negligent, or innocent; misrepresentation, concealment, or nondisclosure, 

whether negligent, or innocent; or under any other substantive legal theory 

in tort or contract whatsoever.

In conjunction with an analysis of the interplay between the TPLA and the 

THCLA, some historical context is helpful. Before the more recent amendments to the 

THCLA were enacted, the statute originally spoke in terms of “medical malpractice” 

actions, which the statute defined as 

an action for damages for personal injury or death as a result of any medical 

malpractice by a health care provider, whether based upon tort or contract 

law. The term shall not include any action for damages as a result of 

negligence of a health care provider when medical care by such provider is 

not involved in such action.

Tenn. Code Ann. § 29-26-102 (1978). See Burris v. Hosp. Corp. of Amer., 773 S.W.2d 

932, 934 (Tenn. Ct. App. 1989). 

In Burris, a surgeon performed surgery on the patient’s lung, utilizing “Teflon 

felt” to support the sutures used to close the lung. See id. at 933. Following the patient’s 

death in 1987, allegedly due to complications she suffered as a result of the Teflon felt, 

the patient’s estate filed suit against the hospital, the surgeon, and others. See id. The 

trial court granted summary judgment to the hospital, determining that the three-year 

statute of repose contained within the Medical Malpractice Act would apply. See id. 

On appeal in Burris, the patient’s estate argued that the claim asserted was in the 

nature of a products liability claim, which was not within the purview of the medical 

malpractice statutes. See id. at 935. This Court disagreed, stating that a claim could fall 

within the purview of the Medical Malpractice Act even though it “involve[d] the 

characteristics of a products liability case.” See id. This Court reasoned that because the 

act used the inclusive phrase, “whether based upon tort or contract law,” and because all 
8

civil actions were based in either contract or tort, “any ground” alleged would fall within 

the purview of the Medical Malpractice Act. See id. 

More specifically, concerning actions against pharmacists and pharmacies, both 

the Tennessee Supreme Court and this Court have determined that a pharmacist or 

pharmacy owes a professional duty of care to a patient to act in compliance with the 

standard of care required by the pharmacy profession. See Pittman v. Upjohn Co., 890 

S.W.2d 425, 434 (Tenn. 1994); see also Dooley v. Everett, 805 S.W.2d 380, 385 (Tenn. 

Ct. App. 1990) (“The pharmacist is a professional who has a duty to his customer to 

exercise the standard of care required by the pharmacy profession in the same or similar 

communities as the community in which he practices his profession.”). This is, of course, 

similar to the standard applicable to all medical professionals in malpractice/health care 

liability actions. See, e.g., Shipley v. Williams, 350 S.W.3d 527, 537 (Tenn. 2011)

(explaining the standard applicable to medical defendants).

In 2011, the Tennessee Legislature passed the Tennessee Civil Justice Act of 

2011, which amended, inter alia, Tennessee’s Medical Malpractice Act. See Ellithorpe 

v. Weismark, 479 S.W.3d 818, 826 (Tenn. 2015) (citing 2011 Pub. Acts, Ch. 510 § 9 

(H.B. 2008)). As our Supreme Court has explained:

[T]he Tennessee Civil Justice Act of 2011 amended the existing Tennessee 

Medical Malpractice Act by removing all references to “medical 

malpractice” from the Tennessee Code and replacing them with “health 

care liability” or “health care liability action” as applicable. Furthermore, 

section 29-26-101 was added to the Code which defined “health care 

liability action” as “any civil action, including claims against the state or a 

political subdivision thereof, alleging that a health care provider or 

providers have caused an injury related to the provision of, or failure to 

provide, health care services to a person, regardless of the theory of liability 

on which the action is based.” Tenn. Code Ann. 29-26-101(a)(1) (Supp. 

2011) (emphasis added). This same section went on to provide that “[a]ny 

such civil action or claim is subject to the provisions of this part regardless 

of any other claims, causes of action, or theories of liability alleged in the 

complaint.” Id. § 29-26-101(c).

Id.

The THCLA defines a “health care provider” as, inter alia, a “health care 

practitioner licensed, authorized, certified, registered, or regulated under any chapter of 

title 63 or title 68 . . . .” Tenn. Code Ann. § 29-26-101 (a)(2)(A) (Supp 2019). 

Pharmacies and pharmacists are regulated under Title 63, Chapter 10 of the Code. See

Tenn. Code Ann. § 63-10-201, et seq. (2017). As such, pharmacists and pharmacies 

clearly come within the THCLA’s definition of health care providers.
9

Although Tennessee courts have previously applied malpractice/health care 

liability law to claims involving pharmacists or pharmacies who failed to warn patients of 

the risks of particular medications, our research has revealed no Tennessee cases 

addressing the interplay between the THCLA and the TPLA when there is an allegation 

that the medication itself was dangerous. The issue of the interplay between the TPLA 

and THCLA has only been specifically addressed by the Massachusetts federal district 

court in the New England case, both in the 2014 decision and in a subsequent 2016 

decision. See In re New England Compounding Pharmacy, Inc. Prods. Liab. Litig., No. 

13-02419-RWZ, 2016 WL 11045600 (D. Mass. Feb. 29, 2016) (“New England II”). In 

New England II, the federal court ultimately determined that the THCLA would control 

in that litigation. See id. at *1. We note that “[c]ases from other jurisdictions, including 

federal cases, are always instructive, sometimes persuasive, but never controlling in our 

decisions.” Summers Hardware & Supply Co., Inc. v. Steele, 794 S.W.2d 358, 362 

(Tenn. Ct. App. 1990).

The New England II plaintiffs had asserted a cause of action concerning a product, 

methylprednisolone acetate (“MPA”), which adversely affected the plaintiffs following 

their receipt of the contaminated injections of the drug. See 2016 WL 11045600, at *1. 

Because the plaintiffs’ injuries in that case resulted from both a product and the provision 

of health care services (injections), the district court determined that both the TPLA and 

the THCLA ostensibly governed. See id. However, in New England II, the district court 

determined that the mutually exclusive liability regimes of the TPLA and the THCLA left 

them in conflict with one another. See id. at *2. The district court concluded: “Because 

the coverage provisions of the two statutes overlap in this instance, their conflicting 

liability and damages provisions preclude the application of both, and force a choice 

between them.” Id. To resolve this conflict, the district court followed Tennessee 

precedent regarding such conflicts and applied “the more specific statute in lieu of the 

more general one.” Id. (citing Graham v. Caples, 325 S.W.3d 578, 582 (Tenn. 2010)). 

Under this approach, the district court concluded that the THCLA was the more specific 

statute between the two; therefore, the THCLA took precedence and rendered the TPLA 

inapplicable. See New England II, 2016 WL 11045600, at *2.

We determine that the provisions of the TPLA and the THCLA maintain some

overlap in coverage when the product involved has a medical use or application. For 

example, the THCLA governs “any civil action . . . alleging that a health care provider or 

providers have caused an injury related to the provision of, or failure to provide, health 

care services to a person, regardless of the theory of liability on which the action is 

based.” Tenn. Code Ann. § 29-26-101(a)(1). As the federal district court determined in 

New England II, the terms “any” and “related” contained in Tennessee Code Annotated §

29-26-101(a)(1) emphasize the expansive nature of the THCLA. See 2016 WL 

11045600, at *1. The New England II Court explained that “[a] legislature’s use of the 

word ‘any’ typically indicates its intent for a statute to have maximal reach.” Id. (citing 
10

United States v. Gonzalez, 520 U.S. 1, 5 (1997)). Similarly, the New England II Court 

explained that the word, “related,” “denotes a similar breadth.” See 2016 WL 11045600, 

at *1 (citing BLACK’S LAW DICTIONARY (10th ed. 2014)). 

We note that our Supreme Court’s interpretation of the THCLA supports this 

approach. See Ellithorpe, 479 S.W.3d at 827 (emphasizing that the THCLA applies to 

“all civil actions alleging that a covered health care provider or providers have caused an 

injury related to the provision of, or failure to provide health care services”). Likewise, 

the TPLA also provides expansive coverage governing “all actions brought for or on 

account of personal injury, death, or property damage caused by or resulting from . . . any 

product . . . under any . . . theory in tort or contract whatsoever.” See Tenn. Code Ann. § 

29-28-102(6). 

As the New England II Court explained:

The THCLA precludes faultless liability, and requires that plaintiffs prove 

some dereliction of a professionally acceptable standard of care. Tenn. 

Code Ann. § 29-26-115(a) (West 2015); see also Rye v. Women’s Care 

Center of Memphis, MPLLC, [477] S.W.3d [235, 265-67], 2015 WL

6457768 at *23-24 (Tenn. Oct. 26, 2015). The TPLA, however, embraces 

strict liability, and requires no showing of fault. Tenn. Code Ann. § 29-28-

105(a) (West 2015). Further, the two statutes have incompatible rules for 

joint tortfeasor liability. The THCLA follows Tennessee’s general liability 

rule that “each defendant will be liable only for the percentage of the 

damages caused by it,” Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 

83 (Tenn. 1996). The TLPA, however, overrides that rule, and imposes 

joint and several liability in strict products liability actions. See Owens v. 

Truckstops of Am., 915 S.W.2d 420, 432 (Tenn. 1996) (“[J]oint and several 

liability . . . is essential to the theory of strict products liability.”).

New England II, 2016 WL 11045600, at *2 (footnote omitted).

2

 

In the case at bar, the trial court properly determined that the complaint filed by 

the plaintiffs was a health care liability action. See Ellithorpe, 479 S.W.3d at 827. As the 

trial court noted in its order granting permission for an interlocutory appeal, “the Cigna 

 

2 Both parties assert that this Court should be persuaded by McDonald v. W.-Ward Pharm. Corp., No. 

2:18-CV-02084-JTF-DKV, 2018 WL 6499353, at *6 (W.D. Tenn. Oct. 3, 2018), report and 

recommendation adopted sub nom. McDonald v. Schriner, No. 2:18-CV-02084-JTF-DKV, 2019 WL 

1040978 (W.D. Tenn. Mar. 5, 2019). We note that in McDonald, the federal court similarly determined

that a claim against a pharmacy for dispensing medication without warning of risks fell under the THCLA 

while claims against the medication’s manufacturers fell under the TPLA. 
11

Defendants identify the issue [for interlocutory appeal] as ‘whether . . . Tennessee law 

allows the seller shield defense . . . to be asserted as a defense to claims asserted against a 

pharmacist under the Health Care Liability Act[.]’” The trial court accordingly 

determined that the CHDP Defendants had “conceded the applicability of the Health Care 

Liability Act to this cause of action.” As such, the only question that was certified to this 

Court is “[i]f the complaint asserts a claim under the Tennessee Health Care Liability Act 

. . . are the pharmacy/pharmacist defendants barred from asserting the “seller shield” 

defense set forth in the Tennessee Products Liability Act, Tenn. Code Ann. § 29-28-

106[?]”

Based on the question as it was certified to this Court, we must determine only 

whether the seller shield defense contained within the TPLA may be applied to provide 

immunity for a defendant sued under the THCLA. This question requires that we engage 

in statutory interpretation relative to the two acts. As our Supreme Court has previously 

explained:

“The most basic principle of statutory construction is to ascertain and give 

effect to the legislative intent without unduly restricting or expanding a 

statute’s coverage beyond its intended scope.” Owens v. State, 908 S.W.2d 

923, 926 (Tenn. 1995). “The text of the statute is of primary importance.” 

Mills [v. Fulmarque, Inc.], 360 S.W.3d [362,] 368 [(Tenn. 2012)]. “A 

statute should be read naturally and reasonably, with the presumption that 

the legislature says what it means and means what it says.” In re Kaliyah 

S., 455 S.W.3d 533, 552 (Tenn. 2015) (citing BellSouth Telecomms., Inc. v. 

Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997)).

Moreno v. City of Clarksville, 479 S.W.3d 795, 804 (Tenn. 2015) (other internal citations 

omitted). Moreover, Tennessee Code Annotated § 1-3-103 (2014) provides that “[i]f 

provisions of different titles or chapters of the code appear to contravene each other, the 

provisions of each title or chapter shall prevail as to all matters and questions growing out 

of the subject matter of that title or chapter.” See, e.g., Sneed v. City of Red Bank, Tenn., 

459 S.W.3d 17, 27 (Tenn. 2014) (holding that the more recently enacted Tennessee 

Human Rights Act was “an independent statutory scheme that create[d] remedies and 

remove[d] governmental immunity” such that it, rather than the Governmental Tort 

Liability Act, controlled the adjudication of the plaintiff’s age discrimination claim

against a municipality).

Based on the trial court’s determination and the CHDP Defendants’ concession 

that the claims stated fall under the THCLA, we determine that the seller shield defense 

contained within the TPLA cannot apply. A natural and reasonable reading of the 

language of Tennessee Code Annotated § 29-28-106 demonstrates that it only applies to 

product liability actions. See Moreno, 479 S.W.3d at 804 (cautioning against the 

expansion of a statute beyond its intended scope). Furthermore, the THCLA applies to 
12

all health care providers, including pharmacies and pharmacists, without limitation based 

on any type of product seller immunity. See, e.g., Tenn. Code Ann. § 29-26-101, et seq.

The CHDP Defendants’ attempts to utilize the TPLA’s seller shield defense to 

immunize themselves from liability for a claim filed pursuant to the THCLA would be 

akin to an attempt by a defendant in a product liability action to defend on the basis of 

lack of pre-suit notice, which is a defense only to a claim under the THCLA. Because the 

complaint states a cause of action pursuant to the THCLA, the provisions of that statute

“shall prevail as to all matters and questions growing out of the subject matter of that title 

or chapter.” Tenn. Code Ann. § 1-3-103. As such, the seller shield defense contained 

within the TPLA is applicable only to product liability actions and cannot be used as a 

defense to the Heatons’ THCLA claims. 

V. Conclusion

For the foregoing reasons, we affirm the trial court’s denial of the CHDP

Defendants’ motion to dismiss. Costs on appeal are taxed to the CHDP Defendants: 

Cigna Home Delivery Pharmacy; Tel-Drug, Inc.; Tel-Drug of Pennsylvania, LLC; and 

David Scott Dessender. This matter is remanded to the trial court for further proceedings 

consistent with this opinion.

_________________________________

THOMAS R. FRIERSON, II, JUDGE