1

Mr. Goodwin died during the pendency of this case and it was

revived in the name o f his surviving spouse.

FILED

July 6, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

COURT OF APPEALS OF TENNESSEE

AT KNOXV ILLE

JOY WA LLS, Individual ly and ) KNOX CO UNTY

as Surv iving Sp ouse of ) 03A01-9707-CV-00269

Deceden t WEN DEL L M. G OOD WIN )

)

Plaintif f-Appellant )

)

v . ) HON. DALE WORKMAN,

) JUDGE

A C andS , INC ., et al. ) 

 )

Defendants-App ellees ) AFFIRMED AND REM ANDED

BRUCE H ILL and MIKE G. NA SSIOS OF KNO XVILLE; JOHN A . DAY and

DONALD CAPPARELLA OF NASHVILLE FOR APPELLANT

DWIGH T E. TARWA TER, THOM AS A. BICKERS, AN DREW R. TILLMAN and

ROBIN K. LONGMIRE OF KNOXVI LLE FOR APPE LLEE OWENS- CORNING

KATHY K. CONDO OF PI TTSBURGH, PA and F . SCOTT MILLIGAN OF

KNOXVILLE F OR APPELLEE PITTS BURGH CORNING CORPORATI O N

 O P I N I O N

 God dard, P.J. 

This s uit wa s initiate d by P laintiff-A ppella nt, W ende l l

Goodwin, 1 against Defendant s-Appellees , Pitts burgh Corning

Corporation, Owens-Corning Fibergl as Corporation, and a number of
2

It does not ap pear from th e record that th e claims aga inst

Defendants other than Pittsburgh Corning and Owens-Corn ing have been

adjudic ated. H oweve r, in a resp onse to a letter by the Cle rk of this C ourt,

counse l for the P laintiff ass ures the Court t hat ord ers have been en tered in

the Tria l Court a djudica ting all cla ims of th e other D efenda nts. 

Consequently, we shall treat this appeal as an appeal of right under Rule 3 of

the Ten nessee R ules of A ppellate Proced ure. 

2

other Defen dants, 2 seeking dama ges beca use of an illness M r .

Goodwin contracted--specifical ly a stomach cancer known as

peritone al meso theliom a--resulting from h is occup ational ex posure

to asbestos products manufact ured and distr ibuted by the

Defendants, i ncluding Pit tsburgh Corning and Owens-Corni ng. The

Trial Co urt, in resp onse to th e answ ers supp lied by th e jury

through speci al inter rogatorie s hereinaf ter set out , entered a

judgm ent in f avor o f the D efend ants b ecaus e the P laintiff's c laim

was barred by the applicable statut e of repose, T.C.A. 29-28-

103(a ). 

The Plaintiff ap peals, raising the follow ing issues:

I . WHETHER THE TRIAL COURT ERRED BY ALLOWI N G

DEFEND ANTS TO (1) INTRO DUCE EV IDENCE O F FAULT A GAINST

NUM EROU S NON PARTY MAN UFACT URERS OF ASB ESTOS A ND (2)

ARGUE THAT FA ULT SHO ULD BE A SSIGNED TO THOSE

NONPARTIES , WHERE PLAI NTIFF HAD NO CAUS E OF ACTION

AGAINST THOSE NONPARTIES

II. WHETHER THE TRIAL COURT ERRED BY FAI LING TO GRANT

PLAINTIFF 'S MOTION FOR A DIRECT ED VERDICT TO STRIKE

DEFENDAN TS' AFFIRMATIVE DEFENSE OF C OMPARA TIVE FAULT

WHEN D EFENDANTS FA ILED TO ESTABLISH THA T THE PRODU CTS

OF NONPA RTY ASBESTOS M ANUFACTU RERS WERE U NREASONA BLY

D A N G E R O U S OR DE FEC TIV E O R C A U SED TH E D E C E D E N T'S

INJURIES AND DEATH

III. WHETHER THE TRIAL COURT ERRED IN DENY ING

PLAINTIFF 'S MOTION I N LIMINE TO EXCLUDE PROOF THAT

DEFENDANTS HAD COMPLI ED WITH OSHA REGULATI ONS
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IV. WHETHER THE TEN- YEAR PRODUCTS LI ABILI TY STATUTE OF

REPOSE SHOULD NOT BE APPLI ED TO EXTINGUI SH EXIST ING BUT

UNDISCOVERED CAUSES OF ACT ION ARISING FROM PRODUCTS

CAUSING LATENT DISEASE , WHEN THE LEGISLATURE HAS

EVIDENCED NO CLEAR INTENT TO APPLY THE STATU T E

RETROACTIVELY

Mr. Goodwin began working with product s containi n g

asbestos i n 1959, primari ly in applyi ng asbestos cont aining

insula tion m aterials to pipe s on co nstruc tion p rojects . This

required hi m to cut and saw the materi al for fi tting ar ound the

pipes. He worked with these materials until he was diagn osed

with cancer of t he abdomen in May of 1991, just four months

before h is death fro m this d isease. Th e proof a s to wh ether M r .

Goodwin was exposed to any products manufactured by the

Defendants and sold for use or consumption after June 30, 1969,

is con tested.

The jur y's answ er to the q uestions was fav orable to

both Defendan ts, which, if the statute of repose above mentioned

is valid, would require affirman ce of the judgm ent unless a

prejudicial err or occurred during the course of the tr ial, as

insisted by thr ee of th e Plain tiff's four issues on ap peal. 

The qu estions p ropou nded to the jury a nd its an swer are

as follows:

1 . Was an y exposure of Wen dell Good win to asbe stoscontaining pr oducts manufacture d by Owens-Corning

Corporation and sol d for use or cons umption after J une

30, 19 69 a su bstan tial con tributin g cau se of W ende l l

Goodwin's mesothelioma?
4

Answ er No (Yes or No)

2 . Was an y exposure of Wen dell Good win to asbe stoscontaining pr oducts manufacture d by Pittsbur gh-Corning

Corporation and sol d for use or cons umption after J une

39, 19 69 a su bstan tial con tributin g cau se of W ende l l

Goodwin's mesothelioma?

Answ er No (Yes or No)

(If your answer is "No" to both Q

and No. 2, do not answer any furthe

your answer is "No" to either Quest

do not answer any further questions 

Defendant.)

Apropos of the fi rst two is sues, counsel for the

Plaintiff i nsists that Mr. Goodwin was denied a fair trial

because the Court permitted t he introduct ion of evidenc e relati n g

to non-party defendants w hen any action against them was barred

by the stat ute of repose , and because the re was no proof in t h e

record to show that the asbestos manufactured by them was

unre ason ably dan gero us or defe ctive or ca used the D eced ent's

injurie s and death . 

Coun sel for the P laintiff insists, u nder the authority

of Ridings v. Ralph M. Pars ons Co. , 914 S .W.2 d 79 (T enn.1 996), 

that it was not proper to assess fault under our comparative

neglig ence d octrin e to tho se non -party defen dants . 

On the other hand, t he Defendants ins ist that the

Plaintiff is readings Ridings too broa dly and cite as au thority

Volz v. Ledes , 895 S.W .2d 677 (Te nn.1995). T he Defen dants also

rely up on a m ore rec ent op inion of our Supr eme Cou rt, Snyder v.
5

LTG Lufttechnische GmbH , 955 S.W.2d 252 (Tenn.199 7), which holds

that although fault may n ot be appo rtioned to im mune d efendants,

it may be consider ed in determini ng the questi on of causati on.

Whatever the resol ution of the competing content ions

may be, it is n ot nec essary for us t o ma ke this determ ination in

resolving issues o ne and tw o. We rea ch this conclu sion because

if the ju rors fo llowe d the C ourt's in structio ns, an d it is

presu med that th ey did , State v. Bl ackmon , 701 S.W.2d 228

(Ten n.Crim .App .1985 ), upo n ans werin g que stions one a nd tw o their

work was complete and they would neve r have consider ed the

evide nce as sailed b y issue s one a nd tw o. Th us, erro r, if any , in

admittin g the evid ence or failing to ch arge the jury

appropriat ely was harmless, as contemplated by Rul e 36 of the

Tennessee Ru les of Appellate Procedure.

Before leavi ng these iss ues, we agree t hat where no

negligence is sh own on the part of non -defendant th ird parties,

the judge should charge the jury tha t no fault may be appo rtioned

to t hem.

As to issu e three, it is tru e that cas e law su pports

counsel for t he Plainti ff's i nsistence that evidenc e of the

Defe ndan ts' com plianc e with the O SHA regula tions w as erro neou s. 

Tuggle v. Raymond Corporation , 868 S .W.2 d 621 (Ten n.Ap p.199 2). 

This, however, would only become relevant if the jury had

answered yes to questions one and two, and thereafter found that
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the Defendants were not guilty of negligence. As already noted,

in the case at bar, the j urors were specifical ly instructed that

if they ans wered no to questi ons one and two, they shoul d not

answer further questions. Again, if t he jurors f ollowed the

instruc tions o f the T rial Co urt w hich, a s also a lready noted , it

is presumed that they did, t hey never reached t he issue of t h e

Defendants' negligence. Thu s, the admission of the OSH A evidence

was also harm less error.

On Feb ruary 23, 199 8, issue four w as resolved ag ainst

the Plaint iff' s contenti on by the Supreme Court denying the

applicatio n for app eal in the c ase of Bow man v . A-Bes t Produ cts

Co., Inc. , a to-be repor ted op inion of this C ourt, file d in

Knoxville on A ugust 27, 1997. At the time the Plaintiff filed

her brief , an applica tion for per mission to appeal by the

plainti ff in Bowman was still p ending before th e Supre me C ourt

and counsel for the Plaint iff candi dly concede that this is sue

was rais ed as a p recautio nary m easure sh ould the Suprem e Cou r t

accept and rever se the holdi ng in Bowman .

For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause re mand ed for co llection of c osts

below. Costs of appeal are adj udged against t he Plainti ff and

her sureties.

_______________________________

Hou ston M . God dard, P.J. 
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CONCUR:

________________________________

Don T. M cMurray, J.

________________________________

William H. Inm an, Sr.J.