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 ppellant, W ende l l Goodwin, 1 against Defendant s-Appellees , Pitts burgh Corning Corporation, Owens-Corning Fibergl as Corporation, and a number of2 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

damages 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 Court, 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 efendants 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) INTRODUCE EV IDENCE O F FAULT A GAINST NUM EROU S NONPARTY MAN UFACT URERS OF ASB ESTOS A

ND (2) ARGUETHAT FA

ULT SHO

ULD BE ASSIGNED 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 COMPARA TIVE FAULT WHEN DEFENDANTS 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 FECTIV

E O R CA U SED

TH E D E C E D E NT'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 ONS3

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

aterialsto pipe s on construc 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 diagnosed 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 uestionswas 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 the Plain tiff's four issues on ap

peal.
The questions 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 Answer 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? Answer No (Yes or No) (If your answer is "No" to both Questions No. 1 and No. 2, do not answer any further questions. If your answer is "No" to either Question No. 1 or No. 2 do not answer any further questions as to that 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 asonably

dangero us or

defe ctive

or caused

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 doctrin 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 (Tenn.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 not be appo rtioned to im mune defendants, 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 make thisdeterm ination in resolving issues o ne and two. We rea ch this conclu sion because if the ju rors fo llowe d the C ourt's in structions, 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 and 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 evidence 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 shown 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 that6

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 was resolved against the Plaint iff' s contenti on by the Supreme Court denying the application 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 measure sh ould the

Suprem

e Cour t accept and rever se the holdi ng in Bowman .

For the foregoing reasons the judgment of the Trial Court isaffirmed and the

cause re

manded 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.7

CONCUR:

________________________________ Don T. M cMurray, J.

________________________________ William H. Inm

an, Sr.J.