                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                              August 3, 2009 Session

    EVELYN NYE, individually and as surviving spouse and next-of-kin of
      HUGH TODD NYE, v. BAYER CROPSCIENCE, INC., et al.

           Direct Appeal from the Circuit Court for Hamilton County, Division IV
                     No. 06C760      Hon. W. Neil Thomas, III, Judge


                                   _________________________

                 No. E2008-01596-COA-R3-CV - FILED OCTOBER 14, 2009
                               _________________________

Defendants sold materials containing asbestos to the deceased’s employer, where he was exposed
to asbestos and contracted mesothelioma from which he died. Plaintiff’s widow brought this action
against the supplier, a jury trial resulted and the jury returned a verdict for the defendant, which the
Trial Court approved. On appeal, we hold that certain jury instructions were error and we reverse
and remand for a new trial.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Reversed and Remanded
for a new trial.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.


Jimmy F. Rodgers, Jr., Chattanooga, Tennessee, and John E. (“Rett”) Guerry, III and Benjamin D.
Cunningham, Mount Pleasant, South Carolina, for appellant, Evelyn Nye.

Hugh B. Bright, Jr., Michael J. King, and Robert L. Vance, Knoxville, Tennessee, for appellees,
Bayer Cropscience, Inc., et al.



                                              OPINION


               The plaintiff/appellant is the surviving spouse of Hugh Todd Nye, and in the
Complaint, it was alleged that Mr. Nye suffered from mesothelioma as a result of exposure to
asbestos during his employment at the DuPont plant in Chattanooga, Tennessee. He worked at the
DuPont facility from September 1948 to his retirement in April 1985, and died as a result
mesothelioma on August 1, 2006. In the Original Complaint numerous defendants were served,
including the defendant/appellee in this appeal, National Service Industries, Inc., d/b/a North
Brothers. (North Brothers or defendant).

               By the time the case was tried before a jury, North Brothers was the sole remaining
defendant, and the only claims presented to the jury against North Brothers arose from North
Brothers’ alleged sales of asbestos containing products to DuPont. These products were alleged to
have been manufactured by Owens Corning Fiberglass, Pittsburgh Corning Corporation, Johns
Manville and Raybestos. All four of the manufacturers had filed for protection under Chapter 11 of
the Bankruptcy Code and had established trusts to pay asbestos-related personal injury claims.

               Procedurally, North Brothers filed a Motion for Summary Judgment asking the Trial
Court to find that North Brothers could not be held liable for the sale of the products of the
aforementioned manufacturers because the manufacturers were not insolvent and they were
amenable to service of process. 1 The Motion was denied, and plaintiff then filed a motion for
summary judgment asking the Trial Court to find that the manufacturers were either insolvent or not
amenable to service of process. The Trial Court held that because of the stays imposed by the
Bankruptcy Courts the companies were not amenable to service of process in Tennessee and the
plaintiff could proceed against North Brothers under a strict liability theory for the sale of the
products of the manufacturers.

                 The parties agree that the only theories of liability brought to the jury and involved
in this appeal involve strict liability, i.e., the sale of a defective product and strict liability for failure
to warn.

                The jury returned a verdict in favor of North Brothers and the Trial Judge approved
the jury’s verdict.



        1
          Tenn. Code Ann. § 29-28-106 provides: (a) No “product liability action,” as defined in §
29-28-102(6), shall be commenced or maintained against any seller when the product is acquired
and sold by the seller in a sealed container and/or when the product is acquired and sold by the
seller under circumstances in which the seller is afforded no reasonable opportunity to inspect the
product in such a manner which would or should, in the exercise of reasonable care, reveal the
existence of the defective condition. The provisions of the first sentence of this subsection shall
not apply to:
(2) Actions where the manufacturer of the product or part in question shall not be subject to
service of process in the state of Tennessee and where service cannot be secured by the long-arm
statutes of Tennessee; or
(3) Actions where the manufacturer has been judicially declared insolvent.



                                                      2
                 The jury verdict form reflects that the jury found North Brothers to be at fault based
on its sales after July 1, 1969 but that it found that DuPont was the sole cause of plaintiff’s damages.

               The evidence established that Nye was exposed to asbestos containing products while
working for DuPont. His exposure was to various asbestos-containing products sold by North
Brothers to DuPont. Nye’s deposition was read to the jury, and he testified that he never saw any
boxes or container that asbestos products came in, and never observed any warnings about any of
the products. Moreover, there was no evidence to show that Nye was aware of the health hazards
associated with exposure to asbestos. The evidence further revealed that he died from malignant
mesothelioma, a single asbestos-related cancer, and that the disease which caused his death was
associated with his exposure to asbestos at the DuPont plant.

                There was also evidence presented at trial regarding when both North Brothers and
DuPont became aware that exposure to asbestos could cause mesothelioma. The evidence showed
that DuPont was on the cutting edge of asbestos safety, and DuPont representatives attended the
seminal Asbestos Conference at the New York Academy of Science in 1964. As a result of the
conference, DuPont instituted an asbestos monitoring and safety program in its various facilities,
including the plant in Chattanooga. The evidence demonstrated that during the relevant time period
DuPont was fully aware that asbestos caused diseases of the lung, but following the 1964 conference,
DuPont continued to specify and purchase and employ asbestos containing products in its facilities,
including the Chattanooga plant where Nye worked.

               Evidence was also presented that North Brothers became aware that exposure to
asbestos could cause mesothelioma sometime in the 1960s. North Brothers, however, did not
provide written warnings to its customers, including DuPont, of this health hazard nor did North
Brothers ever inquire of DuPont as to the extent of its knowledge regarding the hazards associated
with asbestos containing products.

                At the close of the evidence, plaintiff moved for a directed verdict on the applicability
of North Brothers’ sole cause defense to the sale of defective product claim, which the Trial Court
denied. During the jury charge conference, plaintiff’s counsel objected to and proposed various
charges concerning North Brothers’ sole cause defense, plaintiff’s sale of a defective product claim,
and the applicability of DuPont’s knowledge of the hazards associated with asbestos to either of
plaintiff’s claims, the sale of defective product claim and the failure to warn claim.

                The Trial Court gave the following instructions to the jury that are pertinent to this
       2
appeal:

                1.      Fault has two parts in this case; sale of a defective product and legal cause.
                        One who manufactures or sells a defective product is responsible to the


          2
        The numbering before each charge was not so numbered, by the Trial Court, but added
for convenience of our discussion of the charges.

                                                   3
     ultimate consumer of the product for physical harm cause to the consumer or
     the consumer’s property if: (1), The manufacturer or seller is engaged in the
     business of manufacturing or selling such a property; and, (2) It is expected
     to and does reach the user or consumer without substantial change in the
     condition in which it was manufactured or sold.

2.   A property is defective if it is unsafe for normal or reasonably anticipated
     handling and use. . . . . A seller includes a retailer, wholesaler, or distributor.
     A seller is any individual or organization in the business of selling a product,
     either for resale or for use or consumption.

3.   The seller or manufacturer of a product is not responsible for any injury to
     person or property caused by the product unless the product is determined to
     be in a defective condition at the time it left the seller’s or manufacturer’s
     control. In making this determination, you must apply the state of scientific
     and technological knowledge available to the seller or manufacturer at the
     time the product was placed on the market, rather than at the time of injury.

4.   Where proper instructions for use and an adequate warning of hazards are
     given, the seller or manufacturer may reasonably assume that they will be read
     and followed. Thus, a product is not in a defective condition if: 1, The
     manufacturer or seller has given proper instructions for the use of a product
     and an adequate warning of the dangers associated with the use or misuse of
     the product; and 2, The product is safe for use if the instructions and warnings
     are read and followed.

5.   A manufacturer or a seller cannot be held liable for failure to warn if you find
     that the consumer, DuPont, was already aware of the danger in connection
     with the use of asbestos-containing products, or if you find that adequate
     warnings were given by manufactures of sellers to DuPont.

6.   The second part of fault is legal cause. A legal cause of any injury is a cause
     which, in natural and continuous sequence, produces an injury, and without
     which the injury would not have occurred. A single injury can’t be caused by
     the negligent acts or omissions of one or more persons.

7.   If you find that a person sold a defective product and that the sale was a legal
     cause of the injury or damages for which a claim was made, you have found
     that person to be at fault. . . . . If you find more than one person to be at fault,
     you must then determine the percentage of fault chargeable to each of them.

8.   If you find that DuPont failed to provide a safe workplace for Hugh Todd Nye
     and that this failure was the sole cause of damage to him, then you have found


                                 4
                       DuPont was the sole cause of his injury, and you may not consider the fault of
                       North Brothers or any other company supplying asbestos-containing materials
                       to DuPont.

               9.      If you find that DuPont was not the sole cause of damage to Mr. Nye, then you
                       may consider the fault of North Brothers and any other companies supplying
                       asbestos-containing materials to DuPont.

              The charges numbered 5 and 8 above were objected to by Plaintiff and extensive
argument and discussion was held during the charge conference and while the jury deliberated.

                 During jury deliberation, the jury sent a note to the Court asking for clarification of
the sole cause charge. The Court had difficulty understanding the question set forth in the note and,
after much discussion and argument by counsel, the Court asked the jury to return to the court room
to articulate their question.

               Juror No. 1 spoke for the jury and first asked the Judge if any one of the charges was
more important than the other charges. In response, the Judge reminded the jury that he had explained
when he first delivered the charges that all of the instructions were equally important and that the
order in which they were given had no significance. The following colloquy between the Trial Court
and Juror No. 1 ensued:

               Juror No. 1:    You may not be able to answer it this way, but if the product is defined
                               as defective and . . . the last paragraph on Page 8 states that if it is
                               defective, then the seller or manufacturer could be held responsible,
                               but also - - you may have to read the paragraph for me, the first
                               paragraph.3
                                                ***
               The Court:      A manufacturer or sell cannot be held liable for failure to warn if you
                               find that consumer, DuPont, was already aware of any danger in
                               connection with the use of asbestos-containing products, or if you find
                               that adequate warnings were given by the manufacturer or sellers to
                               DuPont.

               Juror No. 1:    I guess where we are troubled - - if you read this paragraph and then
                               you read the other one, are they contradicting each other?

               The Court:      They were not intended to be. If I could just give you some sort of
                               simple explanation. You should remember that fault consists of a
                               defective product and causation. I think on Pages 10 and 11 I’m


       3
         Apparently Juror No. 1 did not bring a copy of the jury charges into the court room. The
record does not contain a written copy of the jury charges either.

                                                   5
               speaking more in my instructions as to the issue of causation.

Juror No. 1:   Right.

The Court:     Does that help?

Juror No. 1:   Does anybody have any other questions? Your Honor, I guess where
               we are troubled at is as far as if we find that the product is defective,
               does that - -

The Court:     You can still find that it did not cause the injury to Mr. Nye.

Juror No. 1:   Well, if we find that the product was defective and because of it being
               defective and everyone knew about it being defective and it was
               manufactured and sold as a defective product, that’s where we have
               trouble with this paragraph as far as the manufacturer or seller cannot
               be held liable for failure to warn if they find the consumer, DuPont,
               was already aware of the danger. So, you know, there’s enough
               evidence that showed that DuPont knew of all the danger but so did
               everybody else.

               I guess where we are kind of stuck at the point that we are stuck at is
               that I think we all feel the product was defective because of the danger
               of the product itself. So because of that and because of this paragraph
               here as far as the manufacturer and seller cannot be held liable for
               failure to warn, they kind of to us kind of contradicts each other. So
               if you could help us with that . Because we all feel that the product in
               itself was a defective product and we felt like there was enough
               evidence to show that fact, but we are hung up a little bit because does
               this paragraph - - does it exclude - - does it exclude the consumer
               DuPont or any of these other - - North Brothers or the people at North
               Brothers that was involved in it or does it - - being classified as a
               defective product and being all of us agree that it is a defective product
               and without me going through here there’s also a paragraph in here
               that states a product is defective if it is unsafe for normal or reasonably
               anticipated handling and use. A manufacturer is a person or company
               that designs, fabricates, produces, compounds, processes or assembles
               any product or its component part. The word seller includes a retailer,
               wholesaler or distributor. A seller is an individual or organization in
               the business of selling a product, either for resale or for use of
               consumption.

               The seller or manufacturer of a product is not responsible for any


                                   6
                              injury to a person or property caused by that product unless the product
                              is determined to be defective.

                              So that’s were we are at. Reading those two paragraphs we have
                              decided that the product is defective, but then reading the two
                              paragraphs you read - - that we wanted to see if it supersedes these,
                              can you help us with that ?

               The Court:     Later as you get to it you should then focus on Page 10 and 11 on the
                              issue of causation. Did this defective product - - in the context of
                              DuPont - - was DuPont the sole - - and that the reason I use that word
                              sole - - cause of Mr. Nye’s injury. If DuPont was not the sole cause of
                              Mr. Nye’s injury, then you toss DuPont out of the mix and consider the
                              other sellers and manufacturers.

               Juror No. 1:   I understand that. We all agree because of it being defective that it
                              was the cause of his illness, but again I think you have answered our
                              question as far as the thing that we wanted to make sure was that one
                              article or one paragraph didn’t supersede the other.

               The Court:     Read them all together.

               The jury returned to its deliberation and the Trial Court sent the following written
response to Juror No. 1's questions:

                      Let me preface this note by reminding you to consider all of the charge [sic]
               and not single out some and ignore the others. Let me also say that all parts of the
               charge are equally important.

                      In determining whether DuPont was the sole cause of Mr. Nye’s injury you
               should consider what Dupont knew compared with the knowledge of all others.

                     In determining whether there was a failure to warn you should consider what
               Dupont knew compared with the knowledge of all others.

               Subsequently, the jury returned a verdict in favor of North Brothers. The part of the
Jury Verdict Form at issue on appeal and the jury’s response reads as follows:

               We, the jury, unanimously answer the questions submitted by the Court as follows:

               1.       Do you find the defendant, North Brothers, to be at fault? (Based upon sales
               after July 1, 1969.) (The plaintiff has the burden of proof).
               Yes T No __


                                                 7
If your answer is “no” to this question, stop here, sign the verdict form and return to
the Court. If you anser “yes” to this question, proceed to Question 2.

2.     Do you find DuPont was the sole cause of the plaintiff’s damages? (The
defendant has the burden of proof).

Yes T No __

If your answer is “yes” to this question, stop here, sign the verdict form and return to
the Court. If your answer is “no” to this question, proceed to Question 3.

The issues raised on appeal are:

a.     Did the Trial Court correctly determine that plaintiff’s claim for strict liability
       could be maintained against North Brothers for the sale of asbestos containing
       products manufactured by Owens-Corning Fiberglass, Pittsburgh Corning,
       Johns Manville or Raybestos Manhattan because the manufacturers were not
       amenable for service?

B.     Whether the Trial Court erred in failing to instruct the jury that North Brothers
       could be found at fault for either: (1) strict liability - sale of defective product
       or (2) strict liability - failure to warn?

C.     Whether the Trial Court erred by charging the jury on North Brother’s sole
       cause defense as it relates to plaintiff’s sale of a defective product theory of
       liability?

D.     Did the Trial Court properly instruct the jury on sole cause?

E.     Whether the Trial Court erred when it charged the jury that “if you find that
       Dupont failed to provide a safe workplace for Mr. Nye and that this failure
       was the sole cause of damage to him, then you have found DuPont was the
       sole cause of his injury, and you may not consider the fault of North Brothers
       or any other company supplying asbestos-containing materials to DuPont’ ?

F.     Whether the Trial Court erred when it charged the jury that “a manufacturer
       or a seller cannot be held liable for failure to warn if you find that the
       consumer, DuPont, was already aware of any danger in connection with the
       use of asbestos-containing products, or if you find that adequate warnings
       were given by manufactures or sellers to DuPont?

G.     Whether the Trial Court erred by creating and issuing a jury form that failed


                                   8
                      to allow the jury to differentiate between the plaintiff’s two strict liability
                      theories?

               H.     Whether the Trial Court erred by denying plaintiff’s motion for directed
                      verdict based on North Brother’s failure to produce any evidence, regarding
                      plaintiff’s sale of a defective product claim?

               The Trial Court’s conclusions of law are reviewed under a purely de novo standard
with no presumption of correctness. Taylor v. Fezell, 158 S.W.3d 352, 357 (Tenn. 2005), Union
Carbide Corp. v. Huddleston 854 S.W.2d 87, 91 (Tenn. 1993). The determination of whether jury
instructions are proper is a question of law that this court reviews de novo with no presumption of
correctness. Goodman v. Jones No. E2006-02678-COA-R3-CV, 2009 WL 103504 at * 5 (Tenn. Ct.
App. Jan. 12, 2009)(citing Solomon v. First Am. Nat'l Bank of Nashville, 774 S. W. 2d 935, 940
(Tenn. Ct. App.1989).

               Plaintiff/appellant raises the issue of whether the Trial Court was in error when it
denied its motion for a directed verdict. The Supreme Court discussed an appellate court's standard
of review applicable to a motion for a directed verdict in Johnson v. Tennessee Farmers Mut. Ins.
Co.205 S. W. 3d 365 (Tenn.2006) stating:

               In reviewing the trial court's decision to deny a motion for a directed verdict, an
               appellate court must take the strongest legitimate view of the evidence in favor of the
               non-moving party, construing all evidence in that party's favor and disregarding all
               countervailing evidence. Gaston v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815, 819
               (Tenn.2003). A motion for a directed verdict should not be granted unless reasonable
               minds could reach only one conclusion from the evidence. Id. The standard of review
               applicable to a motion for a directed verdict does not permit an appellate court to
               weigh the evidence. Cecil v. Hardin, 575 S.W .2d 268, 270 (Tenn.1978). Moreover,
               in reviewing the trial court's denial of a motion for a directed verdict, an appellate
               court must not evaluate the credibility of witnesses. Benson v. Tenn. Valley Elec.
               Coop., 868 S.W.2d 630, 638-39 (Tenn.Ct.App.1993). Accordingly, if material
               evidence is in dispute or doubt exists as to the conclusions to be drawn from that
               evidence, the motion must be denied. Hurley v. Tenn. Farmers Mut. Ins. Co., 922
               S.W.2d 887, 891 (Tenn.Ct.App.1995).

Johnson v. Tennessee Farmers Mut. Ins. Co. at 370.

               There was no dispute that under the definitions provided by the Tennessee Products
Liability Act (TPLA or Act), North Brothers was not the manufacturer of the asbestos containing
products it sold to DuPont. The Act defines manufacturer as “the designer, fabricator, producer,
compounder, processor or assembler of any product or its component parts. Tenn. Code Ann. § 29-28-
102(4). There also is no dispute that the manufacturers of the various asbestos containing products
sold to DuPont by North Brothers were manufactured by either Owens-Corning Fiberglass, Pittsburgh


                                                  9
Corning, Johns Manville or Raybestos. The fact that North Brothers sold these manufacturers
asbestos containing products to DuPont and qualifies as a “seller” under the TPLA is also not in
dispute.

               The Act defines a seller as a retailer, wholesaler, or distributor, and means any
individual or entity engaged in the business of selling a product, whether such sale is for resale, or
for use or consumption. Tenn. Code Ann. § 29-28-102 (7).

                North Brothers contended during the pre-trial proceedings and contends now that Mrs.
Nye could not maintain a cause of action against it because of its status as a “seller”. Tenn. Code
Ann. §29-28-106(b) prohibits a plaintiff from pursuing a strict liability claim against a non-
manufacturer seller of products unless one of these three conditions is present: (1) the manufacturer
is not subject to service of process in the State of Tennessee; (2) service cannot be had by the long-
arm statutes of Tennessee; or (3) the manufacturer has been judicially declared insolvent. Thus, as
explained by the Supreme Court, when the manufacturer is not amenable to service of process or is
insolvent, an injured consumer can assert liability against the “faultless” seller. Owens v. Truckstops
of America, 915 S. W. 2d 420, 432 (Tenn.,1996). The Owens Court stated that the primary purpose
of section 106(b) of the TPLA is “to ensure that an injured consumer may maintain a strict liability
action against whomever is most likely to compensate him for his injuries.” Owens at 432 (citing
Seals v. Sears, Roebuck and Co., Inc., 688 F. Supp. 1252, 1253 (E .D. Tenn.1988)).

                North Brothers argued that the four manufacturers at issue were amenable to service
of process in Tennessee and that none of them had been judicially declared insolvent. Plaintiff
opposed this contention by submitting a variety of affidavits and documents showing that all four
manufactures were subject to the automatic stay provisions of federal bankruptcy law provided in 11
U. S. C. § 362(a) and the channeling injunction provision of 11 U. S. C. §524(g). The Trial Court
agreed with plaintiff’s position and rejected North Brother’s motions for summary judgment on the
issue finding that the manufacturers were not amenable to service of process based on the automatic
stay provisions of in 11 U.S.C. § 362(a) and the injunction provision of 11 U.S.C. §524(g). The Trial
Court reached the correct conclusion on this issue.

               Although North Brother’s contends that the four manufacturers, all Chapter 11 debtors,
are amenable to service of process, the Bankruptcy Code, 11 U.S.C.A. § 362 (a) clearly prohibits
service of process, as follows:

               Except as provided in subsection (b) of this section, a petition filed under section 301,
               302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities
               Investor Protection Act of 1970, operates as a stay, applicable to all entities, of–

               (1) the commencement or continuation, including the issuance or employment of
               process, of a judicial, administrative, or other action or proceeding against the debtor
               that was or could have been commenced before the commencement of the case under
               this title, or to recover a claim against the debtor that arose before the commencement


                                                  10
               of the case under this title.

              The automatic stay may be lifted by the bankruptcy court under certain, limited
circumstances pursuant to 11 U.S.C. 362(d) as explained by the U.S. Supreme Court in Miller v.
French, 530 U.S. 327, 359, 120 S.Ct. 2246 (2000) as follows:

               Indeed, the Bankruptcy Act uses the words “automatic stay” to describe a provision
               stating that “a petition filed ... operates as a stay” of certain other judicial proceedings-
               despite the fact that a later portion of that same provision makes clear that under
               certain circumstances the bankruptcy court may terminate, annul, or modify the stay.
               11 U.S.C. § 362(d). . . . Moreover, the change in the legal status quo that the
               automatic stay would bring about, and the need to demonstrate a special need to lift
               the stay (according to traditional equitable criteria), mean that the stay would remain
               in effect in all but highly unusual cases.

Miller v. French, 530 U.S. 327, 359.

              Accordingly, if North Brothers wanted to lift the stay so that it could sue the
manufactures, the proper forum to attempt to do so would be U.S. Bankruptcy Court and not the
Tennessee Courts.

                 Based on the foregoing, the Trial Court correctly determined that all four
manufacturers were not amenable to service of process in Tennessee and that initiation of the strict
liability suit against North Brothers was appropriate.

                Appellant raises several issues regarding the instructions the Trial Court delivered to
the jury. These issues are questions of law, and our standard of review is de novo with no presumption
of correctness. Solomon v. First Am. Nat'l Bank, 774 S. W. 2d 935, 940 (Tenn. App.1989). “In
reviewing a jury charge, we consider the charge as a whole to determine whether prejudicial error has
been committed. The charge will not be invalidated so long as it fairly defines the legal issues
involved in the case and does not mislead the jury.” Hunter v. Burke, 958 S. W. 2d 751, 756 (Tenn.
Ct. App.1997). The determination of whether an instruction was proper is crucial because the
soundness of every jury verdict rests on the fairness and accuracy of the trial court's instructions.
Since the instructions are the sole source of the legal principles needed to guide the jury's
deliberations, trial courts must give substantially accurate instructions concerning the law applicable
to the matters at issue. Goodman v. Jones No. E2006-02678-COA-R3-CV, 2009 WL 103504 at *
5 (Tenn. Ct. App. Jan. 12, 2009)(citing Ladd v. Honda Motor Co., Ltd., 939 S. W. 2d 83, 94 (Tenn.
Ct. App.1996). A jury's verdict should not be set aside because of an erroneous instruction to the jury
unless it affirmatively appears that the erroneous instruction actually misled the jury. Olinger v.
University Medical Center, 269 S. W. 3d 560, 563 (Tenn. Ct. App. 2008) citing Grandstaff v. Hawks,
36 S. W. 3d 482, 497 (Tenn. Ct. App. 2000)).

               Plaintiff contends that the Trial Court failed to instruct the jury that North Brothers


                                                   11
could be at fault for either strict liability based on its selling a defective product or based on their
failure to warn of the defect. Plaintiff sought to demonstrate at trial that North Brothers was liable
to plaintiff based on the theory that North Brothers was the seller of a defective product and that it
had failed to warn of the defect.

               Tenn. Code Ann. § 29-28-105 reads, in relevant part, as follows:

               (a) A manufacturer or seller of a product shall not be liable for 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.
               (b) In making this determination, the state of scientific and technological knowledge
               available to the manufacturer or seller at the time the product was placed on the
               market, rather than at the time of injury, is applicable. Consideration is given also to
               the customary designs, methods, standards and techniques of manufacturing,
               inspecting and testing by other manufacturers or sellers of similar products.

                Accordingly, a plaintiff must prove that the product was either defective or
unreasonably dangerous at the time it left the control of the manufacturer or seller, regardless of the
legal theory relied upon. Shoemake v. Omniquip Intern., Inc. 152 S. W. 3d 567, 572 (Tenn. Ct. App.
2003)(citing Fulton v. Pfizer Hosp. Products Group, Inc., 872 S. W. 2d 908, 911 (Tenn. App.1993)).

                 Tenn. Code Ann. § 29-28-102(2) defines defective condition as “a condition of a
product that renders it unsafe for normal or anticipatable handling and consumption.” Tenn. Code
Ann. § 29-28-105(b) provides that, in determining whether a product is defective, “the state of
scientific and technological knowledge available to the manufacturer or seller at the time the product
was placed on the market ... is applicable.” Consideration should also be given “to the customary
design, methods, standards and techniques of manufacturing, inspecting and testing by other
manufacturers or sellers of similar products.” Id. As a general rule, an injury in and of itself is not
proof of a defect and thereby does not raise any presumption of defectiveness. Id. Therefore, it is not
enough to show that the product caused the plaintiff's injury or was involved in it. Whaley v. Rheem
Mfg. Co., 900 S. W. 2d 296, 300 (Tenn. Ct. App.1995). Rather, “[t]he burden is upon the plaintiff
to ‘show that there is something wrong with the product.’ ” Fulton, 872 S. W. 2d at 911 (quoting
Tatum v. Cordis Corp., 758 F.Supp. 457, 461 (M.D.Tenn.1991)).

               Mrs. Nye’s defective product theory was that the asbestos-containing products sold
by North Brothers, pipe covering and asbestos cloth, were unsafe for their normal or anticipatable
handling or consumption because all of the products contained a known carcinogen, asbestos, and in
their normal use released respirable asbestos fibers. Plaintiff supported this theory with expert
testimony that established that a product that releases respirable asbestos fibers was unsafe for its
intended use.

               The plaintiff’s theory of strict liability based on defective product was specifically pled

                                                  12
and supported by the record. Accordingly, the Trial Court had a duty to provide the jury with an
instruction on this theory of liability and it did so. The exact instructions delivered by the Court was:

                “A property is defective if it is unsafe for normal or reasonably anticipated handling
                and use. . . . . A seller includes a retailer, wholesaler, or distributor. A seller is any
                individual or organization in the business of selling a product, either for resale or for
                use or consumption.”

                “The seller or manufacturer of a product is not responsible for any injury to person or
                property caused by the product unless the product is determined to be in a defective
                condition at the time it left the seller’s or manufacturer’s control. In making this
                determination, you must apply the state of scientific and technological knowledge
                available to the seller or manufacturer at the time the product was placed on the
                market, rather than at the time of injury.”

                 The Trial Judge’s charge on this issue was proper. The Trial Court’s charge on
plaintiff’s failure to warn claim, Tenn. Code Ann. § 29-28-102 6) expressly provides that a products
liability action may be maintained based on the defendant’s failure to warn of a defect in a product:

                “Product liability action” for purposes of this chapter includes all 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 .
                ...

                Tennessee courts have long held that a manufacturer may be held strictly liable for
failing to warn consumers of the dangers of a particular product at the time of sale. Flax v. Daimler
Chrysler Corp. 272 S.W. 3d 521, 541 (Tenn. 2008), cert. denied, 129 S. Ct. 2433, 174 L. Ed. 2d 77(
2009) (citing Whitehead v. Dycho Co., 775 S. W. 2d 593, 596 (Tenn.1989); Trimble v. Irwin, 59
Tenn. App. 465, 441 S. W. 2d 818, 821 (1968)). Further, the General Assembly has also
acknowledged that a failure to warn claim is a valid basis for a product liability action in Tenn. Code
Ann. § 29-28-102(6) cited above. Flax at 541 (citing Dempsey v. International Ass'n of Bridge,
Structural and Ornamental Ironworkers No. 03A01-9709-CV-00436, 1998 WL 254017 at * 8 - 9
(Tenn. App. May 19, 1998).


                Plaintiff’s theory of recovery regarding failure to warn is that North Brothers knew that
the products it sold to DuPont contained asbestos and that asbestos was a carcinogen, but failed to
warn the end user of the defect. Thus, for the jury to find for plaintiff on the failure to warn claim,

                                                   13
it would have to be instructed on the law on defective product as well as on failure to warn, and it
was. The instructions provided on defective product are stated above, and the Trial Court provided
the following instructions regarding failure to warn:

                Where proper instructions for use and an adequate warning of hazards are given, the
                seller or manufacturer may reasonably assume that they will be read and followed.
                Thus, a product is not in a defective condition if: 1, The manufacturer or seller has
                given proper instructions for the use of a product and an adequate warning of the
                dangers associated with the use or misuse of the product; and 2, The product is safe
                for use if the instructions and warnings are read and followed.


                Accordingly, the Trial Court gave instructions on both of plaintiff’s two theories of
liability, and on this issue the appeal is without merit.


                Appellant objects to the Trial Court’s instruction that “[a] manufacturer or a seller
cannot be held liable for failure to warn if you find that the consumer, DuPont, was already aware of
the danger in connection with the use of asbestos-containing products, or if you find that adequate
warnings were given by manufactures of sellers to DuPont because the charge, which gives the
learned intermediary defense to the jury, was inadequate, incomplete and insufficient to fully instruct
the jury and prevent jury confusion.” The Trial Court stated during the jury charge conference that
this instruction came directly from a “pedicle screw case”, Harden v. Danek Medical, Inc., 985 S. W.
2d 449 (Tenn. Ct. App. 1998). In Harden the plaintiff brought suit against a manufacturer of a
pedicle screw4, which is a medical device, for injuries caused when the device was implanted in his
spine by his physician. The defendant manufacturer filed a motion for summary judgment based on
the defense of the “learned intermediary” and the trial court granted the motion. This Court affirmed
the judgment of the trial court and explained the learned intermediary doctrine as follows:


                Under this doctrine, manufacturers of certain medical products “may reasonably rely
                on intermediaries to transmit their warnings and instructions.” Pittman v. Upjohn Co.,
                890 S.W.2d 425, 429 (Tenn.1994). This defense is based upon the pivotal role that
                physicians play in the distribution of prescription products. Id. Physicians can be
                learned intermediaries only when they receive adequate warnings. Id. Thus,
                manufacturers are not shielded from liability if they provide inadequate warnings to
                physicians. Id. In order to recover for failure to warn under the learned intermediary
                doctrine, a plaintiff must show:(1) that the defendant failed to warn the physician of
                a risk associated with the use of the product not otherwise known to the physician; and
                (2) that the failure to warn the physician was both a cause in fact and proximate cause
                of the plaintiff's injury. 63A Am. Jur. 2d Products Liability § 1200 (1984).


       4
           Sometimes referred to as a “bone screw”.

                                                  14
               Generally, “a manufacturer will be absolved of liability for failure to warn for lack of
               causation where the consumer was already aware of the danger, because the failure to
               warn cannot be the proximate cause of the user's injury if the user had actual
               knowledge of the hazards in question.” Id. at § 1162. Under this doctrine, physicians
               are the “consumers” who must be warned. Thus, it is generally held that the learned
               intermediary doctrine may shield a manufacturer from liability when the physician
               was independently aware of the risks involved. Id. at § 1162. See Odom v. G.D.
               Searle & Co., 979 F.2d 1001 (4th Cir.1992) (applying South Carolina law); Stanback
               v. Parke, Davis & Co., 657 F.2d 642 (4th Cir.1981)(applying Virginia law); Spychala
               v. G.D. Searle & Co., 705 F.Supp. 1024 (D.N.J.1988) (applying New Jersey law);
               Ashman v. SK & F Lab Co., 702 F.Supp. 1401 (N.D.Ill.1988)(applying Illinois law);
               Zanzuri v. G.D. Searle & Co., 748 F.Supp. 1511 (S.D.Fla.1990)(applying Florida
               law); Andre v. Mecta Corp., 186 A.D.2d 1, 587 N.Y.S.2d 334, (N.Y.App.Div.1992)
               appeal denied, 85 N.Y.2d 801, 624 N.Y.S.2d 371, 648 N.E.2d 791 . . . .


               Thus, the defendant's alleged failure to warn plaintiff is not considered to be the
               proximate cause of plaintiff's injury under this doctrine. While the “independent
               knowledge” defense is not universally accepted, see Seley v. G.D. Searle & Co., 67
               Ohio St.2d 192, 423 N.E.2d 831 (1981), we follow the majority view among the
               courts that have decided this issue, which is consistent with Tennessee case law. See
               Ball v. Mallinkrodt Chem. Works, 53 Tenn. App. 218, 381 S.W.2d 563, 568 (1964).


Harden at 451 - 452.

                The learned intermediary doctrine is well established in Tennessee in relation to
product liability claims against manufacturers and distributors of prescription drugs and medical
devices. See Johnson v. Settle, No. M1999-01237-COA-R3-CV, 2001 WL 585093 (Tenn. Ct. App.
June 1, 2001)(medicinal acid); King v. Danek Medical, Inc. 37 S.W.3d 429 (Tenn. Ct. App.
2000)(pedicle screw); Maestas v. Sofamor Danek Group, Inc., No. 02A01-9804-CV-00099, 1999 WL
74212 (Tenn. App. Feb. 16, 1999)(pedicle screw); Spence v. Danek Medical, Inc., No. 96C-1004,
1998 WL 665760 (Tenn. Cir. Ct. Jun. 17, 1998)(pedicle screw); Wood v. Danek Medical, Inc., No.
96C-1022, 1998 WL 665774 (Tenn. Cir. Ct. Jun. 17, 1998)(pedicle screw); Pittman v. Upjohn Co.,
890 S.W.2d 425 (Tenn.1994)(prescription drug); Pittman v. Upjohn Co., No. 01-A-01-9008CV00302,
1991 WL 165764 (Tenn. Ct. App. Aug. 30, 1991), perm. to appeal granted Jan. 21, 1992
(prescription drug); Dooley v. Everett, 805 S. W. 2d 380 (Tenn. App.1990)(prescription drug); Laws
v. Johnson, 799 S. W.2d 249 (Tenn. App. 1990)(prescription drug; doctrine discussed but not applied
to pharmacist). However, no Tennessee appellate court has extended the use of the learned
intermediary doctrine beyond the medical arena and the doctrine has never been applied in a case
involving a supplier of a product to a buyer/employer and an injured employee who is a user of the
product.



                                                 15
                In Whitehead v. Dycho Co., Inc. No. 47, 1987 WL 27044 (Tenn. Ct. App. Dec. 11,
1987) overruled by Whitehead v. Dycho Co., Inc. 775 S.W.2d 593 (Tenn. 1989) this Court considered
and rejected the application of the learned intermediary or the related “sophisticated user” doctrine
in the context of a products liability suit. Whitehead 1987 WL 27044 at * 5 - 9.


                 In Whitehead the plaintiff, an employee of Magnavox, brought a products
liability/failure to warn suit against several defendants who were manufacturers or distributors of the
chemical naphtha, a solvent used by plaintiff in association with her job at Magnavox to remove glue
from equipment, her hands and clothing. Plaintiff took some naphtha home with her in a Coke can
and placed her work clothes and the solvent in her washing machine. The solvent caused the washing
machine to explode, injuring plaintiff severely. Whitehead 1987 WL 27044 at * 3. The evidence
showed that the supplier of the chemical to Magnavox delivered the product in fifty-five gallon drums
that had a flammable liquid warning sticker on it. The supplier also provided Magnavox with a
MSDS5 with the delivery of the first order of the chemical. Magnavox removed the chemical from
the drums provided by the supplier and transferred it to small pump-type containers for the individual
use of its employees. Magnavox did not place warnings on the small containers nor did it issue any
warnings to the employees regarding the flammable nature of the solvent. Id.


                 The Whitehead defendants filed motions for summary judgment based on the theory
that Magnavox was a “sophisticated, bulk purchaser” of naphtha and that the defendants were entitled
to rely on the expertise of the purchaser to warn the ultimate users of the products. Id. at * 4. The
trial court granted summary judgment in favor of the defendants finding that Magnavox was a skilled,
sophisticated, industrial purchaser in bulk from the defendants and that Magnavox was a learned
intermediary upon whom the defendants could rely to warn the end user/employees of the dangers
presented by naphtha. The Court of Appeals rejected the trial court’s reliance on both the learned
intermediary doctrine and the “sophisticated user” doctrine as neither theory had been accepted by
Appellate Courts of Tennessee. The Court of Appeals also reversed the trial court on the finding that
plaintiff’s use of the product was unforeseeable, holding that the question of foreseeability was
generally a jury question. Id. at * 10.


                The Tennessee Supreme Court reversed the Court of Appeals and held that the trial
court was correct in granting summary judgment but for different reasons than the trial court relied
upon. Whitehead v. Dycho Co., Inc. 775 S.W.2d 593, 598 (Tenn. 1989). The Supreme Court held
that “the independent intervening act of Magnavox in placing naphtha in small, pump-type containers
with no label and failing to warn its employees of the dangerous nature of the product was the
proximate cause of the accident.” Whitehead, 775 S. W. 2d 593, 599 - 600 (citing Ford Motor




       5
           Material Safety Data Sheet.

                                                  16
Company v. Wagoner, 183 Tenn. 392, 192 S.W. 2d 840 (1946)).6 While the Supreme Court quoted
at length from the Court of Appeals opinion in Whitehead, it did not adopt the doctrines discussed
in the Court of Appeals opinion, but affirmed the Trial Court on grounds other than those the Trial
Court held.


               The Sixth Circuit, the federal district courts in Tennessee and several courts in other
states have mistakenly cited Whitehead as accepting the sophisticated buyer doctrine. See Jacobs v.
E.I. Du Pont De Nemours & Co., 67 F.3d 1219, 1244-45 (6th Cir.1995); Davis v. Komatsu America
Indus. Corp., 46 F.Supp.2d 745, 754 (W.D.Tenn.,1999); Laico v. Atlantic Richfield Co., No.
H021130, 2001 WL 1571634 at * 5 (Cal. App. 6 Dist. Dec. 10, 2001); Patterson v. E.I. Du Pont De
Nemours & Co. Inc., No. B113317, 1999 WL 117693 at * 5 (Cal. App. 2 Dist. Feb. 25, 1999);
Kennedy v. Mobay Corp. 579 A. 2d 1191, 1197 (Md. App. Sep 28, 1990); Humble Sand * Gravel,
Inc. v. Gomez, 146 S. W. 3d 170, 199 (Tex. 2004); In re Manbodh Asbestos Lit. Series, No. 324/1997,
2005 WL 3487838 at * 14 (V.I. Super. Nov. 28, 2005; Travelers Indem. Co. v. Indus. Paper &
Packaging Corp., No. Civ.A 3:02-CV-491, 2006 WL 2050686 at * 9 (E.D. Tenn. Jul. 19, 2006).


                Perhaps this mistake arose when these courts’ analysis of the Supreme Court’s
Whitehead holding stopped when they determined that the Supreme Court affirmed the Trial Court’s
result and did not pick up on the fact that the Supreme Court affirmed the Trial Court on grounds
other than what the Trial Court had held, and employed the well known and familiar rule that a trial
court may be affirmed on grounds other than the findings made by the trial court, if the trial court’s
result is correct, but based on the wrong reason.


                In the years following the Supreme Court’s decision in Whitehead, neither that Court
nor our Court has adopted the sophisticated buyer doctrine or extended the learned intermediary
doctrine beyond the realm of pharmaceutical and medical device products liability cases. Clearly, the
learned intermediary doctrine is applicable to cases involving highly skilled users, especially medical
doctors, but the same rationale does fit sales of defective products to commercial users.


               We hold that the Trial Court erred when it instructed the jury that if DuPont knew of
the hazards of asbestos, North Brothers could not be found liable for failure to warn as this charge
incorporates either the learned intermediary doctrine or the sophisticated buyer doctrine, and on that
basis we remand the case for a new trial.



       6
          In a later case, the Tennessee Supreme Court held that an employer cannot be found to
the legal, or proximate, cause of its employee’s injuries although an employer can be found to
have been a cause in fact of the injuries. Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252,
256 (Tenn. 1997).


                                                  17
                Next, appellant contends that DuPont, as Mr. Nye’s employer, cannot be found to be
the proximate, or legal cause of the plaintiff’s injuries because the employer is immune from tort
liability under the Tennessee Workers Compensation Law, Tenn. Code Ann. § 50-6-108(a). In
support of this contention, appellant relies on Ridings v. Ralph M. Parsons Co., 914 S.W. 2d 79
(Tenn. 1996) and Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252 (Tenn. 1997). The
Tennessee Supreme Court in Curtis v. G.E. Capital Modular Space, 155 S.W.3d 877, 882-883 (Tenn.
2005) reviewed the holdings in Ridings and Snyder, which were products liability cases.7 Both
Ridings and Snyder involved personal injuries in the workplace, and in both cases the
manufacturer/defendant sought to use the affirmative defense that the employer of the plaintiff was
negligent. The Supreme Court first discussed the workers compensation scheme set forth by Tenn.
Code Ann. § 50-6-101 et seq.:


                 The right to workers' compensation benefits is a unique concept in the law, derived
                 solely from statutory provisions rather than from the common law. See 99 C.J.S.
                 Workers' Compensation § 23 (2004). The primary purpose of workers' compensation
                 is to afford benefits for job-related injuries regardless of fault. Woods v. Harry B.
                 Woods Plumbing Co., 967 S. W.2d 768, 772 (Tenn.1998); see also Tenn. Code Ann.
                 § 50-6-103 (1999). Based upon a mutual renunciation of common law rights and
                 defenses, see Woods, 967 S. W.2d at 772, the system operates to provide quick and
                 efficient compensation to injured workers in exchange for immunizing employers
                 from tort liability and limiting their damages. See, e.g., Ridings v. Ralph M. Parsons
                 Co., 914 S. W.2d 79, 81 (Tenn.1996) (discussing the underlying policy of the workers'
                 compensation system); see also Tenn. Code Ann. § 50-6-108(a) (1999) (providing that
                 the right to receive workers' compensation benefits “shall exclude all other rights and
                 remedies” of the injured employee); Snyder v. LTG Lufttechnische GmbH, 955
                 S.W.2d 252, 256 (Tenn.1997) (noting that “the employer is immune from tort liability
                 under Tennessee Code Annotated section 50-6-108(a).”).
Curtis at 882.

       7
         Curtis involved a certified question to the Tennessee Supreme Court from the U.S.
District Court for the Eastern District of Tennessee in Greeneville. The question was “In an
action instituted against an employer for workers' compensation benefits and in which the
employer files an answer or amended answer naming a third party as having caused all or a part
of the plaintiff's injuries, does Tennessee Code Annotated section 20-1-119 extend the limitation
period and allow the filing of an amended complaint against the third party named by the
employer and/or other persons named as tortfeasors(s) by the third party in its answer?” The
Supreme Court answered: “ [T]hat in an action instituted against an employer for workers'
compensation benefits and in which the employer files an answer or amended answer naming a
third party as having caused all or a part of the plaintiff's injuries, Tennessee Code Annotated
section 20-1-119 is inapplicable and does not extend the limitation period to allow for the filing
of an amended complaint against the third party named by the employer and/or other persons
named as tortfeasors by the third party in its answer.

                                                   18
              The Supreme Court went on to discuss the particular facts and holdings of the two
cases Mrs. Nye relies on:


                 In Ridings, an employee sustained on-the-job injuries when he fell from a ladder. 914
                 S.W.2d at 80. The employee then filed suit against the manufacturer of the ladder,
                 alleging liability based on theories of negligence, gross negligence and strict liability.
                 Later, the defendant manufacturer sought leave to amend its original answer to allege,
                 as an affirmative defense, that the plaintiff's employer was negligent. The trial court
                 denied this request. In later reviewing the issue on appeal, this Court held that a
                 defendant in a tort action could not assert fault on the part of the plaintiff's employer
                 as an affirmative defense. Ridings, 914 S.W.2d at 82. Basing our decision upon the
                 principles of comparative fault as announced in McIntyre, we stated that “fault may
                 be attributed only to those persons against whom the plaintiff has a cause of action in
                 tort.” Id. at 81. Recognizing that employers are immune from tort liability for job-
                 related injuries, we reasoned that “[s]ince the plaintiff's employer cannot be made a
                 party to the plaintiff's tort action for personal injuries sustained in the course and
                 scope of his employment, the rationale of McIntyre8, both as to principle and
                 procedure, will not permit fault to be attributed to the plaintiff's employer.” Id. at 82.
                 In further analyzing the employer/employee relationship, we stated that “[t]he duty
                 owed a worker by the employer is not measured by the standard of care applicable in
                 actions based on negligence or strict liability.” Id. at 83. The holding in Ridings was
                 later reaffirmed in Snyder, in which we also stated that in workers' compensation cases
                 “liability [is] imposed upon the employer without regard to the employer's
                 negligence.” Snyder, 955 S.W.2d at 255. The basic premise of the holdings in both
                 Ridings and Snyder was that a defendant in a tort action could not allege, as an
                 affirmative defense, comparative fault on the part of a nonparty who was immune
                 from tort liability.


Curtis at 882 - 883.


                The Curtis Court, however noted that the holdings of Ridings and Snyder were
abrogated in large part by Carroll v. Whitney, 29 S. W.3d 14 (Tenn.2000). In Carroll, the Supreme
Court held that a jury in a medical malpractice case could allocate fault to physicians who, as state
employees, were immune from suit. Carroll also noted that the workers' compensation system was
distinctly different from traditional tort law, thus Ridings and Snyder were not overruled but
remained uniquely applicable with regard to the allocation of fault to employers in workers
compensation cases.




       8
           McIntyre v. Balentine, 833 S.W. 2d 52 (Tenn. 1992).

                                                    19
                  In 2007, the Supreme Court, in Troup v. Fischer Steel Corp. 236 S.W.3d 143 (Tenn.
2007), revisited Ridings, Snyder and Carroll. In Troup, Belz was a general contractor overseeing
the construction of a warehouse. Troup, the plaintiff, was employed by Belz’s subcontractor, Jolly.
Another subcontractor, Fischer, cut holes in the roof of the warehouse at the instruction of Belz. The
plaintiff fell through the holes in the roof and sued Fischer for his injuries. Troup at 145. The trial
court held that Fisher could not argue the comparative fault of Jolly, plaintiff’s employer, or of Belz,
plaintiff’s statutory employer under Tenn. Code Ann. § 50-6-113(a).9 However, the trial court
allowed Fisher to assert that the acts and omissions of Belz and Jolly were the cause in fact of the
plaintiff’s injury. Troup at 145 - 146.


               The Supreme Court discussed at length its prior decisions in Ridings, Snyder and
Carroll regarding a defendant’s ability to allege the fault of an employer covered by Tennessee’s
worker compensation law. Troup at 146 - 150. The Court reaffirmed its prior holdings that
defendants cannot apportion fault to a plaintiff’s employer, but the defendants “must be permitted to
argue that an employer was a cause in fact of the plaintiff’s injuries. Troup at 146 (citing Snyder at
256). The Court explained:


                This rule is based on the distinction between cause in fact, “the cause and effect
                relationship between the defendant's tortious conduct and the plaintiff's injury,” and
                proximate or legal cause, “a policy decision made by the legislature or the courts to
                deny liability for otherwise actionable conduct based on considerations of logic,
                common sense, policy, precedent and ‘our more or less inadequately expressed ideas
                of what justice demands or of what is administratively possible and convenient.’ ” Id.
                at 256 n. 6 (quoting Bain v. Wells, 936 S.W.2d 618, 625 (Tenn.1997)).


Troup at 146.

                The Court noted that its previous rulings permit “a defendant to ‘point to the employer
as the “cause in fact” of the injury and to argue that the [defendant] should be absolved from all
liability.’” Troup at 149 - 150 (citing Dotson v. Blake, 29 S.W.3d 26, 30 (Tenn. 2000).


                Here, the Trial Court followed what the Supreme Court allowed in Troup, it instructed
the jury that it could consider North Brothers’ fault in determining liability unless it found that

       9
         Tenn. Code Ann. § 50-6-113 (a) provides that “[a] principal or intermediate contractor,
or subcontractor shall be liable for compensation to any employee injured while in the employ of
any of the subcontractors of the principal, intermediate contractor, or subcontractor and engaged
upon the subject matter of the contract to the same extent as the immediate employer.



                                                  20
DuPont was the sole cause of Nye’s injuries. The Troup Court specifically approved the use of the
modifier “sole”, stating that under Snyder a party could assert that an employer was the cause in fact
of the injury and that the defendant could be absolved of all liability if the employer’s actions were
totally sufficient to cause the plaintiff’s injuries without any other causative factors. Troup at 150.
We conclude this instruction was proper.


                However, the fact that the Trial Court wrongly gave the learned intermediary
instruction in combination with the sole cause instruction clearly confused the jury. Essentially, the
jury was told that if DuPont had knowledge of the defect in the product, North Brothers could not be
held liable. This instruction essentially functioned as a directed verdict as to the finding that DuPont
was the sole cause of the injury. While the sole cause charge was not error in itself, however when
viewed in combination with the learned intermediary or sophisticated buyer doctrine instruction, it
caused jury confusion and was thus, improper.


                Appellant contends that the verdict form should have delineated both of her causes of
actions, defective product and failure to warn. In Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 910
-911 (Tenn. 1999), the Supreme Court discussed the make-up of a jury verdict form when there are
multiple claims for relief:


               As the Court of Appeals recognized, the most effective approach in dealing with
               multiple claims for relief is to require the jury to respond either to a general verdict
               form accompanied by special interrogatories or to a special verdict form that has been
               prepared to parallel the instructions to the jury on each claim. Tenn. R. Civ. P. 49
               accords trial courts great latitude in using special verdict forms and tailoring special
               interrogatories to meet the needs of each unique case. See Petty v. Estate of Nichols,
               569 S.W.2d 840, 847 (Tenn.App.1977). As the intermediate court summarized:


               Special verdict forms should use the same terms as those used in the jury instructions.
               See Lundquist v. Nickels, 238 Ill.App.3d 410, 179 Ill.Dec. 150, 605 N.E.2d 1373, 1389
               (1992). They should repeat and highlight the salient issues discussed in the
               instructions. See Kass v. Great Coastal Express, Inc., 291 N.J.Super. 10, 676 A.2d
               1099, 1107 (1996). Inconsistencies with jury instructions and the special verdict form
               may confuse the jury. See Ladd v. Honda Motor Co., 939 S.W.2d 83, 103
               (Tenn.App.1996).


Concrete Spaces at 910 -911.

                While the jury verdict form used by the Trial Court here, may not have confused the
jury to the point that its use was reversible error, the Trial Court is directed to follow the advice in


                                                  21
Concrete Spaces and either accompany a general verdict form with special interrogatories that reflect
the jury instructions or prepare a special verdict form that parallels the jury instructions as to the
multiple causes of action presented by plaintiff and as to the various defenses available to defendant.

               Mrs. Nye also claims that the Trial Court should have directed a verdict in her favor
on her defective product cause of action. Assuming arguendo she is correct, that the Trial Court
should have directed a verdict on this issue, it was harmless error as the jury found the product was
defective. Under Tenn. R. Civ. P. 36(b), an error does not of itself necessarily require a reversal; a
judgment “shall not be set aside unless, considering the whole record, error involving a substantial
right more probably than not affected the judgment or would result in prejudice to the judicial
process.” See Blackburn v. Murphy, 737 S.W.2d 529, 533 (Tenn.1987). Moreover, the case is
remanded for a new trial which renders a decision on this issue moot, as such motions would be based
upon the evidence presented in the new trial.


                Based upon the foregoing, we reverse the Judgment of the Trial Court and remand for
a new trial in accordance with this Opinion. The cost of the appeal is assessed to defendant.




                                                       ______________________________
                                                       HERSCHEL PICKENS FRANKS, P.J




                                                  22
