Electric Power Board of Chattanooga v. Monsanto Co.

No. CIV-1-85-634 (E.D. Tenn. October 27, 1986)

The court holds that Tennessee's statute of repose and the state's Products Liability Act bar the claims of plaintiff electric utilities boards for damages suffered by them because of the existence of polychlorinated biphenyls (PCBs) in equipment purchased from the defendant more than 10 years prior to suit. The court rules that the statute of repose bars claims that had accrued before the date the law went into effect. Alternatively, the court holds that the plaintiff's action accrued upon the discovery of the risks involved with PCBs, after the date the law went into effect, and not when the products were purchased. The court holds that the statute of repose would nevertheless bar a vested or accrued right of action. The court next holds that Tennessee's Products Liability Act bars the pleading of all possible legal theories regarding the purchase of a defective or unreasonably dangerous product, including most common law causes of action. The court holds that the broad language of the Act prevents plaintiffs from interposing defendant's misrepresentation and fraudulent concealment of the known hazards of PCBs to equitably estop the defendant from raising the statute of repose as a bar.

[A subsequent order appears at 17 ELR 20526.]

Counsel for Plaintiff
Strang, Fletcher, Carriger, Walker, Hodge & Smith
400 Krystal Bldg., One Union Sq., Chattanooga TN 37402
(615) 265-2000

Counsel for Defendant
George M. Derryberry
Miller & Martin
10th Fl., Volunteer Bldg., Chattanooga TN 37402
(615) 756-6600

[17 ELR 20526]

Hull, J.:

Order

This products liability action is now before the Court for resolution of the threshold issue of whether T.C.A. § 29-28-103 (the "statute of repose" in Tennessee's products liability law) bars the instant action as it relates to any of the defendants' equipment purchased by the plaintiffs more than ten years before this suit was filed.

In contending that it does not, the plaintiffs argue first that the statute of repose, which went into effect July 1, 1978, cannot bar any claim that had already accrued before that date. This argument is clearly without merit. First of all, the Court believes that the plaintiffs' action accrued when they discovered the risks involved with PCBs, not when they purchased the products. However, even if they could claim that their right accrued when the products were purchased, they would not have a "vested" cause of action which the statute of repose could not bar. See Mathis v. Eli Lilly and Co., 719 F.2d 134 (6th Cir. 1983). (In Mathis, the plaintiff developed cancer because her mother had taken DES, a synthetic hormone to prevent miscarriages, over twenty-five years earlier — well before 1978.)

Plaintiffs next contend that the statute of repose, even if found to bar their products liability claim, does not bar their theories of recovery based on nuisance, restitution, and economic losses. However, the very broad language in Tennessee's Products Liability Act, § 29-28-102 (6) suggests that it includes all possible legal theories which could be pleaded regarding the purchase of a defective or unreasonably dangerous product.

Finally, the plaintiffs contend that there are certain factual situations, such as the fraudulent concealment of known hazards relating to PCBs, which would equitably estop the defendants from raising the statute of repose as a bar to this action. The Court disagrees. Because the broad language in the products liability act includes misrepresentation and concealment, the Court does not believe any factual situation would estop the defendants from raising the statute of repose as a bar to this case.

Accordingly, the Court hereby FINDS that T.C.A. § 29-28-103, bars any part of the plaintiffs' claim, under Tennessee law, that applies to items manufactured by the defendants and purchased by the plaintiffs more than ten years before this action was filed.

Plaintiffs' motion to amend their complaint is hereby GRANTED.

The plaintiffs are hereby ADVISED that the Court will next consider the merits of the pending motions for summary judgment. Plaintiffs are to inform the Court, by letter to the Clerk, how much discovery time is needed before they can respond.