Danny Long v. Quad Power Products, LLC ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 25, 2014 Session
DANNY LONG ET AL. v.
QUAD POWER PRODUCTS, LLC ET AL.
Appeal from the Circuit Court for Hamilton County
No. 03C1789 W. Jeffrey Hollingsworth, Judge
No. E2013-02708-COA-R3-CV-FILED-MARCH 20, 2015
This is a product liability action arising from a workplace injury to the plaintiff, Danny
Long. Mr. Long’s left arm was severely injured on October 30, 2002, when a reducing
mechanism attached to a ball valve he was using suddenly broke, causing a release of
pressurized air and water onto his left arm and shoulder. Following lengthy medical
treatment and multiple surgeries, Mr. Long’s left arm was amputated. On October 30,
2003, Mr. Long and his wife filed a complaint alleging, inter alia, negligence in the
design, manufacture, assembly, distribution, and sale of the ball valve, as well as failure
to warn of potential danger to users of the ball valve and failure to include with the ball
valve adequate safety information relative to its use. The Longs named four companies
as defendants allegedly responsible for the design, manufacture, assembly, distribution,
and sale of the ball valve. Mr. Long’s employer was subsequently joined as an
intervening plaintiff. Through the course of the proceedings, the trial court granted
summary judgment in favor of two of the defendant companies on the basis of lack of
personal jurisdiction. These defendants are not parties to this appeal. Mr. Long died on
December 22, 2006, and Ms. Long thereafter by substitution assumed his interest in this
action. In May 2010, the trial court granted Ms. Long and the intervening plaintiff
permission to amend the complaint to reassert a strict liability claim against the two
remaining defendant companies based upon the sole theory of failure to warn. In May
2013, the two remaining defendants subsequently filed separate motions for summary
judgment. Finding that no genuine issue of material fact existed that could establish strict
liability based upon failure to warn, the trial court granted summary judgment in favor of
both remaining defendants. Ms. Long and the employer appeal.1 Discerning no error, we
affirm.
1
During the pendency of this appeal, Ms. Long and the employer voluntarily dismissed this appeal against
one of the two remaining defendants, pursuing their appeal solely against one defendant company,
Southern Fluidpower, Inc.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, delivered the opinion of the court, in which D. MICHAEL
SWINEY and JOHN W. MCCLARTY, JJ., joined.
Stephen T. Greer, Dunlap, Tennessee, for the appellant, Geraldine Long, and Jeffrey L.
Cleary, Chattanooga, Tennessee, for the appellant, Alstom Power, Inc.
Thomas E. LeQuire and Lance W. Thompson, Chattanooga, Tennessee, for the appellee,
Southern Fluidpower, Inc.
OPINION
I. Factual and Procedural Background
Plaintiff Danny Long was fifty-three years old when the accident resulting in
severe injury to his left arm occurred on October 30, 2002. He was employed as a
boilermaker at the Chattanooga location of Alstom Power, Inc., (“Alstom”), which
manufactures tubular products, including water wall panels and super heaters for the
power generation industry. While pressure testing a product, Mr. Long attempted to turn
a ball valve to release pressure on a super heater test panel through which highly
pressurized water was moving. The test panel itself had been designed and assembled by
Alstom employees. When the ball valve would not turn, Mr. Long used an extension or
“cheater” bar to continue his attempt to relieve pressure. The reducing mechanism, a
three-eighth-inch carbon nipple connected to the valve, then broke, causing water under
extremely high pressure, 6,975 pound-force per square inch (“psi”), to release onto Mr.
Long’s left arm and shoulder. Mr. Long required immediate, emergency medical care
and underwent multiple surgeries, culminating in the amputation of his left arm.
One year following the accident, on October 30, 2003, Mr. Long and his wife,
Geraldine Long, filed a complaint pursuant to the Tennessee Products Liability Act of
1978 (“TPLA”). See Tenn. Code Ann. §§ 29-28-101 through 108 (2012). The Longs
alleged negligence in the design, manufacture, assembly, distribution, and sale of the ball
valve; breach of implied and express warranties; failure to warn; failure to exercise due
care; and failure to include with the ball valve adequate safety information relative to its
use. The Longs named four defendants. The ball valve had been manufactured by
defendant Pister Kugelhӓhne GmbH (“Pister”), a corporation based in Germany. Pister
distributed its products in the United States through defendant Pressure Components, Inc.
(“PCI”), a corporation based in Ohio. Alstom purchased the ball valve in question by
ordering it, using the valve’s PCI catalog number, from defendant Southern Fluidpower,
2
Inc. (“Southern”), a corporation based in Tennessee. PCI thus distributed the ball valve
through Southern, which in turn sold it to Alstom.
The fourth defendant, Quad Power Products, LLC (“Quad Power”), based in
Missouri, was granted summary judgment by the trial court in November 2005 without
objection from the other parties.2 Quad Power had asserted in its motion for summary
judgment that although it was a distributor of PCI products, it had never distributed
products in Tennessee, had no contacts in Tennessee, and had never dealt with Alstom.
Pister, the manufacturer based in Germany, was subsequently granted summary judgment
by the trial court in November 2009 on the basis of lack of personal jurisdiction. The
court found that Pister did “not meet the minimum contact standard set forth in the
Tennessee Long Arm Statute and applicable case law.” See Tenn. Code Ann. §§ 20-2-
214(a)(6) (2009), 20-2-225 (2009); State v. NV Sumatra Tobacco Trading Co., 403
S.W.3d 726, 740-41 (Tenn. 2013) (analyzing the minimum-contact standard in reinstating
the trial court’s grant of summary judgment in favor of a foreign manufacturer). The two
remaining defendants at the time Ms. Long and Alstom filed this appeal were PCI and
Southern. During the pendency of this appeal, Ms. Long and Alstom voluntarily
dismissed this appeal as to PCI. Southern is therefore the only remaining defendant
involved in this appeal.
Southern filed an answer to the original complaint on December 10, 2003,
asserting several affirmative defenses, including, as relevant to this appeal, that Mr.
Long’s negligence and/or the negligence of another actor caused Mr. Long’s injury. The
trial court granted Alstom permission to file an intervening petition on May 12, 2004,
asserting a right of subrogation for Workers’ Compensation benefits it had paid or would
pay to Mr. Long.
On December 19, 2005, Southern filed a motion for summary judgment, asserting
that although it was a distributor of PCI products, it did not distribute the ball valve in
question to Alstom. Alstom filed a response on February 1, 2006, presenting “recently
discovered documents,” including a purchase release document and affidavit showing
that Alstom’s director of supply management had in fact purchased the ball valve from
Southern. Southern subsequently withdrew its initial motion for summary judgment on
March 23, 2006.
2
This action originally came before Judge Jacqueline E. Schulten, who entered an order recusing herself
on April 5, 2005. Judge Samuel H. Payne then heard the case through the grant of summary judgment to
Quad Power in November 2005. By the time of the court’s ruling on Southern’s first motion for summary
judgment in November 2006, Judge W. Jeffrey Hollingsworth was presiding over the case and continued
to hear it through entry of the final judgment appealed here.
3
Two months later on May 12, 2006, Southern filed a second motion for summary
judgment, asserting, inter alia, that while it distributed Pister ball valves for PCI, the
valves were only in Southern’s possession for approximately twenty-four hours and were
not assembled, designed, manufactured, or altered by Southern. The trial court granted
this motion on November 15, 2006, upon the court’s finding that no opposing brief had
been filed for more than six months and that the motion was well taken.
Mr. Long died on December 22, 2006. Pursuant to Tennessee Rule of Civil
Procedure 25.01, Ms. Long filed a suggestion of death in July 2007. The trial court
accordingly entered an order on August 27, 2007, reviving this action and substituting
Ms. Long for and on behalf of Mr. Long pursuant to Rule 25.01 and Tennessee Code
Annotated §§ 20-5-102 (2009).
As to Southern, Ms. Long filed a motion on January 14, 2010, requesting that the
trial court revise its previous order granting summary judgment due to the court’s
intervening grant of summary judgment to Pister. See Tenn. Code Ann. § 29-28-106(4)
(2012) (providing in relevant part that a product liability action shall not be commenced
or maintained against “any seller, other than the manufacturer, unless . . . [t]he
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 . . . .”). Upon consideration of this motion, the trial court
reinstated Ms. Long’s claim against Southern as to strict liability only in an order entered
February 16, 2010. Southern responded by filing a motion for interlocutory appeal of the
trial court’s decision to reinstate the strict liability claim. The trial court denied this
motion in an order entered April 20, 2010. Upon a subsequent motion filed by Ms. Long,
the trial court granted her permission in an order entered May 19, 2010, to amend the
complaint to state that Southern is a “seller” pursuant to the TPLA. See Tenn. Code Ann.
§ 29-28-106.
On May 3, 2013, Southern filed a motion for summary judgment, to which Ms.
Long and Alstom responded. The trial court, finding that no genuine question of material
fact existed to support Ms. Long’s claim that Southern’s failure to warn had caused Mr.
Long’s accident, entered a Memorandum Opinion and Order granting summary judgment
in favor of Southern on September 17, 2013. Ms. Long and Alstom timely appealed.
II. Issues Presented
Ms. Long and Alstom present four issues on appeal, which we have restated
slightly:
4
1. Whether the trial court erred by finding that Southern had not failed to
properly warn Mr. Long and Alstom concerning the pressure capacity of
the valve at issue.
2. Whether the trial court erred by finding that Southern had not failed to
properly warn Mr. Long and Alstom concerning the proper usage of the
valve at issue.
3. Whether the trial court erred by discounting the testimony of Ms. Long’s
and Alstom’s expert witness.
4. Whether the trial court erred by finding the actions of Alstom, as Mr.
Long’s employer, to be an intervening cause of Mr. Long’s injury.
III. Standard of Review
Our Supreme Court has succinctly described the applicable3 standard of review of
a trial court’s grant of summary judgment:
A summary judgment is appropriate only when the moving party can
demonstrate that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Hannan v.
Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008). When ruling on a
summary judgment motion, the trial court must accept the nonmoving
party’s evidence as true and resolve any doubts concerning the existence of
a genuine issue of material fact in favor of the nonmoving party. Shipley v.
Williams, 350 S.W.3d 527, 536 (Tenn. 2011) (quoting Martin v. Norfolk S.
Ry., 271 S.W.3d 76, 84 (Tenn. 2008)). “A grant of summary judgment is
appropriate only when the facts and the reasonable inferences from those
facts would permit a reasonable person to reach only one conclusion.”
Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (citing
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)). “The
granting or denying of a motion for summary judgment is a matter of law,
and our standard of review is de novo with no presumption of correctness.”
Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010).
3
The recently enacted Tennessee Code Annotated § 20-16-101 (Supp. 2012), 2011 Tenn. Pub. Acts 498,
is applicable only to cases commenced on or after July 1, 2011, and therefore is not applicable to this
case. Tennessee Code Annotated § 20-16-101 provides a standard of review for summary judgment with
the stated purpose “to overrule the summary judgment standard for parties who do not bear the burden of
proof at trial set forth in Hannan v. Alltel Publishing Co., its progeny, and the cases relied on in Hannan.”
See Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 25 n.2 (Tenn. 2011).
5
Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013).
Pursuant to Tennessee Rule of Civil Procedure 56.04, the trial court must “state the legal
grounds upon which the court denies or grants the motion” for summary judgment, and
our Supreme Court has recently instructed that the trial court must state these grounds
“before it invites or requests the prevailing party to draft a proposed order.” Smith v.
UHS of Lakeside, Inc., 439 S.W.3d 303, 316 (Tenn. 2014).
IV. Failure to Warn Claim Pursuant to TPLA
It is undisputed that Ms. Long’s only remaining claim at the time the instant
motion for summary judgment was heard was the allegation that Southern failed to
provide adequate warning regarding improper use of the ball valve that could render it a
dangerous product. Ms. Long specifically alleges that Alstom, and thus Mr. Long as the
end user, should have been warned regarding the danger of using the ball valve (1) with a
higher level of pressure than it had been designed to withstand and (2) in a system
conveying water due to the risk of corrosion. Southern contends that the trial court
properly found that no genuine issue of material fact existed that would support a finding
that Southern’s failure to warn was the cause in fact of Mr. Long’s injury. We agree with
Southern on this issue.
Our analysis begins with a review of the nature of Ms. Long’s cause of action.
Subsection 29-28-102(6) of the TPLA defines a product liability action as follows:
(6) “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; . . .
(Emphasis added.) Tennessee Code Annotated § 29-28-105 further provides in pertinent
part:
(a) A manufacturer or seller of a product shall not be liable for any injury
to a person or property caused by the product unless the product is
6
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.
...
(d) A product is not unreasonably dangerous because of a failure to
adequately warn of a danger or hazard that is apparent to the ordinary user.
See also Whaley v. Rheem Mfg. Co., 900 S.W.2d 296, 299 (Tenn. Ct. App. 1995) (“In
order to prevail in a products liability action, a plaintiff must prove that the product in
question was either defective or unreasonably dangerous, as those concepts are defined in
the Act, at the time it left the control of the manufacturer or seller.”).
Ms. Long does not argue that the ball valve was in a defective condition at the
time it was placed on the market. See Tenn. Code Ann. § 29-28-102(2) (defining
“defective condition” as “a condition of a product that renders it unsafe for normal or
anticipatable handling and consumption”). She asserts instead that Southern’s failure to
warn of the specific dangers of high-pressure usage over 5,000 psi and corrosion in water
applications rendered the ball valve unreasonably dangerous. Pursuant to Tennessee
Code Annotated § 29-28-109(8), “unreasonably dangerous” means
that a product is dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics, or that the
product because of its dangerous condition would not be put on the market
by a reasonably prudent manufacturer or seller, assuming that the
manufacturer or seller knew of its dangerous condition.
See also Shoemake v. Omniquip Int’l, Inc., 152 S.W.3d 567, 574 (Tenn. Ct. App. 2003)
(“Where the facts are undisputed, whether a duty to warn exists is determined as a matter
of law and, when the danger is open and obvious, no duty to warn is imposed.”).
In granting summary judgment to Southern, the trial court found that it had
“established that the accident was not caused by any failure to warn.” The court further
7
found that Ms. Long had “not produced evidence to raise a genuine question of fact on
the issue.” The court summarized the specific undisputed facts relevant to its findings as
follows:
1. The only claim Plaintiff is pursuing against [Defendant] is the failure
to warn claim.
2. On October 30, 2002, Danny Long was injured during the course
and scope of his employment with Alstom.
3. Mr. Long was using the ball valve at issue to release pressure in the
test panel designed and assembled by Alstom employees[.]
4. While Mr. Long was turning the handle on the valve, a component in
Alstom’s test panel broke, releasing highly pressurized water which
injured Mr. Long. The failed component was not a part of the valve
sold by the [Defendant].
5. Alstom purchased the valve for use as a “repair part for a forklift
hydraulic system.”
6. Alstom’s internal investigation concluded that the valve had been
removed from service a few days before Mr. Long’s accident
because it was difficult to open and close.
7. Alstom did not repair or discard the faulty valve.
8. The valve was put into the test panel to replace another valve which
was leaking.
9. The fittings used with the valve in the test panel were not rated for
the amount of pressure put through the system in the test during
which Mr. Long was injured.
10. The fixtures used in the test panel did not meet the requirements of
the ASME [American Society of Mechanical Engineers] Boiler and
Pressure Vessel Code.
11. Alstom’s use of several pipe reducers in the test panel and the fact
that the valve and other components in Alstom’s test panel were not
properly supported was “. . . poor practice” by Alstom.
8
12. If Alstom had properly supported the valve in its test panel, the
stress in the connected components would not have been sufficient
to cause the connecting components to fracture.
13. The manner in which the Alstom’s employees designed and
assembled the test panel predisposed the connective fittings to fail.
14. Simple inspection of the valve before its use in the test panel would
have alerted the Alstom employee who installed it that the inside of
the valve was corroded and it should not be used.
15. Alstom employees violated Alstom’s own safety rules by attaching a
previously removed valve to the test panel.
16. Alstom’s safety rules prohibited the use of the valve under the
circumstances present in this case.
(Record citations omitted.) Upon our thorough review of the record, we determine that
the trial court correctly found the above facts to be undisputed.4
A. Danger of Exceeding Ball Valve’s Pressure Capacity
Ms. Long argues that the pressure rating stamped on the ball valve was inadequate
to warn Alstom employees regarding the danger of exceeding 5,145 psi during hydro
testing of Alstom’s products. The ball valve was stamped by its manufacturer, Pister,
with the following information:
GERMANY1123
BKH-1NPT
PN-350 DN25
11/98 PCI
It is undisputed that “PN-350” refers to a European pressure rating designated as “BAR”
and that a BAR rating of 350 is the equivalent of 5,145 psi. Two Alstom employees
testified by deposition that they had never heard of “BAR” as a measurement, and one
employee testified that he thought the “PN” stamped on the valve meant “part number.”
4
We recognize that Mr. Long was the only individual who directly witnessed his accident and that he died
in December 2006 without giving deposition testimony. Certain facts, such as his use of an extension or
“cheater” bar, were surmised by Alstom employees who came onto the scene after the accident occurred
and were subsequently deposed.
9
PCI’s product catalogues listed the subject ball valve’s pressure capacity as 5,145 psi.
An Alstom employee testified that a ball valve would typically arrive in a box with a
packing slip and no additional instructions or warnings.
Regarding the failure-to-warn claim as to the danger of exceeding the pressure
capacity of the ball valve, the trial court stated in its final judgment:
As to the pressure capacity issue, the undisputed facts show that the
information pertaining to the pressure capacity of that valve is irrelevant.
The valve did not fail. The pressure marking on the valve was in BARS, a
European method of measuring pressure. Plaintiff contends it should have
been marked in pounds per square inch (p.s.i.), which is the measurement
used in the United States. Had the valve supplied by the [Defendant]
failed, Plaintiff may have an argument. However, there is no dispute that it
was not the valve, but rather a coupling Alstom attached to it, which failed.
Even if there is a question of whether the markings denoting BARS, instead
of p.s.i. was deficient, that failure to warn did not cause the accident.
Therefore, summary judgment must be granted on that issue.
Ms. Long argues that the trial court erred in its finding that the ball valve did not
fail because she maintains that “it was the excessive use of pressure through the valve
that caused the ball valve to work improperly which in turn caused the connecting
[devices] to fail.” She thus argues that Southern’s failure to warn that excessive use of
pressure through the ball valve could cause connecting devices to fail was the cause in
fact of Mr. Long’s injury. We disagree.
In order to succeed in her claim, Ms. Long would have to show that Southern’s
alleged failure to warn was both the cause in fact and proximate cause of Mr. Long’s
injury. See Hale v. Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005) (“Causation [in fact] and
proximate cause are distinct elements of negligence, and both must be proven by the
plaintiff by a preponderance of the evidence.”) (quoting Kilpatrick v. Bryant, 868 S.W.2d
594, 598 (Tenn. 1993)). As this Court has explained:
The distinction between cause in fact and proximate, or legal, cause
is not merely an exercise in semantics. The terms are not interchangeable.
Although both cause in fact and proximate, or legal, cause are elements of
negligence that the plaintiff must prove, they are very different concepts.
Ridings [v. Ralph M. Parsons Co.,] 914 S.W.2d [79,] 83 [(Tenn. 1996)];
Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993). Cause in fact
refers to the cause and effect relationship between the defendant’s tortious
conduct and the plaintiff’s injury or loss. Thus, cause in fact deals with the
10
“but for” consequences of an act. The defendant’s conduct is a cause of the
event if the event would not have occurred but for that conduct. Kilpatrick,
868 S.W.2d at 598. In contrast, proximate cause, or legal cause, concerns a
determination of whether legal liability should be imposed where cause in
fact has been established. Id. Proximate or legal cause is 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.”
Bain v. Wells, 936 S.W.2d 618, 625 (Tenn. 1997); George v. Alexander,
931 S.W.2d 517, 521 (Tenn. 1996); Kilpatrick, 868 S.W.2d at 598; Smith v.
Gore, 728 S.W.2d 738, 749 (Tenn. 1987).
Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252, 256 n.6 (Tenn. 1997). Therefore,
in order to show that the grant of summary judgment was in error, Ms. Long would first
have to raise a genuine issue of material fact regarding whether “but for” the lack of a
warning from Southern, Mr. Long’s injury would not have happened.
As the trial court noted, it was undisputed that the coupling attached by an Alstom
employee to the ball valve, not the ball valve itself, broke when Mr. Long attempted to
release pressure, causing his injury. In his internal investigation report, Alstom’s own
investigator, Mark Hogan, described how the accident occurred as follows:
Employee was in the final steps of hydro testing a super heater panel in bay
44 north. When he turned the dump valve on the test equipment to release
the water pressure from the panel. A pipe nipple fatigued and broke
causing the water to release immediately. It appeared that the extreme high
pressure (6975psi) and rapid release of water caused the lacerations in his
left upper arm.
Although Ms. Long and Alstom postulated before the trial court that Alstom’s sending
too high a pressure through the ball valve caused the attached coupling mechanism to
fail, they did not present evidence to this effect. They state on appeal that they rely on
the opinion of their expert witness, Dr. Richard Pearson, but Dr. Pearson testified as to
the need for a warning regarding pressure exceeding the limit of the ball valve and how
that warning could be effectively implemented. Dr. Pearson acknowledged that he was
not an expert as to the design, manufacture, or function of ball valves or pressure-testing
systems. We conclude that the trial court did not err in finding no existence of a genuine
issue of material fact that would show lack of warning regarding pushing pressure over
5,145 psi through the ball valve as the cause in fact of Mr. Long’s injury.
11
B. Danger of Utilizing Ball Valve in Water System
Regarding the failure-to-warn claim as to the danger of using the ball valve in a
system conveying water due to potential corrosion, the trial court stated in its final
judgment:
The second part of Plaintiff’s claim is that [the Defendant] did not
warn against using the valve in a system conveying water because water
could cause corrosion. Corrosion would make the valve more difficult to
open and close creating a danger. For the reasons set forth below, the Court
Grants summary judgment on that issue also.
In [its motion, the Defendant has] established the following:
1. Alstom ordered the specific valve involved in this accident by
part number. In its order, Alstom specified the valve was to
be used in repair of hydraulic systems in forklifts.
2. The valve had been in Alstom’s possession for more than
three years before this accident happened.
3. The valve was removed from service in another application
by Alstom employees because it was difficult to operate and
dangerous.
4. Alstom’s safety rules dictated that, when a part is removed
from service for safety reasons, it is to be sent to maintenance
for repair or discarded. Neither of those steps [was] taken
with this valve.
5. The valve did not fail at the time of the accident.
6. Mr. Long used a breaker bar to operate the valve indicating it
was difficult to open or close[.]
7. Mr. Long had the designation of Boilermaker 2 at Alstom,
which required he be trained in the maintenance and
operation of high pressure vessels and systems.
The danger in using the valve in a water system is that it would
corrode and become difficult to operate. Alstom and Mr. Long knew, at the
12
time of the accident, that the valve was difficult to operate. A manufacturer
or seller is not required to warn of a danger of which the user is or should
be aware. Defendant’s motion shifted the burden of proof on this issue to
the Plaintiff to provide proof of a question of fact. The Plaintiff did not do
so.
(Emphasis in original.)
Having reviewed the record, we agree with the trial court. Mr. Hogan testified
through deposition that the valve at issue was removed from service in “Hydro 42” a few
days before Mr. Long’s accident because the valve was difficult to open or close.
According to Mr. Hogan, the valve “was laid on the workbench in the Bay 42 south
hydro area.” Mr. Hogan stated that he did not know why the ball valve had not been
discarded or disposed of after its removal from Hydro 42. He acknowledged that the
valve should have been discarded. It is undisputed that when the test panel was
assembled in “Hydro 44,” the area where the accident occurred, an Alstom employee
took the subject ball valve from the work bench in Bay 42 and used it on the panel Mr.
Long was testing on October 30, 2002. As the trial court found, Ms. Long and Alstom
presented no genuine issue of material fact to counter Southern’s proof that Alstom
employees knew or should have known that the ball valve was difficult to open and close
due to corrosion. Moreover, as explained above, the ball valve itself did not break when
the accident occurred. The trial court did not err in finding no existence of a genuine
issue of material fact that would show lack of warning regarding the ball valve’s use in
water systems as the cause in fact of Mr. Long’s injury.
V. Dr. Pearson’s Expert Witness Testimony
Ms. Long and Alstom contend that the trial court erred by impermissibly weighing
and discounting the testimony of their expert witness, Dr. Pearson. Southern asserts that
rather than discounting Dr. Pearson’s testimony, the trial court found the testimony to be
irrelevant to whether a failure to warn of danger caused Mr. Long’s injury. We conclude
that the trial court properly found that Dr. Pearson’s testimony did not impact its finding
that Ms. Long and Alstom had failed to raise a genuine issue of material fact that would
show that a failure to warn was the cause in fact of Mr. Long’s injury.
Regarding testimony by experts, our Supreme Court has explained:
In general, questions regarding the admissibility, qualifications, relevancy
and competency of expert testimony are left to the discretion of the trial
court. The trial court’s ruling in this regard may only be overturned if the
discretion is arbitrarily exercised or abused. The specific rules of evidence
13
that govern the issue of admissibility of scientific proof in Tennessee are
Tenn. R. Evid. 702 and 703. The former provides:
If scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may
testify in the form of an opinion or otherwise.
And Tenn. R. Evid. 703 states:
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. If of a
type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence. The court shall
disallow testimony in the form of an opinion or inference if
the underlying facts or data indicate lack of trustworthiness.
McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263-64 (footnote and internal citations
omitted).
“A trial court should admit the testimony of a competent expert unless the party
opposing the expert’s testimony shows that it will not substantially assist the trier of fact
or if the facts or data on which the opinion is based are not trustworthy pursuant to Rules
702 and 703.” Shipley v. Williams, 350 S.W.3d 527, 551 (Tenn. 2011). As our Supreme
Court further explained: “The trial court is not to decide how much weight is to be given
to the witness’s testimony. Once the minimum requirements are met, any questions the
trial court may have about the extent of the witness’s knowledge, skill, experience,
training, or education pertain only to the weight of the testimony, not to its admissibility.”
Id. In evaluating a motion for summary judgment, the trial court “must not weigh the
evidence” once expert testimony has been admitted. Beaudreau v. Gen. Motors
Acceptance Corp., 118 S.W.3d 700, 704 (Tenn. Ct. App. 2003); see, e.g., Rutherford v.
Rutherford, 978 S.W.2d 102, 103-04 (Tenn. Ct. App. 1998) (reversing the trial court’s
grant of summary judgment on a products liability claim upon concluding that the
plaintiffs’ expert witness’s affidavit raised a genuine issue of material fact as to whether
the product was unreasonably dangerous).
Dr. Pearson testified through deposition that he considered himself a specialist in
the design of warnings in industrial situations. According to his curriculum vitae, Dr.
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Pearson holds a bachelor of science degree in air transportation, a master’s degree in
industrial psychology, and a doctor of philosophy in experimental psychology. He
testifies regularly as a forensic consultant in human factors and safety. Dr. Pearson
acknowledged that “[a]part from any issues . . . that involve warning,” he does not
consider himself an expert in the design, manufacture, sale, operation, use, or service of
high-pressure ball valves. He also acknowledged that he could not offer an expert
opinion regarding what caused the reducing mechanism attached to the ball valve to
break during Mr. Long’s accident. Dr. Pearson opined that “it’s foreseeable on the part
of PCI to know that with the knowledge that this valve is intended strictly for hydraulic
use and at a certain pressure that they should let the ultimate user know that.” Ms. Long
and Alstom presented designs drawn by Dr. Pearson of possible warning signs that could
have been used with the ball valve. Southern presented affidavits from engineering
experts stating, in pertinent part: “The plaintiff’s vaguely referenced warnings are no
safer than the information already provided.”5
While Dr. Pearson designed warning signs that he opined were the type that
Southern should have produced to accompany the ball valve in question, he did not offer
expert testimony on the actual cause in fact of the accident. We determine that the trial
court did not err by finding no existence of a genuine issue of material fact raised by Dr.
Pearson’s expert testimony as to the cause in fact of Mr. Long’s injury.
VII. Employer Alstom’s Actions as Intervening Cause of Injury
Ms. Long’s and Alstom’s contention that the trial court erred by finding Alstom’s
actions as an employer to be an intervening cause of Mr. Long’s injury is primarily based
in their assertion that Alstom was immune from liability pursuant to Tennessee’s
workers’ compensation law. See Tenn. Code Ann. § 50-6-108(a) (2014). As Southern
notes, however, while an employer’s immunity under workers’ compensation law
prevents the trial court from assigning liability to the employer, it does not prevent the
court from analyzing the employer’s actions as a cause in fact of the plaintiff’s injury.
See Snyder, 955 S.W.2d at 256.
The doctrine of an independent intervening cause applies to “relieve a negligent
actor from liability” “only when the intervening act (1) was sufficient by itself to cause
the injury, (2) was not reasonably foreseeable to the negligent actor, and (3) was not a
normal response to the negligent actor’s conduct.” Rains v. Bend of the River, 124
S.W.3d 580, 593 (Tenn. 2003). As our Supreme Court explained in Rains:
5
Contrary to Southern’s repeated assertion that Ms. Long failed to present evidence that Mr. Long or
other Alstom employees would have heeded the warning signs designed by Dr. Pearson, we note that a
manufacturer or seller may reasonably assume that its warnings will be heeded by the product’s user. See
Shoemake, 152 S.W.3d at 574 (quoting with approval Restatement (Second) of Torts, § 402A, cmt. j)).
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“Foreseeability is the key here because no person is expected to protect against harms
from events that he or she cannot reasonably anticipate or foresee or which are so
unlikely to occur that the risk, although recognizable, would commonly be disregarded.”
The trial court in its order granting summary judgment stated in pertinent part:
Alstom’s negligence in its choice of components for the test panel,
its method of constructing of the test panel and its use of a valve it knew to
be dangerous because of the difficulty in operating it, was sufficient, by
itself, to cause the accident. It was not reasonably foreseeable to [this
Defendant] that Alstom would do what it did in this case. Finally, Alstom’s
actions were not a normal response to any failure to warn of the pressure
capacity of the valve or failure to warn against using it in a water system.
The [Defendant has] established that the cause of the accident was
the negligence of Alstom in the manner in which it designed and assembled
the test panel. In addition, the use of a valve Alstom knew to be dangerous
in a high pressure situation was negligence. As such, [this Defendant]
cannot be held liable for an accident caused by the negligence of Alstom
and its employees.
We agree with the trial court. Alstom had the subject ball valve in its possession for three
years following its purchase of the valve, and employees knew that the valve was
difficult to turn. Moreover, the coupling that actually broke during the accident was
attached to the ball valve by Alstom employees. Ms. Long failed to present any genuine
issue of material fact that could have shown Alstom’s actions in this regard to be
foreseeable by Southern.
We emphasize that Alstom cannot be held liable for its actions as the proximate,
or legal cause of Mr. Long’s injury due to Alstom’s immunity under Tennessee Code
Annotated § 50-6-108(a), which provides:
(a) The rights and remedies granted to an employee subject to this chapter,
on account of personal injury or death by accident, including a minor
whether lawfully or unlawfully employed, shall exclude all other rights and
remedies of the employee, the employee’s personal representative,
dependents or next of kin, at common law or otherwise, on account of the
injury or death.
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Such immunity from liability does not, however, prevent the trial court from finding
Alstom’s actions to be the cause in fact of Mr. Long’s injury. As our Supreme Court
explained in Snyder:
By enacting Tenn. Code Ann. § 50-6-108(a), the legislature has already
determined that for policy reasons the employer may not be the legal cause
of the plaintiff’s injuries.
This is not to say, however, that the employer cannot be found by the
trier of fact to have been a cause in fact of the plaintiff’s injuries. If the rule
were otherwise, the defendants would effectively be precluded from
presenting a defense. A defense that the product was not defective or
unreasonably dangerous when it left the defendants’ control would not be
credible unless the defendants were permitted to introduce evidence as to
what actually happened to the product leading up to the incident that
injured the plaintiff. Excising the employer from that discussion would be
tantamount to drawing a line which would make discussion of the case to
be tried difficult, if not impossible. The end result would be that the jury
would not hear evidence of the true facts surrounding the product that
caused the plaintiff’s injuries but, nonetheless, be asked to determine fault
and hence liability for damages. Prohibiting the introduction of such
evidence could result in a defendant, who was not a cause in fact of the
plaintiff’s injuries, being required to pay for the harm anyway.
Snyder, 955 S.W.2d at 255. Upon our thorough and careful review of the record, we
conclude that the trial court did not err in finding Alstom’s actions to be an intervening
cause of Mr. Long’s injury.
VIII. Conclusion
For the reasons stated above, we affirm the order of the trial court granting
summary judgment in favor of Southern Fluidpower, Inc. The costs on appeal are
assessed against the appellants, Geraldine Long and Alstom Power, Inc. This case is
remanded to the trial court, pursuant to applicable law, for collection of costs assessed
below.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
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