Petition for Writ of Certiorari — Wayne v. Tennessee Valley Authority

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84-719 hie-aia

NO.

in the

Supreme Court

of the

United States

OCTOBER TERM, 1984

MARK WAYNE and PHOEBE WAYNE. his wife,

Petitioners,

VS.

TENNESSEE VALLEY AUTHORITY and

TUPELO CONCRETE PRODUCTS COMPANY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GARDNER W. BECKETT JR.

THOMAS W. REESE

123 Eight Street North

St. Petersburg, Florida 33701

(813) 822-4084

Counsel for Petitioners

QUESTIONS PRESENTED FOR REVIEW

THE FIFTH CIRCUIT COURT OF APPEALS US!D

THE WRONG STANDARD IN DETERMINING

» WHETHER TO APPLY A FEDERAL COMMON LAW

_ STATUTE OF LIMITA“iON IN PETITIONERS’ SUIT

AGAINST THE TENNESSEE VALLEY AUTHORITY,

A FEDERAL AGENCY AND INSTRUMENTALITY.

PETITIONERS ALLEGE THE CORRECT STANDARD

IS THE CLEARFIELD TRUST CO. V. UNITED STATES

STANDARD BECAUSE IT DEALS WITH THE APPLI-

CATION OF FEDERAL COMMON LAW WHEN THE

FEDERAL GOVERNMENT IS A PARTY, WHEREAS

THE MIREE V. DEKALB COUNTY STANDARD

WHICH THE FIFTH CIRCUIT COURT OF APPEALS

APPLIED IS APPLICABLE ONLY TO SUITS BE-

TWEEN PRIVATE PARTIES WHERE THE FEDERAL

GOVERNMENT IS NOT A PARTY.

THE FIFTH CIRCUIT COURT OF APPEALS’ DECI-

SION THAT THE TENNESSEE PRODUCTS LIABIL-

ITY ACT OF 1978 IS SUBSTANTIVE LAW RATHER

THAN PROCEDURAL LAW CONFLICTS WITH UN-

QUESTIONED ESTABLISHED CASE LAW IN THAT

THE TENNESSEE PRODUCTS LIABILITY ACT DID

NOT REPEAL ANY PREEXISTING COMMON LAW

CAUSES OF ACTION FOR NEGLIGENCE, BREACH

OF WARRANTY, OR STRICT LIABILITY IN TORT,

NOR DID IT CREATE ANY NEW RIGHTS WHICH

DID NOT EXIST AT COMMON LAW PRIOR TO

ENACTMENT OF THE PRODUCT LIABILITY ACT.

WHETHER THE FIFTH CIRCUIT COURT OF AP-

PEALS ERRED IN FINDING A RATIONAL RE-

LATIONSHIP IN THE EXEMPTION OF ASBESTOS-

RELATED CLAIMS, BUT THE NON-EXEMPTION OF

RADIATION-RELATED CLAIMS, FROM THE TEN-

NESSEE PRODUCT LIABILITY ACT’S ABSOLUTE 10

YEAR BAR FOR BRINGING PRODUCT LIABILITY

ACTIONS.

TABLE OF CONTENTS

Page

Opinion Bele... 6g eee eee eee

Jurisdiction ee ee I Sh ey te i

Constitutional Provisions and State Statutes . . . 3

Semsmmat of ie Game wee es aes le

Reasons Why Writ of Certiorari Should be Issued . 7

TABLE OF CITATIONS

Cases Pages

Ashwander v. Tennessee Valley, 297 U.S. 288, . 8,9

326, 80 L.Ed 688, 700 (hn 10,11)(fn 9)(1935)

Boyd v. Clark, 8 F. 849, 852 (E.D. Mich . . . 12

Clearfield Trust Company v. United States, 318 “=e

U.S. 301, 91 L.Ed2d 2067, 67 S.Ct. 1604 (1947)

First Southern Federal Savings & Loan Associationv. . 8

First Southern Federal Savings & Loan Association,

614 F.2d 71, 73 (Sth Cir. 1980)

Hackworth v. Ralston Purina Company, .. . . 12

S.W.2d 292, (hn 2)(Tenn. Sup.Ct. 1964)

In re ‘“‘Agent Orange’’ Product Liability . . . 8, 11

Litigation, 635 F.2d 987, 990-3 (2nd Cir. 1980)

cert. denied, 71 L.Ed2d 116 (1981)

In re ‘“‘Agent Orange’’ Product Liability . . . . 8,9

Litigation, 506 F. Supp. 737, 743-6

(E.D. NY 1979)

Maki v. Cooke, 124 F.2d 663 (hn 3)(6th Cir. . 12, 13

Miree v. DeKalb County, 433 U.S. 25, 53 L.Ed2d . 8

97 S.Ct. 2490 (1977)

Wayne v. Tennessee Valley Authority, 730 F.2d . 1,6

(Sth Cir. 1984)

U.S. CONSTITUTIONAL PROVISIONS |

tie ar ge Ae ey age

ar teak eee a aie oe at eg oe grin or ee

FEDERAL STATUTES

16 USC §831c(b)

28 USC §1254

28 USC §1291

28 USC §1331

28 USC §1332

28 USC §1337

28 USC §2401(b)

28 USC §2671

42 USC §6901

42 USC §6921(a)(3)(A)

42 USC §7412

STATE STATUES

—

aR PRWOAAANN SO

NNN

——

Cel

Tenn. Code Ann. §29-28-101 et seq.

Tenn. Code Ann. §29-28-102

Tenn. Code Ann. §29-28-103

Tenn. Code Ann. §29-28-105

Tenn. Code Ann. §29-28-106(a) & (b)

3, 11

12, 13

FEDERAL ADMINISTRATIVE REGULATIONS

40 CFR §61.20-.22

40 CFR §261.4(b)(7)

43 Federal Register 59,015

48 Federal Register 15,078

48 Federal Register 15,083

——

NO.

in the

Supreme Court

of the

United States

OCTOBER TERM, 1984

MARK WAYNE and PHOEBE WAYNE, his wife,

Petitioners

vs.

TENNESSEE VALLEY AUTHORITY and

TUPELO CONCRETE PRODUCTS COMPANY

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, MARK WAYNE and PHOEBE

WAYNE, his wife, respectfully urge that a writ of

certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Fifth

Circuit rendered on April 12, 1984, rehearing de-

nied May 25, 1984.

OPINION BELOW

This decision which Petitioners are seeking to be re-

viewed is reported as Wayne v. Tennessee Valley Authority,

730 F.2d 392 (Sth Cir. 1984), a copy is appended hereto

as App. 1-29.

JURISDICTION

The judgment sought to be reviewed is final and dated

April 23, 1984. Petitioners’ motion for an extension of time

to file petition for rehearing was granted on May 4, 1984.

Petitioners’ petition for rehearing was denied on May 25,

1984. A copy is appended hereto as App. 39.

Jurisdiction for this Court to review by certiorari is con-

ferred by 28 USC §1254.

Jurisdiction in the District Court over Respondent, Ten-

nessee Valley Authority was pursuant to 28 USC §§1331 and

1337. Jurisdiction over Respondent, Tupelo Concrete Prod-

ucts Company was pursuant to 28 USC $1332.

Jurisdiction of the Fifth Circuit Court of Appeals was

pursuant to 28 USC §1291.

CONSTITUTIONAL PROVISIONS AND

STATE STATUTES

The Fifth Amendment of the United States Constitution

reads in its pertinent part:

**No person shall...be deprived of life,

liberty, or property without due process

of law; nor shall private property be

taken for public use without just compen-

The Fourteenth Amendment of the United States Con-

stitution reads in pertinent part:

**...No state shall...deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal protection

of the laws.””

A copy of Tennessee Products Liability Act (TPLA) of

1978 (Tenn. Code Ann. §29-28-101 ef seg.) is appended

hereto as App. 40-46.

STATEMENT OF THE CASE

In 1968, Petitioners, Mark Wayne and his wife Phoebe

Wayne, began construction of a home on their 247 acre cattle

farm in Michie, Hardin County, Tennessee. To save money,

they acted as their own general contractor. In October of

1978, the Waynes purchased concrete blocks filled with

phosphate slag for use in the construction of their basement.

The Waynes, not knowing of the radioactive nature of phos-

phate slag and the associated significant health risks for in-

habitants of a house built with such blocks, purchased the

blocks because of the light weight and associated ease in in-

stalling these concrete blocks.

The Waynes purchased the concrete blocks from W &

W Builders of Counce, Tennessee, but the blocks were man-

ufactured by Respondent, Tupelo Concrete Products Com-

pany (Tupelo) of Tupelo, Mississippi, using phosphate slag

produced and sold as a by-product of Respondent, Tennessee

Valley Authority's (TVA) Muscle Shoals, Alabama, fer-

tilizer plant. For a time period of approximately 25 years

(1953-1978), TVA promoted the use of radioactive phos-

phate slag as a filler for concrete blocks even though TVA

knew the slag contained elevated levels of radiation (R81,

Answer to Request for Admission #4; R294, 94). During

this time period, TVA soid between 25,000 to 35,000 tons

of radioactive phosphate slag to block manufacturers in

Alabama, Florida, Georgia, Kentucky, Mississippi, and Ten-

nessee (R154, 156-163).

In 1969, the Waynes and their two minor children

moved into the completed house and lived there without any

knowledge of any possible health hazard until January 24,

1979.

On December 18, 1978, the United States Environmen-

tal Protection Agency (USEPA) proposed the designation of

phosphate slag as radioactive hazardous waste pursuant to

the Resource Conservation and Recovery Act of 1976

(RCRA) (42 USC §6901 et seq.) (See, 43 Fed. Reg.

59,015). This proposed regulation would have prohibited the

use of phosphate slag in building materials in most cir-

cumstances.

‘Congress subsequently directed the USEPA in 1980 to delay

fully regulating phosphate slag under RCRA until six (6) months

after a full study of phosphate slag is completed. 42 USC

6921(aX(3)A). This study is still being conducted over four (4)

years later.

SR ER

In December, 1978, shortly after the USEPA’s notice

of the proposed designation of phosphate slag as radioactive

hazardous waste was published in the Federal Register, TVA

ceased all sales of phosphate slag to concrete block com-

panies. (R295, 45).

From 1969 to January 24, 1979, the Waynes and their

two minor children lived in their home built with radioactive

concrete oblivious to any health hazard. On January 24,

1979, over eleven (11) years after the Waynes purchased

their blocks, an article in a Memphis, Tennessee, newspaper

alerted the Waynes to the fact that phosphate slag contains

elevated levels of uranium and its various decay products,

such as radon gas, which gives off hazardous radiation.

The Waynes then contacted the Intergovernmental Phos-

phate Slag Task Force (the Task Force), an interagency task

force composed of TVA, the USEPA, the State of Tennes-

see, and several states, which were conducting tests of the

radon level in houses in the region where TVA sold its phos-

phate slag. The Task Force tested the Waynes’ home and

recorded radon leveis higher than in any of the 29 other

houses tested in a multi-state area. The Task Force recorded

an average radon level in the Waynes’ home of .048 working

levels (WL). Average natural background levels are .004

WL, approximately 12 times lower than the level recorded

in the Waynes’ home.

? Extended inhalation of radon causes lung cancer, leukemia and

potentially all forms of cancer (R304). Inhalation of radon aiso can

cause genetic injury. There is no safe threshold for exposure to radon.

(48 Fed. Reg. 15,078, Subsection E).

According to USEPA risk estimates, a lifetime of expo-

sure to .048 WL creates an additional lifetime risk of dying

prematurely of cancer of between 3 to 7 in 100, plus an equi-

valent additional risk of approximately 3 to 7 in 100 of incur-

ring a nonfatal cancer or genetic injury. (48 Fed. Reg.

15,083).

In September, 1979, the Waynes followed the advice

of Tennessee Public Health Department and USEPA officials

and moved out of their home. The value of the Waynes’

home dropped from approximately $°5,000 to virtually noth-

ing.

Relying upon common law implied warranty, negli-

gence, and strict liability in tort theories, the Waynes filed

suit against Tupelo and TVA in federal court in the Northern

District of Mississippi, Eastern Division. Jurisdiction over

Tupelo was based on 28 USC §1332 (diversity of citizen-

ship). Jurisdiction over TVA was based upon 28 USC

§§1331 and 1337 (federal question and Act of Congress reg-

ulating commerce). The suit was filed 12 years and 3 months

after the Waynes purchased their blocks and less than two

(2) years after the Waynes first learned of the potential haz-

ard by means of the newspaper report. The suit sought dam-

ages for personal injuries and for property damages. The

Waynes’ minor children were originally named as plaintiffs,

but the childrens’ claims were dismissed without prejudice

since all parties agreed the children have until one (1) year

after they reached majority to sue on their own behalf.

In December, 1982, the district court in a seven (7)

page unpublished opinion granted Defendants’ motions for

summary judgment and dismissed Petitioners’ claims as

being barred by Tennessee’s ten (10) year statute of limita-

tions for all product liability actions except for asbestos-re-

lated claims.

The Petitioners appealed this judgment to the Fifth Cir-

cuit Court of Appeals. The Appellate Court affirmed the Dis-

trict Court’s dismissal in a thirteen (13) page opinion re-

ported as Wayne v. Tennessee Valley Authority, 730 F.2d

392 (Sth Cir. 1984).

REASONS WHY WRIT OF CERTIORARI

SHOULD BE ISSUED

Petitioners contend that a Writ of Certiorari should be

issued in this case for the following reasons:

THE FIFTH CIRCUIT COURT OF AP-

PEALS USED THE WRONG STANDARD

IN DETERMINING WHETHER TO APPLY

A FEDERAL COMMON LAW STATUTE

OF LIMITATION IN PETITIONERS’ SUIT

AGAINST THE TENNESSEE VALLEY AU-

THORITY, A FEDERAL AGENCY AND

INSTRUMENTALITY. PETITIONERS AL-

LEGE THE CORRCT STANDARD IS THE

CLEARFIELD TRUST CO. V. UNITED

STATES’ STANDARD BECAUSE IT DEALS

WITH THE APPLICATION OF THE FED-

ERAL COMMON LAW WHEN THE FED-

ERAL GOVERNMENT IS A _ PARTY,

WHEREAS THE MIREE V. DEKALB

COUNTY STANDARD WHICH THE FIFTH

CIRCUIT COURT OF APPEALS APPLIED

IS APPLICABLE ONLY TO SUITS BE-

TWEEN PRIVATE PARTIES WHERE THE

FEDERAL GOVERNMENT IS NOT A

PARTY.

In Part IV of the Fifth Circuit’s opinion entitled ‘‘For-

mulation of Federal Common Law,”’ the Court utilized the

Miree v. DeKalb County, 433 U.S. 25, 53 L.Ed2nd 557,

97 S.Ct. 2490 (1977), standard as set forth in First Southern

Federal Savings & Loan Association v. First Southern Fed-

eral Savings & Loan Association, 614 F.2d 71, 73 (Sth Cir.

1980) as the guiding principle to determine whether to apply

a federal common law statute of limitations in the instant

case.

As the Second Circuit Court of Appeals held in the re-

cent case of Jn Re ‘‘Agent Orange’ Product Liability Litiga-

tion, 635 F.2d 987, 990-3 (2nd Cir. 1980), cert denied, 71

L.Ed2d 116 (1981), the Miree standard is the controlling

principle for determining whether federal common law

should be applied when the action ‘‘involves only private

parties.”’ Accord, In Re ‘‘Agent Orange’’ Product Liability

Litigation, 506 F. Supp. 737, 743-746 (E.D. NY 1979). The

controlling principle on whether to apply federal common

law in a case where the federal government is a party is

the principle set forth in Clearfield Trust Co. v. United

States, 318 U.S. 301, 305, 91 L.Ed2d 2067, 67 S.Ct. 1604

(1947). In Re ‘‘Agent Orange’ Product Liability Litigation,

635 F.2d 987, 990-3 (2nd Cir. 1980).

In the instant case, the Clearfield Trust is the proper

standard. TVA is a federal agency and instrumentality which

was exercising the federal government’s war and commerce

powers when it operated the elemental phosphous plant plant

which produced the radioactive phosphate slag in the con-

crete blocks in Petitioners’ home. See, Ashwander v. Tennes-

see Valley Authority, 197 U.S. 288, 80 L.Ed2d 688, 700

(hn 10, 11) (fn 9) 1935.3

> See also, 28 USC §2671 which defines the term federal agency

as including ‘‘corporations primarily acting as instrumentalities or

agencies of the United States...’’

Ie Fe em ee :

Application of the Clearfield Trust principle to the in-

stant case would result in a considerably different conclusion

than that reached by the Fifth Circuit Court of Appeals using

the Miree principle. The Clearfield Trust principle requires

a federal court to apply federal common law:

**]. When the question at bar is one arising

from or bearing upon a federal program or af-

fecting a federal interest

2. Where a federal interests would be sub-

jected to uncertainty by application of dispa-

rate state rules; or

3. Where federal interests can best be effec-

tuated by the adoption of a uniform federal

rule.”’

“In re ‘‘Agent Orange’’ Products Liability

Litigation,’’ 506 F. Supp 737, 743 (E.D. NY

1979), aff'd on this point, 636 F.2d 987, 990-

3 (2nd Cir. 1980)

The instant case clearly meets all three of these criteria.

First, the question at bar directly arises from and has a bear-

ing upon TVA, a federal program exercising the federal gov-

ernmment’s war and commerce powers, clearly a significant

federal interest. See, Ashwander v. Tennessee Valley Author-

ity, Supra. The federal government’s extensive and signifi-

cant interest in the proper handling, storage and disposal of

radioactive waste is also affected and involved. The exten-

sive and significant federal interest in the issue of TVA’s

radioactive phosphate slag in concrete blocks is also evi-

denced by the fact TVA has dispersed between 25,000 to

35,000 tons of radioactive phosphatic slag into concrete

blocks in a six (6) state region, including Florida, Kentucky,

Tennessee, Georgia, Alabama, and Mississippi, clearly a sig-

nificant federal interest.

Second, this significant federal interest would clearly be

subjected to uncertainty if disparate state statutes of limita-

tions were applied to TVA. TVA’s operations would be sub-

jected to a time of discovery rule statute of limitations for

personal injuries and property damage in Florida and Ken-

tucky, an endless web of various statute of limitation rules

in Mississippi depending upon the theory of the cause of ac-

tion and whether the suit was for personal injuries or prop-

erty damages, and an absolute ten (10) year bar for product

liability suits in Georgia, Alabama and Tennessee.*

Third, the federal interests involved in this case can best

be effectuated by a uniform federal common law statute of

limitations for TVA. Such a uniform common law statute

of limitations would provide uniformity and fairness to

TVA’s operation. It would also assist the overriding federal

interests of remedying the major public health hazard created

by TVA’s dispersal of 25,000 to 35,000 tons of radioactive

phosphate slag over a six (6) state region.

Thus, this Court should exercise its Writ of Certiorari

power on this issue because:

* The Federal Torts Claims Act provides that all suits against

the federal government shall be controlled by a two (2) year time

of discovery statute of limitations. 28 USC §2401(b). Ths Fifth

Circuit Court of Appeals ruled that TVA is not subjecdt to this

provision because TVA is exempt from the Federal Torts Claims

Act. TVA is exempt from the Federal Torts Claims Act because

its federal charter provides that it can sue and be sued. 16 USC

§831c(b). The waiver of sovereign immunity in the Federal Torts

Claims Act was thus unnecessary in TVA’s case.

> There is absolutely no justification for the Petitioners’ claim

being timely if they lived in Florida or Kentucky or Mississippi

and untimely if they lived in Tennessee or Alabama or Georgia.

(1) of the conflict between the Fifth Circuit Court

of Appeals’ decision in this case and the Second Circuit

Court of Appeals’ decision in the case of Jn Re ‘‘Agent

Orange’’ Products Liability Litigatio, 636 F.2d 987, 990-3

(2nd Cir. 1980); and

(2) Because an important question of federal law

concerning the applicability of the Clearfield Trust and Miree

principles, and the proper statute of limitations for TVA are

involved and should be settled by this Court.

THE FIFTH CIRCUIT COURT OF AP-

PEALS’ DECISION THAT THE TENNES-

SEE PRODUCTS LIABILITY ACT OF 1978

IS SUBSTANTIVE LAW RATHER THAN

PROCEDURAL LAW CONFLICTS WITH

UNQUESTIONED ESTABLISHED CASE

LAW IN THAT THE TENNESSEE PROD-

UCTS LIABILITY ACT DID NOT REPEAL

ANY PREEXISTING COMMON LAW

CAUSES OF ACTION FOR NEGLIGENCE.

BREACH OF WARRANTY, OR STRICT

LIABILITY IN TORT, NOR DID IT

CREATE ANY NEW RIGHTS WHICH DID

NOT EXIST AT COMMON LAW PRIOR

TO ENACTMENT OF THE PRODUCT LIA-

BILITY ACT.

In Part V, B of the Fifth Circuit Court of Appeals’ April

23, opinion, the Court held that Tennessee Products Liability

Act of 1978 (TPLA) (Tenn. Code Ann. §29-28-101 ef seq.)

is substantive law because it is a ‘‘statute of repose’’ which

does not rely upon the date of injury to compute the time

limitation period and does not have tolling provisions. The

Court went on to state that the Tennessee Legislature re-

pealed common law causes of action for negligence, breach

of warranty and strict liability in tort when it enacted TPLA.

This holding by the Fifth Circuit Court of Appeals is

contrary to well established law on several important points.

First, the Tennessee Supreme Court considers all statutes of

limitations to be statutes of repose. Hackworth v. Ralston

Purina Company, 381 S.W.2d 292, 294 (hn 2) (Tean. Supp.

1964). Thus, the term ‘‘statute of repose’’ is synonymous

with the term statute of limitation and does not distinguish

between whether a Tennessee statute of limitations is pro-

cedural or substantive law.

Second, in common law causes of action such as the

Petitioners, a statute of limitation merely bars the remedy,

it does not bar or extinguish the right. Maki v. Cooke, 124

F.2d 663 (hn 3) (6th Cir. 1942); 53 CJS, Limitations of Ac-

tions §30, second paragraph. Only when a statute gives a

right of action unknown to the common law, and that sta-

tute establishes a time limitation for exercising the new right

as a precondition to the exercise of the new right, is the time

limitation substantive law. Boyd v. Clark, 8 F. 849, 852

(E.D. Mich 1981); Maki v. Cooke, Supra,; 53 CJS, Limita-

tions of Actions §30.

In the instant case, the TPLA did not create a new cause

of action nor did it repeal any common law causes of action.

The TPLA is merely a procedural statute to define terms

common to product liability actions (TCA §29-28-102), col-

lect into one statute all the various statutes of limitations

(TCA §29-28-103), place a maximum time limit on filing

product liability actions (TCA §29-28-103) and provide a

definition for the term defective or dangerous condition

(TCA §29-28-105).

The TPLA did not repeal any common law causes of

action. In fact, it specifically refers to recognized preexisting

common law causes of action in TAC §§29-28-102(6), 29-

28-103(a) and 29-28-106(a) and (b). A reading of the TPLA

clearly establishes that it did not repeal any. common law

causes of action and did not create any new statutory causes

of action. It merely provided procedural guidelines for utiliz-

ing preexisting common law causes of action. As such it is

unquestionably procedural not substantive law and the TPLA

does not apply. /bid.

Thus, this Court should exercise its Writ of Certiorari

power on this issue because:

(1) of the conflict between the Fifth Circuit Court

of Appeals’ decision in this case and the decisions of the

Sixth Circuit Court of Appeals in Maki v. Cooke, Supra,;

and

(2) the decision of the Fifth Circuit Court of Ap-

peals so departed from the undisputed, established case law

on this issue as to call for the exercise of this Court’s super-

visory power.

Ill

THE FIFTH CIRCUIT COURT OF AP-

PEALS ERRED IN FINDING A RATIONAL

RELATIONSHIP IN THE TENNESSEE

LEGISLATURE’S EXEMPTION OF AS-

BESTOS-RELATED CLAIMS, BUT NON-

EXEMPTION OF RADIATION-RELATED

CLAIMS, FROM THE ABSOLUTE 10

YEAR BAR FROM BRINGING PRODUCT

LIABILITY ACTIONS.

In Part VI, B th Fifth Circuit Court of Appeals’ April

23 opinion, the Cou.: held that there is a rational basis for

the Tennessee Legislature exemption asbestos-related claims,

but not radiation-related claims, from the absolute ten (10)

year bar from bringing suit because asbestos is regulated as

‘*a hazardous air pollutant with prescribed emission and dis-

posal standards, see 40 C.F.R. §61.20-.22, while phosphate

slag is expressly listed as a nonhazardous waste by the

[USEPA], see 40 C.F.R. §261.4(b)(7).”’

This holding is in error for several reasons. First, both

asbestos and radionuclides are regulated as hazardous air pol-

lutants under Section 7412 of the Clean Air Act (42 USC

§7412). As to date, only four substances other than asbestos

and radionuclides have been identified as hazardous air ollut-

ants by the USEPA.

Second, both asbestos and phosphate slag are currently

regulated by the USEPA as nonhazardous waste. The

USEPA has identified phosphate slag as hazardous waste and

is currently studying hazardous waste regulations for phos-

phate slag. The USEPA currently has no plans to identify,

regulate or study asbestos as a hazardous waste. Thus the

distinction the Fifth Circuit drew is invalid.

Third, both asbestos and airborne radionuclides are car-

cinogenic if exposure occurs over a long period of time. Both

asbestos and airborne radionuclides have cancer latency

periods in excess of ten (10) years. Individuals frequently

purchase products causing exposure to asbestos and airborne

radionuclides without knowing of the existence of the fact

that they are being exposed to asbestos and airborne radia-

tion. Both airborne radiation and asbestos health hazards are

present in the State of Tennessee in significant numbers and

both present a major public health hazard.

Clearly there is no rational basis for distinguishing be-

tween these two types of product liability claims. The present

status of the TPLA irrationally discriminates against the class

of persons exposed to products which cause significant air-

borne radiation health risks.

This Court should therefore exercise its Writ of Cer-

tiorari power on this issue because:

(1) The Fifth Circuit Court of Appeals has decided

an important question of federal law which should be settled

by this Court; and

(2) The decision of the Fifth Circuit so departed

from the essential requirements of justice as to call for an

exercise in this Court’s power of supervision.

Respectfully submi.ted,

GARDNER W. BECKETT, JR.

THOMAS W. REESE

123 Eighth St. North

St. Petersburg, Florida 33701

(813) 822-4084

By:

GARDNER W. BECKETT, JR.

By:

THOMAS W. REESE

Appendix

INDEX

Opinion of the United States Court of Appeals . 1--29

for the Fifth Circuit

Opinion of the United States District Court, . . 30--36

Northern District of Mississippi

Formal Judgment of the United States Court a

of Appeals for the Fifth Circuit

Formal Judgment of the United States District . . 38

Court, Northern District of Mississippi

Order of the United States Court of Appeal for —

the Fifth Circuit Denying Petition for Rehearing

Tennessee Products Liability Act of 1978 . . 40--46

(Tenn. Code Ann. § 29-28-101 et seq.)

REPORTED AT 730 F.2d 392

WAYNE v. TENNESSEE VALLEY AUTHORITY

Mark WAYNE, et al.,

Plaintiffs-Appellants,

TENNESSEE VALLEY AUTHORITY, et al.,

Defendants-Appellees.

No. 83-1043

United States Court of Appeals,

Fifth Circuit.

April 23, 1984

Homeowners brought products liability and negligence

action against producer of phosphate slag incorporated into

concrete blocks used in construction of homeowners’ home,

manufacturer of blocks, and seller of blocks. The United

States District Court for the Northern District of Mississippi,

L. T. Senter, Jr., Chief Judge, entered summary judgment

in favor of defendants, holding that homeowners’ claims

were barred by the Tennessee statute of limitations applicable

to products liability actions. Homeowners appealed. The

Court of appeals, Jerre S. Williams, Circuit Judge, held that:

(1) producer of phosphate slag did not fraudulently withhold

knowledge of hazardous radioactive nature of phosphate slag

and slag-filled concrete blocks; (2) Tennessee statute of limi-

tations relating to products liability actions applied; (3) Ten-

nessee statute of limitations, as a statute of repose which tin-

poses an absolute bar to actions brought more than ten years

after allegedly defective product was purchased, barred

homeowners’ claims; and (4) Tennessee statute of limitations

did not violate equal protection clause of the Fourteenth

Amendment or due process rights of homeowners.

Affirmed.

App. |

1. Federal Civil Procedure - 2544

A party may not prevail on bare allegations of his com-

plaint when there is a properly supported summary judgment

motion made against him.

2. Fraud - 16

Where producer of phosphate slag used in manufacture

of concrete blocks did not know or have reason to know of

danger of radon gas in blocks in 1969, when blocks at issue

were sold, and did not know or have reason to know of such

a danger until near end of 1970’s, when producer stopped

sale of phosphate slag and told public why it was doing so,

producer did not fraudulently withhold knowledge of hazard-

ous radioactive nature of phosphate slag and slag-filled con-

crete blocks.

3. Federal Courts - 230

Claim against a wholly owned federal corporation

created under an Act of Congress falls within general grant

of federal question jurisdiction. 28 U.S.C.A. §1331.

4. Federal Courts - 423

Where no federal legislation or regulation directly ad-

dresses issue of proper limitation on suit against wholly

owned federal corporation, state statute of limitations is ordi-

narily applied unless application of federal law is required

to further a substantial and valid federal interest or policy.

5. Constitutional Law - 70.3(3)

Direction of national policy by eracting a rule displac-

ing state law is generally, and purposely, reserved to legisla-

tive branch of government.

App. 2

6. Federal Courts - 374

When Congress has legislated on subject, legislation,

and not federal common law, will be deferred to.

7. Federal Courts - 374

Federal common law is developed when it must answer

uniquely federal problems.

8. Federal Courts - 423

There was no significant conflict between federal policy

and use of state statutes of limitations in suits against the

Tennessee Valley Authority, a wholly-owned federal corpo-

ration, based upon products liability and negligence warrant-

ing establishment of federal common-law rule that suits

against TVA were subject to limitations period of Federal

Tort Claims Act. 28 U.S.C.A. § 2401(b)

9. Limitation of Actions - 2(3)

Where homeowners bringing products liability and neg-

ligence action against producer of phosphate slag incorpo-

rated into concrete blocks, manufacturer of blocks, and seller

of blocks were Tennessee residents, blocks were purchased

for and incorporated into Tennessee home, seller was a Ten-

nessee company, and any injuries inflicted and damages sus-

tained were based in Tennessee, Tennessee statute of limita-

tions would be applied rather than statute of limitations of

Mississippi, where blocks were manufactured. T.C.A. § 29-

28-103 et seq.

10. Limitation of Actions - 55(4)

Tennessee statute of limitations applicable to products

liability actions, as a statute of repose which imposes an ab-—

App. 3

solute bar to actions brought more than ten years after al-

legediy defective product was purchased, barred products lia-

bility and negligence suit against producer of phosphate slag

incorporated into concrete blocks, manufacturer of blocks,

and seller of blocks brought more than ten years after pur-

chase of blocks even though injury did not occur within ten

years of purchase. T.C.A. § 39-28-103 et seq.

11. Constitutional Law - 308

Limitation of Actions - 4(2)

Tennessee statute of limitations applicable to products

liability actions did not, as a statute of repose which imposes

an absolute bar to actions brought more than ten years after

allegediy defective product was purchased, deny due process

of law to homeowners bringing products liability and negli-

gence action against producer of phosphate slag incorporated

into concrete blocks, manufacturer of blocks, and seller of

blocks more than ten years after purchase of blocks, despite

alleged restriction of homeowners’ access to courts.

U.S.C.A. Const. Amends. 5, 14; T.C.A. § 29-28-103 et

seq.

12. Constitutional Law - 249(3)

Limitation of Actions - 4(2)

Tennessee statute of limitations applicable to products

liability actions, as a statute of repose which imposes an ab-

solute bar to actions brought more than ten years after al-

legedly defective product was purchased, did not violate

equal protection clause of the Fourteenth Amendment by ex-

cepting asbestos-related injuries from its scope, and thus al-

lowing claimants alleging asbestos-related injuries a longer

time to bring an action than claimants alleging radioactive

phosphate slag-related injuries. U.S.C.A. Const. Amends. 5,

14; T.C.A. § 29-28-103 et seq.

App. 4

Appeal from the United States District Court for the

Northern District of Mississippi.

Before BROWN, GEE and WILLIAMS, Circuit

Judges.

JERRE S. WILLIAMS, Circuit Judge:

Plaintiffs appeal from a summary judgment entered in

the Northern District of Mississippi holding that their claims

are barred by the Tennessee statute of limitations applicable

to product liability actions, Tenn. Code Ann. §§ 29-28-103

et seq. (1980) The Tennessee statute is a statute of repose

which imposes an absolute bar to actions brought more than

ten years after the allegedly defective product was purchased.

Appellants seek to have a federal statute of limitations, 28

U.S.C. §2401(b), or a Mississippi statute of limitations,

either Miss. Code Ann. § 15-1-49 or § 75 2-725, applied

instead. Those statutes start the period of limitations running

at the time the injury was, or should have been, discovered;

under those statutes the Waynes’ action would be timely.

1. FACTS

In 1968, Mark and Phoebe Wayne began construction

of a house on their 247-acre cattle farm in Hardin County,

Tennessee. To save money, they acted as their own general

contractor. On the advice of their block mason, in October

1968, the Waynes purchased concrete blocks filled with

phosphate slag to use in the construction of the basement.

The Waynes purchased the blocks from*W & W Builders

of Counce, Tennessee, but the blocks were manufactured by

appellee Tupelo Concrete Products Company of Tupelo,

Mississippi, (Tupelo) using phosphate slag produced and

sold as a by product of appellee Tennessee Valley Author-

ity’s (TVA) Muscle Shoals fertilizer plant.

App. 5

In 1969, the Waynes and their two minor children

moved nto the completed house and lived there without

knowledge of any possible structural hazard until January 24,

1979. On that date an article in a Memphis, Tennessee,

newspaper alerted them to the fact that phosphate slag con-

tains uranium and its various decay products, such as radon

gas, which give off potentially harmful radiation.’ The

Waynes then contacted the Intergovernmental Phosphate Slag

Task Force (the Task Force), an inter-agency task force com-

posed of TVA, the Environmental! Protection Agency, the

State of Tennessee, and several other states, which was con-

ducting tests on houses in the area. The Waynes asked the

Task Force to test monitor the radiation levels in their house.

The Task Force tested their house and recorded an average

radiation level higher than any of the twenty-nine other

houses tested in a multi-state area. In September 1979, the

Waynes followed the advice of Tennessee Public Health De-

partment and United States Environmental Protection agency

(FPA) officials and moved out of their house. The value of

the Wayne’s house dropped from approximately $95,000 to

virtually nothing.

Relying on implied warranty, negligence, and strict lia-

bility theories, the Waynes filed suit against Tupelo and

TVA in federal court in the Northern District of Mississippi,

Eastern Division. The suit was filed in January 1981, over

eleven years after the concrete blocks were purchased. The

Waynes requested over fourteen million dollars in damages

to compensate them for past, present, and future physical

pain and suffering, mental anguish, medical expenses, and

loss of the use and enjoyment of their house. The Wayne’s

minor children were originally named as plaintiffs, but at

their own request their claims were dismissed without pre-

1 Extended inhalation of radon gas is believed to cause lung

cancer.

App. 6

judice.? In December 1982, the district court granted defen-

dants’ motions for summary judgment and dismissed Mr. and

Mrs. Wayne’s claims as barred by Tennessee’s ten year sta-

tute of repose for product liability actions. The Waynes ap-

peal from that judgment.

Il. MATERIAL ISSUES OF FACT

In their initial complaint the Waynes alleged that TVA

fraudulently withheld knowledge of the hazardous radioac-

tive nature of phosphate slag and slag-filled concrete blocks.

Appellants now contend that there is no record evidence dis-

proving that TVA withheld the critical information. As a re-

sult it is urged that whether TVA withheld information is

a genuinely disputed issue of material fact making summary

judgment improper. See Adickes v. S. H. Kress & Co., 398

U.S. 144, 158, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142

(1970). Although TVA had the burden of proving there was

no genuine issue, see ibid., it met that burden as to fraudu-

lent concealment of knowledge by submitting the affidavit

of Ronald B. Maxwell, an employee of TVA’s Office of

Health and Safety who had been employed in the health

physics area since 1965. The relevant portion of the affidavit

reads as follows:

3. Early on the only potential hazard perceived by

TVA and others in the health physics field from this type

of material was direct radiation exposure. TVA conducted

investigations from 1962 to 1965 on the amount of direci

gamma external radiation from slag and found levels only

slightly above natural background radiation. Based on those

investigations direct iadiation was not considered to be a.sig-

nificant hazard especially since concrete blocks contain only

a small proportion of slag. At that time the state of the art

2 All parties agreed that the children have until one year after

they reach majority to sue on their own behalf.

App. 7

identified radon gas as a potential health concern in connec-

tion with phosphate and phospate by-product materials. Since

there was no reason to suppose that there might be a health

hazard from radon, no evaluation of the radiological implica-

tions of radon gas emitted by phosphate slag was performed

4. Not until the latter half of the 1970’s was more

knowledge gained about potential radon hazards from

uranium mine studies and research. In February 1979 EPA

released a report on the rn levels in structures built over

phosphate mined areas in Florida (EPA 520/4-78-013).

. In reaction to draft versions of EPA’s report,

in Deccii.oer 1978, TVA no longer made slag available as

a precautinary measure until further studies could be done.

In December 1978, TVA made public a news release

stating that because phosphate slag was radiactive the sale

of phosphate slag was being stopped until federal guidelines

on the use of the slag were published. The news release indi-

cated that the slag had been used by manufacturers of con-

crete blocks since the mid-1950’s.

[1,2] Appellants submitted no evidence to counter the

Maxwell affidavit. Rather, they relied solely on the unsup-

ported allegations in their complaint. Even considering the

affidavit in the light most favorable to the Waynes, it indi-

cates that TVA did not know or have reason to know of

the danger of radon gas in 1969, when the blocks at issue

were sold, and did not know or have reason to know of such

a danger until near the end of the 1970’s, when TVA stopped

the sale of phosphate slag and told the public why it was

doing so.There was thus no genuine fact question raised as

to whether TVA had fraudulently withheld knowledge of the

dangers of phosphate slag. A party may not prevail on the

bare allegations of his complaint when there is a properly

App. 8

Supported summary judgment motion made against him.

First National Bank v. Cities Service Co., 391 U.S. 253,

289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). The dis-

trict court acted properly in granting the summary judgment

as to the issue of fraudulent concealment by TVA because

no genuine material fact issue was presented.

III. FEDERAL STATUTE OF LIMITATIONS

A. Review on Appeal of Matters Not Presented in the

Trial Court.

As to the claims against Tupelo and TVA based upon

product liability and negligence, the district court granted

summary judgment based upon the Tennessee ten year statute

of repose. Appellants argue that the applicable statute of

limitations in its acton against TVA is the federal statute set

out in 28 U.S.C. § 2401(b), and not the Tennessee statute.

Appellees contend that we should not address this issue be-

cause the application of federal limitations was not raised

in the trial court. Whether the ten year Tennessee statute of

repose was the proper statute was, however, squarely before

the court since appellees, asserted the Tennessee statute as

an affirmative defense. Since appellees had the burden of

asserting the proper statute and there was an issue as to the

proper statute, the fact that appellants at trial claimed only

the applicability of the Mississipi statute and not the federal

statute does not control. The issue of what statute of limita-

tions applies was properly raised and is before us. Because

this case was decided in the trial court on the issue of the

proper statute of limitations, it is proper to consider whether

the federal limitations statute should be applicable.

U.S.C. § 2401(b) provides:

(b) A tort claim against the United States shall be

App. 9

forever barred unless it is presented in writing to the appro-

priate Federal agency within two years after such claim ac-

crues or unless action is begun within six months after the

date of mailing, by certified or registered mail, of notice of

final denial of the claim by the agency to which it was pre-

sented.

(Emphasis added.)

Because TVA is a federally owned corporation which is an

agency or instrumentality of the United States, Painter v.

Tennessee Valley Authority, 476 F.2d 943, 944 (Sth Cir.

1973), appellants contend that their action is a tort claim

against the United States and that they had two years from

the date their claim ‘‘accrued’’ to file suit. They rely on

Quinton v. United States, 304 F.2d 234, 240, (Sth Cir. 1962)

to support the proposition that under the federal statute a

claim does not accrue until it was, or should have been, dis-

covered. Since we find, however, that § 2401(b) is not appli-

cable to a suit against TVA, we need not decide when the

Waynes’ suit would have accrued under its provisions.

B. Applicability of § 2401(b)

In 1948, the Judicial Code of 1911 was revised. As part

of that revision, 28 U.S.C. §§ 41(20) and 942(1940) were

consolidated to create a new section, § 28 U.S.C. §2401.

Thus the two year statute of limitations contained in § 420

of the Federal Tort Claims Act (FTCA), 60 Stat. 842 et seq.

(1946), was removed from its place in the codification of

that act, 28 U.S.C. § 942, to the new and separate § 2401.

Appellants argue that when the revisers moved § 942

from the context of the Federal Tort Claims Act and incorpo-

rated it into § 2401(b), they intended that thereafter it would

App. 10

apply generally to all tort claims against the United States,

including those against TVA. The assertion must fail, how-

ever. The original limitations section of the FTCA, § 420,

was immediately followed by § 421 exempting the TVA en-

tirely from the FTCA. Removing the limitations section to

§ 2401 did not change the law. The revisers stated: [s]ubsec-

tion (b) of the revised section simplifies and relates said sec-

tion 942...without change of substance.’’ (Emphasis added. )

We note that the Court of Appeals of the Sixth Circuit has

reached the same conclusion in Stevens v. Tennessee Valley

Authority, 712 F.2d 1047, 1051 (6th Cir. 1983). Because

the revision was not intended to change the law it is clear

that § 2401(b) was not intended to create a new statute of

limitations for TVA. We must therefore look to another

source for the applicable statute of limitations.

IV. FORMULATION OF FEDERAL COMMON LAW

A. Federal Question Jurisdiction.

[3] Appellants point out that the district court’s jurisdic-

tion over this action against TVA was not based upon

28 U.S.C. § 1332 (diversity of citizenship), as was the

case against Tupelo, but upon 28 U.S.C. §§ 1331° and

3 28 U.S.C. § 1331(a) provides that ‘‘[t]he district courts shall

have original jurisdiction of all civil actions wherein the matter in

controversy exceeds the sum or value of $10,000, exclusive of in-

terest and costs, and arises under the Constitution, laws, or treaties

of the United States.”’

App. 11

1337* (federal question, and actions arising under an Act of

Congress regulating commerce). Appellants therefore argue

that this Court is not bound to apply state limitations law.

While it is true that a claim against a w.olly-owned federal

corporation created under an Act of Congress, such as TVA,

falls within the general grant of federal question jurisdiction

found in § 1331, Jackson v. Tennessee Vailey Authority, 462

F. Supp. 45, 50 (M.D. Tenn.1978), aff'd, 595 F.2d 1120

(6th Cir. 1979), that does not of itself settle the choice of

law question. Erie Railroad Co. v. Tompkins, 304 U.S. 64,

58 S.Ct. 817, 82 L.Ed 1188 (1938) and its progeny require:

(1) that federal law apply in areas of exclusive federal

competence, (2) that state law apply in areas of exclusive

State competence, and (3) that state law apply in areas of

concurrent federal-state competence unless (a) federal legis-

lation or regulation directly addresses the precise and narrow

issue of dispute or (b) the application of federal law is re-

quired to protect or to effectuate a valid and substantial fed-

eral interest or policy. When, as in this case, extensive fed-

eral legislation and regulation exist in the area but do not

directly address the precise and narrow issue of litigation,

the pertinent analysis assesses whether there exists a valid

and substantial federal interest or policy that requires the ap-

plication of federal law as an exercise of interstitial lawmak-

ing to protect or to effectuate the federal scheme. When no

such federal interest or policy exists, Erie requires that state

law apply.

First Southern Federal Savings & Loan Association v. First

Southern Savings & Loan Association, 614 F.2d 71, 73 (Sth

Cir. 1980)

* 28 U.S.C. § 1337 provides that ‘*[t}he district courts shall

have original jurisdiction of any civil action or proceeding arising

under any Act of Congress regulating commerce or protecting trade

and commerce against restraints and monopolies."

App. 12

It has long been established that TVA has the capability

of suing and being sued in its own name. See 16 U.S.C.

§ 83ic(b). The Act which created the TVA, however, did

not create an entire new body of procedural law regulating

suits against TVA. Rather the applicable procedural rules and

statutes of limitations have been determined by the nature

of the cause of action alleged, not the fact that TVA was

the defendant in the case. See, e.g., Stevens v. Tennessee

Valley Authority, 712 F.2d 1047, 1056 (6th Cir.1983) (claim

against TVA based on Veterans Preference Act governed by

laches since Congress had specified there would be no statute

of limitations in the most analagous federal cause of action);

Ray v. Tennessee Valley Authority, 677 F.2d 818, 822 (11th

Cir.1982) cert. denied, — U.S. —, 103 S.Ct. 788, 74

L.Ed.2d 994 (1983) (claim against TVA based on Veterans

Preference Act governed by analogous state statute of limita-

tions for injuries to the person or rights of another arising

from contract); Harris v. Tennessee Valley Authority, 507

F.Supp. 318, 320 (E.D.Tenn.1980) (action against TVA for

failure to inform new employee of results of physical exami-

nation governed by Tennessee statute of limitations, Tenn.

Code Ann. § 28-304.)

{4} Even if an action against TVA was an area of exclu-

sive federal competence, it is evident as discussed above that

there is no federal statute of limitations uniformly applicable

to such a suit. The involvement of TVA arguably takes such

a suit out of the area of exclusive state sompetence, so that

this action involving a federally owned corporation and

claims of negligence and product liability falls into an area

of concurrent federal-state competence. Since no federal leg-

islation or regulation directly addresses the issue of the prop-

er limitation on suits, a state statute of limitations is ordinar-

ily applied unless the application of federal law is required

App. 13

to further a substantial and vaiid federal interest or policy.

First Southern Federal Savings & Loan Association, 614

F.2d at 73.

B. Federal Common Law.

Appellants contend that there are over-riding federal in-

terests in promoting the safe handling and disposal of

radioactive hazardous waste, and dealing uniformly with the

““thousands of citizens who unknowingly have purchased

radioactive health hazards.’’ They therefore suggest, as an

alternative in the event that this Court determines that § 2401

is not now applicable, that this Court should fashion a federal

common law rule of decision declaring that suits against the

TVA are subject to the provisions and limitations of § 2401.

{5,6} Federal rules of common law are seldom fashioned

since federal courts are not common-law courts which pos-

sess a general power to develop and refine their own rules

of decision. Rather, the direction of national policy by enact-

ing a rule displacing state law is generally, and purposely,

reserved to the legislative branch of the government. City

of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 312-

13, 101 S.Ct. 1783, 1789-90, 68 L.Ed2d 114 (1981); Ten-

nessee Valley Authority v. Hill, 437 U.S. 153, 195, 98 S.Ct.

2279, 2302, 57 L.Ed.2d 117 (1978). When Congress has

legislated on the subject, the legislation, and not federal

common law, will be deferred to. City of Milwaukee, 451

U.S. at 316, 101 S.Ct. at 1792. That Congress could readily

enact a complete code governing the subject matter is by no

means enough to justify a federal court fashioning a common

law rule. Wallis v. Pan American Petroleum Corp., 384

U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966).

As the Supreme Court stated, “‘[i]n deciding whether rules

App. 14

‘>

of federal common law should be fashioned, normally the

guiding principle is that a significant conflict between some

federal policy or interest and the use of state law...must first

be specifically shown.”” /bid.

[7] Federal common law is developed when it must an-

swer uniquely federal problems. Carlson v. Green, 446 U.S.

14, 24, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (uniform fed-

eral rule of survivorship in Bivens actions); Illinois v. City

of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712

(1972) (federal rule to abate pollution of interstate waters);

Clearfield Trust Co. v. United States, 318 U.S. 363, 63

S.Ct. 573, 87 L.Ed. 838 (1943) (federal rule governing com-

mercial paper issued by the United States). Appellants argue

that the regulation of radioactive phosphate slag ts a uniquely

federal problem, and that the area is ripe for the development

of federal common law. We note that there i- a fundamental

difference between determining, for example, allowable

levels of radioactive emissions and determining allowable

time periods within which suit may be brought. Even Con-

gress has historically been reluctant to provide federal sta-

tutes of limitations for causes of action it has itself created.

Stevens v. Tennessee Valley Authority, 712 F.2d 1047, 1053

(6th Cir.1983). In the cases mentioned above the Supreme

Court found the need to create a narrow substantive common

law. They did not create federal common law limitations

periods.

Federal regulation may well be the only effective way

to prevent the pollution of one state’s environment by

another state’s interstate shipment or sale of radioactive ma-

terials. Cf. Illinois v. City of Milwaukee, 406 U.S. 91, 92

S.Ct. 1385, 31 L.Ed.2d 712 (1972). Congress is obviously

aware of the situation, however, for in a 1980 amendment

to the Resource Conservation and Recovery Act it directed

the EPA to delay regulating phosphate slag until six months

after a study of the need for such regulation had been made.

App. 15

42 U.S.C. § 6921(b)(3)(A). Such a study is currently under-

way. In the absence of comprehensive federal regulation of

the use of phosphate slag, however, there is no uniquely fed-

eral need to regulate the time for enforcing rights which are

currently governed by state law.>

Appellants argue that there is also a compelling federal inter-

est in establishing a uniform time in which actions may be

commenced against TVA, ‘‘an action which would be con-

sistent with the clear Congressional intent to have all federal

agencies subject to one uniform statute of limitations.’’ Un-

fortunately for appellants, it is clear that Congress does not

intend all federal agencies to be subject to one uniform sta-

tute of limitations. If it did, it would not have excluded the

TVA from the reach of 28 U.S.C. § 2401. See section III

= ae

[8] Because we do not find any significant conflict be-

tween federal policy and the use of state statutes of limita-

tions in suits on this issue against the TVA, and because

we find it would be contrary to Congressional intent, we de-

cline to establish a federal common law rule that suits against

TVA are subject to the provisions and limitations of 28

U.S.C. § 2401.

V. CHOICE OF LAWS

A. Which State Limitations Statute?

Having concluded that there is no federal statute of

5 We do not mean to imply that, if there were com-

prehensive federal standards, we would find such a

need.

App. 16

limitations or federal unwritten limitations period applicable

to this action against TVA, we next consider what state law

is applicable. Appellants concede that Erie Railroad Co. v.

Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188

(1938), and Klaxon Co. v Stentor Electric Manufacturing

Co., 313 U.S. 487, 61 S.CT. 1020, 85 L.Ed. 1477 (1941),

require that in suits governed by state law a federal court

apply the choice of law rules of the forum state. Since this

suit was brought in Mississippi, we must look to its choice

of law rules.

As the district court noted, since 1968, Mississippi has

followed the principles summarized in the Restatement (Sec-

ond) of Conflict of Laws (the Restatement). Mitchell v.

Craft, 211 So.2d. 509 (Miss. 1968). In short the restatement

provides:

Ordinarily, the local law of the state where the injury

occurred will determine the rights and liabilities of the

parties, ‘‘unless with respect to the particular issue,

some other state has a more significant relationship to

‘he occurrence and the parties, in which event the local

law of the other state will be applied.’’

Mitchell at 516 (summarizing and quoting the Restatement).

Other factors the court should consider include which state’s

law will best advance the forum’s and other interested states’

interests, which state law is the better rule of law, and which

state’s law will protect the justified expectations of the arties.

Id. passim.

The district court did not discuss spe ifically every fac-

tor listed in Mitchell and appellants claim that this necessi-

tates a reversal and remand of this case. The district court

did, however, discuss in detail its reasoning in applying Ten-

nessee law. It found in part that:

App. 17

There is no doubt that the Tennessee contacts pre-

dominate in the present cause of action. Plaintiffs are Ten-

nessee residents. The concrete blocks were purchased for

and incorporated into their Hardin County, Tennessee,

home. The part'cular blocks at issue were purchased

through a Tennessee homebuilding supply business and

delivered directly to plaintiffs’ Tennessee homesite accord-

ing to Mark Wayne. Plaintiffs lived continuously with the

radioactive emissions for ten years and, therefore, any in-

juries inflicted and damages sustained were based in Ten-

nessee. The only important non-Tennessee contacts are

TVA’s residence and production of the phosphate slag in

Alabama and TCP’s residence and manufacturing of the

concrete blocks in Mississippi...”’

... Though TCP’s manufacturing of the blocks in Mis-

Sissippi creates a substantial contact, the court has chosen

to afford this contact less than its customary weight be-

cause there is no evidence that TCP altered in any manner

the radioactive quality of the phosphate slag. In other

words, the evidence in the record indicates that TVA’s

Alabama contact (manufacturing the slag) was certainly

more significant than TCP’s Mississippi contacts.

[9] After adding into the balance the additional factors

listed in § 6 of the Restatement, we conclude that they would

not in any way tilt the scales toward application of Missis-

sippi law. Of the three interested states, Tennessee has the

strongest interest in having its laws applied since it was the

domicile of the injured parties and any injury occurred there.

Although appellants argue that Mississippi's statute of limita-

tions is clearly the better law in that it runs from the time

of discovery of a cause of action, instead of from the time

of purchase of a product later giving rise to a cause of action,

there are sound reasons (noted in Section VI A infra) in favor

App. 18

ewe ~~~

of each policy for determining when limitations begin to run.

Neither one may be decisively declared the ‘‘better’’ law.

Finally, it has not been shown that there was any justifiable

expectation by any party to this action, let alone the Waynes,

that Mississippi rather than Tennessee law would apply. We

find that the district court’s decision that Tennessee’s sub-

stantive law should be applied was correct in light of the

predominance of Tennessee’s contacts with, and interests in,

this action.

B. Substantive Nature of Tennessee’s Statute of Limita-

tions.

The district court concluded that the statute of limitations set

out in Tennessee’s Products Liability Act of 1978 (TPLA),

Tenn. Code Ann. § 29-28-101 et seq. (1980), is substantive

rather than procedural, and applied it to bar the appellants’

cause of action.

As the district court observed:

Statutes of limitation, though they can have a material

effect on the outcome of a case, are usually character-

ized as procedural. Accordingly, the forum’s own sta-

tute of limitation is usually applied even though the

choice of law analysis dictates that a foreign jurisdic-

tion’s substantive law be applied. However, Mississippi

recognizes a widespread exception that treats the foreign

Statute of limitation as substantive if it terminates the

very cause of action itself. See Davis v. Mills, 194 U.S.

451 [24 S.Ct. 692, 48 L.Ed. 1067] (1904) (‘‘barring

the right, not merely the remedy’’). Cases in which this

exception has been applied include Ramsey v. Boeing

Co., 432 F.2d 592 (Sth Cir.1970), and Cummings v.

Cowan,) 390 F. Supp. 1251 (N.D.Miss. 1975). When

App. 19

deciding whether a foreign limitations statute is indeed

*‘substantive’’ and, therefore, an exception to the gen-

eral rule, the Mississippi court is bound by the construc-

tions placed on the foreign statute of limitation by the

courts of that jurisdiction.

Section 2 of the TPLA defines a product liability action

as follows:

‘*Product liability action’’ for purposes of this

chapter shall include all actions brought for or on ac-

count of personal injury, death or property damage

caused by or resulting from the manufacture, construc-

tion, design, formula, preparation, assembly, testing,

service, warning, instruction, marketing, packaging or

labeling of any product. It shali include, but not be lim-

ited 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 non-disclosure,

whether negligent, or innocent; or under any other sub-

stantive legal theory in tort or contract whatsoever.

Tenn.Code Ann. § 29-28-102(6) (1980).

Section 3(a) of the TPLA further provides:

Any action against a manufacturer or seller of a product

for injury to person or property cause’ by its defective

or unreasonably dangerous condition must be brought

within the period fixed by §§ 28-3-104, 28-3-105, 28-3-

202 and 47-2-725, but notwithstanding any exceptions

to these provisions it must be brought within six (6)

years of the date of injury, in any event, the action must

App. 20

Tr eeeeeeeEeEeEeEyEeEaEEeEeEeEeEeEeEeEeEeEeEeOEOEOEOEee=e=E==EEeEeEeEeEEeeeorrmmerm eee

be brought within ten (10) years from the date on which

the product was first purchased for use or consumption,

Or witnin (1) year...aMer attainmg tne age or. majority,

whichever occurs sooner.

Tenn. Code Ann. §29-28-103(a) (1980).

Tennessee’s statute obviously terminates the very cause

of action a maximum of ten years from the time of purchase

or one year after the plaintiff attains the age of majority.°

In Buckner v. GAF Corp., 495 F.Supp. 351, 355

(E.D.Tenn.1979), aff'd, 659 F.2d 1080 (6th Cir.1981), the

court explained:

TCA § 23-3703 is not a conventional statute of limi-

tations. It imposes an outer limit or ceiling upon the

existing statute of limitations relating to actions for per-

sonal injuries, § 28-304. The ‘‘ceiling’’ imposed in §

23-3703 dates from ‘‘the date on which the product was

first purchased for use or consumption.”’ In construing

similar statutes of limitations, the Tennessee Supreme

Court has recognized that once the period of time pro-

vided by such ceiling has expired, actions brought after

that period of time are barred. This is so even when

the occurrence giving rise to the cause of action, or the

injury happens, or is discovered, after the ceiling

period.

(Citations omitted).

Tenn. 1981) (construing the words ‘‘whichever occurs sooner’’ as

a nullity).

App. 21

In recent years many states have enacted such statutes.’

They have been labeled ‘‘statutes of repose’’ in order to dis-

tinguish them from ordinary statutes of limitations which

usually set much shorter time periods which run from the

time the cause of action accrues, rather than from an arbi-

trary time such as the date of purchase. F. McGovern, The

Variety, Policy and Constitutionality of Product Liability

Statutes of Repose, 30 AM.U.L.Rev. 579, 584 (1981). Be-

cause the date of injury is not a factor used in computing

the running of the time period, and such statutes typically

do not have tolling provisions, the statutes acquire a substan-

tive nature, barring rights of action even before injury has

occurred if the injury occurs subsequent to the prescribed

time period.

Appellants argue that a statute of limitations extin-

guishes a substantive right only when the right was created

by a statute and was not known at common law. The theory

upon which appellants rely is that the legislature which

creates, for example, an action for wrongful death® may as

a condition precedent to accrual of a cause of action require

that suit be brought within the prescribed statutory period.

Since the action was created by a statute which limited it,

the time limit serves to bar not merely the remedy, but the

right. If the right which is being sued upon was known at

7 In 1981 there were reported to be ninety-eight statutes

in forty-eight states that could be considered statutes of

repose. F. McGovern, The Variety, Policy and Constitu-

tionality of Product Liability Statutes of Repose, 30

Am.U.L.Rev. 579, 580 (1981)

8 There was no action for wrongful death at common

law. See Kozan v. Comstock, 270 F.2d 839, 841 n. 5 (Sth

Cir. 1959).

App. 22

common law, however, it is argued that a statute of limita-

tions may not take away, or bar, that right. All that it may

do is prevent the plaintiff from recovering. Since tort actions

for negligence, misrepresentation, and strict liability were

known at common law, appellants urge that the TPLA cannot

bar the appellants’ right, but merely their remedy; and since

a statute of limitations is substantive only if it bars the right

itself, they urge that the TPLA limitation is procedural and

should not be applied in this case.

Although appellants rely on cases such as Davis v.

Mills, U.S. 451, 453, 24 S.Ct. 692, 693, 48 L.Ed. 1067

(1904); Ramsay v. Boeing Co., 432 F.2d 592, 597 (Sth

Cir.1970); and Kozan v. Comstock, 270 F.2d 839, 841 (Sth

Cir.1959), as support for their argument, those cases do not

State that statutes of limitations can bar only rights not known

at common law. Rather, they discuss the effects of two dif-

ferent categories of statutes of limitations; those that apply

to whole classes of actions, such as all tort actions; and those

that apply to specific causes of action, and were created by

the same statutes which created those causes of action.

[10] Appellants’ convoluted reasoning is flawed in that it

assumes that legislatures are precluded from altering or elim-

inating common law causes of action. Such is not the law.

Legislatures can change common law rights just as they can

create new rights. In Duke Power Co. v. Carolina Environ-

mental Study Group, 438 U.S. 59, 89 n. 32, 98 S.Ct. 2620,

2638 .n. 32, 57 L.Ed.2d 595 (1978) (citations omitted), the

Supreisic Court wrote:

Our cases have clearly established that ‘‘[a] person

has no property, no vested interest, in any rule of the

App. 23

common law.’’ The ‘‘Constitution does not forbid the

creation of new rights, or the abolition of old ones rec-

ognized by the common law, to attain a permissable leg-

islative object,’’ despite the fact that ‘‘otherwise settled

expectations’’ may be upset thereby. Indeed, statutes

limiting liability are relatively commonplace and have

consistently been enforced by the courts.

Because the requirements of the TPLA statute of repose

must be met before a cause of action under the TPLA can

be established, we affirm the district court’s finding that the

statutory requirement is substantive. It was properly applied

in the Mississippi federal court as the controlling law. It bars

appellants’ suit. See also Hines v. Tenneco Chemicals, Inc.,

728 F.2d 729 (5th Cir. 1984) (North Carolina statute of re-

pose treated as substantive in choice of laws context).

VI. CONSTITUTIONAL OBJECTIONS

TO THE STATUTE OF REPOSE

The TPLA statute of limitations’ absolute ten year bar

is subject to several exceptions, one of which states that “‘the

foregoing limitation of actions shall not apply to any action

resulting from exposure to asbestos.’’ Tenn.Code Ann. § 29-

28-103(b) (1980). Appellants argue that because the harms

resulting from exposure to asbestos and phosphate slag are

similar in nature, the TPLA violates the Equal Protection

Clause of the Fourteenth Amendment by arbitrarily and cap-

riciously distinguishing between asbestos-related claims and

phospate slag-related claims. They contend that the right of

access to the courts is a fundamental right so that a classifica-

tion permitting some plaintiffs shorter time periods in which

to sue must be justified by a compelling state interest.

Appellants thus mix together equal protection and due pro-

App. 24

cess Claims. The argument that a distinction between asbes-

tos-related claims and phospate slag-related claims is not jus-

tified is clearly an equal protection claim because it turns

upon the justifiability of a classification made by the state.

The argument that a state may not curtail access to the courts

without a compelling reason for doing so is a due process

claim, because it turns upon the state’s power to deprive tort

claimants indiscriminately, after a certain period of time, of

their alleged property interest in access to the courts.

A. Due Process.

If appellants’ due process argument were valid, every

filing fee and filing deadline, as well as every statute of limi-

tations, would have to be justified by a compelling state in-

terest since failure to comply with them would result in a

restriction on a plaintiff's access to the courts. There is no

absolute right of access to the courts. All that is required

is a reasonable right of access to the courts—a reasonable

opportunity to be heard. Boddie v. Connecticut, 401 U.S.

371, 378, 383, 91 S.Ct. 780, 786, 788, 28 L.Ed.2d 113

(1971).° When an Act has an economic purpose, limitations

® Before a ‘‘compelling interest’’ standard of strict scrutiny is

applied, the right that plaintiffs seek to vindicate by access to the

courts must be a mental right. Thus in Boddie v. Connecticut,

401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), the Supreme

Court feld that Connecticut’s substantial interest in allocating

scarce judicial resources was rationally related to its scheme of fil-

ing fees, but was not sufficient to override plaintiffs’ fundamental

interest in access to the only avenue perimitted by state law for

dissolving their’ marriage. Jd. at 381, 91 S.Ct. at 788. In United

States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d

626 (1973), «the Court observed that Kras’ interest in

App. 25

created by it must be upheld unless they are irrational and

arbitrary. In Duke Power Co., 438 U.S. at 84-85, 98 S.Ct.

at 2636-37 (citations ommitted), the Supreme Court wrote:

The liability-limitation provision thus emerges as a clas-

sic example of an economic regulation—a legislative ef-

fort to structure and accommodate ‘‘the burdens and

benefits of economic life.’’ ‘‘It is by now well estab-

lished that [such] legislative Acts...come to the Court

with a presumption of constitutionality, and that the bur-

den is on one complaining of a due process violation

to establish that the legislature has acted in an arbitrary

and irrational way.’’ That the accomodation struck may

have profound and far-reaching consequences, contrary

to appellees’ suggestion, provides all the more reason

for this Court to defer to the congressional judgment

unless it is demonstrably arbitrary or irrational.

The purpose of the TPLA is found in its preamble:

being discharged of his debts in a bankruptcy proceeding did *‘not

rise to the same constitutional level’ as one’s interest in being able

to dissolve one’s marriage through the only legal avenue, the

courts. Jd at 446, 93 S.Ct. at 638. The Court therefore refused

to require a compelling state interest as justification for the state's

filing fee. In Ortwein v. Schwab, 410 U.S. 656, 660,

93 S.Ct. 1172, 1174, 35 L.Ed.2d 572 (1973), the Court noted that

the interest in increased welfare benefits, like the interest in a bank-

ruptcy discharge, “‘has far less constitutional significance than the

interest of the Boddie appellants.’’ Because the litigation was in

the area of economics and social welfare, and no suspect classifica-

tion was present, the standard applied by the Court was that of

rational justificatin. /d. at 661, 93 S.Ct. at 1175.

App. 26

Ee ee

WHEREAS. ..it is necessary to protect the public inter-

est by enacting measures designed to make product liabil-

ity insurance more readily available at a reasonable cost

so that product cost may be lessened to the consumer; and

WHEREAS, In enacting this act, it is the purpose of

the General Assembly to provide a reasonable time within

which action may be commenced against manufacturers,

and/or sellers while limiting the time to a specific period

of time for which product liability insurance premiums can

be reasonably and accurately calculated; and to provide

other changes to expedite early evaluation and settlement

of claims...

Tenn.Code Ann. § 29-28-103.

{11} Limiting the time within which actions may be

brought has in numerous cases been held to be a rational,

non-arbitrary means of achieving economic ends. Sec. e.g.,

Mathis v. Eli Lilly & Co., 719 F.2d 134, 141 (6th Cir. 1983);

Buckner v. GAF Corp., 495 F.Supp. 351, 353 (E.D. Tenn.

1979), affd. 659 F.2d 1080 (6th Cir. 1981); Harmon v.

Angus R. Jessup Association, 619 S.W.2d 522, 524

(1enn.1981); Harrison v. Schrader, 569 S.W.2d 822, 827-

28 (Tenn. 1978). We therefore cannot find that the TPLA sta-

tute of repose denies appellants due process of law. See also

Mathis v. Eli Lilly and Co., 719 F.2d 134, 141 (6th

Cir.1983) (applying an ‘‘arbitrary and capncious’’ standard

and finding that the TPLA does not violate Due Process or

“public policy’’).

B. Equal Protection of the Laws.

[12] In determining whether Tennessee vivlated the Equal

Protection Clause of the Fourteenth Amendment by allowing

claimants alleging asbestos-related injuries a longer time to

App. 27

bring an action than claimants alleging phosphate slag-related

injuries, we note, first, that people alleging phosphate slag-

related injuries do not compose a suspect class. See Fron-

tiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764,

1768, 36 L.Ed.2d 583 (1973). Therefore the standard to be

applied is whether the distinction between plaintiffs alleging

asbestos-related injuries and phosphate slag-related injuries

is rationally related to a legitimate government interest.

United States Department of Agriculture v. Moreno, 413

U.S. 528, 534, 93 S.Ct. 2821, 2825, 37 L.Ed.2d 782

(1973). We find unconvincing appellants’ argument that

‘*there is absolutely no rational basis for exempting asbestos-

related injuries from the ten year absolute bar for bringing

a products liability claim and not exempting other long term

continuing type injuries such as injuries resulting from expo-

sure to low level radiation.”’ The fact that asbestos is regu-

lated as a hazardous air pollutant with prescribed emission

and disposal standards, see 40 C.F.R. § 61.20-.22, while

phosphate slag is expressly listed as a non-hazardous waste

by the Environmental Protection Agency, see 40 C.F.R. §

261.4(b)(7), is one obvious justification for distinguishing

between asbestos-related and phosphate slag-related claims.

The Court in Hargraves v. Brackett Sripping Machine

Co., 317 F.Supp. 676, 683 (E.D.Tenn.1970), neatly sum-

marized the proper analysis to be applied in a case such as

this.

A statute of limitations must be judged in the light of the

broad class of cases to which it applies and if it is reasona-

ble with respect to the class, it will not be judged un-

reasonable merely because it is deemed to operate harshly

in a particular or exceptional instance. In reaching this

conclusion it should be emphasized that the role of the

App. 28

Court is not to pass upon the wisdom or lack of wisdom

of the legislation involved. The courts do not sit to review

the wisdom of legislation or regulation by public bodies,

for these matters address themselves solely to the legisla-

tive or reglating body.

(Citations omitted).

The Court recognizes and regrets appellants’ losses. But

the very purpose of a statute of repose is to create a settled

time when such losses can no longer be subject to claims.

Ample authority establishes a governmental right to do this

even though harsh results can occur under any such arbitrary

time limit. Because we find that the Tennessee statute of

limitations was properly selected as the applicable statute of

limitations in this case, and because it does not violate appel-

lants’ Due Process and Equal Protection rights, the district

court should be affirmed in all respects.

AFFIRMED.

App. 29

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

MARK WAYNE, et al., )

Plaintiffs, )

) No.

v. ) EC81-30-LS-P

)

S. DAVID FREEMAN, et al., )

Defendants )

MEMORANDUM OF OPINION

This diversity action comes before the court on motions

for summary judgment filed by Defendants Tupelo Concrete

Products Company (TCP) and Tennessee Valley Authority

(TVA). Because this personal injury action concerns parties

from three different states and acts taking place in three dif-

ferent states, the court’s initial task is to resolve the choice

of law issue.

Plaintiffs, Mark and Phoebe Wayne and their minor

children, Cynthia and Amanda, are residents of Hardin

County, Tennessee. Defendant TVA, an independent agency

of the United States, is by statute a resident of Alabama.

Defendant TCP is a Mississippi corporation with its principal

place of business in Tupelo, Mississippi.

In 1969, after two years of construction, Plaintiff Mark

Wayne moved his family into a new home he had built on

the family farm in Hardin County, Tennessee. The basement

and some other parts of the house were built of concrete

App. 30

blocks filled with phosphate slag, a by-product of Defendant

TVA’s Muscle Shoals, Alabama, fertilizer program. For

years TVA had sold this slag to area block manufacturers,

including the manufacturer/supplier of plaintiffs’ blocks,

TCP. There is no evidence in the record that properties of

the slag were altered in any manner by the block manufactur-

ing process.

Plaintiff Mark Wayne selected the lightweight TCP

slag-filled blocks on the recommendation of his mason. The

blocks were purchased at W&W Home Builders of Counce,

Tennessee, but Plaintiff Mark Wayne testified in his deposi-

tion that it was TCP that actually delivered the blocks to

his Hardin County residence. TCP denies having made the

delivery.

Plaintiffs lived in their new home for approximately ten

years oblivious to any health hazard posed by the phospate

slag until a January 24, 1979, article in a Memphis, Tennes-

see, newspaper, The Commercial Appeal, alerted them to the

danger. See Phoebe Wayne deposition, exhibit one. Accord-

ing to the article, the phospate slag in the blocks contained

uranium which emitted radioacive radon gas. Extended inha-

lation of the radon gas was believed to cause lung cancer.

In September of 1979, after having their home tested for

radioactive radon gas and radon daughters and on the advice

of the Environmental Protection Agency and Tennessee Pub-

lic Health Department officials, plaintiffs moved out of their

home because of radiation hazard.

Plaintiffs filed the instant lawsuit on January 23, 1981.

Relying on implied warranty, negligency, and strict liability

theories, plaintiffs seek over fourteen million dollars in dam-

ages to compensate them for past, present, and future phys-

App. 31

ical pain and suffering, mental anguish, medical expenses,

and loss of the use and enjoyment of their home.

As a federal court deciding diversity matter, this court

must apply Mississippi substantive law, Erie Railroad v.

Tompkins, 304 U.S. 64 (1938). This includes the choice of

law rules prevailing in this state, Klaxon Co. v. Stentor Man-

ufacturing Co., 313 U.S. 487 (1941). Since 1968, Missis-

sippi has followed the principles summarized in the Restate-

ment (Second) Conflict of Laws, applying the substantive

law of the state which has the most substantial relationship

to the parties, the occurrence, and the particular issue. See

Mitchell v. Craft, 211 So.2d 509 (Miss. 1968).

Statutes of limitation, though they can have a material

effect on the outcome of a case, are usually characterized

as procedural. Accordingly, the forum’s own statute of limi-

tation is usually applied even though the choice of law analy-

sis dictates that a foreign jurisdiction’s substantive law be

applied. However, Mississippi recognizes a widespread ex-

ception that treats the foreign statute of limitation as substan-

tive if it terminates the very cause of action itself. See Davis

v. Mills, 194 U.S. 451 (1904) (‘‘barring the right, not merely

the remedy’’). Cases in which this exception has been ap-

plied include Ramsey v. Boeing Co., 432 F.2d 592 (Sth Cir.

1970), and Cummings v. Cowan, 390 F.Supp. 1251 (N.D.

Miss. 1975). When deciding whether a foreign limitations

statute is indeed ‘‘substantive’’ and, therefore, an exception

to the general rule, the Mississippi court is bound by the

constructions placed on the foreign statute of limitation by

the courts of that jurisdiction.

In their motions for summary judgment, Defendants

TVA and TCP contend that the ten-year Tennessee products

App. 32

A ee Nl a A to

liability statute should be applied to completely bar the pre-

sent cause of action. To support that result, defendants must

establish not only that Tennessee is the state with the most

significant relationship to the occurrence and the parties but

also that the Tennessee statute not only bars the remedy but

also extinguishes the legal right of action.

There is no doubt that the Tennessee contacts predomi-

nate in the present cause of action. Plaintiffs are Tennessee

residents. The concrete blocks were purchased for and incor-

porated into their Hardin County, Tennessee, home. The par-

ticular blocks at issue were purchased through a Tennessee

homebuilding supply business and delivered directly to plain-

tiffs’ Tennessee homesite according to Mark Wayne. Plain-

tiffs lived continuously with the radioactive emissions for ten

years and, therefore, any injuries inflicted and damages sus-

tained were based in Tennessee. The only important non-

Tennessee contacts are TVA’s residence and production of

the phosphate slag in Alabama and TCP’s residence and

manufacturing of the concrete blocks in Mississippi.

In support of their argument that the Tennessee statute

of limitation is substantive, defendants rely on the wording

of the Tennessee statute and call the court’s attention to

Bucker v. GAF Corp., 495 F.Supp. 351 (E.D. Tenn. 1979),

in which a Tennessee federal court, saying that ‘‘T.C.A.

§23-3703 is not a conventional statute of limitations,’’ barred

a suit for asbestos exposure though plaintiff had not disco-

vered his injury until after his action was statutorily barred.

In defense of defendants’ motions, plaintiffs argue 1)

that Mississippi has the most significant contacts, 2) that a

federal statute of limitations should be fashioned, or 3) that

App. 33

if the Tennessee statute is applied, the defendants’ conduct

tolled the statute either through fraud or as a continuous tort.

All three of these arguments must be rejected.

The only Mississippi contacts are TCP’s residence in

Mississippi and its manufacturing the blocks in this state.

(Plaintiffs correctly point out that TVA does business in Mis-

sissippi, but this business is not related to the present litiga-

tion and, hence, does not constitute a significant contact.)

Under the Restatement (Second) Conflict of Laws torts anai-

ysis, the important factors to be considered are the place of

the wrongful conduct, the place of the injury, the place of

each party’s residence, and the place where the relationship

between the parties is centered. See Restatement (Second)

Conflict of Laws §145. Each contact is to be evaluated ac-

cording to its relative importance to the particular issue in-

volved; however, the Second Restatement retains the basic

preference for the law of the place of the injury unless the

other factors demonstrate that a more significant relationship

lies elsewhere. The Second Restatement’s contracts approach

incorporates the following factors as determinative: the place

of contracting, the place of negotiation, the place of perfor-

mance, the location of the subject matter of the contract, and

the residence or place of business of each contracting party.

See id. at §188. When land is involved, the Second Restate-

ment expresses a very strong preference for the law of the

situs. See, e.g., id. at §208.

After comparing the facts of this case, supra, pp. 1-2,

with the factors enumerated above, the court has reached the

inescapable conclusion that Tennessee law must govern this

action. Though TCP’s manufacturing of the blocks in Missis-

sippi creates a substantial contact, the court has chosen to

afford this contact less than its customary weight because

App. 34

there is no evidence that TCP altered in any manner the

radioactive quality of the phosphate slag. In other words, the

evidence in the record indicates that TVA’s Alabama contact

(manufacturing the slag) was certainly more significant than

TCP’s Mississippi contact.

The Court must also reject plaintiffs’ attempt to invoke

a federal ‘‘common law’’ statute or to cast defendants’ con-

duct into a fraud or continuing tort framework. The cases

plaintiffs cite in favor of federally-fashioned relief come

from areas in which either federal regulation is comprehen-

sive, the need for uniformity paramount, or fed-ral common

law commonplace. See, e.g., Carlson v. Green, 446 U.S.

14 (1980) (Bivens action); Keicher v. Northwest Airlines,

Inc, 563 F.2d 1310 (9th Cir. 1977) (obligations of domestic

air carriers); Kohr v. Allegheny Airlines, Inc., 504 F.2d 400

(7th Cir. 1974), affirmed 421 U.S. 978 (1975) (air law regu-

lation); DeBardeleben Marine Corp. v. United States, 451

F.2d 146 (Sth Cir. 1971) (maritime law). Insofar as the con-

tinuing tort argument is involved, it is clear that defendants’

acts were completed when the radioactive blocks were deliv-

ered to plaintiffs’ homesite and defendants fully and finally

relinquished all control over them. Finally, plaintiffs have

neither pleaded fraud nor entered into a fiduciary relationship

with the TVA which would obligate the TVA to disclose

the slag’s radioactiviry.

Having chosen Tennessee law, the court is also of the

opinion that the Tennessee statute of limitation should be ap-

plied as a substantive element of Tennessee’s comprehensive

products liability statute. As that statute forever bars any

products liability action brought more than ten years from

the date on which the product was first purchased for use

or consumption, T.C.A. §29-28-103, Mark Wayne and

Phoebe Wayne’s claims for relief must be dismissed.

App. 35

However, as all parties have agreed that Cynthia and

Amanda Wayne’s claims are preserved by the minors tolling

provision incorporated into the statute, and as plaintiffs have

asked that these claims be dismissed without prejudice to

their being asserted at a later date, the minors’ claims will

be dismissed without prejudice. The court declines defen-

dants’ suggestion to assess attorney fees in connection with

this dismissal without prejudice, as it appears that the great

majority of the expense defendants have incurred to date has

been in connection with the Mark and Phoebe Wayne claims,

the premature nature of the minors’ claims having been con-

fessed by counsel for plaintiffs.

An appropriate judgment will be entered dismissing this

action.

This 14th) day of December, 1982.

[Illegible]

UNITED STATES DISTRICT JUDGE

App. 36

Formal Judgment of the Fifth Circuit Court of Appeals

was entered on April 23, 1984. A copy of this Judgment

was not provided to counsel.

App. 37

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

MARK WAYNE, et al.,

Plaintiffs,

S. DAVID FREEMAN, et al.,

Defendants,

No. EC81-30-LS-P

JUDGMENT

Pursuant to the Memorandum Opinion this day issued,

IT IS ORDERED:

That defendants’ motions for summary judgment be and are

hereby GRANTED;

That Plaintiff Mark Wayne and Phoebe Wayne’s claims

be and are hereby DISMISSED WITH PREJUDICE; and

That Plaintiff Cynthia Wayne and Amanda Wayne’s

claims be and are hereby DISMISSED WITHOUT PRE-

JUDICE.

This 14th day of December, 1982.

[Illegible]

UNITED STATES DISTRICT JUDGE

App. 38

PA I

ee sete:

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 83 4043

MARK WAYNE, ET AL.,

Plaintiffs-Appellants

versus

TENNESSEE VALLEY AUTHORITY, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Mississippi

ON PETITION FOR REHEARING

( May 25, 1984 )

Before BROWN, GEE and WILLIAMS, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same

is hereby DENIED.

ENTERED FOR THE COURT:

[Illegible]

United States Circuit Judge

App. 39

29-28-101 REMEDIES AND SPECIAL PROCEEDINGS 498

CHAPTER 28

PRODUCTS mm ACTIONS

SECTION.

29-28-101. Short title. 340008. Seller's ability.

29-28-102. Definitions. 29-28-107. Complaint — Statement of

29-28-103. Lamitapon of actions-Excepuon. damages

29-28-104. Comphance with government 29-28-108. Product altered or abnormally

standards — Rebuttabie used

Presumpuon

29-28-105. Determinianon of defective or

29-28-101. Short title.—This chapter shall be known and

may be cited as the *“Tennessee Products Liability Act of

1978.*’ [Acts 1978(Adj.S),ch.703.§ 1; T.C.A., § 23-3701.)

Law Reviews. Statutes of Limitations — Va. Code § 8.2-318.

Personal Injury, Property Damage and Breach Cited: Commercial Truck & Trailer Sales.

of Warranty, 8 Mem. Si. U.L._Rev.803. Inc. v. McCampbell, 580 S.W.2d 765 (Tenn.

The Tennessee Products Liability Act, 9 1979).

Mem. St. U.L. Rev. 105. Collateral References. 63 Am. Jur 2d

The Tennessee Products Liability Act of Products Liability §§ 1-4.

1978 (Irvin L. Tankersicy). 144 Tenn. BJ. C.J.S. Supplement Products Liability $4 !-

i. 6.

acvons. scribing physician as affecung prescnpuon

Ala. Code, tit. 6. $$ 6-5-500 — 6-5-5235. drug manufacturer's liability for product-

Ark. Sut. Ann. §§ 34-2801 — 34-2807. caused injury. 94 A.L.R.3d 1080.

Ky. Rev. Sut. Ann. §§ 411.300 tt

411.350.

N.C. Gen. Stat. §§ 99B-1 — 99B-10.

29-28-102. Definitions. — As used in this chapter unless

the context otherwise requires:

(1) **Anticipated life.’ The antic »sed life of a product

shall be determined by the expirat.on date placed on the

product by the manufacturer when required by law but shall

not commence until the date the product was first purchased

for use or consumption.

(2) ‘Defective condition’’ means a condition of a prod-

uct that renders it unsafe for normal or anticipatable handling

and consumption.

App. 40

(3) ‘‘Employer’’ means any person exercising legal

supervisory control or guidance of users or consumers of

products.

(4) *‘Manufacturer’’ means the designer, fabricator,

producer, compounder, processor or assembler of any prod-

uct or its Component parts.

(5) **Product’’ means any tangible object or goods pro-

duced.

(6) ‘Product liability action’’ for purposes of this chap-

ter shall include all actions brought for or on account of per-

sonal injury, death or property damage caused by or resulting

from the manufacturer, construction, design, formula, prepa-

ration, assembly, testing, service, warning, instruction, mar-

keting, packaging or labeling of any product. It shall include,

but not be limited to, ail actions based upon the following

theories: strict liability in tort; negligence; breach of war-

ranty, 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.

(7) **Seller’’ shall include a retailer, wholesaler, or dis-

tributor, and means any individual or entity engaged in the

business of selling a product, whether such sale is for resale,

or for use or cnsumption. Seller shall also include a lessor

or bailor engaged in the business of leasing or bailment of

a product.

(8) “‘Unreasonably dangerous’’ means that a product is

dangerous to an extent beyond that which would be con-

templated 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

App. 41

prudent manufacturer or seller assuming that he knew of its

dangerous condition. [Acts 1978 (Adj.S.).ch.703. §

2;T.C.A., § 23-3702; modified. }

Section to Section References. This section Cited: Commercial Truck & Trailer Sales,

is referred to in § 29-28-106 Inc. v. McCampbell, 580 S.W.2d 765 Tenn.

Law Reviews. The Tennessee Products Lia 1979).

bility Act, 9 Mem. St. U.L. Rev. 105. Collateral References. 63 Am. Jur. 2d.

The Tennessee Products Liability Act of Products Liability §§ 221-223.

aes (Irvin L. Tankersiey), 144 Tenn. BJ.

29-28-103. Limitation of actions — Exception. — (a)

Any action agains: a manufacturer or seller of a product for

injury to person or property caused by its defective or un-

reasonably dangerous condition must be brought within the

period fixed by §§ 28-3-104, 28-3-105, 28-3-202 and 47-2-

725, but notwithstanding any exceptions to these provisions

it must be brought within six (6) years of the date of injury,

in any event, the action must be brought within ten (10)

years from the date on which the product was first purchased

for use or consumption, or within one (1) year after the expi-

ration of the anticipated life of the product, whichever is the

shorter, except in the case of injury to minors whose action

must be brought within a period of one (1) year after attain-

ing the age of majority, whichever occurs sooner.

The foregoing limitation of actions shall not apply to

any action resulting from exposure to asbestos. [Acts

1978(Adj.S.),ch. 703, § 3; 1979,ch. 162, § 1:T.C.A., § 23-

3703.]

Law Reviews. The Tennessee Products Lia inc. v. McCampbeli, 580 S W.2d 765 Tenn.

bility Act, 9 Mem. St. U.L. Rev. 105. 1979).

Cited: Commercial Truck & Trailer Sales.

NOTES TO DECISICNS

1. Minors. view that § 29-26-116 was not intended to

Products Liability Act suggests that sucrsacde the legal disability statute in the case

i in- of minors. Pariato v. Howe, 470 F. Supp. 996

restictive (E.D. Tenn. 1979).

App. 42

eo eaten

— ne Oe

eed ee

What of

limitation governs based on strict lia-

bility in ton. 91 A.L.R.3d 455.

Limitation of actions = 55( 1). 95(2).

29-28-104. Compliance with government standards —

- Kebuttable presumption. — Compliance by a manufac-

turer or seller with any federal or state statute or administra-

tive regulation existing at the time a product was manufac-

tured and prescribing standards for design, inspection, test-

ing, manufacture, labeling, warning or instructions for use

of a product shall raise a rebuttable presumption that the

product is not in an unreasonably dangerous condition in re-

gard to matters covered by these standards. [Acts

1978(Adj.S), ch. 703, § 4; T.C.A., § 23-3704. ]

Law Reviews. The Tennessee Products Lia-

bility Act. 9 Mem. St. U.L.Rev. 105

Coliateral References. 77 C.J.S. Supple-

ment Products Liability § 94.

Products liability 75-80.

29-28-105. Determination of defective or dangerous

condition. — (a) A manufacturer or seller of a product shall

not be liable for any injury to person or property caused by

the product unless the product is determined to be in a defec-

tive 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.

action based on express warranty or misrepresentation re-

garding the chattel.

Collateral References. Statute

icy in esnens

App. 43

(d) A product is not unreasonably dangerous because

of failure to adequately warn of a danger or hazard that is

apparent to the ordinary user. [Acts 1978 (Adj. S.), ch. 703,

§§ 5, 8; T.C.A, § 23-3705.]

Law Reviews. The Tennessee Products Liabil-

ity Act. 9 Mem. St. U.L. Rev. 105.

NOTES TO DECISIONS

1. Unreasonably Dangerous Product.

If the product is determined to be unreasona-

bly dangerous then failure of the plaintiff or

his employer to heed instructions or warnings

do not as a matter of proximate cause

Collateral References. 63 Am. Jur. 2d

Products Liability §§ 42-61.

77 C.J.S. Supplement Products Liability §§

7-34.

Admissibility, against manufacturer, of

product recall letter. 84 A.L.R.3d 1220.

Admissibility of evidence of subsequent re-

interrupt the defendants’ liability unless the

plaintiff voluntarily and unreasonably encoun-

tered and assumed a known . Young v.

Reliance Elec. Co. 584 S.W. 2d 663 (Tena.

Ct. App. 1979).

Modern cases determining whether

is defectively designed. 96 A.L.R.3d 22.

Products liability for defective vehicular

gasoline tanks. 96 A.L.R.3d 265.

Promotional eiforts directed toward pre-

scribing physician as affecting prescription

drug manufacturer's liability for product—

pairs or other remedial measures in products

liability cases. 74 A.L.R.3d 1001.

Duty of manufacturer to equip product with

safety device to protect against patent or obvi-

ous danger. 9S A.L.R.3d 1066.

29-28-106. Seller’s liability. — (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 cir-

cumstances in which the seller is afforded no reasonable op-

portunity 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

caused injury. 94 A.L.R.3d 1080.

Product liability 8.

App. 44

I Ala te ai cits ade cas

this section shall not apply to actions based upon a breach

of warranty, express or implied, as defined by § 47-2-101

et seq., or unless the manufacturer of the product or part

in question shall not be subject to service of process in the

state of Tennessee or service cannot be secured by the long-

arm statutes of Tennessee or unless such manufacturer has

been judicially declared insolvent.

(b) No product liability action as defined in § 29-28-

102(6), when based on the doctrine of strict liability in tort

shall be commenced or maintained against any seller of a

product which is alleged to contain or possess a defective

condition unreasonably dangerous to the buyer, user or con-

sumer unless said seller is also the manufacturer of said prod-

uct or the manufacturer of the product or part in question

shall not be subject to service of process in the state of Ten-

nessee or service cannot be secured by the long-arm statutes

of Tennessee or unless such manufacturer has been judicially

declared insolvent. [Acts 1978(Adj.S.)ch 703, § 6; T.C_A.,

§ 23-3706. ]

Law Reviews. The Tennessee Products Collateral References. Products liability

Liability Act, 9 Mem. St. U.L. Rev. 1-5. 26.

29-28-107. Complaint — Statement of damages. —

Any complaint filed in a products liability action shall state

an amount of said suit sought to be recovered from any de-

fendant. [Acts 1978 (Adj. S.), ch. 703, §7: T.C.A., §23-

3707.]

Law Reviews. The Tennessee Products Lia- 77 C.J.S. Supplement Products Liability §§

bility Act, 9 Mem. St. U.L. Rev. 105. 35-48-69-96.

Collateral References. 63 Am. Jur. 2d Products liability 73.

Products Liability §§ 206-227.

29-28-108. Product altered or abnormally used. —

If a product is not unreasonably dangerous at the time it

leaves the control of the manufacturer or seller but was made

App. 45

unreasonably dangerous by subsequent unforeseeable altera-

tion, change, improper maintenance or abnormal use, the

manufacturer or seller is not liable. [Acts 1978(Adj.S.), ch.

703, § 9; T.C.A., § 23-3708.]

Law Reviews. The Tennessee Products Lia-

bility Act, 9 Mem. St. U.L. Rev. 105.

NOTES TO DECISIONS

1. Test of Foreseeability. because the test of foreseeability attaching to

Failure to follow instructions or heed a those characterizations would necessarily frus-

warning is improperly characterized as an in- trate those defenses. Young v. Reliance Elec.

tervening cause, misuse or even abnormal use Co., 584 S.W.2d 663(Tenn.Ct. App. 1979).

Collateral References. 77 C.J.S. Suppie-

ment Products Liability § 48.

Products liability 16.

App. 4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.