BROCK v. AIR PRODUCTS CHEMICALS INC

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Court of Appeal, Second District, Division 5, California.

Barbara BROCK et al., Plaintiffs and Appellants, v. AIR PRODUCTS & CHEMICALS, INC. et al., Defendants and Respondents.

No. B113808.

Decided: May 28, 1998

Raphael Metzger, Long Beach, and James W. Parker, Orange, for Plaintiffs and Appellants. Steptoe & Johnson, Richard K. Willard, Brian J. Leske, Laurence F. Janssen and Kevin C. Mayer, Los Angeles;  Paul, Hastings, Janofsky & Walker and Barry N. Endick, San Francisco;  Bonne, Bridges, Mueller, O'Keefe & Nichols, Alexander B.T. Cobb, Los Angeles, and Mark B. Connely, San Luis Obispo;  Prindle, Decker & Amaro, Andy J. Goetz and Kristin E.D. Dunn, Long Beach;  Feldman & Shaffery, John Shaffery and Samuel L. Tolwin, Los Angeles;  Rodi, Pollock, Pettker, Galbraith & Cahill, John F. Cermak, Jr., Los Angeles and Sonja A. Inglin;  Sedgwick, Los Angeles, Detert, Moran & Arnold, Lily Chow and Alan B. Unterman, Irvine;  Dickson, Carlson & Campillo, Santa Monica, Mark Geraghty and Mimi Lee;  Ford, Walker, Haggerty & Behar and Maxine J. Lebowitz, Long Beach;  Howard, Moss, Loveder, Strickroth & Walker and Margaret M. Parker, Santa Ana;  Dani H. Rogers, Woodland Hills;  Thomas, Mort, Prosser & Knudsen, Deborah C. Prosser, and Peter A. Schneider, Riverside for Defendants and Respondents.

I. INTRODUCTION

Plaintiffs, Barbara and Bernard Brock, appeal from a judgment dismissing their third amended complaint for products liability against 20 defendants after the trial court sustained demurrers without leave to amend as to 7 of 8 causes of action on the ground that plaintiffs failed to allege facts showing defendants had caused Mrs. Brock to have cancer.1  Although the court granted leave to amend as to the remaining cause of action for negligence, plaintiffs elected not to amend.   Plaintiffs contend the trial court erred in sustaining the demurrers because the trial court doubted that the element of causation could be proved.   We conclude plaintiffs are entitled to pursue their claims against the 20 manufacturers and suppliers because the allegations of the third amended complaint concerning causation are presumed to be true.   We distinguish this case from a similar situation in Bockrath v. Aldrich Chemical Co. Inc. (1998) 64 Cal.App.4th 1, 10, 74 Cal.Rptr.2d 774, where we held a discovery admission required the demurrer aimed at the causation element be sustained without leave to amend.   Accordingly, we reverse the order of dismissal.

II. BACKGROUND

The original complaint, which was filed on March 9, 1995, named 20 defendants who manufactured or supplied products which were used by Mrs. Brock's employer, Hughes Aircraft Company (“Hughes”).   The complaint alleged that, during the course of her employment, as an electronics assembly technician at Hughes' El Segundo facility, from 1984 to 1992, she was exposed to toxic chemicals in the course of performing her duties.   In March 1992, she was diagnosed with multiple myeloma, a rare form of cancer, which is fatal absent radical treatment such as a bone marrow transplant.   Her cancer was caused by exposure to the products.   The complaint contained causes of action for:  negligence (first), strict liability, (second) failure to warn and design defect (second and third);  ultrahazardous activity (fourth);  fraudulent concealment (fifth);  breach of warranty (sixth), and battery (seventh).   The complaint also contained a cause of action for consortium loss (eighth) for Mr. Brock.   On November 29, 1995, the trial court sustained defendants' demurrers to the complaint and granted plaintiffs 60 days leave to amend.

On January 11, 1996, plaintiffs filed a first amended complaint.   To this complaint, plaintiffs added a list of the defendants and over 40 products they manufactured or supplied to Hughes.   On July 19, 1996, the trial court held a status conference and set hearings on defendants' demurrers to the first amended complaint for August 23, 1996.   The trial court ordered discovery stayed until the hearing.   At the hearing, the trial court sustained demurrers to the first amended complaint with 20 days leave to amend and continued the discovery stay.

On September 17, 1996, plaintiffs filed a second amended complaint which added an allegation that Mrs. Brock was exposed to each of the products while working for Hughes and that each exposure was a substantial factor in causing her condition.   The second amended complaint denied that plaintiffs were proceeding under a alternative liability or market share liability theories.   The theory of “alternative liability” which was applied in Summers v. Tice (1948) 33 Cal.2d 80, 86, 199 P.2d 1 and the concept of “market share liability” which was applied in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 598, 163 Cal.Rptr. 132, 607 P.2d 924 are exceptions to the rule requiring the plaintiff to identify the defendant whose instrumentality caused his injury.  (Murphy v. E.R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672, 682-683, 221 Cal.Rptr. 447, 710 P.2d 247;  Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 598, 163 Cal.Rptr. 132, 607 P.2d 924;  Setliff v. E.I. Du Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1533, 38 Cal.Rptr.2d 763.)   On November 15, 1996, the trial court sustained defendants' demurrers to the second amended complaint and granted plaintiffs 30 days to amend.

On December 10, 1996, plaintiffs filed a third amended complaint.   Paragraph 34 of the complaint contains a list of approximately 75 “ingredients” which were in the products manufactured or supplied by the 20 defendants.   It is alleged:  “Plaintiff was exposed to numerous chemicals and chemical products, some of which have been identified and others which have not yet been identified.”   Paragraph 35 alleged “she personally used most, and perhaps all, of the forgoing chemicals and chemical products in the course of her employment at Hughes Aircraft Company from about 1984 to 1992, although Plaintiff was often unaware of the identity of the chemicals and chemical products [she] was using.”   She was exposed to the products by inhalation from personal use or proximate use from her co-workers.   She claims injury from the exposure to the products through direct and environmental inhalation.   Alternatively, it is alleged that the injury was caused by direct or environmental dermal exposure.

Paragraphs 62 through 79 contained allegations concerning the toxicity of the various products.   Plaintiffs alleged:  “The foregoing chemicals and chemical products are toxic (harmful to exposed humans and other life forms), hemotoxic (harmful to the elements of blood of humans and other life forms), hematotoxic (harmful to the blood forming organs of humans and other life forms), immunotoxic (harmful to the immune system of humans and other life forms), genotoxic (harmful to the genetic material (DNA) of humans and other life forms), and/or carcinogenic (cause, contribute to, and/or substantially increase the risk of, cancer in humans and other life forms).  [¶] ․ The toxicity of Defendants' chemical products is, in part, related to and dependent upon their chemical nature and function.”   Plaintiffs then list various types or functions of the chemicals which are alleged to be relevant to their toxicity.   In addition to alleging the 75 ingredients are toxic, plaintiffs allege in paragraph 64 that “most cause multiple toxic effects on the human body.”   Without identifying any product, plaintiffs allege:  “Among the more common toxic effects of the foregoing chemicals and chemical ingredients are contact irritation and sensitization, central nervous system depression, immunotoxicity, hemotoxic effects, hematopoietic effects, genotoxic effects, and carcinogenic effects.   In addition, many of the foregoing chemical and chemical ingredients potentiate, initiate, promote, and exacerbate the toxic effects of others, and have additive and synergistic toxic effects.”

The products were alleged to be carcinogenic.   Plaintiffs alleged medical causation as follows:  “Upon reaching the internal organs of Plaintiff's body, including but not limited to the liver and spleen, the foregoing chemicals and chemical products were transformed by metabolic processes, resulting in the formation of toxic metabolites, free radicals, and residual unmetabolized product, by various complex biological mechanisms beyond Plaintiff's understanding.  [¶] Upon being so metabolized, residual unreacted product, toxic metabolites, free radicals and other chemical resulting from metabolic processes migrated to the bone marrow, where such products, byproducts, and toxic metabolites caused hemotoxic, immunotoxic, genotoxic, and carcinogenic injuries to the blood and blood forming organs with Plaintiff's bones, thereby initiating and/or promoting the development of Plaintiff's multiple myeloma and other related and consequential injuries, which will be further established and clarified according to proof at the time of trial.”

Paragraph 85 of the third amended complaint alleged plaintiffs' legal theory of causation as exposure from each of defendants' products and that each was a “substantial factor” in causing Mrs. Brock's condition.   Plaintiffs further specifically alleged they were not proceeding under an alternative or a market share liability theory.   The trial court sustained demurrers to all causes of action granting 20 days leave to amend only as to the first cause of action for negligence.   Plaintiffs elected not to amend and judgment was entered on June 19, 1997, in favor of all defendants.2  This timely appeal followed.

III. DISCUSSION

A. Standard of Review

 An appellate court's “ ‘only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action.’ ”   (People ex. rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300, 58 Cal.Rptr.2d 855, 926 P.2d 1042;  Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.)   The reviewing court assumes the truth of allegations in the complaint which have been properly pleaded and gives that pleading a reasonable interpretation by reading it as a whole and with all its parts in their context.  (People ex. rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 300, 58 Cal.Rptr.2d 855, 926 P.2d 1042;  Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 9 Cal.Rptr.2d 92, 831 P.2d 317.)   However, the assumption of truth does not apply to contentions, deductions, or conclusions of law and fact.   (Moore v. Regents of University of California, supra, 51 Cal.3d at p. 125, 271 Cal.Rptr. 146, 793 P.2d 479;  Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732.)   The Supreme Court has held:  “On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, unless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory.  [Citations.]  If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend.  [Citation.]  The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended.  [Citation.]”  (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1;  accord, Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

B. The Demurrers Were Improperly Sustained

 Plaintiffs contend the trial court erred in sustaining the demurrers to the third amended complaint without leave to amend because they sufficiently alleged all the elements of the eight causes of action including causation.   According to plaintiffs, it was error to sustain the demurrers “simply because the trial court doubts whether causation can be proved.”   We recently confronted a similar situation in Bockrath v. Aldrich Chemical Co., Inc., supra, 64 Cal.App.4th at page 6, 74 Cal.Rptr.2d 774.   In Bockrath, the plaintiff identified 222 products manufactured or supplied by 55 defendants over a 21 year period and claimed they caused him to contract cancer.   As in the present case, the plaintiff in Bockrath explicitly alleged he was not seeking to recover under an alternative liability theory as articulated in Summers v. Tice, supra, 33 Cal.2d at page 86, 199 P.2d 1 or a market share analysis as Sindell v. Abbott Laboratories, supra, 26 Cal.3d at page 598, 163 Cal.Rptr. 132, 607 P.2d 924.   Many of the defendants, counsel, and contentions are the same in this case as in Bockrath.   The present case was litigated in conjunction with Bockrath in the trial court and on appeal.   In Bockrath, we concluded that the demurrer should have been sustained without leave to amend because the plaintiff would never be able to allege sufficient facts to demonstrate causation.   However, Bockrath does not compel the same result here for two reasons.

First, in Bockrath, the plaintiff had admitted in interrogatory answers he could not identify which of the 22 products provided or manufactured by 55 defendants to which he had been exposed over a 21-year period were a substantial factor in bringing about his cancer-the key causation issue in a case involving traditional tort liability questions.  (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052, 1 Cal.Rptr.2d 913, 819 P.2d 872;  Sindell v. Abbott Laboratories, supra, 26 Cal.3d at pp. 597-598, 163 Cal.Rptr. 132, 607 P.2d 924;  Bockrath v. Aldrich Chemical Co., Inc., supra, 64 Cal.App.4th at pp. 11-14, 74 Cal.Rptr.2d 774.)   Based upon his discovery admissions that he could not identify which product caused him any injury, we concluded that he could not meet the pleading requirement for causation.   (Bockrath v. Aldrich Chemical Co., Inc., supra, 64 Cal.App.4th at pp. 11-14, 74 Cal.Rptr.2d 774.)   We concluded that the plaintiff in Bockrath was bound by his discovery admissions.  (Ibid.;  City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719, 29 Cal.Rptr.2d 89;  Del E. Webb Corp. v. Structural Materials Co.(1981) 123 Cal.App.3d 593, 604, 176 Cal.Rptr. 824;  Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265, 30 Cal.Rptr. 749;  see Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (Rutter 1997) § 7:47, rev. # 1 1995.)   No such discovery admissions are present in this case.   The trial court entered a stay of discovery proceedings until pleading issues had been resolved.   Unlike Bockrath, we only have plaintiffs' allegations, which are presumed to be true, that specifically allege defendants caused Mrs. Brock's injury.

Second, in the absence of discovery admissions such as occurred in Bockrath, we must presume the comprehensive causation allegations to be true.   We reiterate well established pleading requirements as set forth by the California Supreme Court:  “The complaint in a civil action serves a variety of purposes (see 3 Witkin, Cal. Procedure (2d ed.1971) p. 1690), of which two are relevant here:  it serves to frame and limit the issues (see Fuentes v. Tucker (1947) 31 Cal.2d 1, 4, 187 P.2d 752[ ] ) and to apprise the defendant of the basis upon which the plaintiff is seeking recovery (see Leet v. Union Pac. R.R. Co. (1944) 25 Cal.2d 605, 618-619, 155 P.2d 42[ ];  Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6, 172 Cal.Rptr. 427[ ] ).  In fulfilling this function, the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts.  (See Green v. Palmer (1860) 15 Cal. 411, 415.)”   (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211-212, 197 Cal.Rptr. 783, 673 P.2d 660, fn. omitted.)   Causation may be generally rather than specifically pleaded.  (Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 103, 114 P.2d 1 [“The complaint, in a number of subsequent paragraphs, alleges that as an immediate and proximate result of the concurrent acts of negligence of the defendants, plaintiff suffered pain, loss of health and delayed recuperation, and was thereby damaged in the sum of $25,000.   The allegations of proximate cause are in the usual form, and are sufficient.”];  Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 154, 157 P.2d 1 [“[I]t is sufficient to allege that an act was negligently done by defendant, and that it caused damage to plaintiff.  [Citations.]”];  Smith v. Beauchamp (1945) 71 Cal.App.2d 250, 255, 162 P.2d 662 [“it has been the settled rule in this state ․ that negligence and proximate cause may be simply set forth․”];  4 Witkin, Cal. Procedure (4th ed.   1996) §§ 571-572, pp. 667-669.)   The third amended complaint in this case meets the pleading standards repeatedly identified for causation issues applied by the California Supreme Court.  (E.g. Guilliams v. Hollywood Hospital, supra, 18 Cal.2d at p. 103, 114 P.2d 1;  Dunn v. Dufficy (1924) 194 Cal. 383, 386, 228 P. 1029;  Hughes v. Warman Steel Casting Co. (1917) 174 Cal. 556, 559, 163 P. 885.)   Hence, without a discovery admission of the type present in Bockrath, the third amended complaint is sufficient to withstand a challenge at the pleading stage because it alleged sufficient ultimate facts concerning causation.

Nothing in Setliff v. E.I. Du Pont de Nemours & Co., supra, 32 Cal.App.4th at pages 1531-1538, 38 Cal.Rptr.2d 763 changes our perspective in this regard.   In Setliff, the plaintiff admitted in his amended complaint he was unable to identify which product caused his injuries.  (Id. at pp. 1530-1531, 38 Cal.Rptr.2d 763.)   The author of Setliff, our colleague, Justice Fred K. Morrison of the Third Appellate District, quite correctly noted that the admission in the amended complaint barred a traditional tort theory recovery.   Justice Morrison noted:  “Plaintiff claims he has identified manufacturers and suppliers of particular products and has alleged exposure to these products caused and contributed to his injuries.   In making this argument, plaintiff ignores the admission in his amended complaint that he is ‘unable to identify which of the products separately or jointly injured him.’   He also admitted he could not identify the specific chemicals and toxics involved in his injury or which defendant manufactured the product or products responsible for his injury.   Plaintiff is bound by an admission in his pleadings.  [Citation.]”  (Id. at pp. 1533-1534, 38 Cal.Rptr.2d 763.)   No such pleading admission is present in this case.   Hence, Setliff does not require we affirm the demurrer dismissal in this case.

IV. DISPOSITION

The dismissal order is reversed.   Plaintiffs, Barbara and Bernard Brock, are to recover their costs on appeal jointly and severally from defendants.

FOOTNOTES

1.   The complaint named as defendants:  Air Products & Chemicals, Inc.;   Alpha Metals, Inc.;   Bacon Industries, Inc. of California;  Beazer East, Inc.;   DuPont Company:  Federated-Fry Metals, Inc.;   Gallade Chemical, Inc.;   General Electric Co.;   Indium Corp. of America;  J.T. Baker, Inc.;   Kester Solder Company;  Koppers Company, Inc.;   Litton Industries, Inc.;   Loctite Corp.;   Mallinckrodt Chemical Co.;   Mallinckrodt Chemical, Inc.;   Miller Stepheson Chemical Co., Inc.;   Nihon Almist Co., Ltd.;   Spectrum Chemical Manufacturing Corp.;   and Van Water & Rogers, Inc.

2.   Defendants Alpha Metals Inc., Kester Solder Company, Koppers Company, Inc., and Nihon Almist Company have not filed any response to the appeal and the record does not indicate whether they filed demurrers in the trial court.

TURNER, Presiding Judge.

ARMSTRONG and GODOY PEREZ, JJ., concur.