Artiglio v. General Electric Co.

• Decision Date: 20 February 1998
• Docket Number: No. D023283,D023283
• Citation: 71 Cal.Rptr.2d 817,61 Cal.App.4th 830
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 15,160, 98 Cal. Daily Op. Serv. 1297, 98 Daily Journal D.A.R. 1757 Eda ARTIGLIO et al., Plaintiffs and Appellants, v. GENERAL ELECTRIC COMPANY, Defendant and Respondent.

Page 817

71 Cal.Rptr.2d 817

61 Cal.App.4th 830, Prod.Liab.Rep. (CCH) P 15,160,

98 Cal. Daily Op. Serv. 1297,

98 Daily Journal D.A.R. 1757

Eda ARTIGLIO et al., Plaintiffs and Appellants, v. GENERAL ELECTRIC COMPANY, Defendant and Respondent.

No. D023283.

Court of Appeal, Fourth District, Division 1, California.

Feb. 20, 1998.

Lopez & Hodes, Ramon R. Lopez and Beau James Nokes, Newport Beach, for Plaintiffs and Appellants

Landels, Ripley & Diamond, James A. Bruen and Deborah K. Miller, San Francisco, Williams & Connolly and Carolyn H. Williams, Washington, DC, for Defendant and Respondent.

BENKE, Acting Presiding Justice.

In this case the supplier of silicone used in manufacturing breast implants contends that it cannot be held liable in negligence for failing to disclose to its customers information about the potential dangers posed by use of silicone in medical devices. The supplier, defendant and respondent General Electric Company (GE), argues that because it supplied silicone materials which are used in a number of other products, because the silicone materials it provided were subject to further processing by the actual manufacturers of breast implants and because the implant manufacturers themselves had the ability to determine the suitability and safety of the implants, it owed no duty of care to the eventual recipients of the silicone breast implants. The trial court agreed with GE and granted its motions for summary judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs on this appeal are women who received silicone breast implants manufactured by McGhan Medical Corporation (McGhan). GE was the manufacturer of silicone products and it supplied McGhan with the silicone compounds the manufacturer used in producing their breast implants.

In particular, GE supplied McGhan 55-gallon drums of its CRTV6195A and 5-gallon pails of its CRTV6195B. When cooked together by an implant manufacturer, one drum of CRTV6195A and one pail of CRTV6195B produced enough gel to fill 880 individual breast implants. GE also supplied McGhan with 55-gallon drums of its RTV7100A and 5-gallon pails of its RTV7100B; when cooked together these products were used by the implant manufacturers to produce silicone shells.

According to GE, implant manufacturers came to it with particular specifications as to the physical properties they wanted in the silicone they were purchasing and GE then produced products which met the manufacturers' specifications.

When it shipped the silicone material to an implant manufacturer, GE only warranted the material met the manufacturer's specifications. GE's shipping documents disclaimed any responsibility for determining whether the material was suitable for medical applications. In pertinent part, the shipping documents for every batch of material the implant manufacturers received stated: " 'Each user of the material should make his own tests to determine the material's suitability for his own particular use.' "

In formulating the materials it supplied to McGhan, GE used a basic chemical building block known as polydimethylsiloxane (PDMS). GE used PDMS in formulating a host of silicone materials for use by the manufacturers of everything from bed pads to electronic circuit boards to food additives to other medical devices.

In the trial court plaintiffs alleged GE was liable to them on theories of negligence, breach of warranty and deceit. Briefly, plaintiffs contend that at the time GE was supplying silicone materials to implant manufacturers, GE knew or should have known that silicone was not an appropriate material for use in medical devices and GE failed to convey what it knew or should have known to its customers. As we indicated at the outset, for its part, GE contends and the trial court agreed, that in light of its role as the bulk supplier of a raw material and its express disclaimers with respect to the suitability of silicone in medical applications, it owed the recipients of breast implants no duty of care.

Plaintiffs filed a timely notice of appeal from the judgment dismissing GE as a defendant in their respective cases.

DISCUSSION

I Standard of Review

As we recently noted: "Summary judgment is proper only where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. [Citation.] 'To secure summary judgment, a moving defendant may prove an affirmative defense, disprove at least one essential element of the plaintiff's cause of action [citations] or show that an element of the cause of action cannot be established [citations].' [Citation.] 'All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. [Citation.]' [Citation.] We review the record de novo to determine whether defendants met their burdens of proof. [Citation.]" (Fieldstone Co. v. Briggs Plumbing Products, Inc. (1997) 54 Cal.App.4th 357, 363, 62 Cal.Rptr.2d 701.)

II Negligent Failure to Warn

In California "the manufacturer has a duty to use reasonable care to give warning of the dangerous condition of the product or of facts which make it likely to be dangerous to those whom he should expect to use the product or be endangered by its probable use, if the manufacturer has reason to believe that they will not realize its dangerous condition." (Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1076-1077, 91 Cal.Rptr. 319 (Putensen ); see also Rest.2d Torts, §§ 388, 394.) Thus "[n]egligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have known and warned about." (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002, 281 Cal.Rptr. 528, 810 P.2d 549.)

In Putensen the defendant was the manufacturer of plastic tubing which it supplied to hospitals in 100-foot rolls. The tubing was stretched and soaked by a heart surgeon and fashioned into a heart catheter. When the catheter was placed in the plaintiff's aorta, it kinked and could not be withdrawn safely from her blood vessel; instead, the catheter had to be removed surgically. Although the tube manufacturer conceded it was aware its tubing was being used by doctors to fashion heart catheters, it did not suggest such use to its hospital customers and in fact had a policy "that the use to which the tubing was put was a matter to be determined by the user." (Putensen, supra, 12 Cal.App.3d at p. 1071, 91 Cal.Rptr. 319.)

The plaintiff in Putensen sued the tubing manufacturer and alleged, among other theories, the manufacturer was negligent in failing to warn its customers the tubing was subject to kinking. In support of her theory, the plaintiff produced testimony from an engineer who found the tubing was subject to kinking especially if it had been heated or soaked. In finding the plaintiff had produced enough evidence to withstand a nonsuit on her negligence cause of action against the tube manufacturer, the court in Putensen stated: "[A]t the very least, it was a question for the jury whether a reasonable test or inspection would have disclosed that the subject tubing had a propensity to 'kink.' If it found that such a reasonable inspection would have disclosed this propensity, the jury could decide that [the manufacturer] violated its duty to produce a product reasonably safe for its intended use either on the basis that it could have corrected this deficiency but failed to do so, or, on the basis that if the deficiency was not susceptible of correction, [the manufacturer] failed to warn of the dangerous propensity.

"We here point out that the fact that [the plaintiff's surgeon] may have been under a duty to plaintiff to make inspection of the tubing would not relieve [the manufacturer] from liability for negligence arising from its duty as a manufacturer. [Citations.] We also point out that whether [the plaintiff's surgeon] was using the tubing for the purpose intended was likewise a question for the jury as was the question whether the changes effected by him in the condition of tubing was a proximate cause of the injury to plaintiff rather than any breach of duty on the part of [the manufacturer.] [Citation.]" (Putensen, supra, 12 Cal.App.3d at pp. 1078-1079, 91 Cal.Rptr. 319.)

The duty of a manufacturer to warn about the potential hazards of its product, even when that product is only a component of an item manufactured or assembled by a third party, has been recognized in other contexts as well. In Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444, 196 Cal.Rptr. 52, the issue was the potential liability of the supplier of flammable lantern fuel, purchased in bulk and repackaged by an intermediate supplier. The Court of Appeal found no liability on the part of the fuel supplier but only because it had provided adequate warning of the flammability of the product to the intermediate supplier. In doing so the court expressly recognized that the lack of such a warning could result in liability even though the fuel supplier was not responsible for the form of the ultimate package sold to the consumer: "[The supplier's] responsibility must be absolved at such time as it provides adequate warnings to the distributor who subsequently packages, labels and markets the product." (Id. at p. 449, 196 Cal.Rptr. 52.) In Stuckey v. Northern Propane Gas Co. (11th Cir.1989) 874 F.2d 1563, 1568, the court, relying on knowledge of the ultimate consumer's use, found that a propane gas supplier had a duty to warn that the odorant in its gas was subject to fading. Similarly, in Andrulonis v. U.S. (2d Cir.1991) 924 F.2d 1210, the court held the government liable to a vaccine researcher who contracted rabies after being exposed to a sample of the virus which was supplied by the government. The researcher's employer, with the...