Bockrath v. Aldrich Chemical Co., Inc.

• Decision Date: 21 May 1998
• Docket Number: No. B108555,B108555
• Parties: Previously published at 64 Cal.App.4th 1 64 Cal.App.4th 1, Prod.Liab.Rep. (CCH) P 15,261, 98 Cal. Daily Op. Serv. 3870, 98 Daily Journal D.A.R. 5337 Thomas A. BOCKRATH, Plaintiff and Appellant, v. ALDRICH CHEMICAL COMPANY, Inc., et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 774

74 Cal.Rptr.2d 774

Previously published at 64 Cal.App.4th 1

64 Cal.App.4th 1, Prod.Liab.Rep. (CCH) P 15,261,

98 Cal. Daily Op. Serv. 3870,

98 Daily Journal D.A.R. 5337

Thomas A. BOCKRATH, Plaintiff and Appellant, v. ALDRICH CHEMICAL COMPANY, Inc., et al., Defendants and Respondents.

No. B108555.

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

May 21, 1998.

Certified for Partial Publication ^*

Rehearing Denied June 15, 1998.

Review Granted Aug. 12, 1998.

Raphael Metzger, Long Beach, and James W. Parker, Orange, for Plaintiff and Appellant.

Hawkins, Schnabel, Lindahl & Beck, Laurence H. Schnabel and Laura E. Hogan; Mendes & Mount, James W. Hunt, Richard R. Nelson and Marilyn M. Gates, Los Angeles; Brownwood, Rice & Zurawski and Robert S. Rucci, San Diego; Belofsky & Jenkins and Charles W. Jenkins, Torrance; Baker & Hostetler, Richard A. Deeb and Cranston J. Williams; Lewis, D'Amato, Brisbois & Bisgaard, Steven R. Lewis and Judith A. Zipkin; Stall, Astor & Goldstein and Donald W. Goldstein, Los Angeles; Nelson & Teuber and Rolf F. Teuber, Mission Hills; Feldman & Shaffery, John Shaffery and Samuel L. Tolwin, Los Angeles; Kirtland & Packard, Jeffrey M. Anielski and Paul R. Cotter, Irvine; Sedgwick, Detert, Moran & Arnold, Rebecca R. Weinreich, Los Angeles, Kirk C. Jenkins, San Francisco, and Lily Chow, Irvine; Anderson, McPharlin & Conners and Thomas Casamassima; Booth, Mitchel & Strange and Kevin Callahan, Los Angeles; Kolts & Nawa and Raymond G. Kolts, Pasadena; Musick, Peeler & Garrett and Paul Hesse, Los Angeles; Prindle, Decker & Amaro, Andy J. Goetz and Kristen Dunn, Long Beach; Dickson, Carlson & Campillo, Mark S. Geraghty and Hall R. Marston; O'Neill, Lysaght & Sun and J. Joseph Connolly, Santa Monica; Bonne, Bridges, Mueller, O'Keefe & Nichols, Alexander B.T. Cobb and Mark B. Connely; Federman, Gridley & Gradwohl and Bruce Gridley, Los Angeles; Jeffrey S. Pop and Richard S. MacNaughton, Beverly Hills; Thomas, Mort, Prosser & Knudsen, Deborah C. Prosser, Riverside, and Peter A. Schneider, Orange; Perkins Coie, Ronald A. McIntire and Mark J. Goldzweig, Los Angeles; Steptoe & Johnson, Laurence F. Janssen, Washington, DC, Kevin C. Mayer, San Francisco, and Richard Willard; Parker, Milliken, Clark, O'Hara & Samuelian, Asteghik K. Brock and Stephen T. Holzer, Los Angeles, for Defendants and Respondents.

TURNER, Presiding Justice.

I. INTRODUCTION

In this case, we confront a scenario where plaintiff, Thomas A. Bockrath, suffering from cancer, has sued 55 defendants ¹ which manufactured 222 products which he was exposed to in the workplace over a 21-year time period. He alleged in his second amended complaint that he was often unaware of the identity of the products when he was exposed to them. He expressly alleged in his second amended complaint he was not seeking to recover from any defendant on an alternative liability theory as articulated in Summers v. Tice (1948) 33 Cal.2d 80, 86, 199 P.2d 1 or under a market share analysis as set forth in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 597, 163 Cal.Rptr. 132, 607 P.2d 924. In a judicially noticed interrogatory answer, he admitted he was unable to identify the chemicals that caused his illness. Under the totality of these circumstances, we conclude the trial judge properly sustained the demurrer to the second amended complaint containing seven tort causes of action without leave to amend on causation grounds.

II. BACKGROUND

The original complaint, which was filed on March 9, 1995, named over 50 defendants who manufactured or supplied products which were used by plaintiff's employer Hughes Aircraft Company ("Hughes"). The original complaint alleged that, during the course of his employment from January 1973 to March 1994, he was injured by these products which caused or contributed to his condition of multiple myeloma, a rare form of cancer. The initial 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). On June 22, 1995, the trial court sustained defendants' demurrers to the complaint filed March 9, 1995, and granted plaintiff 60 days leave to amend.

On August 18, 1995, plaintiff filed a first amended complaint. Plaintiff attached as exhibit "A" to the amended complaint a list of defendants and identified their products which he alleged had caused or contributed to his injury. The trial court sustained defendants' demurrers to the first amended complaint with 60 days leave to amend. In ruling on the matter, the trial court stated: "... This complaint is extremely vague, very broad and very global. You have to be very specific as to each defendant and as to each chemical and causation issue. It is not here. It is a global claim. Everybody is responsible for your client's medical problem, but we don't know which defendant and we don't know which chemical it is. We have no idea in terms of causation." The court further explained: "The problem is the entire complaint is based on conclusion. No factual basis right now period. A lot of comments that have been raised here in terms of specific products. [p] As I said, you can't globally bring everybody into a lawsuit. You are going to have to specifically prove that each specific product caused your client's problem." In response to plaintiff's contention the matter would be addressed at trial, the court explained: "You have to do it way before trial. That is why we have the case management discussions here, because we have to define what the case is all about. We have to define who the proper parties are, if there are proper parties. That is what we are doing." ²

On January 9, 1996, plaintiff filed the second amended complaint which is the operative pleading. The second amended complaint's factual allegations as well as judicially noticed material must be assumed to be true. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58; Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.) In support of the allegations defendants' products injured him, plaintiff incorporated exhibit "A" in the first amended complaint into the second amended complaint as paragraph 67. Paragraph 67 of the second amended complaint was labeled as "Product Identification." The list named 51 defendants and identified at least 222 products which were used by Hughes during plaintiff's employment. Plaintiff further alleged that, "Plaintiff was exposed to numerous chemicals and chemical products, some of which have been identified and others which have not yet been identified."

The second amended complaint contained the additional allegations during his employment he personally used "most, and perhaps all, of the products" or was in close proximity to co-workers who used them. He claimed he was exposed to the products through direct and environmental inhalation. Alternatively, it was alleged that the injury was caused by direct or environmental dermal exposure. However, paragraph 68 alleged plaintiff "was often unaware of the identity of the chemicals and chemical products." (Emphasis added.)

With respect to the toxicity of the products, plaintiff 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). [p] ... The toxicity of Defendants' chemical products is, in part, related to and dependent upon their chemical nature and function. Defendants' chemical products are generally of the following types or functions, which are relevant to their toxicity...." In addition to alleging the 222 products were toxic, plaintiff alleged "most cause multiple toxic effects on the human body." Without identifying any specific product or its toxicity, plaintiff continued: "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 chemicals and chemical ingredients potentiate, initiate, promote, and exacerbate the toxic effects of others, and have additive and synergistic toxic effects." Without any specificity as to identity of a defendant, a product, or connection with his injury, plaintiff alleged the 222 products were carcinogenic.

Plaintiff alleged he either inhaled or came into contact with the products which were absorbed into his bloodstream and were circulated into his internal organs. It was alleged that: "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 the understanding of Plaintiff. [p] ... Upon being so metabolized, residual unreacted product, toxic metabolites, free radicals and other chemicals resulting from metabolic processes migrated to the bone marrow, where such products, byproducts, and toxic metabolites caused hemotoxic, hematotoxic, 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...