Clark v. Baxter Healthcare Corp.
| Decision Date | 26 September 2000 |
| Docket Number | No. D034549.,D034549. |
| Court | California Court of Appeals Court of Appeals |
| Parties | Kirsten CLARK, Plaintiff and Appellant, v. BAXTER HEALTHCARE CORPORATION et al., Defendants and Respondents. |
Wilson, Petty, Kosmo & Turner, Regina A. Petty, Frederick W. Kosmo, Jr., Theresa 0. Stevenson, San Diego; Kelley Drye & Warren, John Dames and Stephen A. Wood, Chicago, IL, for Defendant and Respondent Johnson & Johnson Medical.
Seyfarth, Shaw, Fairweather & Geraldson, Robert M. Mitchell and Lawrence E. Butler, san Francisco, for Defendant and Respondent Baxter Healthcare Corporation.
Wingert, Grebing, Anello & Brubaker, Alan K. Brubaker, San Diego; Haight, Brown & Bonesteel, Mario Horwitz, Santa Monica; Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross, Barry M. Epstein, Beth S. Rose and Stuart M. Feinblatt, Newark, NJ, for Defendants and Respondents Becton, Dickinson and Company and Maxxim Medical, Inc.
Prindle, Decker & Amaro, Kenneth B. Prindle, Monte H. Machit, Long Beach, and Grace C. Mori, Pasadena, for Defendant and Respondent General Medical Corporation.
Waters, McClusky & Boehle and Kevin G. McCluskey, Santa Monica, for Defendant and Respondent Professional Hospital Supply.
Ropers, Majeski, Kohn & Bentley and Robert S. Luft, San Jose, for Defendant and Respondent Kendall Co.
Sarrail, Lynch & Hall, James A. Sarrail, Michael J. Ruggles, San Francisco; Segal, McCambridge, Singer & Mahoney, Chicago, IL, Jeffrey Singer and Robert E. O'Malley, Washington, Dist. of Columbia, for Defendant and Respondent Safeskin Corporation.
Jedeikin, Meadows & Schneider, Joseph Jedeikin, Curtis Ogilvie, Steven Spaulding, San Francisco; LeClair Ryan and William W. Belt, Jr., Richmond, VA, for Defendants and Respondents Owens & Minor, Inc., and Stuart Medical, Inc.
In this products liability action, plaintiff Kirsten Clark appeals a summary judgment in favor of four manufacturer/distributor defendants who produced and supplied latex gloves that she used in the course of her employment as a nurse, and that caused her to experience allergic reactions. The moving defendants were Baxter Healthcare Corporation and Becton, Dickinson & Company, joined by Johnson & Johnson Medical and General Medical Corporation (collectively Defendants). The trial court handling this coordinated litigation heard this motion dealing with the facts relating to Clark, individually, and determined her complaint was not filed within the one-year limitation period governing claims for personal injury. (Code Civ. Proa, § 340, subd. (3).)1
Based on the limitations analyses set forth in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111, 245 Cal.Rptr. 658, 751 P.2d 923 (Jolly) and Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 87 Cal. Rptr.2d 453, 981 P.2d 79 (Norgart), we determine that triable material issues of fact exist as to whether Clark's complaint was timely filed, based on the nature of the allergic reactions she suffered from exposure to the substance of latex in the form of gloves, and whether this constituted the required facts and circumstances to put her on inquiry notice of a potential manufacturing or design defect (or an actionable failure to warn or negligence), that existed in gloves manufactured from that substance. Accordingly, we reverse the summary judgment entered in favor of Defendants and remand for further proceedings.
Clark graduated from nursing school in 1986 and began working in the health care field at that time. She began working at Scripps Memorial Hospital in 1990 in the intensive care units. She used multiple pairs of powdered latex gloves from that time until approximately October 1993. At the beginning of 1992, she began suffering from intermittent rashes on her hands, and also was having trouble breathing and keeping up with the workload. She told two doctors in April and May 1992 (one a dermatologist) that she had been suffering from an itchy rash on her hands and legs and had sensitive skin, and thought these problems might have been caused by the gloves she used at work.
In the fall of 1993, her hands were cracked and bleeding at work, and she was suffering from itching and sneezing when she used latex gloves. She learned that there were different types of gloves, including nonlatex gloves, available at the workplace and told her supervisor that she thought she was allergic to latex gloves and could not wear them. Her supervisor, Ms. Steckel, provided several types of alternative gloves (vinyl, hypoallergenic latex), which Clark began to use around October 1993. At that time, the intensive care unit was also investigating the possibility that various soaps or lotions were causing rashes on staff persons' hands. On occasion, Clark would run out of vinyl gloves and would return to using latex gloves, which caused her adverse effects (itching, affecting her concentration, making her miserable).
By January 1994, Clark consulted an allergist, who told her not to use latex gloves as she might be allergic to them. It was recommended to Clark that she have a latex glove skin patch test for allergies, but she declined, because she was already suspicious of the gloves and knew she would have an unpleasant adverse reaction to the test.
In May 1995, Clark was undergoing a gynecological exam by her doctor, who was using latex gloves, when she suffered an anaphylactic attack (acute allergic reaction). At that time, Clark believed that even though she could not wear latex gloves, it would not be harmful to her to let other persons wearing the gloves touch her. After this incident, she joined a support and task force group which studied latex allergies, ELASTIC (East Coast Latex Allergy Support Group and Task Force for Information and Coalition) and received a flier regarding latex allergies litigation. At the end of 1995, she received an article entitled Patients, Health-Care Workers, and Latex Allergy, by Christine D. Personius, a degreed medical technician. In Clark's declaration in her opposition to summary judgment, she attaches this article and claims it was her first notice that anyone had committed any wrongdoing with respect to latex gloves (i.e., improper or defective manufacture).
Clark filed her complaint on January 23, 1996, and amended it April 23, 1996. She alleged four causes of action, all claiming Defendants had manufactured a defective product: Fraudulent concealment, strict liability (manufacturing/design defect, or failure to warn), and negligence. In paragraph 27, the operative allegation, Clark alleged that as a result of being continuously exposed to latex gloves with or without added chemical substances that were toxic in nature, she developed "severe illnesses and injuries to the skin, including but not limited to skin discoloration, soreness, rashes, respiratory and/or other related diseases, disorders and reactions caused by extended exposure to the chemical substances contained in Defendants' ... product." A large number of latex glove manufacturers were named as defendants.
These Defendants answered and moved for summary judgment on the grounds Clark's complaint was barred by the one-year statute of limitations governing personal injury claims. (§ 340, subd. (3); 437c.) They supplied a separate statement outlining the sequence of events and presented an argument that Clark's action was barred because more than one year before the lawsuit was filed, she was aware of her injuries, attributed those injuries to latex gloves, and suspected or should have suspected that there was something wrong with the gloves. Defendants argued that Clark could not avoid application of the limitations period by arguing she experienced additional allergic symptoms and received additional medical care after her initial allergic experiences.
In opposing the Defendants' motion, Clark argued that despite the allergic symptoms that she had experienced prior to May 1995, those symptoms 4never put her on notice that anyone had committed any wrongdoing in relation to her use of and exposure to latex gloves. According to her declaration, she continued to believe through 1995 the gloves were safe because they were used in surgical procedures (placed inside patients' bodies), and she did not know until shortly after she joined the support group ELASTIC that her allergies might be the result of anyone's wrongdoing, e.g., attributable to certain problems in the manufacturing process for latex gloves.
After Defendants filed reply papers, the trial court issued a tentative ruling granting the motion and heard oral argument. On August 18, 1999, the trial court granted Defendants' motion for summary judgment. Clark filed a timely notice of appeal.2
For a statement of the applicable standard of review, we turn to Saldana v. Globe-Weis Systems Co. (1991) 233 Cal. App.3d 1505, page 1515, 285 Cal.Rptr. 385: "In reviewing an order on a summary judgment, the reviewing court employs the same process as the trial court in determining whether, as a matter of law, summary judgment was appropriate." A court identifies the issues framed by the pleadings, determines whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in the moving party's favor, and if the summary judgment motion is meritorious on its face, the court will look to whether the opposition demonstrates there are triable, material factual...
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