Fogo v. Cutter Laboratories, Inc.

CourtCalifornia Court of Appeals
Writing for the CourtSIMS, Acting P.J., and ELKINGTON
Citation137 Cal.Rptr. 417,68 Cal.App.3d 744
Parties, 21 UCC Rep.Serv. 986 Orpha Mae FOGO et al., Plaintiffs and Appellants, v. CUTTER LABORATORIES, INC., Defendant and Respondent. Civ. 37418.
Decision Date31 March 1977
Robert U. Bokelman, Cartwright, Saroyan, Martin & Sucherman, Inc., San Francisco, for plaintiffs-appellants

O'Connor, Cohn, Dillon & Barr, San Francisco, James L. English, San Francisco, of counsel, for defendant-respondent.

[68 Cal.App.3d 748] WEINBERGER, * Associate Justice.

This is an appeal from a judgment in a wrongful death action, entered upon a jury verdict in favor of respondent, Cutter Laboratories, Inc. and from an order denying appellants' motion for a new trial. Plaintiffs and appellants are the surviving widow and adult children of James D. Fogo who died from viral hepatitis a little over two months after having been injected with a plasma product known as Konyne, developed and introduced by Cutter Laboratories, Inc. in 1969.

James Fogo had suffered throughout his life from a mild form of hemophilia as the result of which he experienced more bleeding episodes from lacerations and trauma than would normal persons. Although the condition was not life-threatening he had a history of bleeding following tooth extractions, when the sockets would ooze some blood for periods as long as two weeks.

The complaint filed in Alameda County against Cutter Laboratories alleged five causes of action, the first for negligence, the second for breach of an express warranty, the third for breach of an implied warranty of merchantability, the fourth for strict liability, and the fifth incorporating the prior four causes of action and alleging that because defendant acted maliciously and wilfully, plaintiffs should be awarded punitive damages. At the conclusion of the plaintiffs' case defendant moved for a nonsuit on the express warranty cause of action. The reporter's transcript records the court as stating, 'I will reserve my ruling in connection with it.' However, the minute order dated November 12, 1974, and the record for the same day, indicate that the motion was granted. The case went to the jury on November 14, 1974, and the court instructed the jury on negligence, but refused plaintiffs' instructions on express warranty, on strict liability, and a proposed instruction regarding liability of a manufacturer when an intervening act of the physician is reasonably foreseeable.

Before discussing the issues raised by appellants' appeal from the judgment entered against them upon the jury's verdict disposition shall be made of the purported appeal from the trial court's order denying appellants' motion for a new trial. The complete answer is contained in 6 Witkin, California Procedure (2d ed. 1971) Appeal, section 71, pages 4084--4085, as follows: 'Since the 1915 amendment to former C.C.P. 963 [68 Cal.App.3d 749] an order denying a new trial has been nonappealable. 'The purpose of the legislature evidently was to obviate the delays incident to the prosecution of two separate appeals in a single action in so far as proceedings for new trial are concerned, and to provide that such proceedings should be reviewable upon the appeal taken from the judgment.' (Hughes v. De Mund (1924) 195 C(al.) 242, 247, 233 P. 94; see also Confar v. Whelan (1935) 8 C(al.)A(pp.)2d 101, 104, 46 P.2d 991; Marr v. So. Calif. Gas Co. (1924) 194 C(al.) 332, 336, 228 P. 534; Hamasaki v. Flotho (1952) 39 C(al.) 2d 602, 608, 248 P.2d 910; Rodriguez v. Barnett (1959) 52 C(al.)2d 154, 156, 338 P.2d 907 ('The appeal was dismissed from the bench with an admonition from the Chief Justice to counsel and to members of the bar generally to cease appealing from such an obviously nonappealable order').)'

In conformity with well established and reasonable appellate procedure we dismiss the purported appeal from the order denying the motion for a new trial and go on to a discussion of the appellants' contentions on their appeal from the judgment.


Prior to September 8, 1971, James D. Fogo was sent to the University of Kansas Hospital at Kansas City, Kansas, where his condition was diagnosed. Dr. Larsen, a

hematologist with that facility, recommended to Dr. Schlotterback, the treating general practitioner in Mankato, Kansas, 'that if surgery were contemplated then therapy with fresh frozen plasma or the new Factor IX Konyne could be used.' 1

On September 8, 1971, Dr. Schlotterback administered Konyne to Mr. Fogo approximately one hour prior to an extraction of a tooth. The result was an increased efficiency of clotting, and Mr. Fogo stopped bleeding within two hours after the extraction. However, on November 4, 1971, the patient returned to Dr. Schlotterback's office complaining of a fever, a rash, headaches, a cough, and general aching all over. Dr. Schlotterback diagnosed his condition as an unknown flu symptom and suggested rest.

[68 Cal.App.3d 750] Mr. Fogo returned the following evening and advised that his urine was darker than normal. Dr. Schlotterback took a urine specimen, noted that it had bile, and admitted the decedent to the Jewell County Hospital with a provisional diagnosis of probable serum hepatitis. As the facilities there were inadequate, Fogo was transferred to St. Joseph's Hospital in Concordia, Kansas on November 8, 1971. There he died on November 14, 1971, from viral hepatitis.

At the trial Dr. Milton Mozen, a PhD in biochemistry employed by Cutter Laboratories as director of chemical and biological research, testified that Konyne is a Factor IX concentrate developed by Cutter through use of a fractionation process wherein this particular coagulation factor is removed from plasma extracted from the pooled blood obtained from thousands of donors. Because there is an insufficient number of volunteer donors, Cutter Laboratories is required to use plasma from paid donors, and operates plasmapheresis centers located throughout the United States where plasma from paid donors is collected.

The hepatitis virus is undetectable. Dr. Mozen testified that while some plasma products can be made in processes which allow for the destruction of the hepatitis virus, those processes cannot be conducted in the production of Konyne because it would lose its coagulation activity. Cutter Laboratories' witnesses acknowledged that the risk of hepatitis is higher in commercial than in volunteer plasma, and it is also higher where plasma is pooled. Because of the hepatitis risk, warnings appear on the box and in the package insert and on the label of Konyne, which is obtainable only on doctor's prescription.


We consider first the question of whether the doctrine of strict products liability is applicable in the instant case. Specifically, appellants appeal from the trial court's refusal to instruct the jury on strict liability, which refusal was based upon Health and Safety Code section 1606 as interpreted in Shepard v. Alexian Brothers Hosp. (1973) 33 Cal.App.3d 606, 109 Cal.Rptr. 132. In that case a patient sought to recover damages on a strict liability theory for hepatitis contracted from a blood transfusion administered by the defendant hospital. The court held that Health and Safety Code section 1606 2 precluded the imposition of strict liability. This section was adopted by the Legislature in 1963, having previously been Health and Safety Code section 1623, adopted in the year 1955. It now appears in article 2 of chapter 4 of the Health and Safety Code, under the title 'Human Whole Blood and Human Whole Blood Derivatives.' Several of the sections within article 2 specifically refer to blood banks, while others, such as section 1606, use broader terms.

In Shepard the court noted that California has two tests for strict liability, the test from the Restatement Second of Torts, and the test stated in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897. The Restatement imposes strict liability for physical harm resulting when one 'sells any product in a defective condition unreasonably dangerous to the user or consumer. . . .' (Rest.2d Torts, § 402A.) Greenman states that '(a) manufacturer is strictly liable in tort when an article he places on the market, knowing it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.' (59 Cal.2d at p. 62, 27 Cal.Rptr. at p. 700, 377 P.2d at p. 900.) The Shepard court noted further that there was a common denominator, 'the requirement of a Defective product which, when placed in the stream of commerce, causes injury.' (33 Cal.App.3d at p. 609, 109 Cal.Rptr. at p. 133.) Accordingly, 'the question to be decided here is not simply whether human blood is or can be designated as a product . . .. Rather, . . . the precise issue is whether or not the Blood transfusion, the alleged cause of appellant's injury, constitutes a cause of action under the doctrine of strict liability, either because it qualifies as a product and/or a sale.' (33 Cal.App.3d at p. 609, 109 Cal.Rptr. at p. 133.) In answering this question, the court stated, 'The California Legislature, by statutory enactment, has expressed its intent and declared a clear legal policy that the transfusion of blood and blood product into the human body shall be construed for All purposes to be the rendition of a service and not a sale.' (33 Cal.App.3d at p. 609, 109 Cal.Rptr. at p. 133.) In summarizing the rationale behind section 1606, the Shepard court noted (at p. 610, 109 Cal. Rptr. 132) that Perlmutter v. Beth David Hospital (1954) 308 N.Y. 100, 123 N.E.2d 792, was the inspiration for enacting the predecessor of section 1606, and used the following language (at p. 611, 109 Cal.Rptr. at p. 134) to explain the rationale behind it: '(P)rofound justification exists for the Legislature to determine that a blood transfusion, provided in the course of...

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