Friedman v. Merck & Co.

• Citation: 107 Cal.App.4th 454,131 Cal.Rptr.2d 885
• Decision Date: 26 March 2003
• Docket Number: No. B155272.,B155272.
• Court: California Court of Appeals
• Parties: Jerold Daniel FRIEDMAN, Plaintiff and Appellant, v. MERCK & CO., Inc. et al. Defendants and Respondents.

131 Cal.Rptr.2d 885

107 Cal.App.4th 454

Jerold Daniel FRIEDMAN, Plaintiff and Appellant, v. MERCK & CO., Inc. et al. Defendants and Respondents.

No. B155272.

Court of Appeal, Second District, Division 5.

March 26, 2003.

Review Denied June 11, 2003.^*

Certiorari Denied May 19, 2003. See 123 S.Ct. 2078.

[131 Cal.Rptr.2d 888]

[107 Cal.App.4th 460]

Myer Law Firm and Scott D. Myer, Los Angeles, for Plaintiff and Appellant.

Drinker Biddle & Reath, Charles F. Preuss, Alan J. Lazarus, San Francisco, and Jonathan M. Rolbin for Defendants and Respondents.

[107 Cal.App.4th 461]

TURNER, P.J.

I. INTRODUCTION

Plaintiff, Jerold Daniel Friedman, appeals from a judgment, following the sustaining of demurrers without leave to amend, in favor of defendants, Merck & Co., Inc., Merck Ventures, Inc., Astra Merck, Inc., and Merck Hamilton, Inc. Plaintiff, a strict ethical vegan, alleged he suffered serious emotional, and subsequent physical, injuries when he discovered a tuberculosis (TB) test he had submitted to contained animal products. He further alleged defendants, the distributors of the TB test, negligently misrepresented, upon inquiry, that the test did not contain animal products and was "Vegan `safe'" and "Vegan `friendly.'" We conclude plaintiff has not stated a cause of action for: negligence; negligent infliction of emotional distress; or negligent misrepresentation. Accordingly, we affirm the judgment.

II. BACKGROUND

A. The Second and Third Amended Complaints' Allegations

Plaintiff alleged: he is a strict ethical vegan; he fervently believes it is immoral and unethical to kill or exploit animals for any purpose; and "[h]e lives each aspect of his life" accordingly. He applied for a position with Southern California Permanente Medical Group. He was required, as a condition of the offered employment, to undergo a TB test. Plaintiff spoke with an employee of Southern California Permanente Medical Group. Plaintiff said that he was an ethical vegan who could not submit to the test if it resulted from the use of animal products or testing. An employee of Southern California Permanente Medical Group then in turn inquired of defendants as to whether there were animal products in the TB test. Defendants in turn advised the Southern California Permanente Medical Group employee that the TB test was "Vegan `safe'" and "Vegan `friendly.'" The Southern California Permanente Medical Group employee then repeated defendants' representations to plaintiff.

In his negligence cause of action, plaintiff asserted defendants negligently advised the Southern California Permanente Medical Group employee the TB test was "Vegan `safe'" and "Vegan `friendly.'" In fact, the TB test contained animal products. Plaintiff alleged: defendants should have known the TB test was not "Vegan 'safe'" and "Vegan `friendly'"; he submitted to the TB test in reliance on defendants' assurances; and he subsequently learned the TB test involved injecting him with bovine (cow) serum. As a result, it was alleged, "[Plaintiff sustained] injuries, including, but not limited to, injuries to his body, physical health, strength and activity and shock and injuries to his nervous system, and has also suffered and continues to suffer severe physical and mental pain and anguish in connection therewith, all of which have caused and continue to cause [him] great mental, physical, spiritual, emotional and nervous pain and suffering."

In his negligent infliction of emotional distress cause of action, plaintiff alleged: "Defendants breached their duties . . . to provide him with a screening test that only had the ingredients represented by the [defendants and . . . to advise [him, his employer, or his doctors] with a correct listing of the ingredients of same. The list of ingredients that the [defendants . . . provided . . ., knowing the list would be passed along . . . to the [p]laintiff and other [v]egans, was incorrect and incomplete." Plaintiff further alleged defendants knew or should have known their conduct would cause him to suffer extreme emotional distress. Plaintiff alleged, "As a proximate result of [defendants' negligent conduct, [p]laintiff suffered and will continue to suffer extreme humiliation, embarrassment, mental anguish and emotional distress in an amount according to proof."

B. The Ruling On The Demurrer

The trial court found defendants owed no duty to plaintiff. Accordingly, it sustained defendants' demurrers to both the negligence and negligent infliction of emotional distress causes of action. The trial court sustained without leave to amend defendants' demurrers to the sixth cause of action of the second amended complaint for negligence and the ninth cause of action of the third amended complaint for negligent infliction of emotional distress. The trial court entered a judgment in defendants' favor.

C. Other Defendants

There were two defendants named in the amended complaints who are not mentioned in the foregoing facts. One defendant, Aventis Pasteur Inc., has settled with plaintiff. As to the remaining defendant, Southern California Permanente Medical Group, we affirmed the demurrer dismissal of plaintiffs Fair Employment and Housing Act cause of action in Friedman v. Southern Cal. Permanente Medical Group (2002) 102 Cal.App.4th 39, 43, 69-70, 125 Cal.Rptr.2d 663.

III. DISCUSSION

A. Standard of Review

Our Supreme Court has set forth the standard of review we must apply as follows: "On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed `if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967, 9 Cal.Rptr.2d 92, 831 P.2d 317; accord, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, 119 Cal. Rptr.2d 709, 45 P.3d 1171.)

B. Duty

Plaintiff contends he has stated causes of action for negligence and negligent infliction of emotional distress. The elements of a cause of action for negligence are: duty; breach of duty; legal cause; and damages. (Paz v. State of California (2000) 22 Cal.4th 550, 559, 93 Cal.Rptr.2d 703, 994 P.2d 975; Sharon P. v. Annan, Ltd. (1999) 21 Cal.4th 1181, 1188, 91 Cal.Rptr.2d 35, 989 P.2d 121, disapproved on another point in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19, 107 Cal.Rptr.2d 841, 24 P.3d 493; Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614, 76 Cal.Rptr.2d 479, 957 P.2d 1313.) The existence of a duty is the threshold element of a negligence cause of action. (Paz v. State of California, supra, 22 Cal.4th at p. 559, 93 Cal. Rptr.2d 703, 994 P.2d 975; Artiglio v. Corning Inc., supra, 18 Cal.4th at p. 614, 76 Cal.Rptr.2d 479, 957 P.2d 1313.) The Supreme Court has held, "`"The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.]"'" (Paz v. State of California, supra, 22 Cal.4th at p. 559, 93 Cal.Rptr.2d 703, 994 P.2d 975; see Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co. (2002) 27 Cal.4th 705, 715, 117 Cal.Rptr.2d 541, 41 P.3d 548.)

Duty is also an element of a negligent emotional distress infliction cause of action. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588, 257 Cal.Rptr. 98, 770 P.2d 278.) The cause of action is not, in general, well-defined. However, it is well-settled that negligent emotional distress infliction is not an independent tort; rather it is the tort of negligence to which the duty element applies. (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1072, 9 Cal.Rptr.2d 615, 831 P.2d 1197; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 588, 257 Cal.Rptr. 98, 770 P.2d 278.) Moreover, as the Supreme Court has held, "[T]here is no duty to avoid negligently causing emotional distress to another." (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984, 25 Cal.Rptr.2d 550, 863 P.2d 795, italics added; Boyles v. Kerr (Tex.1993) 855 S.W.2d 593, 594.) As the Supreme Court explained in Potter, "[D]amages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff." (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 984, 25 Cal.Rptr.2d 550, 863 P.2d 795, italics added.) The independent duty may be imposed by law, assumed by the defendant, or exist by virtue of a special relationship between the parties. (Id. at pp. 984-985, 25 Cal.Rptr.2d 550, 863 P.2d 795; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 590, 257 Cal.Rptr. 98, 770 P.2d 278; see Flahavan, et al, Cal. Practice Guide: Personal Injury (The Rutter Group 2002) Evaluation of Damages, ¶ 3:217.) Plaintiff does not contend a duty arose because of any special relationship between the parties. Therefore, we turn to the questions of whether defendants breached a duty imposed by law or assumed by them.

Whether a duty exists is a question of law. (Sharon P. v. Arman, Ltd., supra, 21 Cal.4th at p. 1188, 91 Cal.Rptr.2d 35, 989 P.2d 121; Parsons v. Crown Disposal Co....