G. D. Searle & Co. v. Superior Court

Decision Date10 June 1975
Citation122 Cal.Rptr. 218,49 Cal.App.3d 22
CourtCalifornia Court of Appeals Court of Appeals
PartiesG. D. SEARLE & COMPANY, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF SACRAMENTO, Respondent; Sandra Kay SEATON, Real Party in Interest. Civ. 14999.

McCutchen, Black, Verleger & Shea, Winchester, Cooley, III, David P. Peterson, William P. Hight, by William P. Hight, Los Angeles, for petitioner.

Fitzwilliam, Memering, Stumbos & DeMers by Douglas H. Drake, and John R. Weber, Sacramento, for real party in interest.

FRIEDMAN, Associate Justice.

This is one of the exceptional cases justifying a mandamus action to review a ruling on demurrer. (Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379.)

Petitioner G. D. Searle & Company (Searle), a pharmaceutical manufacturer, is a defendant in a superior court action brought by Sandra Kay Seaton (plaintiff). Plaintiff sues Searle together with Ortho Pharmaceutical Corporation (Ortho) and a doctor, alleging pathological effects caused by oral contraceptives manufactured and sold by the two drug firms. The amended complaint is drawn in three counts. The first count is framed on a theory which appears to combine elements of strict liability, fraud and failure to warn; it contains allegations designed to justify general and exemplary damages. The second count, sounding in negligence, supplies an alternative basis for the general damage claim. The third count is aimed at the doctor, not at the pharmaceutical firms, and is not involved here.

Searle filed a general and special demurrer aimed at (a) sufficiency of the exemplary damage allegations and (b) at absence of allegations to satisfy the statute of limitations. The trial court overruled the demurrer and Searles sought review here. The amended complaint is defective in both respects raised by the demurrer. The trial court erred in overruling the demurrer and we shall issue a writ of mandate directing it to vacate its order and to enter an order sustaining the demurrer but granting plaintiff leave to amend her complaint. We consider the statute of limitations question first.

I

Plaintiff alleges that she purchased and used products manufactured by Searle and Ortho between April 1, 1962 and July 18, 1968, as a result of which she suffered physical and emotional trauma, some of which she specifically describes. Her lawsuit was filed on March 8, 1974, somewhat less than six years after her last use of these products.

Personal injury actions based upon products liability are governed by the one-year period of limitations prescribed by Code of Civil Procedure section 340, subdivision 3. (Warrington v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 564--566, 80 Cal.Rptr. 130; Howe v. Pioneer Mfg. Co. (1968) 262 Cal.App.2d 330--339, 68 Cal.Rptr. 617; Cotchett & Cartwright, California Products Liability Actions, § 8.02.) Generally, a personal injury claim accrues and the period of limitations commences when the wrongful act takes place. An exception is presented when the pathological effect occurs without perceptible trauma and the victim is 'blamelessly ignorant' of the cause of injury; in that case, the statute of limitations does not begin to run until the person knows or, by the exercise of reasonable diligence, should have discovered the cause of injury. (Coots v. Southern Pacific Co. (1958) 49 Cal.2d 805, 322 P.2d 460; Warrington v. Charles Pfizer & Co., supra, 274 Cal.App.2d at 567--571, 80 Cal.Rptr. 130; Anderson v. Southern Pacific Co. (1964) 231 Cal.App.2d 233, 240, 41 Cal.Rptr. 743; see Note, 4 A.L.R3d 821.) A plaintiff who relies on this exception must plead facts justifying delayed accrual; the complaint must allege (1) the time and manner of discovery and (2) the circumstances excusing delayed discovery. (Bradler v. Craig (1969) 274 Cal.App.2d 466, 471--472, 79 Cal.Rptr. 401; Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 227--228, 36 Cal.Rptr. 537; 3 Witkin California Procedure, Pleading, §§ 781, 782.)

By indirection, the present complaint sufficiently avers plaintiff's unawareness of the oral contraceptives' deleterious effect when she was using them. It fails to allege when she made the discovery, the circumstances of discovery and why, in the exercise of reasonable diligence, she could not have made the discovery sooner. By failing to bring plaintiff within the exception to the general rule, the complaint left her vulnerable to the general rule which fixes accrual of the cause of action at the time of the tortious act. On its face the complaint shows a claim which is barred by the one-year statute. (Weinstock v. Eissler, supra, 224 Cal.App.2d at p. 229, 79 Cal.Rptr. 401.) The trial court erred in overruling the general demurrer filed by Searle.

II

We turn to the exemplary damage issue. In California the award of damages by way of example or punishment is controlled by Civil Code section 3294, which authorizes that kind of award against a tortfeasor who has been guilty of 'oppression, fraud, or malice, express or implied.' A products liability action generated by the adverse physical effects of pharmaceuticals may furnish the occasion for the award, provided that the supplier's conduct satisfies the exemplary damage criterion of the particular jurisdiction. 1

The averments designed to support plaintiff's claim for exemplary damage appear in two portions of the complaint's first count. In paragraph XVI plaintiff alleges: 'At the time of plaintiff being prescribed, sold and using the products of the defendants (Searle and Ortho), the product was defective as a result of defendants' failure to give directions and warning as to the use of the product to prevent it from being dangerous and unsafe for its intended purpose in that such products could cause blood clotting and the type of injury which plaintiff in fact sustained and which is subsequently set forth herein.'

After averments of plaintiff's physical injuries (including thrombophlebitis and multiple pulmonary emboli) and of causation, paragraph XX declares: 'Plaintiff is informed and believes and upon such information and belief alleges that defendants (Searle and Ortho) knew that the products, of the type to which the defective products belong, were defective in the manner in which alleged in Paragraph XVI; that defendants . . . willfully and knowingly placed them on the market and knew that they would be sold to, prescribed and used by members of the general public without knowledge of the hazards attendant thereto by the purchasers and users; that defendants . . . knew and implicitly represented by the defective products' presence on the market that they could safely do the jobs for which they were developed; and that defendants . . . wrongfully, knowingly, and willfully acted in complete disregard of plaintiff's implicit reliance upon defendants' implicit representations of safety and for which plaintiff seeks punitive damages in the amount of $2,000,000.00.'

These opaque, unstable and compound averments evade reduction to exactitude. Seemingly, they are designed to charge that the two pharmaceutical firms refrained from publishing warnings of their products' potential for physical damage despite their awareness of danger in products of this 'type' and their awareness that users would regard the absence of warnings as an implicit assurance of the products' safety. Completely lacking is any allegation that the manufacturers knew that their implied assurances of safety were false. Indeed, the complaint alleges--contrary to the pleader's supposed objective--that the manufacturers knew that their products could 'safely do the jobs.' Quite aside from the egregious uncertainty of these allegations, we have concluded that they fail to plead a claim for exemplary damage.

Oppression, for the purpose of the exemplary damage statute, has been defined as cruel and unjust hardship. (Richardson v. Employers Liab. Assur. Corp. (1972) 25 Cal.App.3d 232, 246, 102 Cal.Rptr. 547; Roth v. Shell Oil Co. (1960) 185 Cal.App.2d 676, 681--682, 8 Cal.Rptr. 514.) Plaintiff doesn't contend that her allegations amount to a charge of oppression. In the trial court she argued that fraud was the gravamen of her punitive award claim. Indeed, in its mandate petition to this court, Searle sought to demonstrate the complaint's inadequacy as a fraud pleading. In this court plaintiff has shifted position, contending that the complaint sufficiently pleads malice as a basis for the award.

Plaintiff relies heavily upon Toole v. Richardson-Merrell Inc., supra, 251 Cal.App.2d 689, 60 Cal.Rptr. 398. She argues that her complaint sufficiently conforms to the demands of the exemplary damage statute, as construed in Toole v. Richardson-Merrell Inc., by charging the defendants with Reckless disregard of potential danger to consumers.

In Toole the court sustained an award of exemplary damages against a pharmaceutical manufacturer for injuries caused by its product. The manufacturer had falsely represented its laboratory findings to the federal Food and Drug Administration. According to the Toole opinion, the complaint was based upon theories of negligence, breach of express warranty and breach of implied warranty. (251 Cal.App.2d at p. 702, 60 Cal.Rptr. 398.) At a later point the writer of the Toole opinion mentions 'strict liability' but in the context of breach of implied warranty. (Id. at pp. 709--710, 60 Cal.Rptr. 398.) Toole, the plaintiff, had sought punitive damages; the trial court instructed on malice as 'an act conceived in a spirit of mischief or with criminal indifference . . ..' The appellate court found evidence to sustain the jury's finding of malice. Although Civil Code section 3294 confines exemplary damages to actions 'not arising from contract,' the Toole opinion does not lodge the exemplary award under any particular heading of noncontractual recovery. The Toole case has been widely discussed by...

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